Wakilii

Chris Akena Onapa v Mohamed Husein Rashid Punjani (Civil Appeal 5 of 1995)

Supreme Court · [1996] UGSC 3 · 1996 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal to the Supreme Court from a High Court judgment declaring the respondent owner of leasehold land
Decision
Appeal allowed; High Court decree and orders set aside; suit dismissed; cross-appeal dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court allowed the appeal, holding that the suit property never vested in the Government or the Departed Asians Property Custodian Board under the Expropriated Properties Act 1982 and the Assets of Departed Asians Decree 1973. The respondent's three-year lease over Plot 7A expired on 31 October 1972; the offered twelve-month extension was never received or accepted by him and its conditions were never fulfilled, so no leasehold interest subsisted when he left Uganda in 1973. Section 1(2)(b) of Act 9 of 1982 deems an expired lease to continue only where it was subsisting at expropriation. The repossession certificate was therefore invalid, and the lease later granted to the appellant by Kampala City Council stood.

Outcome

Appeal allowed; High Court decree and orders set aside; suit dismissed; cross-appeal dismissed with costs

Facts

The respondent held a three-year lease from Kampala City Council over Plot 7A Acacia Avenue, Kampala, granted to enable him to build a house, running to 31 October 1972. He began but did not complete a storied residential house. In September 1972 he applied to extend the lease. The Commissioner for Lands, as KCC's agent, approved a twelve-month extension by letter of 28 March 1973 (exh. B.9), subject to conditions and fees. As an Asian, the respondent's entry permit was cancelled in February 1973 and he left Uganda without declaring his assets and before receiving the extension offer, which lay uncollected in his post office box until 1992. The unfinished building remained a shell. In 1984 KCC, advised that Act 9 of 1982 did not apply, granted the appellant a lease over the property; he paid for the structure, completed and let the house, and obtained a 97-year lease in 1988. In 1992 the Minister of Finance issued the respondent a repossession certificate. The respondent then sued for a declaration of ownership and vacant possession, which the High Court granted.

Issues

  1. Whether Plot 7A Acacia Avenue, comprised in leasehold Register Volume 759 Folio 4, was lawfully vested in the Departed Asians Property Custodian Board under the Expropriated Properties Act 1982 and the Assets of Departed Asians Decree 1973.
  2. Whether the respondent was the rightful owner of the suit property by virtue of the repossession certificate granted by the Minister.
  3. Whether, if the property did not vest in the Custodian Board, the lease granted by Kampala City Council validly vested the leasehold in the appellant.

Orders

  • Appeal allowed.
  • Decree and orders of the High Court set aside.
  • Order substituted dismissing the suit.
  • Appellant awarded the costs of the appeal and of the lower court.
  • Cross-appeal dismissed with costs.

Rules and key headnotes

Expropriated Properties — Vesting in Government — Requirement of a subsisting lease at expropriation
For property held under a lease to fall within section 1(2)(b) of the Expropriated Properties Act 1982 and be deemed to continue in force, the lease, agreement for a lease or tenancy must have been subsisting at the time the property vested in the Government; a lease already expired when the owner departed cannot vest and the deeming provision has nothing on which to operate.
Leases — Expiry and renewal — Building covenant
A lease granted to enable completion of a building is not automatically renewed where the building covenant has not been complied with; an offer to extend the lease creates no interest in the former lessee until he receives and accepts the offer and fulfils the stipulated conditions.
Tenancy at will — Holding over after expiry
A former lessee whose lease has expired becomes a tenant at will only where he remains in occupation with the landlord's acquiescence; an absent former lessee who has neither received nor accepted an offer of extension is not a tenant at will.
Assets of Departed Asians Decree 1973 — Assets vesting in Government
Under section 4(1) of the Assets of Departed Asians Decree 1973, only assets left behind by a departing Asian vest in the Government; where no subsisting leasehold interest existed at the owner's departure, no property vested in the Government or the Departed Asians Property Custodian Board.

Legislation cited (7)

  • Expropriated Properties Act 1982 (Act 9 of 1982) s.1(2)(b)
  • Expropriated Properties Act 1982 (Act 9 of 1982) s.1(1)(a)
  • Assets of Departed Asians Decree 1973 (Decree 27 of 1973) s.2
  • Assets of Departed Asians Decree 1973 (Decree 27 of 1973) s.3
  • Assets of Departed Asians Decree 1973 (Decree 27 of 1973) s.4(1)
  • Assets of Departed Asians Decree 1973 (Decree 27 of 1973) s.4(2)
  • Land Acquisition Act 1965

Cases cited (2)

  • Registered Trustees of Kampala Institute v Departed Asians Property Custodian Board (Civil Appeal No. 21 of 1993)
  • Premchand Nathu v Land Officer (1960) E.A. 941

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Chris Akena Onapa v Mohamed Husein Rashid Punjani (Civil Appeal 5 of 1995) [1996] UGSC 3 (8 February 1996)
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.