Wakilii

Lubega v Attorney General & Ors (Constitutional Petition No. 37 of 2011)

Constitutional Court · [2015] UGCC 13 · 2015 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3); preliminary objection to jurisdiction heard first
Decision
Petition dismissed for want of jurisdiction on the preliminary objection

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court considered a preliminary objection that the petition raised no question for constitutional interpretation. The court held that merely citing constitutional provisions and seeking to enforce property rights amounts to application and enforcement of the Constitution, not interpretation, which falls outside its Article 137 jurisdiction. The impugned presidential letter urging cancellation of fraudulently acquired titles was found to be an exhortation, not a directive or order, and did not warrant constitutional interpretation. Following Tinyefuza and Ismail Serugo, the court reaffirmed the distinction between interpreting the Constitution and applying or enforcing it. The jurisdictional objection was upheld and the petition dismissed with costs to the third respondent.

Facts

The petitioner was the registered proprietor of leasehold land at Plots 50-52 Nakivubo Road, Kampala, popularly known as Qualicel Bus Terminal (formerly the Baganda Bus Park). The petitioner and the third respondent had been involved in numerous suits over the property across various courts. The third respondent complained to the President, who directed the Minister of Lands, Housing and Urban Development to investigate the dispute. A committee of inquiry issued its report in January 2011. By a letter dated 20th July 2011, the President wrote to the Minister urging that all titles fraudulently acquired in respect of the land be immediately cancelled. The petitioner alleged this letter directed cancellation of his title and contravened Articles 8A, 21, 26, 28, 42, 126 and 128 of the Constitution, and petitioned the Constitutional Court for declarations of unconstitutionality.

Issues

  1. Whether the petition raised a question for constitutional interpretation so as to invoke the jurisdiction of the Constitutional Court under Article 137 of the Constitution.
  2. Whether a presidential letter urging cancellation of fraudulently acquired land titles amounted to a directive or order capable of constitutional interpretation.
  3. Whether the petitioner's affidavit in support, not founded on matters within his own knowledge, could support the petition.

Orders

  • Cross petition withdrawn with no order as to costs as it had not been served.
  • Preliminary objection as to jurisdiction upheld.
  • Petition dismissed with costs to the third respondent.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Question for interpretation as a precondition
The Constitutional Court has jurisdiction under Article 137 only where the petition and its supporting affidavit raise a genuine question requiring interpretation of the Constitution; absent such a question the court has no jurisdiction and the petition must be dismissed.
Constitutional Law — Interpretation versus enforcement — Article 137 and Article 50 distinguished
There is a material difference between interpreting the Constitution and applying or enforcing its provisions; a petitioner seeking merely to enforce constitutional rights, for which other avenues such as an ordinary suit or judicial review exist, does not thereby invoke the interpretive jurisdiction of the Constitutional Court.
Constitutional Law — Sufficiency of petition — Citing constitutional provisions insufficient
It is not enough for a petitioner to cite provisions of the Constitution and plead that this opens the door for interpretation; the act or omission complained of must itself raise a question genuinely calling for constitutional interpretation.
Constitutional Law — Executive communications — Presidential letter urging action not a directive
A presidential letter urging or imploring a Minister to ensure that fraudulently acquired land titles are cancelled is an exhortation rather than a directive, order or instruction, and does not provide a basis for constitutional interpretation under Article 137.

Legislation cited (12)

  • Constitution of Uganda Article 137(1)
  • Constitution of Uganda Article 137(2)
  • Constitution of Uganda Article 137(3)
  • Constitution of Uganda Article 50
  • Constitution of Uganda Article 8A
  • Constitution of Uganda Article 21
  • Constitution of Uganda Article 26
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 42
  • Constitution of Uganda Article 126
  • Constitution of Uganda Article 128
  • Constitutional Court (Petitions and Reference) Rules 2005 SI 91 of 2005

Cases cited (11)

  • Charles Mubiru V The Attorney General, Constitutional Petition No 601 of
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Petition No. 14 of 1997)
  • Paul Kwanga Ssemwogerere and Another v Attorney General (Constitutional Petition No. 3 of 1999)
  • Horizon Coaches Ltd v Mbarara Municipal Council (Constitutional Petition No. 7 of 2014)
  • National Council for Higher Education v Kawooya Anifa Bangirana (Constitutional Appeal No. 4 of 2011)
  • Tukamuhebwa George & 2720 others V Attorney General, Constitutional Petition No 59 of
  • Hon. Lt (Rtd) Kamba Saleh v Attorney General (Constitutional Petition No. 38 of 2012)
  • Uganda Network on Toxic Free Malaria Control Ltd v Attorney General (Constitutional Petition No. 14 of 2009)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Kyaggwe Coffee Curing Estates v Emmanuel Lukwajju (Civil Appeal No. 327 of 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.