MASAKA .The High Court in Masaka has dismissed an application by former Foreign Affairs Minister Mr Sam Kutesa seeking to compel a Ugandan woman living in the United States to deposit security for costs in an ongoing land fraud case.
In a ruling delivered on April 30, the acting Judge Fatuma Nanziri Bwanika declined to order Alice Nambooze Osaga to furnish security for costs in a civil suit over ownership of a piece of land comprised in Mawogola/Masaka 547 Folio 6, Block 83 Plot 520.
The dispute stems from a substantive suit filed by Osaga in which she accuses Mr Kutesa and others of fraudulently depriving her of ownership of the vast property in Sembabule District.
According to court records , Mr Kutesa through his lawyers of M/s Kakuru & Co. Advocates had argued that Osaga’s case was frivolous and vexatious, and that because she lives in the US , has no fixed place of abode in Uganda, and allegedly lacks attachable property or income within the country, Kutesa risked being unable to recover legal costs if he successfully defended the suit.
Mr Kutesa further maintained that he had a strong defence likely to succeed at trial.
But Justice Bwanika rejected the application, maintaining that the court could not conclude that the underlying suit was frivolous merely because the defendants disputed the allegations.
“The plaint in its current state clearly levelled a cause of action against the Applicant herein based on alleged fraudulent acts,” the judge ruled, adding that the case raised substantive issues that deserved full hearing.
The judge stressed that applications for security for costs must be handled cautiously because of the danger of shutting litigants out of court before their claims are heard.
Citing several Ugandan and international authorities, justice Bwanika noted that courts should exercise the power “sparingly” to avoid turning it into “an instrument of oppression that bars genuine claims or defences.”
The judge also rejected the argument that Osaga’s residence in the United States automatically justified an order for security for costs.
The judge observed that there is no universal rule requiring plaintiffs living abroad to deposit money before pursuing cases in Uganda.
While acknowledging that Uganda and the United States do not have a formal mutual enforcement treaty for judgments, the court said it would amount to speculation to assume that any future Ugandan costs order could not be enforced in American courts.
“A Court of law as a general rule cannot rely on speculations, conjectures or guesswork,” the ruling stated.
The court also took issue with Kutesa’s reliance on Osaga’s alleged lack of housing in Uganda, noting that she claims the very property in dispute was unlawfully taken over by him.
“It would be manifestly unjust to use a housing predicament allegedly created by the Applicant as a weapon to bar the Respondent’s access to the seat of justice,” Justice Bwanika ruled.
The judge further reaffirmed the long-standing legal principle that poverty or lack of property is not sufficient ground to force a litigant to provide security for costs.
In dismissing the application, the judge said the dispute should instead proceed to full hearing on its merits.
“The Respondent is entitled to have her suit heard and determined on its substantive merits,” the judge ruled.
The application was dismissed with costs to remain “in the cause,”-implying that the issue of costs will be determined in the final outcome of the main land case.