Kyaligonza and Another v Kanja and Others (CIVIL APPEAL NO. 76/2004) [2010] UGCA 57 (11 October 2010)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

CORAM:

$\mathsf{S}$

Twinomujuni, Byamugisha& Kavuma JJA.

## CIVIL APPEAL NO. 76/04

### **BETWEEN**

$10$

1. MATAYO KYALIGONZA

2. RUMINA INDUSTRIES LTD::::::::::::::::::::APPELLANTS

### AND

- 1. KANJI KALIDAS KANJA - 2. GONVINJI KANJI RAJA - 3. RASIKLAL KANJI RAJA

4. RAMESHCHANDRA KANJI RAJA::::::::::::RESPONDENTS $20$

[Appeal from the judgment and decree of the High Court of Uganda sitting at Kampala (Ntabgoba PJ) dated 17<sup>th</sup> November, 2003 in HCCS No.603/97

$25$

# JUDGMENT OF BYAMUGISHA, JA.

This is an appeal from the orders and decree of the High Court wherein the respondents' suit was allowed with costs.

The facts material to this appeal which are contained in the joint conferencing memorandum filed in this court on 16<sup>th</sup> April are the following. The respondents filed HCCS No 643/97 against the appellants claiming recovery of land comprised in LVR 4 Folio 20 which they had repossessed under the

Expropriated Properties Act. The respondents' interest in the land was nullified 35

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by the re-entry entered on l" December 1985 by the lessor, Badru Kakungulu. After the re-entry, Kakungulu subdivided the mailo interest and sold parts thereofto the appellants rvho becarne registered proprietors on l0'r'December 1987.

- ,10 On 22nd November 1995 the Chief Registrar of Tittes cancelled the re-entry and re- instated the lease. On 3'd September 1996 the respondents were issued with a certificate of repossession by the Minister of Finance and the next day they were registered as proprietors under the provisions ofthe Expropriated Properties Act. After the exercise of repossession and registration the respondents inade - attempts to regain possession ofthe suit property but this was resisted by the appellants and, as a result, the respondents filed a suit in the High Court which was determined in their flavour. 45

Being dissatisfied with the decision, the appellants filed an appeal in this court. The tbllowing issues were agreed upon for our determination;

- 50 l. Whether the suit property was subject to and affected by the provisions of the Expropriated Properties Act. - 2. Whether upon being issued rvith a certificate of repossession, the respondents were legally entitled to repossess the suit property. - 3. Whether the appellants have any legal defence against the said entitlement of the respondents to repossess the suit property.

Both counsel filed written arguments and made oral submissions. Mr Kiboneka, learned counsel for the appellants submitted that the learned trial judge failed to distinguish between a leasehold interest which is held by the respondents and the mailo interest which is held by the appellants. He referred to section $2(2)$ (a) of the Expropriated Properties Act and claimed that law does not touch the mailo interest but the interest held by Asians at the time of expropriation. He pointed out that at the time of repossession the re-entry had been cancelled and the appellants were lessors in possession without notice of the existence of the respondents' claim in the suit property.

It was counsel's submission that upon registration of the certificate of repossession, the provisions of the Expropriated of Properties Act ceased to apply and the property become subject to the provisions of the Registration of Titles Act (RTA).

- On the third issue, counsel submitted that at the time of repossession the $70$ appellants were in possession of the suit property and therefore *section* 176 of the RTA applies to the suit property. This section according to counsel operates as an absolute bar to any action of ejection against a registered proprietor. He cited the decision of the Supreme Court in the case of *Erukana Kuwe* - *vVasrambhai Damji Vader- Civil Appeal No.2/02* for his contention. $75$ He prayed that the appeal be allowed.


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Ivlr Nkurunziza lctrrned counsel for the respondents opposed the appeal. He submitted that the ExpropriatiglProperties Act cloes not apply to the mailo

- 80 reversionary interest. FIe stated that if a mailo orvner does any act r.vhich r.vould affect the interest of the leaseholclct', the act of the urailo olvner vvoulcl bc subject to the provisions of the Act. I Ie citcd the case of Noorditt Chtraniu Walji v Drake ,Senttkulo- SCCA No.40/9-l to supporl his argument. FIc pointed out that the intention ot the Act rvas remedial to lacilitate the return of - 85 expropriated propertics and thereiore the provisions of the R'IA r.vould take a secondary role. Hc Jistingui:;hcd the case of Kuwe which rvas cited by Mr Kihoneka in that tlrc: forrner orvner took possession and sublet the properly without the consent ol the mailo orvner and he also lailed to pay grounrl rent l he mailo o\\ner gave noticc ternrinating the lease and he granted a lease to the - 90 occupants olthe property. I'he former owncr filed a suit in thc I{igh {Jourt seeking relief a.qainst forl'eiture among other relicfs. 'l'he claim was defeated by the provisiorrs of the R'l-z\.

