Ismailia Building Company Limited & 3 Others v Attorney General & 4 Others (Constitutional Petition 37 of 2019) [2024] UGCC 27 (18 December 2024)

# <sup>5</sup> THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Gashiraboke, Luswala, Kazibwe-Kawumi, & Mugenyi JJCC. J

#### CONSTITUTIONAL PETITION NO.37 OF 2019

#### BETWEEN

### 1. ISMAILIA BUILDING COMPANY LTD

- 2. MOHAMED ALLIBHAI - 3. ALDERBRIDGE REAL ESTATE AND MANAGEMENT LTD - 4. COL. CHRISTOPHER OCAYA ACELLAM........... PETITIONERS

#### AND

- I. ATTORNEY GENERAL 15 - 2. THE DEPARTED ASIANS PROPERTY CUSTODIAN BOARD - 3. DR. BYAKATONDA ABDULHU - 4. BIZIBU GEORGE WILLIAM...... RESPONDENTS - 5. COMMISSIONER FOR LAND REGISTRATION

#### 20

\

#### JUDGMENT OF CHRISTOPHER GASHIRABAKE. JCC

#### Introduction

- ll The petition was brought under Article 137 of the Constitution, 1995 and The Constitutional Court (Petitions and References Rules, 2005, (S. I No.9l of 200s). - 2] The petitioners are seeking the following declarations from this Court; - o. <sup>A</sup>declaration that Section 9(l) (d) of the Expropriated Properties Act, (hereinafter referred to as "EPA") 1982 to the extent that it confers the minister powers to make an order defining a former Asian property owner who has not physically returned to reside in Uganda within one hundred twenty (120) days after repossession of her property subjects private property ownership rights to state arbitrariness and, is inconsistent with and /or in contravention of Articles 2(2),20(1)(2),21(l)(2)(3), 26(l)(2) of the Constitution.

<sup>5</sup> b. A declaration that the act of expropriating petitioners' private property without their prior consent and prompt poyment offair and adequate compensation is inconsistent with qnd in controvention of Articles 2(2), 20(l)(2), 2l(l)(2)(3), 26(l)(2) and 9 9 ( I ) (2 ) (3 ) (4) of the Constitution.

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- c. A declaration that the act of using legislative and executive power to usurp the courts' exclusive Constitutional mandote to investigate and cancel Certificates of repossession, disregarding Court decisions on the legality of the Petitioners' Power of Attorney, Certificates of repossession and Letters aulhorizing repossession interferes with judicial independence and is inconsistent with and/or in contrqvention of Articles,2(2), 20(l)(2), 2l(l), 26 (1)(2), 28(l) (12), 412(l)(c),4j(2),44(c), 45, 7e(t),e I (t ),e2,e8, t 20(3)(a)(b)(5), t 26(t)(2), I 28(t)(2)(3), I 2e(t)(a)(b)(c)(d)(2), 130(a)(b), 132, 134(1)(2),l,38 and l,39 of the Constitution. - d. A declaration that the act of the Directorate of Public Prosecution (DPP) interpreting ond overruling Court dectsions is inconsistent with and/or in contravention of Articles 2(2),28(t)(2),44(c),79,91(t),92, t20(3)(a)(5), t26(t)(2),128(t)(2)(3), t30(a)(b), 132, 134(l)(2), 138 and 139 of the Constitution. - e. A declaration that the act of using governmental administrative authority to willfully alter and/or conceal fficial records of previously repossessed properties with their certificates of repossession and present dffirent records for the immoral purpose of using the Penal Code Act to defeat the remedial Expropriated Properties Act is inconsistent with and /or in contravention of Articles 2(2), 20(l)(2),26(l)(2), 27(2), 40(2),4t(1), 42.43(t)(2)(a)(c), aaG), 45,79,91(t),92,99(t)(4)(5) and 120(5) of the Constitution. - f. <sup>A</sup>declaration that the act of fabricating administrative allegations of fraud against Certificates of Repossession duly issued by the Minister undermine private property ownership, manqgement of repossessed properties, and interfered with petitioner's ogency business and is inconsistent with and /or in contravention of Articles; 2(2),20(t)(2),21(1)(2)(3),26(r)(2),27(t)(2),28(t),4aG),50(1),7e(1)(2)(3), et(t), ee(t)(2)(3)(4), 126(t)(2), 128(t)(2)(3), t2e(t)(a)(b), t30(a)O)k)@(2), 132(t)(2)(3), 134(l) and 139(l) of the Constitution.

- <sup>5</sup> g. A declaration that the act of the 2nd 4th respondents purporting to deal in repossessed properties with pending court litigation between the petitioners and respondents' is inconsistent with and /or in contravention of Articles; 2(2),28(l) (12),aa@,s}(t),126(1)(2),128(t)(2)(3),130(a)(b), 132,134(t)(2),138 and 13e of the Constitution. - h. A declaration that the act of disregarding the legal advice of the Attorney General, directives of the President and Minister of Finance to obey and implement court decision and not to question Certificates of Repossession is inconsistent with and /or in contravention of Articles 9l(l)(2),92,98, I l9(l)(3)(4)(5), 250(l)(2),126(l)(2) and 128(l)(2)(3) of the Constitution. - i. <sup>A</sup>declaration that the act of 2d- 4th respondents' inciting tenonts not to pay rent to former expropriated properties' owner is inconsistent with ond or in contravention of Articles; 2(2), 26(l)(2),91(l),92, 155(l),154(l)(a)(b)(2)(3), 156(l),238 and 239 ofthe Constitution. - j. <sup>A</sup>declaration that the act of trustees or Managers of formerly expropriated Asians properties turning themselves into perpetual owners of those properties is inconsistent with Articles 2(2),26(l)(2),20(l)(2), and 99 of the Constitution. - k. An injunction doth issue against the respondents forbidding them from acting unconstitutionally. - l. Costs of the Petition. - The petition was supported by an affidavit sworn by Mr. Mohamed Allibhai, the second petitioner. 25

The petition was opposed by the respondents:

3] The 1st,2nd' and 4threspondents denied the allegations made by the petitioners. Additionally, the 4th respondent averred that the petitioners have no cause of action. The case against the 3'd respondent was dismissed. At the time the petition was filed, the 3'd respondent was working with the Custodian board as the Chairman Divestiture Committee, but he had since joined the

<sup>5</sup> Parliament of Uganda representing workers. The 5th respondent did not respond to the petition. However, submissions were made on its behalf.

