News

Land Mark Decision on Expropriated Properties

"Repossession certificates"

Mabale Growers Tea Factory Limited versus Noorali Mohamed SCCA No. 2 of 2015,

(A land mark decision on expropriated properties’ regime in Uganda).

The Highest Court of the Land has delivered a timely land mark decision that shades more light on the rights of former owners of Expropriated Properties to lodge applications for repossession certificates amongst others over their properties beyond the period of 90 days.

This has provided much needed guidance of when an application for a repossession certificate can be lodged.

The facts before the court were that the Respondent was granted a lease on the 16^th day of November 1965 over the Suit Property by the late Aberi Balya for a period of 99 years. He, (the Respondent) was issued a lease hold certificate on 8^th January 1966 vide LRV 598/3 comprising 60.7 hectares or 150 acres, land situate at Mwenge County, Tooro District, Nyamasoga Estate. However after the expulsion of the Asians in 1972, the Suit Property was vested in the Departed Asian Property Custodian Board (DAPCB).

Sometime in 1995, Clovis Balya Winyi, the Successor of the lessor (late Aberi Balya) applied for and made a re-entry on grounds that the DAPCB failed to pay rent. Clovis Balya Winyi then sold the Suit Property to the Appellant in 1997.

The Respondent’s attempt to obtain a repossession certificate in 1996 was rejected by the Minister of Finance based on the illegal re-entry by Clovis Balya Winyi. In 2006, the Respondent’s application for repossession was allowed and a certificate of repossession issued vide No. 3530 dated 15^th March 2006 and a special certificate of title LRV 598 Folio 3 was later issued to the Respondent.

The main issue of contention in the lower courts until the Supreme Court was whether the repossession certificate granted to the Respondent in 2006 after the Minister of Finance had rejected his application for the same in 1996 was lawful?

In resolving this issue the Supreme Court upheld the lower court’s decision. In his lead Judgment, concurred to by all the Justices who constituted the bench, His Lordship Hon. Justice Eldad Mwangusya emphatically stated that; “the Act empowered the Minister (Minister of Finance) to return the property to former owners or sell it if it was unclaimed and there was nothing to stop him from dealing with the property in 2006 as long as it was still available for repossession or sale. That the Minister’s action in 1996 was based upon an erroneous belief that the re-entry by Clovis Balya Winyi was lawful whereas not. As such, the property until 2006 was still available for repossession as the minister was deemed not to have dealt with it in accordance with the provisions of the Act.”

Other notable principles derived from this judgment include;

1.     As long as the Act was not repealed, the 3 months (90 days) requirement/time frame for applying for a certificate of repossession under section 4 of the Expropriated Property Act was merely regulatory and not an impediment to lodging an application for the grant of a repossession certificate thereafter.

2.     That, subject to the peculiar facts of each case, the Minister of Finance is not barred from granting a certificate of repossession to a former owner of an expropriated property on the basis that he initially rejected/denied to entertain his/her application. In any case, such refusal/denial does not constitute a transaction by the Minister in respect of the property in accordance with the Act. 

3.     Appellate courts cannot reopen and decide upon matters in respect of which no decision was reached at the time of the trial or of a first appeal from the lower courts.

4.     Grounds of appeal should only emanate from decisions and proceedings of the lower court against whose decision an appeal is preferred.

5.     Courts have wide discretion to award mesne profits to persons dispossessed of their property even though not pleaded as long as there is evidence to show that the party in wrongful possession derived some profits/benefit in the course of his/her wrongful possession of the subject property.