Registered Trustees of Kampala Institute v Departed Asians Property Board [1994] UGSC 18 (1 August 1994)

Full Case Text

IN THE SUPREME COURT OF UGANDA

## AT MENGO

WAMBUZI, C. J., ODOKI, J. S. C., PLATT, J. S. C.) (CORAM:

CIVIL APPEAL NO.21/93

BETWEEN

REGISTERED TRUSTEES OF $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$ KAMPALA INSTITUTE

AND

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD **EXAMPLE 11: :::::::::::::::::::::::::::::::::**

> (Appeal from the judgment and decree of the High Court of Uganda at Kanpels (Mr. Justice G. M. Okelle) dated 10th May 1993 in Civil Suit NO. 610 ef. 1992)

JUDGMENT OF WAMBUZI, C. J.

$\mathcal{L}$

光谱

The appellants are the registered trustees of the Kampala Institute which was a members' club originally for the Gaza'community in Uganda but which later became multiracial. In 1972 membership of the club was largely Asiam and most of the members and trustees left the country as a result of the expulsion of the Asians by the Military Regime of the day.

M The club had land in Kampala held on a lease in the name of the appellants on which stood the club house and recreation grounds. After the explusion of the Asians, **三山区** 17年1月 the government took over the property under the management of the Departed Asians Property Custodian Board, the respondent in this appeal. The club houge was used as a mess for Benior

In 1983 the appellants applied for re-possession of the property under the Expropriated Properties Act, 1982 but their application was rejected on the ground that the lease under which the appellants held the property had expired and the property had reverted to Kampala City Council, the controlling authority.

The appellants brought a suit in the High Court against the respondent seeking declaratory orders that,

- The Expropriated Properties Act, 1982 applied 1. to the property; - $2.$ The appellants were entitled to a certificate of repossession; and - A permanent injuction restraining the defendant $3.$ from interfering with the suit land.

The learned judge in the court below held that the Expropriated Properties Act of 1982 did not apply to the case and that the appellants were not entitled to the reliefs sought. The appellants brought this appeal on 9 grounds.

The first ground is that the learned judge erred in law in finding that the Expropriated Properties Act did not apply to the suit property. This appears to be the main ground and all the other grounds are different aspects of this ground as will appear later in this judgment.

From the pleadings the case in the court below was follows. Paragraphs $6, .7$ and 8 of the plaint stated,

"6. In 1972, the Military, Government expelled the Asian community from Uganda en masse foreing most of the Institute's members including members of the board of trustees, to the country. The Government of Uganda subsequently took over the plaintiff's property by force, the defendant assuming the management thereof and up to this day, the plaintiff's club house is being used as the prisons officers' mess.

On the passing of the Expropriated $7.$ Froperties Act in 1982, the plaintiffs applied to the defendant for the return of their properties on 12th May 1983.

After a prolonged verification process that took about nine years, the defendant re-routed the plaintiff's application to the defendant 'New Desk'. set up especially for dealing with the properties of Uganda citizens, where the defendant proceeded to summarily reject the plaintiffs' application on the grounds that their lease bad expired and the land had reverted to the controlling authority .............."

In its written statement of defence the respondent

replied as follows in paragraphs 3 and 6,

- $113.$ Paragraph 2 is admitted only in so far as the defendant is entrueted by law with management of Departed Asians' properties but denies the rest of the allegations contained therein. - $\mathsf{G}_{\bullet}$ In answer to paragraphs $9$ and $10$ of the plaint, the defendant will contend that it only had valid management powers ever the suit property before the lease thereon expired and thereafter lost or relinguished management and/or control over this property to the controlling. authority concerned and therefore rejecting the application was proper and justified since the defendant had no legal authority or powers to deal with the suit property."

Four issues were framed and in ny view the main issue was the second issue framed as follows,

"Whether the suit property was acquired by the Military Regime so as to bring it under the provisions of the Exprepriated Properties Act, 1932."

On this issue the learned trial judge hold,

"Section 1 (1) (c) of the Expropriated Properties A ct appears to be wide. It appears to cover properties in whetever manner appropriated or taken over by the Military Regime. This provision was considered in Gandesha's case above. The interpretation given of the extent of that section in that case was that it covered only properties which were lawfully acquired by the Military Regime. I agree with that interpretation. $\n \mathbb{R}^{\mathbf{or}}\n$ a property to be convered under section $l(1)$ (c) of the Expropriated Properties Act, it must have been appropriated or taken over by the Military Regime either under section 4 of Decree 27/73 or acquired under Decree 11/75 or by the Custodian Board under section 12(2) of Decree 29/73.

In the instant case, the Act of $4/12/72$ when the armed prisons officers took over the suit land could not fall under any of the provisions mentioned above. It was therefore an illegal act. The ownership of the property was not established to be Asian. That illegal act had no legal consequence. The property of the plaintiff was not lawfully acquired and the Expropriated Properties Act 1982 was not applicable to it."

As far as I can gather from the judgment in Gabriel Juma Lutaya Vs Gandesha and Kampala Estates Limited Civil Buit 860 of 1982, the plaintiff Lutaya claimed to be a lawful tenant by allocation of expropriated property who was entitled to quiet enjoyment of the property until the property was returned to the owner or otherwise disposed of under the Expropriated Properties Act, 1982. He claimed various reliefs against the two defendants, an individual and a company.

$\frac{1}{2}$

The learned Chief Justice who tried the case framed three issues as none were framed by the parties. I set down only the first two issues as the third is not material to this appeal. The two were,

- $n_{1}$ Who owns the shares of the 2nd defendant and therefore plot $2/2B$ Kampala Road wherein the disputed businesses are situate? - Was the property of the 2nd defendant, more particularly plot 2/2B Kampala $2.$ Road taken over during the Military . . . . . . . . . . . . . . . . . . . . Regime?

As regards issue one the learned Chief Justice found that the first defendant, Gandesha, and his wife owned the second defendant, the company, Kampala Estates Limited, which in turn owned the suit property.

As to the second issue the learned Chief Justice gave a brief history of the Decrees passed during the military regime and found as a fact that the property of the first defendant was not vested in the Custodian Board because he was a Ugandan whose property could not have been taken over under the legislation and that the property of his wife could not be taken over either, because it was not proved that she was of Asian origin, extraction or descent. As the two, husband and wife, owned the second defendant, the property of the second defendant was not taken over.

These were the findings necessary for this decision in that case. However, the learned Chief Justice went on to say in his judgment,

> "The third point relates to the interpretation of the phrase 'in any other way

(NO. 9 of 1982). It was submitted, rather seriously to my surprise, for the plaintiff that the expression means any kind of taking over preperty during the Military Regime. I would have thought it an elementary point of law that every act authorised by the law pre-supposes the legal and lawful way of doing that thing, so that even if the qualifying adjective 'lawful' or 'legal' is omitted it is to be read in the action proposed. I find no difficulty in holding that in the instant phrase the word 'lawful' or 'legal' must be understood to be implied so that the fuller restatement of the phrase would read: 'in any other lawful or legal way appropriated or taken over by the Military Regime.'