4] The I't respondent's answer to the petition was supported by the affidavit sworn by Mr. Geoffrey Madete , a Senior State Attorney ,at the time ,in the Attorney General's Chambers in the Ministry of Justice and Constitutional Affairs . The answers by the 2"d and the 4th respondents were supported by the affidavit sworn by Mr. George William Bizibu.

5] In rejoinder and response to the 2nd and 4th respondents' answer to the petition, the petitioners averred that the petition raises genuine issues requiring Constitutional interpretation.

#### Representation 15

At the hearing, the petitioners were represented by Ms. Nakabuubi Claire. The 2nd and 4th respondents were represented by Mr. Wandera Ogalo. The I't and 5th respondents were represented by Mr. Ojambo Bichachi, State Attorney ,in the Attorney General's Chambers. Parties filed written submissions.

#### Issues

- 6] The petitioners raised several issues to be considered by this court. These are; - o. Whether Section 9(l)(d) of the Expropriated Properties Act, 1982 to the extent that it confers to the Minister powers to malce an order depriving a former Asian property owner who has not physically returned to reside in Uganda within l20days after repossession of her property subject's private property ownership rights to state arbitrariness and is inconsistent with and /or in contravention of Articles 2(2), 20(l)(2), 2l(l)(2)(3), 26(l)(2) of the Constitution. - b. Whether the act of expropriating petitioners' private property without their prior consent and prompt payment offoir and adequate compensation is inconsistent with and/or in contavention of Articles 2(2), 20(1)(2), 2l(l)(2)(3), 26(l)(2) and <sup>99</sup>( I ) (2) (3 ) (4) of the Constitut ion.


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- <sup>5</sup> h. Whether the act of disregarding the legal advice of the Attorney General, directives of the President and the Minister of Finance to obey and implement Court decisions and not to question certificates of repossession is inconsistent with and/ or in contrqvention ofArtictes et(t)(2), e3 e8, t te(t)(3)(4)(s), 2s0(t)(2), 126(t)(2) and 128(t)(2)(3) of the Constitution. - i. Wether the act of 2'd and 4th respondents inciting tenants not to pay rent to former expropriated properties owners is inconsistent with and/or in contravention of Articles 2(2), 26(l)(2), 9l(1), 92, ls5(l), t5a(l)(o)(b)(2)(3), 156(l), 238 and 2j9 of the Constitution. - j. Whether the act of trustees or Manogers of formerly expropriated Asion properties turning themselves into perpetual owners of those properties is inconsistent with Articles 2(2), 26(l)(2), 20(l)(2), and 99 of the Constitution.

# Submissions for the petitioners

#### Preliminary obiection.

- 7] Before considering the petitioners' submissions, the petitioners raised <sup>a</sup> preliminary objection , which I should dispose of first. It was argued for the petitioners that the l't, 4th' and 5th respondents neither lodged their answers to the petition nor served them on the petitioners as required under rules 6(3) and 6(6) of the Constitutional Court (Petitions and References) Rules, SI 2005, No.9l. Counsel prayed that since they did not adhere to the said rules, the petition should proceed exparte as against the I't, 4th and 5th respondent. 20 25 - 8] The Petitioners jointly made submissions on all the issues. - 9l It was submitted for the petitioners that paragraphs I 1(a)-O show the acts of the respondents which were inconsistent and /or in contravention of the cited provisions of the Constitution. It was averred that the 2nd petitioner is <sup>a</sup> Ugandan of Asian descent, Director of the l't and 3'd petitioners which are property management companies.

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<sup>5</sup> l0] It was submitted that between New York, Vancouver, Toronto and London, the 2nd Petitioner received about 470 Powers of Attorney for repossessing properff on behalf of the former owners. That upon successful repossession of the property, he would collect rent on their behalf and continue to remit it to them. Around 199311994, the 2nd Petitioner was interviewed by the DAPCB, select committee of the expropriated properties about his role in the process and the different Powers of Attomey. He answered satisfactorily. That between 1996 and 1997, Parliament investigated the DAPCB and concluded its investigations in the process of repossession. Counsel submitted that the 2nd petitioner was astonished to see media reports affributed to the 3'd and 4th respondents alleging that his Powers of Attorney were fraudulently acquired.

<sup>I</sup>I ] It was submitted that according to the 2nd petitioner, the committee worked with the 2nd -4th respondents in bad faith to find any feeble excuse to cancel the repossession certificates of the petitioners. Additionally, it was submitted that there was no complaint from their respective clients of fraud, on the part of the 2nd petitioner as alleged by the respondent.

l2l On 03'd December 2019, the 4th Respondent appeared before COSASE and was asked to veriff the status of the property in question. After the meeting with COSASE, the 2nd respondent issued orders to stop District Land Boards from registering dealings on the Petitioners' land. Many of the tenants, upon reading the allegations of fraud leveled against the petitioners in the media, stopped paying rent.

131 It was submitted that Section 9(1)(d) of the Expropriated Properties Act, 1982 to the extent it confers on the minister powers to make an order depriving a former Asian property owner who has not physically returned to reside in Uganda within 120 days after repossession of the property, subjects


