Mwesigwa Kasaga v Mboijana and others (HCT-01-CV-MA 64 of 2024) [2024] UGHC 1131 (11 December 2024)

| | THE REPUBLIC OF UGANDA | |----|---------------------------------------------------------------------------| | | IN THE HIGH COURT OF UGANDA AT FORT PORTAL | | 3 | HCT -<br>01 –<br>CV –<br>MA –<br>NO. 64 OF 2024 | | | (ARISING FROM HCT –<br>01 –<br>CV –<br>LD –<br>CS –<br>NO. 006 –<br>2020) | | | IN THE MATTER OF AN APPLICATION FOR LEAVE TO BE | | 6 | ADMITTED AS AMICUS CURIAE BY PATRICK MWESIGWA | | | KASAGAMA | | | PATRICK MWESIGWA KASAGA =================== APPLICANT | | 9 | VERSUS | | | JAMES MBOIJANA ===============================PLAINTIFF | | | (Admin of the Estate of the late Baryomunyana Yudesi) | | 12 | VERSUS | | | 1.<br>DAVID MUGAMBWA | | | 2.<br>THE OMUKAMA OF TOORO KINGDOM =======DEFENDANTS |

## 15 **BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

This ruling follows an application by Notice of Motion by the applicant citing 18 Rules 5, 6 and 9 of the Judicature (Amicus Curiae) Rules 2022 seeking to be admitted as Amicus Curiae in Land Civil Suit No. 006 of 2020 pending hearing in this court.

- 21 The grounds of the application are outlined in the Notice of Motion and particularized in the applicant's supporting affidavit as follows: - (1) That the applicant aged 40 years is a Prince of Toro Kingdom being a 24 direct paternal descendant of the Omukama of Toro, His Royal Majesty


Kaboyo Olimi 1 (1830-1860) and a trustee and custodian of the Heritage and Culture of the people of Tooro in their various clans.

- 3 (2) That the applicant possesses expertise and knowledge on heritage, custom, culture, norms, traditions and affairs of Toro Kingdom which are important and relevant for court to determine the dispute before it. That 6 he is recognized internationally as an expert advanced in the culture and norms of the Ba'Toro being a publisher and author on Family Unity and Family Wealth with Emphasis on Toro. - 9 (3) That between 2011 and 2015, the applicant served as an Executive Secretary/Administrative Officer to the Administration of His Majesty, the Omukama of Toro or Toro Kingdom and had knowledge of all other 12 offices, commodities, boards of the Kingdom and was aware that the Kingdom was a Co-Trustees/Signatory of the Counties of the area of Toro under the 1900 Toro Agreement and the 20th September 1962 Toro 15 – Uganda Independence Agreement. - (4) That the applicant was neutral and impartial since his interest is to see that in the court's determination, the culture, heritage and norms of Toro 18 Kingdom and her people are duly brought to the attention of Court. That he would if leave is granted, provide important information relevant to the matters in controversy between the parties. - 21 (5) That he knows both parties that is, the plaintiff (James Phillip Mboijana) as son of the late Chris Mboijana and grandson of the late Yosamu (Jotham) Mboijana of the Bagaya Clan who served as the 8th Katikiro 24 (Chief Minister) of Toro Kingdom from (1934-1941). That James Phillip Mboijana is a son of Yudesi Baryomunyana and the father was Chris


Mboijana who was produced in the home of Antonio Mugambwa while Yudesi Baryomunywana was married to Antonio Mugambwa.

