Wangi v Commissioner for Land Registration & 3 Others (Miscellaneous Cause 401 of 2023) [2024] UGHCLD 210 (23 August 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

## **MISCELLANEOUS CAUSE NO. 401 OF 2023**

**:::::::::::::::::::APPLICANT WANGI YUSUF:::::::::::::::::**

### **VERSUS**

# 1. COMMISIONER FOR LAND REGISTRATION

- 2. THE ATTORNEY GENERAL - 3. THE DEPARTED ASIA CUSTODIAN BOARD

## 4. RIO HOLDINGS INTERNATIONAL

LTD ::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. MR. JUSTICE TADEO ASIIMWE**

### **RULING**

This application was brought under section 182 and 188 of the registration of titles act cap 230, section 33 of the judicature act cap 13, section 9 of the expropriated properties act cap 87, the expropriated properties (sale and disposal) regulations SI-no. 87-8. 0.52r1 and 2 of the civil procedure rules $si.171-1$ .

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The applicant is seeking for a declaration that a certificate ofpurchase no. 0062 issued to the 4tr, respondent on 15.11.1992 was issues illegally, that the l.t respondent cancels the registration of the 4tl' respondent as proprietor of land known as plot 4 fort road, Kampala comprised in leasehold t'egister volume I 18 folio 7,the 4th respondent surrenders to the l.t respondent the special certificate of title to the suit land to facilitate the registration of the applicant as a proprietor of the suit land, that the l't respondent registers the applicant as the proprietor of the suit land by virtue of the certificate of purchase no. 3702 issued on 24,8,2021 and cost.

The application is supported by an affidavit sworn by the applicant Wangi Yusuf .

The grounds of the application as contained in the Notice Motion and affidavit in support and briefly are that;

- l. That the applicant is the lawful owner of the suit land having purchased the same from government but the I't respondent has without reasonable cause refused to register the applicant and to issue him a certificate of title. - 2. That the certificate of purchase earlier issued to the 4th respondent was illegally issued and is a nullity in law. - 3. That the 3'd respondent has confirmed the validity of applicant's purchase but the I't respondent has failed to honor the 3'd respondent's opinion.

4. That it is just and equitable that this application be allowed'

On the other hand, the I't respondent did not file an affidavit in rely. the 2nd and 3'd affidavit supported the application relying on an affidavits of George William Bizibu. The 4th respondent opposed the application through the affidavit of Ivan Ndungu the director of the 4'h respondent company.

The gist of the 2nd and 3'd respondent's response is that the suit property has been expropriated property and in possession of the 3'd respondent until24th august 2021 when the minister of finance issued a certificate of purchase to the applicant. That the 3'd respondent has been collecting rent for the suit property from both the applicant and its predecessor prior to the sale. That the divesture committee of DAPCB decided to dispose of the suit property in2020 and the same was done in favour of the applicant.

In essence the application stands un opposed by the 1s to 3'd respondents.

The 4th respondent's affidavit in reply is to the effect that the 4th respondent is the registered owner of the suit land. That the suit land was initially registered in the names of Lalji Meghji Patel Raiji MeghjiPatel, Premji Patel and Bechar Mavji Patel. That the initial proprietors sold the suit land to Sebastiano Bamutura vide a Memorandum of sale dated 6th august 1972. Thatthe sais Sabastiano had paid half the consideration. That the Asians were letter expelled from Uganda before the balance was paid. That the DACB took over the suit land after being establish d in 1973.

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That the board applied for a special certificate oftitle and got registered on title. That the said Sebastiano Bamutura paid balance of the purchase price to the Departed Asian custodian Board on 8/8/1980 after which the suit land was transferred in his name. That in 1982 the said Sebastiano Bamutura sold and transferred the suit land to christopher Mubiru who morlgaged the same and failed to pay his bank loan which prompted the bank to fore close and then sell the suit property by the public auction to the 4th respondent who got registered on title in 1985'

That in 1991 the board invited the 4th respondent for a meeting where after the minister acknowledged the 4'h respondent's interest in the suit land on condition that he paid /executed afresh purchase agreement and a certificate of purchase was issued to the 4tl' respondent'

At the hearing of this application the applicant was represented by Peter Mukidi walubiri together with Mr. Twalhat Ssebumpenjje, the 1't respondent is represented Mr. Ssekabira Moses, the 2nd respondent by counsel Moses Mugisha and Mr. Hilary Nathan, the 3'd respondent by counsel wandera ogalo while counsel Kintu Felix Nteza represented the 4tl' respondent.

only Counsel for the applicant, the 3'd and 4tl' respondents filed written submissions which I shall consider in this ruling.

