R. M. Patel and Others v Attorney General and Others (Civil Suit 54 of 1995) [1998] UGHCLD 2 (4 August 1998)

## THE REPUBLIC OF UGANDA

!»

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. OF 1995

PLAINTIFFS R. M. PATEL &. 2 OTHERS

#### -versus-

DEFENDANTS JUSTICE J. H. NTABGOBA ATTORNEY GENERAL & 2 OTHERS ::::::::: BEFORE:- HON THE PRINCIPAL JUDGE - MR.

# RULING

This appears to me to be a simple case which has been so maginified as to appear to be complex. The brief facts which constitute the background of the suit are as follows: The four plaintiffs appearing in the original plaint which has been twice amended were the registered proprietors of the suit property described as LRV. 118 Folio 7, otherwise known as Plot No. 4 Fort They were the proprietors when in 1972, As a result, the suit property was taken over for administration by the Departed Asians Property Custodian Board (DAPCB) (the present second defendant). The only function of the DAPCB was to administer the properties and businesses of the DAPCB has no role to play under the Expropriated Properties The Act, 1982 which vests over all powers in the Minister to deal with the properties of businesses as aforementioned. Departed Asians until the Minister of Finance (by whatever title then called) would deal with such properties or businesses. Road in Kampala. they were expelled.' by Idi Amin during his so called Econonic War Laws.

The dealing in such properties and or businesses could be the return of them by a certificate of repossession or by otherwise selling them to third parties or by deciding to hold them jointly with the Government e.t.c. The dealing in such properties by the Minister is stipulated under Sections 3 to 8 of the Expropriated Properties Act.

When the custodian Board was administering the suit property, it sold it to one Sebastian Bamutura on 18.9.80 before the passage of the Expropriated Properties Act (hereinafter to be referred to simply as "the Act"). Bamutura, on 20.9.80 sold the $\mathcal{L}$ property to one Christopher Mubiru who, in April, 1982, still before the coming / force of the Act, mortgaged the property to Grindlays Bank (U) Ltd. He subsequently defaulted in the loan payment and the Bank sold the property to a Company known as Rio Holdings International, Ltd (the 3rd defendant) at a public auction.

It is not disputed by any side that the transactions between the DAPCB and Sebstian Bamutura, that between Bamutura and Christopher Mubiru, that between Mubiru and Grindlays Bank (U) Ltd and finally the sale under the mortgage by the Bank to $\mathcal{D}$ the third plaintiff, were nullified by S. $1(2)(a)$ of the Act. What did the nullification mean? It simply meant that the property reverted to Government and could be dealt with by the Minister pursuant to the provisions of the Act.

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It is said that, in an apparent legalisation of the sale of the property to the third defendant, the Minister did, on 15.11.92, under S. 8 of the Act, issues a certificate of purchase to the third defendant. Issuance of a certificate of purchase by the Minister is one of the ways the Minister, under the Act, can deal with an Expropriated property such as the present suit property. Another of such ways is to issue a certificate of repossession to the departed asianowner.

Whether the Minister disposes of the property by issuing 16 a certificate of repossession; whether he does so by granting a certificate of purchase, his action is liable to a challenge by appeal to this Court pursuant to S. 14 of the Act. The appeal, according to Regulation 15 of the Expropriated Properties (Repossession and Disposal) Regulations, 1983, must take the form of an ordinary suit. It must be brought (i.e. filed in Court) within 30 days of the date on which the Minister's decision (i.e. or not to issue to issue/a repossession certificate or to grant a certificate of purchase e.t.c.) is communicated to the applicant.

In the instant case, it is said that the certificate of purchase was issued to the third defendant on 15.11.92 (see the certificate which is annexture "B" to the second amended It is pleaded in paragraph 14 of the 2nd Amended plaint). Plaint that the plaintiffs applied for a Repossession Certificate but the "application was rejected by the DAPCB (2nd defendant) that the property had already been sold by the second defendant".

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reasons: Kampala Institute This is the point at which Mr. Edward Sekandi, learned Counsel for the said in the case of the Registered Trustees of -vs- Departed Asians Property Custodian Board . [£) (Supreme Court Civil Appeal No. 21 of 1995), that there was no cause of action against his If I may dispose of this point first, I agree with Mr. Sekandi that there is no cause of action against the DAPCB, for a number of First of all, the DAPCB (2nd defendant) has no role to play under the Act, since it is not in dispute that the suit property is subject to the provisions of the Act. As Wambuzi, C. J. second defendant came in when, in his preliminary point, he said, client.

" It was not shown that the respondent has the power or legal capacity to grant a repossession certificate".

