[1997] UGHC 9

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### **CIVIL SUIT NO.31 OF 1995**

**JAFFER BROTHERS LTD. } PLAINTIFF**

**VERSUS 5**

| 1. | MOHAMMED<br>MAGID BAGALAALIWO } | 1ST<br>DEFENDANT | |----|---------------------------------|-----------------------| | 2. | DEPARTED<br>ASIANS PROPERTY | } | | | CUSTODIAN<br>BOARD | DEFENDANT<br>2ND<br>} | | 3. | ATTORNEY<br>GENERAL | DEFENDANT<br>3RD<br>} | | | | |

#### **BEFORE THE HONOURABLE MR. JUSTICE C. M. KATO 10**

### **RULING:**

This ruling is in respect to three preliminary objections raised by Mr. Sekandi the learned counsel for the second defendant. The objections were supported by Mr. Katende and Miss Mayanja counsel for the first and third defendants respectively. The substance of the first preliminary objection is 15 that the suit is time-barred since the cause of action arose in 1972 and the suit was filed in 1995 about 23 years later. All the three counsel contended that in the absence of any evidence of disability by the plaintiff to file the suit within 12 years, the suit violated the provisions of section 6 of the Limitation Act. The second ground of objection is that the plaintiff has no locus standi 20 since he does not have any valid certificate of repossession. The third ground of objection is that there is no cause of action against any of the three defendants.

For the sake of convenience, ^I find it necessary to deal with the position of each party (defendant) separately starting with the first defendant Mr. 25 Katende who appeared for the first defendant Mohammed Magidu Bagaalaliwo argued that his client got the suit property on 21/4/80 and the suit was filed in 1995 some 14 years after the cause of action arose. According to him the suit was time-barred as it was caught up by provisions of section 6 of the Limitation Act. On behalf of the second defendant, the 30 Departed Asians Property Custodian Board, Mr. Sekandi argued that the cause of action, if any, against this defendant arose in 1972 and the plaintiff did not file these proceedings until 1995 some 23 years after the cause of action arose.

Miss Caroline Mayanja on behalf of the third defendant the Attorney General 35 shares the same views as those pointed out by the counsel for the second defendant.

when the niaiX t°^f aCtlOn against ^a"the defendants arose on 7/12/93 case of i^ ained his certificate of repossession, he relied on the 829/921 vs Khemisa Senya (H. C. C. S. No. did^t apply to theepres9enetdcTse Pr°ViSi°nS Of section ⁶ of the Limitation Act

\*\*SUe seems revolve on one question which is: when did the plaintiff? aC^IOn' ar|y' ar'se anci when did time begin to run against the

**15** 20 25 **30 35** Before this question can be effectively answered it is necessary to look at brief facts leading to this litigation as contained in the pleadings as presented by the parties. The property under dispute is that piece of land and developments on it situate at Plot No. 9 Hill Lane comprised in volume 354 folio 17 in the leasehold register. The said property is said to have belonged to the plaintiff but when the Asians were expelled from Uganda in 1972 the third defendant (the Uganda Government) took it over and later on by Decree 27 of 1973 the Government handed over the property to the second defendant for its management. Sometime in 1977 the said property was sold by the second defendant to one Francis Nyangweso who in turn sold the same to the first defendant. Subsequent to this last sale there was litigation between the first defendant and third defendant under High Court Civil Suit No. 310 of 1987 whereby consent judgment was entered in favour of the first defendant declaring him the lawful owner of the suit property, that judgment is dated 8/11/87. On 12/1/95 the plaintiff decided to file the present suit. The original plaint presented to the court shows that the suit was against Mohammed Magidu Bagalaaliwo as the first defendant and Ronald Muwenda Mutebi as the second defendant; later the plaint was amended and dropping out the name of Ronald Muwenda Mutebi replacing him by Departed Asians Property Custodian Board and the Attorney General as the second and third defendants respectively. It must be pointed out here that on 7/12/93 the plaintiff had purportedly obtained a letter of repossession of the same property from the Minister of State for Finance and Economic Planning (Custodian Board) who was responsible for issuing of such letters.

That is the summary of the facts as may be gathered from the pleadings as they appear on the record.

**10**

**5**

That takes me back to the question as to when the cause of action, if any, arose. By provisions of section 4 of the Assets of Departed Asians Decree No. 27 of 1973 all the property left behind by departing Asians was vested in the government and it remained so vested even after the coming into force of Expropriated Properties Act 1982 as per section (1) of the Act. $\mathsf{S}$ provisions of section 5 of Decree 27/73 the second defendant (The $B_V$ Departed Asians Property Custodian Board) was established and under section 13 of the same Decree property vested in the government (the third defendant) under section 4 were vested in the Board (second defendant). Decree No. 27/73 became operational from 7/12/73 in my view that was the $10$ date when both the second and third defendants took over the suit property and time must have started to run against the plaintiff in respect of the suit property from 7/12/73 as far as the second and third defendants are concerned.

