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Pyrali Abdul v Sibo (Consitutional Petition 9 of 1997)

Constitutional Court · [1998] UGCC 3 · 1998 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the High Court under Article 137(1) and (5) of the 1995 Constitution for interpretation of a constitutional question arising in a civil suit
Decision
Expropriated Properties Act 1982 declared not inconsistent with the Constitution; reference answered and the case remitted to the High Court to determine the remaining issues in Civil Suit No. 1056 of 1995

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Holding

On a reference for constitutional interpretation, the court held that the Expropriated Properties Act 1982, to the extent it nullifies the sale of expropriated property to a purchaser and deprives him of his proprietary interest, does not contravene the Constitution because the Act provides for compensation. Whether the compensation is prompt, fair and adequate is a matter of enforcement for a competent court, not of constitutional interpretation. Two judges held that the section 11(4)/(6) compensation formula would have offended the 1967 Constitution but is saved by Article 273 of the 1995 Constitution and must be construed to conform to Article 26. The reference was answered, the matter remitted to the High Court, and no order made as to costs.

Facts

Esmail, an Asian, was the registered proprietor of freehold land comprised in Plots 4 and 5, Volume 302 Folios 20 and 21, Kyampisi, Bulemezi. He fled Uganda during the 1972 Asian exodus, and the property was expropriated and vested in the Departed Asians Property Custodian Board under the Assets of Departed Asians Decree No. 27 of 1973. In 1975 the Board sold the property to Sibo, who was registered as proprietor that year. The Expropriated Properties Act No. 9 of 1982 nullified such dealings and provided for the return of expropriated properties to their former owners. In 1991 Esmail applied to repossess; the Minister of Finance issued a repossession certificate in December 1993 and Esmail was re-registered as proprietor in 1994. Sibo refused to give vacant possession, contending he was a bona fide purchaser for value entitled to adequate compensation before surrender. Esmail sued for possession in the High Court, which referred the constitutional question to the Constitutional Court.

Issues

  1. Whether the Expropriated Properties Act No. 9 of 1982, to the extent that it nullifies the sale of the suit property to the defendant and deprives him of his proprietary interest therein, contravenes the Constitution of the Republic of Uganda and is thereby null and void.
  2. Whether the question of the reasonableness, fairness and adequacy of the compensation provided under the Expropriated Properties Act is a matter of constitutional interpretation for the Constitutional Court.
  3. Whether the compensation formula in sections 11(4) and 11(6) of the Expropriated Properties Act 1982 conflicts with Article 13 of the 1967 Constitution and Article 26 of the 1995 Constitution.

Orders

  • The Expropriated Properties Act 1982, to the extent that it nullifies the sale of the suit property to the defendant and deprives him of his proprietary interest therein, does not contravene the Constitution and is therefore not null and void.
  • The reference is remitted to the High Court for determination of the remaining issues in High Court Civil Suit No. 1056 of 1995.
  • No order as to costs of the reference.

Key headnotes

Constitutional Interpretation — References under Article 137 — Distinction between interpretation and enforcement
The question whether compensation provided for by a law is prompt, fair and adequate is a matter for the enforcement of a constitutional right by a competent court and does not fall within the interpretative jurisdiction of the Constitutional Court under Article 137.
Expropriated Properties — Nullification of sale — Constitutionality
A law that nullifies the sale of expropriated property and deprives a purchaser of his proprietary interest is not inconsistent with the Constitution where it makes provision for the payment of compensation to the person deprived.
Compulsory Acquisition of Property — Deprivation not unlawful per se
Deprivation of property and compulsory acquisition are not unlawful in themselves; they become unlawful only where no provision is made for compensation to the person deprived.
Existing Law — Article 273 of the 1995 Constitution
An existing law enacted under a former constitution survives the coming into force of the 1995 Constitution and must be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring it into conformity with the 1995 Constitution.
Compulsory Acquisition — Measure of Compensation
Reasonable and adequate compensation for property compulsorily acquired is measured by the market value of the property assessed at the time of judgment, account being taken of currency fluctuation where applicable.

Legislation cited (19)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.26(2)
  • Constitution of Uganda 1995 art.137(1)
  • Constitution of Uganda 1995 art.137(5)
  • Constitution of Uganda 1995 art.273
  • Constitution of Uganda 1967 art.8
  • Constitution of Uganda 1967 art.13
  • Expropriated Properties Act 1982 s.1
  • Expropriated Properties Act 1982 s.2
  • Expropriated Properties Act 1982 s.5
  • Expropriated Properties Act 1982 s.6
  • Expropriated Properties Act 1982 s.11(2)
  • Expropriated Properties Act 1982 s.11(3)
  • Expropriated Properties Act 1982 s.11(4)
  • Expropriated Properties Act 1982 s.11(6)
  • Expropriated Properties Act 1982 s.14(1)
  • Assets of Departed Asians Decree No. 27 of 1973 s.4
  • Assets of Departed Asians Decree No. 27 of 1973 s.7
  • Assets of Departed Asians Decree No. 27 of 1973 s.13

Cases cited (8)

  • Departed Asians Property Custodian Board v Kayondo & Another [1982] HCB 17
  • West Midland Baptist Trust (Incorporated) v Birmingham Corporation [1968] 1 All ER 205
  • Horn v Sunderland Corporation [1941] 1 All ER 491
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Esso Standard (U) Ltd v Samu Amanu Opio (Civil Appeal No. 3 of 1993)
  • Matiqo Byabalema and 2 others vs UTC (1975) Ltd
  • Gokaddas Luxi Midas Tanna vs SR. Rosemary Muyinza & DAPCA Civil App. No. 12/82
  • Nakabiri & Others v Masaka Cooperative Union (Civil Suit No. 835 of 1983)
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.