There are growing concerns over the way the principal judge Dr Flavian Zeija exercises his powers. A litigant has written to Chief Justice Alfonse Owiny-Dollo to intervene and rein in his subordinate. In a letter written on May 13, 2024, but only surfacing now after another litigant filed a petition in the Constitutional court challenging the actions of Zeija of withdrawing cases from judges mid-way through the hearing, Dr Medard Kiconco says the actions of Zeija put a doubt on his neutrality as a judge.

“We pray that if you deem it necessary, you have a word with the PJ [principal judge] and offer guidance. Otherwise, given the high position held by the PJ in the judiciary, the path of lodging a complaint before the Judicial Service Commission (JSC) can easily see the matters herein spill, which situation, as a responsible citizen, and following the wise advice from my lawyers, is avoidable,” Kiconco’s letter to Owiny-Dollo reads in part.

At the centre of the contention is a 130-acre piece of land found at Ssisa in Wakiso district. Kiconco is the attorney representing the descendants of Festo Banja who are Nalongo Margret Zalwango, John Lumansi Kazibwe and Eddy Kimera. These administrators claim that their land was illegally taken over by a company called Ladha Kassam and was being subdivided for sale. 

So, they wanted court to declare that it was mailo land and not freehold land and, therefore, it couldn’t have possibly belonged to Ladha Kassam all whose directors and shareholders are non- Ugandans. In his letter to the chief justice, Kiconco alleges that Zeija called the file which was in the High court Land division before it could be disposed of and decided to hear it himself.

While the case was ongoing, Kiconco’s letter says that the administrators of Banja’s estate decided to apply for an interim order stopping the sale of the said land until the matter is determined. However, Zeija refused to grant the said order, arguing that in the event that he finds that the said land was mailo, the sales would collapse.

“As such, Zeija in effect okayed the further selling of the said land by the defendants while the court case was ongoing. The plaintiffs contend that the said holding was in bad faith since the pleadings before the principal judge were clear with alternative prayers for cancellation of the said freehold titles, if they were existent for having been acquired fraudulently by the defendants,” the letter reads in part.

With Zeija’s ruling, Kiconco’s letter says Ladha Kassam went ahead and sold the land to other people who were also later listed as defendants. The letter adds that when Zeija decided to have a locus visit of the land, he found that the land was being developed by third parties but still refused to fix another application for interim orders to stop the construction until the matter was determined. 

“There were signposts soliciting buyers of the said land which Zeija saw physically and which the plaintiffs’ lawyers put to his attention but he still refused to grant an administrative interim order for three days and even declined to fix for hearing the said application for an injunction and interim order,” the letter reads.

The letter also adds that the complainants were also shocked by Zeija’s decision to volunteer evidence in favour of the registrar of titles who had already withdrawn his statements and asked court to expunge them from the record.

“When we appeared on the said land for locus visit on April 25, 2024, Zeija told us that he wrote to the Administrator General for confirmation as to whether the suit land formed part of the estate of Festo Banja, and the Administrator General replied stating that Festo Banja had another successor not the plaintiffs.

The PJ pulled out a document which he said was the succession register and gave it to us asking us to submit on it in the written submissions. The plaintiffs’ counsel, who were surprised by Zeija’s move to bring in evidence in favour of the defendants who had opted not to tender in any evidence, prayed to cross-examine the Administrator General on the said succession register. Zeija denied the prayer saying that the said Administrator General was not cross-examinable,” Kiconco’s letter reads in part.

All these, the letter concludes, indicate that Zeija “engaged in gross and unexpected misconduct.” In his judgement which came two months after the letter on July 5, 2024, Zeija found that the land belonged to Ladha Kassam as it had rightly changed from mailo to freehold.

“From the evidence on court record, whereas it is true that the suit land was registered in the names of Festo Banja on July 19, 1915 under mailo tenure, the same was converted to freehold tenure under the circumstances herein above explained hence the closure of the mailo register. The conversion was rightly done in line with the laws governing land conveyancing at that time. There is no evidence that this freehold tenure of the suit land was further changed. Therefore, the current tenure of the suit land is freehold,” Zeija’s ruling reads in part.

