How Dr Kasasa defeated Kabaka's siblings in land case

Sam Mayanja

For 17 years Dr. Muhammad Buwule Kasasa battled against court cases filed variously by Kabaka Ronald Muwenda Mutebi and his siblings under Civil Suit No. 227 of 2005 and Misc.

Application No. 1619 of 2018 all aimed at frustrating Dr. Kasasa’s compensation claim for land he owned on Mutungo Hill in Kyadondo Block 237 Plot 37 and 81.

Dr. Kasasa was and still is one of the most distinguished Ugandan that has ever hailed from Buganda Kingdom. He holds the unbeaten record of having learnt and spoke fluent Swahili and Kikuyu by the age of seven and for finishing primary level within only two years.

At King’s college Budo, although a muslim he was a member of the Nightingales’ Choir emerging as one of the best singer of Christian Hymns.

His classmates included Uganda’s first Minister of Justice after Independence, the late Grace Ibingira and his contemporaries at Makerere University Medical School included the first Minister of Health of Independent Uganda the late Dr. Emmanuel Lumu.

It was Dr. Kasasa who led a delegation to Kabaka Edward Muteesa demanding that the Muslims be given a say in the running of the affairs of Buganda Kingdom, as a result of which encounter, a muslim was appointed as Chairman of the Buganda Public Service Commission in the person of the late Prince Badru Kakungulu.

It was also to Dr. Kasasa that the late Sir Edward Muteesa after forming his Kabaka Yekka Party sent a delegation headed by Daudi Ocheng to persuade him to join the newly formed party believing that Dr. Kasasa’s joining would bring all muslims to the Kabaka Yekka Party.

Dr. Kasasa declined the invitation. When Traditional/cultural leaders were allowed to operate in areas of Uganda where they are needed by the locals, it was again to Dr. Kasasa that Buganda traditional leadership turned to revamp the ailing Teffe Bank.

This was now the Dr. Kasasa battling with Kabaka Mutebi and his siblings for the ownership of the land on Mutungo Hill and consequently the proceeds of compensation.

What gave Dr. Kasasa the upper hand over the Royals was the ownership of the title.

The title of that land goes back to the names of the late Edward Frederick David Luwangula Mutebi Muteesa II, who sold the land to a one Paul Andrew Benjamin Kwemalamala Kintu of Masaka who in turn sold it to Messers Lake View Properties Ltd who mortgaged it to Barclays Bank and upon failure to pay the loan, the bank sold it to Dr. Kasasa.

It should be noted that among the prominent shareholders of Lake View Properties Ltd were the late Ben Kiwanuka the first Prime Minister of Uganda, the late Joseph Mubiru the first governor of the Bank of Uganda and the late Paul Sebalu a former Minister in the Government Uganda.

The title deed over the property which came into the hands of Dr. Kasasa as owner after buying the same from the Bank is guaranteed by the Constitution, under article 237 (1) and 237 (3) (c) of the Constitution.

That Constitutional right is given effect under the enabling law known as the registration of Title’s Cap. 230 which entitles a proprietor of land to a Certificate of Title, and in particular section 59 of the registration of Title Act which holds a Certificate as conclusive evidence of ownership of land.

This is known as the principle of indefeasibility of Title. Which means that once a person is registered as a proprietor of an interest in land he/she acquires a Title that cannot be vitiated except as prescribed by legislation.

Thus once a Title Deed has been issued one need not make further enquiries beyond the certificate of Title to prove ownership of land, as the state under this law has guaranteed ownership.

A land title as issued therefore, is good against the whole world as the state by issuing that title deed is giving written assurance and certainty that it shall honour the land rights of the registered proprietor.

That right and that assurance is under section 64 (1) of the Registration of Titles Act Cap. 230 and is only vitiated in case of fraud and that fraud must be strictly pleaded and proved, the burden of proving that fraud being on the one alleging the fraud and is heavier than on the balance of probabilities.

Moreover the fraud that vitiates a Land Title of a registered proprietor must be attributable to the transferee. The fraud of a transferor not known to the transferee cannot vitiate a land title.

In the case of Dr. Kasasa his Title was not tainted with any fraud at any stage of the conveyance on the Title.