- <sup>5</sup> private property ownership rights to State arbitrariness and is inconsistent with and/or in contravention of Articles 2(2),20(l),21(lx2)(3), 26(l)(2) of the Constitution. - l4l Counsel for the petitioners submiffed that the 4th respondent usurped the court's powers to baselessly allege fraud on certificates of repossession. The 2nd respondent in its corporate legal capacity sat on 29107/1997 and resolved that whenever cases of fraudulent repossessions are reported, the final determination should be by Court. According to Statutory Instrument No. 82 of 1993 (S. I 8-7-8), The Expropriated Properties (Repossession and Disposal) No.l Regulations provide the establishment of Custodian Board Divestiture Committee's responsibility to examine and veriff the authenticity of each application to repossess a property and recommend to the minister responsible for Finance to sign Certificates of repossession. - l5] The handover report of the custodian board divestiture committee dated 2010112006, addressed to the minister responsible for Finance indicates 4063 repossessed properties by the former owners as far back as 1983. To show their unconstitutionality, what 11r. 3rd-4th respondents allege to be fraudulently repossessed properties are included in the handover report duly verified by the Divestiture Committee. - 16l It was further submitted for the petitioners that the I't petitioner is properly recorded as having repossessed FRV 420, No. l, Plots 4 and <sup>5</sup> Rubaga place on7l7ll992 under serial No.238l and LRV 413, Folio 1, Plots 6, Plot 6 Hoima road on 28/7/1992 under serial No.2633 of the hand-over report of 201112006. The 4th respondent's report was thus made in bad faith as it willfully omiued the petitioner's and other property which the divestiture Committee in its hand-over report dated 20ll/2006 documented as having been repossessed. The allegations of fraud, which were false, unfounded, full

- <sup>5</sup> of biases, greed, hatred, discrimination, shrouded in conflict of interest, comrption, and abuse of office were leveled to cause the cancellation of Petitioner's repossession certificates. Counsel cited Christopher Martin Madrama lzama v. Attorney General, Constitutional Appeal No.l of 2016, where CJ, Bart Katureebe, defined the parameters of what constituted discrimination. - 10 - l7l It was contended that the petitioners were threatened with directives from the DPP to be prosecuted. Yet deprivation of private property by respondents' organs, that is the Legislature and Executive were irregular, inconsistent with, and/or in contravention of Articles, - 2(2),28(t)(\,aa@),7 9,9 t (r), 92,1 20( 3 )(a)( s),t 26(1 )(2 ), <sup>I</sup>2 8 ( I )(2 X3 ), 130(a)(b), 132, 134(l)(2),138 and 139 of the Constitution. - 18] Furthermore, it was argued for the petitioners that the act of failure to observe the rule of law, comply with court orders, and disregard existing court judgments is inconsistent with and/or in contravention of Articles 20(t)(2),21(r),26 (lX2), 28(rz),91(t),92, 126(t) and 128(l)(2X3) of the Constitution. Counsel cited Mohan Kiwanuka v Asha Chand, SCCA No. 14 of 2002, where it was held that it was a cardinal principle in our judicial procedure that courts must as much as possible avoid multiplicity of suits. - l9l It was submiued that the petitioner thus discharged their burden of proof of showing that the respondent's acts contravened the cited provisions of the Constitution and the onus shifted to the respondents to show that their acts were justified under Article 137(3) of the Constitution. In UNRA V. Irumba Asuman & Anor, SC Constitutional Appeal No. 02 od 2014, this court did not address the issue of burden of proof. However, the court addressed the fact that the Constitutional Court has original jurisdiction for Constitutional interpretation which should not be denied to any person.

<sup>5</sup> Counsel also referred to Baku Raphael and Anor v. AG, SC, Constitutional Appeal No.2 of 2003, however, the Court did not address the issue of the burden of proof shifting to the respondent. The Court rather addressed the Jurisdiction of the High Court in parliamentary elections.

## Submissions for the Respondents 10

20) I have perused through the submissions of all the respondents and I notice that they are similar. Save for a few adjustments, they used the same template in denying the accusations leveled against them. Therefore, to avoid repetition, I will merge all their submissions.

## Issue 1: Whether the petition raises questions for Constitutional interpretation.

2l) It was submiued for the respondents that the jurisdiction of the Constitutional Court is set out in Article 137(l) of the Constitution which is to the effect that any question as to the interpretation of the Constitution shall be determined by the Court of Appeal sitting as the Constitutional Court. Furthermore, it was submitted that under Article 137(3) a person who alleges that any act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution may petition the Constitutional Court for a declaration to that effect and for redress where appropriate.

If the Constitutional Court considers that there is need for redress in addition to the declaration sought, Court may grant an order of redress; or refer the matter to the High Court to investigate and determine the appropriate redress. Counsel Cited (Anicle 137(4)) and Attorney General v. Major General

- <sup>5</sup> David Tinyefuza, SCCA No. I of 1997, where it was held that the jurisdiction of this court is limited to Article 137(l) of the Constitution to interpretation of the Constitution - 221 Counsel further cited Ismail Serugo v. Kampala City Council & another Constitutional Appeal No.2 of 1998, where Court held that in order to determine whether this court has jurisdiction over the matter before it, the petition must show on the face of it the need to interpret a provision of the Constitution. Counsel further submitted thataperson who seeks redress from infringement without interpretation of a provision of the Constitution has to file a complaint in a competent Court other than the Constitutional Court. - 23) It was further argued that the petitioners did not adduce any evidence in their allegations. For instance, there was no evidence of a certificate of repossession cancelled by the 2nd and 4th respondents. No evidence of any Court decision disregarded by the respondents as alleged by the petitioners. - 241 In counsel's opinion, the High Court applications, Miscellaneous Causes No.70 of 2020 & ll7 of 2020 and 119 of 2020 filed by the petitioners were hinged on the same facts as this petition. These were dismissed by High Court on 7th October, 2020, for failure to show with cogent evidence how the actions of the Parliamentary Committee (COSASE) acted illegally, irrationally and with procedural impropriety. It is argued that for the petitioners to raise the same issues in this petition amounted to abuse of the Court Process. - 251 Counsel noted that there was no nexus between the complaints made and Articles 2(2),20(l) and (2),21(1X2) and (3), 28(l) and (12), 45, 43(2),79(l), 9l(l),92,98, 120 (3) (a)(b) and (5), 126 (t)(2), Article <sup>128</sup> (lX2) and (3). To support his assertions counsel cited Tumushabe v. Attorney General, Constitutional Petition No.06 of 2004rZachary Olum

L0

<sup>5</sup> & Anor v. Attorney General, Constitutional Petition No. 6 of 1999, in Centre for Domestic Violence Prevention and Others v. Attorney General, Constitutional Petition No. 13 of 2014, Onyango Obbo and anor v. Attorney General, Constitutional Appeal2 of 2002, Hon. T. Ssekikubo and 4 others v. A. G, Constitutional Appeal No. I of 2015.

