Wakilii

Murtazaali v The Departed Asians Property Custodian Board (Miscellaneous Cause No. 144 of 2021)

High Court · [2022] UGHCCD 217 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review challenging the Respondent's purported reversal of property repossession
Decision
Application for judicial review allowed with declarations, certiorari, prohibition, and permanent injunction granted; claim for damages dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that once a Minister issues a certificate of repossession under the Expropriated Properties Act, the Departed Asians Property Custodian Board ceases to have any control over the property and cannot reverse the repossession. The Board's attempt to reclaim control over property lawfully repossessed in 1992 was ultra vires, illegal, and void. Application for judicial review allowed; declarations, certiorari, prohibition, and permanent injunction granted. Damages refused as no separate cause of action established.

Outcome

Application for judicial review allowed with declarations, certiorari, prohibition, and permanent injunction granted; claim for damages dismissed

Facts

The applicant is an executor and beneficiary of the estate of Ebrahim Alarakhia Kassam, one of three registered proprietors of Plot 4 Burton Street. The property was expropriated following the expulsion of Asians and placed under the Departed Asians Property Custodian Board. On 26 August 1992, the Minister issued a certificate of repossession returning the property to its owners. A notice of repossession was issued on 7 September 1992. The proprietors took possession and in 2012 obtained a renewed lease for 47 years. On 1 March 2021, the Respondent issued a notice claiming the property was still vested in government, demanding vacant possession, rent arrears from 1972, and halting all dealings. The applicant brought judicial review proceedings challenging the Respondent's actions as illegal and ultra vires.

Issues

  1. Whether the application discloses grounds for judicial review?
  2. Whether the Applicant is entitled to the reliefs sought?

Orders

  • A declaration that the property comprised in Leasehold Register Volume 4478 Folio 23 Plot 4 Burton Street was lawfully repossessed by its proprietors, to wit, Kulsum Binte Dahyabhai, Ebrahim Alarakhia Kassam and Jamal Walji Limited and the same ceased to be vested in the Government of Uganda under the custodianship of the Respondent.
  • A declaration that the acts of the Respondent in purporting to deal with the subject property are ultra vires the mandate of the Respondent and are, thereby, illegal and void.
  • An order of Certiorari quashing the decision of the Respondent purporting to reverse the repossession of the subject property.
  • An order of Prohibition against the Respondent, its officials, agents, assigns or any other person(s) acting on the Respondent's instructions or deriving interest and authority from the Respondent, restraining them from interfering with the ownership, use and possession by the Applicant of the subject property.
  • An order of a permanent injunction restraining the Respondent from holding out as the custodian of, dealing with and, in any event, interfering with the Applicant's ownership, use and quiet enjoyment of the subject property.
  • The costs of the application shall be paid by the Respondent.

Rules and key headnotes

Judicial Review — Grounds — Illegality — Ultra Vires — Public Authority Acting Without Legal Power
A public authority acts illegally when it makes a decision or takes action without the legal power to do so. Decisions made without legal power are ultra vires and include decisions not authorised, decisions taken with no substantive power, decisions taken in abuse of power, and decisions where power is exercised for a purpose other than that for which it was conferred.
Expropriated Properties — Repossession — Effect of Certificate of Repossession — Finality
Once a Minister issues a certificate of repossession under Section 6(1) of the Expropriated Properties Act, the certificate is deemed proof that all necessary verification steps have been undertaken and the Minister becomes functus officio. Neither the Minister nor any government official can reverse, review, or modify that decision. The only recourse for an aggrieved party is to appeal to the High Court within 30 days under Section 15(1) of the Act.
Judicial Review — Remedies — Damages — Exceptional Circumstances — Additional Cause of Action Required
Award of damages in judicial review is not automatic and is only considered in exceptional circumstances. Damages may only be awarded if the applicant, in addition to establishing grounds for judicial review, establishes a separate cause of action which would have entitled him or her to damages in a separate suit, such as breach of statutory duty, misfeasance in public office, or a private action in tort.
Judicial Review — Amenability — Requirements — Public Body — Public Law Matter
For a matter to be amenable to judicial review, it must involve a public body in a public law matter. The right sought to be protected must not be one of a personal or individual nature but a public one enjoyed by the public at large.
Expropriated Properties — Custodian Board — Powers — Cessation Upon Repossession
Once property is lawfully repossessed under the Expropriated Properties Act, the Departed Asians Property Custodian Board ceases to have any control or power over the property. Any action by the Board that contradicts or interferes with the ownership of repossessed property is ultra vires its power and mandate and is therefore illegal.

Legislation cited (6)

Cases cited (12)

  • Gordon Sentiba & Others v Uganda Revenue Authority (Miscellaneous Cause No. 35 of 2010)
  • Jaffer Brothers Ltd v Mohammed Magid Bagalaliwo & 2 Others (Civil Appeal No. 43 of 1997)
  • Firdoshali Madatali Kashwani Habib & Another v The Departed Asians Property Custodian Board & Others (Miscellaneous Cause No. 11 of 2019)
  • Ladha Kassam & Co. Ltd v Departed Asians Property Custodian Board (Miscellaneous Cause No. 230 of 2019)
  • Kuluo Joseph Andrew & Others v The Attorney General & Others (Miscellaneous Cause No. 106 of 2010)
  • Council of Civil Service Unions v Minister for Civil service (1985) AC 375
  • ACP Bakaleke Siraji v Attorney General (Miscellaneous Cause No. 212 of 2018)
  • Dr. Lam-Lagoro James v Muni University (Miscellaneous Cause No. 007 of 2006)
  • Mohan Kiwanuka v Asha Chand (Supreme Court Civil Appeal No. 14 of 2002)
  • Three Rivers District Council versus Bank of England (3) [3003]2 AC 1
  • X (Minors) versus Bedfordshire County Council [1995]2 AC 633
  • Fordham, Reparation for Maladministration: Public Law Final Frontiers (2003) RR 104 at page 104 -105

Full judgment

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Murtazaali v The Departed Asians Property Custodian Board (Miscellaneous Cause No. 144 of 2021) [2022] UGHCCD 217 (25 October 2022)
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.