(Appeal from Judgement of the High Court sitting at
Jinja, (Mr. Justice Kato), H.C.C.S. No. 19 of 1994 On
JUDGMENT OF MANYINDO - DCJ:
This is an appeal against the judgment of the High Court allowing the respondent's lin
claim against the appellant and dismissing the appellant's counter claim against the respondent. The facts of the case can be put briefly as follows. One Khimji Jethabhai Tailor, an Asian once lived in Jinja Town. He was not a Ugandan Citizen. He was the happy owner of a residential house on Plot No. 6 Owen Road (the suit property). e
In that house he lived with the respondent, a Ugandan Citizen, who bore him four children. La
In 1972, the said Khimji Jethabhai Tailor was expelled from Uganda, together with thousands of other Asians, by the Military Regime of Idi Amin. He left for England in October 1972. He died there in 1990. After the departure of Khimji to Britain, the w
respondent and her children remained in the suit premises but in December 1973, they were evicted from it by Government soldiers on the ground that it has been abandoned by Khimji. Later on the house was taken over and managed by the Departed Asian Li
Property Custodian Board (the Board) as abandoned property and in accordance with the provisions of the Departed Asians Property Custodian Board Decree (No. 27 of 1973). The suit property was in fact transferred to the Board on a date not shown on br
the Instrument of transfer.
In 1980, the Board returned the property to the respondent on the ground that it had ar
not been abandoned by Khimji after all. The respondent then caused the property to be registered in her name as proprietor - on 23-12-80, vide Instrument No. 208330. Following Khimji's death in England, one of his sons, Ashokumar applied for and y
obtained letters of administration of his estate. That was on 19-4-1994. He then
appointed the appellant, by power of attorney, to manage the suit property. Ashokumar then came to Uganda and applied for a Certificate of repossession of the suit property. The Minister of Finance issued the Certificate to repossession of the suit property. The Minister of Finance issued the Certificate to him on 13-5-94. It was written in the names of Khimji Jethabbai Tailor. The appellant then demanded
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vacant possession of the property from the respondent. The latter refused to vacate the property over which she claimed ownership. She then filed the suit against the appellant for declaration:
(a) That the suit property does not form part of the estate of the late Khimji as they belong to the respondent and her children. Ug (b) That the repossession certificate obtained by Ashokumar in respect of the suit property is null and void. a
She also sought a permanent injunction restraining the appellant and or his agents from evicting her and her children or in any way whatsoever interfering with their nd
quiet occupation of that property. In the alternative she prayed that in the event of the High Court finding that the repossession was valid, the Court should make an order providing that the repossession was valid, the Court should make an order providing for the respondent and her children from the estate of the late Khimji as is "lawful a
beneficiaries." On
The respondent's case was that the late Khimji had married her way back in 1940 and that on his departure for England in 1972, he had given her the suit property in writing. The property was never abandoned and, therefore not affected by the Departed Asians Property Custodian Board Decree, 1973 (No. 27 of 1973) which lin
vested properties abandoned by the departed Asians in the Board; or the Expropriated Properties Act, 1982 (No. of 1992) which provides that all properties vested in Government and then transferred by the Board for management purposes would remain vested in Government and managed by the Ministry of Finance from the date e
of commencement of that Act which was 21-2-83.
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The appellant's stand was that the suit property at all times belonged to the late Khimji and so formed part of his estate administered by the appellant's donor, Ashokumar. The property was declared to the Government by Khimji as his own property on his departure in 1972, and that transfer of the same to the respondent was null and void in w
the circumstances. And so in his counter claim the appellant sought (a) a declaration to that effect; (b) an order of eviction against the respondent (c) vacant possession to be given to the administrator of the estate of Khimji and (d) for mesne profits. Li
The learned trial Judge found (a) that the suit property was not affected by Decree No. 27 of 1973, because upon his departure, the late Khimji had put it under the br
management of his wife, the respondent; (b) that section 1 of Decree No. 27 of 1973, which prohibited transfer of property by departing or Departed Asians after 6-10-72, did not apply to the suit property which did not come under that Decree; (c) that the ar
late Khimji had in his own handwriting validly transferred the suit property to the respondent as per exhibit P1 (d) that the late Khimji was not a departed Asian as defined in Decree No. 27 of 1973 (section 35) as he had left the Country after making y
proper arrangements for the management of the suit property and that both Decree No. 27 of 1973, and Act No. 9 of 1982 "were never intended to deprive an innocent Ugandan like the present plaintiff of his or her property which had been lawfully passed over to him or her;"
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(e) That the suit property was validly transferred to the respondent and her Certificate of title was protected by section 56 of the Registration of Titles Act, and (f) that the Certificate of repossession was null and void as the suit property did not form part of the estate of the late Khimji. In effect the holding if (f) above disposed of the counter claim. There was no submission on appeal on the matter of mesne profits. It appears the point was abandoned. Ug This appeal was brought on seven grounds, namely:-
"(1) The learned Judge erred in law and fact when he held that the Certificate Authorising Repossession of the suit property dated 13th May 1994, in the a
name of Khimji Juthabhai Tailor was null and void and had to be nd
cancelled.