### RESOLUTION

In this application the applicant raised four grounds which I have considered together with the supporting affidavit and its attachments' I have also considered the arguments for both counsel'

From the said four grounds raised above, there arises two issues for Court' s determ ination; -

- 1. Whether the certificate of purchase earlier issued to the 4th respondent was illegally issued and is a nullity in law' - 2. Whether the applicant is the lawful owner of the suit land having purchased the same from government but the lst respondent has without reasonable cause refused to register the applicant and to issue him a certificate of title'

To begin with, in this case, the 4tl' respondent's certificate of purchase stems from two directions, first from a mortgage sale and from a fresh purchase from the Departed Asian custodian Board, the 3'd respondent.

It is not in dispute by all the respondents that the suit land is /was expropriated property under the management of the custodian board by virlue of theno.27 of 1973 which vested all properties in the custodian board and later the expropriated properties Act of 1982 vested the property in the ministry of finance which was to manage it on behalf of the government and prohibited all purchases, transfers, grants or other

dealings of whatever kind of such properlies by virtue of as such sec. 2 (2) of EPA Cap 87 .

The rationale for this nullification was to ensure that all the expropriated properlies remained vested in government and to ensure that they could be dealt with under the Expropriated Properties Act

However, the dispute in this case before me is that 4th respondent's claim stems from the transaction of 6.9.1972 between the initial Asian owners and a one Sebastiano Bamutura on 6.9.1972 who later passed on his interest to a one Mubiru on20.4.1982.

It is historically clear that expulsion of the Asian was on the 91911972 three days after the purported purchase of the said Sebastiano Bamutura of 61911972. At a close look of the said memorandum of purchase marked annexure B on the affidavit in reply by the 4th respondent, the said Sebastiano Bamutura made half payment and was to pay the balance by 3l't December 1972 or would suffer cancellation of the agreement. Consequently, on 8/8/1980 Sebastiano paid the balance to the custodian board and transfers were made to him.

section I9(u) of the Expropriated Properties Act l9B2 defined expropriated property to include any property or business which had vested in the government and transferred to lhe departed Asians custodian board. In the same Act, the property shall /i'om the commencement of the Act remain vested in the government and managed by the ministry of finance. To notefurther, byvirtue ofsection l9(2) ofthe Act any purchase, grant of or dealing of whatever kind in such property or business were nullified.

By virtue of the above section there is no doubt that the suit property was vested in the custodian board since the payment of the last payment and transfers there on were made after the expulsion of the Asians.

Be that as it may, as already stated above, the relevant provision of the law ri section 2 of the Expropriated Properties Act, 1982 (Laws of Itganda Cap. 87, 2000 Edn.), which state as follows:

u2. Reverting of properties in the Government' etc.

(l) Any property or business which was-

(a) vested in the Government and transferred to the Departed Asians' Property Custodian Bourd under the Assets of Departed Asiuns Act;

shull, from the commencement of this Act, remain vested in the Government and be managetl by the Ministry responsible for Finance.

(2) For the avoidance of doubt, and notwithstanding the provisions of any written law governing the conferring of title to land, property or business and the passing or trunsfer of that title, it is declared that-

att urchases trans ers and nts o or an dealin o

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whatever kind in. such or'oDertv or business are nullified: and

h) where anv Drooern affected bv this section wus st the time of its

exDr0 riution held under a leaseoranasreement for a lease, or anv other soecified tenancvof whatever descriotio n. and where the leose, ogreement for a lease or tenancv had expired or was terminated, the same shall be deemed to have continued, and to contin ue in force until such Drooertv hns been dealt with in accordance with this Act: and for such further oeriod us the Minister mavbvr ulations made under this Act orescribe."

(3) The Minister may, by statutory order, appoint any person or body to manage any property or business vested in the Government under subsection (1).

(4) Until such a time as the Minister has exercisecl his or her powers unrler subsection (3), the Departed Asians' Property custodian Bourd estabtished under section 4 of the Assets of Depurted Asians Act shull continue to manage such properties and businesses.

