A canteen under construction on Mawogola Ssaza land by Ssembabule district without Kabaka’s permission. Court has halted it’s construction
THE High Court in Masaka has granted a temporary injunction order against Ssembabule RDC Nikson Kabuye Nuwagaba and other 5 respondents in a Miscellaneous Application No.4 of 2021 restraining them from trespassing on Kabaka’s land in Mawogola.
They have been restrained from any new constructions, new transactions in dealing with the Mawogola Saza land and or in whatever way interfering with the applicant’s (Kabaka) peaceful possession and or quiet enjoyment determined of civil suit No. 69 of 2020 pending before this honourable Court.
However, Buganda Land Board (BLB), an organisation set up by Kabaka Ronald Muwenda Mutebi II to manage Kingdom land has clarified that, “As a Kingdom, we are not intending to evict any Local Government because we serve the same people who are the Kabaka’s subjects.”
“We are calling upon them to regularise their occupancy as the Attorney General of Uganda directed them. They should be cognisant that Buganda Kingdom is right now their landlord. Grabbing Kabaka’s land will not be accepted.” Said Counsel Denis Bugaya, Senior communications manager Buganda Land Board.
This was shortly, after Dr. Agnes Nkonge, deputy registrar High court read her ruling granting the injunction.
In this Application, His Higness The Kabaka of Buganda was the applicant against six respondents who are: Ssembabule District Local government, Kakoni Holdings (U) LTD, RDC Nuwagaba Kabuye Nickson, Eaton Towers Engineering co. LTD, AMERICAN Tower Corporation (ATC) LTD and The Attorney General.
Aided by RDC Nuwagaba, Musa Kiberu’s Kakoni Holdings defiantly constructed a said to be district canteen on Kabaka’s land although they were warned against trespassing on Kingdom land.
On April 06th 2020, a stubborn Nuwagaba wrote to Mawogola Ssaza chief Muteesa Ssalongo Muhammad Sserwadda, giving Kabaka only two days, during lockdown where Buganda Land Board offices were closed, to produce the title for this disputed land or else, he clears construction to go on.
In a letter to Nuwagaba dated April 08th 2020 wrote by the Buganda Kingdom Advocate who is also Kingdom Attorney General and minister in charge of Local Government Owek. Christopher Bwanika, he said they are shocked that the Sembabule RDC who heads the district Covid -19 task force is ignorant about the measures given by President Museveni to fight the spread of Coronavirus.
“We are surprised that you are asking Owesaza Muteesa to submit to Police without fail a copy of the title not later than Thursday 09 April 2020 as proof that the land in question belongs to Buganda Kingdom moreover during the COVID-19 lockdown.” Said Buganda Kingdom Attorney General.
Owek. Bwanika added, “Your conduct amounts to inciting and aiding the contractor who is tresspassing on Kabaka’s land. You have no power to confer title to the purported developer in contradiction and violation of the Agreement of 1st August 2013, lest you embarrass the office which you represent and the government you serve.”
“You are therefore, put on Notice (and the copy of this letter to the Attorney General constitutes the requisite STATUTORY NOTICE) to desist from proceeding illegally to permit or aid, the commission of tresspass on Kabaka’s Land which was returned and restored to the kingdom, in broad day light.” Read Owek. Bwanika’s letter.
Defiant Nuwagaba however okayed the illegal construction on Kabaka’s land to kick off.
HERE IS THE HIGH COURT RULING
In her 5 paged Ruling, Dr. Agnes Nkonge, the Application was brought by chamber summons under section 98 CPA Cap 71, 0.41 R1,2 and 9 of the CPR SI 71-1 seeking orders that;
a) A temporary Injunction order doth issue against the Respondents maintaining the Status quo on the suit land and restraining Respondents from taking over, constructing, transacting in, dealing with, and or in whatever way carrying out any transaction on the suit land and interfering with the applicant’s peaceful possession and or quiet enjoyment of the suit property pending determination of civil suit no. 69 of 2020 which is already pending before this honourable Court.
b) Costs of this Application be provided for
The Application was supported by an Affidavit deponed affirmed by Kizito Bashir Juma of Buganda Land Board.
GROUNDS OF APPLICATION
The grounds of this Application are briefly that;
The suit land is and has always been an official Mailo estate of the Kingdom of Buganda and it’s an administrative unit of the saza headquarters of Mawogola County in the Kingdom of Buganda formally allocated to Owesaza of Mawogola (Saza Chief of Mawogola) by virtue of his office under the 1900 Buganda Agreement where land was alloted to inter alia chiefs of counties (Abamasaza).
That in 1966, the abolition of Kingdoms in 1966 and their official estates by virtue of article 108 of the 1967 constitution in 1993, by virtue of traditional rulers (restitution of assets and properties) act Cap 247, all the properties confiscated were returned to the traditional leader of the Kingdom.
That in 2020, the Respondents entered the suit land and poured construction materials and used by the 2nd respondent to construct a canteen.
That the Applicant uses the suit land as a palace for his cultural duties. The Kingdom reported a criminal case of trespass vide SD 35/03/04/2020 but the 3rd respondent said that can not stop this illegal construction.
That the Attorney General of Uganda has advised local governments to regularize their occupation on Buganda Kingdom land but the Respondents totally disregarded.
The 4th and 5th Respondents without authority of the Applicant have constructed transmitter/telephone masts used by Airtel and pay rent to 1st Respondent.