Issue 2:

Whether Section 9(1)(d) of the Expropriated Properties Act Cap 87 is inconsistent with and/or in contravention of Articles 2(2),20(1), (2) & (3),21(1), (2) & (3) and 26(1)(2) of the Constitution.

261 Counsel for the respondents submitted that the preamble to the Expropriated Properties Act Cap 87 (EPA) states as follows:

"An Act to provide Jbr the transfer of the properties and business acquired or otherwise expropriated during the Military Regime to the Ministry of Finance, to provide .for the return to./brmer owners or disposal of the same by Government and to provide .for other molters connected therewith or incidentql thereto"

271 Counsel for the respondent submitted that all expropriated property was vested in the Govemment of Uganda and managed by Ministry of Finance by virtue of Section 2 of the EPA. Additionally, under Section 3, the EPA gives the Minister of Finance power to transfer to the former owner any property or business vested in the Government where he/she is satisfied that the former owner shall physically return to Uganda, repossess and effectively manage the property or business. Where the former owner is a corporate body or a firm, under Regulation 14 of the S. I 87-8, at least one shareholder must physically reside in Uganda and effectively manage the property or business.

- <sup>5</sup> Under Section 4 of the EPA, a former owner of property or business vested in the Government may within 90 days apply to the Minister in writing and in such form as may be prescribed for repossession of the property or business. - 10

281 In addition, Counsel submitted while relying on the finding in Jaffer Brothers Limited v. Mohamed Bagalaliwo & 2 others, Civil Appeal No. 43 of 1997 that the Minister for Finance issued General Notice No. 88 of 1993, which was published in Uganda Gazette, Vol. LXXXVI No. 20 of l3th May 1993, and invited former owners, both citizens and non-citizens whose properties had been expropriated by the Military regime to apply up to 30110/93, to repossess them. This was also reduced into a Statutory Instrument No.1 of 1994. The General Notice and the Statutory Instrument effectively amended Section 3 of the Expropriated Properties Act, 1982 by extending the ninety days prescribed in the Section.

291 Section 6(l) of the EPA, provides that subject to the Act, after the Minister has been satisfied with the merits of an application for repossession, he/she can issue a certificate authoring the former owner to repose the property or business.

30] Counsel contended that under Section l2(l) of EPA, the Government must compensate the former owner whose property or business is affected by Section 9. This compensation must be in a manner determined by the minister or negotiated by the person or body. (See, Section 12 (6) of the EPA). Furthermore, under Section l5(1) of the EPA, any person who is aggrieved by any decision made by the Minister under the Act, h&y, within 30 days from the date of communication of the decision, appeal to the High Court against the decision. Counsel argued that the impugned Section applies "the minister may" meaning that it is instructive as opposed to being directory.

- <sup>5</sup> 3l] It was the counsel's contention that the Expropriated Properties Act whose main purpose was to cure the past wrongs offers appropriate remedies to any affected person. Not only must he/she be compensated, but any person aggrieved by the decision of the Minister under the Act can appeal to the High Court. It is therefore a considered opinion of the respondents that Section 9(l)(d) of the Expropriated Properties Act Cap 87 does not need interpretation and is not inconsistent with and/or in contravention of Articles 2(2),20(l), (2) & (3),21(l), (2) & (3) and 26(1)(2) of the Constitution. Counsel cited Issa Kikungwe & Ken Lukyamuzi v. Attorney General, Constitutional Petition No. 30 of 2006, and Paul K. Ssemogerere & others vs. Attorney General, Constitutional Appeal I of 2002 (UGSC. 10 - Issues 3-10:

## The l't and 5th Respondents submitted on issues 3 to 10.

- 321 Counsel for the respondents submitted that issues 3 -10 are unsubstantiated allegations of acts purportedly committed by the 1st, )nd,4th' and 5th respondents without leading any evidence or proof of the same. Counsel cited Section l0l of the Evidence Act which requires everyone who alleges something to prove. Counsel cited Male Mabirizi v. Attorney General, [2018] UGCC 4, the court found that it is not enough for the petitioner to just make allegations of violations without adducing cogent evidence of the violation. - 33] Counsel submitted that it was incumbent upon the petitioners to make out the "oct in their evidence" according to Article 137 of the Constitution. In this case, it would require disclosure of, the parties to the suits, the civil suit or appeal numbers of the cases, the courVjudge handling the case and the status of the case. As regards the property tampered with the petitioners ought

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- <sup>5</sup> to have specified the exact properties being dealt with. The petitioners needed to adduce evidence to prove how the respondents incited the tenants not to pay rent. - 341 It was funher submitted by counsel for the respondents that there is no evidence that members ofthe 1't respondent, namely the Ministers of Finance, Commerce / Trade, land furban Development, Local Government and the Attorney General have conspired to steal expropriated properties from Government and vest it unto themselves. Counsel submitted that expropriated property is managed by government through Ministry of Finance by virtue of Section 6 of EPA. - 35] Counsel submitted that though some documents were attached, none is directly addressed to the petitioners nor covertly or overtly proves any acts that require Constitutional interpretation. Counsel submitted that this petition is speculative and devoid of merit. It should be dismissed - 36] Counsel submitted that the impugned provision is rationally connected to the objective of revamping the economy. By having former owners return physically, there would be new investments in the properties and businesses to grow the economy not arbitrarily or unfairly.