- 3 (6) That Phillip Mboijana left the home of Antonio Mboijana when he was 18 years and went to stay with his father Chris Mboijana and this was his rightful paternal family. That when the plaintiff's mother passed on, the 6 plaintiff applied for and obtained letters of administration and claimed that the land that belonged to Antonio Mugambwa of Basengya Clan was part of the mother's estate yet the land is vested in the 1st defendant under 9 lease hold. - (7) That he knew that David Mugambwa grew up on the suit land under the household of Antonio Mugambwa. That the 2nd defendant does not exist per the search conducted on 24th 12 -09-2019 that what exists is the Omukama of Toro which is a corporation that holds land in trust for its people and this includes the suit land as it appears in the 1900 Toro 15 Agreement which was returned to the Omukama of Toro. - (8) That around march 2011 when the applicant began working as an officer and assignees of the Omukama of Toro, his roles included among others, 18 the administration of the suit land and later launched an inventory to update the inventory of land owned by the kingdom which included the suit land. That the records also show, that some family members of the 21 late Antonio Mugambwa paid ground rent and these included Joyce Mugambwa, Late Antonio Mugambwa's daughter and late Agness Mugambwa and David Mugambwa (1st defendant) - 24 (9) That in the year 2013, the office of the Prime Minister/Principal Minister of Toro Kingdom received a lease application from David Mugambwa


and the application was not contested by any family member of the late Antonio Mugambwa, his children or heir Dr. George William 3 Mugambwa or any member of Basengya Clan.

(10) That the applicant is impartial and the information he has is relevant in assisting court reach an appropriate decision or issue in controversy 6 between the parties to the suit.

The application was opposed by the plaintiff who contended among others:

- (1) That the applicant's expertise, knowledge on customs, norms and 9 traditions of Toro Kingdom is not relevant to the dispute before court. The issues framed for determination by court were (a) whether the suit land forms part of the estate of the late Baryomunyana Yudesi; (b) whether the 1st 12 defendant (David) Mugambwa) fraudulently acquired the suit property; and (c) what remedies are available to the parties. That the applicant's expertise is not relevant to the determination of the above 15 questions. - (2) That the plaintiff contested the illegal grant of a lease to the 1st defendant by the 2nd defendant over land that belonged to Agnes Mugambwa who 18 had commenced the process to have the same surveyed and it is the gist of the case before court. - (3) That the dispute before court given the background does not require the 21 applicant's expertise and knowledge on culture and tradition of Toro. That court has previously held cases of this nature and the applicant's expert knowledge is not relevant. - (4) That by virtue of the applicant's former position as a staff of the 2nd 24 defendant and paragraphs 20 – 31, the applicant lacks neutrality in the


matter before court. The application is being used indirectly by the applicant to introduce new evidence to cover the gaps in the 2nd 3 defendant's suit. That it is fair that the application is rejected.

The defendant raised no objection to admitting the applicant as amicus curiae.

## 6 *Representation and Hearing:*

Mr. Cosma A Kateeba appeared for the applicant while M/s Kakuru & Co. Advocates appeared for the plaintiff. Learned counsel filed written submissions in 9 support of the application which I have carefully digested plus the reply of the plaintiff.

- 12 *Issues:* - **(1) Whether the applicant meets the test for admission as amicus curiae to Land Civil Suit No. 006 of 2020.** - 15 **(2) Remedies available to the parties.**

## *Consideration by Court:*

18 The admission of amicus curiae is at the discretion of the court *(see In Re: Prof J. Oloka Onyango & 8 ors V Amama Mbabazi & Yoweri Kaguta Museveni Civil Application No 2 of 2016).*

The legal position and procedure for the admission of Amicus Curiae is contained in the Judicature (Amicus Curiae) Rules 2022 (SI 54 of 2022 (the "Amicus Curiae 24 Rules"). Rule 4 of the Amicus Curiae Rules Defines Amicus Curiae as follows:


**"... a person or organisation that is not a party to a suit but who participates in the litigation by providing the Court with important** 3 **information intended to assist the Court in making an informed decision"**

6 Rule 5 of the Amicus Curiae Rules provides the tests and requirements for admission of Amicus Curiae as follows:

(a) the person or organisation is neutral and impartial;

- 9 (b) the court is satisfied that the submission of the person or organization will give assistance to the court that it would not otherwise have; - (c) the points of law or facts submitted by the person or organisation are 12 novel and will aid the development of jurisprudence; - (d) the interest of the person or organisation constitutes fidelity to the 1aw; - (e) the submissions of the person or organisation draw attention to relevant 15 matters of law that are useful, focused and principled; - (f) the participation of the person or organisation is in the public interest; and - (g) the person or organisation has demonstrable expertise or knowledge in

