Wakilii

Firdoshali Madatalikeshwani Habib and Another v The Departed Asian Property Custodian Board and 2 Others (Miscellaneous Cause No. 11 of 2019)

High Court · [2019] UGHCCD 302 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Judicial review application seeking orders of certiorari, prohibition, permanent injunction and damages
Decision
Application allowed; 1st respondent's allocation decision quashed; applicants confirmed as lawful possessors of the property

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the Departed Asian Property Custodian Board acted illegally, irrationally and with procedural impropriety when it allocated land that had been lawfully repossessed by the applicants in 1992 pursuant to a consent judgment and ministerial repossession certificate. The Board's decision to allocate Plot 42 Kampala Road to a third party 26 years after repossession was ultra vires and quashed. Order of certiorari granted; claim for damages refused.

Outcome

Application allowed; 1st respondent's allocation decision quashed; applicants confirmed as lawful possessors of the property

Facts

The applicants are registered proprietors of land at Plot 42 Kampala Road. Following a 1991 consent judgment recognising their right to repossess property expropriated under the Expropriated Properties Act, they applied to the Departed Asian Property Custodian Board and were issued a ministerial repossession certificate in 1992. They took possession and collected rent for 27 years without disturbance. In 2018, the Board granted a temporary allocation of the same property to the 3rd respondent, purportedly as a sitting tenant, and instructed government valuers to process the property for private treaty sale. The Board claimed the applicants' repossession was not properly executed and that the ministerial certificate was invalid because it was signed by the Minister of State for Finance rather than the substantive Minister.

Issues

  1. Whether the applicants have any grounds for judicial review
  2. What remedies are available to the applicants

Orders

  • Order of certiorari granted quashing the decision of the 1st respondent to allocate Plot 42 Kampala Road to the 3rd respondent.
  • Claim for damages refused.
  • Costs of the application awarded to the applicants against the 1st and 3rd respondents only.

Rules and key headnotes

Judicial Review — Illegality — Exercise of Power Without Jurisdiction
A public body acts illegally and ultra vires when it purports to exercise jurisdiction over property that has already been lawfully dealt with under statute by a competent minister and divested from government control.
Expropriated Properties — Repossession Certificate — Effect and Validity
Under the Expropriated Properties Act, a letter from the Minister of Finance confirming repossession and stating that the applicant is free to repossess constitutes a valid repossession certificate even if it deviates from the prescribed form, provided its substance is not affected and it is not calculated to mislead.
Interpretation Act — Deviation from Prescribed Forms
Where a form is prescribed by statute, an instrument shall not be void by reason of any deviation from that form which does not affect the substance of the instrument or which is not calculated to mislead.
Expropriated Properties — Divestment of Government Interest
Under section 6(1) of the Expropriated Properties Act, once a repossession certificate is granted, the property divests from government and reverts to the former owner with immediate effect, clothing the owner with an equitable right pending formal transfer of legal title by registration.
Judicial Review — Procedural Impropriety — Duty to Hear
A decision-making authority acts with procedural impropriety when it takes a decision affecting an individual's property rights without according that individual an opportunity to be heard, even where the authority disputes the legal basis of those rights.
Remedies — Certiorari — Effect of Quashing Decision
The effect of an order of certiorari is to retrospectively invalidate the impugned decision from its inception, depriving it of all legal effect and establishing that the statutory power was exercised unlawfully.
Remedies — Damages in Judicial Review — Burden of Proof
Damages are not granted automatically in judicial review proceedings. Where a party seeks damages, they bear the burden of proving the loss suffered; it is insufficient to plead particulars without adducing evidence of actual damage.

Legislation cited (8)

Cases cited (14)

  • John Jet Tumwebaze v Makerere University Council and 2 Others (Miscellaneous Cause No. 353 of 2005)
  • DOTT Services Ltd v Attorney General (Miscellaneous Cause No. 125 of 2009)
  • Balondemu David v The Law Development Centre (Miscellaneous Cause No. 61 of 2016)
  • Commissioner of Land v Kunste Hotel Ltd [1995-1998] 1 EA (CAK)
  • Mabale Growers Tea Factory v Noorali Mohamed (Supreme Court Civil Appeal No. 2 of 2015)
  • Jaffer Brothers Ltd v Mohammed Magid Bagalaliwo and 2 Others (Court of Appeal Civil Appeal No. 43 of 1997)
  • R v lord President of the Privy Council, ex parte Page [1993] AC 682
  • Council of Civil Service Union v. Minister for the Civil Service 1985 AC 374
  • Twinomuhangi vs Kabale District and others [2006] HCB130
  • R vs Aston University Senate ex p Rojfey [1969] 2 QB 558
  • R vs Secretary of State for Health exp Furneaux [1994] 2 All ER 652
  • Cocks vs Thanet District council [1983] 2 AC 286
  • Bendicto Musisi v Attorney General (High Court Civil Suit No. 622 of 1989)
  • Rosemary Nalwadda v Uganda Aids Commission (High Court Civil Suit No. 67 of 2011)

Full judgment

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Firdoshali Madatalikeshwani Habib and Another v The Departed Asian Property Custodian Board and 2 Others (Miscellaneous Cause No. 11 of 2019) [2019] UGHCCD 302 (21 June 2019)
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.