Wakilii

Mabale Growers Tea Factory Ltd V Noorali Mohamed & Another (Civil Suit No. 0065 of 2006)

High Court · [2009] UGHC 247 · 2009 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for cancellation of certificate of repossession and special certificate of title, with counterclaim for mesne profits
Decision
Plaintiff's claims dismissed; defendant awarded mesne profits and entitled to vacant possession of suit property

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Re-entry onto expropriated property managed by the Departed Asians Property Custodian Board was unlawful and nullified by the Expropriated Properties Act 1982, even where the lessor had purported to re-enter for non-payment of rent and the re-entry was noted in the register. The Act prohibited dealings in expropriated property until the Minister dealt with it; the lease was deemed to continue. The plaintiff's suit for cancellation of the certificate of repossession and special certificate of title was dismissed. The defendant's counterclaim succeeded and he was awarded mesne profits from the date of repossession certificate.

Outcome

Plaintiff's claims dismissed; defendant awarded mesne profits and entitled to vacant possession of suit property

Facts

The plaintiff purchased freehold title to tea estate land at Nyamasoga from Clovis Balya Winyi in 1997. The land was subject to a 99-year lease to the defendant, an Asian expelled in 1972 under Idi Amin's regime. Following expulsion, the property was vested in Government and managed by the Departed Asians Property Custodian Board. In 1995, the lessor purported to re-enter for non-payment of rent and had the re-entry noted in the register. The lessor then sold the freehold to the plaintiff. In 2006, the defendant obtained a certificate of repossession from the Minister of Finance under the Expropriated Properties Act 1982. The Registrar of Titles reinstated the defendant's leasehold title as an encumbrance on the plaintiff's freehold. The plaintiff sued to cancel the repossession certificate and special certificate of title. The defendant counterclaimed for mesne profits.

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

  • Plaintiff's 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 taking vacant possession.
  • As at date of judgment, Defendant entitled to UGX 160,000,000 as damages in mesne profits.
  • 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 Property — Departed Asians Property — Effect of Expropriated Properties Act 1982
Where property was expropriated under the Assets of Departed Asians Decree 1973 and vested in Government under the Expropriated Properties Act 1982, any dealings in such property (including re-entry by a lessor for non-payment of rent) are prohibited and nullified until the Minister of Finance has dealt with the property in accordance with the Act.
Expropriated Property — Continuation of Leases — Deemed Extension
Under section 2(2)(b) of the Expropriated Properties Act 1982, where expropriated property was held under a lease which had expired or was terminated, the lease is deemed to have continued and to continue in force until the property has been dealt with by the Minister in accordance with the Act.
Expropriated Property — Lessor's Re-entry — Nullification
A lessor's re-entry onto expropriated property for breach of covenant (non-payment of rent) is a dealing within the meaning of section 2(2)(a) of the Expropriated Properties Act 1982 and is nullified by that provision, even where the re-entry was noted by the Registrar of Titles.
Expropriated Properties Act 1982 — Remedial Statute — Liberal Interpretation
The Expropriated Properties Act 1982 is a remedial statute enacted to rectify wrongs committed by the Idi Amin regime and to return expropriated property to former owners; it should be given a liberal interpretation in favour of restitution to former owners.
Expropriated Properties Act 1982 — Certificate of Repossession — Time Limits
The 90-day time limit under the Expropriated Properties Act 1982 for applications for repossession is regulatory rather than mandatory; certificates of repossession granted on applications made outside the 90-day period are not thereby rendered null and void.
Lease — Breach of Covenant for Quiet Enjoyment — Mesne Profits
Where a lessor denies a lessee's right to quiet possession following the lessee's lawful repossession of expropriated property, the lessor commits a breach of the implied covenant for quiet enjoyment and is liable in mesne profits from the date the lessee became entitled to possession.
Due Diligence — Search and Inquiry — Expropriated Property
Where a purchaser has knowledge that property was subject to a lease to a departed Asian and that the property was managed by the Custodian Board, the purchaser is put on notice to verify with the Custodian Board or Ministry of Finance whether the property has been dealt with under the Expropriated Properties Act; reliance on the register of titles alone is insufficient due diligence.

Legislation cited (6)

Cases cited (14)

  • Gokaldas Laximidas Tanna v Sr. Rosemary Munyinza & Departed Asian Property Custodian Board (SC Civil Appeal No. 12 of 1992)
  • Victoria Tea Estates v James Bemba (CA Civil Appeal No. 49 of 1996)
  • Noordin Charnia Walji v Drake Semakula (SC Civil Appeal No. 40 of 1995)
  • Habre International Co Ltd v Ebrahim Alarakia Kassam & Others (SC Civil Appeal No. 4 of 1999)
  • Registered Trustees of Kampala Institute v The Departed Asians Property Custodian Board (SC Civil Appeal No. 21 of 1993)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (SC Civil Appeal No. 22 of 1992)
  • Bank of Uganda v Fred William Masaba & Others (Civil Appeal No. 3 of 1998)
  • 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
  • Kabenge v Uganda (CA Criminal Appeal No. 19 of 1977)
  • James Sowoabiri & Another v Uganda (SC 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 V Noorali Mohamed & Another (Civil Suit No. 0065 of 2006) [2009] UGHC 247 (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.