The Applicant has since filed Civil suit no. 69 of 2020 against the Respondents for a declaration of Respondents as trespassers.
In reply, the 1st Respondent (district local government filed two affidavits in reply, the main affidavit sworn by Mr. Bataringaya Willy the Chief Adminstrative officer (CAO) at the supplementary Affidavit by district Chairperson Dr. Elly Muhumuza.
The 3rd Respondent (RDC) did not file a reply but the 6th Respondent(Attorney General) filed an Affidavit in reply sworn by Asiimwe Bamanya Phionah, the State Attorney with the 6th Respondents chambers at Mbarara.
The officers averred that, it’s not true that the whole land in the acre on which the suit land lies is an official Mailo order estate of the Buganda Kingdom.
That the suit land has at all material times been public land and occupied by government offices and some of these are.
At first, after hearing Counsel Marook, for the Applicant with Counsel Edward Mukwaya, Counsel Twaha Mukasa for the 1st, 3rd and 6th Respondents, and counsel Mayanja for 2nd Respondent Mr. Bataringaya, the CAO and assistant Mr. Kakuru Michael Counsel for the 1st, 3rd and 6th respondents in his submission in reply raised objection to the submission of the Applicant.
That the applicant was ordered by court to file a rejoinder together with submissions on 18th February 2021 and immediately serve the respondents to enable court rule on the 8th April 2021.
However, the applicant did not comply with the aforesaid orders of court and filed submission on 18th March 2021 and served Respondents on the 23rd March 2021 without seeking for leave to file out of time.
He prayed that the blatant abuse and insult of of court should strike off the submission of the record with costs.
The judge however ruled that, “I have carefully read the submission and the prayers of the learned counsel of the Respondent and I came to the conclusion that this being a land dispute, it’s better the matters be determined on the merits of every party’s case rather than technicalities so as to avoid prolonged litigation.”
GRANTING A TEMPORARY INJUCTION
She said, the general principles governing the grant of temporary Injunctions are well settled as laid down in the case of American Cynamid vs Ethicon Ltd (1975) AC 396 and Kiyimba Kaggwa vs Haji Abdu Nasser Katende (1985) HCB 43. These principles are;
1) The Applicant must show there is a prime-facie case with a likelihood of success
2) The Applicant would suffer irreparable injury which damages would not be capable of atoning if the temporary injunction is denied and status quo maintained and
3) The balance of convenience is in favour of the applicant.
WHETHER THERE IS A PRIMA-FACIE CASE WITH A POSSIBILITY OF SUCCESS
She said, Counsel for the Applicant argued this ground basing on the case of American Cynamid vs Ethicon Ltd (Supra).
That the matter before this Court concerns trespass on the suit land comprising the Saza headquarters of Mawogola County and illegal creation of freehold title on the suit land.
Counsel urged that the entire suit land was official Mailo formerly vested in Owesaza. (A copy of the land title was presented before court).
She relied on the case of St. Mark Educational Centre Ltd vs Makerere University, Court of Appeal, Civil Appeal No. 40 of 1997, where it was held that freehold and Mailo land can not co exist on the same register with a Mailo title (Section 176 (e) RTA).
“In my opinion, I find the directives in the letter annexed as ‘M & N’ of the Affidavit in rejoinder summarises the history of the suit land and gives directives that I find the 1st Respondent has not complied with. There are triable issues and therefore a Prima facie case has been made out.” Reads the ruling.
On the issue that the applicant would suffer irreparable loss that damages would not be able to atone if the injuction is not granted and so status quo should be maintained, the counsel for the applicant argued that the actions of the respondents may disable the applicant’s ability to execute his cultural functions at the suit land if not restrained.
“I have carefully considered the pleading and submissions of both counsel and the ground is also answered in the affirmative.” Said the judge.
In the result, she made the following orders;
Temporary injunction order doth issue against respondents restraining them from any new constructions, new transactions in dealing with the suit land and or in whatever way interfering with the applicant’s peaceful possession and or quiet enjoyment determined of civil suit No. 69 of 2020 pending before this honourable Court.
2) The Respondent shall consolidate existing projects/infrastructure for the provision of vital services on the suit land until the determination of the main suit.
3) Costs of this application shall be in the cause.
WHAT LOCAL GOVERNMENT OCCUPYING KABAKA’S LAND HAS TO DO
According to BLB’s Bugaya, all district leadership in Buganda were educated about Kabaka’s land and they understood.
“We told them about Central government Attorney General’s clarification about local Government and other Government institutions occupying Kabaka’s land. In his letter, the learned Attorney General clarified that land and buildings which were returned to Kabaka in 2013 are in the hands of Buganda Kingdom. Therefore, nothing can be carried out on this land without Kabaka’s permission.”
He said that Attorney General wisely advised, if local government or other government institutions want to use Kabaka’s land or buildings, they can buy this land, get a lease or leave it.
“With the first option, Kabaka’s land is not for sale. But it can be leased following an agreement between the two parties.” Revealed Mr. Bugaya.
Sembabule District leaders, were written to by Buganda Attorney General and they verily know, the land they occupy, title is with the Kabaka.
They got warnings on tresspassing on Kabaka’s land but they instead used the lockdown moment to defiantly construct on Kabaka’s land.
Now they have been ordered by High Court to stop construction.
Send us your views/comments to firstname.lastname@example.org