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    DOCUMENT: I Won’t Give Up, Kabaka Must Reveal His Wealth – Mabirizi Files Notice Of Appeal, States 44 Grounds

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    The legal battle between Ronald Muwenda Mutebi II the Kabaka of Buganda and his subject Male Mabirizi on who is the rightful owner of the kingdom’s land has taken a new twist.

    Lawyer Mabirizi has today filed a notice of appeal to the Registrar Court of Appeal against the Court of Appeal judgment where three justices overturned Justice Patricia Basaaza Wasswa’s judgement that forced the Kabaka to reveal his wealth collected from the kingdom’s land to Mabirizi.

    Mabirizi wants court to declare that Kabaka Mutebi is not the owner of the kingdom’s land but a trustee keeping the land on behalf of the people of Buganda.

    However, yesterday, three justices of the Court of Appeal led by Justice Fredrick Ngona Ntende, Ezekiel Muhanguzi and Hallen Obura, in their judgments read by Agnes Nkonge the assistant registrar Court of Appeal, ruled that Justice Basaaza’s orders to the Kabaka to disclose his wealth to his subject Male Mabirizi on ownership of the kingdom’s land was done in error.

    In his notice of Appeal, Mabarizi has stated that he is dissatisfied with part of the Judgment, orders and omissions made by justice Egonda Ntende, Hallen Obura and Ezekel Muhanguzi.  Mabirizi says that the justices failed to indicate dates on which their respective judgments/ rulings were written leaving blank spaces in date provisions thereby contravening the substantive law relating to decisions of the court and thus rendering the decision null and void.

    He further notes that the three learned justices failed to determine the matter of costs in relation to civil Application which was referred to them by Kasule JA Vide an order dated 9th May 2018.

    Below is Mabirizi’s 44 grounds of appeal:

    THE REPUBLIC OF UGANDA                                                                                                                IN THE COURT OF APPEAL OF UGANDA

    AT KAMPALA

    CIVIL APPEAL NO. 184 OF 2017.

    CIVIL APPLICATION NO. 144 OF 2017

    CIVIL APPLICATION NO. 145 OF 2017

    CIVIL APPLICATION NO. 231 OF 2017

    CIVIL APPLICATION NO. 271 OF 2017

    [ARISING OUT OF HIGH COURT CIVIL DIVISION AT KAMPALA MISC. APPLICATION No. 41 OF 2017-RULING FOR DISCOVERY OF DOCUMENTS BY HON. LADY JUSTICE PATRICIA BASAZA-WASSWA ARISING OUT OF HIGH COURT CIVIL DIVISION MISC. CAUSE NO. 162 OF 2016 & MISC. APPLICATION NOs. 798, 1011 & 1012 OF 2016]                                                                                                                                                                                                                                        

    THE KABAKA OF BUGANDA::::::::::::::::::::::APPELLANT

    VERSUS   

    MALE H. MABIRIZI K. KIWANUKA:::::::::::RESPONDENT          

    NOTICE OF APPEAL

    TAKE NOTICE THAT MALE H. MABIRIZI K. KIWANUKA being dissatisfied with PART of the Judgment, Orders and omissions in Civil Appeal No. 184 of 2017 (THE KABAKA OF BUGANDA V. MALE H. MABIRIZI K. KIWANUKA), Rulings, orders and omissions in Civil Applications No. 231 & 271 of 2017(MALE H. MABIRIZI K. KIWANUKA V. THE KABAKA OF BUGANDA) and the omission to determine who should pay the costs for Civil Applications No. 144 & 145 of 2017(THE KABAKA OF BUGANDA V. MALE H. MABIRIZI K. KIWANUKA); of The Court of Appeal of Uganda at Kampala read by The Deputy Registrar, Court of Appeal on 1st October 2018(Egonda-Ntende, Hellen Obura & Ezekel Muhanguzi; JJA, intends to appeal to The Supreme Court of Uganda [As a first appellate court in respect of  Civil Applications No. 231 & 271 of 2017(MALE H. MABIRIZI K. KIWANUKA V. THE KABAKA OF BUGANDA) & Civil Applications No. 144 & 145 of 2017(THE KABAKA OF BUGANDA V. MALE H. MABIRIZI K. KIWANUKA) and as a second Appellate Court in respect of Civil Appeal No. 184 of 2017(THE KABAKA OF BUGANDA V. MALE H. MABIRIZI K. KIWANUKA)]; against the said judgment, rulings, orders and omissions as the learned Justices of Appeal inter alia:

