[1998] UGCA 40

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

$DCJ;$ S. G. ENGWAU, **CORAM:** MANYINDO, J. A.; $\&$ $\mathbf{A}$ . S. T. TWINOMUJUNI, J. A.

### CIVIL APPEAL NO. 36 OF 1996

### **BETWEEN**

MAKERERE PROPERTIES LTD...... $\ldots$ APPELLANT

AND

$\ldots$ RESPONDENT ATTORNEY GENERAL............

> (Appeal from judgement and decree of the High Court at Kampala (Byamugisha J.) dated 30th September 1996).

## JUDGMENT OF TWINOMUJUNI J. A.

In 1991 the appellant applied to the Minister of Finance to repossess plot No. 13 Market Street Kampala of which he had been its registered owner till 2nd August 1982. In a letter addressed to the appellant dated 10th April 1996, the Minister of Finance rejected the application on the grounds that:

> Government had, through the **".......** Departed Asians Property Custodian Board, already returned the property to you in 1981."

The appellant appealed to the High Court against the decision of the Minister under section 14 of the Expropriated Properties Act 1982. The High Court upheld the decision of the Minister of Finance, hence this appeal.

The full facts of the case are that MAKERERE PROPERTIES LTD was incorporated in Uganda in 1959. The directors of the company were:- Abdulaziz Allibhai Pirani, Sadrudin Abdalaziz Pirani and

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Badrudin Abdulaziz Pi-rani a1I of whom were Asians'

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On 23rd March 1950, Makerere Properties I-'Ed became the registered proprietors of Ehe l-and and premises comprised in Pl-ot No' ¹³ Market Street Kampala as per instrument number L45433 of Ehe same date .

In Lg72 all Ehe Directors of Ehe company were expelled from Uganda subsequenE to which the property felf under the management of the Departed Asians ProperEy Custodian Board (DAPCB)

In 1982 Sadrudin Abdulaziz Pirani, one of the direct'ors of the appeLlant retsurned to Uganda and claimed the property which was handed back to him by the DAPCB. He then sold the property !ooneMansukhla].aKariawhotherebybecameEheregisEeredowner of the proPerEY on 2nd August' 1982'

InlggloneAminMohamedAbudalazizPiranicameEoUganda and learnt abouE the transfers carried ouE by sandrudin AbdulaziziPiraniandMansukhlalKaria. Whenheinformedhis oEher brothers who appear to be residing in Canada, they gave him a power of AtEorney to pursue the interests of the appellant company.

In Company Cause of L992 Amin Mohamed Abduf ¹ azLz mii Kar t.he High Court. held Ehat Ehe No. ² P1r transfer of the shares and property carried out by S'A' Pirani was fraudulent. and the Registrar of companies was ordered tso rect.ify the company records to reffect Ehe position as it was in 1972. It was the fraudulents transfer of lhe shares Ehat had enabl-ed A. S. Pirani to transfer Plot No' 13 Market Street to M'R' Karia. After thats court order, the appellant then filed its applicaEion to the MinisE.er of Finance for a repossession nl- vs Mansu fal ^P la

certificate. The Minister's reply has been set out above '

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These facts are contained in a sworn affidavit accompanying t.he appeal to the High CourE. The affidavit daEed 5th May ¹⁹⁹⁵ was sworn by AMIN MOrAMED ABDULAZIZ PIRANI ' There is no affidavit in reply and there is no oEher evidence on record to contradicE. the evidence contained therein' Although the respondent had in his written statemenE of defence rejected mosE of the main avermentss alleged in the plalnt' ats the trial the following admitted factss pursuant to order XI r 5 of the Civil Procedure Rules were tendered: -

- 1. The property registered in I-',RV 85 Folio 10 plot ¹³ Market Street, Kampala was expropriated by Government in 1972, - 2. At the time of expropriation by Government in !972 L}],e propert.y was in Ehe name of the appellanE' - 3. No certificate auEhorizing repossession as provided for in the ExpropriaEed properties Act 1982 has ever been issued to Makerere ProperEies, - 4. By letter Ref: uc7lcovt/963/9 PIR dated 9tsh JuIy, ¹⁹⁹¹ from the office of the Minister of Finance VerificaEion Committee addressed Eo 14/S MuIira & Company Advocates Mr. z. K' Kabagambe on behalf of the ExecuEive Director inter al-ia advised that ^a cerEificate aut.horizing repossession Eo Makerere Properties Ltsd. in respect' of PIot 13 MarkeE Streets' Kampala was being prepared for issue to Ehe said Makerere ProPertsies, - 5. The departed Asians property CusEodian Board in its