To think otherwise would be in my view tantamount to authorising and unleashing all manner of illegal taking of property. Surely the law cannot authorise what it seeks to prevent."

The learned Chief Justice went on to conclude,

"It is therefore my view that any one who wishes to bring any kind of appropriation or taking over of property during the Military Regime as falling under section $1(1)(c)$ of the Expropriated Properties Act, 1982 must show that the appropriation or the taking over of that property was, in the first place, lawful."

In paragraphs 2, 3, 4, 5, 6 and 7 of the memorandum of appeal in the case before us, the appellant complains in effect that the learned trial judge,

- $(a)$ erred in law in finding that the Expropriated - Properties Act applied only to the properties previously taken over under the Assets of the Departed Asians Decree; - $(b)$ misconstrued the appellants' counsel's argument on the Expropriated Properties Act;

- misdirected himself in law when he found that $(c)$ properties to which the Expropriated Properties Act applied had to be Asian owned; - $(d)$ erred in law by limiting the application of section $1(1)(c)$ of the Expropriated Properties Act: and - $(e)$ failed to take into account the purpose and intention of the legislature in enacting the Expropriated Properties Act.

I think there is merit in all these complaints. After dealing with the submission of counsel for the respondent on the interpretation of section 1 of the Expropriated Properties Act in the lower court the learned trial judge commented as follows.

$\odot$

"He (Mr. Byenkya) argued that section $1(2)$ of the Expropriated Properties Act, 1982 did not limit the application of the Act so long as the property was taken over by the Military Government in whatever manner. That the incident of $\frac{4}{1272}$ fell squarely within the meaning of section $1(1)$ (c) of Expropriated Properties Act, 1982 which covers any form of appropriation ....

From the above arguments of both counsel, it is fairly clear to me, that both counsel agreed that properties or business to which Expropriated Properties Act, 1932 applied were those had first been vested in the Government under the Assets of Departed Asians Decree 27/73 and later under the same Decree re-vested in the Custodman Board for management. I share that view."

Clearly the agreement is far from what Mr. Byenkya is recorded as having said and it was, with respect, a misdirection on the part of the learned trial judge on l e a r n e d cour u o m i s s i o n

Be t h a t A c t , 1 9 8 2 p r o v i d e s

- - v e s t e d in the G o v e r n m e n t a n d t r a n s f e r r e d to t h e D e p a r t e d A s i a n s P r o p e r t y C u s t o d i a n B o a r d u n d e r t h e A s s e t s of the D e p a r t e d A s i a n s 'D e c r e e , 1973? - a c q u i r e d by t h e G o v e r n m e n t u n d e r t h e 'P r o p s r t i e s a n d B u s i n e s s ( A c q u i s i t i o n ) D e c r e o , 1975, - in any o t h e r w a y a p p r o p r i a t e d or t o k e n o v e r by t h e M i l i t a r y R e g i m e s a v e p r o p e r t y w h i c h h a d b e e n a f f e c t e d b y t h e p r o v i s i o n s of the r e p e a l e d N a t i o n a l T r u s t D e c r e e , 1971,

s h a l l f r o m the c o m m e n c e m e n t of t h i s Act, r e m a i n v e s t e d in t h e G o v e r n m e n t a n d be m a n a g e d b t h e M i n i s t r y of F i n a n c e . "

w h i c h i n d i c a t e t h e i n t e n t i o n o£ t h e L e g i s l a t u r e

''A n Act t o p r o v i d e for t h e t r a n s f e r of p r o p e r t i e s a n d b u s i n e s s e s a c q u i r e d or o t h e r w i s e e x p r o p r i a t e d d u r i n g t h e m i l i t a r y r e g i m e to the M i n i s t r y of F i n a n c e , to p r o v i d e f 6 r t h e r e t u r n to f o r m e r o w n e r s or d i s p o s a l of the same b y - G o v e r n m e n t a n d to p r o v i d e f o r o t h e r m a t t e r s c o n n e c t e d t h e r e w i t h o r i n c i d e n t a l t h e r e t o . "

L e a r n e d c o u n s e l a l s o r e f e

" 'Former Owner' means and includes, any person who was either the registered owner or proprietor of any real or movable property in Uganda or was a shareholder in a business or enterprise registered in Uganda and who was either expelled or forced to flee from Uganda during the period of the Military Regime or was in any other way dispossessed of such property or business; and anybody who is the legal heir or successor of such person,"

" 'Military Regime' means the Government in power during the period from 25th January, 1971 to 3rd June, 1979."

Learned counsel argued that the intention of the Legislature as indicated in all these provisions was to correct what had gone wrong, that is, the acquisition $or$ taking over of properties or businesses or even dispossession of any person who was either expelled or forced to flee Uganda between January 25th, 1971 and 3rd June, 1979. Learned counsel went on to say that the Act categorises the properties in paragraphs (a) (b) and (c) of section $1(1)$ . He submitted that the appellantis case came within the provisions of paragraph (c) which as worded covers property appropriated or taken over in whatever manner.

In the Gandesha case, which was followed by the learned trial judge, the learned Chief Justice considered in detail the properties which were vested or were acquired under the Assets of Departed Asians Decree, 1973, the Properties and Businesses(Acquisition) Decree, 1975 and other Decrees passed I think that the learned Chief Justice by the military regime. properly directed himself on the law that the plaintiff in the case before him who claimed that the defendant's property had been taken over and vested in the Custodian Board, a fact which was denied by the defendant, had to show under what law the property had been taken over as alleged. The intention of the relevant legislation in the period indicated, 25th January, 1971 to 3rd June, 1979, was to take over certain property. The taking over had to be legal or lawful or within the law.

On the other hand the Expropriated Properties Act, 1982 was not intended to take over any property but to return property taken over which was described in section 1 of the Expropriated Properties Act, 1982. In my view and with respect the learned Chief Justice in the Gandesha case misdirected himself on the law. The issue before him was not whether the suit property should be returned under the Expropriated Properties Act, 1982 but whether it was appropriated under the legislation passed by the military regime which the learned Chief Justice so carefully analysed. Interpretation of section $l(1)$ of the Expropriated Properties Act, was, in my view, not necessary to the Gandesha decision and clearly wrong principles were applied.