## Analysis

37) I will proceed first by laying out the principles guiding this Court on Constitutional interpretation as summarized by Mwondha JSC, in David Tusingwire v. Attorney General, l20l7l UGSC 11, as follows:

'(i) The Constitution is the Supreme law of the land and.forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of its inconsistency (see Article 2(2) of the Constitution. Also, see Presidential

I

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ανε αίsο νελεναπί από βυίδει θα Constitutional interpretation (**Okello** (iiv). The history of the country and the legislative history of the Constitution. David Tinyefuza, Constitutional Appeal No. 1 of 1997 (SC).

interpretation should be given to it. (See Attorney General vs Major General $\mathcal{L}$ interpreted is inprecise or amplifient, $\mathcal{L}$ interpreted is positive. (iv). Where the language of the Constitution or a statute sought to be *σουγεί το της του του του του του του του του του του*

$\mathcal{P}$ isum besu $\mathcal{P}$ lain ordinary, va natural meaning. The language used the point of the sum of the point of the point of the point of the point of the point of the point of the point of the point of the point of ( $\Lambda$ ). Where words or phrases are clear and isomorphism ( $\lambda$ ) is the size of the size of the size $\lambda$

> $\varsigma\zeta$ Carolina 192, USA 268. 1940.

and another Constitutional Petition No. 1 of 2005, South Dakota vs. South $D$ Soe Okello Okello John Livingstone and 6 others vs. The Attorney General cultural values so as to extend the benefit of the same to the maximum possible. keeping in view the ideals of the people, their social economic and political uoitary bro given dynamic, progressive liberal and flexible interpretation premanent provision intended to cater for all times to come and therefore (iv). A Constitutional provision containing a fundamental human right is a $W_{i}^{i}k_{i}^{i}l_{i}^{j}$ (5010) EV13.

of $2002$ (SC) and The Attorney General of Tanzania vs. Rev. Christopher Ssemwogerere and Another vs. Attorney General, Constitution Appeal No. I $\mathbf{W} \mathbf{H}$ ( $\mathbf{W} \mathbf{H}$ ) ssəuənisnny $\mathbf{V}$ ə pun ssəuənələdu op fo ənn əyi si $\mathcal{L}$ in particular provision destroying the other but each suitables of the other. This (iii). The entire Constitution has to be read together as an integral whole with $\Lambda$ Constitutional Appeal No. 1 of 1988(SC)

legislation intends to achieve. See Attorney General vs. Salvatori Abuki, $\mathsf{OT}$ $\gamma$ the Constitutionality of either effect animated by the object the nii tabvalav ana taken into consideration. Both purpose ana effect ave velevant in (ii). In determining the $Constituting$ by legislation, its purpose and effect $($ *iuənəsnW*

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$\varsigma$ <sup>5</sup> okello John Livingstone and 6 others vs. Attorney General and another (supra)).

> (viii) The National objectives and Directive principles of state policy are olso a guide in the interpretation of the Constitution. Article 8A of the Constitution is instructive for applicability of the objectives.'

38] Secondly, the burden of proof rests with the petitioner to raise a prima facie case that a fundamental right or freedom has been contravened. Once this is established the burden shifts to the State or respondent to rebut or justiff the limitation. See Charles Onyango Obbo and Anor v Attorney General, [ 20041 UGSC 81. 10

I will be guided by the above principles when determining this petition. 15

## Analysis.

- 39] Counsel for the petitioners submitted that the I't, 4th' and 5th respondents neither lodged their answers to the petition nor served them on the petitioners. However, the record clearly shows that the 1", 4th, and 5th respondents answered the petition and the petitioner was served. This objection is therefore overruled. - 40] It is my observation that the respondent raised an independent issue regarding the jurisdiction of this Court. I will address it as the first issue before I embark on the other issues. I will consider issue one of the petition together with issue two. The remaining issues will be addressed jointly. These issues will resolve the raised grounds.

## Issue 1.

4ll As to whether this petition presents a question for Constitutional interpretation, Article 137 of the Constitution provides;

> Article 137: Questions as to the interpretation of the Constitution

L7 lPage

| 5 | (l) Any question as to the interpretation of this Constitution shall | |----|-------------------------------------------------------------------------------| | | be determined by the Court of Appeal sitting as the Constitutional | | | Court. | | | (2) When sitting as a Constitutional Court, the Court of Appeal | | | shall consist of a bench offive members of that Court- | | 10 | (3) A person who alleges that- | | | (a) an Act of Parliament or any other law or anything or done | | | under the authority of any law; or | | | (b) any act or omission by any person or authority, is inconsistent | | | with or in contravention of a provision of this Constitution, may | | 15 | petition the Constitutional Court for o decloration to that effect, | | | andfor redress where appropriate. | | | (4) Where upon determination of the petition under clouse (3) of | | | this Article the Constitutional Court considers that there is need | | | for redress in addition to the declaration sought, the | | 20 | Constitutional Court may- | | | (o) grant an order ofredress; or | | | (b) refer the matter to the High Court to investigate qnd determine | | | the Appropriate redress. | | | 42) The Supreme Court and this Court have pronounced themselves on the | | 25 | Jurisdiction of this Court. It is clear from different cases that the | | | Constitutional Court only adjudicates on matters that require | | | interpretation of the Constitution. The Constitutional Court does not | | | handle issues of enforcement except where in the opinion of the Coun it | | | would be just to give additional redress according to Article 137 (a)(a) of | | | | | 30 | the Constitution then it can consider it or refer the matterto the High Court | | | for consideration as provided for under Article 137(4Xb). See Mbabali | | | Jude v. Edward Kiwanuka Sekandi, Constitutional Petition No. 0028 | | | of2012. |

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<sup>5</sup> 431 In Ismail Serugo v. Kampala City Council & Attorney General, Constitutional Appeal No. 2 of 1998, Wambuzi CJ, held that;

> " In my view for the Constitutional court to have jurisdiclion the petition must show, on the face of it, that interpretalion of a provision of the Constitution is required. It is nol enough to allege merely that <sup>a</sup> Constitutional provision has been violated."

441 The question presented by the petitioners that Section 9(1)(d) of the Expropriated Properties Act contravenes particular Articles of the Constitution falls on all fours within the ambits of 137 (3) of the Constitution. There are questions as to the interpretation of the Constitution. The answer to issue No. I is therefore in the affirmative. The question presented by the petitioners that Section 9(l) (d) of the Expropriated Properties Act contravenes particular Articles of the Constitution falls on all fours within the ambits of 137(3) of the Constitution.

