Wakilii

Noordin Charania Walji v Drake Semakula (Civil Appeal 40 of 1995)

Supreme Court · [1998] UGSC 8 · 1998 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment for the plaintiff in a suit for damages for threatened trespass
Decision
Appeal allowed; the High Court declaratory judgment and award of general damages set aside, with costs to the appellant

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Citations rising — 5 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Supreme Court allowed the appeal. Although the respondent's 1980 re-entry under the lease was valid under the Registration of Titles Act, the suit property was a departed-Asian asset vested in the Custodian Board, so the re-entry was a "dealing of whatever kind" nullified by section 1(2)(a) of the Expropriated Properties Act 1982, and the lease revived under section 1(2)(b). Holding a repossession certificate, the appellant was the lawful lessee in possession and could not be a trespasser. The general damages award could not stand because the expenses proved were special damages that had not been pleaded. A constitutional challenge to the Act could not be raised first on appeal.

Outcome

Appeal allowed; the High Court declaratory judgment and award of general damages set aside, with costs to the appellant

Facts

In 1955 the respondent granted the appellant, an Indian merchant, a 49-year lease of mailo property on Balintuma Road, Kampala, subject to covenants to pay rent, maintain the buildings and use it residentially. In 1972 the appellant left Uganda during the expulsion of Asians, and the property was taken over by the Departed Asians Property Custodian Board. The Board breached the lease covenants, failing to pay rent and subletting. In 1980 the respondent re-entered and took possession under section 102(6) of the Registration of Titles Act, notifying the Board and the Registrar of Titles. In 1988 the appellant returned, obtained a repossession certificate under the Expropriated Properties Act 1982, and attempted to evict the respondent using auctioneers. The respondent resisted, incurring expenses repairing the neglected property and hiring people for security, and sued for general damages for threatened trespass and a declaration of ownership. The High Court found for the respondent and awarded Shs. 3,000,000 general damages, prompting this appeal.

Issues

  1. Whether the Expropriated Properties Act 1982 applied to the suit property.
  2. Whether the respondent's re-entry under the lease amounted to a "dealing" in the property that was nullified by section 1(2)(a) of the Expropriated Properties Act 1982.
  3. Whether the respondent was entitled to general damages for threatened trespass.
  4. Whether the constitutionality of section 1(2)(a) of the Act could be raised for the first time on appeal.

Orders

  • Appeal allowed.
  • Declaratory judgment and the award of Shs. 3,000,000 general damages set aside.
  • Costs of the appeal and of the suit in the court below awarded to the appellant.

Rules and key headnotes

Expropriated Properties — Departed Asians' assets — Effect on lessor's right of re-entry
Where property of a departed Asian was vested in the Departed Asians Property Custodian Board, a lessor's re-entry on the property is a "dealing of whatever kind" in that property which is nullified by section 1(2)(a) of the Expropriated Properties Act 1982, and a lease terminated by such re-entry is deemed to have continued in force under section 1(2)(b).
Expropriated Properties Act 1982 — Meaning of "any dealings of whatever kind"
The expression "any dealings of whatever kind" in section 1(2)(a) of the Expropriated Properties Act 1982 is wider than "purchases, transfers or grants" and captures a lessor's re-entry, by which the proprietary interest in the property reverts to the lessor.
Trespass — Lessee holding repossession certificate cannot be a trespasser
A lessee in legal possession of premises by virtue of a valid repossession certificate cannot in law be guilty of trespass on those premises, and no damages for trespass are recoverable against him.
Damages — Special damages must be specifically pleaded and proved
Where the precise amount of an item of loss has crystallised or can be measured with accuracy, it constitutes special damages that must be specifically pleaded and proved; such expenses cannot be recovered under a bare claim for general damages, and the requirement is not a mere technicality excused by Article 126(2)(e) of the Constitution.
Constitutional questions — Cannot be raised for the first time on appeal
A question as to the interpretation or constitutionality of a statute must be raised before the trial court, and a respondent seeking to support the decision on the additional ground of unconstitutionality must give notice under rule 91 of the Supreme Court Rules; the point cannot be raised for the first time on appeal.

Legislation cited (16)

Cases cited (1)

  • Gokaldas Laximidas Tanna v Sister Mary Muyinza and Another (Civil Appeal No. 12 of 1992)

Cases citing this judgment (5)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Noordin Charania Walji v Drake Semakula (Civil Appeal 40 of 1995) [1998] UGSC 8 (15 July 1998)
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.