Court name
Constitutional Court of Uganda
Case number
Constitutional Reference-2011/20
Judgment date
8 November 2013

Bagalye & Anor v Damanico Properties Ltd & Anor (Constitutional Reference-2011/20) [2013] UGCC 12 (08 November 2013);

Cite this case
[2013] UGCC 12

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL REFERENCE NO. 20/2011

(Arising out of the Chief Magistrate’s Court of Kiboga at Kiboga Civil Suit No. 03/2010)

  1. HAJJI YUSUF BAGALYE
  2. SEMWANUKA PETER ================= APPLICANTS

VERSUS

  1. DAMANICO PROPERTIES LIMITED
  2. THE ATTORNEY GENERAL =============== RESPONDENTS

CORAM:  HON. MR. JUSTICE REMMY KASULE, JA

HON. MR.JUSTICE ELDAD MWANGUSYA, JA

HON. LADY JUSTICE SOLOMY BALUNGI BOSSA, JA

HON. MR. JUSTICE KENNETH KAKURU, JA

HON. JUSTICE PROFESSOR L.E. TIBATEMWA, JA

 

JUDGMENT OF THE COURT.

This matter came by way of reference under Article 137(5) (6) of the Constitution and Rules 18(1) of The Constitutional Court (Petitions and References) Rules Statutory Instrument No. 91 of 2005

At the hearing of this reference the applicants were represented by learned counsel Tendo Kabenge while Mr. Alex Tuhimbise appeared for the first respondent and Ms Kaahwa Christine, Principal State Attorney appeared for the 2nd respondent.

The reference arose out of proceedings before Her Worship Susan Kanyange Chief Magistrate, at the Chief Magistrates Court at Kiboga in Kiboga Civil Suit No. 003 of 2010.

The plaintiff in that suit is Damanico Properties Limited the 1st respondent herein, and the defendants are Hajji Yusuf Bagalye and Semwanuka Peter, the applicants in this reference.

The back ground to this reference as far as we could gather from the record is as follows:

That the plaintiff Damanico Properties Limited is a limited liability company, limited by shares. It is incorporated under the Laws of Uganda. It is the registered proprietor of land comprised in Freehold Register Volume 63 Folio 1, situate at Kulambiro Kiboga District, having been registered as such on 28th May 1998.

In December 2009, the company learnt that the defendants were trespassing on the said land. That they had entered thereon, erected temporary structures and were cultivating and burning charcoal.

The plaintiff then filed a suit at the Chief Magistrates Court at Kiboga for trespass against the defendants, vide Kiboga Civil Suit No. 003 of 2010. The plaintiff also filed an application for temporary injunction arising from the same suit vide Civil Miscellaneous Application No. Kbg. 09 of 2010.

It appears that when the application for temporary injunction came up for hearing before the learned Chief Magistrate on 22nd July 2010, counsel for the respondents raised a preliminary objection, to the effect that a 3rd defendant ought not to be added to the suit. The learned Chief Magistrate dismissed the objection. Counsel then applied for leave to appeal against that order which was promptly granted.

On that same day court issued a temporary injunction on the suit land pending the hearing and determination of the main suit.

Counsel for the defendants then on that very day 22nd July 2010 raised a complaint apparently alleging bias against the Chief Magistrate to the Assistant Inspector of Courts, Uganda Judiciary, and the case file had to be forwarded to the High Court. The complaint was dismissed for lack of merit and the file returned to the Chief Magistrate Court with instructions to fix the main suit for hearing.

It appears that the suit was then fixed for hearing sometime in November 2010. We are unable to ascertain the exact date from the record. Be that as it may, when the matter came up for hearing Mr. Tendo Kabenge counsel for the defendants again raised objections as follows:   

  1. That he had requested court to stay proceedings pending the hearing of his appeal against an order earlier made by court, but court had gone ahead to issue hearing notices for the main suit without first waiting for his appeal to be determined.
  2. The Chief Magistrates court had no jurisdiction to entertain a suit on trespass where the value of the subject matter exceeded 150 Million shillings.
  3. The suit raised issues that require the interpretation of the constitution and requested that the matter be referred to the Constitutional Court.

