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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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REGIONAL

NRM Party Is Full of Hypocrites – Captain Mike Mukula

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The deputy National Resident Movement (NRM) boss Eastern Region, Captain Mike Mukulu has attacked his party colleagues for being hypocrites.

Mukula made these remarks at Masaka Liberation square when NRM was celebrating party achievements in the Sub Region.

Mukula, who was the guest of honour told NRM cadres who gathered at the venue that he has moved different district and he has enough evidence of some of the developmental government projects which are supposed to benefit locals in different areas.

Ambassador Alintuma Nsambu [L], MP Muyomba Kasozi, Hajat Brovad (standing), Youth MP Babirye and MP Kakooza at the function

Mukula also asked all NRM members from different districts to follow his example by telling other people stuck in the opposition the tremendous things that NRM has done for this country and stop the hypocritical habit of attacking their own party and party members.

The Deputy Mayor Masaka municipality Sarah Nakyanzi, who also doubles as NRM top mobilizer in greater Masaka warned all youth in the country to be careful with some leaders more especially those from the opposition because their main aim is to use them like condoms then later dump them.

Nakyanzi thanked Masaka tycoons for supporting NRM activities and making sure that the party wins most of the vital position during elections at all levels.

Top NRM Cadres at the venue

Some of the Masaka tycoons who are strong NRM supporters include Hajat Sarah Kiyimba aka Hajat Brovad, Tycoon Emmanuel Lwasa Kaweesi the managing director Lwasa Gardens, Lwasa Events, Club Tavern Kick, Eng. Benon Mugarura of Zebra Hotel, Hajat Madinah Matovu, and many others.

Nakyanzi also said that before the meeting, the organizing committee documented aimed at improving the livelihoods of the locals in the Sub–region during president Museveni’s reign, among them include piggery, Poultry Farming, Infrastructural development, Palm growing, Water transport system in Kalangala district and many others.

Ssegawa Katumba, the deputy NRM boss Masaka municipality revealed that NRM government has managed to constrict some good roads like Alex Ssebowa, Nyendo Market, among others which has helped women and men to be liberated from poverty and famine.

RDC Herman Ssentong (R), Minister SSempijja (L) and other NRM cadres

Capt. Birimumaaso Mulindwa, the Lwengo NRM boss also read a statement endorsing Museveni to lead the party for another term in 2021 because he is the only leader who can take this country to another level. He warned that those competing against Museveni are wasting their time.

The function was attended by Ambassador Alintuma Nsambu from Canada, Agriculture Minister  Vincent Ssempijja , MP Muyomba Kasozi, Religious leaders, people from Central government and Mengo government.

 

By Aslam Kabugu, Masaka

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CRIME

Police Net 3 Who Killed Reverend, Cut Off His Head And Hid It

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Police in Bukwo district have arrested three suspects who participated in the controversial murder of Rev. Neto Augustine aged 43 years on October, 29, 2018 in East Elgon Forest, Grapevine has learnt.

It’s alleged that four residents of Kapukorosoi village in Bukwo District have been sending their cattle to East Elgon Forest to freely graze without anybody attending to them and on the fateful day, the four including Rev. Neto Augustine aged 43 years had information that there

are people who are stealing their cattle from the forest and selling them.

The four decided to go to the forest to verify the allegations whether it’s true or not. When they reached the forest they ran into cattle thieves and three of Rev. Augustine’s colleagues started chasing them while making an alarm. So, the Reverend opted to drive the animals back home. The alarm his colleagues made attracted nine local residents armed with machetes who responded and on entering the forest; they met the Reverend driving the cattle and mistook him to be a cattle thief.

They beat him, striped him naked, cut off his head and hid it.

When the Reverend’s colleagues returned, they met the nine and explained to them what had happened and they inquired whether they had seen him.

The nine expressed ignorance of the Reverend’s whereabouts. The three decided to go up to the trading center where they held a meeting and when the nine realized that they had killed an innocent person, they started disappearing one by one.

The Locals accepted to work with the Police to arrest the nine who murdered the Reverend and so far three suspects have been arrested and confessed to the murder. The three suspects took Police to where they had hidden the head of the Reverend and it was recovered. Yesterday (31/10/2018), the headless body was brought from Kitalein Kenya where it was in mortuary and joined together with the head. The three suspects that have been arrested are Chelop Alfred, Chesur Andrew, Kiplungant Peter.Police is still tracing for the six suspects who are on the run.

 

By Remmy Atugonza

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You Will Account For The Innocent Blood Of Those You Are Killing: Bishop Kaggwa Warns Killers

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The Masaka Diocesan Bishop John Baptist Kaggwa has warned assailants killing people and those dropping anonymous letters threatening to kill some important people in the country that God will soon call them to account for their acts.

Last week, the assailants threatened to kill 16 prominent people in a letter which they dropped at the home of Rubaga Nouth legislator Moses Kasibante. Among those told to prepare their graves included: Buganda the premier Charles Peter Mayiga, Kampala Lord Mayor Erias Lukwago, Minister Betty Kamya, MP Moses Kasibante, Omulangira Nakibinge, Bobi Wine, government Chief Whip Ruth Nankabirwa among others.

Bishop Kaggwa cutting the cake with the Pokino, parents and pupils

Today, during the special prayers for primary seven candidates at St John Paul Mugwanya Complex Nursery and Primary School at Ssaza village in Katwe Butego sub county, Kaggwa asked government and security agencies to investigate these assailants because the moment they mention your name, the chances of you surviving them are minimum.

Kaggwa added that it is his prayer that these murderers turn to God because anytime, they will also die and God will ask them to account for the innocent blood of others that they shed while on Earth.

Brig Kyaze (L), Pokino Mayiga(M) and Bishop Kaggwa (R)

Kaggwa preached that God gave Moses ten commandments at Mountain Sinai and one of them was not to kill, so anyone who kills should be ready to face God and account for breaking one of his commandments.

Pokino Vicent Mayiga thanked Paul Mugwanya Kagombe the managing director of St. John Paul Mugwanya Complex Nursery and Primary School and asked parents to make sure they take their children to school instead of leaving them in villages and marrying them off.

 

By Aslam Kabugu, Masaka

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