LeEEer Ref: UC?/COM/953/9 PIR dated 1st August, 1991 addressed to "AIl CusEodian Board Tenants of PIot ¹³ MarkeE SEreeE KampaIa" Ehe Ag. Execut.ive Secretary advised int.er alia that Ehe propert.y would be returned Eo the rightful former owner j..e. Makerere ProperEies L.,td. wiEh ef fect from 2/7 /1991 ,

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- on 20/7/92 Ehe Departed Asians Propert.y CusEodian Board under its RenE/WaEer Receipt No. C8456O72 collecEed rent of shs 300, 000/= from its tenant Ahamada Yawe Import & Export who was occupying Plot ¹³/4 markeE SEreet Kampala, 6 - Otr 30/7/92 the Departed Asians Property Custodian Board under iEs Rent/water ReceipE No. C8458407 collected rent of shs. 150, 000/= from its tenant Ahamada Yawe who was occupying plot 13/4 MarkeE Street. Kampala, '7 - Since the writing of l-eEEers mentioned in number 4 and 5 of the Notice no cerlificate auEhorizing Repossession of plot 13 Markets Street, Kampala has ever been issued to M/s Makerere Properties Ltd., I - Early in 1995, Ehe Divest.iEure Commit.t.ee dealing with Expropriatsed Properties advised t.he Minj.ster of Finance to issue a certificate auEhorizing repossession of PLot 13 Market StreeE, Kampafa to Makerere Properties L,td. , and 9 - But the MinisEer rejected E.he application for repossession of Plot L3 Market Streets Kampafa by Makerere Properties L,Ed. on the grounds stated in his 10

lettser addressed to Makerere Properties Ltd dated 10th April 1995 F(eft YL/MF/20.

By these admissions, in effect, the parties admj'tted that:-

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- (a) PIoE No. l-3 MarkeE Streets, Kampala belonging to Makerere property Ltd was expropriatsed by Government in 1-972, - (b) Up to August 1995 no Certificate of Repossession had ever been issued as provided for in AcL 9/L982' - (c) The DAPCA admitted that through its own invest. igat ions , it had found out that PloE No' ¹³ Market Stsreet had been transferred to M'R' Karia fraudulently and Ehat in 1991'. the property truly belonged to Makerere propert'ies 1td', - (d) Up t.o l-992 tshe DAPCA was stil1 coltecting renE from tenants in Plot. No. l-3 Market Street Kampala, - (e) Up to the time of Erial no certificaEe of Repossession had even been j.ssued to Makerere properties for plot No. 13 markeE SEreet, KamaPala, and - (f) Early 1996 the Divesture committee deating with Expropriated Properties advised the MinisEer of Finance Eo issue a Certificate of Repossession Eo Makerere Properties Itd for plot. No. 13 MarkeE Street Kampala. But the Minister rejected the advice for reasons he communj.cated in his letter dated 10th April 1995.

when the trial began on 9/9/96 Mr. Sekandi. learned couneel for the plaint iff /appellant made a short submission followed by M/s Arach who was then counsel for responden! ' In her submission

which was equally short, opposed the appeal on the ground that Plot No. 13 Market Street Kampala belonging to Makerere Properties Ltd was returned to the former owners by DAPCA acting under $S.17(3)$ of Decree No. $27/73$ . That the letter of the Minister of Finance of 10th April 1996 conveyed that decision. Ms Arach is not recorded by the High Court as having tendered any exhibit during her short submission but when Mr. Sekandi rose to make a brief reply, he aluded to a document that was to prove to be very important in the case. He stated:-

"My learned friend tendered a letter dated

$30/9/81."$

It is not clear how this sentence fell out of his mouth because M/S Arach did not tender any document and indeed although a photocopied document dated 30/9/81 appears on the record of appeal it is not marked as an exhibit and the High Court record does not show how it came to be on record.