## Issues 2 and 3

- 451 The petitioners contend that Section 9(1)(d) of the Expropriated Properties Act Cap 87 is inconsistent with or in contravention of Articles 2(2), 20(l) & (2), 2l(l), (2) & (3) and 26(l)(2) of the Constitution in as far as it gives the Minister power to dispose of property of "former owners" who do not come back and reside in Uganda within 120 days from the date of approval - 461 The right to own property is one of the basic rights of the person in Uganda and therefore it must not be violated without an explicit provision of the law that is in line with the provisions of the Constitution. Article 26(l) & (2) provides;

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| 5 | (l) Every person has a right to own property either individually or | |----|-------------------------------------------------------------------------| | | in association with others. | | | (2) No person shall be compulsorily deprived of property or qny | | | interest in or right over property of any description except where | | | the following conditions are satisfied- | | 10 | (a) the taking of possession or acquisition is necessaryfor public | | | use or in the interest of defence, public safety, public order, public | | | morolity or public health; and | | | (b) the compulsory taking of possession or acquisition of property | | | is mode under a law which makes provisionfor- | | 15 | (i) prompt payment offair and adequate compensation, prior | | | to the taking of possession or acquisition of the property: ond | | | (ii) a right of access to a court of law by any person who has an | | | interest or right over the property. | | | 471 Section 9 (1)(d) of the Expropriated Properties Act provides; | | 20 | " l) Were- | | | (d)having been authorized to repossess the property or business | | | under Section 6, the former owner fails to physically return and | | | reside in Ugandawithin one hundred and twenty daysfrom the date | | | of the authorization, the Minister may make on order thot the | | 25 | property or business be retained by Government, or be sold or | | | disposed of in such manner os may be stipulated in the regulations | | | made under this Act; except that in the case of a registered business | | | or enterprise, the Minister moy, on being sotisfied that the minority | | | interests in the business or enterprise may be unduly prejudiced by | | 30 | an order made under this Section, give such other directions as he | | | or she deemsfit." | | | 48] According to Section 9(lXd) (supra), once a "former owner "fails to | | | physically retum and reside in Uganda within 120 days from the date of |

authorization, then a minister is free to make an order to dispose of the

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<sup>5</sup> said properfy. Expropriation is one of the most severe measures that can be taken regarding the right to private property because it is not just <sup>a</sup> simple limitation of the right but it leads to loss of it. This contravenes Article 26 of the Constitution cited above, which guarantees the right to property. Property ownership in Uganda is not and must not be tied to residence in Uganda. Article 26 (2) gives circumstances or justification under which this right to property could be limited, that is; the govemment can only compulsorily acquire the land, in the interest of public use, the interest of defence, public safety, public order, public morality, and public health. Additionally, there must be prompt payment of fair and adequate compensation prior to the acquisition. "Former owner t " failure to come and reside in Uganda for 120 days after approval does not fall under the described circumstances under Article 26(2). Furthermore, according to the Constitution, adequate and fair compensation ought to be paid prior to the acquisition, whereas the Act under Section 12 provides for compensation after acquisition. This is in total violation and contravention of Article 26 of the Constitution. All persons should possess a degree of security that guarantees protection against forced eviction or other threats as guaranteed under the Constitution.

> 491 On a fumher note Section 9(l)(d) is an infringement of the right of equality. Equality presupposes that all individuals have the same rights and deserve the same level of respect. This means that laws, policies, and programs should not be discriminatory. The public authorities should not apply or enforce policies, laws, and programs in a discriminatory or arbitrary manner. Article 2I(l)(2) & (3) provides that;

2L IPage

<sup>5</sup> " ( I ) All persons are equol before and under the law in all spheres of political, economic, social, and cultural lif, and in every other respect and shall enjoy equal protection of the law.

> (2) Without prejudice to clause (l) of this Article,a person shall not be discriminated against on the ground of sex, roce, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion, or disability.

> (3) For the purpo,se.s of this Article, "discriminate" means to give dffirent treatment to dffirent persons attributable only or mainly to their respective descriptions by sex, roce, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. "

50] In Carolyne Turyatemba and 4 others v. Attorney General and Anor, Constitutional Petition No. 15 of 2006, this court while explaining the meaning of discrimination and the basis of this right held that;

"On the basis of the above internationql instruments, as well as the case law on their interpretotion, and taking the Uganda Constitution ds o whole, the term "Discrimination" has come to imply a distinction, exclusion, restriction, or preference based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or another status, which has the purpose or effect of nullifuing or impairing the recognition, enjoyment or exercise by all persons, on on equal footing, ofall rights andfreedoms. See General Comment No.l8 in United Nations Compilation of General Comments, p.135 para 7;......

The prohibition ogainst discriminatory conduct is based upon the universal principle of equalin before the law. The human race es o family is characterized by the attribute of oneness in dignity and worthiness as human beings. Therefore, there ought not to be one group 30

22 lPage

<sup>5</sup> of human beings entitled to privileged treatment as regards the enjoyment of basic rights and freedoms over others, because of perceived superiority. Likewise, no group of human beings should be taken as inferior and not entitled, and be treated with hostility, as regards enjoyment to the full offundamentol rights andfreedoms.

51] The aim of non -discrimination law is to afford all individuals an equal and fair chance to access opportunities available in society. This seems not to be the case with the "former owners" under Section 9(d)(l) of the Expropriated Property Act. They do not face a degree of security of ownership against threats or eviction like an ordinary owner. Failure to come into Uganda within 120 days after approval of repossession leads to a threat of ownership. The former owner does not enjoy the same protection as an ordinary owner enjoys. This is discriminatory and is contrary to Article 2l of the Constitution . The European Court of Human Rights handling almost a similar matter in Markx v. Belgium, Application No. 6833 of 79, held that, 10 15 20

> "The Court concurs entirelywith the Commission's established case law on a crucial point, namely that Article 8 (Article 8) makes no distinction between the "legitimate" and the "illegitimate" family. Such o distinction would not be consonant with the word " everyoll€ " , ond this is confirmed by Article l4 (Article l1) with its prohibition, in the enjoyment of the rights and freedoms enshrined in the Convention, of discrimination grounded on birth."

