KAMPALA: The High Court has ruled that a Parliament sub-committee of the Committee on Statutory Authorities and State Enterprises (COSASE) into the operations of the Departed Asians Property Custodian Board (DAPCB) acted illegally when it investigated properties that had already been or were being handled by courts of law.
Justice Boniface Wamala in a ruling dated July 4, 2022, also quashed plans by COSASE to arrest the applicant, Muhammad Allibhai, a Ugandan Asian, who is the Chairman of the Association of Expropriated Properties Owners Limited, for refusing to honour their summons
He also ruled that any records related to the matter be expunged from the Hansard, the official records of Parliament.
In his detailed ruling, Justice Wamala stated that while Parliament and its relevant Committee were vested with the constitutional right and mandate to investigate and inquire into the matters that are subject of the impugned report, their mandate does not extend to undertaking investigations into matters that are the subject of court 17 proceedings and decisions.
“If done, this contravenes the res judicata rule where a matter is already determined; and the sub-judice rule where the matter is pending before the court. In this case, it should be noted that the Subcommittee was operating as a quasi-judicial body. Acting on matters that are res judicata or sub-judice would constitute an affront to the well-established principles of separation of powers and independence of the Judiciary which are cornerstones of the rule of law,” the judge ruled.
The ruling stemmed from an application filed by Mr. Allibhai, who was protesting COSASE’s decision to go ahead and investigate some Departed Asians’ properties, arguing some of them had been repossessed as ruled by court.
He argued that COSASE acted irrationally when it made recommendations of cancellation of repossession certificates on the assumption that the former owners did not return to Uganda physically, basing on a document from the Ministry of Internal Affairs which clearly contained a disclaimer that in the absence of proper particulars being provided by the subcommittee, no proper search of travel records could be done by the ministry.
On Monday, Justice Wamala agreed with him and said that although there is no bar for Parliament to discuss or even undertake investigations over matters that have been subject of court decisions, the cardinal point is that such investigation should not involve or constitute re-hearing of those matters and reaching conclusions that are contrary to the findings and decisions of the court.
“Parliament is obliged to derive guidance from the court decisions rather than taking liberty to depart or even reverse such decisions. In other words, Parliament should avoid placing itself in a position of reversing a decision of a court. Where a party is not satisfied with the finding and decision of the court, for whatever reason, their remedy is to use the well-established channels for challenging the court decision and not re-opening the same or related matters by way of petitioning a Committee of Parliament,” he added.
The Judge listed one of the properties subject of the investigation by the COSASE Sub-Committee, named as Plot 32 Gweri Road in Soroti City, yet it had been a subject of adjudication by the court between Roshanali B. Bhanji and Amirali Bachu Bhanji, being the principals of the Applicant, on the one hand (as Plaintiffs); and one Obonyo Martin, Soroti District Land Board and The Chief Registrar of Titles, on the other hand (as Defendants).
The court decided the dispute in favour of the Plaintiffs. The said decision has not been reversed by any court of competent jurisdiction.
“There is further evidence by way of a letter from the Departed Asians Properties Custodian Board (DAPCB) dated 8th September 2021 written to the Senior Registrar of Titles, Soroti MZO, (annexture J on the supplementary affidavit in support of the application).
In this letter, the Executive Secretary of the Board, Bizibu George William, is communicating sale of the said property at Plot 32 Gweri Road Soroti to Martin Obonyo; the same person who had litigated over the same property in court and had lost. Both Martin Obonyo and Bizibu George William were fully aware of the court decision and the fact that it 19 is still in force,” he added.