It should be noted that during the proceedings of $9/9/96$ two matters which were not at all in evidence came into play being introduced through submissions at the bar, namely:-

- That the DAPCA had returned Plot No. 13 Market Street, $(a)$ Kampala to its former owners under the provisions of S.17(3) of Decree $27/73$ . - The document dated $30/9/81$ . $(b)$

As will be seen in a moment it is on these two pieces of "evidence" that the learned judge conferred the status of being the most important evidence in the case and on which she heavily relied to dismiss the appellants appeal.

The Memorandum of Appeal which was very poorly drafted raises

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eighE grounds of appeal which can be summarised as follows : -

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- a) The learned appellate judge erred when she relied on section 17 (3) of Decree L7/73 ard the document daEed 9.9.81 bot.h of which had not been properly admitt.ed in evidence . - b) The learned judge erred in holding thaE plot 13 Market. St.reet. Kampala was returned to Ehe owner when there was no such evidence . - c) ThaE having accepted that Expropriated Propertj.es Act applied to the Suit properEy, Ehe learned judge erred when she held that the purporEed "return" was not nullified by Ehe Act. - d) That the learned judge failed to evaluate Ehe evidence which 1ed her E.o make wrong concl-usion "

I sha1l now turn to the meriEs of this case. At Ehe hearing of this appeal, Mr. Sekandi for the appeLlant made a full oral submission. Ms. Sarah Banenya for t.he respondent applied to submit writEen submission which application was granted. we also allowed Mr. Sekandi to file a wriEEen reply if he so wished. After filing all Eheir argument.s, boEh counsel were caLled in open court to address us on the effect on this appeal of the decision of the Supreme CourE in civil- Appeal No 16A4 faroaus Cvcles Aqencies l-,td and 4 oEhers vs Mansukhlal Rani i Karia & ² others, which counsel for the respondent heavily rel-ied on j-n her wriEEen submissions. The decision was to Ehe effect t.hat. t.he suit property was proved to be tshe properEy of Ramji Karia which he IawfuIIy purchased from A.s. Pirani.

Mr. Sekandi argued grounds (a) and (b) above EogeEher. He

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submiEted that Decree 17/73 was not. pleaded as a defence nor did the Minister's letster refusing the appellants application say thats the refusal was based on that decree. It was not in Ehe O admitted facts which were tendered in evidence. When counsel for the respondent staEed from t.he bar that she relied on Ehats decree, she never t.endered any evidence to the effect that the suit property was ever dealt with in accordance with that decree. He submiEted thaE Ehe judge was wrong to have reLied on the provisions of Decree !7 /73 aE al-L.

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on tshe documents on the record dated 9/9/81 Mr. Sekandi submi.tted that. it was not clear how Ehe document. had reached Ehe courE record. According to him, it was never tendered in evidence and was a phoEocopy whose origin was not estabLished. It. was noE among t.he documents tendered by consent of bot.h parties in the Hj-gh CourE. He could not see how the judge came to drag in and rely on such a documenE.

On t.he holding tha! the suiE property was returned to the former owner in 1981, Mr. Sekandi submit.t.ed EhaE there was no such evidence whatsoever on record to support such a holding. First. Ehe document that made such allegaEion is Ehe same document daEed 9/9/81 whj.ch had no evidentiaL value at all. secondly Ehe evidence which was admitted by consent of both part.ies show thaE if there was ever any I'reEurn" of suit property aE all, j,t was not to the appeLLanE.

Responding Eo these arguments, Ms Sarah Banenya counsel for the respondent submitEed Ehat the learned judge was right to rely on the provisions of decree l7/73 because it was the law applicable when the property was in 1981 reEurned Eo the appellants and the decision of the Minister conveyed that fact.

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> On the document dated 9/9/81 Ms Banenya submitted that the trial court could not have relied on a document that did not come to it through either party. She conceded that there were many gaps in the record of the court and that could explain why the record is not clear as to how the document was admitted. She submitted that the court did rely on the document and counsel should not be seen to dispute it now just because it carries weighty evidence against his client.