Under the Act. The second respondent (defendant in this case) cannot be defaulted with failure to issue <sup>a</sup> certificate when it has no power or legal capacity to issue it. Therefore it was out of a misconception for the plaintiffs to have pleaded in paragraph defendant on the ground that the property had already been sold (to another party) by the second defendant. 14,of their plaint that "when the plaintiffs applied to repossess the suit property their application was rejected by the 2nd

and applications Minister. If the plaintiffs applied to the second defendant for a repossession certificate as paragraph 14 of the plaint does imply, then they wrong party, since only the Minister had the power applied to a legal capacity to grant the repossession certificate and all for such a certificates must be addressed to the

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If the reply to the plaintiffs had been addressed to them, if not by the Minister, by the Verification Committee, I would have agreed with the contention of the plaintiff because the Verification Committee was the Committee set up by the Minister to assist him in disposing of the properties of Departed Asians.

Secondly, as I have already stated the purported sale of the suit property to Sebastian Bamutura was nullified by S. 1(2)(a) of the Act which enacted:-

**10** of title to land, property or business and the passing or transfer of such title it is hereby declared that:- " For the avoidance of doubt, and notwithstanding the provisions of any written law governing the conferring

of whatever kind in, hereby nullified". (a) any purchases, transfers and grants of, or.any dealings such property or business are

well as the sale of it by the Bank to the third defendant, were 'The sale by Bamutura to Christopher Mubiru, and the mortgaging of the suit property by Mubiru to Grindlays Bank (U) Ltd, as

nullified by the Act upon its entry into force. What did It meant that upon the coming into E. Sekandi on wrong party this mean, in legal terms? of the Act, the suit property reverted to Government and force available for disposing of by the Minister under Sections It is in those circumstances was 3, 4, 5> 6, 7 and 8 of the Act. that I uphold the preliminary objection made by Mr. behalf of his client, the second defendant that it was the to have been sued.

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**(C&**

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I dismiss this suit as against the DAPCB for disclosing no cause of action. The plaintiff is ordered to pay costs to the Departed Asians Property Custodian Board.

I now revert to the action as against the first and third defendants. I have already held that the issuance of the Act is one of the ways by which the Minister may dispose Section 8 provides that "Where, a certificate of purchase to the third defendant under S. 8 of of an asset of Departed Asians.

- (a) a former owner of any property or business does not apply <sup>|</sup> £) for repossession within the period specified under S. 3 of this Act, or - (b) the Minister is not satisfied with the application made under S. 3 of this Act, or - (c) negotiations under sub-section (1) of S. 4 of this Act fail, or

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(d) having been authorised to repossess the property or business under S. 5 of this Act, the former owner fails to physically return and reside in Uganda within a period of one hundred and twenty days from the date of such authorisation,

the Minister may make an order that the property or business be retained by Government, or be sold or disposed in such manner as may be stipulated in the Regulations made under this Act:—

In this case we are told that the plaintiffs (i.e. former owners) applied for a certificate of repossession.

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It is not apparent from the record when they made their application. It is also said that instead of authorising the plaintiff to repossess the suit property, the Minister issued a certificate of purchase to the third defendant on 15.11.92. Mr. Bamwine, learned Counsel for the plaintiff, in one of his arguments said this about the Minister's issuance of a certificate of purchase to the 3rd defendant:-

**11** The Minister's involvement on the suit property seems to be on the illegal certificate of purchase which he signed on 15.11.92 purporting to have sold the property to Rio Holdings. But even the Minister did not inform or communicate to the plaintiffs that purported decision".

In his submissions, however, Mr. Bamwine avoids blaming the Minister for having issued the certificate of purchase to Rio Holdings International, Ltd (the 3rd defendant). Counsel must be action (in issuing the certificate of purchase) then the suit must have inevitably been brought as an appeal under S. 14 of the Act and Regulation 15 of the Regulations thereunder made. doing this on realisation of the contradiction brought about by his client's suit. Contradiction in that if it was the Minister's Counsel realises that he cannot argue that the suit was such an appeal because he knows that it was filed much outside the period of 30 days stipulated in S. 14 of the Act.

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rST"...... ### 8

And so, Counsel decides to argue that the suit was brought as an original suit against the Custodian Board (the second defendant). This is why he argues in paragraph 14 of the plaint that:-

n When the plaintiffs applied to repossess the suit property their application was rejected by the 2nd defendant on ground that the property had already been sold by 2nd defendant—

In one of his submissions, Counsel said:-

**IO** " The plaintiffs' case is an original suit based on the major complaint that their application for repossession of the suit property was rejected by DAPCB because it had been sold by the DAPCB in 1980. This is contained in the DAPCB, letter dated 26.8.1992. Paragraph 14 of the 2nd Amended plaint pleads the rejection of the application by DAPCB-- ".

certificates under Sections 3-6 of the Act; even if it had communicated to the plaintiffs about the sale of the suit that the Act nullified the purported sale of the suit property to Bamutura and that similarly, the transactions over the suit I have already said that the DAPCB, has no power, legal or otherwise, under the Act, to receive applications for repossession property to third defendant, such communication would be quite irrelevant and ineffectual. I have said, and need not repeat, property culminating in the sale by public auction to Rio Holdings International, Ltd.by Grindlay Bank (U) Ltd, were nullified by the Act when it did came into force.

