The High court has thrown out objections by petitioner Hassan Male Mabirizi Kiwanuka to Shs 500m security of costs application, writes BAKER BATTE LULE.
Alex Ajiji, the deputy High court registrar, yesterday rejected all the three grounds on which Mabirizi had based to object to an application filed by lawyers of the Kabaka of Buganda.
Mabirizi sued the Kabaka in August challenging his ownership of land in Buganda. Mabirizi claims that the Kabaka is illegally collecting fees (through Buganda Land Board) from tenants occupying what is commonly known as ettaka lya Kabaka (Kabaka’s land). He wants court to issue a permanent injunction stopping these transactions.
But before the main suit could be heard, Twaha Mukasa, Kabaka’s legal officer, filed an application in which he wanted Mabirizi to deposit Shs 500m as security of costs.
On October 19, Mabirizi raised preliminary objections stating that Mukasa, who had previously represented the Kabaka, cannot be a witness in the same case. He also argued that although Mukasa works for the Kabaka, he had not been given powers of attorney to represent him in that particular case.
He argued that as a corporation sole, the Kabaka can only represent himself or be presented by others, provided he authorizes them in writing. Mabirizi further argued that even the advocates for the Kabaka led by Isaac Mpanga had not been instructed to file the application.
He further added that David Mpanga, Buganda’s attorney general, who instructed the lawyers to file for the security of costs, was a stranger to the case as the constitution doesn’t recognize his role as a Buganda attorney general.
However, while delivering his ruling, Ajiji said that Mukasa had never appeared anywhere in court as Kabaka’s lawyer and, therefore, there was no problem in him swearing an affidavit supporting the application.
He added that there was also no evidence to show that Kabaka’s lawyers and Mukasa were not acting on his [Kabaka’s] behalf. That in the event that there are costs to be met, the Kabaka would be willing to foot them. Mabirizi had based on this to show that the Kabaka might not be willing to pay costs in case he loses as those prosecuting it and the witnesses were not acting on his behalf.
In the end, Ajiji ordered that the main application be heard. However, Mabirizi objected and said he is going to appeal the ruling.
“This determination should be referred to the judge who is a court of record; so, that the interest of justice can be greater served…” Mabirizi told court.
He also asked the registrar to refer the Shs 500m security of costs application to the High court judge, reasoning that with its magnitude, it cannot be left to the registrar to determine. However, Isaac Mpanga objected, saying a High court judge Henrietta Wolayo had ordered that the application be heard by the registrar.
“If Mr Mabirizi is not satisfied with this ruling, it is his right to make that reference. However, when this application was put before the justice, she referred it to the registrar of this court. This court has no powers to reverse this order…” he told court.
He added that they were ready to proceed with the main application. Ajiji agreed with Mpanga, insisting that he would hear the application although Mabirizi insisted that the case should be referred to a judge.
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