Kalani v Kaur (Civil Appeal 22 of 1995) [1996] UGSC 25 (9 August 1996)

Full Case Text

# IN THE SUPREME COURT OF UGANDA

# AT MENGO

(CORAM: MANYINDO DCJ, ODER JSC, TSEKOOKO JSC)

## CIVIL APPEAL NO. 22/95

# BETWEEN

STEPHEN KALANI: APPELLANT Vs SATWART KAUR: RESPONDENT

> 17-3-9'5 (Appeal from the judgment of the High Court of Uganda at Kampala Mr. Justice Egonda-Ntende dated in H. C. C.5. No. 745 of 1993).

## JUDGMENT OF MANYINDO DCJ:

This is an appeal against the judgment of Egonda-Ntende, J , which he delivered on 17-3-95, in High Court Civil Suit No. 745/93. In that suit the appellant, who was the plaintiff, sought: (a) suit property situate at Kanjokya in Kampala comprised in Block No. 29, Plot No. 533 is his property; (b) a permanent injunction restraining the respondent, who was the defendant, from trespassing on that land; (c) cancellation of the Certificate of Repossession given to the respondent by the Minister of Finance and Economic Planning and general damages for trespass. a declaration that the

The land in question is mile land and belonged to one ABIASALI MUSISI SEMPUNGU. He was the registered owner. on 1-9-58, he leased that land to the respondent who was at the time a British Citizen, resident in Uganda, for 49 years. he built houses on the land. The respondent was expelled from Uganda by the Amin Regim-e in 1972, together with all other none-Ugandan Asian Citizens. On 13-10-77, an Instrument of surrender of the respondent's lease was registered by the Chief Registrar of Titles at the instance of the mailo owner, Abiasali Musisi bempungu. The respondent's lease was then cancelled. According to the Instrument of surrender, the respondent's lease was deemed to have been surrendered with effect from 7-7-72. The surrender was alleged to have been executed by the respondent before her departure in 1972.

Ownership of the interest in the mailo land changed hands about four times before the appellant was registered as proprietor of the same on 21-1-93. On 23-8-93, a Certificate of repossession wasissued to the respondent who had returned to Uganda. It was issued to her by the Minister of Finance and Economic Planning. On was 23-3-94, she re-instated on the register as proprietor of the land. But by then the appellant had let the property to various tenants and was collecting rent. In 1993, the appellant's tenants refused to pay rent following a letter written to them by the Departed Asians Property Custodian Board them informing that' their new Landlord would be the respondent who had repossessed the property.

According to the appellant, that was the first time he came to know of the Board's involvement in the property. That is when he decided to bring the action seeking the relief mentioned above.

His main point of contention was that the respondent having surrendered her lease, she could not in law obtain a certificate of repossession of the same property.

The respondent denied that she ever executed the alleged Instrument of surrender. It her case that upon her expulsion from Uganda the suit property vested in the Government of Uganda which placed it under the management of the Departed Asian Property Custodian Board. The Government had therefore acted correctly in granting her a Certificate of repossession of property of which she had been unjustlyher deprived. At the trial three framed for Court's determination. They were: (a) whether the respondent had surrendered her lease; (b) whether the Minister of Finance and Economic Planning was right to issue the Certificate of repossession to the respondent; and (c) what remedies if any, were available to the parties. issues were was also

After hearing the evidence of both sides and submissions of their Counsel and after considering the relevant law, the learned trial Judge came to the conclusion that the disputed property was abandoned by the respondent in 1972, was subsequently vested in the Government of Uganda by the Departed Asian Property Custodian Board Decree (No. 27 of 1973) and was thus subject to the provisions **or** the 'Expropriated Properties Act (No. 9 of 1982) which allowed the Minister concerned to issue Certificates of repossession to former owners of abandoned properties. The learned Judge also found as a fact that the respondent had never surrendered her lease to the mailo owner.