ln the present appeal. counsel stated, the respondents have been prevented from benefiting from the cenificate ofrepossession and wcre entitlcd to seck

95 protection from court

He invited court to dismiss the appeal

There is no dispute in the instant appeal that the sr-rit property was expropriated by the Govemment. Section I (2) (b) of thc Iixpropriated Properties Act reads:

"Where any property affected by this section was at the time of its 100 expropriation held under a lease or an agreement for a lease, or any other specified tenancy of whatever description and where such lease, agreement for a lease or tenancy had expired or terminated the same shall be deemed to have continued, and to continue in force until such property has been dealt with in accordance with this Act." 105

The provisions of this section mean as I understand them that any tenancy like the respondents had, would remain in existence until the Minister has dealt with the property in accordance with the provisions of the Act. The Minister dealt

- with the suit property when he issued a certificate of repossession in favour of 110 the respondents. Whatever dealings had been carried out on the suit property by the mailo owner were nullified by section $1(2)$ (a) of the Act. - I do not agree with the submission of Mr Kiboneka that the moment the Minister issued a certificate of repossession to the respondents, the provisions of - the Expropriated Properties Act ceased to apply to the suit property. The process 115 of repossession is completed when the former owner regains physical possession of the property otherwise the issuance of the certificate of repossession would be a futile exercise.

The appellants have no legal claim in the suit property except of course their

reversionary interest which will accrue to them at the expiry of the lease or if 120 the respondents commit a breach that would entitle the appellants to exercise their rights under the lease. A lease who has not committed any breach of the lease terms is entitled to exclusive possession of the property leased.

Consequently the respondents are entitled to possession of the suit property.

$\mathsf{S}$

I would dismiss the appeal with costs both here and in the High Court. I would 125 uphold the judgment and orders of the High Court which granted possession of the suit property to the respondents.

Dated at Kampala this.... $\frac{1}{2}$ ....................................

$\mathbf{t}$

C. K. Byamugisha **Justice of Appeal**


# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

TWINOMUJUNI, BYAMUGISHA &S. B. K. KAVUMA,JJA CORAM:

# CIVIL APPEAL NO. 76/04

## **BETWEEN**

## 1. MATAYO KYALIGONZA

2. RUMIINA INDUSTRIES LTD::::::::::::::::::::::::::::::::::::

AND

- 1. KANJI KALIDAS KANJA - 2. GONVINJI KANJI RAJA - 3. RASIKLAL KANJI RAJA - 4. RAMESHCHANDRA KANJI RAJA:::::::::::::::::::::::::::::RESPONDENTS

[Appeal from the judgment and decree of the High Court of Uganda sitting at Kampala (Ntabgoba PJ) dated 17<sup>th</sup> November, 2003 in HCCS No.603/97]

# JUDGEMENT OF S. B. K. KAVUMA, JA

I have read in draft the judgment prepared by C. K. Byamugisha, JA.

I concur. ...this .................................... Dated at.. $S. B. K. KA$ JUSTICE OF APPEAL


### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA HON. JUSTICE S. B. K. KAVUMA, JA

### **CIVIL APPEAL NO. 76/04**

## **BETWEEN**

## 1. MATAYO KYALIGONZA 2. RUMIINA INDUSTRIES LTD....................................

## AND

1. KANJI KALIDAS KANJA

2. GONVINJI KANJI RAJA

3. RASIKLAL KANJI RAJA

4. RAMESHCHANDRA KANJI RAJA.......... RESPONDENTS

[Appeal from the judgment and decree of the High Court of Uganda sitting at Kampala (Ntabgoba, PJ) dated 17<sup>th</sup> November, 2003 in HCCS No.603/97]

### **JUDGMENT OF TWINOMUJUNI, JA:**

I have had the advantage of reading the judgment, in draft, of her Lordship Hon. Justice C. K. Byamugisha, JA. I concur and I have nothing useful to add.

Dated at Kampala this $15$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{J}$ $\mathcal{$

Hon. Justice of the monitoring and USTICE OF APPEAL