Wakilii

Musisi Kiwanuka v Asha Chand (Civil Appeal 14 of 2002)

Supreme Court · [2003] UGSC 49 · 2003 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a decision of the Court of Appeal, originating from the trial of a counterclaim in High Court Civil Suit No. 1 of 1994.
Decision
Appeal allowed; judgments of the courts below set aside and the respondent's counterclaim dismissed with costs to the appellant.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court allowed the appeal. The appellant's claim of ownership, pleaded by reference as a defence to the counterclaim, survived dismissal of the main suit, and the trial court was competent to determine the validity of his purchase certificate rather than confining him to an appeal under section 14 of the Expropriated Properties Act. The certificate was lawfully issued under section 8; failure to follow the competitive-tender procedure did not vitiate the Minister's discretionary disposal. Having disposed of the property, the Minister was functus officio and could not revoke it, so the later repossession certificate had no legal effect. The appellant remained lawfully in possession and was not liable for vacant possession or mesne profits.

Outcome

Appeal allowed; judgments of the courts below set aside and the respondent's counterclaim dismissed with costs to the appellant.

Facts

In 1979 the appellant purchased the suit property in Kampala from Ibrahim Minawa and was registered as proprietor. The Expropriated Properties Act 1982 nullified that purchase. After the appellant lodged a claim of interest, the Minister of Finance, by letter of 12 March 1991, offered to sell the property to him under a new purchase contract for shs 50,000 and issued Certificate of Purchase No. 0039, which was entered on the certificate of title on 26 July 1991. On 16 September 1993 the Minister issued Certificate Authorising Repossession No. 1623 to Karam Chand, the former owner; the respondent is his widow and the executrix of his will. The appellant sued for a declaration that he was the lawful owner; the respondent defended and counterclaimed for vacant possession and mesne profits, contending that her repossession certificate could be challenged only by appeal under section 14 of the Act. The appellant's purchase certificate was later cancelled on the register and the former owner reinstated, which led to the dispute culminating in this appeal.

Issues

  1. Whether the appellant's claim of ownership, pleaded by reference as a defence to the respondent's counterclaim, survived the dismissal of the main suit and could be considered.
  2. Whether the trial court had jurisdiction or competence to determine the validity of the purchase certificate, or whether the challenge to the Minister's decision could only be brought by an appeal under section 14 of the Expropriated Properties Act.
  3. Whether the purchase certificate was lawfully issued under section 8 of the Act despite non-compliance with the competitive-tender sale procedure in the Regulations.
  4. Whether the Minister had power to revoke, cancel or annul a certificate of purchase issued under the Act.
  5. Whether the appellant was lawfully deprived of title by the issuance of the repossession certificate.
  6. Whether the appellant was liable to give vacant possession and pay mesne profits to the respondent.

Orders

  • Appeal allowed.
  • The judgments and orders of the courts below set aside.
  • Substituted with an order dismissing the respondent's counterclaim.
  • Costs to the appellant in the Supreme Court and in the courts below.

Rules and key headnotes

Civil Procedure — Pleadings — Counterclaim — Survival of a defence after dismissal of the main suit
A defence pleaded by reference to the averments in a plaint survives the dismissal of the main suit where those averments are incorporated into the defence to a counterclaim and the defence is not struck out.
Civil Procedure — Jurisdiction — Distinction between competence and the availability of a defence
A court with jurisdiction over a suit cannot decline to determine part of a pleaded defence on the ground of want of jurisdiction; it must either hold that the defence is unavailable in law or that it is not established on the evidence.
Statutory Interpretation — Expropriated Properties Act — Nature of an appeal under section 14
An appeal under section 14 of the Expropriated Properties Act is not a judicial appeal and prescribes no special procedure beyond a time limit; a challenge to the Minister's decision may be brought in an ordinary civil suit.
Administrative Law — Functus officio — Power to revoke a certificate under the Expropriated Properties Act
The Minister has no power under the Expropriated Properties Act to revoke, cancel or annul a certificate issued in disposal of property under sections 4, 5 or 8; upon such disposal the Minister becomes functus officio.
Land & Property — Statutory sale procedure — Minister's discretion to dispose of expropriated property
Failure to comply with the competitive-tender procedure prescribed by the Regulations does not vitiate a disposal of expropriated property where the Minister exercises his discretion to dispose of it for a nominal or token price within his statutory competence.
Land & Property — Effect of a repossession certificate issued without power
A certificate of repossession issued after the Minister has lawfully disposed of the property and become functus officio has no legal effect and does not divest the registered purchaser of his title.
Land & Property — Vacant possession and mesne profits — Person lawfully in possession
A person lawfully in possession of property under a validly issued purchase certificate is not liable to give vacant possession or to pay mesne profits to the holder of a subsequently issued and ineffective repossession certificate.

Legislation cited (12)

Cases cited (3)

  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 27 of 1998)
  • Habre International (Civil Appeal No. 4 of 1999)
  • ...IP & others vs Attorney General & another, Civil Appeal No. 16/99 (C.A.) (unreported)

Full judgment

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Musisi Kiwanuka v Asha Chand (Civil Appeal 14 of 2002) [2003] UGSC 49 (16 July 2003)
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.