[1998] UGHC 24

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISO. APPL. NO. 375 OF 199? ^X

ARISING OUT OF IICCS. 5^ OF ^995

RAVIG PATEL &. ' OTHERS PLAINTIFFS -versus-ATTORNEY GENERAL & OTHERS DEFENDANTS BEFORE:- HON. THE PRINCIPAL JUDGE - MR. JUSTICE J. H. NTABGOBA

## RULING

This is an interesting matter and ^I should be **IO** cautions not to make such a ruling as would effectively dispose of the pending HOGS. No. 5V95 since by this ruling such an eventually is possible. This ruling is upon an application by the A plaintiffs brought under Order 6 rules. 18 8c 50 of the Civil Procedure Rules. The application sought to amend the plaint by pleading, in the alternative, for compensation to be paid by the 1st ana End defendants who happen to be the Attorney General and the Departed Asian's Property Custodian Board (DAPCB). The plaint, respect of the suit property". a (title unamended, seeks, inter alia, "an order that "1st defendant ^2.0 do issue to the plaintiffs a Certificate of repossession in

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It is in the alternative to this prayer that the plaintiffs are seeking , by the amendment, payment of compensation. 1 imagine the prayer for compensation as an alternative to the prayer for the repossession of the suit property that was appropriated by Government through the C.ustodian Board and the Minister, was prompted by the fact that the suit property has passed into so many hands and that third parties have had firm grip on the said suit property.

necessary. proprietors of the property comprised in LHRV. 118, Folio 7 also known as plot No. 4 Fort Road, Kampala, were expelled by the Idi Amin Government under the draconian so called .economic War, when several persons of Asian origin were expelled. To appreciate the problem, a brief background is In 1972 the plaintiffs, who were the registered

which sold it and transferred it to one Sebastian Bamutura on 18.9.80. Bamutura, on 20.9\*80 sold the property to Mubiru. It is alleged in the plaint that Christopher Mubiru, in April 1982, mortgaged the property to Grindlays Bank (U) Ltd. Subsequently he defaulted in payment of the mortgage loan. The Bank, accordingly, sold the property under the mortgage to one Company known as Rio Holdings International Limited which is the third defendant in the suit. By the then prevailing laws, the suit property was vested in the Government and managed by the DAPCB, one Christopher

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. on or about 4.7.85 after the enactment by Parliament of the Exproriated Properties Act, 1981?. It is further alleged that the Minister of Finance issued to the third deiendant a Certificate of purchase on 15.11.92 under S. 8 of the Expropriated Properties Act. that the sale to the third defendant by the Bank took place **57**

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The plaintiff, when they applied to the Minister to be therefore not available for repossession. The letter of 'C' of the plaint was such communication. issued with a Repossession Certificate under the Expropriated . *IO* the Secretary, verification Committee dated 10th September, '1995 ana which is annexture Properties Act, 1982, they were informed That the suit Property had been sold to the third defendant ana was

Annexture D of the plaint is a letter written by the advocates of the plaintiff to the Minister on 8/8/94, of the Secretary to the Verification Committee. The then Minister of State for Finance & Economic Planning (C/B) replied to the letter of the advocates in his letter dated 24th August 1994, as follows: apparently in response to the one

" I acknowledge receipt of your letter CIV/58/94 dated 8th August 199z^t with regard to the above subject (i.e. Plot No. 4 Fort Road, Kampala Leasehold Register Volume 118, Folio 7)«

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*1* am by copy of this letter requesting the Executive Secretary DAPCB to up-date me with information with regard to the above subject before I revert".

Mr. Valubiri, learned Counsel for the plaintiffs says that'^i Minister has never reverted since his letter and that it is when he had failed to revert that the suit was filed.

(Nos *1* ana 2) has opposed the application for the proposed amendment. under order 7 rules 6 and 11(d); These "two Rules provide that:- Mr. Amadrama, learned Counsel for the two defendants He argues that the mam suit is statute-barred */£)*

Rule 6: " Where the suit is instituted after the expiration of the period prescribed by the law of limitation the plaint shall show the grounds upon which exemption from such law is claimed".

Rule 11; ii The plaint shall be rejected in the following case:-

> (d; where the suit appears from the statement in the plaint to be barred by any law".

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Mr. /Wadrama argues that the suit must be an appeal that: against the decision of the Minister pursuant to S. 14(1) *C of* the Expropriated Properties^which provides

" Any person who is aggrieved by any decision made by the Minister under this Act, may, within a period of thirty days from the date of communication of the decision to such person, appeal to the High Court against such decision".