> On whether the suit property was actually returned to its former owner - the appellant, Ms Banenya submitted that under decree $17/73$ it was the DAPCA to return the properties to the former owners and this was exactly what had happened in 1981 at least according to the document dated 30/9/81.

In her judgment, the learned trial judge in the High Court found that the suit property was returned to its former owner on or around the 30th September, 1981 under Section 17 (3) of Decree 27/73. Although she agreed with counsel for the appellant that the Expropriated Properties Act, (Act 9/82) applied to the suit, she held that Parliament could not have intended to interfere with the rights of owners of property who got back their property under decree 27/73 and who may have transferred it to other She therefore upheld the parties as in the present case. decision of the Minister of Finance contained in his letter to the appellant dated 10th April 1996 which had stated that:-

> "Your application to repasses the above mentioned property (Plot 13, Market Street Kampala) is hereby rejected, on the grounds that you affected a transfer of the property on 27th November, 1981. Although your advocate have argued that

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on 27th November, 1981.

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Although your advocate have argued that the transfer of the property was nullified by the provisions of the Expropriated Act, I do not accept this argument since the major purpose of the Expropriated Act is to provide for the return of Expropriated properties to their former owners, and the Government had, through the Departed Asians Property Board already returned the property to you in 1981.

Your application is accordingly rejected under S.8(1)(b) of the Expropriated Properties Act."

In arriving at this conclusion the trial judge seems to have been influenced by three pieces of "evidence" namely:-

- $(a)$ That there was a return to former owner of the suit property in 1981. - That the return was under Decree $27/73$ . $(b)$ - $(c)$ That A. S. Pirani was the former owner.

The purported return of the suit property is based on a photocopied document which appears on the record. It has no exhibit number and there is no indication on record how it was tendered or received in evidence. It is not mentioned in the evidence that was tendered by the consent of both parties. It does not have an address and reads like this:-

$\mathbf{H}$

## 30th Sept 81

CB/CL/12/641

M/S Makerere Properties Ltd. P. O. Box 705 Kampala.

Dear Sir,

# Plot No. 13 MARKET STREET KLA

refer Please to your application to repossess the property mentioned above. I would like to inform you that you have been authorised to repossess the same.

I would like, however, to make it clear that the Government will have to issue you with a final certificate of ownership after finalisation of the administrative machinery and policy of returning properties to their previous owners. Furthermore you are advised to enter into new tenancy agreements with the present tenants until the government finalises the machinery.

### Yours faithfully.

# (J. Sonko) For: AG. EXECUTIVE SECRETARY"

Though this letter is copied to the Deputy Minister of Finance and a few other Government officials, it is not clear which institution it came from as it contains no address of origin incidentally there is also on the record a document marked "D" annexed to the affidavit of Amin Mohamed Abdulaziz Pirani signed by the same J. Sonko dated 1/10/81 addressed to tenants of Plot 13 Market Street telling them that the property was returned to the previous owner Mr. S. A. Pirani of P. O. Box 33 Kampala. This document clearly contradicts the one dated 31/9/81 which claims that the property was being repossessed by the appellant.

Be that as it may, I agree with counsel for the appellant that this document was never properly admitted in evidence and has no evidential value at all. There was no evidence that plot 13 Market Street Kampala was ever dealt with under S.17(3) of decree 27/73 or that it was indeed ever returned to the appellant. In fact admitted evidence by both parties is to the effect that the suit property which was expropriated by Government in 1972 was never returned to the appellant. There is evidence that it was returned in 1981 to one A. S. Pirani who fraudulently pretended to be acting on behalf of Makerere

properties but when this fraud was discovered by DAPCA. the letter of repossession they had issued was cancelled and they advised t.he MinisEer of Finance of this posiE'ion' IE is amazing t.hat despite the advice of the DivesEiEure CommitEee to the Minist.er that a certificate of repossession for Ehe suit property be issued to che appellant, he sti. II insisted that lhe property had already been returned to them contrary Eo all available evidence .

