Kampala stooge lawyer Male Mabiriizi’s case against the Kabaka has been dismissed with costs. The Kabaka, represented, by his effective Attorney General, Owek Christopher Bwanika won the case at the ruling delivered by Justice Percy Night Tuhaise of the Court of Appeal.
Owek Bwanika is to now indicate how much it has cost and submit to court. With Mabiriizi’s financial muscle so weak, most likely he (Mabiriizi) will end up in prison as he must now meet these hefty costs.
Mabiriizi has been filing one case after another in a bid to embarrass the Kabaka and cause disrepute among Kabaka’s subjects. In the end, Male Mabiriizi wanted to boost his image as a superb lawyer. His funders and himself will now understand the cost of such litigation.
She concluded the judgement by saying that “consequently, for the reasons given, it will not be necessary to deliberate on the merits of the reference, much as the parties had made submissions on the same, since it is now in the limbo of legal mootness.” This is an embarrassment for Mabiriizi and his funders and a cause of jubilation for the Kabaka and his legal team.
Under Miscellaneous Cause No 16 of 2016 filed by mabirizi, he alleged that the
KABAKA had infringed on his and other unnamed Buganda people's right to the official mailo land.
Before the main cause could be heard, mabirizi applied for an order for discovery. The trial judge of the high court consequently granted mabirizi an order for the KABAKA to submit all his land titles, all BLB bank accounts and all documents relating to registration of clients on Kabaka's land, and all receipts of kanzu and monies paid in respect of that land for mabirizi to use in his case in court. KABAKA objected to this rulling and applied in court for a stay of execution (That order to be implemented pending an appeal against it) as he pursued an appeal against the order for discovery.
Court granted the stay of execution in favour of the KABAKA but again granted costs to mabirizi.
Dissatisfied, the KABAKA commenced an appeal against the award of costs against him since he had won in getting the stay, but he subsequently withdrew the notice of appeal and decided to pursue a review in the trial court instead.
In the meantime the Court of Appeal heard the appeal on the substantive orders which had been given by the trial High court Judge and came to the conclusion that the suit was not sustainable in law and mabirizi
had no locus(no basis for his case); and subsequent to the said decision, the lower court- (High Court) consequently dismissed the main cause.
After the defeats, the KABAKA submitted his bills of costs (that must be met by mabirizi) to be taxed. mabirizi, conveniently objected and instead decided to seek his costs for that earlier preliminary victory(award for discovery) arguing that he was entitled to costs by virtue of the KABAKA's withdrawal of the notice of appeal in the High
Court. He further argued that that it was in the premises not necessary to proceed with Civil
Application No. 257 of 2017(Taxation matter of KABAKA's bill).
The bill of costs eventually came up for taxation before the Deputy Registrar of the
Court sitting as the taxing officer, the KABAKA raised a preliminary objection that the bill of costs was illegal in that it offended specific rules in the
Court of Appeal Rules; that the bill arises from the withdrawal of a notice ofappeal by the KABAKA who had subsequently chosen to seek a review before the
The PO was argued on the merits by both parties before the Deputy Registrar of the Court of appeal, who sustained it by ruling that the costs the applicant would be
entitled to are the costs of the appeal, not costs of Civil Application No.
257 of 2017 which was yet to be heard. mabirizi was dissatisfied with the ruling and he sought a reference on it.
The matter was fixed before a Single Justice of Appeal, Hon. Mr. Justice
Kenneth Kakuru JA, who on 5th November 2018, referred it to a full panel of three judges.
The matter came up for hearing before that panel on 11th February 2019.
Before hearing of the matter could commence on the merits, mabirizi
applied for an adjournment.KABAKA 's counsel also sought leave of Court to raise a preliminary matter of law.
The Court of Appeal declined to grant the application for adjournment and proceeded to hear both the respondent's preliminary point of law and the reference brought up in court by mabirizi.
WHY Mabirizi lost ROUND 1
In his application for adjournment, Mr. Mabirizi the applicant informed Court that ordinarily he would be ready to proceed, going by the cause list which had
been in his possession for a full month. He however pointed out to Court that the Coram on the original cause list comprised of the Deputy Chief Justice (DCJ) Hon. Mr. Justice Alfonse Chigamoy Owiny-Dollo, Hon. Mr. Justice Fredrick Egonda Ntende, and Hon. Lady Justice Percy Night Tuhaise; that however the panel was changed the very morning before the hearing,substituting the DCJ with Hon. Mr.Justice Cheborion Barishaki. mabirizi informed Court that proceeding before the new panel when it had just changed would derogate his right to a fair hearing. He cited the case of Muhammed V Roko Construction Civil Appeal No.1 of 2013 (Supreme Court), where the Supreme Court held that parties have to know who is due to hear and determine their case. He argued that this enables litigants to raise objections against a judicial officer or judicial officers due to hear a case where a litigant has a basis for such objection; that obviously, no objection can possibly be raised where, as in the instant appeal, a judicial officer is brought in without knowledge of the parties.mabirizi submitted that he should get time to understand the individual judges on a panel to see whether he had objections against them; that he had taken time to understand the DCJ, Hon Mr. Justice Egonda Ntende, and Lady Justice Percy Night Tuhaise, but had not got time to measure Hon. Mr. Justice Cheborion Barishaki the new substitute. He maintained that he needed time to contemplate whether to raise an objection against Hon. Mr. Justice Cheborion Barishaki being on the panel or not. Mr. Bwanika for the Kabaka opposed the application to adjourn on the grounds raised by Mr.Mabirizi.