On the meaning of section $l(1)$ of the Act the trial judge in the case before us although he followed the Gandesha case, observed,

> "Section $l(1)$ (c) of the Expropriated Properties Act appears to be wide. appears to cover properties in whatever

$10$

F o r t h e r e s p o n d e n t it. w a s a r g u e d b y ijlr\* M a l o b a t h a t p a r a g r a p h (c) of s e c t i o n 1 (1 ) m u s t be c o n s t r u e d e ^ u s d o m p;enorlr. p a r a g r a p h (a) a n d (b)\* He s u b m i t t e d t h a t the p h r a s e "in any o t h e r w a y a p p r o p r i a t e d or t a k e n *xryev* b y the M i l i t a r y R e g i m e 1' p r e ~ s u p p o s e s a p p r o p r i a t i o n or t a k i n g o v e r by t a w as in p a r a g r a (a) a n d (b)\* He f u r t h e r a r g u e d t h a t t h e e x p r e s s i o n " r e m a i n s v e s t e d i n t h e G o v e r n m e n t " in the s e c t i o n m e a n s t h a t s u c h p r o p e r t y m u s t h a v e b e e n v e s t e d in t h e G o v e r n m e n t in the \ f irst p l a c e i n o r d e r t o r e m a i n V e s t e d ,

? .

**..11**

I a m n o t p e r s u a d e d by any of t h e s e a r g u m e n t s . F i r s t of all p a r a g r a p h (a) of s e c t i o n 1 (1) of the A c t r e f e r s to f p r o p e r t y v e s t e d i n the G o v e r n m e n t a n d t r a n s f e r r e d to the D e p a r t e d A s i a n s P r o p e r t y C u s t o d i a n B o a r d . It war, t h e r e f o r e n o t v e s t e d i n t h e G o v e r n m e n t i m m e d i a t e l y b e f o r e the c o m m e n c e m e n t o f t h e Act. P a r a g r a p h (b) of the s e c t i o n r e f e r s to p r o p e r t y a c q u i r e d b y the G o v e r n m e n t u n d e r the P r o p e r t i e s a n d B u s i n e s s e s ( A c q u i s i t i o n ) D e c r e e , 1 9 7 5 w h i c h may or m a y i . n o t h a v e b e e n v e s t e d in the G o v e r n m e n t \* P a r a g r a p h (c; r e f e r s t o p r o p e r t y i n any o t h e r w a y a p p r o p r i a t e d or t a k e n o v e r b y t h e M i l i t a r y R e g i m e w h i c h c o u l d n o t h a v e b e e n v e s t e d in t h e M i l i t a r y R e g i m e w h i c h w a s n o m o r e b u t m u s t h a v e b e e n v e s t e d d o m e w h e r e . U n d e r s e c t i o n 1(1) all t h e s e p r o p e r t i e s i n ( a ) ? (b) a n d ( c ) 5 s h a l l , f.??£!m the co-ntrncnccmiauii of t h i s A c t " w h e r e v e r t h e y w e r e v e s t e d i m m e d i a t e l y b e f o r e su c h c o m m e n c e m e n t " r e m a i n v e s t e d i n the G o v e r n m e n t a n d be m a n a g e d b y t h e M i n i s t r y of F i n a n c e . " I a m u n a b l e to r e a d into t h e s e p r o v i s i o n s a n y s u g g e s t i o n t h a t t h e p r o p e r t i e s

Secondly I don not think the ejusdem generis rule applies in this case. Paragraphs $(a)$ , $(a)$ and $(c)$ of section 1(1) are quite distinct and speak for themselves. The wording in paragraph (c) is quite clear and given their gramatical construction, the words, "in any way appropriated or taken over" must mean whether by law as in paragraph (a) or (b) or not and in the context of the various provisions referred to, property the former owners of which may have been merely dispossessed may come under this paragraph. Having regard to the evil intended to be cured by the Legislature which is deprivation of former owners of their properties appropriated or taken over or of which they were dispossessed by the Military Regime, any other interpretation would defeat the purpose of this legislation. In the instant case, the evidence indicates quite clearly that the suit property was forceably taken over and used to date may still be used by the Government. It is absurd to suggest that because the taking over was illegal, the property in effect cannot be returned and the Government should continue using it.

In my judgment the suit property in the case before us comes within the provisions of section $l(1)$ (e) of the Expropriated Properties Act, 1982 and it follows that section $1(2)$ (b) of the Act applies to continue in force the expired lease until the property is dealt with under the Act. I would, therefore, allow the appeal and set aside the judgment and Decree of the High Court and substitute therefor judgment in favour of the appellants

11-1 the Thomas and don't Drama.

It was not shown that the respondent has the power or legal capacity to grant a re-possession certificate. Accordingly I would decline to give a declaration regarding entitlement to a re-possession certificate which may be against the interests of persons' or authorities who are not a party to these proceedings.

ASTANDE SEMPLEIVA

I would give the appellante coster hore and in the cort halow.

As both Odoki and Flatt JSC agree with the proposed orders, it is so ordered.

were day of August. lst Delivered at Mengo, this ...

> S. W. W. WAMBUZI CHIEF JUSTICE

> > **拉森拉卡姆**

I CERTIFY THAT THIS IS. A TRUE COPY OF THE ORIGINAL.

ISTRAR SUPREME COURT.

#### IN THE S U P R E M E C O U R T OF UGANDA

### A T . M B K G O

(CQ&iMs Y/AMBUZI., C. J., OD'OKI, J. S. O., 5c P U T T , J.3. C)

# C x T i L A P P E A L N O . 21 OF 1993

### B E T W E S N

RE G I S T E R E D TRUSTEES OF ........... ........... . APPJELLANT K A M P A L A INSTITUTE

### A N D

THE D E P A R T E D ASIANS .................... ............ R E S P O N D E N T P R O P E R T Y C U S T O D I A N BOARD

> (Appeal from the Judgment and Decree of the High Court o f Uganda at Kampala (Mr. Justice G\*M\* Okello) d-J;ed 1 0 t h May, 1993).

## HIGH C O U R T C I V I L SUIT 110, 6l0^ OF 1992

J-UDGMii. NI j. LA T T . J . S . C .

The real issue on this appel is w h e t h e r the i n t e r p r e ta t i o n g i v e n in G A & t l E L L U I ^ iYA^ys UCviNlJA, H i g h C o u r t Civil Suit NO. *860* of 1962, b y the High Court of Uganda, relating, to s e c t i o n 1 ( l ) (c) of The Ex pro.y r i oted Pr o p e r t i es ..c».t 19q2 w a s correct. It is a w e l l - k n o w n d e c ision w h i c h has stood for m a n y years, and has a t t r a c t e d considerable sympathy. N e v e r t h e l e s s Mr. Byenkya, (learned Counsel for the A p p e l l a n t ) has. ch a l l e n g e d it. The l e a r n e d High Court Judge, u n d e r s t a n d a b l y f o l l o w e d it, and as it w a s the o p inion of M a s i k a C. J,, the le a r n e d Judge could h a r d l y have done otherwise. /

The facts f o u n d b y the learned Judge, w h i c h w e r e p l l w i t h i n the n a r r a t i v e of the events giving rise to this sui.t, are */* as f o l l o w s

Cap. 147), held the premises at Plot NO.1 and Plot NO. 38 Buganda Road for members of what was originally the Goean Club, a Non- profit making Club. There were a Tennis Court and Badminton Court on Plot NO.1 and the Club house was on Plot NO. 38. $\perp$ n 1968, the Club opened to all races, and presumably became the Kampala Institute. Nevertheless, most of the members and Trustees of the Club remained Goeans. After the expulsion of Non-citizen Asians from Uganda in 1972, the Prisons Department of the Ministry of Internal Affairs took over the premises by force of arms, and converted the Club House into a mess for the Senior Officers of the Prisons service.