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In my judgement, the learned judge, like the Hon. MinisEer of Finance, misdirecE.ed herself when she held thats t.here was nothing for the Minister to reEurn to the appellant. She did not groperly evaluate the evidence before her. If she had done so, .she would have found tshats tshe suits property which belonged !o the ,lppellant at tshe time of Expropriation in L972 has never been :.eEurned to them but was instead wrongfully returned Eo one S. A' l?irani who was admiEE.edly one of the direcEors of tshe appellant ])ut was not the appellant. iE.self . The first and second grounds of appeal must therefore succeed.

The third ground of appeal was t.hat having acceptsed that' Act s)/82 applied Eo the suit. properEy, the learned judge erred to trold that the "return" was noE nuLl'ified by the Act. As I have .rlready observed above, Ehe reEurn of t.he sui'E properEy Eo S'A' E'i.rani in 198L was wrong because he had no authority to claim Ehe F,roperty on behalf of the appellanE. In Company Cause No 2/92 Amin Mo hamed Abdulazi z Pirani vs Ma sukhlal Ram-lI Karia. the High CourE heLd that S. A. Pirani had fraudulently repossessed the suit propertsy and Eransferred it tso M. R. Karia- The facE Ehat M. R. Karia subsequenEly registered the suit propertsy in his names does

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not change much as the transaction was affected by fraud. Even if however, it had not been nullified by fraud, it could not survive the operation of Act 9/82 which provided in section 1 $that:-$

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> Expropriated properties shall from the $"1(1)$ commencement of this Act remain vested in Government and be managed by the Ministry of finance.

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

#### any purchase, transfers and grants of or any dealings $(a)$ of whatsoever kind in such property on business are hereby nullified." (emphasis mine).

The full legal consequences of this provision were considered by the Supreme Court of Uganda in Civil Appeal No.12 of 1992 Gokaldas Laximides Tanna vs Sr Rosemary Muyinza and DAPCA. The brief facts of this case were that one Vipinchandra Dharatal Desel was in 1965 the registered owner of the suit property (Plot No.12 Hannington Road, Kampala. On 21st December, 1965 be executed a legal mortgage in favour of UCB in order to secure a loan. On 22nd February 1982 the property was sold to the appellant on the instructions of the bank. The appellant became the registered proprietor of the suit property in 1986. In the meantime the property had been under the management of DAPCB, the 2nd respondent, and the 1st respondent was their tenant was their tenant. The appellant attempted to evict the 1st respondent but she resisted

his claim to the property.

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The appellant filed a case in the High Court and lost. He appealed to the Supreme Court.

In a unanimous decision of the Supreme Court, Oder J. S. C. said:-

> "As I understand it, the meaning of section $1(2)(a)$ of the Act (Act 9/82) appears to be this:

- (i) It nullified any - - $(a)$ purchases, - $(b)$ transfers and grants - dealings of whatever kind in $(c)$ - (ii) properties now vested in Government. - (iii) Such transactions were nullified notwithstanding the provisions of the any written law governing conferring of title and $\verb|the|$ passing of transfer of such title to: - $(a)$ land - $(b)$ property or - business. $(c)$

The suit property in the instant case had been owned by a departed Asian prior to As the agreed facts at the trial 1972. indicate, the suit property was expropriated by the government and put under the control of the Departed Asians property Custodian Board since that time. In the circumstances there would be no doubt that the suit property was one of those to which the Expropriated Properties Act 1982 applied. Section 1(1)(a) of the Act vested it back in the government and brought it under the management of the Ministry of Finance. consequently in my view, if any of the transactions listed in $S.(2)(a)$ above was carried out in respect of the suit property, such transaction was nullified by that section, if the transaction was affected between the time when the suit property was first vested in Government by the Assets of Departed Asians Decree, 1973 and the time when the Act of 1983 came into force, namely on 21st February 1983."

In my judgment the principles which were applied in the Tanna case above fully apply to the instant case. Any purported return of the suit property to S. A. Pirani in 1981 and the subsequent regist.raCion of the property into the names of M. R. Karia were both nullified by Act 9 of 1982 as tshey were both effect.ed between 1973 and 21st February l-983 '

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In 1995, when the appellant applied for repossession of tshe suit property, the properE.y had not yet been dealt with in accordance wiEh E.he AcE and was stiIl vested in Government. In facE Ehe suiE property is stiII vested in Government. The MinisEer of Finance was Eherefore wrong Eo reject the application and the reason he gave for Ehe rejectsion was not correct. Similarly tshe learned judge in Ehe High Court misdirected herself when she refused to apply Ehe fuLl force of Aci- 9/]-982. The appeal on ground three must therefore also succeed.