Of course Kabaka Mutebi and his siblings were within their right to challenge the proprietary rights of Dr. Kasasa, but given their statues as the holders of the Cultural Leadership of part of the Uganda population, the Royals ought to have been more careful before going to Court against a commoner (mukopi) on matters which obviously lowered their esteem before the subjects/commoners (bakopi) they are supposed to lead.

A simple perusal of the Title Deed would have been enough to save them the embarrassment and certainly save Dr. Kasasa the anguish of seventeen years of his life in agony.

And of course Courts would have been saved the spectacle of such a blatant abuse of Court process.

The Royals should also be advised to desist from other embarrassing Court cases where simple consultation would save the dignity of the institution they represent.

On various occasions the Buganda Land Board whose sole shareholder is His Highness Kabaka Mutebi has laid claim on land where caution would have saved the dignity of the traditional institution he leads.

The Makerere University, Livingstone Hall and the Law School Land area, is a case in point.

There is also the embarrassing claim currently in Court where the Buganda Land Board claimed the reposition of Dr. Kasasa’s land at Buziga byway of reversion right, and awarded that land to one of the princes. The Prince was required to pay only one thousand shillings as premium.

This abuse is beyond belief surely a little caution would save the dignity, honour and majesty of the institutional.

These and other issues concerning land will continue to embarrass the Royals. Again and again the nail has been hammered hot with information on the difference between private mailo and official mailo.

The royals can have their private mailo either inherited from their great grandfather Kabaka Daudi Chwa who was allotted 101 square miles of private malio during his life time or otherwise obtained through other lawful means, but not tamper with official malio which is public land belonging to the people of Uganda.

Ugandans have since the 1967 Republican Constitutional exercised their rights and obtained leaseholds over this land through the lawful established statutory authorities.

Under the current law Ugandans holding leasehold are protected.

Leasehold land cannot automatically be re-entered under any circumstances whether the lease is under a short term or long term and extension of a lease is an automatic right of the citizens of Uganda.

Moreover under article 237 (5) of the Constitution of Uganda any citizen of Uganda who obtained a lease out of public land is entitled to convert it into freehold.

Despite this glaring position of law, the Buganda Land Board instead of advising its bakopi (commoners) to exercise their Constitutional right, the BLB continues to purport to renew leases on public land (official malio), and to renew leases at costs beyond the abilities of the bakopi and in some cases have exercised re-entry, ignoring the trite law that no one can give a great right then he has.

The case of re-entry in the case of Dr. Kasasa’s Buziga land and the recent sorry spectacle of the claim on Makerere University land.

It should be noted that where public property is involved there is a corresponding constitutional duty to account.

For as long as the BLB holds onto public land, the voices for accountability shall rise louder and louder.

It was a sad day when the Buganda Land Board was registered with a name which confuses the public with the statute name which was known as Buganda Land Board under the 1962 Independence Constitution and whose responsibility to administer official mailo/Public land was transferred under the 1967 Constitution to another Statutory Body namely the Public Land Commission.

At the time of registering the Private Company known as the Buganda Land Board Ltd with Kabaka Mutebi as the sole shareholder, the public was told that this body was to manage Kabaka’s Private Land.

But the reality has now shown that Kabaka had no personal land.

The personal private mailo given to the late Daudi Chwa ended with him.

Kabaka Daudi Chwa protesting the British action of refusing his chosen heir Prince George Mawanda from succeeding him to the throne due to the fact that he was not the son of the wedded wife, retaliated by bequeathing virtually all his private mailo to Prince George Mawanda and nothing to Edward Muteesa.

In his own words, “let Muteesa take the throne as the bazungu wishes. Prince George will take the land”.

Those who registered the BLB are faced with this reality that a BLB as private limited company cannot manage public land under the current Constitutional dispensation.

This Constitutional abnormality has again and again through various forums been brought to the attention of BLB.

The BLB has insisted on ignoring the Constitutional supremacy and is puzzled in the tangle of the untruthfulness which surrounded its registration.

 

The author is a senior partner, Kampala Associated Advocates

Smayanja@kaa.co.ug www.kaa.co.ug