Noordin Charania Walji v Drake Semakula (Civil Appeal 40 of 1995)

Supreme Court · [1998] UGSC 8 · 1998 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from a High Court judgment for the plaintiff in a suit for damages for threatened trespass

Decision

Appeal allowed; the High Court declaratory judgment and award of general damages set aside, with costs to the appellant

The full judgment

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Holding

The Supreme Court allowed the appeal. Although the respondent's 1980 re-entry under the lease was valid under the Registration of Titles Act, the suit property was a departed-Asian asset vested in the Custodian Board, so the re-entry was a "dealing of whatever kind" nullified by section 1(2)(a) of the Expropriated Properties Act 1982, and the lease revived under section 1(2)(b). Holding a repossession certificate, the appellant was the lawful lessee in possession and could not be a trespasser. The general damages award could not stand because the expenses proved were special damages that had not been pleaded. A constitutional challenge to the Act could not be raised first on appeal.

Facts

In 1955 the respondent granted the appellant, an Indian merchant, a 49-year lease of mailo property on Balintuma Road, Kampala, subject to covenants to pay rent, maintain the buildings and use it residentially. In 1972 the appellant left Uganda during the expulsion of Asians, and the property was taken over by the Departed Asians Property Custodian Board. The Board breached the lease covenants, failing to pay rent and subletting. In 1980 the respondent re-entered and took possession under section 102(6) of the Registration of Titles Act, notifying the Board and the Registrar of Titles. In 1988 the appellant returned, obtained a repossession certificate under the Expropriated Properties Act 1982, and attempted to evict the respondent using auctioneers. The respondent resisted, incurring expenses repairing the neglected property and hiring people for security, and sued for general damages for threatened trespass and a declaration of ownership. The High Court found for the respondent and awarded Shs. 3,000,000 general damages, prompting this appeal.

Issues

Whether the Expropriated Properties Act 1982 applied to the suit property.
Whether the respondent's re-entry under the lease amounted to a "dealing" in the property that was nullified by section 1(2)(a) of the Expropriated Properties Act 1982.
Whether the respondent was entitled to general damages for threatened trespass.
Whether the constitutionality of section 1(2)(a) of the Act could be raised for the first time on appeal.

Orders

Appeal allowed.
Declaratory judgment and the award of Shs. 3,000,000 general damages set aside.
Costs of the appeal and of the suit in the court below awarded to the appellant.

Key headnotes

Expropriated Properties — Departed Asians' assets — Effect on lessor's right of re-entry

Where property of a departed Asian was vested in the Departed Asians Property Custodian Board, a lessor's re-entry on the property is a "dealing of whatever kind" in that property which is nullified by section 1(2)(a) of the Expropriated Properties Act 1982, and a lease terminated by such re-entry is deemed to have continued in force under section 1(2)(b).

Expropriated Properties Act 1982 — Meaning of "any dealings of whatever kind"

The expression "any dealings of whatever kind" in section 1(2)(a) of the Expropriated Properties Act 1982 is wider than "purchases, transfers or grants" and captures a lessor's re-entry, by which the proprietary interest in the property reverts to the lessor.

Trespass — Lessee holding repossession certificate cannot be a trespasser

A lessee in legal possession of premises by virtue of a valid repossession certificate cannot in law be guilty of trespass on those premises, and no damages for trespass are recoverable against him.

Damages — Special damages must be specifically pleaded and proved

Where the precise amount of an item of loss has crystallised or can be measured with accuracy, it constitutes special damages that must be specifically pleaded and proved; such expenses cannot be recovered under a bare claim for general damages, and the requirement is not a mere technicality excused by Article 126(2)(e) of the Constitution.

Constitutional questions — Cannot be raised for the first time on appeal

A question as to the interpretation or constitutionality of a statute must be raised before the trial court, and a respondent seeking to support the decision on the additional ground of unconstitutionality must give notice under rule 91 of the Supreme Court Rules; the point cannot be raised for the first time on appeal.

Legislation cited (16)

Expropriated Properties Act 1982 s.1(1)
Expropriated Properties Act 1982 s.1(2)(a)
Expropriated Properties Act 1982 s.1(2)(b)
Expropriated Properties Act 1982 s.4
Expropriated Properties Act 1982 s.5
Expropriated Properties Act 1982 s.11(2)
Expropriated Properties Act 1982 s.14
Registration of Titles Act (Cap 205) s.102
Registration of Titles Act (Cap 205) s.102(6)
Registration of Titles Act (Cap 205) s.105
Registration of Titles Act (Cap 205) s.113
Assets of Departed Asians Decree 1973
Constitution of Uganda 1995 Article 126(2)(e)
Constitution of Uganda 1967 Article 13
Constitution of Uganda 1967 Article 87
Supreme Court Rules 1972 rule 91

Cases cited (1)

Gokaldas Laximidas Tanna v Sister Mary Muyinza and Another (Civil Appeal No. 12 of 1992)

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