The learned Judge then made the following findings:-

"Following that take-over by the Government of the day of the suit land the Management thereof was vested in the Defendant Custodian Board".

This probably followed the admission in paragraph 6 of the written statement of defence, namely:-

> "the Defendant will contend that it only had valid management powers over the suit property before the lease thereon expired, $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots$

That is an important admission since the Defendant Board called no evidence in its defence. Paragraph 6 then continues:-

> "and thereafter lost or relinguished management and/or control over this property to the controlling authority concerned......"

Consequently, the defence is set up that the Plaintiff's prayers could not be granted, because the Defendant had no power to deal with the suit property after the lease of the property terminated.

The learned Judge had noted that the Flaintiff held the suit property on a lease for 49 years as from 18th July,

It follo w e d that the lease f e l l in on 1 7 t h July, 19^1\* Hence f r o m December, 1972 to J u l y 19&1, the D e f e ndant Board w a s in control of the property in question. But if the E x p r o p r i a t e d Properties Act 19\$2 applied, the lease w o u l d be r e v i v e d by virtue of section 1 (2 ) (b) of that Actj and in a n y event, the De f e n d a n t Board has a lways been in control in fact u p to the time of trial.

The l e a rned Judge then ended his n a r r a t i v e b y saying that in 1983 the Plaintiff a p plied to the D e f e n d a n t under the provisions of the E x p r o p r i a t e d Properties Act 1 9o 2 for posses sion of the suit premises,. Bat the d e f e ndant o b j e c t e d to this a p p l i c a t i o n on the g r o u n d that the lease h a d expired, a n d the land h a d r e v erted to the controlling authority. Accordingly, the Plaintiff brought this suit, and h aving b e e n unsuccessful, brought this appeal.

The f i r s t issue w h i c h the l e a r n e d Judge h a d set h i m s e l f to decide, w a s w h e t h e r the Bxpro p r i a t e d Pro perties A c t 1932, a p p l i e d to the suit premises? That issue d e p e n d e d to a large extent on issue NO. 2, w h e t h e r -the p r o p e r t y in q u e s t i o n had b e e n a c q u i r e d b y the M i l i t a r y Regime so as to bring the takeo v e r u n d e r the p r o v i s i o n s of the E x p r o p r iated Properties Act 1 9 8 2 . D e p e n d i n g on the a n s w e r to those f i r s t two issues, a d e c i s i o n could bo m a d e xriiether the Plaintiff w a s e n t i t l e d to r e p o s s e s s the suit premises. I n the end, the l e a r n e d Judge h e l d that the P laintiff's p r o p e r t y had not b e e n l a w f u l l y acquired, and thus the S x p r o p r i a t ed Properties Act 1 9^2. did not apply. I n c o n c l u s i o n he h e l d that the D e f e n d a n t n e v e r had had a n y legal basis f o r m a n a g i n g the suit premises. It h a d been m a n a g i n g the suit p r e m i s e s i l l e g a l l y f r o m the beginning, inspite of its a d m i s s i o n in paragraph 6 of the defence.

Hence, the D e f e ndant was e n t itled to r e j e c t the Plaintiff's a p p l i c a t i o n for repossession\*

The Plaintiff's case on a p p e a l w a s that the learned Judge w a s w r o n g in each one of his conclu s i o n s on the law. It m a y be that g r o u n d 1 summed u p the case in alleging that the Expropriated, Pr opertie s Act d i d a p p l y to the suit premises. But the remaining g r o u n d s e x p l a i n the A p p e l l a n t / P laintiff's case. The arguments are t h a t it '/as w r o n g to f i n d that the E x p r opriated Proper t i es. Act a p p l i e d only to p r o p e r t i e s p r e v i o u s l y t a k e n over under the a s s e t s o f D e p a r t e d Asians. Decree N O. 27 of 1973> There had b e e n no argreement by C o u n s e l at the trial that that w a s the case(grounds 2 a n d 3). A g a i n it w a s w r o n g to hold that the p r o p e r t i e s e x p r o p r i a t e d had to be A s i a n owned, (ground 4)\* The Judge h a d been w r o n g to import the provis i o n s o f t h e D e c r e e NO. 27 of 1973 into the clear w o r d s of s e c t i o n 1(1) (c) of t h e Sxpr o p r la t e d\_ \_Prp p e r t i e s Act, or t w o r d " l a w f u l l y" into the provisions of that section. That c o n t r a v e n e d the principles of s t a t u t o r y interpretation, a n d m o r e — o v e r t h a t interpretation f a i l e d to take account of the purpose a n d intent of the legislature in 19&2, (ground 5\* 6, a n d 7). On a proper c o n s t r u c t i o n of the section, the Defendaxfifc w o u l d have a u t h o r i t y to m anage the suit land, (ground 8), Finally, the D e f e n d a n t h a d not been j u s t i f i e d in r e f using to grant a c e rtificate of r e p o s s e s s i o n ( g r o u n d 9). The A p p e l l a n t / P l a i n t i f f w o u l d therefore a s k for two declarations; one, that the Act of 19&2 a p p l i e d to the suit premises| a n d two, that the A p p e l l a n t is e n t i t l e d to the suit premises, M r . B y e n k y a v e r y p r o p e r l y s u p p o r t e d his a r g u ments b y authority, f o r w h i c h the Court w a s g r a t e f u l .

It will be convenient to set out the provisions of the Expropriated Properties Act 1982 to which I will refer in future as "The Act of 1982".

$\mathbf{v}_{1\bullet}$

Revesting of properties in Government,

Decree NO. 27 of 1973

Decree NO. 11.

- (1) any property or business which was, - (a) vested in the Government and transferred to the Departed Asians Property Custodian Board under the Assets of Departed Asians Decree 1973. - $(b)$ acquired by the Government under the Properties and Business (acquisition) Decree 1973, - (c) in any other way appropriated $\frac{1}{2}$ or taken over by the Military Regime save property which had been affected by the provisions of the repealed National Trust Decree, 1971.

Shall, from the commencement of this Act, remain vested in the Government and be managed by the Ministry of Finance".

When the learned Judge referred to the "Government of the day", he did so advisedly, because "Military Regime" is defined in section $17$ of the Act of 1982 as:-

> "Military Regime" means the Government in power during the period from 25th January, 1971 to 3rd June, 1979".