    1. Failed to indicate dates on which their respective judgments/rulings were written leaving blank spaces in date provisions thereby contravening the substantive law relating to decisions of court rendering the decision null & void.
    1. Failed to determine the matter of costs in relation to Civil Applications No. 144 & 145 of 2017 (THE KABAKA OF BUGANDA V. MALE H. MABIRIZI K. KIWANUKA) which was referred to them by Kasule, JA vide an order dated 9th May 2018.
    1. Went ahead to determine the merits of the appeal after making a finding that the appeal was incompetently before court since Obura & Muhanguzi, JJA did not agree with the findings of Egonda-Ntende JA, on his decision to dismiss the two applications challenging the competency of appeal hence allowing them.
    2. In alternative to 3 but without prejudice to it, Rushed to determine the merits of the appeal without determining Civil Applications No. 231 of 2017 and 271 of 2017 dealing with incompetency of the appeal since Obura & Muhanguzi, JJA did not agree with the findings of Egonda-Ntende JA, on the two applications hence purporting to determine an appeal which was under law withdrawn by the appellant or incompetent.
    1. Made a decision that the main cause pending before the High Court, Misc. Cause No. 162 of 2016 is not tenable, which did not arise out of the grounds of appeal presented by the appellant.
    1. Failed to make a decision on the consent/concession entered by counsel for the appellant before the High Court, to avail the documents.
    1. Deviated from the issues framed by the parties and proceeded on their own voyage.
    1. Failed to determine the Grounds of Affirmation filed by the respondent on 23rd August 2017 which if determined, would dispose of the appeal.
    1. Failed in their duty, as a first appellate court to properly evaluate the material before them and hence reached wrong conclusions in setting aside the Ruling of the Judge.
    1. Did not properly evaluate the pleadings, evidence and submissions and reached erroneous conclusions.

    Without Prejudice to the above:

    1. Held that the appellant did not fail to take essential steps in instituting of the appeal yet it is glaring that the appeal was filed out of time.
    1. Accepted and relied upon the false affidavit of Baguma Cyrus in the face of contrary evidence on record.
    1. Held, contrary to commonsense and simple arithmetic, that the time between 5th June 2017 and 6th July 2017 was within the 30 days required to file a letter requesting for proceedings.
    1. Held, contrary to commonsense and simple arithmetic, that the time between 8th June 2017, when the Notice of Appeal was filed and 18th August 2017, when the appeal was within the 60 days limit in which to file an appeal.
    1. After agreeing that counsel for appellant derived their instructions from David F.K Mpanga, who is neither a party nor a recognized agent of the appellant corporation sole, validated the instructions on ground that David F.K Mpanga is an Attorney General, a position which is solely reserved for a cabinet minister under Article 119 of The Constitution.
    2. Validated the illegal instructions to advocates on the basis that the appellant had not objected to the representation and that it is not a matter for the respondent, hence condoning a clear illegality.
    3. Held that the affidavit in reply by Mukasa Twaha, who is neither a party nor a recognized agent of the party was valid merely by deponing that he is a legal officer under the office of The Attorney General of Buganda.
    1. Relied on the appellant’s record of Appeal which was not Certified as Correct by the Registrar of the High Court.
    1. Relied on Rule 6 of The Court Fees, Fines and Deposits Rules, which are repealed and no longer part of Laws of Uganda.
    1. Deviated from the compulsory and clear provisions of Section 75 of The Evidence Act, Cap. 6 which sets payment for certified copies as a condition precedent to obtaining of such copies.
    1. Treated the none-payment of certification fees as payment of insufficient fees yet the appellant did not pay a single penny and there was nothing to top-up.
    1. Did not refer to the respondent’s evidence and submissions as contained in the various affidavits and record of appeal.
    2. Failed to consider, or at least to comment, on the variety of authorities from within and outside the country which were referred to them.
    3. Highly contradicted themselves when they stated the principles of discovery but deviated from them.
    1. Held that the respondent cannot be sued under Article 50 of The Constitution, him not being a government yet under Article 2(1), the Constitution has a binding force on all persons throughout Uganda and under Article 20(2) of The Constitution, the rights and freedoms under Chapter four must be respected, upheld and promoted by all persons.
    1. Went into the arena of public and private law rights which was not part of the memorandum of appeal and which was never argued before them.
    1. Went ahead to pre-empt the outcome of the High Court Civil Division Misc. Cause No. 162 of 2016, which was not before court and in fact pending in the High Court.
    1. Declared that the appellant is a landlord and that the settlers are tenants which was not before court and which is in issue in the High Court with the respondent contending that the appellant is a trustee and settlers are beneficiaries and hence the law applicable is that relating to a trustee-beneficiary relationship as opposed to a landlord-tenant relationship.
    2. Held that an application for discovery and inspection may only be necessary or reasonable in case the head suit is maintainable at law or at least arguable; which is not one of the universally acceptable and known principles relating to discovery.
    1. After finding that Discovery is not necessarily limited to documents which would be admissible in evidence but to documents which advance an applicant’s case or damage the adversary’s case, held that the documents in issue could not be discovered.
    1. Held that the respondent is representing himself and the people from Buganda tribe living on the official mailo land, which is not supported by any of the respondent’s pleadings, as tribe has never been an element in all the pleadings and it is nowhere in pleadings that the respondent is representing other people.
    1. Relied on Order 1 Rule 8 of the Civil Procedure Rules to find that there was no representative order yet the main cause was not filed under The Civil Procedure Act but rather under Article 50 of the Constitution.
    1. Relied on the per incuriam decision of RWANYARARE v ATTORNEY GENERAL, Constitutional Petition No. 11 of 1997 which was Constitutional Petition and applied it to a human Rights enforcement main cause in total disregard of the decision of Opio Aweri J’s decision in ADVOCATES COALTION FOR DEVELOPMENT AND ENVIRONMENTAL & ANOR v ATTORNEY GENERAL & 2 ORS H.C Misc. Cause No. 1000 of 2004(unreported), which was a purely human rights enforcement cause.
    1. Deviated from Constitutional Court binding precedent of TURYATEMBA & ORS V. ATTORNEY GENERAL & ANOR, CONSTITUTIONAL PETITION NO. 15 OF 2006 (2010) EA at 443 which is clear on principles of discovery.
    1. Tampered with the discretion of the Judge in circumstances where the learned Judge was clearly right and basing on matters which were not part of the grounds of appeal.
    1. Held that the discovery will not save costs on one hand and on the other stating that the respondent should pay colossal sums in search under The Registration of Titles Act to search for titles which are in the appellant’s possession.
    1. Created their own criteria for discovery, that the action must be maintainable, contrary to known criterion for an application for discovery.
    2. Held that there is no connection between the Bank Accounts and the main cause yet the respondent sought for refund of the moneys collected and the said moneys was deposited on the same accounts.
    3. After clearly stating the principles under Section 22 of The Civil Procedure Act and Order 10 Rule 12(1) of The Civil Procedure Rules, relating to discovery of documents, deviated from them in allowing the appeal.
    1. Allowing grounds 3, 4 & 5 of the Appeal without making a finding that the documents were not specific, agreeing that Buganda Land Board in an agent of the appellant and without finding that the learned Judge deviated from principles of discovery.
    1. Misapplied the principles relating to setting aside a discretionary decision yet it is settled that it is not open to an appellate court to tamper with the discretion of a judge on flimsy grounds.
    1. Dismissed Misc. Application No. 41 of 2017 with costs yet the appellant did not appeal against the order of costs made by the judge.
    1. Un-judiciously exercised their discretion to order the respondent to pay costs of Civil Applications No. 231 & 271 of 2017 yet, among other factors, the appellant was found in fault.
    2. Un-judiciously exercised their discretion to order the respondent to pay costs of the appeal to appellant yet, among other factors, it was found that the appellant ignored the Notice to Produce the documents.