18 the area under dispute. . . "

While applying the tests for admission of an Amicus Curiae the Court may still 21 refuse admission under Rule 7 of the Amicus Curiae Rules where:

(a) the application does not state what point of law is overlooked;

(b) the application does not show the expertise in the matter and the 24 assistance which the applicant is to give the court in resolving the dispute before it;


- (c) the application introduces new evidence; or - (d) the hearing has already been closed and judgment reserved..."

Rule 8 of the Amicus Curiae Rules Provides that a Party to any matter before the Court can object to the admission of an Amicus Curiae where:

6 (a) the applicant does not have sufficient expertise;

(b) the applicant is introducing new evidence;

(c) the applicant is not impartial or is biased or hostile towards one or more

9 of the parties; or

(d) the applicant, through previous conduct, appears to be partisan on the issue before court. .. "

It follows therefore that amicus curiae should be a person who has vast expertise in a given body of knowledge or issues under adjudication by Court. The points of

- 15 law or facts to be submitted upon should be novel or should contribute to the development of jurisprudence, and he or she should be be a person that is neutral and impartial. An amicus curiae should demonstrate that, either through training, - 18 education, research or writing, he or she possesses vast knowledge/information in the area under dispute.

In the matter before me, Mr. Patrick Kasagama seeks to be admitted as an amicus

- 21 curiae in a dispute between Mr. James Mboijana (plaintiff) and David Mugambwa and The Omukama of Toro Kingdom (defendants). I keenly examined the affidavit in support of the motion and the averments therein and find that the applicant is a - disguised witnesses for the 2nd 24 defendant attempting to wear a wrong skin as an amicus curiae. To begin with, the applicant is a prince in Toro Kingdom which is a


party to the suit. In his evidence specifically in paragraph 19, he stated that the land in dispute forms part of land for the Kingdom (2nd defendant) where he is a beneficiary as a prince. He went on to justify the actions of the 2nd 3 defendant issuing a lease to the 1st defendant claiming under paragraph 21 and 22 that the land belonged to Antonio Mugambwa and that the 2nd defendant was right to issue a lease since there was no objection to the application by the 1st 6 defendant from a family member or clan member. Under paragraph 28 he discredits the evidence of the plaintiff arguing that he had no certificate of customary ownership or written 9 consent from the registered proprietor of the suit land as such he had no claim therein. He continues under paragraph 29 that the late Agnes Best Mugambwa is not a party to the dispute before court nor does James Mboijana (plaintiff) hold 12 letters of administration over the estate of the Late Best Mugambwa who could have applied for administration of the estate of the late Antonio Mugambwa who was a daughter and of Basenya Clan. He further goes on under paragraphs 30 and 15 31 to state Rutoro maxims which attempt to abate any interests that the plaintiff claims in the suit land. Additionally, the applicant also averred under paragraph 4, that he served the Kingdom as an Executive Secretary/Administrative Secretary

- 18 and in paragraph 16 he maintained that the plaintiff had sued a none existent party. The contents of the affidavit in support of the application in totality reveal the applicant as a witness for the Kingdom and the 1st defendant both directly and - 21 indirectly. I find that the court could benefit from the evidence particularized in the supporting affidavit when the applicant is presented as witnesses for the defendants and not as amicus curiae. I find that he attempts to introduce new evidence that 24 supports the defendants' case, he is biased against the plaintiff, he is conflicted and there is no novelty in his submissions and evidence that warrants his admission as


a friend of court. Thus the applicant does not satisfy the conditions under Rule 5 of the Judicature (Amicus Curiae) Rules. I thus reject the application with no orders 3 as to costs. I so order.

**Dated at Fort Portal this 11th Day of December 2024**

Vincent Wagona **High Court Judge**

9 **FORT-PORTAL**