It is instructive to refer to the preamble of the Act of 1982: a course of action supported by $A_{\bullet}G_{\bullet}$ vs Prince ERNEST OF HANOVER (1957) A. C. 436: at p. 461), as Mr. Byenkya pointed $out :=$

> "AN ACT to provide for the transfer of properties and businesses acquired or otherwise expropriated during the Military Regime to the Ministry of Finance, to provide for the return to former owners or disposal of the same by Government and to provide for other matters connected there with or incidental thereto". Reading that preamble with section 1 of the Act of 1982, it $\cdot$ must follow that two types of property were being dealt with. The fist type, included all those properties, and businesses acquired - which must refer to section 1 (1) (a) and (1) (1) (b): and the second, those cases called "otherwise expropriated" which must refer to sub-section $(1)$ $(1)$ $(c)$ e.g "in any other way Cappropriated or taken over by the Military Regime......" These properties were all to be returned to their former owners.

The learned Judge explained his interpretation in the following words:-

$\overline{1}$

"Section 1(1) (c) of the Expropriated Fro erties act appears to be wide. It appears to cover Properties in whatever manner appropriated or taken over by the Military Regime. This provision was considered in Gandesha's case above. The interpretation given of the extent of that section in that case was that it covered only properties which were lawfully acquired by the Military Regime. I agree with that interpretation. For a property to be covered under section 1 (1) (c) of the Expropriated Properties Act, it must have been appropriated or taken over by the Military Regime either under section 4 of Decree 27/73, or acquired under Decree $11/75$ or by the Custodian Board under section 12(2) of Decree 29/73.

In the instant case, the act of $4/12/72$ when the Armed Prisons Officers took over the suit land, could not fall under any of the provisions mentioned above. It was therefore an illegal act. The ownership of the property was not established to be The property of the Plaintiff was not lawfully acquired and the Expropriated Properties Act 1982 was not applicable to it."

That decision followed from LUT. AYA vs G. NDESHA, High Court Civil Case No. 860 of 1982 (unreported, except in HCB (1986) 46.), where the learned Chief Justice explained his point of view in the following way:-

> "The third point relates to the interpretation of the phrase "in any other way appropriated or taken over by the Military Regime" occurring in section 1 (1) (c) of the much celebrated

$\mathsf{G}$

Expropriated Frogerties Act (Act NO.9 of 1982). It was submitted, rather seriously to my surprise, for the Plaintiff that the expression means any kind of taking over property during the Military Regime. I would have thought it an elementary point of law that every act authorised by the law presupposes the legal and lawfull way of doing that thing so that even if the qualifying adjective "lawful" or "legal" is omitted it is to be read in the action propsed. I find no difficulty in holding that in the instant phrase the word "awful" or "legal" must be understood to be implied so that the fuller restatement of the phrase would read: "in any other lawful or legal was appropriated or taken over by the Military Regime" To think otherwise would be, in my view, tantamount to authorising the unleashing all manner of illegal taking of property. Surely the law cannot authorise what it seeks to prevent.

Suppose, for the sake of argument, an individual or even an official agitated by malice but using government trappings were to dispossess another person of his property and suppose that pursuant to that objective threats or actual violence were to be directed to that individual with such intensity that the owner of the property were forced to flee the country whereupon the malicious originator of the threats or violence were to grab either personally or using some government machinery and property whose owner is not longer around, would such appropriation or taking over be construed as the kind envisaged under S. $1(1)(c)$ of the Expropriated Property Act, 1982?

Clearly not. For what difference would it make if anirate neighbour were to hire thugs to force his neighbour to flee the country and thereafter use a government machine to take over the property of the owner who is out of the country! Examples are to be endless and in the Military Regime days what sounds fiction today might have been everyday reality. To mymind it matters not that the appropriation was by Government or an individual. What counts is whether the taking was authorised by the law.

The learned Counsel for the Defendants referred to Statutory Instrument NO.69 of 1978 which expropriated Flot Nos.1 and 3 Kimathi Avenue and Plot $NO.7$ Portal Avenue under the Land Acquisition Act as exaples of the property which is envisaged under S. $1(1)(c)$ of the Expropriated Proprietes Act (Act NO. 9 of 1982). I respectfully agree. To this example I may now add such prperties and businesses which were vested in Aband and Dand but not subsequently

business I earlier referred to as lying in abeyance. It is possible that there are other examples which do not readily come to my mind.

It is therefore my view that anyone who wishes to bring any kind of appropriation or taking over of property during the Military Regime as falling under S. $1(1)(c)$ of the Expropriated Properties Act, 1982 must show that the appropriation or the taking over of the property was, in the first place, lawful."

It will now be clear that Mr. Byenkya has very adequately challenged every suspect of the learned Judge's understanding of section $1(1^1(c))$ of the Act of 1982, while Mr. Maloba (representing the Custodian Board) has repeated the arguments of Masika and submitted others to deal with the status of Trustees.

It may be convenient to start with an examination of section $1(1)(c)$ 's actual terms. The first canon of Construction must ve that the words should be given their plain meaning. What is the ordinary meaning of:-

"(c) in any other way appropriated or taken over by the Military Regime........

Those words would normally mean that the appropriation or taking over of property by the Military Regime in (1) (c) would be different from the preceeding approprations or taking-over in $(1)(a)$ and $(1)(b)$ .

The ordinary meaning, therefore, of section $1(1)(c)$ would be that there was some appropriation in another way other than that of vesting property in the Government and transfer to the Custodian Board under Decree NO.27 of 1973; or acquisition under Decree NO. II of 1975; or as the learned Judge added, section 12(2) of Decree 29 of 1973. What would the position be, if a property had been expropriated and vested in the Custodian Board although the above Deamond did not

The expropriations of the property in s e c t i o n l(l)(a) and l(l)(b) can be said to have been carried out u n d e r a Decree- of the State w h i c h represented what, is c a lled a "lav/ful" e x p r o p r i a t i o n at- that time. It appears that the interpretation o f section l(l)(c) w o u l d offer two p o s s ibilities at least; the first, that the other w a y to acquire p r o p e r t y w o u l d be via some other legislation other than the Decrees r e f e r r e d to in l(l)(a) a nd l(l)(b); and the second, by some -let not h a v i n g a basis in those Decrees or a n y other Decree w r i t t e n law.

*t*

As far as the a r g u m e n t before this Court went, no other l egislation was r e l i e d upon. But M a s i k a C. J, g i v e s two examples; first, property a c q u i r e d under the Land A c q u i s i t i o n Act NO.14 of 1965\* and secondly, p r o p e r t i e s and b u s i n e s s e s w h i c h were vested in the aband o n e d Board, but not subseq u e n t l y r e v e s t e d in the C u s t o d i a n Board on the r e p e a l of the f ormer Board, and w h i c h proper t i e s and businesses, Jfeslka C. J. d e s c r i b e d as lying in obeyance.

