Kabaka of Buganda v Mabirizi Male Kiwanuka (Civil Appeal No. 184 of 2017)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal allowed the appeal and set aside the High Court's order for discovery. It held that an order for discovery on oath under section 22 of the Civil Procedure Act and Order 10 can only be granted where the head action is maintainable or at least arguable, and where the documents sought are relevant to advance the applicant's case or damage the adversary's. The court found the respondent's head action, purportedly an Article 50 public-law enforcement action, was in truth about private property rights and was an unlawful, unnamed representative action without leave. An incompetent action cannot give rise to a discovery order. The preliminary applications to strike out the appeal were dismissed with costs.

Outcome

Appeal allowed; High Court order for discovery set aside and the discovery application dismissed

Facts

The respondent, Mr. Mabirizi, filed High Court Miscellaneous Cause No. 162 of 2016 seeking declarations and injunctions against the Kabaka of Buganda's alleged imposition, through the Buganda Land Board, of compulsory registration at a fee and a 10% charge on sales of land/kibanja on official mailo land, and orders to refund monies collected. He claimed to act under Article 50 of the Constitution on his own behalf and on behalf of Buganda people living on such land, though these persons were unnamed and no leave for a representative action was obtained. Within that cause, he brought Miscellaneous Application No. 41 of 2017 seeking discovery on oath of specified documents, including bank statements of accounts held by the Buganda Land Board. The trial judge partially granted discovery of documents under paragraphs 1(a), (c), (d) and (e). The Kabaka appealed, contending the documents were neither specific nor relevant and that discovery had been ordered before the pending security-for-costs application was determined.

Issues

1. Whether the trial judge erred by deciding the discovery application before disposing of the pending application for security for costs.
2. Whether the documents sought were specific and relevant to the fair determination of the main cause so as to justify an order for discovery on oath.
3. Whether an order for discovery of documents can properly be granted where the head action is not maintainable in law.
4. Whether the preliminary applications to strike out the appeal as incompetent should succeed.

Orders

• Court of Appeal Miscellaneous Application No. 231 of 2017 and Miscellaneous Application No. 271 of 2017 dismissed with costs.
• Grounds 3, 4 and 5 of the appeal allowed.
• Ground 1 fails (per majority; Obura JA holding it partly succeeds).
• Ground 2 not necessary to consider.
• Appeal allowed with costs.
• The application for discovery in the High Court dismissed with costs in that court.

Rules and key headnotes

Legislation cited (23)

• Constitution of Uganda 1995 Article 26
• Constitution of Uganda 1995 Article 28
• Constitution of Uganda 1995 Article 50
• Constitution of Uganda 1995 Article 139
• Constitution of Uganda 1995 Article 246(3)(a)
• Constitution of Uganda 1995 Article 126(2)(e)
• Civil Procedure Act s.22
• Civil Procedure Act s.98
• Civil Procedure Rules SI 71-1 Order 10 rules 10, 12, 14, 15, 17, 21 and 24
• Civil Procedure Rules SI 71-1 Order 26 rule 1
• Civil Procedure Rules SI 71-1 Order 1 rule 8
• Civil Procedure Rules SI 71-1 Order 52
• Judicature (Court of Appeal) Rules SI 13-1 Rule 66
• Judicature (Court of Appeal) Rules SI 13-1 Rule 83(1)
• Judicature (Court of Appeal) Rules SI 13-1 Rule 83(2)
• Judicature (Court of Appeal) Rules SI 13-1 Rule 83(3)
• Judicature Act s.33
• Judicature Act s.39
• Traditional Rulers (Restitution of Assets and Properties) Act Cap.247
• Traditional or Cultural Leaders Act 2011 s.7(1)
• Registration of Titles Act
• Court Fees, Fines and Deposits Rules Rule 6
• Judicature (Fundamental Rights and Freedoms) Enforcement Procedure Rules Rule 3

Cases cited (14)

• Rwanyarare v Attorney General (Constitutional Petition No. 11 of 1997)
• Uganda Freight Forwarders Association v Attorney General (Constitutional Petition No. 22 of 2009)
• Fangmin v Belex Tours & Travels (Civil Appeal No. 6 of 2013)
• Advocates Coalition for Development and Environment v Attorney General (Miscellaneous Cause No. 1000 of 2004)
• White v Spafford & Co. (1901) 2 K.B 241
• Gale v Denman Pictures Houses Ltd (1930) KB 588
• Horizon Coaches Ltd v Mutabazi (Civil Appeal No. 20 of 2001)
• National Housing & Construction Co. Ltd v Kyomukama (Civil Application No. 133 of 2009)
• Yese Ruzambira v. Kimbowa Builders & Construction Ltd (1976) HCB 278
• Lawrence Muwanga v Stephen Keyune (Civil Appeal No. 12 of 2001)
• Amama-Mbabazi v Musinguzi Garuga James (Civil Appeal No. 12 of 2001)
• Amrit Goyal v Harichand Goyal (Civil Application No. 109 of 2004)
• Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55
• Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665

Cases citing this judgment (3)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Mabirizi v Kabaka of Buganda (Civil Appeal 13 of 2018)
• Mabirizi v Kabaka of Buganda (Civil Application 28 of 2019)
• Kabaka of Buganda v Male H. Mabirizi K. Kiwanuka (Misc. Application No. 675 of 2017)

The original judgment as reported. Read the original PDF before relying on any passage.