52) Similarly, the distinction in dealing with "former owners" under Section 9(1Xd) does not resonate with the provision under Article 26 which provides that"everyone" has a right to own properfy, it is discriminatory. The European Court in the Markx (Supra) further stated that distinction is compatible with the principle of equality when it has an objective and

23 IPage

<sup>5</sup> reasonable justification which pursues a legitimate aim and there is <sup>a</sup> reasonable relationship of proportionality between the means employed and the aim sought. The argument that requiring owners of repossessed properly to come and reside in Uganda for 120 days is connected to revamping the economy is not an argument anchored in the law or any known economic principles. There seems to be no reasonable justification for a "former owner " to be treated differently from any other owner of land in this country.

53] Turning to the condition precedent of the requirement of a return to Uganda before a former owner's interest is recognized and returned, this in my view is part of the controversy. This whole act is seeking to right an injustice committed against former owners, regardless of their nationality. Is it Constitutional in light of Anicle 26 of our Constitution to deprive such former owners of 'their interest' in the property in question on account of residence albeit for only a limited period of time? Article 26(2) protects persons from deprivation of 'property or any interest in or right over property of any description.'

541 The former owners have an interest in the properties in question, even before they are issued with a repossession certificate and that is why the law has provided for the return of the said property or interest in such property to such former owners. To require somebody who was deprived of their property, compulsorily, out of no fault of theirs, without compensation, and in respect of which property you wish to right a wrong committed in the past, to first return and take up residence, either before or after issue of repossession certificate, would be to defeat their interest in that property. In my view, this infringes the right to property or interest in property protected by Article 26. It would amount to a deprivation of their interest in that property.

- <sup>5</sup> 551 The EPA was enacted before the promulgation of the <sup>1995</sup> Constitution hence its provisions must be construed in light of Article 274. Article 274 of the Constitution provides that the existing law shall be construed with such modifications, adaptions, qualifications, and exceptions as may be necessary to bring it into conformity with the Constitution. In Bukenya v Attorney General Constitutional Appeal 3 of 20ll l20l7l UGSC 18 (22 May 2017), the Supreme Court held that this Article saves laws that were enacted before the promulgation of the Constitution but that those laws have to be interpreted to bring them in conformity with the Constitution. The intention is to ensure that Courts in Uganda do not enforce any laws which are inconsistent with the Constitution. In Foundation for Human Rights Initiatives v Attorney General Constitutional Petition 20 of 2006 [20081 UGCC I (26 MARCH 2008), this court stated that any such existing law that would not confirm to the existing law would be null and void to the extent it contravenes the Constitution. 10 15 - 20 - 56] It is therefore my considered opinion that Section 9(l)(d) of the Expropriated Properties Act Cap 87 is inconsistent with Articles 2(2),20(l) & (2),21(l)(2) & (3) and26(l) & (2) of the Constitution.

#### Issues 4 to 10

57) Having considered the petition, the submissions for the petitioners, and those of the respondents, I note that herein, the petitioners complain of the respondent's acts that are in contravention ofthe Constitution. The petitioners do not seek interpretation of the Constitution. I see no facts in the petition and specifically issues 4-10 that set out circumstances that necessitate this Court to interpret the Constitution. In the circumstances of this petition, all that the 25 30

25 lPage

<sup>5</sup> petitioners did was to disclose the different acts of infringement which according to them are contrary to the Constitution.

- 58] It is my considered opinion, that not all Constitutional contraventions end up in the Constitutional Court. The declarations sought under these issues can be granted by a Court of competent jurisdiction under Article 50 of the Constitution of Uganda. These are enforcement issues and not matters of interpretation as alleged by the petitioners. According to the undisputed allegations of the I't and 5th respondents were done in Mohamed Allibhai & others v. Attorney General, Miscellaneous Causes No. 70 of 2020, ll7 of 2020, 119 of 2020, and Mohamed Allibhai vs. Attorney General, Miscellaneous Cause No. 217 of 2021. The High Court pronounced itself on these matters. - 591 When the Constitutional Court is interpreting the Constitution the Court seeks to determine the meaning of the specific Constitutional provisions. It is only where existing law, or in fact any other law vis a vis the Constitution is not capable ofjust one interpretation and there is controversy, or a question over the interpretation of the Constitution that the jurisdiction of the Constitutional Court arises, to settle the controversy or answer the question.

60] A competent Court in determining a cause is at liberty to find and pronounce itself as to whether or not such an allegation or act is contrary to the Constitution. By so doing the Competent Court is not interpreting the Constitution but rather it is determining the rights of the parties.

6ll Guided by the different decisions of this Court and the Supreme Court, the acts complained about by the petitioners do not qualifr forthe Jurisdiction of this Court. This Court can only give additional redress where such redress is dependent on the interpretation of the Constitutional, in Attorney General

26 lPage

t

a

# <sup>5</sup> v. Major General David Tinyefuza, Constitution Petition No. I of 1997, Wambuzi CJ, held that;

"in my view jurisdiction of the Constitutionol Court is limited in Article 137(1) of the Constitution to interpretation of the Constitution. Put in a dffirent way no other jurisdiction aport from interpretation of the Constitution is given. In these circumstances, I would hold that unless the question before the Conslitutional Court depends on the determination of the interpretation or construction of a provision of the Constitution, the Constitutional Courl has no Jurisdiction."

621 If as contended by the petitioners, the 2n0,3'o,4th, and 5th respondents have omitted to carry out their Constitutional duty or used the awesome power granted under EPA and under the above provisions ofthe Constitution by;

l. Usurping the Courts exclusive Constitutional mandate to investigate and cancel certificate of repossession

- 2. Ovemrling Court decisions - 3. Willfully alter /conceal official records of previously repossessed properties - 4. Alleging fraud against repossession certificate,

I am satisfied that this is a matter for enforcement of the Constitution rather than the interpretation of the Constitution. The petitioners need to bring an action before a competent Court seeking enforcement of these Constitutional provisions which the respondents have flouted.

63] It is my considered opinion that the petitioners are seeking to enforce their rights under the Constitution and their claim is not dependent on the 30 interpretation of the Constitution.

27 IPage

On costs, I am of the view that the petitioners are entitled to only 50% $64]$ $\mathsf{S}$ of the costs of this petition since they have partially succeeded.

