Wakilii

Popat v Mbwali (Civil Appeal 1 of 1996)

Court of Appeal · [1997] UGCA 20 · 1997 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment allowing the respondent's claim and dismissing the appellant's counterclaim
Decision
Appeal allowed; respondent's suit dismissed; respondent ordered to give vacant possession of the suit property to the appellant

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Holding

The Court of Appeal held that the late Khimji was a departed Asian who had declared the suit property to Government on departure, so the property vested in Government under Decree No. 27 of 1973 and the Expropriated Properties Act 1982. Any transfer to the respondent in 1972 was null and void, being made after 6 October 1972 and by an Asian whose permit was cancelled; the alleged signature was also a forgery. The respondent's registration was not protected under section 56 of the Registration of Titles Act because section 1(2)(a) of Act No. 9 of 1982 nullified transfers of vested property. The Certificate of repossession was valid. Appeal allowed.

Facts

Khimji Jethwabhai Tailor, a non-Ugandan Asian, owned a residential house on Plot 6 Owen Road, Jinja, where he lived with the respondent and their four children. In 1972 he was expelled from Uganda and left for England, declaring the suit property to Government on the official declaration form. In December 1973 the respondent and children were evicted, and the property was taken over and managed by the Departed Asians Property Custodian Board as abandoned property under Decree No. 27 of 1973. In 1980 the Board returned the property to the respondent, who registered it in her name. After Khimji died in 1990, his son obtained letters of administration, appointed the appellant by power of attorney, and obtained a Certificate of repossession in 1994. The respondent refused vacant possession and sued for declarations that the property was hers and the repossession certificate void. A handwriting expert found Khimji's alleged 1972 transfer signature to the respondent was a forgery.

Issues

  1. Whether the late Khimji was a departed Asian whose suit property vested in Government under Decree No. 27 of 1973 and the Expropriated Properties Act 1982.
  2. Whether the late Khimji validly transferred the suit property to the respondent before departing Uganda in 1972.
  3. Whether the respondent's registration as proprietor was protected under section 56 of the Registration of Titles Act.
  4. Whether the Certificate of Repossession issued to the administrator of Khimji's estate was null and void.
  5. Whether the respondent could properly bring a suit rather than appeal against the Minister's grant of the Certificate of repossession.

Orders

  • Appeal allowed.
  • Judgment and orders of the trial Judge set aside.
  • Order substituted dismissing the respondent's suit.
  • Respondent directed to give the appellant vacant possession of the suit property forthwith.
  • Costs of the appeal and of the suit in the High Court awarded to the appellant.

Key headnotes

Departed Asians Property — Definition of Departed Asian — Effect of Declaration of Property to Government
An Asian who declares his property to Government on departure from Uganda is a departed Asian within section 35 of Decree No. 27 of 1973, and the property so declared vests in Government.
Departed Asians Property — Prohibition on Transfer After 6 October 1972
A purported transfer of property by a departing Asian whose permit was cancelled, made after 6 October 1972, is null, void and time barred under section 1(1)(2)(3) of Decree No. 27 of 1973.
Registration of Titles — Indefeasibility — Statutory Override by Expropriated Properties Act
Registration as proprietor is not protected by section 56 of the Registration of Titles Act where section 1(2)(a) of the Expropriated Properties Act 1982 nullifies any transfer of vested property effected between vesting under Decree No. 27 of 1973 and commencement of the Act on 21 February 1983.
Handwriting Expert Evidence — Unchallenged Evidence to be Accepted
Where uncontested handwriting expert evidence establishes that a signature on a transfer document is a forgery, that evidence should be accepted as true and the document cannot ground a valid transfer.
Repossession of Estate Property — Family Claims to be Pursued Under Succession Act
The duty of the Minister of Finance and the courts is simply to return repossessed property to its former owner; claims by the former owner's family must be pursued separately under the Succession Act.

Legislation cited (10)

  • Departed Asians Property Custodian Board Decree (No. 27 of 1973) s.1
  • Departed Asians Property Custodian Board Decree (No. 27 of 1973) s.1(1)(2)(3)
  • Departed Asians Property Custodian Board Decree (No. 27 of 1973) s.35
  • Expropriated Properties Act 1982 (No. 9 of 1982) s.1(1)(c)
  • Expropriated Properties Act 1982 (No. 9 of 1982) s.1(2)(a)
  • Expropriated Properties Act 1982 (No. 9 of 1982) s.14
  • Registration of Titles Act s.56
  • Civil Procedure Rules Order XI rule 5
  • Hindu Marriage and Divorce Act (Cap. 214)
  • Succession Act

Cases cited (2)

  • Gokaldas Tanna v Ntoyinza and Departed Asians Property Custodian Board (Civil Appeal No. 12 of 1992)
  • Registered Trustees of Kampala Institute v Departed Asians Property Custodian Board (Civil Appeal No. 21 of 1993)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.