Mr. Mabirizi submitted in rejoinder that the right to fair hearing under Article
28(1) and 44(C) of the Constitution is non derogable; that no matter the reasons, and that the Supreme Court had set a standard in the case he cited that, actually, a litigant should get time to study a Judge. He submitted that the question to contend with is whether the new Judge will give him a fair and impartial hearing. He submitted that he needed
time to see whether he could raise an objection against the third Justice who was not on the original cause list, because the recusal procedure as stated in the case of Shell V Muwema starts from the chambers; and that he cannot start it from the Court. He maintained that had he known that a third Judge is joining the
panel he would have contemplated the same. He reiterated his prayer for an adjournment so that he can take time to study the third Judge.
RULLING of ROUND 1
The applicant's argument was that the right to fair hearing under Article 28(1) and
44(C) Article 28(1) of the Constitution involves parties' right to know who is due to hear and determine their case. The argument appeared to suggest that the right to a fair hearing dictates that parties should know who is due to hear and
decide their case, and that this has to do with propriety and court's impartiality. Article 28(1) of the Constitution provides that in the determination of civil
rights and obligations, or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or
tribunal established by law. The right to a fair hearing is one of the non-derogable rights under Article 44( c) of the same Constitution.The applicant cited Muhammed V Roko Construction, to
support his contentions.
In their rulling, the justices ruled that the circumstances under which the Supreme Court came to declare that parties have to know who is due to hear and decide
their case in the said case are distinguishable from those in the instant case. In the Muhammed V Roko Construction case, the Supreme Court found it irregular that one of the Justices of Appeal, who had not participated in the hearing of the appeal, decided and signed a ruling together with the other two
Justices of Appeal who had participated in the hearing, yet it was common knowledge that the third Justice of Appeal who had been substituted in as far as
signing and delivering the ruling was concerned, was still the Deputy Chief Justice and a member of the Court of Appeal. It was on that basis that the Supreme Court observed that this raises suspicion and questions about propriety of and the Court's impartiality in making the ruling. The Supreme Court
accordingly declared that parties have to know who is due to hear and decide
their case. The Supreme Court ordered the matter to be re-heard in accordance with established procedures under a suitable different Coram.
In the instant case the substituting of a Justice of Appeal was done for purposes of commencing the hearing of the instant matter in absence of the Deputy Chief Justice (DCJ). It had nothing to do with a non-member of a panel signing and
delivering a ruling of a panel he did not participate on. In my considered opinion, in light of the given circumstances, since Justice Cheborion Barishaki who replaced the DCJ was not brought on board at the stage of writing and signing the judgment in a case he had not participated in hearing, the applicant
has no basis to claim he needed time to study a Judge who it is common
knowledge is a Justice of Appeal who had moreover previously handled the applicant's cases. In the result, this Court agreed with the respondent that the applicant's prayer to
this court to adjourn the matter merely because he had seen a new Judge on the panel is not a tenable reason to warrant an adjournment. The Court accordingly declined to grant the adjournment.
Mabirizi loses ROUND 2
The dismissal of the main cause Miscellaneous Cause No. 162 of 2016 by the High Court, which followed the judgment of Court of Appeal as a superior court in Civil Appeal No. 184 of 2017, removed or collapsed the foundation on which any claims by the applicant could be based. As such, all the interlocutory
applications arising from the dismissed main suit ceased to have life.
An interlocutory application is defined in Black's Law Dictionary, ninth edition as a motion for equitable or legal relief sought before a final decision. In the
instant case, the High Court had made a final decision on the dispute.
Secondly, the fact that the applicant filed the main cause when he had no locus standi to do so is an illegality by its very nature. It is now trite law that an illegality, once brought to the attention of court, overrides all pleadings including admissions.
It is a well-known principle of law that if the suit is dismissed for illegality the winning party is entitled to costs ultimately, but the person who brought the suit illegally cannot take any benefit out of it, otherwise that would render the legal
process a laughing stock.
This stems from the doctrine of illegality which is based on two principles, first, that a person should not benefit from his or her own wrong, and, second, that the law should not condone an illegality.
In such circumstances, the interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court by the mere circumstances that it has initiated a proceeding in the court must be
neutralised. It is baffling that the applicant continued to pursue the instant reference and the applications related to it instead of withdrawing the same even after knowing that the head or main suit under which it was filed was dismissed
on grounds of him not having the locus standi to file the suit.
Verdict: Case dismissed with costs.