Regarding the position of the first defendant Mohammed Magidu $15$ Bagalaaliwo, the plaintiff says the cause of action arose on 7/12/93 when he got the letter of repossession, but the first defendant's counsel is quite adamant that the cause of action, if any, must have arisen sometime in 1980 when the 1st defendant bought the house from Major General Nyangweso. With due respect I do not agree with the line of argument taken by the 20 plaintiff, it is my firm conviction that time began to run against the plaintiff the moment the first defendant acquired the property from Nyangweso in 1980 not from 7/12/93.

In the absence of any indication in the plaintiff's pleadings that there was disability on part of the plaintiff of fraud on part of the defendants, I am $25$ satisfied that this claim is time barred in respect of all the three defendants. Since the plaintiff did not plead disability or fraud the provisions of section 3 and 22 of the Limitation Act cannot be invoked in his favour. The first preliminary objection is accordingly upheld.

In view of my above holding I intend not to dwell much on the second and $30$ third preliminary objections which I will deal with briefly and jointly. The substance of the two objections is that the plaintiff has no locus standi in the matter and that there is no cause of action against any of the defendants. The main argument put up by the three defence counsel has been that the plaintiff has never been issued with certificate of repossession as is required $35$ by section $5(1)$ of the Expropriated Properties Act 1982. On this point Mr. Sekandi the learned counsel for the second defendant relied on the case of: Sayani vs Mperese Nsubuga (H. C. C. S. No. 364 of 1993). It was their contention that since no valid certificate has ever been issued to the plaintiff he could not claim to have any interest in the suit property. 40

$\mathbf{r}$

On the other hand Mr. Bamwine who appeared for the plaintiff in this matter argued that the plaintiff had locus standi as he was holding a letter from the Minister authorising him to repossess the property.

In his view a letter was as good as certificate of repossession referred to in $\frac{1}{2}$ section 5 of the Expropriated Properties Act 1982. He relied on the case of: $\mathsf{S}$ Jani Mohammed Jaffer vs Khemisa Senya (H. C. C. S. No. 829 of 1992) in support of his argument.

It must be said from the very start that the two decisions upon which the counsel appearing for the opposing sides based their arguments are completely at variance. While in Sayani's case (supra) the court was of the $10$ view that a mere letter did not amount to the certificate of repossession mentioned in section 5(1) of the Expropriated Properties Act 1982 the court in the case of Jani Mohammed Jaffer (supra) held that a letter was enough. The two judgments are judgments of this court so they are not binding on me, although they are of great assistance to me, I have discretion either to 15 follow them or not. Both provisions of section 5(1) of the Expropriated Properties Act and Regulation 10 (3) of the Expropriated Properties (Repossession and Disposal) Regulations 1983 make it mandatory for the responsible minister to issue certificate of repossession to the person repossessing the property applied for under the Act, a mere administrative $20$ letter like annexture "B" to the amended plaint in the present case is not enough, this view was rightly, in my view, expressed by Ag. Commissioner of Land Registration in his letter of 23/8/94 to the counsel for the plaintiff (see annexture "D" to the amended plaint). With due respect I share the same view as that expressed by my sister Judge Byamugisha when she $25$ said in the case of Sayani (supra) that "an ordinary administrative letter outside the ambit of the Act cannot be used by the plaintiff to recover the suit property". I have found her finding on this matter quite helpful; I have however found considerable difficulty in following the decision of my brother Judge Rajasingham in the case of Jan Mohammed Jaffer (supra). I differ 30 from his decision but I follow that of Byamugisha J.

The position being what it is, I am inclined to agree with the stand taken by the three defence counsel that the plaintiff has never been issued with certificate of repossession as required by section 5 $(1)$ of the Expropriated Properties Act 1982 (Act 9 of 1982) and regulation 10 (3) of the 35 Expropriated Properties (Repossession and Disposal) Regulations 1983 $(S. I. No. 6/83)$ in respect of the suit property as such he has no locus standi to sue the 3 defendants on matters concerning the property.