In her ruling dated 24th November 2010 the learned Chief Magistrate had this to say, on the issue of referring the matter to this Court for interpretation:-

“A court before which a request is made is not merely a conduit to transact the question but must consider whether there is merit in the application and if it falls within the letter and the spirit of the relevant provisions of the Constitution”

The learned Chief Magistrate went on to hold that;

“Thus in my opinion on ground of jurisdiction since the application has not yet been heard there is no question to be determined by The Constitutional Court. But since counsel quoted Article 126(1), 129(3), 128(10, 144(c), 145, 124(1), 121(2), 126(2)(a) (b) of the Constitution in his question and since this court has no interest in the matter as he is trying to allege, the same is hereby forwarded to the Constitutional Court for interpretation of his question” (sic)

The Chief Magistrate then proceeded to prepare and complete Form 2 under The Constitutional Court (Petitions and References) Rules wherein she framed the question for interpretation by this Court. The question framed states as follows:

“Whether the proceedings and the Constitution of proceedings in Kiboga Chief Magistrates Court at Kiboga Civil Suit No. 3/2010; Damanico Properties versus Hajji Yusuf Bagalye and Semwaniko Peter and all applications arising therefrom is or are contrary to or in contravention of Articles 126(1), 129(3), 128(1), 144(c), 145, 121(1), 121(2), 126(2)(a) (b) of the 1995 Constitution of Uganda”

The form is dated 24th March 2011 and is signed and stamped by the Chief Magistrate. It was filed and received at this Court on 30th March 2011.

This matter came up for conferencing before The Registrar of this Court on 21st January, 2013. Mr. Tendo Kabenge counsel for the applicants who had sought the reference was absent. The matter was conferenced as only Mr. Alex Tuhimbise for the respondent was in Court.

At the commencement of the hearing Mr. Tendo Kabenge sought to have the question before court for determination amended. He argued that when he sought reference to this court he had referred to different Articles of the Constitution and not the ones set out in the question before court. According to him the question he wanted this court to interpret was totally different from the one that the trial court had framed. Court declined to grant the application, observing that such an amendment ought to have been made earlier and also that the question that this court had to entertain was the one that the trial court had framed and not the one the applicant and counsel wished this court to entertain.

Mr. Tendo Kabenge submitted that the proceedings before the Chief Magistrates Court at Kiboga in Civil Suit No. 3 of 2010 were unconstitutional. He referred Court to the affidavit of Hajji Yusufu Bagalye filed herein dated 7th October 2013. This affidavit was filed in court a day before the hearing of this Petition. For clarity we have reproduced the relevant parts of the affidavit. It reads as follows:

  1. That I am a male Ugandan of sound mind, 1st Defendant in the main suit and swear this Affidavit in that capacity.
  2. That Chief Magistrate of Kiboga Civil Suit No. 03/2010 a land dispute was filed against me by the Plaintiff.
  3. That among the pleadings in the above suit and in particular the application for a Temporary Injunction, the Directors of the said company swore affidavits in which they confirmed that they are British citizens. (A copy of the said application is attached and marked Annexture “Z”).
  4. That the Plaintiff also attached evidence of a copy of its alleged title to the said application attached thereto as Annexture “A” to the affidavit of Nikhil Damani which shows that the plaintiff became alleged proprietors in 1998.
  5. That I have been advised by my Advocates M/s Akampumuza & Co Advocates and M/s Simon Tendo Kabenge Advocates whose advice I verily believe to be true that being a company whose shareholders are British citizens, the said company is barred by Article 237(1)(2)(c) 4(a) (b) of the 1995 Constitution of Uganda from holding mailo or freehold  land and that therefore the entire Civil Suit before the Chief Magistrate could not proceed to enforce such an unconstitutional claim.
  6. That my said Lawyers framed a question for constitutional reference on this aspect and the same reference was made.
  7. That I swear this affidavit in support of the instant Application.

Based on the above affidavit learned Counsel, Mr. Tendo Kabenge submitted that the suit land upon which the applicants (defendants in the original suit) were said to have trespassed upon is a freehold land, and that the 2nd respondent Damanico Properties Ltd is not a Ugandan citizen. That it’s Managing Director is a British citizen who cannot hold freehold land under the Constitution of Uganda. He relied on the affidavit of Mr. Nikhil Damani deponed in support of chamber summons in Miscellaneous Application No. 9 of 2010 arising from Kiboga Chief Magistrate Court Civil Suit No. 3 of 2010 from which this reference arose.    