#### **Decision**

- 1. I would declare that $S.9(1)(d)$ of the Expropriation is inconsistent with and contravenes Articles 26(1) of the Constitution of Uganda and is null and void to the extent of the inconsistency. - 2. The other declarations sought from "C to K" of the petition have been $\frac{1}{2}$ rejected because they do not necessitate interpretation. They are enforcement issues that can be brought under Article 50 before a competent Court. - 3. Regarding costs, the petitioners are only entitled to $50\%$ of the costs.

The Petition partially succeeds.

Dated, signed and delivered at Kampala this ....................................

ni UZ

**Christopher Gashirabake Justice of Appeal/Justice of Constitutional Court.**

$10$

28 | Page

#### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Gashirabake, Luswata, Kazibwe-Kawumi, & Mugenyi JJCC) **CONSTITUTIONAL PETITION NO. 37 OF 2019**

#### **BETWEEN**

- 1. ISMAILIA BUILDING COMPANY LTD - 2. MOHAMED ALLIBHAI - 3. ALDERBRIDGE REAL ESTATE AND MANAGEMENT LTD - 4. COL. CHRISTOPHER OCAYA ACELLAM .................... PETITIONERS

#### $AND$

- 1. ATTORNEY GENERAL - 2. THE DEPARTED ASIANS PROPERTY CUSTODIAN BOARD - 3. DR. BYAKATONDA ABDULHU - 4. BIZIBU GEORGE WILLIAM - 5. COMMISSIONER FOR LAND REGISTRATION ............ RESPONDENTS

#### JUDGMENT OF JUSTICE DR. ASA MUGENYI, JCC

I have had the advantage of reading in draft the judgement prepared by my Learned Brother, Hon. Justice Christopher Gashirabake, JCC. I agree with the reasoning and orders proposed.

Dated at Kampala this... $l$ . $\mathcal{L}$ .... day .... $\mathcal{A}$ ....................................

Ungen

Dr. Asa Mugenyi JUSTICE OF CONSTITUTIONAL COURT

# IN THE CONSTITUTIONAL COURI'OF UGANDA AT KAMPATA

# CONSTITUTIONAL PETITION NO.37 OF 2019

# BETWEEN

- 1. ISMAITIA BUITDING COMPANY LTD - 2. MOHAMED ATLIBHAI - 3. ALDERBRIDGE REAL ESTATE AND MANAGEMENT LTD - 4. COL. CHRISTOPHER OCAYA ACELTAM PETITIONFRS

### AND

- 1. ATTORNEY GENERAT - 2. THE DEPARTED ASIAN PROPERW CUSTODIAN BOARD - 3. DR. BYAKATONDA ABDULHU - 4. BIZIBU GEORGE WILLIAM - 5. COMMISSIONER FOR IAND REGISTRATION

CORAM: HON. JUSTICE F. M. S EGONDA NTENDE, JCC HON. JUSTICE CHRISTOPHER GASHIRABAKE, JCC HON. JUSTTCE EVA IUSWATA, JCC HON. JUSTICE MOSES KAZIBWE KAWUMI, JCC HON. JUSTICE DR. ASA MUGENYI, JCC RESPONDENTS

# JUDGMENT OF MOSES KAZIBWE KAWUMI. JCC

I have had the benefit of reading in draft the Judgment prepared my learned brother the Hon. Justice Christopher Gashirabake, JCC. I agree with the decision and orders he has proposed. I have nothing useful to add.

Dated and delivered at Kampala this Lg\* day of 2024.


Moses Kazibwe Kawumi JUSTICE OF THE CONSTITUTIONAL COURT

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

<sup>I</sup>C or am : E g ond a- N t ende, G as hir ab ake, Lu s ut at a, K azib w e - K awumi,

& Mugengi, JJCCI

## CONSTITUTIONAL PETITION NO. O37 OF 2019

BETWEEN

- 1. ISMAILIA BUILDING COMPANY LTD - 2. MOHAMED ALLIBHAI - 3. ALDERBRIDGE REAL ESTATE & MANAGEMENT LTD - 4. e,OL CHRISTOPHER OCAYA ACELLAM.............. PETITIONERS

### AND

- 1. ATTORNEY GTNERAL - 2. TIilE DEPARTED ASIANS PROPERTY CUSTODIAN BOARD - 3. DR. BYAKATONDA ABDULHU - 4. GEORGE IIIILLIAM B,IZIBV - 5. COMMISSIONER OF LAND REGISTRATION...... RESPONDENTS

## JUDGMENT OF EVA K. LUSWATA, JCC

I have had the opportunity to read in draft the judgment of my learned brother Hon. Justice Christopher Gashirabake, JCC.

I agree with him and have nothing useful to add.

\* Dated, signed and delivered at ..1 g:.. day of 9:-!fro24. TU

> EVA K. JUSTTCE OF APPE,ALI AL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[*Coram: Egonda-Ntende, Gashirabake, Luswata, Kazibwe Kawumi & Mugenyi,* JJCC.]

### **Constitutional Petition No. 037 of 2019**

#### **BETWEEN**

| Ismailia Building Company Ltd==================================== | | |------------------------------------------------------------------------------|--| | Mohamed Allibhai ==================================== | | | Alderbridge Real Estate & Management Ltd=====================Petitioner No.3 | | | Col. Christopher Ocaya Acellam =================================== | |

#### **AND**

| Attorney General ==================================== | | |----------------------------------------------------------------------|---------------------| | The Departed Asians Property Custodian Board=========Respondent No.2 | | | Dr Byakatonda Abdulhu==================== | $=$ Respondent No.3 | | George William Bazibu===================== | $=$ Respondent No.4 | | Commissioner of Land Registration======= | $=$ Respondent No.5 |

### JUDGMENT OF FREDRICK EGONDA-NTENDE, JCC

- I have had the opportunity to read in draft the judgment of our brother, $[1]$ Gashirabake, JCC. I agree with it and have nothing useful to add. - As Luswata, Kazibwe Kawumi and Mugenyi, JJCC, agree with it too this $[2]$ petition is allowed in part and dismissed in part with the orders proposed by Gashirabake, JCC.

Signed, dated and delivered at Kampala this 18<sup>th</sup> day of December 2024.

redrick Egonda-Ntende **Justice of the Constitutional Court**