    The address of service of the appellant is C/O Plot 39, Kampala Road, Shell Capital Building, 2nd Floor, Suite 201, Tel 0787 263 086/0752 570 574, Kampala.

    It is intended to serve copies of this notice on KALENGE, BWANIKA, SSAWA & CO. ADVOCATES, LUMUMBA AVENUE, KAMPALA.

    Dated this…………..day of……………2018.

    ………………………………                                                                                              MALE H.MABIRIZI K.KIWANUKA.                                                                 RESPONDENT (INTENDED APPELLANT)

    TO: THE REGISTRAR,                                                                                           

           THE COURT OF APPEAL OF UGANDA.

    Lodged in the Court of Appeal Registry at Kampala this ……………day of…….2018.

     

    ……………………………..                                                                                       DEPUTY REGISTRAR,

    COURT OF APPEAL OF UGANDA.

     

    IT IS INTENDED THAT A COPY OF THIS NOTICE WILL BE TRANSMITTED TO

    THE REGISTRAR, SUPREME COURT OF UGANDA,

    KOLOLO-KAMPALA.

     

    Drawn and filed by;                                                                                                                                                                                                   MALE H. MABIRIZI K. KIWANUKA,                                                                                                                                                                                     C/O Plot 39 Kampala Road, Shell Capital Building, 2nd Floor Suite 201

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    NEWS

    Stop Cattle Theft, Witch Craft And Alcoholism – Gen. Peter Elwelu Tells Karamoja Sub-Region Leaders…

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    Lt. Gen. Peter Elwelu

    The Deputy Chief of Defence Forces Lt. Gen. Peter Elwelu has urged leaders in Karamoja sub-region to work together with the government to pacify the region.

    “The region has plenty of resources that can be profitably exploited for the benefit of all Ugandans,” Elwelu said.

    “With the restoration of peace in Karamoja, the region will reap from the enormous government programmes aimed at lifting people from poverty,” Elwelu noted with concern while addressing local leaders over the weekend.

    Brig. Gen. Joseph Balikuddembe, the commander of the UPDF Third Infantry Division said that the region is peaceful except for the escalating cattle thefts that have kept the region under developed.

    Gen. Elwelu also cautioned residents to stop cattle theft, witch craft and alcoholism if they want economic emancipation.

    Gen. Balikuddembe called upon local authorities to embrace government programs in the area, most especially those aimed at securing the region.

     

    By Hope Kalamira

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    CRIME

    UWA, NFA On Spot For Not Compensating Batwa After Eviction…

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    Court has ruled that the government is responsible for the suffering of the Batwa after failing to compensate them for their land which was turned into central forest reserves and national parks in South western Uganda.

    According to the court, the Batwa were evicted from their areas and the government gazetted them into Echuya Central Forest Reserve, Bwindi Impenetrable National Park and Mgahinga Gorilla National Park.

    In an unanimous judgement, the judges; Fredrick Egonda-Ntende, Elizabeth Musoke, Cheborion Barishaki, Muzamiru Kibeedi and Irene Mulyagonja ruled that the Batwa had interest in the suit in Kabale and Kisoro because it is their original title.

    “The Batwa have been left disadvantaged, owing to their eviction from the said land, and also due to the nonpayment to them of adequate compensation which would have facilitated their relocation to similar lands. This has rendered them landless and has severely affected not only their livelihoods but has destroyed their identity, dignity and self-worth as a people and as equal citizens with other Ugandans,” Justice Musoke ruled in a lead judgment.