The learned trial Judge expressed doubt as to whether the Certificate of repossession could be challenged on its merits by ordinary suit such as this one to which the Minister who issued the Certificate He thought that the proper course would be to appeal against the Minister's decision under section 14(1) of the Expropriated Properties Act, but he declined to it had not been raised or argued by the parties. decide the point as is not a party.

There are four grounds of appeal, namely:-

- "(1) was expropriated by governed by the The learned trial Judge misinterpreted the law in relation to the evidenceadduced and thus erred in holding that the suit property Government and governed by Provisions of the Expropriated Proper!'• ties Act, 1932. - Having erred in holding that the suit property was governed by the provisions of the Expropriated Properties Act, the learned trial Judge erred in not making a finding that the appellant's registration was not'affected' by the relevant provisions Act. - U) The learned trial Judge erred in holding that the alleged repossession of the suit property could not be challenged by ordinary suit. - (4) erred did in not mailo The learned trial Judge holding that the appellant surrender the lease to the then owner."

At the hearing Of the appeal ground 3 thereof was abandoned as the trial Judge had not decided the point contained in that ground.

The remaining three grounds were argued together by Counsel for the appellant. The main thrust of his submission is that the evidence showed that the respondent surrendered the lease to the mailo owner so that upon her departure she had no equitable interest to vest in Government. Therefore, the Expropriated Properties Act did not apply to the suit property.

For the respondent it was argued by her Counsel that there was no surrender of the lease since no surrender document was produced in Court; that if there was a surrender the same must have been forged. It follows therefore, that the respondent's property was abandoned and accordingly vested in Government. And so the Expropriated Properties Act applied.

In my opinion this appeal must succeed for the following reasons. First, is the evidencethere of Mr. William Mukalazi ^DW2), a Registrar in the Land Registration Department, to the effect that the Certificate of Title indicated that the respondent surrendered the lease to the mailo owner in 1972. At first the Chief Registrar of Titles had refused to register the surrender as he thought that the property in question was under the management of the Departed Asians property Custodian Board.

This was contained in hi s letter dated 12-10-77, addressed to Mr. Abiasali Musis Sempungu. It reads:-

''Dear Sir,

## LRV 686 FOLIO 18 - KIBUGA BLOCK 29

### PLOT NO. 523

The lease ov«r your land is owned by the Departed Asians Property Custodian Board and, therefore, the surrender you have presented is null and void and as a result cannot be accepted."

Yours Faithfully,

# Yusufu Kagumire CHIEF REGISTRAR OF TITLES AND CONVEYANCER"

But earlier on, (on 4-10-77), the Executive Secretary of the Departed Asians' Property Custodian Board had written to Mr. Sempungu as follows

### PLOT NO. 523 OLD KIRA ROAD LRV 686/18

the Mrs. Please refer to your application requesting the Board to lodge for registration surrender instrument executed by Satwant Kaur.

and The matter has been carefully studied it has been found that the surrender inst rument is genuine.

You may therefore present Registrar of Titles it to the Chief for action.

For: J. Ssonko EXECUTIVE SECRETARY "

// That letter was copied to the Chief Registrar of Titles. Pursuant to Mr. bsonko's letter, the Chief Registrar of Titles accepted the surrender and registered it on 13-10-77, under Instrument No. 200830, but which could not be traced at the time of trial. And so the evidence of Mukalazi and Mr. Ssonko's letter clearly show that there was a surrender which was certified as genuine by the Board and duly registered. It is remarkable that witness for the respondent. Mukalazi^DW2, was a

Second, there was no allegation that the surrender had been done fraudulently. In absence of fraud the surrender would have been properly registered under sections 56 and 107 of the Registration of Titles Act. It is true that the surrender was registered some five years after execution but then there is no prescribed time within which a surrender may be registered.

Third, the suit property freely changed hands several times between 1980 and 1993 (when appellant was registered as proprietor) without interference from This the Board. shows that the Board had no interest in the property. Fourth, the appellant enjoyed quiet possession of the suit property and collected rent from his tenants for a long time. The Custodian Board never collected rent. The Board would probably not have come into the picture if the respondent had not applied for the Certificate of repossession.

