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Kiwanuka v Chand (Civil Appeal No. 27 of 1998)

Court of Appeal · [1998] UGCA 70 · 1998 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment in a statutory appeal under the Expropriated Properties Act concerning repossession of expropriated property
Decision
Appeal allowed; High Court judgment and orders set aside; no retrial ordered as the suit was misconceived and a nullity

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Holding

The Court of Appeal allowed the appeal, holding that High Court Civil Suit No.693 of 1992 — a statutory appeal under section 14 of the Expropriated Properties Act against the Minister of Finance's refusal to grant repossession — became misconceived and a nullity once the Minister issued a Certificate of Repossession, removing any cause of action against the Attorney General. The Court further held that the trial judges' repeated failure to rule on or give reasons for interlocutory applications invalidated the proceedings and caused a miscarriage of justice. As the record of appeal was also incomplete, the trial amounted to a mistrial. The judgment and orders were set aside; no retrial ordered.

Facts

Property on Impala Avenue, Kampala was expropriated by the Government in 1972 and vested in the Departed Asians' Property Custodian Board (DAPCB), which sold it to Ibrahim Mwanga, who sold it to the appellant in 1979. The Expropriated Properties Act 1982 nullified the appellant's title. The appellant lodged a claim, obtained a Certificate of Purchase in June 1991 and was registered as owner. Meanwhile the respondent, widow and executrix of the original registered owner, returned in 1991 and applied to repossess. Initially refused, she filed Civil Suit No.693 of 1992 under section 14 of the Act against the Attorney General. The appellant later sought and obtained joinder. After the proceedings began, the Minister of Finance changed his mind and issued the respondent a Certificate of Repossession on 16 September 1993. The respondent then amended the plaint, dropping the Attorney General and seeking cancellation of the appellant's registration, vacant possession and mesne profits. The High Court ruled for the respondent.

Issues

  1. Whether a statutory appeal filed under section 14 of the Expropriated Properties Act against the Minister's decision could validly continue without the Attorney General as a party after the Minister issued a Certificate of Repossession.
  2. Whether the glaring irregularities in the High Court proceedings occasioned a miscarriage of justice and invalidated the trial.
  3. Whether the appeal could be determined where the record of appeal was incomplete.

Orders

  • Appeal allowed.
  • Judgment and orders of the High Court set aside.
  • No retrial ordered, the suit being misconceived.
  • Each party to bear its own costs.

Key headnotes

Expropriated Properties Act — Statutory Appeal under Section 14 — Nature and Scope
A statutory appeal under section 14 of the Expropriated Properties Act lies only against a decision of the Minister of Finance by an aggrieved person; it cannot be used to cancel a third party's registration, recover vacant possession, or claim mesne profits, which require a separate civil suit.
Misjoinder — Joinder of Party Without Cause of Action — Effect on Validity of Proceedings
Where the Minister has already issued a Certificate of Repossession, a statutory appeal against the prior refusal becomes misconceived; joining a third party as co-defendant against whom there is no cause of action, and continuing the suit, amounts to a mistrial and renders the proceedings null and void.
Interlocutory Applications — Duty to Rule and Give Reasons
A court must rule on each interlocutory application it entertains before proceeding with the trial; it may reserve reasons to the final judgment but the judgment must then contain those reasons. Failure to make rulings or give reasons for interlocutory rulings invalidates the proceedings and causes a miscarriage of justice.
Record of Appeal — Incomplete Record — Effect on Determination
An appeal cannot be fairly disposed of on its merits where essential parts of the lower court record, including the original pleadings and key rulings, are missing from the record of appeal.

Legislation cited (4)

  • Expropriated Properties Act 1982 s.14
  • Expropriated Properties Act 1982 s.8
  • Constitution 1995 art.137(5)
  • Expropriated Properties Act Regulations S.I. No.5/83 s.15

Cases cited (1)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
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.