**a s** both i n t e r p r e t a t i o n s are contended for, a n d p o s s i b l y b o t h are feasible, are there a n y indications, in the Act that one or other of these c o n t e n t i o n s is p r e f e r a b l e ? A n o t h e r w a y of s t a ting the p r o b l e m is to inquire w h e t h e r the e i u s c e m generis rule applies, and if so, to a s k w h a t genus has b e e n e s t ablished? Do sections 1 ( l ) (< ) and l ( l ) ( b ) establish a type of e x p r o p r i a t i o n d e p e n d a n t upon a d ecree or o ther legislation, or d o e s the preamble to the A c t e s t a b l i s h that the a i m is t o .return p r o perty e x p r o p r i a t e d by the M i l i t a r y R e gime? M a s i k a C. J. could not a p p a r e n t l y conceive of a p p r o p r i a t i o n s by the M i l i t a r y Regime, except those that were s a n c t i o n e d by a decree o f that Regime. It is difficult, to see w h y -

"••♦•♦♦•Every Act, a u t h o r i s e d by law presupposes the legal and lawful w a y of doing that thing so that even if the q u a l i f y i n g adjective " l awful:f or "legal" is omitted it is to be read in the a c t i o n p r o p o s e d"

I f t h a t w e r e so, m i s t a k e s made b y Government or its officers, could n e v e r be cured, by d e e m i n g t h e m to have been c a rried out properly, o r d e eming them to have b e e n c o m p leted by or a f t e r a specified time. W h e n an officer has acted w i t h o u t j u r i s d i c t i o n by some mistake, as occurs f a i r l y frequently, it m a y be that, the l e g i s l a t u r e w i l l v e s t j u r i s d i c t i o n in h i m after the event by r e t r o s p e c t i v e legislation. It is a g ainst the u s u a l canons of c o n s t r u c t i o n to add words w h i c h are not there, unless there is a n e c e s s i t y to do so. The w e l l —knoivn w o r d s of Lord Bramwell come to m i n d w h e n he said

> ;,?hc words of a statute n ever should in xn t e rprotation be a d d e d to or s u b s tracted f r o m w i t h o u t a l m o s t a necessity"\*

(COtfPER— E 3 e E X vs A C T I O N L. B. (l&\*9) 14 App, Case. 153 atp.l 6 9 ) . As a g a i n s t such an addition, there are several other precepts to be c onsidered.

This is a remidial statute; it is putting right w h a t the l e g i s l a t u r e in 19&2 thought had been u n f o r t u n a t e l y d e c r e e d or done a d e c a d e earlier. It w a s a i m i n g at r e t u rning p r o p e r t y to the f o r m e r o w n e r s . Such a n Act should be given a liberal i n t e r pretation. (See D A P U E TO vs W Y L I E, Th-j Pieve S. UPSRIO/lE (l#74) G. R, 5P. C 4 & 2 ? CPuiIES or S T A T U T E L;iW, 7 t h Ed. p. *±8 5).* This at t i t u d e a l s o fits in this case, w i t h the M i s c h i e f Rule w h i c h m a y also be called the "Rules in Hey d c n \_t\_s C a s e M w h i c h w a s r e f erred to us. A n a p t example m a y be found in the views of L o r d R e i d in

"It is a l w a y s proper to construe a n a m b i g u o u s w o r d or phrase in the light of the m i s c h i e f w h i c h the provision is o b v i o u s l y d e s i g n e d to prevent and in light of the r e a s o n a b l e n e s s of. the c o n sequences w h i c h f o l l o w f r o m g i v i n g i t a p articular c o n s t r u c t i o n "\*

A p p l y i n g those principles to the present case the m i s c h i e f w a s the e x p ropriation of property, and the r e m e d y w a s that it should be r e t u r n e d to the previous owners. Those e x p roprations m i g h t be sanctioned by d e c r e e f or carried out i n f r i n g i n g a decree. Having in m i n d that this Act w a s to r e d r e s s the expropriations, w o u l d it not be strange to r e m e d y w h a t could be d o n e u n d e r a decree, and provide no r e m e d y f o r an e x p r o p r i a t i o n w h i c h infringed a d e xree?

M a s i k a C. J, t h o u g h t the latter course of a c t i o n w o u l d unleash a g reat n umber o f cases, w h i c h ought p r o p e r l y to be the source of l i t i g a t i o n b e t w e e n the previous o wners a n d those who u n l a w f u l l y e x p r o p r i a t e d the property. But the s a v i n g limit there, is that the a p p r o p r i a t i o n m u s t have been the a c t of the M i l itary Regime, If the M i l i t a r y Regime did n o t e x p r o p r i a t e a particular property, M a s i k a C. J. w o u l d be right to extent.

There is one f u r t h e r a r g u m e n t to be. d e a l t w i t h concerning the. Land A c q u i s i t i o n Act, a n d the properties in a b e y a n c e . Neither C o u n s e l have e x p l a i n e d their s tand on these m a t t e r s . It w o u l d seem. that. Mr. Byenkya d i d n o t agree that; a n y o t h e r legisl a t i o n w a s a v a i l a b l e to f a l l u n d e r section l(l)(c). X d o u b t w h e t h e r the L and A c q u i s i t i o n A ct w o u l d fall under the terms of the Act of 1932. The d e c r e e s u n d e r w h i c h p r o p e r t y v'?:-: fcaki-a a w a y f r o m A s i a n owners d i d not involve paying compensation, W h e r e property h a s been a c q u i r e d for public use on payment of compensation, it does not s e e m t'.hAt-. flnw .... - - - -

the 2c.'' of 19\$2, Would tb^c previ o u s owner on r e c e i v i n g his **p.** o p e r t y r e p a y the compensation paid? Nor w o u l d it s e e m that e v e n if there are some, further examples of s t a t u t o r y expropriation, that section l(l)(c) could only be c o n fined to them, w h e n e v e r the M i l i t a r y Regime has expropriated property, that, should in principle be remedied Vy the Act o f 1 9 3 &

L e t it be the case, for the sake of arguments, t h a t Mr, Jfeloba is right f r o m his point, of view, that the D e c r e e s of 1973 and 1 9 7 5 could not have been operated to take ever the erstwhile G o a n Club, yet it w i l l not avail h i m of a n y d e f e n c e on a b r o ader i n t e r p r e t a t i o n of section l(l)(c). The q u e s t i o n that n o w falls f o r consideration, is w h e t h e r on the facts, the M i l i t a r y Regime took over this property?

There can be very little d oubt t h a t it did. Armed' Senior Prisons O f f i c e r s invaded the Club, t h e y took it over, a n d as the D e f e n d a n t admitted, it w a s v e sted in the Board, w h i c h had the care r-nd c o ntrol of the premises, . Nothing turned on the w o r d " v e s t i n g". T h a t s i m p l y m e a n t e n t e r e d in the D e f e n d a n t's books. It w a s used as ehe Officers Mess, and has been in such use u n t i l v e r y recently. It is v e r y difficult to conclude t h a t the M i l i t a r y Regime d e fined as the Government of the day, d i d not k n o w of, or d i d not sanction this a c t i o n a g a i n s t the Club, w h i c h used the promises for so long. To be under the c o n t r o l of the Board, is a clear s i g n that the Regime had e x p r o p r i a t e d the property# The Prisons Officers were s e r v a n t s *of* the Government, and the p r o p e r t y w a s used as G o v e r n m e n t Property,

/ 1 3 ...

