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Prince Kalemera H. Kimera v Attorney General & The Kabaka of Buganda (Constitutional Petition 9 of 2020)

Constitutional Court · [2024] UGCC 3 · 2024 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of an Act of Parliament under Article 137(3) of the Constitution
Decision
Petition dismissed; petitioner ordered to pay the respondents' costs

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Holding

The Constitutional Court dismissed a petition challenging the Traditional Rulers (Restitution of Assets and Properties) Act as inconsistent with Articles 2, 21, 26, 246 and 274. Although the petition disclosed a cause of action under Article 137(3), the court held it raised no genuine question of constitutional interpretation: the meaning of Article 26(2) had already been settled in Irumba Asumani, rendering the question res judicata. The petitioner's real complaint — fraudulent vesting of his grandfather's property in the Kabaka — turned on proof of ownership under the Registration of Titles and Succession Acts, properly pursued in his pending High Court suits. Filing the petition while those suits were pending was an abuse of process; dismissed with costs.

Facts

The petitioner, Prince Kalemera H. Kimera, is a lineal descendant of His Highness Sir Daudi Chwa II and administrator of his late father's estate. He contended that the Traditional Rulers (Restitution of Assets and Properties) Act, which vested 14 listed properties in the Kabaka of Buganda, wrongly transferred property his grandfather had owned in a personal capacity — notably the Kabaka's Lake and land at Busiro Block 183 Plot 1, Bumera — to the 2nd respondent. He alleged the vesting deprived him and other beneficiaries of property contrary to Articles 26 and 274, discriminated against him by birth and social standing under Article 21, and legitimised fraud by exempting tax and permitting cancellation of titles under section 2(8). The petitioner had already filed HCCS No. 535 of 2017 in the Land Division and Miscellaneous Cause No. 76 of 2018 in the Family Division over the same property, both still pending. He sought declarations voiding sections 2 and 3 of the Act, referral to the High Court to investigate proprietorship, or compensation of approximately USD 60 billion.

Issues

  1. Whether the petition discloses a cause of action against the 1st respondent.
  2. Whether the petition raises any question as to the interpretation of the Constitution such that the Constitutional Court has jurisdiction to entertain it.
  3. Whether the questions raised are res judicata under section 7 of the Civil Procedure Act, the meaning of Article 26(2) having already been determined.
  4. Whether filing the petition while related suits over the same property were pending in the High Court amounted to an abuse of court process.

Orders

  • The petition stands dismissed and the petitioner is not entitled to any of the declarations and orders claimed.
  • The petitioner shall pay the costs of the petition to the respondents.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Limited to interpretation under Article 137
The jurisdiction of the Constitutional Court under Article 137 is confined to the interpretation of the Constitution; unless the determination of a question depends on the interpretation or construction of a provision of the Constitution, the court has no jurisdiction to entertain it.
Civil Procedure — Cause of action under Article 137(3) — Constituted by a happening, not a mere allegation
A cause of action under Article 137(3) is constituted by the fact of a happening — such as the enactment of a law alleged to be inconsistent with the Constitution or an act contravening it — and not by a mere allegation; a petition stating such a happening discloses a cause of action.
Constitutional Law — Enforcement of rights distinguished from interpretation — Article 137(5)
Where a claim seeks redress for the infringement of a constitutional right but does not call for interpretation of the Constitution, it must be pursued before another competent court; a constitutional question arising in such proceedings is properly brought to the Constitutional Court by reference under Article 137(5), not by a fresh petition.
Civil Procedure — Res judicata — Section 7 Civil Procedure Act applied to constitutional petitions
Under section 7 of the Civil Procedure Act, as applied to Article 137, a constitutional petition is res judicata where the same question as to interpretation of the Constitution has already been raised and determined; the test turns on whether the same question, not merely the same article, has been decided.
Statutory Interpretation — Existing law under Article 274 — Saving effect of Article 246
Although Article 274 requires existing law to be construed with such modifications as bring it into conformity with the Constitution, Article 246 preserved the operation of the Traditional Rulers (Restitution of Assets and Properties) Act, so its provisions cannot be held to be inconsistent with Article 246(3).
Civil Procedure — Abuse of court process — Forum shopping over matters pending in another court
Bringing a constitutional petition over a matter that is already the subject of pending suits in the High Court, instead of seeking a reference under Article 137(5), amounts to forum shopping and an abuse of the court's process warranting dismissal with costs.

Legislation cited (23)

  • Constitution of Uganda art.137
  • Constitution of Uganda art.137(3)
  • Constitution of Uganda art.137(5)
  • Constitution of Uganda art.50
  • Constitution of Uganda art.2(2)
  • Constitution of Uganda art.21
  • Constitution of Uganda art.26
  • Constitution of Uganda art.26(2)
  • Constitution of Uganda art.246(3)
  • Constitution of Uganda art.274
  • Traditional Rulers (Restitution of Assets and Properties) Act s.2
  • Traditional Rulers (Restitution of Assets and Properties) Act s.3
  • Traditional Rulers (Restitution of Assets and Properties) Act s.2(8)
  • Civil Procedure Rules Order 6 rule 28
  • Civil Procedure Rules Order 6 rule 3
  • Civil Procedure Act s.7
  • Constitution (Petitions and References) Rules, 2005 rule 3
  • Constitutional Court (Petitions and References) Rules rule 23
  • Constitutional Court (Petitions and References) Rules rule 2(2)(b)
  • Land Acquisition Act s.7(1)
  • Registration of Titles Act
  • Succession Act
  • Constitution (Amendment) Statute 1993 art.118A

Cases cited (11)

  • Attorney General v David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Uganda Network of Toxic Free Malaria Control Ltd v Attorney General (Constitutional Petition No. 14 of 2009)
  • James Rwanyarare & Another v Attorney General (Constitutional Petition No. 11 of 1997)
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Jude Mbabali v Ssekandi (Constitutional Petition No. 28 of 2012)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Uganda National Roads Authority v Asuman Irumba & Peter Magelah (Constitutional Appeal No. 2 of 2014)
  • Irumba Asumani & Peter Magelah v Attorney General & Uganda National Roads Authority (Constitutional Petition No. 40 of 2013)
  • Fox Odoi Oywelowo v Attorney General (Constitutional Petition No. 54 of 2013)
  • Uganda v Onegi Obel (Constitutional Reference No. 24 of 2011)
  • Hon Joseph Murangira v Attorney General (supra)
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