It also calls on the police criminal investigation department to investigate the administrators of the estate of Banja and their attorney Kiconco for fraudulently acquiring an original title of the said land.

“When counsel for the commissioner for Land registration, who is also a registrar of titles, looked at the title, he noticed that it was the original which is supposed to be in custody of the registrar of titles. When it was submitted to me, I confirmed that indeed it was the original title which is supposed to be in the custody of the registrar of titles.

This points to a criminal act. I then confiscated the title and I’m due to pass on the title to the registrar of titles after delivering this judgement. I had thought of causing the arrest of the plaintiffs who are the donors of the power of attorney but the donee kept them out of site, including at the time of visiting locus in quo...This issue should be taken up for investigation by the Criminal Investigations Department of the Uganda Police Force for possible prosecution of all the perpetrators,” Zeija’s ruling reads in part. 

He also ordered that if the complainants can’t be found, their attorney Kiconco should bear all the costs of the suit to the nine defendants.

“This suit is dismissed with costs to all defendants. It is apparent that the donee of powers of attorney did not disclose the identity of the donors. Under the law of agency, where a person acts for an undisclosed or unidentified principal, the agent is personally liable. Therefore, in the event that Medard Kiconco is unable to disclose the whereabouts of the donors, he will be personally liable to pay the costs of the suit,” the ruling reads. 

Contacted for a comment, Kiconco acknowledged writing the letter which he said was never responded to by the chief justice. He, however, declined to be drawn in the controversy. Efforts to reach out to Zeija for a comment were futile but this is not the first time he is being accused of his overbearing approach at High court.

INTERESTING TREND

Zeija has also been implicated in other cases where he has withdrawn files from a judge while the matters have either been determined or pending determinations. In the most recent one, he called a file from High court judge Grace Magala after she gave a ruling that didn’t amuse the solicitor general Pius Biribonwoha, who wrote to Zeija to exercise his administrative powers and look into the matter. 

Justice Magala’s ruling had restrained Eswatini company Inyatsi Construction Ltd from discharging a bank guarantee in respect of the construction works of the Kabuyanda earth dam in Isingiro district until the final ruling of a suit filed by Plinth Consultancy Services Limited, the project sub-contractor. Shortly afterwards, Magala was transferred to Arua circuit.

Back in 2020, businessman Hamis Kiggundu petitioned the Judicial Service Commission (JSC) accusing Zeija of misconduct in his case against Diamond Trust Bank (DTB). This followed Zeija’s decision to halt the execution of Justice Henry Peter Adonyo’s judgment where Ham Enterprises emerged victorious. Shortly afterwards, Zeija transferred Adonyo to Soroti, from where he retired recently.

In both cases, the losing sides represented by the powerful law firm K&K, whose principals are Attorney General Kiryowa Kiwanuka and Edwin Karugire. Late last year, Zeija was accused of interference when he sought to recall a court order issued by a High court deputy registrar against Uganda Revenue Authority (URA) after it lost a suit to John Imaniraguha.

Judge Stephen Mubiru raised concerns over this interference, emphasizing the importance of judicial decisional independence. Earlier this year, Zeija also recalled a file from then High court acting judge Shamira Bukirwa, who had allowed an extraordinary meeting of the members of the Uganda Muslim Supreme Council, who then voted to impeach Sheikh Shaban Mubajje as the mufti of Uganda.

Thereafter, Zeija suspended the implementation of the resolutions and weeks later, Bukirwa was the only acting judge from 16 not to be considered for the permanent job by President Museveni. So, Zeija later instructed Bukirwa to hand over all judiciary property and files in her possession.

A retired judicial official who preferred anonymity said it is unprecedented for a principal judge to have so many people complaining about him.

“Go check out the tenures of his predecessors [Yorokamu] Bamwine or [Herbert] Ntabgoba and see whether you will find such complaints. The current judiciary needs serious soul searching,” said the official. By MUHAMMAD KAKEMBO, The Observer