• The conclusion t h a t I have reached t h e r e f o r e is that section l(l)(c) applied to the Club Premises.

The latter was h e l d on a lease w h i c h e x p i r e d in 1981, But by virtue of s e c t i o n 1 (2 ) (b) of the Act of 1982, such lease w o u l d have been c o n t i n u e d in force, u n t i l s u c h p r o perty had been dealt with u n d e r the Act of 1982, T h a t e n t i r e l y d i s p o s e s o f the defence, that the Defendant, had no f u r t h e r c o n trol o or the property, because such c o n t r o l had passed to the Kampala City Council. The Defendant Board w a s still in co ntrol at the hearing o f the case.

Turning then to the d e c larations sought; I w o u l d grant the first d e c l a r a t i o n that section l(l)(c) a p p l i e d to the property, I w o u l d not w i s h to fetter the M i n i s t e r's d i s c r e t i o n w h e t h e r or not to o r d e r posses s i o n in case other consid e r a t i o n s st i l l apply, I w o u l d t h e r e f o r e a l l o w the appeal, I w o u l d s e t a s i d e the Judgment a n d d e c r e e of the Hi^h Court, a n d substitute therefore judgment for the Plaintiff f o r the first declaration, sought, I w o u l d leave o p e n the second declaration, I w o u l d agree w i t h the orders p r o p o s e d by M y Lord the C h i e f Justice

D e l i v e r e d at Mengo, t h i s 1 st d a y of August, 1994.

# H. G. P U T T f Jo S. C

1 C E R T I F Y TH-,T THIS IS A TRUI C O P Y OF THE ORIGINAL.

J.. MUftuNGXRA. FOR: R E G I S T R A R S U P R E M E C O U R T

IN THE S U P R E M E COU R T OF UGANDA

#### A T' M E N G O

( CORAM: V7AMBUZI C. J., ODOKI,. J. S. C. & PLATT, J. S. C. )

### C I V I L A P P E A L NO 21 OF 1993

# BETWEEN

R E G I S T E R E D TRUSTEES OF K A M P A L A I N S T I T U T E ........... A P P E L L A N T S

# AND

D E P A R T E D ASIA N S P R O P E R T Y C U S T O D I A N B O A R D ........... R E S P O N D E N T

(Appeal f r o m the j u d g m e n t o f the High Co u r t of Uga n d a (Okello J) d a t e d 10th May, 1993

Civil Suit NO 6 l O O F 1992)

#### J U D G M E N T OF ODOKl J S C :

I have had the b e n efit o f reading, in d r a f t the C u *\ (ji* tC J judgments prepared by l.'arrfbuzi C J , / a n d I agree that this a p p e a l m u s t succeed.

There is no d o u b t that the main issue in this a p p e a l is w h e t h e r the learned judge w a s correct in h o l d i n g that the E x p r o p r i a t e d Properties Act 19\$2 did not a p p l y to the suit property, o r i g i n a l l y owned b y the appellants, and ta k e n over by the m i l i t a r y r e g i m e and m a n a g e d by the r espo n d e n t . The learned jud^e h e l d that the Act did not a p p l y to the suit prope r t y b e c a u s e the a p p r o p r i a t i o n or talcing over by the Prisons D e p a r t m e n t w a s u n l a w f u l and t h e r e f o r e could not come w i t h i n the p r o visions of Section 1 (l) (c) of the Act. S e c t i o n 1 (l) of the A c t provides, " (1) Any property or business which was,

- (a) vested in the Government and transferred to the Departed Asians Property Custodian Board under the Assets of Departed Asians Decree 1973, - (b) acquired by the Government under the Properties and Business (Acquisition) Decree 1975, - (c) in any other way appropriated or taken over by the Military Regime save property which had been affected by the provisions of the repealed National Trust Decree this 1971,

shall, from the commencement of this Act, remain vested in the Government and be managed by the Ministry of Finance"

In coming to his decision the learned judge said,

"Gection 1 (1) (c) of the Expropriated Properties Act appears to be wide. It appears to cover properties in whatever manner appropriated or taken over by the Military Regime. This provision was considered in Gandesha's case above. The interpretation given of the extent of the section in that case was that it covered only case was that it covered only properties which were acquired by the Military Regime. I agree with that interpretation. For a property to be covered under Section 1 (1) (c) of the Expropriated Properties Act, it must have been appropriated or taken over by the Military Regime either under section 4 of Decree $27/73$ , or acquired under Decree 11/75 or by the Custodian Board under Section 12 (2) of the Decree 29/73.

In the instant case, the act of $4/12/72$ when the armed prisons officers took over the suit land could not fall under any of the provisions mentioned above. It was therefore an illegal act. The ownership of the property was not established to be Asian. That illegal act had not legal consequences. The property of the plaintiff was not lawfully acquired and the Expropriated Froperties Act 1962 was not applicable to it".

It is clear from his judgment that the learned Judge heavily relied on the decision of the High Court in Cabriel William Juma Lubaaya V. H. G. Gandesha & Another, Civil Suit

NO.860 of 1982 where Masika C. J. held that anyone who wishes to bring any kind of appropriation or taking over of property during the Military Regime as falling under $\ldots. \beta \ldots.$

Section 1 (1) (c) of the Expropriated Properties Act 1982 must show that the appropriation or taking over of that property was, in the first place, lawful. This interpretation has far reaching implications and must be seriously reconsidered. The learned Chief Justice reasoned.

"The third point relates to the interpretation of the phrase "in any other way appropriated or taken over the the Military Regime" occurring in $S.1$ (1) (c) of the much celebrated Expropriated Properties Act (Act NO. 9 of 1982). It was submitted, rather seriously to my surprise, for the plaintiff that the expression means any kind of taking over property during the Military Regime. I would have thought it an elementary point of law that every act authorised by the law presupposes the legal and lawful way of doing that thing so that even if the qualifying adjective "lawful" or "legal" is omitted it is to be read in the action proposed. I find no difficulty in holding that in the instant phrase the Word "lawful" or legal must be understood to be implied so that the fuller restatement of the phrase would read: "in any other lawful or legal way approperiated or taken over by the Military Regime" To think otherwise would be, in my view tantamount to authorising and unleasing all manner of illegal taking of property. Surely the law cannot authorise what it seeks to prevent"

Mr. Byenkya learned counsel for the appellant submitted that the above interprotation of the phrase "in any other way appropriated or taken over by the Military Regime" was erroncous. He contended that the learned Chief Justice was wrong to read the word "lawful" or "legal" into the Section relyin; on the authorities of Thomson V. Gould (1910) AC 409 and Vikaers V. Evans (1910) AC 444. He argued that as it can be seen from the preamble (long title) of the Act, the purpose of the statute was remedial and it must therefore be interpreted liberally. He cited Dapueto V. James Willie $\alpha$ Wyllie & Co (1874) L. R. 5 PC 492, Attorney General V. Prince Krnest Augustus of Hannover (1997) AC 436 and Gokaldas Laxnudas Tanna V. Rosemary Muyanja Civil Appeal NO 12/92, in support of his argument.