The final ground of appeal complained abouE Ehe failure of the learned judge to properly evaluaEe the evidence. My findings on grounds one, Ewo and Ehree of the appeal clearly show tshaE there was a serioug f aj.lure by the judge to evaluatse the evidence. As a result she arrived aE wrong conclusions on al1 maEerial issues. I think Ehe fourth ground also succeeds.

Before I Eake leave of Ehis case, I wish t.o comment on the writEen submission of M/S Sarah Banenya, learned counsel for Ehe respondent in which she relied on lhe decision of Ehe Supreme court in civil ADpeal No. 15 of 1994 Famous cvcle Aqencies Ltd and 4 otshers vs Mansuklrlal Rami i Kari-a and two others in an attempE not only to show that the DAPCA fost control of the suit properEy in 1981 but also tso asserE that the supreme Court of Uganda has already decided that Ehe suit property acEuaLly belonged to Mansukhlal Ramji Karia who was t.he 1st respondent together with Makerere Properties ltsd and DAPCA as 2nd and 3rd

respondents respectively.

The case was originally filed in the High Court by the tenants of Plot 13 Market Street Kampala. Because of conflicting claims of the respondents to the property, the tenants did not know exactly whom to pay rent. The sole purpose of the suit was to request the court to declare who was the right person to receive the rent. At the trial, the plaintiff failed to show up and the suit was dismissed and judgement was entered in favour of the 1st respondent on a counter claim.

On appeal the 2nd and 3rd respondents did not participate as they indicated they had no interest in the dispute concerning The 2nd respondent who was at the time pursuing the rent. certificate of repossession of the property showed no interest because his right to receive rent would only arise after obtaining the certificate. The whole appeal turned on the question whether the trial judge was right to dismiss the suit and to hold that the 1st respondent was the rightful proprietor of Plot 13 Market Street Kampala as he had held.

The Supreme Court, (Oder J. SC) said:-

"The objective of the appellants suit was not to contest the ownership of the suit property between the appellants on the one hand and the respondents on the other or between the respondents themselves. The objective, as already said earlier in this judgment, was to determine to whom the appellants should pay the rent. The<br>appellants did not claim any proprietary interest in the suit property. In the circumstances it would appear that whoever of the three respondents was the rightful owner of the suit property was not an issue as far as the appellants were concerned except as an indication to whom they should make payment of rent.

Secondly, long before the suit came up for hearing the appellants well knew that only the 1st respondent was claiming to be the rightful owner of, and the 2nd and 3rd respondents had disclaimed any interest in, the suit property. In the circumstances Mr. Lule said, properly so in my view, it is a the matter of considerable puzzle why appellants still proceeded on with the suit in the form it was framed in the plaint or at all.

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Thirdly, the 1st respondents evidence in my view proved beyond the balance of probabilities that he had bought the suit property from the 2nd respondent and that he was the registered proprietor thereof as evidenced by the certificate of title, exhibit P.1. As such his title was<br>indefeasible under S.56 and 184 of the Registration of titles Act, except on (emphasis mine) grounds of fraud."

In view of the fact this case was introduced only in the respondents written submissions, we invited both parties to address us on its effect on the instant case.

Ms Sarah Banenya, learned counsel for the respondent simply submitted that although the Supreme Court did not decide the issue of ownership of the suit property. It decided that one Karia bought the property after it was returned to the owner in 1981. She therefore submitted, if we understood her well, that the decision was in favour of the respondent in that case and binding on this court.

On the other hand Mr. Sekandi counsel for the appellant submitted that the case was irrelevant to the instant dispute. He gave a number of reasons.

First, he submitted that C. A. No. 16/94 was an interpleader suit for the court to declare the rightful landlord of plot No. 13 market Street Kampala. It was not about who was the right owner of the property.

