Wakilii

Edward Waligo v Departed Asians Properties Custodian Board & Ors (Civil Suit No.30 of 2006) (Civil Suit No.30 of 2006)

High Court · [2009] UGHC 1 · 2009 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit challenging cancellation of property purchase offer and seeking declarations of ownership
Decision
Plaintiff's suit dismissed; plaintiff evicted from suit property; damages and mesne profits awarded to second defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the plaintiff's challenge to the Minister's repossession certificate was time-barred under s.15(1) of the Expropriated Properties Act, which requires an appeal within 30 days. The Court found the cancellation of the plaintiff's purchase offer lawful because he failed to pay the balance within the stipulated 60 days despite extensions. The plaintiff's suit was dismissed, and the second defendant succeeded on its counterclaim for eviction, general damages, and mesne profits.

Outcome

Plaintiff's suit dismissed; plaintiff evicted from suit property; damages and mesne profits awarded to second defendant

Facts

In 1972, the second defendant's property (Plots 33 and 35, Hobert Street, Masaka) was expropriated following expulsion of Asian directors. The plaintiff became a tenant and remained so under the custodian board. In 1995, the property was advertised for sale after the original owner opted for compensation. The plaintiff was the successful bidder at UGX 98,700,000 and agreed to pay 10% deposit within five working days and the balance within 60 days from 25 May 1995. The plaintiff paid the deposit but failed to pay the balance within 60 days. Despite extensions and conversion of claimed repair costs to credit, by February 2005 the plaintiff had paid only UGX 19,840,200 (plus UGX 51,360,000 in repair offset). The custodian board cancelled the offer in February 2005. The original owner then changed its position, claiming repossession instead of compensation. A repossession certificate was issued to the second defendant on 4 January 2006. The plaintiff filed suit in June 2006 challenging the cancellation and repossession.

Issues

  1. Whether the suit is time barred.
  2. Whether the cancellation of the plaintiff's offer to purchase the suit property was lawful.
  3. Whether the plaintiff is competent to challenge the second defendant's certificate of repossession through this suit.
  4. Whether the plaintiff merits the reliefs he seeks through the plaint.
  5. Whether the second defendant is entitled to the reliefs sought through the counterclaim.

Orders

  • The plaint is rejected insofar as it sought to challenge the decision of the Hon. Minister of Finance to issue a repossession certificate in favour of the second defendant.
  • The plaintiff's case is dismissed with costs to each of the three defendants.
  • Judgment entered in favour of the second defendant against the plaintiff in respect of the counterclaim.
  • A declaration that the suit property, Plot 33/35, Hobert Street, Masaka Municipality belongs to the second defendant.
  • An eviction order against the plaintiff requiring him to hand over vacant possession of the suit property to the second defendant not later than 14 days from the date of delivery of judgment.
  • An order requiring the plaintiff to pay UGX 10,000,000 as general damages to the second defendant.
  • An order requiring the plaintiff to pay UGX 26,520,000 as mesne profits to the second defendant.

Rules and key headnotes

Statutory Appeals — Limitation — Time Limits under Expropriated Properties Act
An appeal against the Minister's exercise of power under s.3(1) of the Expropriated Properties Act to issue a repossession certificate must be filed in the High Court within 30 days from the date of communication of the decision under s.15(1) of that Act. The 30-day limitation period is not flexible and operates on a strict mathematical basis. An appeal filed more than 30 days after communication is incompetent and barred by law.
Lex Specialis — Expropriated Properties Act versus General Civil Procedure
The Expropriated Properties Act, being a specific and later law than the Civil Procedure and Limitation (Miscellaneous Provisions) Act, governs all questions relating to repossession of expropriated properties. Even where an appeal under s.15(1) is presentable by way of ordinary suit, it remains a statutory appeal governed solely by the limitation provisions in s.15(1) of the Expropriated Properties Act.
Sale of Goods — Time of Essence — Passing of Property
Where a sale agreement expressly provides that full payment must be made within a specified period and that property will pass only upon receipt of full purchase price, property does not vest in the purchaser until full payment is made. Neither the offer nor part-performance, however substantial, vests property in the purchaser where the written agreement indicates a contrary intention.
Breach of Contract — Time of Essence — Waiver of Strict Timelines
A waiver by the vendor of the strict 60-day payment deadline and the requirement to pay the balance in a single payment does not constitute a waiver of the vendor's right to repudiate the contract for breach. Waiver of time limits does not extinguish the vendor's right to terminate for continued non-performance.
Mesne Profits — Calculation — Wrongful Possession
Mesne profits are those profits which a person in wrongful possession actually received or might with ordinary diligence have received from the property, together with interest on those profits. Where a defendant in wrongful possession collects rent from tenants, mesne profits shall be calculated based on the actual rent received or that which would have been received during the period of wrongful possession.

Legislation cited (3)

  • Expropriated Properties Act Cap.87 s.3(1)
  • Expropriated Properties Act Cap.87 s.15(1)
  • Civil Procedure Act Cap.71 s.2

Cases cited (7)

  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 4 of 2002)
  • Mansukhlal Ramiji Karia & Others v Attorney General & 2 Others (Court of Appeal Civil Appeal No. 20 of 2002)
  • Oil Seeds (U) Ltd v The Attorney General (CA Civil Appeal No. 127 of 2003)
  • Bashir Ahamed Arain v Uganda Kwegatta Construction Ltd (CS No. 612 of 1999)
  • Iga v Makerere University [1972] EA 65
  • Sharif Osuran v Haji Haruna Mulengwa (SC Civil Appeal No. 38 of 1995)
  • Charles Richards Ltd v Oppenheim [1950] All ER 420

Full judgment

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

Edward Waligo v Departed Asians Properties Custodian Board & Ors (Civil Suit No.30 of 2006) (Civil Suit No.30 of 2006) [2009] UGHC 1 (8 February 2009)
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