(2) The learned Judge erred in law by holding that the Certificate of Repossession should be cancelled when there was no proper action a
challenging it, by the Respondent.
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(3) The learned Judge erred in law and fact when he held that the suit property was never lawfully vested in Departed Asians Property Custodian Board nor in Government of Uganda under management of Ministry of Finance and that it has never been subject of Assets of lin
Departed Asians Decree (Decree No. 27 of 1973) and Expropriated
Properties Act (Act No. 9 of 1982).
(4) The learned Judge misdirected his mind and erred in law by holding that e
the taking over the suit property by Soldiers and the Departed Asians Property Custodian Board in 1973, did not amount to "appropriation" or La
"taking over by the Military Regime" within the meaning of
Expropriated Properties Act 1982.
(5) The learned Judge erred in law and fact by holding that:- w
(a) Exhibit P.1 amounted to a lawful gift and transfer of suit property to the Respondent on 9-10-72. Li
(b) The transfer of the suit property by the Departed Asians Property Custodian Board on 23-12-80 to the Respondent is still valid and br
was nullified by the Expropriated Properties Act 1982.
(c) The respondent being a registered owner of the suit property was ar
protected by S.56 of Registration of Titles Act and would not be
affected in the absence of fraud. y
(6) The learned Judge erred in law by relying on the Hindu Marriage and Divorce Act (Cap. 214) yet he held it as inapplicable in the circumstances.
(7) The learned Judge erred in law by holding that there was a valid marriage between the late Khimji and the Respondent which entitled her
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to take the suit property against the interest and role of the former's personal Representative.
It is proposed to ask Court for orders that:-
(a) this Appeal be allowed;
Ug (b) the suit of the Respondent/plaintiff in the High Court be dismissed; a
(c) the certificate Authorising Repossession dated 13-5-94, in the name
of: Khimji Jethabhai Tailor is valid and has never been lawfully nd
challenged by the Respondent or anybody else;
(d) the transfer of title in Leasehold Register Volume 253 Folio 20
(Plot 6 Owen Road Jinja) into the name of the Respondent on 23- a
12-80, was nullified by Expropriated Properties Act 1982;
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(e) the name Khimji Jethabhai Tailor be registered on Title Leasehold
Register Volume 253 Folio 20 (Plot 6 Owen Road Jinja) as Repossessor by the Chief Registrar of Titles; lin
(f) the Respondent gives vacant possession of/or be evicted from Plot 6 Owen Road Jinja to give away for the lawful administration by the Personal Representative of the estate of the late Khimji Jethabhai Tailor or his lawful agent; e
(g) judgment be granted in favour of the Appellant on the Counter-
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claim in the original suit;
(h) The mesne profits from suit premises at a rate of Shs. 6,000,000/= (six million only) per year from 13-5-94 till full realisation be w
granted to the Appellant.
(i) Costs both in the High Court of Uganda and this Honourable Li
Court are granted to the Appellant."
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At the hearing of the appeal Counsel for the appellant abandoned the last two grounds after realising that the respondent's alleged marriage to the late Khimji was not relevant for the determination of this case. It was conceded on appeal by both ar
Counsels that the matter had been wrongly raised by Counsel for the respondent in the High Court and that the trial Judge had wrongly relied on it in holding that the late Khimji had "morally and legally" acted correctly in "giving" the suit property to the y
respondent as his "wife". The remaining grounds were argued together by the Counsel for the respondent.
In summary his submission was that Khimji had neither given the suit property to the respondent nor placed it under her management when he left Uganda in 1972; that he
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had declared the property to Government which had properly taken it over, and subsequently returned it to the appellant in accordance with the law.
In the alternative, he submitted that if the suit property was not vested in Government by Decree No. 27 of 1973, then it vested in Government under section 1(1) (c) of Act No. 9 of 1982 as it was appropriated or taken over by the Military Regime and so remained vested in Government from the date of commencement of Act No. 9 of Ug 1982.
Counsel for the appellant reiterated his argument which the High Court rejected, that a
the respondent's suit was incompetent and misconceived in that the respondent could only appeal against the decision of the Minister of Finance's grant of Certificate of nd
repossession but not bring a suit.
