HUGE WIN FOR THE KABAKA AS M7 LAWYER KIWANUKA KIRYOWA UNDRESSES CHWA LAND CLAIMANTS IN COURT
By Mulengera Reporters
In his Monday 28th September 2020 ruling, Justice Flavian Zeija extinguished many current and future land-related claims Ssekabaka Daudi Chwa’s estate beneficiaries intended to ever bring to court against the institution of Kabakaship. Such cases have frequently been escalating each time land acquisition-seeking UNRA enters negotiations with Buganda Land Board (BLB) which manages the King’s vast estate comprising of prime land stretching into over 1000 square miles. Much of this is in rapidly urbanizing Buganda counties of Kyaddondo, Kyaggwe, Busiro and others.
In the instant case, the Chwa grandchildren’s claim related to a 16 square miles piece of land particularized as Kyaddondo Block 273 situate at Masajja from where it stretches to cover places like Buziga, Konge, Makindye Hill, Victoria Serena and the adjacent Mirembe Villas. The Chwa descendants, mostly living in the Diaspora, suddenly became interested (in 2016) on hearing that UNRA was on the verge of paying PAPs (Project Affected Persons) for the land they would lose as the Kampala-Jinja Express Highway passed through their land dwellings. They stepped forward and filed a case in the High Court (in 2017) through Prince Kalemera H Kimera and Princess Nalinya Nandaula. Prince David Namugala Mwanda was originally in the picture but dropped out leaving the two to battle the office of the Kabaka of Buganda, BLB, Commissioner Land Registration and the Attorney General.
The Kalemeras (plaintiffs) were represented by Byamukama Kaboneke & Co Advocates, Nakasagga & Co Advocates and FX Ogwado & Co Advocates who severally faced off with KK Advocates where President Museveni’s lawyer Kiwanuka Kiryowa is a key advocate and partner; the KK firm is the one the Kabaka hired to defend his interests in this very high stakes case. In fact, the eventual success the Kabaka registered in this case is largely credited to KK’s excellent lawyering skills and preparation. The plaintiffs’ claim was that the suit land belonged to the Daudi Chwa II estate implying it was wrongful for UNRA to pay the PAPs compensation money to the Kabaka through BLB. That it should be paid to the Chwa estate because (according to them) the implementers of the 1993 Traditional Rulers (Return of Assets & Properties) Statute had erroneously included Kyaddondo Block 273 as part of the land that could be appropriately returned to the institution of Kabakaship. It was their assertion that this land belonged to Chwa as a person and shouldn’t be made part of what is due to Kabakaship as an institution.
But Kabaka’s lawyers of KK Advocates objected to the entire suit (successfully raising a preliminary objection) on grounds that the plaintiffs lacked locus standi (legal capability) to sustain the same in court. The other objection was that they legally had no claim (cause of action) against the defendants and that the matter was time barred under the Limitation of actions Act. Under this Act, claims aimed at recovery of land must be brought before court for enforcement within the first 12 years of aggrievement.
On being satisfied by the Kabaka’s evidence, Court held that the land (previously under Uganda Land Commission) was vested in the institution of Kabakaship in 1924 which was 15 years before Daudi Chwa met his death in 1939. There is no evidence anywhere of Chwa (who naturally would have had a superior claim of right than any of his descendants) ever raising any claim against that arrangement. Justice Zeija holds that any claim by Chwa’s descendants had to be brought before Court before 1951 because that is when 12 years elapsed and the limitation period started being applicable. That was way before even the Obote I government abolished kingdoms and (inappropriately) expropriated Buganda kingdom properties. Court also wondered why the Kalemeras are coming up now more than 90 years since the alleged deprivation was first committed in 1924.
Justice Zeija concludes that the motive can only dishonest desires to abusively use the law to inappropriately claim fraud on part of the Kabaka so as to acquire some ownership and proceed to claim compensation from UNRA. Zeija rightly observes that, because land is inelastic amidst a growing population, claims like those being made against Kabaka and BLB by the likes of Prince Kalemera can only increase in intensity. He observes that Court has an obligation to act very vigilantly to ensure such inappropriate claims, aimed at depriving rightful institutional land owners, don’t ever succeed.
The judge also finds that Kalemera and Nalinya Nandaula (his co-plaintiff) had no locus standi for reasons that are well disclosed in the 17 page judgment. That Nalinya ought to have tendered letters of administration (as part of her evidence) to show she is indeed one of the administrators of the late Daudi Chwa’s estate which she didn’t despite relentless efforts by Court prompting her to do so. That this is a requirement under the Succession Act. As for Kalemera, Court found that his claim to be very remotely connected to the suit land was totally unfounded because his own evidence (a historical document from Makerere University) actually worked againsthim; fatally diminishing his claim to be the right person to bring such a matter to Court on behalf of the Daudi Chwa estate.
Justice Zeija establishes that Prince Kagolo Kimera, who Kalemera says was his father, was a grandson of late Daudi Chwa and not biological child. This makes Kalemera a great grandson to Chwa technically categorizable by law as “3rd degree beneficiary” under the Daudi Chwa estate. Under the Succession Act, Zeija asserts, such great grandchildren are excluded and not counted as lineal descendants. On establishing that the two plaintiffs couldn’t legally have locus standi to sue on behalf of Chwa’s estate, Court was left with no option but to declare the entire suit disposed of in favor of the Kabaka and Buganda Land Board.
The plaintiffs were also faulted for wasting Court’s time demanding cancellation of Kabaka/BLB’s land titles relating to land about which they couldn’t produce any evidence showing it belongs to the Daudi Chwa estate. The judge also rejected the plaintiffs’ claim that absence of instruments of transfer of the land into Kabaka’s names was indicative Mutebi and BLB committed fraud to knowingly deprive the Chwa estate. Court held there was no need for such transfer instruments because the land became Kabaka’s by law (the 1993 Statute). That the king can’t be rightly accused of fraud for merely proceeding to register (and acquire titles) in his names what has been given or made available to him by operation of the law.
The latest judgment is a very big win for the Kabaka and BLB because the suit related to very prime land some of which was many years ago leased to serious developers who have since put it under very significant use. Kyaddondo Block 273 relates to an entire 16 square miles stretch covering places like Makindye Hill, Konge, Buziga and the Munyonyo Salaama neighborhood; all in Kampala’s Makindye Division. The high stakes case also related to Kigo land comprising of huge investments like Mirembe Villas and Victoria Serena owned by the Aga Khan and other big-name lessees and developers. Justice Zeija’s latest judgment will, without a doubt, impact on many other similar land-related litigation Kalemera and other Chwa estate beneficiaries have frequently been sponsoring against the Kabaka (who ordinarily is their fellow Muzzukulu and naturally beneficiary under the Chwa estate). (For comments on this story, call, text or whatsapp us on 0705579994, 0779411734, 0200900416 or email us at firstname.lastname@example.org).