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I must proprietary interest in the suit property. It is not disputed that such alienation was done on 15\*11.92. From the facts on record the alienation was ; ; communicated to the plaintiffs through Ms. Mamtaz Kassam in the letter of the verification committee dated 10th September 1995 and which appears on record as Annexture <sup>G</sup> of the plaintiff'<sup>s</sup> original plaint filed 25th **o** January 1995- The reality of the matter should have been for the plaintiffs to appeal against the Minister's decision to issue the certificate of purchase. The appeal should have been filed within 30 days from the 10th day of September 1995> was notified of the Minister's decision, which was adverse to the proprietary interest of the plaintiffs. say that after all these analyses, the plaintiffs should have been concerned about the action of the Minister in issuing the certificate of purchase to Rio Holdings International Ltd, which legally alienated the plaintiffs' the date on which Ms. Mamtaz Kassam on behalf of the plaintiffs <sup>i</sup>

comes a I agree with Mr. Madrama, learned counsel for the Attorney General (the first defendant) that the role of this Court, as far as the Expropriated Properties Act is concerned, into play only when it functions as an appellate Court sitting in appeal brought under S. 14 of the Act. This Court's jurisdi- *:* ction does not otherwise arise under the Act in a matter, for instance, such as Counsel for the plaintiff contends comes as first action,-at least not in the instant case.

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Without further belabouring the points, I do dismiss the action of the plaintiff brought against the first and third defendants. It is misconceived and incompetent. I order that the plaintiffs shall pay the first and third defendants's Costs.

Before I take leave of this matter, I feel I should say something about the plaintiff's alternative plea for compensation. Naturally, compensation would have arisen if I had held that all the declarations prayed for in the plaint (paragraph 21) were answerable in the affirmative. I am, however, only able to answer in the affirmative prayers:-

- (a) that the suit property is subject to the provisions of the Expropriated Properties Act, 1982. - (b) that the sale of the suit property to Sebastiano Bamutura and Christopher Mubiru were nullified by the Expropriated Properties Act. - (c) that the mortgage of the suit property to Grindlay Bank (U) Ltd was illegal, null and void as per the Expropriated Properties Act.

I am, however, unable to declare that the sale of the suit $2D$ property to the third defendant was illegal, since I do not know under what circumstances such sale took place. To declare as requested in paragraph 21(d) of the plaint would be condemning the Minister unheard since he could be accorded an opportunity of being heard only if his decision to issue a certificate of purchase was appealed pursuant to S. 14 of the Expropriated Properties Act.

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accorded opportunity, through appeal under S. 14 of the Similarly, I decline to condemn certificate of Purchase No. 0065 as being illegally issued since the Minister was never Expropriated Properties Act, to justify the issuance of the certificate.

karate myself--^ Kampala Institute -vs- Departed Asians Property Custodian Board (Supra) where he held at page 11 that " I would decline to give which may be against the interests of persons or authorities who I decline to grant the order prayed for in paragraph 21 (f) that the certificate of Purchase No. 0065 be cancelled. a declaration regarding entitlement to a repossession certificate are not party to these proceedings". As for the prayer in paragraph 21(g) of the plaint, I do not wish to interfere with the statutory discretion of the Minister. In this regard, I wish to -&esee±ate myself^with S. W. W. Wambuzi, |£) 0. J.^ixu-hi-s-decision in the case of Registered Trustees of

I find it instructive what H. Platt JSC said in the same case in his judgment at page 15 when he said:-

n I would not wish to fetter the Minister's discretion whether or not to order possession in case other considerations still apply".

As properly Finally, of course, in view of my other decisions above, no mesne profits are payable nor even damages, to the plaintiffs, for compensation they can only be paid if the claim were brought under the Act and addressed to the relevant person or persons, and such provisions certainly exist but were not taken advantage of>

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$12$ The suit stands dismissed with Costs as already decided. Present when Judgment is delivered re: Mr. Banuvine Bernard for the planting Hon & Sexandi for the second 10 respondent Mr. Buvule for Bret det. Attorney General not represented. Ms: Johy Kamma, r Cleberk 4Klac.

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 54 OF 1995**

# **R. M. PATEL & 2 OTHERS PLAINTIFFS**

## **VERSUS**

### **ATTORNEY GENERAL & 2 OTHERS DEFENDANTS**

### **ORDER**

This suit is coming up for further hearing today before Hon. The Principal Judge Mr. Justice J. H. Ntabgoba in the presence of MR. Bernard Bamwine counsel for the Plaintiff, Mr. Buwule for the 3rd Defendant and Mr. Ssekandi for the 2nd /£> Defendant.

Upon hearing submissions of counsel for the defendants seeking a dismissal of this suit with costs and upon hearing counsel for the Plaintiff.

IT IS HEREBY ORDERED that the suit stands dismissed with costs.

DATED this .. A/t day of ,1998.

We approve

COUNSEL FOR PLAINTIFFS

*)* DEPUTY REGISTRAR

**DRAWN BY: Buwule** & **Mayiga Advocates** 29A Nkurumah Road, 1st Floor Give & Take House P. 0. Box 9516, Kampala Tel: 344746/251044 Fax: 344749 Bm/CV/95/059