....../4....

Finally counsel submitted, that the mischief rule of interpretation supported his contention.

On the other hand Mr. Muloba learned counsel for the Respondent supported the interpretation of Masika C. J. He submitted that paragraph (c) must be read ejusdem generis with paragraphs (a) and (b) with the result that the appropriation or taking over must be made by law. He also contended that the property must have vested in the Military Government before it can remain vested in the Government.

With respect, I think the rule of ejusdem generis was inapplicable in this case. According to this rule, when a series of particular words in a statute is followed by general words, the general words are confined by being read as the same scope of genus as (ejusdem generis with) the particular words. In the present case there were no particular words which were followed by general words either in the sub-section $(i)$ as a whole or in the particular paragraph (c). On the contrary paragraphs (a) (b) and (c) were separate and independent of each other and must be construed on their own in order to give them their full effect.

The learned Chief Justice in effect read into the Section words which the legislature, in its wisdon had not included in the Act. No authority was quoted to support such interpretation. In Thomson V. Goold & Co, (1910) AC 409, The House of Lords said, at p. 420.,

"It is a wrong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do"

**American**

$\cdots \cdots / 5 \cdots \cdots$

T h i s p r i nciple was r e i t e r a t e d in Vickers Sons & Ma x i m Ltd V Evans (1910) AC 4A4. w h e r e the same court said at P

> "The apppellants. cont e n t i o n involves r e a d i n g w o r d s into this clause. The clausa does not contain them,: a n d we are not e n t i t l e d to read w o r d s into a n Act. i t s elf"

The o n l y reas o n the l e a r n e d Chief J u s tice gave w a s that the l e g i s l a t u r e could not have intended to a u t h o r i s e i l l e g a l tak i n g of property. W i t h r e s p e c t this r e a s o n w a s m i s c o n c e i v e d because the purp o s e of the A c t w a s not to a u t h o r i s e a n y taking of p r o p e r t y but to provide for the r e t u r n of the p r o p e r t y taken over b y the M i l i t a r y Regime in w h a t e v e r m a n n e r .

In m y o p i n i o n the lear n e d C h i e f Justice did not s e r i o u s l y c o n s i d e r the purpose of the Act, and the m i s c h i e f t h a t it w a s intended to reme d y . As it can be seen f r o m the long title to the Act, the purp o s e of the Act w a s "to provide for the t r a nsfer of p r o p e r t i e s and b u s i n e s s a c q u i r e d or o t h e r w i s e e x p r o p r i a t e d d u r i n g the m i l i t a r y reg i m e to the M i n i s t r y of Finance (and) to provide for the r e t u r n to f o n a e r own e r s or d i s p o s a l of the same by G o v e r n m e n t " In o t h e r w o r d s the i n t e n t i o n w a s to t r a n s f e r the p r operties w h i c h had been tak e n o v e r to the M i n i s t r y of Finance for the purpose of r e t u r n i n g t h e m to f o r m e r owners. The m i s c h i e f w h i c h the Act intended to r e c t i f y w a s the e x p r o p r i a t i o n of p r o p e r t y b y the m i l i t a r y regi m e a n d the r e m e d y w a s to r e t u r n the p r o p e r t y to f o r m e r owners,. Former o w n e r is d e f i n e d u n d e r s e c t i o n 17 of the Act to include a n y person w h o w a s a r e g i s t e r e d p r o p r i e t o r of real p r o p e r t y and was e i t h e r e x p e l l e d or forccd to flee f r o m Uganda d u r i n g the S period o f the M i l i t a r y Regime or w a s in a n y w a y d i s p o s e d *\** cLv-\* of s u c h property, \*

The appellants come under this definition.

The Expropriated Properties Act is therefore a remedial Act. I agree that such a statute must be construcd liberally and not restrictively. To do otherwise would be to perpetuate the mischief intended to be redressed and not provide a remedy to the injustice which was occasioned by the Military regime to former owners. It would be wrong and unjust to return property which the military regime took over lawfully and refuse to return property which was illegally taken over. This court cannot approve of an interpretation which would result in such an injustice and which runscontrary to the plain meaning of the words and the purpose of the Act.

In my judgment, Masika C. J. erred in law in holding that for any property to fall under Section 1 (1) (c) of the Act, that property must be lawfully appropriated or taken over. I hold that the words "in any other way appropriated or taken over by the Military Regime" in Section 1 (1) (c) must be given their ordinary meaning and liberation interpretation to mean any appropriation or taking over by the military regime other than as specified in paragraph (a) and (b) of the same sub-section, whether the taking over was lawful or not.

The learned judge in the present case erred in following the erroneous interpretation in the Gandesha Case (Supra), and by so doing he came to a wrong decision. I do agree with Wambuzi CJ, that the interpretation of Masika CJ on Section 1 (1) (c) of the Act was not necessary for his decision in that case, and therefore it was an obiter dictum.

It was common ground that on 14 December, 1972, the Prison Department of the Ministry of Inernal Affairs forcefully took over the suit propery and converted it into

.... 7....

a Mess for Senior Prisons Officers, and is still occupying it up to the present time. Francis Joseph Almeida (RVI) the former General Secretary of the appellants club, and Joe Falnaldis (PM2) a member of the club who witnessed the take over testified to this effect, on behalf of the appellants. There was no evidence from the respondent to challenge their evidence. On the contrary, in its written statement of defence, the respondent admitted that

"it had valid management powers over the suit properties before the lease expired and thereafter lost or reliquished management and/or control over this property to the controlling authority concerned and threfore rejecting the application was proper and justified since the Defendant had no legal authority or powers to deal with the suit property"

On the evidence before the trial court, it was established that the suit property was appropriated or taken over by the military regime. Therefore although the lease of the suit property expired in 1981 it was deemed to have continued by virtue of section 1 (2) (b) until such property had been dealt with in accordance with the Act. and the respondent had powers under section $1$ (4) to manage such property until the Minister appointed any other body to manage the property or until disposed of.

In conclusion, I hold that the appellants property was appropriated or taken over by the Military Regime and that it falls within the provisions of Section 1 $(1)$ $(c)$ of the Expropriated Properties Act 1982.

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I would therefore allow this appeal and concur in the orders proposed by Wambuzi CJ.

$\mathcal{L}^{\mathcal{L}}$

Dated at Mengo this....................................

$covi$ B. J. ODOKI

JUSTICE OF THE SUFREME COURT