I now turn to the issue of whether or not there is any cause of action against the 3 defendants. The 3 defendants through their advocates are agreed that there is no cause of action against any of them. The case for the first defendant as ably presented by his counsel Mr. Katende is simply that the property in question was sold to him (1st defendant) by Nyangweso in 1980 $\mathsf{S}$ at a price of 3,500,000/= and that Nyangweso had bought the same property from the second defendant. The sale of the property to the first defendant is not denied by the plaintiff or the second and third defendants. The plaintiff in paragraph 7 of his amended plaint acknowledges the sale but in paragraph 8 of the same plaint he contends that the sale was $10$ unconstitutional and was nullified by the Expropriated Properties Act 1982. Another point raised by the first defendant to show that the plaintiff has no cause of action against him is that by judgment entered in H. C. C. S. No. 310 of 1987 he (1st defendant) is undisputed owner of the suit property (see paragraph 2 (c) and (j) of the amended written statement of defence and 15 annexture "E" to the same). The plaintiff however in paragraph 7 and 8 of the reply to the written statement of defence respectively says that the above suit was null and void because it is contrary to provisions of Act 9 of 1982, and that even if it is valid it does not bind him since he was not a party or privy to those proceedings. $20$

Section 1 (2) of the Expropriated Properties Act 1982 provides that any sale of property falling under the provisions of the Act was nullified and declared void. The present case would possibly have fallen under the category but in view of the consent judgment entered in favour of the present first defendant on 8.11.91, I highly doubt if it can safely be said that the section covers the $25$ suit property. In suit No. 310 of 1987 Mohammed Magidu Bagalaliwo vs Attorney General the judgment specifically declared the plaintiff (1st defendant in the present suit) to be the lawful owner of Plot No. 9 Hill Lane, Leasehold Register Volume 354 folio 17. This suit was filed on 17/3/87 and decided on 8/11/91. This was long after the Expropriated Properties 30 Act 1982 had come into force on 21/2/83 (see S. I. No. 5 of 1983). The Attorney General who was the defendant in that case and who is the 3rd defendant in the present case pleaded provisions of section 1 (2) of the Expropriated Properties Act 1982 in his written statement of defence but when he consented to judgment being entered against him in that case he $35$ must have realised that the Act was not applicable to this particular property - otherwise I cannot see how the Attorney General could have consented to an illegality, (this is of course a rebuttable assumption); so even if the provisions of section 1(2) of the Expropriated Properties Act 1982 were applicable to this case, as long as the judgment of this court in H. C. C. S. No. 40 310 stands the first defendant remains an undisputed owner of the suit property. It is true the present plaintiff was not a party to those proceedings, the reason might be because at the time the suit was filed he had no legal or

$\mathsf{S}$

equitable interest in the property and in view of what I have stated earlier in this ruling he still has no vested interest in the property since he does not have any legally recognised certificate of repossession. It is my holding that the plaintiff does not have any cause of action against any of the 3

Before I finally put this matter to an end there is an error which I would like to put right. The first defendant and the other two defendants in their pleadings referred to H. C. C. S. No. 320 of 1987, there must have been a mistake because that case number refers to different parties, the correct case number relevant to the present suit is H. C. C. S. No. 310 of 1987 as $10$ indicated in annexture "E" to the first defendant's amended written statement of defence. I have confirmed this information with Civil registry. I have also personally looked at the file itself.

Having said all that I find that the preliminary objections raised by the defendants were validly raised and they are upheld. I have no doubt over 15 the fact that this suit is time barred and the plaintiff has no locus standi as he does not hold any valid certificate of repossession nor does he have cause of action against the 3 defendants. For those reasons the suit is dismissed with costs to the 3 defendants.

Concerning the counterclaim by the first defendant, it must be said with 20 regret that when the preliminary objections were being argued nobody found it fit to refer to the fate of that counterclaim in the event of the suit being dismissed. Looking at the contents of the counterclaim generally one cannot help saying that it was intended only to cater for the 1st defendant's losses in case the plaintiff succeeded in his suit against the first defendant; 25 now that the plaintiff has not succeeded the counterclaim must abate. Since it was the act of the plaintiff that prompted the filing of the counterclaim he is to pay all the defendants costs of the counterclaim.

> C. M. KATO JUDGE 18/8/97

$\mathsf{S}$

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO: 31 OF 1995

JAFFER BROTHERS LIMITED : : : : : : : : : : : PLAINTIFF

#### VERSHS

$1.$ MOHAMED MAGID BAGALAALIWO

$2^+$ DEPARTED ASIANS PROP. CUST. BOARD : : : : : : DEFENDANTS $3. \quad \cdots$

ATTORNEY GENERAL

#### Q R D E R

This suit coming this day for disposal before Hon Justice Kato in $|0\rangle$ presence of Mr Bamwine and Mr walubiri for the Plaintiff, Mr Katende for first Defenant, Mr Ssekandi for second Defendant and Ms Mayanja for the third Defendant.

IT IS HEREBY ORDERED that the suit be dismissed with costs and the Counterclaim do abates with costs to the Defendants.

Given under my hand and seal of Court

this 18th day of August, 1997.

REGIST RAR

We appr COUNSEL FOR THE PLAINTIFF We approve 1ST DEFENDANT COUNSEL FOR THE DRAWN & FILED BY:-SSEKANDI & COMPANY ADVOCATES, $1.0.80X$ 6716, KAMPALA