In that affidavit the deponent states in paragraphs 1 and 2 as follows:-

  1. “That I am adult British of sound mind and the Managing Director of the applicant plaintiff company in this case and I swear this affidavit in that capacity.
  2. That the plaintiff is the registered proprietor of freehold land comprised in FRV63, Folio 1, situated at Kulambiro in Kiboga District as shown by the copy of the certificate of title attached hereto and marked annexture “A”.”

Mr. Tendo Kabenge submitted that the above was evidence that the registered proprietor was not a Ugandan citizen and as such he ought not to have been registered as a proprietor of a freehold property. That such registration having been made on 28th May, 1998 after the coming into force of the 1995 Constitution was an illegality and any Court proceedings or any claims arising therefrom contravened the Constitution and he asked this court to hold so.

Mr. Tuhimbise, learned Counsel for the 1st respondent in reply submitted that this reference did not disclose any question for interpretation by this Court. He contended further that all the Articles of the Constitution cited in the reference are irrelevant.

He further contended that the question for interpretation must be clear and straight forward and as such Article 126 was inapplicable. He submitted that Article 137 was never in issue in this reference.

He went on to submit that under Section 40 of the Land Act, a limited liability company in which the majority shares are held by Ugandan citizens can own freehold land. He asserted that the applicants had not proved that the majority shareholders in the 1st respondent company were not Ugandan citizens.

Ms. Kaahwa for the 2nd respondent submitted that the Articles of the Constitution cited in the reference did not apply in this case. That the applicants sought to direct the questions set by referring to other articles of the Constitution which were not cited.

In a brief reply Mr. Tendo Kabenge asked this Court to look at the Constitution as a whole and not to interpret its provisions in isolation of each other.

We must state here that the question for interpretation set by the learned Chief Magistrate is not clear. It does not disclose which aspect of the proceedings are unconstitutional, it does not state why the proceedings are said to be unconstitutional. It was after we had read the affidavit of Yusuf Bagalye and heard the submission of Mr. Tendo Kabenge that we understood the complaint.

In our view the question for reference must be set by the Court before which it arises. Rule 18 of the Constitutional Court (Petitioners and References) Rules provides so, as can be ascertained from Form II of those Rules. The parties should also be involved, but certainly the court should have the final say as to the core content of the question which is the subject of the Reference. This is to avoid situations where parties may not agree. However parties may extract issues therefrom for determination or for clarity. The amendments to questions envisaged under Rule 20 of SI 91 are only for the purpose of clarity. This Rule does not permit parties to frame new questions.

This court however, while determining that question is not bound to restrict itself entirely to the question as framed. It may in the course of its interpretation look at other provisions of the Constitution. This is because one of the cardinal rules of constitutional interpretation is that the constitution must be looked at as a whole.

This is a well established principle as Hon. Justice L.E.M. Mukasa-Kikonyogo DCJ, as she then was, stated in her lead Judgment in Foundation for Human Rights Initiative versus The Attorney General ; Constitutional Petition No. 20 of 2006:

“In matters involving interpretation of the Constitution or determination of the constitutionality of Acts of Parliament courts are guided by well settled principles. One of the cardinal principles in the interpretation of constitutional provisions and Acts of Parliament is that the entire constitution must be read as an integrated whole and no one particular provision should destroy the other but each should sustain the other”

This court therefore is at liberty to look at other provisions of this Constitution even if they were not referred to in the question framed for reference. This Court in Constitutional Petition No. 036 of 2011 (Reference) between Thomas Kwoyelo alias Latoni and Uganda held on this very issue as follows:-

“This Court in its ruling in the case of Akankwasa Damian versus Uganda Constitutional Reference No. 5/11 declined to entertain an additional issue which was framed by counsel for the applicant, outside the issues which were framed by the court which sent the reference. In declining the additional issues this court said:-

“Rule 20 (supra) allows amendment on issues that had been framed by the lower court for determination. When the Constitutional Court is determining the reference, it is exercising special and limited jurisdiction on matters and issues that have arisen in the proceedings before court which sent the reference. The additional issues which were framed by counsel for the applicant are outside the scope of reference which was sent to us by the lower court. We shall not consider them in this ruling”