The High Court dismissed the suit because the lawyer of the

plaintiff abandoned the case. The defendant was lhen allowed to prove his counter-c1aim for renE due. He was aE the time the registered proprietor under the Regiatration of Titles Act ' The O court di.d not have tso consider the effect of ghe 19?3 decrees or Ac:. 9/a2 on the suit propertsy. The Court simply held that as the registsered proprietor, he was the Erue landIord. The CourL never passed any j udgement against the present appel'lant at aII' He submitsEed that that had the issue of exproprialion of the suit properEy come up, both courts would have been bound to fol1ow the decision in No. ER. RO 1nz a another ( supra) and held thaE the Act of registering the defendant. as Ehe proprietor of Pfot 13 Market Square was nullified by Act 9/82.

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Secondly, he submitEed EhaE CA. No.l5/94 was beEween people who are not part.ies to t.he instanE case. The parE'ies there were t.he tenants and Karia none of whom is a party to Ehis suiE ' He submit.t.ed that since the appetlant had withdrawn from Lhis suit, his righcs could not be affected by the decision of Ehe Supreme Court where he was noE a parEy. He reLied on viI a\* of L995 Mohamed Af libhai - vs w. E. Bukenya Mukasa & DAPCA .

Finally he submitted that CA. L5/94 was noE relevant to Ehis case because, in tshe insEant case parEies agreed that the property was abandoned and was affected by Act 9/82 arrd thaE no repossession cerE.ificaEe or certificate of purchase has ever been issued as required by the Act. This Eituatsion di-d not obtain in C. A. No . L6/94.

AfEer careful consideration of this matter, I agree wiEh learned counsel for t.he appellant that: -

(a) C. A. No. 15/94 did noE resolve the issue of ownership of plot 13 Market Street Kampala. The only issue in the High Court was which of the three original defendants was the rightful- person t.o receive rents. Even that issue was never resolved on merit. as Ehe suits was dismissed on the technicaliEy thaE the plaintiffs and/or their advocate failed tso appear on Ehe date of hearing the suits. The Supreme CourE held that the learned ,Judge was righE Eo do so and upheld his other holding based on one sided evidence. AE that time one M. R. Karia. who was the only act'ive de fendant. /respondent , was the regist.ered proprietor of Plots 13 Market StreeE Kampala. Due to the naEure of Ehe dispute, both Ehe High Court and the Supreme Court did not know as we now know Ehat M. R. Karia had obtained the registsration through fraud - see gqBpe4y Cause No. 2 of 1992 Am in Mohamed Abdufaziz Pirani - vs Mansuk lal Ram'1 l- Karia & 2 othrs . See afso adm ssaons No. ⁴ and 5 in FA S ADMITTED n the insta t case (supra) where the Attorney General conceded that. the DAPCA had established that registratsion of Karia as Ehe owner of Plot 13 Market Screets was obt.ained by fraud.

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(b) Civil Appeal No. 15/94 was decided solety on the basis of the Iaw in the RegisEration of Titl'es AcE. Both parties in t.he inatant case conceded Ehat Plot ¹³ Market Street was expropriaEed and therefore AcL 9/82 applied Eo it. I firmly believe that if the fact of

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application of Act $9/82$ had been brought to the attention of the High Court and the Supreme Court, the two Courts would have probably arrived to a different conclusion.

- (c) On the authority of Mohamed Allibbai vs W. E. Bukenya Mukasa and DAPCB (supra), the rights of the appellant in the instant case were not affected or prejudiced by the Supreme Court decision in C. A. No.16/94 where they were not parties and where non of the parties in that case is a party to the instant case. - (d) The decision of the Supreme Court was therefore irrelevant and inapplicable to the facts of the instant case.

In the result, I would uphold the appeal, set aside the judgment and orders of the High Court dated 30th september 1996, enter judgment for the appellant and direct that the matter be dealt with by the Minister concerned under Act 9/82. I would grant the appellant the costs here and in the High Court.