For the respondent it was contended by her counsel first that section 14 of Act No. 9 of 1982, which allows any person aggrieved by the Minister's grant of a Certificate of a
repossession to appeal to the High Court against that decision within 30 days of the date of the decision, does not bar the aggrieved party from proceeding otherwise. On
Second, that the suit property did not vest in Government as Khimji was not a departed Asian as he had left his family property in the hands of his family. According to Counsel, the late Khimji did not even have to declare that property in the circumstances. lin
In my view the crux of the matter here is whether Khimji was a departed Asian whose suit property was vested in Government by Decree No. 27 of 1973 and Act No. 9 of 1982. I would answer the question in the affirmative for the following reasons. First, e
that he was a departed Asian and was admitted by Counsel for both parties in writing under Order XI rule 5 of the Civil Procedure Rules. Second, on his departure, Khimji La
did declare the suit property, Bank Account and a few other items on the official declaration form - Exh. D2. He even put the value of the suit property at Shs. 3,629,500/=. He must have done so as a departed Asian within the meaning of section 35 of Decree No. 27 of 1973 which defines a departed Asian to include a w
departing Asian and any other Asian leaving Uganda on or after 9-8-82, in such manner as would necessitate the taking over in public interest of any property left in Uganda by him or her. This property had to be declared which Khimji did. Li
Third, the respondent's claim that Khimji transferred ownership of the suit property to her by the letter exh. P1 dated 9-10-72 could not stand because the evidence of the br
Government handwriting expert Mr. Ntarima (DW3) showed that the alleged signature of Khimji on that document was a forgery. That evidence was not previously challenged by the respondent; it should therefore have been accepted as ar
true by the trial Judge. In any case it would not have enhanced the respondent's case in view of the clear provisions of section 1(1) (2) and (3) of Decree No. 27 of 1973 to the effect that Asians leaving Uganda by virtue of their permits having been cancelled y
could not transfer property after 6-10-72.
Admittedly Khimji was not a Ugandan Asian and his entry permit and certificate of residence had been cancelled which led to his departure. As the alleged transfer of the suit property to the respondent was made on 9-10-72, it would have been null and
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void. It would have been time barred. This much was admitted by Counsel for the respondent in this Court.
Fourth, the purported registration of the respondent as proprietor of the suit property is not protected by the provisions in section 56 of the Registration of Titles Act as was claimed by her Counsel because under section 1(2) (a) of Act 9 of 1982, any purchase, transfer and grant of property which were vested in Government were Ug nullified if they were effected between the time when the property in question was first vested in Government under Decree No. 27 of 1973 and the time when Act No. 9 of 1982 came into came into force (21-2-83). And so the alleged transfers to the a
respondent in 1972, (by Khimji) and in 1980 (by the Custodian Board) would be invalid. This point was settled by the Supreme Court of Uganda in: Gokaldas Tanna nd
Also see: Registered Trustees of Kampala Institute -v- DAPCB, Civil Appeal No. a
21/93 of same Court (unreported)
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The learned trial Judge seems to have been unnecessarily bothered by the fact by returning the suit property to its owner, the respondent and her children would be left out in the cold as it were. In my view that was a matter to be pursued under the Succession Act. I do not think that it is the duty of the Minister of Finance or even lin
the Courts to protect families of former owners of property in this kind of case. The duty of the Minister was simply to return the property to its former owner. If Khimji had really wanted to transfer the suit property to the respondent and her children he would have done so according to the law and, of course, would not have had to e
declared it to Government. La
For the reasons stated above I would allow this appeal, set aside the judgment and orders of the trial Judge, substitute an order dismissing the respondent's suit and direct that the respondent give to the appellant vacant possession of the suit property forthwith. I would order that the appellant take the costs of the appeal and of the suit w
in the High Court from the respondent. In view of the conclusion I have come to, I do not find it necessary to pro…… the question whether the suit was competent or not. As Okello-J. And Engwau-J agrees, the appeal is allowed with costs here and in the Li
High Court to the appellant.
DATED at Kampala this 21st day of February 1997.
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Sgd. S.T. MANYINDO
ar
DEPUTY CHIEF JUSTICE.
I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.
y
JOSEPH MURANGIRA
For REGISTRAR COURT OF APPEAL.
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THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CORAM: S. T. MANYINDO - DCJ; G. M. OKELLO, J; S. G. ENGWAU, J.
CIVIL APPEAL NO. 1/96
Ug
ARVINDBHAI POPAT ………………………………..…………. APPELLANT
a
-VERSUS- nd
AIDA MBWALI …………………………………..…………… RESPONDENT
JUDGMENT OF OKELLO, J a
I have had the chance to read in draft the judgment prepared by My Lord the Deputy Chief Justice. I agree with his reasoning, conclusion and the orders he proposed. I On
have nothing useful to add.
Dated at Kampala this 21st day of February, 1997.
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G. M. Okello JUDGE.
I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.
e La
JOSEPH MURANGIRA REGISTRAR COURT OF APPEAL. w Li br ar y
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IN THE COURT OF APPEAL OF UGANDA
HOLDEN AT KAMPALA
(CORAM: S. T. MANYINDO-DCJ, G. M. OKELLO-J. & S. G. ENGWAU-J.)
CIVIL APPEAL NO. 1 OF 1996
Ug
BETWEEN a
ARVINDBHAI POPAT ………………………………..…………. APPELLANT
nd
AND
AIDA MBWALI …………………………………..…………… RESPONDENT
a
JUDGMENT OF S. G. ENGWAU, J. On
I had the benefit of reading the Judgment of Manyindo-D.C.J. in draft and I do agree with it.
Accordingly, I would allow this appeal with costs to the appellant here and in the lin
court below. The original suit is dismissed and the respondent is directed to give vacant possession of the suit property to the appellant forthwith. e
Dated at Kampala this 21st day of February, 1997.
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S. G. ENGWAU JUDGE w
I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.
Li
JOSEPH MURANGIRA REGISTRAR COURT OF APPEAL. br ar y