In the matter now before us we allowed the respondent to raise an issue which was not framed for our determination by the lower court because it touched on the legality and constitutionality of an Act of Parliament under which the applicant was claiming he had acquired a right to be granted amnesty. The law which is alleged to be inconsistent with the constitution is null and void to the extent of the inconsistency. See Article 2(2) of the Constitution. The Court could not close its eyes to alleged illegalities and has a duty to investigate the allegation”

We agree with the above holding.  In the present case the reference should have been framed along the following lines:   

“Whether the proceedings in Kiboga Civil Suit No. 3 of 2010 are unconstitutional as they infringe and or contravene the provisions of Articles 237 of the Constitution, in that the claim for trespass in the said suit is in respect of a freehold land registered in the names of a person who is not a citizen of Uganda”

The way the question is framed by the Chief Magistrate discloses nothing for this court to interpret. The Registrar of this Court is required under Rule 20 of SI 19 of 2005 to issue directions. This goes beyond just the framing of issues. The Registrar ought to have done more in this case for example by pointing out that all the Articles of the Constitution cited in the reference are not relevant. He should also have made directions to have the framed question re-phrased to make it clearer, before fixing the matter for hearing.

As already stated above the Articles cited in the reference are not relevant.

Article 128 relates to the independence of the judicially, 144 relates to Tenure of Office of Judicial Officers, 145 to Registrars. Article 122(1) relates to Diplomatic representation and Article 126(2) relates to judicial powers.

 

It is apparent that whoever framed the question did not bother to look at the Constitution at all. Although the reference Form II is signed by the Chief Magistrate, her ruling of 24th November 2010 reveals that she came to the conclusion that there was no question to be referred to this court for constitutional interpretation. The learned Chief Magistrate states:

“Thus in my opinion on ground of jurisdiction since application has not yet been heard there is no question to be determined by this constitutional court. But since counsel quoted Articles 126(1), 129(3), 128(1), 144(c), 145, 124(1), 121(2), 126(2) (a) (b) of the Constitution in his question and since this court has no interest in the matter as he is trying to allege, the same is hereby forwarded to the constitutional court for interpretation of his question”.

It appears that the Chief Magistrate accepted to make the reference at the insistence of counsel for the applicants.

Even if the question had been re-phrased as we have done above, this Court would still have found that it does not raise any issues for interpretation by this Court. The Chief Magistrate was quite right when she stated that there was no question to be determined by this court in her ruling set out above. She ought to have stuck to her guns and refused to make a reference. This is what the judicial oath requires, to administer justice without fear or favour.

This court has long departed from its earlier decision in Syson Kekurusyo and another versus The Attorney General and another; Constitutional Application No. 13 of 2007 where it had held at page 10 of the judgment of the Court that:

“Clearly, the Court requested by a party to make the reference to the constitutional court has no option but forward the questions framed by the said party.

In the instant case the learned trial Chief Magistrate did not have to consider the merits of the applicant’s application, but to make a reference to this Court for determination and only wait for the outcome”

This holding is no longer good law. The current position was recently summarized by this court in Constitutional Petition No. 46 of 2011 and Constitutional Reference No. 54 of 2011 (consolidated) Hon. Sam Kuteesa versus The Attorney General where in the Judgment of the Court at page 39 it was observed and held as follows:

“Both the Supreme Court of Uganda and this Court have in a way dealt with this issue. In Constitutional Appeal No. 2 of 1998, Ismail Serugo versus Kampala City Council & Attorney General, the rest of their Lordships of the Supreme court expressed no contrary view to the holding of Wambuzi, CJ, as he then was, that:-

In my view for the Constitutional Court to have jurisdiction, the petition must show, on the face of it, that the interpretation of a provision of the Constitution is required. It is not enough to allege merely that a Constitutional provision has been violated.

Following the above holding, this court in Constitutional Reference No. 31 of 2010: Uganda Vs Atugonza Francis, held that:-

“Article 137 (5) should be read in the proper spirit of the Constitution.

.................................................................................................

The applicant must go further to show prima facie the violation alleged and its effect before a question could be referred to the constitutional Court.”

