Wakilii

Mabale Growers Tea Factory Ltd v Noorali & Anor (CIVIL SUIT No. 0065 OF 2006)

High Court · [2009] UGHCCD 10 · 2009 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit seeking cancellation of certificate of repossession and special certificate of title, permanent injunction, and damages
Decision
Plaintiff's suit dismissed. Defendant granted vacant possession of suit property and awarded mesne profits and costs.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a lessor's re-entry onto leasehold property expropriated under the Assets of Departed Asians Act and governed by the Expropriated Properties Act 1982 is unlawful and nullified by statute, regardless of breach of covenant to pay rent, until the Minister of Finance deals with the property in accordance with the Act. The re-entry was a prohibited dealing in expropriated property. The plaintiff's claim for cancellation of the defendant's certificate of repossession was dismissed. The defendant was entitled to mesne profits from the date of repossession to date of vacant possession.

Outcome

Plaintiff's suit dismissed. Defendant granted vacant possession of suit property and awarded mesne profits and costs.

Facts

Noorali Mohamed, an Asian expelled from Uganda in 1972, held a 99-year lease over 150 acres (the suit land) from Clovis Balya Winyi's predecessor. The property was expropriated and managed by the Departed Asians Property Custodian Board under the Assets of Departed Asians Act. In 1995, Winyi purported to re-enter the property citing non-payment of rent and noted the re-entry in the register. Winyi then sold the freehold interest to Mabale Growers Tea Factory Ltd in 1997. Mohamed applied for and obtained a certificate of repossession from the Minister of Finance in 2006. The Registrar of Titles reinstated Mohamed's leasehold title. Mabale Growers sued seeking cancellation of the repossession certificate and special certificate of title, permanent injunction, and damages. Mohamed counterclaimed for damages for loss of earnings and trespass.

Issues

  1. Whether the re-entry by Clovis Balya Winyi onto the suit property was lawful.
  2. Whether the sale of the suit property by Clovis Balya Winyi to the Plaintiff was lawful.
  3. Whether the 1st Defendant committed any fraud.
  4. Whether the Plaintiff is entitled to the remedies prayed for.
  5. Whether the Defendant is entitled to the remedies in the counterclaim.

Orders

  • Suit dismissed with costs to the defendant.
  • Counterclaim allowed.
  • Defendant entitled to vacant possession of the suit property.
  • Defendant awarded UGX 48,000,000 per annum in mesne profits from 16 March 2006 to date of vacant possession (totalling UGX 160,000,000 as at date of judgment).
  • Defendant awarded costs of the suit and of the counterclaim.
  • Award of general damages and costs to attract interest at Court rate from date of judgment.

Rules and key headnotes

Expropriated Properties — Statutory Prohibition on Dealings — Re-entry onto Leasehold
Where property is expropriated and vested in Government under the Expropriated Properties Act 1982, any re-entry by a lessor onto leasehold property, even for breach of covenant to pay rent, is a prohibited dealing within the meaning of section 2(2)(a) of the Act and is nullified until the Minister of Finance has dealt with the property in accordance with the Act.
Expropriated Properties — Continuation of Leases — Section 2(2)(b)
Section 2(2)(b) of the Expropriated Properties Act 1982 deems leases, agreements for lease, or specified tenancies in expropriated property to continue in force until the property has been dealt with by the Minister in accordance with the Act, and the property continues to be managed by the Custodian Board during that period.
Expropriated Properties — Retrospective and Prospective Effect
Section 2(2)(a) of the Expropriated Properties Act 1982 operates retrospectively to nullify transactions in expropriated property entered into before the Act came into force. Section 2(2)(b) operates prospectively to prohibit similar transactions from the date the Act came into force until the Minister deals with the property, as Parliament could not have intended to nullify past transactions while permitting future ones before ministerial disposal.
Expropriated Properties — Remedial Legislation — Liberal Interpretation
The Expropriated Properties Act 1982 is remedial legislation enacted to redress the expropriation of property during the military regime and return property to former owners. As such, it should be given a liberal interpretation in light of the mischief it was designed to prevent and the reasonableness of consequences following from a particular construction.
Expropriated Properties — Certificate of Repossession — 90-day Time Limit
The 90-day limitation period under section 4 of the Expropriated Properties Act 1982 for applications for repossession is regulatory rather than substantive. The Minister retains discretion to grant repossession certificates on applications made outside the statutory period, and such certificates are not automatically null and void.
Estoppel — Elements — Failed Negotiations
For equitable estoppel to operate, three elements must be present: a clear and unequivocal representation, an intention that it should be acted upon, and action upon it in the belief of its truth. Failed negotiations conducted alongside a party's protest against unlawful re-entry, where no promise to abandon recovery of leasehold interest was made, do not satisfy these elements.
Damages — Mesne Profits — Breach of Covenant for Quiet Enjoyment
Where a lessor with superior title commits a breach of the covenant for quiet enjoyment by remaining in possession after the lessee obtains a certificate of repossession, the proper remedy is an award of mesne profits from the date of the repossession certificate to the date of vacant possession. In assessing mesne profits, equity requires consideration of enhancements in value made by the wrongful occupier during the period of occupation.

Legislation cited (6)

Cases cited (14)

  • Gokaldas Laximidas Tanna v Sr. Rosemary Munyinza & Departed Asian Property Custodian Board (Supreme Court Civil Appeal No. 12 of 1992)
  • Victoria Tea Estates v James Bemba (Court of Appeal Civil Appeal No. 49 of 1996)
  • Noordin Charnia Walji v Drake Semakula (Supreme Court Civil Appeal No. 40 of 1995)
  • Habre International Co. Ltd v Ebrahim Alarakia Kassam & Ors (Supreme Court Civil Appeal No. 4 of 1999)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Registered Trustees of Kampala Institute v The Departed Asians Property Custodian Board (Supreme Court Civil Appeal No. 21 of 1993)
  • Central London Property Trust Ltd. vs. High Trees Ltd., [1947] K.B. 130
  • Nurdin Bandali vs. Combank Tanganyika Ltd. [1963] E.A. 303
  • Century Automobile vs. Hutchings Biemen Ltd. [1965] E.A. 304
  • Bank of Uganda v Fred William Masaba & Ors (Supreme Court Civil Appeal No. 3 of 1998)
  • Kabenge v Uganda (Court of Appeal Criminal Appeal No. 19 of 1977)
  • James Sowoabiri & Anor v Uganda (Supreme Court Criminal Appeal No. 5 of 1990)
  • Dapueto vs. Wylie, The Pievo Superiore (1874) C.R. 5P.C 482
  • Cartside vs. I.R.C. (1968) A.C. 553, 612

Full judgment

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Mabale Growers Tea Factory Ltd Vs Noorali & Anor (CIVIL SUIT No. 0065 OF 2006) [2009] UGHCCD 10 (30 July 2009)
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.