Wakilii

Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal 14 of 2002)

Supreme Court · [2003] UGSC 27 · 2003 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from the Court of Appeal, which had upheld a High Court judgment on a counter-claim for vacant possession and mesne profits over expropriated property.
Decision
Appeal allowed; judgments of the courts below set aside and the respondent's counter-claim dismissed; the appellant held to be lawfully in possession with title and not liable for vacant possession or mesne profits.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court allowed the appeal, holding that the certificate of purchase was lawfully issued to the appellant under section 8 of the Expropriated Properties Act despite non-compliance with the competitive-tender procedure, which does not fetter the Minister's discretion to dispose of property at a nominal price. Once the certificate was issued, the Minister was functus officio with no power to revoke or annul it; the later repossession certificate was issued without power and had no legal effect. The appellant therefore remained lawfully in possession as registered proprietor and was not liable to give vacant possession or pay mesne profits. The counter-claim was dismissed with costs.

Facts

The suit property (Plot No. 2 Impala Avenue, Kampala) was expropriated property under the Expropriated Properties Act 1982. The appellant lodged a claim of interest based on his 1979 purchase. In March 1991 the Minister of Finance offered to sell the property to him under a new contract for shs 50,000, and on 24 June 1991 issued Certificate of Purchase No. 0039, entered on the title on 26 July 1991. In September 1993 the Minister issued a Certificate Authorising Repossession to Karam Chand, the former owner, whose widow and executrix is the respondent. In 1999 the Registrar cancelled the appellant's purchase certificate and registered the repossession certificate. In the appellant's suit (later dismissed for want of prosecution), the respondent counter-claimed for vacant possession and mesne profits, succeeding in the High Court (which awarded shs 183 million plus shs 1.75 million per month) and the Court of Appeal. The appellant appealed to the Supreme Court.

Issues

  1. Whether the appellant's claim of ownership based on the certificate of purchase could be considered as a defence to the counter-claim, or was excluded by the dismissal of his main suit and the absence of an appeal under section 14 of the Expropriated Properties Act.
  2. Whether the appellant lawfully acquired title to the suit property under the certificate of purchase issued by the Minister, notwithstanding non-compliance with the sale procedures in Regulation 11.
  3. Whether the Minister had power to revoke or annul the certificate of purchase, and whether the subsequently issued repossession certificate divested the appellant of his title.
  4. Whether the appellant was liable to give vacant possession of, and pay mesne profits in respect of, the suit property.

Orders

  • Appeal allowed.
  • Judgments and orders of the courts below set aside.
  • Substituted by an order dismissing the respondent's counter-claim.
  • Costs to the appellant in the Supreme Court and in the courts below.

Key headnotes

Expropriated Properties — Disposal by Minister under section 8 — Sale without competitive tender
The Minister's discretion to dispose of expropriated property under section 8 of the Expropriated Properties Act is not limited by the competitive-tender and reserve-price requirements of Regulation 11; in appropriate circumstances the Minister may lawfully sell such property at a nominal or token price, and non-compliance with those procedures does not vitiate the disposal.
Expropriated Properties — Minister functus officio — No power to revoke certificate
Once the Minister has issued a certificate disposing of expropriated property under sections 4, 5 or 8 of the Expropriated Properties Act, he has no power to revoke, cancel or annul it; a person aggrieved by the Minister's decision may only have the grievance resolved by the High Court on appeal under section 14.
Expropriated Properties — Repossession certificate — Legal effect where property already disposed of
A certificate authorising repossession issued in respect of property the Minister has already lawfully disposed of is issued without power and has no legal effect; it neither revokes the earlier certificate of purchase nor divests the registered proprietor of his title.
Counter-claim — Defence incorporated by reference — Survival after dismissal of main suit
Where a plaintiff incorporates the averments of his plaint into his reply and defence to a counter-claim by reference, those averments survive the dismissal of the main suit and remain available as a shield (defence to the counter-claim), though they cease to operate as a sword (independent cause of action).
Expropriated Properties Act section 14 — Nature of an appeal to the High Court
An 'appeal' to the High Court under section 14 of the Expropriated Properties Act is not a judicial appeal and the Act prescribes no special procedure beyond the thirty-day time limit; a challenge to the Minister's administrative decision may be brought by way of an ordinary civil suit.
Jurisdiction — Court cannot decline competence over part of a case — Joinder of necessary party
A court cannot hold that it lacks jurisdiction or competence to try part of a defence and then proceed to try the remainder of the case; where the presence of a person such as the Attorney General is necessary, the court may order joinder under Order 1 rule 10(2) of the Civil Procedure Rules rather than disclaim competence for that person's absence.

Legislation cited (12)

  • Expropriated Properties Act 1982 s.3
  • Expropriated Properties Act 1982 s.4
  • Expropriated Properties Act 1982 s.5
  • Expropriated Properties Act 1982 s.6
  • Expropriated Properties Act 1982 s.8
  • Expropriated Properties Act 1982 s.14
  • Registration of Titles Act s.56
  • Registration of Titles Act s.91(2)
  • Registration of Titles Act s.184
  • Civil Procedure Rules Order 1 Rule 10(2)
  • Civil Procedure Act s.6
  • Statutory Instrument No. 6 of 1983 Regulation 11

Cases cited (3)

  • Habre International Co. Ltd v Ebrahim Alarakia Kassak & Others (Civil Appeal No. 4 of 1999)
  • Ravji Meghji Patel & 2 Others v Attorney General & Another (Civil Appeal No. 16 of 1999)
  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 27 of 1998)
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.