    The Court ruled that marginalization of Batwa has arisen due to their eviction from the present day forest lands without payment of compensation and that they are now relegated to a lesser class of citizens, inherently landless and fated to be encroachers on other people’s land.

    Justice Musoke observed that the Batwa people presented evidence that is more compelling because it charts the history of Batwa and their connection to the respective lands better than Attorney General and Uganda Wildlife Authority – UWA and National Forestry Authority – NFA.

    “I reiterate that the Batwa are a group of individuals who have been marginalized on the basis of historical reasons following their eviction from the relevant lands without adequate compensation being paid to them. I find that no adequate compensation was paid to the Batwa despite the fact that some monies were paid in about 1991,” the judge observed.

    The court decision resulted from a petition in which a charitable organization and eleven individuals accused the government and her bodies of evicting, actions of excluding and dispossessing them from their ancestral forest lands which compromised their physical and cultural integrity and survival as indigenous people.

    Through their lawyer Owor Onyango of Onyango  and Company Advocates, the Batwa successfully argued that the government contravened both local and international laws in contravention of their rights to life, property, self-determination, freely dispose, wealth, natural resources and means of subsistence.

    The petition was filed by local body; United Organisation for Batwa Development in Uganda and eleven individuals who include Elias Habyarimana, Jovanis Nyiragasigwa, Christopher Kagundu, Night Isabela, Eric Tumuheirwe, Abel Kasumba, Abe Ruzuga, David Kakuru, Geoffrey Mahano, Alice Nyamihanda and Allen Musabyi.

    Counsel Onyango argued that the actions of government have since resulted in widespread displacement, exploitation, exclusion and marginalization of Batwa in the communities they resettled in in contravention of their right to equality without discrimination.

    They petitioned the Attorney General, Uganda Wildlife Authority (UWA) and National Forestry Authority (NFA). The Batwa are people with a population of about 6000 individuals, majority of whom live in the south western Uganda districts of Kanungu, Kisoro and Kabale. Court documents show that their land at current Echuya Forest, Bwindi Impenetrable National Park and Mgahinga Gorilla National Park are situated was Batwa Ancestral land which was customarily owned by the Batwa for many years before the declaration of British Protectorate on Uganda.

    The petitioners told the Constitutional Court that since the 1930s to the present day, successive governments have dispossessed them from their ancestral lands on which relevant protected areas were established.

    They argued that the government acts include the creation of Mgahinga Gorilla Sanctuary, the creation of two crown forest reserves in Bwindi area which was subsequently amalgamated and converted to a Game Reserve at Echuya.

    Court heard that the Batwa were not consulted prior to the setting up of the protected areas on land they owned and that no compensation was paid to them after extinguishing their interests in the land issue.

     

    By Sengooba Alirabaki

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    NATIONAL

    Kampala RCC Hood Hussein In Trouble Over Carrot Deal In Nakasero Market…

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    Controversial Kampala Resident City Commissioner (RCC) Hood Hussein is in trouble over carrot deals.

    Nakasero market dealers in Kampala have accused Hussein of conniving with Kenyan businessmen to take over the carrot business.

    James Kimuli, one of the leaders in carrot sections in Nakasero market, told theGrapevine that, “We have been buying carrots from Kenyans and bringing them here but now the RCC wants Kenyans to form a company that will sell carrots direct to customers,” Kimuli said.

    He added that some of their Kenyan suppliers have already started warning them to try other businesses since the carrot trade is soon going to be taken away from them.

    However, when contacted, Hussein denied the allegations and stated that he was invited by Nakasero vendors that are dealing in carrot business to launch their official corporation with Kenyans.

    He added that he later learnt that there were divisions among the traders that is why he decided to cancel the invite.

    “I don’t know the Kenyan people they are talking about. I have decided to send KCCA enforcement team to help them because it seems they are not straight,” Hussein said.

     

    By Sengooba Alirabaki

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