This was expounded in the case of victoria tea estates Ltd v James Bbemba Civil Appeal 49 of 1996 it was held that once it is proved that property wqs expropriated it becomes the statutory property of government and any tlealings in it are nulliJied. Ilnder section 7 of the Act the property could not be sotd or otherwise dealt with without the written consent of the minister or after 5 years from the date of the transfer.

According to Oder J. S. C. in Gokatdas Laximidas Tanna vs' Sr' Rosemary Munyinza & Departed Asian Property custodian Boardl S. C. Civ. Appeal No. 12 of 1992, section I (2) (a) above - now section 2(2) (a) of Cap 87 Revised Edn. 2000 - nullified any of the transactions enumerated therein:

'... tf the transsction was effected between the time when the "' property was Jirst vested in Government by the Assets of Departed Asiuns Decree, 1973 and the time when the Act of 1982 came intoforce, numely on the 2lst February 1983."

That provision of the Act has a retrospective effect and nullified all the categories of transactions and dealings entered into with regard to the expropriated properties in the period between the expropriation by the Decrees of Idi Amin and the Expropriated Properties Act, 7982', as correctly pointed out by Oder J. S. C. above, regardless of such transactions or dealings having been validly made.

In my view the Deparled Asian Custodian Board accepting to take balance from the said Sabastiano Bamutura out of the agreement made in 1980 and transferring property to his name amounts to dealings and transfers that were prohibited by section 2 of expropriated pr p les (

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Subsequently, the transfer of the suit title to a one Mubiru christopher on 20.07 .l 982, the mortgage creation on the suit land and the 4th respondent's purchase and registration on in 1985 were all equally illegalby virtue of the fact that Sebastiano having obtained no good title to pass and by virtue of section 2 of the expropriated properties act which prohibited such transactions.

Further it should be noted that the 411' respondent obtained a certificate of purchase on condition that he executed a new purchase contract which he did by paying 50.000/- as a token as per documents marked I, k, m, I in the affidavit in reply by the 4th respondent.

In my view, by his act of executing a new agreement, both the 41h respondent and the 3'd respondent knew that the 4th respondent had attained no interest in the said prior transaction.

Under the expropriated properties act, the minister while disposing of departed Asian properties had guidelines to follow before issuing a certificate of purchase. Regulation 11 of The Expropriated Properties Act. statutory Instrument 87--8. The Expropriated Properties (Repossession and Disposal) (No. 1)Regulations'

Is to the effect that; -

(l) Where the Minister makes an order that any property or business be sold, then(a) the property or business shall be valued by such vqluers as the Minister may appoint subiect to the guidance o/'the board of valuers in accordance with section l3 of the Act;

ft) the property or business shall be sold by competitive tender;

property or business.

In this case, it is not in dispute that the first statutory instrument that listed the suit property for sale is the expropriated properties (sale and disposal) order SI NO. I of 1994 which was issued way after the certificate of purchase had been issued to the 4threspondent on the l5th November 1992.

The spirit of enacting the law relating to expropriated properties was a remedial action to remedy the wrongs of the previous government and the Expropriated properties Act came into force with the main objective of returning to the former owners their properties and in an event that the same was not possible, to have adequate compensation paid to these former owners.

Indeed in the case of Registered Trustees of Kampala Institute vs Departed Asians Property Custodian Board SCA no' 23 of 199 Court \ had this to say,

" Having regard to the evil intended to be cured by the Legislature which is the deprivation offormer owners o/'their properties appropriated and taken over or oJ'which they were disposed by the military regime, any other interpretation would defeat the purpose of this legislation"

It therefore means that for whatever reason if returning the property was impossible, adequate compensation was to be paid to the former owner to atone for the value of his lost property. This objective of the Act informs the legislative provisions under regulation I I of the Expropriated Properlies (Repossession and Disposal) (No.l) Regulations SI-l No. 87- 8 that such property must be valued by a board of valuers and a reserve price set for its Valuers before the same is disposed of. Where an ascertained adequate price has been set and thereby paid by the entity or individual to whom the property was disposed of, then such payment is used by the government to compensate the former owners as adequate value for their property.