Mr. ^pjadrama contends that in this case the decision of the Minister was contained in his letter Annexture "C" aforementioned. That letter having been dated 10th September, Properties Act demanded that any appeal against the in that letter should have been appealed against within a period of 30 nays from 10th September 1993\* Since the plaint in this suit was filed on 25th January 1995 long after the expiration of the thirty days period, it was time-barred under order *'/* rule 11(d) of the Civil Procedure RulesxMr. .iA/4a^rama emphasized the provision of Regulation 15 of the Expropriated Properties (Repossession and Disposal) Regulations (S. I. No. 6 of 1983) which prescribes that:- 1995, the above provision of S. 14 of the Expropriated decision

> " The Rules of Civil Procedure governing the institution of suits in the High Court shall apply to appeals made under section 14 of the Act".

The state Counsel argues emphatically that the suit herein is an appeal against the Minister's decision which, he insists, is contained in the letter of the Secretary, Verification Committee dated 10th September, 1995 aforementioned.

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I feel Therefore I should confine my ruling upon rhe question whether . or not the suit is time-barred since that is the major ground of objection by the state Counsel. A decision on the grounds given by Mr. Walubiri in *erf* support|the application to amend, would, as ^I have already stated determine the entire suit.

Mr. Walubiri has pointed out, letter written by the Secretary, Validation Committee cannot in S. 14 of the Expropriated Properties Act. did indicate that the letter (Annexture 1C' of the plaint) cannot have been his final decision. His letter of 24th August 1994 (Annexture 'E' of the plaint) which I have reproduced above in this Ruling does show that he was yet to give a final ruling because it promises that he would If the letter of 10th September 1995 had been his reply "My decision of 10th September 1995 was final". Instead he gave hope to the plaintiffs by promising them to revert after the briefing of the Executive Secretary, DAPCA. I thus agree with Mr. Walubiri that the Minister having failed to revert no decision of his can be .said to have been capable of being appealed under S.14 of the Expropriated Properties. Act. final decision then one would have expected him to have either kept silence upon receipt of the advocate's letter J^g) (Annexture D of the plaint) or to have given a laconic 'revert' after he had been briefed by the Executive Secretary DAPCA• be said to have been the Minister's decision envisaged Reasons given ^| £) and 1 agree, that the by Mr. Walubiri, which I accept are that the Minister himself

An argument may be raised that the advocate's letter (Annexture 'D') shoula have been written to the Minister within 30 days of his letter (Annexture 'C'). That may as well have been. However, it is true that in the repossession exercise, protracted negotiations are known to have been held. The creation of the "Negotiation Committee" by Regulation 9 of the Expropriated Properties (Repossession And Disposal) Regulations, 1983, and the subsequent replacement of the Negotiation Committee by Regulation 9 of $S.1$ . No. 8 of 1991 with the "Custodian Board Executive Committee" I speak a million in proof of the negotiations that surrounded the process of repossessing expropriated properties. It is thus not outiplace to say that when the applicants applied to repossess their property, got a communication that it was not available for repossession, they could not write enquiring why it was not available. Is it any wonder, therefore, that when the Minister replied their query promising them to revert to the issue, they had to expect him to accordingly revert?

I notice that according to paragraph 16 of the plaint it is averred that the Statut $\varrho_{\gamma}$ Notice of Intention to sue was $20$ given to the Attorney General. Why did not the Attorney General, in his defence, not make an application to have the suit struck out under order 7 rule $ll(d)$ as is the contention now. After all Rule 19 of Order 7 of the Civil Procedure Rules directs that:-

ii Applications under this order shall be by summons in chambers".

I do not agree that the plaint amounts to an appeal against the Minister's decision. If the decision of the Where the Minister makes a decision,as he did in Annexture • .'C¹ or the plaint and then indicates, as he did m Annexture 'E\* that his decision was not, after all final; •his promise to revert, there would be no definitive and final decision to appeal against. And where, the Rules of Procedure are mandatory as happens to be Rule 19 of order 7 of the Civil Procedure Rules, they must be obeyed. but fails subsequently to give a final decision much against **IO** . Minister is to be appealed, it must be final and definitive.

All in all, I do not see why I should not allow the the alternative, for compensation. They have given .that compensation could be an easier alternative remedy. I grant the application. The plaintiffs are given 7 days hereof in which to amend. Should the defendants wish to amend their defence consequent upon the amended plaint, they /are given 7 days to do so from the date when the period given to the plaintiffs expires^o plaintiffs to amend their plaint by adding ^a prayer, m a convincing reason for it when they say that the property 'has, almost in extricably changed third parties' hands and

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The suit is fixed for hearing on $19/5/98$ at 2.30p.m. $\frac{1}{2}$ Rubing is read in the procence of<br>Mr. Detes Walubinifor the applicant d Mr - Mahama for the respondent Mr. NKubi, Gowil alette<br>Chamber Ruling m $28/04/98$