The Court of Appeal has overturned a high court ruling by Justice Patricia Basaza directing the Kabaka Ronald Mutebi to avail bank statements of all the money collected from people occupying Kingdom land.
Justice Basaza made the ruling following an application by Male Mabirizi, a subject of Buganda kingdom challenging the decision by the Kabaka charge occupants of kingdom land between Shillings 100,000 and 600,000 as compulsory registration fees.
Mabirizi sought court orders compelling the Kabaka provide statements in the names of Buganda Land Board at Bank of Africa main branch and Stanbic bank (Forest Mall) branch, saying he needs them for inspection and internalization to enable him present his case with facts.
Justice Basaza granted Mabirizi’s prayers in her ruling delivered in 2017. She also ordered the Kabaka to produce the details of the Mailo land that was returned by government specifying the name of each county, block and plot numbers.
Court also directed the Kabaka to provide particulars of all people occupying kingdom land as well as the amount each of them has paid since 1993.
Kabaka’s lawyers led by Christopher Bwanika appealed the orders in the Court of Appeal. They argued that there was no proof that Mabirizi was representing the rest of the occupants of Mailo land. They also argued that they needed to protect the dignity of the kingdom by granting privacy to the Kabaka like any other person or organization.
This morning, a panel of three judges of the Court of Appeal comprising of Justices Engonda Ntende, Hellen Obura and Ezekiel Muhanguzi overturned the high court orders. The justices concurred with the Kabaka that while Mabirizi went to court on behalf of other people, they are not named and he never obtained their consent, which makes his action unlawful.
“The respondent claims that he is representing himself and the people from the Buganda tribe living on the official mailo land. However, these individuals are not named. Neither is it disclosed that he has their consent to bring his action. Equally, no permission was granted by the trial court to bring a representative action as required under order 1 rule 8 of the civil procedure rules”, reads the judgment in part.
The judgment read by Agnes Nkonge, the Court of Appeal Deputy Registrar also notes that since the matter is not one that qualifies as a public law action, it cannot be maintained in regards to the enforcement of fundamental rights and freedoms.
The judges stated that an application for discovery and inspection may only be necessary or reasonable in case the main action is one that is maintainable at law or is at least arguable. They however, argued that an incompetent action by the applicant cannot give birth to an order for discovery or production and inspection of documents.
The judges also said that while Mabirizi alleged that the Kabaka infringed on his and other unnamed people’s rights to property provided under Article 26 of the constitution, the Kabaka isn’t a government or public Authority who wields governmental powers.
The Judges noted that in acting or carrying out the actions complained of, there is no assertion that Kabaka is exercising governmental authority or purporting to be exercising governmental authority. They said that it is doubtful that in the circumstances, the appellant can rightfully, be a defendant or respondent in as far as the public law action is concerned.
The Judges further stated that the facts disclosed in Mabirizi’s pleadings point to private rights rather than infringement of fundamental human rights or freedoms yet no one is alleged to have been unlawfully deprived of his or her land.
Mabirizi laughed endlessly in court as Nkonge read the judgment. He told this publication outside the court that he was amused because the Court of Appeal was making orders on issues that were never brought to it for determination.
The case in High Court had earlier stalled pending the disposal of the matter before the appellant court. Kabaka’s lawyers led by Bwanika welcomed the ruling, saying they hope Mabirizi will see sense in the verdict this time round.