Wakilii

Arvinbhai Popat v Aida Mewali (Civil Appeal 1 of 1996)

Court of Appeal · [1997] UGCA 27 · 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 concerning expropriated property
Decision
Appeal allowed; respondent's suit dismissed and vacant possession of the suit property ordered to the appellant

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Holding

The Court of Appeal held that the late Khimji was a departed Asian whose property vested in Government under Decree No. 27 of 1973 and the Expropriated Properties Act 1982. The alleged 1972 transfer to the respondent was a forgery and, in any event, void as a prohibited post-cancellation transfer. The respondent's registration was not protected by section 56 of the Registration of Titles Act because section 1(2)(a) of the 1982 Act nullified transfers of vested property made before commencement. The Certificate of Repossession was valid. The appeal was allowed, the respondent's suit dismissed, and vacant possession ordered to the appellant.

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 her four children. In 1972 he was expelled with other Asians and went to England, where he died in 1990. The respondent and children were evicted in 1973 on the basis the property had been abandoned, and it was taken over by the Departed Asians Property Custodian Board. In 1980 the Board returned the property to the respondent, who registered it in her name. After Khimji's death, his son Ashokumar obtained letters of administration, appointed the appellant as attorney, and obtained a Certificate of Repossession in 1994. The respondent refused to vacate and sued for declarations that the property was hers and the repossession certificate void. The appellant counterclaimed for eviction and possession. The trial court favoured the respondent; the appellant appealed.

Issues

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

Orders

  • Appeal allowed.
  • Judgment and orders of the trial Judge set aside.
  • Respondent's suit dismissed.
  • 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 to the appellant.

Key headnotes

Expropriated Properties — Vesting in Government — Departed Asian Property
A non-Ugandan Asian who declared property to Government on departure following cancellation of his entry permit is a departed Asian whose property vested in Government under Decree No. 27 of 1973 and the Expropriated Properties Act 1982.
Departed Asians Property — Prohibited Transfers After 6 October 1972
A transfer of property by a departing Asian whose permit had been cancelled, made after 6 October 1972, is null and void under section 1 of Decree No. 27 of 1973.
Registration of Titles — Section 56 Protection — Nullification by Statute
The protection conferred on a registered proprietor by section 56 of the Registration of Titles Act does not apply where the transfer of vested property was nullified under section 1(2)(a) of the Expropriated Properties Act 1982 by being effected before that Act's commencement.
Expropriated Properties Act 1982 — Nullification of Intermediate Transfers
Any purchase, transfer or grant of property vested in Government is nullified if effected between the time the property first vested under Decree No. 27 of 1973 and the commencement of the Expropriated Properties Act 1982.

Legislation cited (9)

  • Departed Asians Property Custodian Board Decree (No. 27 of 1973) s.1
  • 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 DAPCB (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.