In this case, there is nothing on record to show that the suit property was listed for sale in 1992 or that suit land was valued, reserve price determined or even sold through a competitive tender process.

To the contrary the suit land was sold to the 4th respondent through letters and the price paid was a token. All the procedures dictated under the law were not followed when the 41h respondent acquired the suit land. This was indeed an illegal procedure and it goes without saying that the issuance of a certificate of purchase to the 4th respondent was done wrongly and illegallY.

whether the applicant is the lawful owner of the suit land having purchased the same from government but the lst respondent has without reasonable cause refused to register the applicant and to issue him a certificate of title.

From the evidence on record, it is clear that as per annexure B and c of the affidavit in support of the application, the suit propefty was temporarily allocated to a one Abdul Karim Kironde who was paying a monthly rent for over 30 years since the property had never been listed for sale until 1995 and he accepted the same allocation'

As per annexure D and E on the amended application, the said Abdul Karim Kironde, the lawful occupant of the suit land (as perthe decision in miscellaneous application no. 977 of 2015) passed on his tenancy to the applicantandthesuitlandwassubsequentlyallocatedtotheapplicantby the 3d respondent following the consent of the said Abdul karim kironde.

Further in 1995 as per annexure A of the affidavit in support ofthe motion, the minister made an order that the suit property be sold through instrument no. l7 of 1995' The expropriated properties (sale and disposal) ( (replacement) order.

The property was valued by the Departed Asian custodian Board of valuers instructed by the 3'd respondent valued it at shs,, 205,000,000/: as per annexure F of the affidavit in support of the motion.

Subsequently an offer was given to the applicant to purchase the suit land and the same was accepted and payment of ugx 266,500,000/: was made by the applicant as per annexure H and I ofthe affidavit in support ofthe motron.

Finally, the applicant was issued a certificate of purchase No.3702 on 2410812023 as per annexure J of the affidavit in support of the motion.

Both the 2d and 3.d respondents in their affidavits in reply confirmed to this Court that the cerlificate of purchase issued to the applicant is the legal one.

Further as per annexures K, L and M of the affidavit in suppo( of the motion, the commissioner land registration was duly notified and was requested by the 3'd respondent to issue a special certificate oftitle to the applicant to enable his registration.

I therefore find that indeed the right procedures to acquire the suit land were followed by the applicant and he is the right full owner of the suit land.

I shalltherefore proceed to resolve the issue of remedies'

The applicant sought for the following remedies/-

## 1. A declaration issues that a certificate of purchase no' 0062 issued to the 4th respondent on 15.11.1992 was issues illegally,

I have already found that that a certificate ofpurchase no. 0062 issued to the 4th respondent on 15. 11.1992 was issues illegally and I so declare.

## 2. That the l't respondent cancels the registration of the 4th respondent as proprietor of land known as plot 4 fort road, Kampala comprised in leasehold register volume 118 folio 7'

I have already found that the registration of the 4tr' respondent on title was done illegally. Accordingly, this remedy is granted.

## 3. The 4th respondent surrenders to the lst respondent the special certificate of title to the suit land to facilitate the registration of the applicant as a proprietor of the suit land.

In my view this remedy is a natural consequence in the process of title cancellation. It therefore is not necessary to give specific orders as the Registrar of Titles Act (RTA) provides for it.

4. Thatthe l.t respondent registers the applicant as the proprietor of the suit land by virtue of the certificate of purchase no.3702 issued on24,8,,2021

Having found the applicant to be the righ this remedy is granted. tful owner of th suit property, 5. COSTS. w

Ordinarily, Costs follow the event and are discretionally as per section 27 of the CPA. The applicant having succeeded in this application, he is entitled to costs which are here by granted against the 3'd and 4th respondents.

In conclusion this application succeeds with the following orders; -

- l. A declaration that a certificate of purchase No. 0062 issued to the 4th respondent on l5.l 1.1992 was issued illegally, - 2. A declaration that the applicant is the lawful owner of the suit land - 3. The 1'l respondent is here by ordered to deregister the 4th respondent as the proprietor ofthe suit land and register the applicant as the proprietor of the same. - 4. The 4th respondent is free to take any action for recovery ofany money paid to the 3'd respondent in relation to the suit land. - 5. Cost are awarded against the 3'd and 4th respondents.

I so order

\ ( TAD S MWE

JUDGE 2310812024