181 June ..... day of ...... June ... 1998. Dated this ....

WINOMUJUNA<br>WINOMUJUNA<br>MCE OF KAPPEAL

$20$

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

S. T. MANYINDO - DCJ, S. G. ENGWAU - JA, A. TWINOMUJUN - JA) (CORAM:

### CIVIL APPEAL NO. 36 OF 1996 BETWEEN

$\cdots \cdots$ **APPELLANT MAKERERE PROPERTIES LTD:** $\overline{\cdots}$ $\cdots\cdots$ $\cdots$ $A$ $N$ $D$ ATTORNEY GENERAL: $\cdots\cdots$ $\cdots\cdots$ $\cdots\cdots$ **RESPONDENT** $\cdots\cdots$

#### JUDGMENT OF MANYINDO - DCJ:

I read the judgment of Twinomujuni - JA, in draft and I agree with it. The facts are fully set out in that judgment and I need not repeat them here. At the hearing of the appeal Counsel for the appellant argued a point of law outside the Memorandum of Appeal. It is that the learned trial Judge had wrongly permitted Counsel for the respondent to submit first when the respondent had not adduced any evidence. He contended that that procedure offended O 16 Rule I of the Civil Procedure Rules which provides as follows:-

> "The plaintiff shall have the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant shall have the right to begin."

In this case eight facts were admitted by the parties under O 11 r 5 of the Civil Procedure Rules. The ninth fact that the appellant company was entitled to an order of repossession ofthe suit property was not admitted, as the respondent's case was that the property had already been repossessed by the appellant. lt follows in my view that under the provision of O 16 r I above the Counsel for the respondent had the right to begin submissions. There was thus no merit in the point of law raised b1' learned Counsel for the appellant.

As for the merits of the case, it is plain that lhe appellant's property was expropriated by Covemment. The purported return ofsome was made not to the appellant company but to S. A. Pivani as an individual. As far as the appellant company is concemed, lhe property remains expropriated until it is dealt with by the Ministerof Finance under the Expropriated Properties Act, 1982. It is for this reason thatthis appeal must succeed.

It is not clear from the Memorandum of Appeal exactly what the appellant wants this Courl to give them by way of relief. The concluding part of the Memorandum of Appeal states as follows:

#### "IT IS PROPOSED to ask Coutt for Orders that:

- (i) This appeal be allowed and lhe JudgmenUDecree of Coua below be set aside. - (ii) Judgment be enlered for the Appellant below. pruyed - (iii) The respondent pays tlre cosls of lhe Appeal and those of Courl below."

Presumably the prayer in (ii) above relates to the reliels which were sought the plaint in the High Court, namely. ln

- "(l)The Appellant be granted lawful to repossession by way of a certificate of repossession. - ( l) The Appellants be granted power lo take over vacant possession of the appeal property situate at Plot No. l3 Market Street - Kampala. - (2) The Appellant be registered as lawful owner and repossession of the appeal property situate at Plot No. l3 Market Street - Kampala. - (3) Costs of this appeal be provided fbr."

o

Clearly, this Court cannot grant prayers 1,2 and 3 since the power to return expropriated properties lies solely with the Minister of Finance, under section 4 of the Expropriated Properties Act, 1982. The Minister has a discretion in the matter. ln the premises, this Court can only direct that the matter of repossession of the expropriated property be dealt with by the Minister under the Act.

a

As Engwau - JA. also agrees, this appeal is allowed in terms and orders purposed by Twinomujuni - JA.

tt DATED at Kampolo this day of: f- n.:0, 1998.

S. T. MANYTNDO DEPUTY CHIEF JUSTICE

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF I]GANDA AT KAMPALA

# o RAM: S. T

#### CIVIL APPEAL NO. 36 OF 1996

#### BETWEEN

MAKERERE PROPERTIES LTD APPELLANT

AND

ATTORNEY GENERAL RESPONDENT

(Appeal from Judgment and decree of the High Coun at Kampala (Byamugisha J.) dated 30th September, 1996).

#### JUDGMENT OF ENGWAU. J. A.

I have had the benefit of reading the judgment of Twinomujuni J. A. in draft and I agree with lt

In the premises, I would allow this appeal with costs to the appellant here and in the court below.

Dared at Kampala,ht,......l.. L:... day of Atu ¹⁹⁹⁸

S. G. ENG JUSTICE OF APPEAL