Fourth, admittedly, the respondent did not, upon her departure, declare to the Government her leasehold interest in the property as required by section 2 of the Departed Asians Property Custodian Board Decree (No. 27 of 1973). This supports the view that the respondent had no such interest to declare at the time. In law the effect of a surrender is that the lease merges in the Landlord's reversion and is extinguished. See: "Megary's Manual of the Law of Real 6th Edition by David J . Hayton pages 356 -357. Since there is no time limit for the registration of a surrender I think, with respect, that the trial Judge was wrong to hold that the surrender could only take effect after its registration in 1977. In my view, interparties it became effective from 7-7-72. The absence of registration could only affect outsiders who were not aware of it; See: Somali Democratic Republic v Treon, Civil Appeal No. 4 of 1988, (unreported) where this Court held that an unregistered Instrument operates as a contract inter parties and can confer an equitable right to specific performance of the contract. Propery,"

in my view in the instant case the unregistered surrender conferred to the mailo holder a right to the reversion of the lease and extinguished the respondent's lease. The suit property had reverted to the mailo holder on 7-7-72, when the lease was surrendered. Therefore, the Expropriated Properties Act did not apply to that property which was never expropriated by Government.

in the result, appeal, set aside the j u dgm ent and Court and enter judgment for the appellant and make the following orders and declarations: orders of the High I would allow this

- (a) that the suit property belongs to the appellant; - (b) that the Certificate of repossession issued to the respondent be cancelled; - (c) that the respondent is restrained from trespassing on the said property; - Pay ' High shall in the the appellant's Court and of that the respondent costs of the suit this appeal.

DATED at Mengo This: Day 1996.

#### S. T. MANYINDO DEPUTY CHIEF JUSTICE

#### REE COURT OF UGANDA IN THE SUP

AT NEIGO

MANYINDO, D. C. J., ODER, J. S. C. & TSEKOOKO, J. S. C.) (CORAM:

## CIVIL APPEAL NO. 22 OF 1995

### BETWEEN

$\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots$ STEPHEN KALANI

$AND$

SATWANT KAUR

(Appeal from the Judgment of the High Court of Uganda at Kampala (Egonda-Ntende) dated 17.3.1995 in H. C. C. S. No. 75 of 1993)

**\*\*::::::::::::::::::::::::::::::** RESPONDENT

.. day of

APPELLANT

$\sqrt{1996}$

#### JUDGMENT OF ODER

I have had the benefit of reading, in draft, the Judgment of Manyindo, D. C. J., with which I agree. The appeal should be allowed.

I have nothing useful to add.

Dated at Mengo this

$\mathbb{E}\mathbb{R},$ SUFRE COURT JUSTICE OF

# REFUBLIC OF UGLIDA IN THE SUPRELE COURT OF UGANDA AT LIENGO

TSEKOOKO, J. S. C.) MANYINDO, D. C. J., ODER, J. S. C., (CORAM: CIVIL AFPEAL NO. 22 OF 1995

#### BETWEEN

APPELIANT $\{1,1,1,1,1,1,1,1,1,1,1,1,1,1,1,1,1,1,1,$ STEPHIN KALANI AND

$\texttt{res}: \texttt{res}: \texttt{res}: \texttt{res}: \texttt{res}: \texttt{res}: \texttt{res}: \texttt{res}: \texttt{res} \rightarrow \texttt{RESPONDENT}$ SATWANT KAUR

> ( Appeal from the judgment and decree of the High Court of Uganda at Kampala (F. M. S. Egonda-Ntende, J) dated 17th March, 1995

> > $\mathbf{IN}$

(CIVIL SUIT NO. 745 OF 1993)

JUDGMENT OF TSEKOOKO, J. S. C.,

I have had the benefit of reading in draft the judgment prepared by MANYINDO, D. C. J., and agree that this appeal should succeed.

1996 day of Y. Delivered at Mengo this.

J. W. N. TSIMOOKO, JUSTICE OF THE SUPRES COURT.