From the above two decisions, it follows, therefore, that under Article 137 (5) (a) and (b) any court before deciding to make a reference to this court, must first be satisfied that prima facie there exists a question for constitutional interpretation. If the Court comes to the conclusion that prima facie, no such question has been established requiring the interpretation of the Constitution then no reference should be made to the Constitutional Court under Article 137 (5) (a) or ((b). It can no longer be said that Article 137(5) (b) takes away the independence of the courts, in this regard.

As we have already stated the learned Chief Magistrate was right to hold that there was no question to be determined by this court, and as such she should have proceeded to hear and determine the suit that was before her.

On the issue of citizenship of the first respondent, this is a question of fact that requires proof. We cannot say that it was established that the first respondent was not a citizen of Uganda. But even if a person holding freehold land was found to be a non citizen of Uganda, that fact per se would not result in that particular person or company losing ownership of that land.  The tenure of ownership would simply change from freehold to leasehold of 99 years under section 40 (5) of the Land Act. Furthermore law recognizes that a Limited Liability Company can be deemed to be a citizen of Uganda for the purpose of owning freehold land.

Freehold title cannot be impeached solely on the ground that the registered proprietor is not a citizen of Uganda, where such a title, freehold as it may be, was issued prior to 1975 Land Reform Decree.

The title in respect of the property in issue, a copy of which is on court record, was issued on 17th December 1945, to one AUBREY EDWIN BETHUNE WALSH.

Under Section 2 of the Land Reform Decree (Decree No. 3 of 1975) freehold and mailo tenure were abolished and by operation of the law they were converted to leasehold for 99 years in case of individuals. This law affected the freehold title in issue. The Land Reform Decree was repealed in 1998, following the coming into force of the Land Act.

Therefore the freehold title in respect of the above property by operation of the law remained leasehold. Freehold and mailo tenure only reverted to persons who were citizens of Uganda, upon the repeal of the Land Reform Decree. The non citizens who held such titles still held them under leasehold tenure, because under the 1995 Constitution they could not hold freehold or mailo land. The Constitution could not have intended to expropriate their property on account of citizenship in view of Article 126 of the Constitution.

Indeed Section 40 (5) of the Land Act provides as follows:

40(5) for avoidance of any doubt, any non citizen who immediately before the coming into force of the Constitution held land as lesee on conversion within the meaning of the Land Reform Decree 1975, shall be deemed to have continued to be a lessee in accordance with the conditions of the lease”

Therefore Mr. Tendo Kabenge’s arguments in this regard are devoid of any merit whatsoever.

In any event this is a matter that ought to have been tried by the Magistrate’s Court as a question of fact. In our view this matter should never have been brought to this court. It is frivolous, vexatious and an abuse of court process.

Mr. Tendo Kabenge clearly was bent on ensuring that the matter before the Chief Magistrate’s Court does not proceed. He went on to raise objection after objection, including a complaint to the Assistant Inspector of Courts. All these were found devoid of any merit. They were all dismissed. He then resorted to making this reference. As indicated, the Articles cited therein were all irrelevant. The purpose of this reference in our view and clearly from the detailed background we have set out, was to frustrate the hearing of the suit before the Chief Magistrate. He has largely succeeded, because the matter has not been heard since 2011. It has now become a trend among some advocates to frustrate court process by filing frivolous petitions and references, in this court, where they obtain various orders including those of stay of proceedings in the lower courts. This is one of such cases. This trend must stop.

We have already held that there is no question for constitutional interpretation in this reference. The reference thus stands dismissed. We direct that the Chief Magistrate’s Court proceeds to hear and determine the suit on its merits.

The costs of this Reference shall be paid by the applicants to the respondents.

Dated at Kampala this....08th ..... day of ......November......... 2013.

 

.....................................................

HON. MR. JUSTICE REMMY KASULE

JUSTICE OF APPEAL.

 

 

.........................................

HON. MR.JUSTICE ELDAD MWANGUSYA

JUSTICE OF APPEAL.

 

 

................................................

HON. LADY JUSTICE SOLOMY BALUNGI BOSSA

JUSTICE OF APPEAL.

 

 

.................................................

HON. MR. JUSTICE KENNETH KAKURU

JUSTICE OF APPEAL.

 

 

.........................................

HON. JUSTICE PROFESSOR L.E. TIBATEMWA

JUSTICE OF APPEAL.