Gokaldas Laximidas Tanna (Civil Appeal 12 of 92) [1993] UGSC 4 (11 January 1993)

IN THE SUPREME COURT OF UGANDA

e"var SENTS

言葉を引

AT MENGO

(CORAM: S. W. W. WAMBUZI, C. J., A, ODER, J. S. C., H. PLATT, J. S. C.) CIVIL APPEAL NO. 12/92 Decr $= \sqrt{a}/2$ $1974$ prop : BETWEEN GOKALDAS LAXIMIDAS TANNA :::::::::::::::::::::::::::: APPELLANT improc. es AND $\frac{1}{\sqrt{2}}\left(\frac{1}{\sqrt{2}}\right)^2\left(\frac{1}{\sqrt{2}}\right)^2$ $\left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \right)$ SR. ROSEMARY MUNYINZA i om :::::::::::::::::::::::::::::::::::::: $D \cdot A \cdot P \cdot C \cdot B$ . ion it. $Salk$ (Appeal from the Judgment and decision of the High Court of Uganda at Kampala (Mr. Justice A. O. Ouma) dated 28th March, 1991)

IN

HIGH COURT CIVIL SUIT NO. 707 OF 1987

校理会

JUDGEMENT OF WAMBUZI, C. J.

I have had the opportunity of reading in draft the judgement prepared by Oder JSC which sets out the facts.

The three grounds of appeal argued before us were,

- $111.$ The learned trial Judge failed to adequately interprete the various legislations governing assets of Departed Asians and hence erred in law in holding that Uganda Commercial Bank, a mortgagee of the suit property could not realise its security by sale and in holding that its only remedy was to sue the 2nd Respondent. - $2.$ The learned trial Judge erred in law in holding that the Mortgage Decree, 1974 was inapplicable to the suit property. - 3. The learned trial Judge erred in law in holding that the required procedures were not followed in exercising the power of sale by the mortgagee and in not holding that as a purchaser of property in a public auction, the. appellant could not be affected by any irregularity followed prior to the sale<br>and therefore the appellant obtained good title."

$2/...$

Before dealing with the arguments relating to these three grounds, I must observe that Mr. Saekandi, learned counsel for the two respondents. relied on section 1 of the Expropriated Properties Act, 1982. I observe also that as far as is relevant to this appeal, the agreed facts between the parties in the lower court were stated as follows,

> $111.$ Before 16.6.86 the suit property was registered in the names of Vipinchandra Dhavantal Desai a 'departed Asian' and thus the property has since August, 1972 been expropriated by Government and under the control of the 2nd defendant.

> > . . . . . . . . . . . . . . . . . . . .

...............................

$4.$ The 2nd defendant became legal owner of the suit property with all incumbrances.

. . . . . . . . . . . . . . . . . . . .

- 6. On the 22nd February, 1982 the suit property was advertised for sale in Uganda Times newspaper and was sold the same day by the plaintiff. UCB executed a transfer for the property into the names of the plaintiff and released the mortgage. On 6th May, 1982 the plaintiff was registered as proprietor of the land. - 7. The plaintiff's registration as proprietor was subsequently cancelled upon which he sued the Chief Registrar of Titles by High Court Originating Summons No.28 of $1983$ . The plaintiff was then registered as proprietor pursuant to an order by the court in that cause. Instrument No. 226117 upon which the plaintiff was registered as a Court Order. - 8. At the time the plaintiff was registered, the suit property was being occupied by the 1st defendant as a tenant of the 2nd defendant who had been the legal owner of the property by virtue of Decree No.27 of 1973 which vested all the expropriated properties of the departed Asians under the 2nd defendant.

$\mathbf{c}$

The 1st defendant refused to recognise 9. the plaintiff's claim for ownership and thus refused to enter into a tenancy agreement with the plaintiff.

. . . . . . . . . . . . . . . . . . . .

The 2nd defendant further claims that $11.$ the transaction between the Uganda Commercial Bank and the plaintiff in respect of the suit property was nullified by the Expropriated Properties Act of 1982 and the property continues to be vested in Government and under the management of the 2nd defendant ......"

I observe lastly that in paragraph 3 of the 2nd respondent's written statement of defence, it is pleaded that,

> "The 2nd defendant avers that the suit property was affected by the Expropriated Properties Act which vested the legal ownership to the 2nd defendant."

It is fairly clear that the 2nd respondent by its pleadings and also by the agreed facts, its claim of ownership was based on the Expropriated Propertis Act, 1982. Both parties agreed that the suit property was originally registered in the names of a "departed Asian", under agreed fact 1. Both parties agreed the 2nd respondent became legal owner of the suit property under agreed fact $4$ . The appellant recognises the claim by the 2nd respondent that the transaction between the Uganda Commercial Bank and the appellant in respect of the suit property was nullified by the Expropriated Properties Act, 1982 under agreed fact 11.

It follows in my view that as the sale of the property was admitted by both parties under agreed fact 6, one of the issues in the lower court should have been whether or not the sale was nullified by the Expropriated Properties Act, 1982.

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This position notwithstanding the parties agreed as follows Start. 1 in the lower court,

$4/...$

"We therefore severally bind ourselves that upon finding the issue in positive (i) Judgement should be entered in favour of the plaintiff. And upon finding the issue in negative (ii) Judgements should be entered in favour of the defendants."

As I see it judgement thus given is not correct in law unless the issue relating to the effect of section 1 of the Expropriated Properties Act, 1982 is answered one way or the other. I do not think that parties can agree to oust the jurisdiction of the court to return the proper verdict on the pleadings and facts of the case. Further I must observe that even if all the grounds of appeal were to succeed, that is, if this Court found,

- 1. That Uganda Commercial Bank as mortgagee had power to sell and realise its security, and - 2. That the Mortgage Decree, 1974 was applicable to the suit property, and - That a purchaser of property at a public auction is not affected by any irregularity followed prior to the sale and that the appellant obtained a good title.

the conclusion to be reached is that there was a valid sale. This would leave the question whether such a sale was nullified by the Expropriated Properties Act of 1982, as the 2nd respondent claims unanswered.

It would have been preferable for counsel for the respondents to have given notice under rule 91 of the Rules of this Court of grounds for affirming the decision of the superior court on grounds other than or additional to those relied upon by that court. However, in $\mathcal{L}^{\mathcal{L}}_{\mathcal{L}} = \mathcal{L}^{\mathcal{L}}_{\mathcal{L}}$ the circumstances of this appeal we allowed learned counsel for the respondents to put forward arguments relating to section 1 of the

$-110$

$5/...$

Expropriated Properties Act, 1982 to enable the court re-appraise the issues and decide the real issue between the parties.

$-5-$

As far as I can gather from the judgment of the lower court, the trial Judge does not appear to have considered the provisions of ince. section 1 of the Expropriated Properties Act. He did however, set out oubr the provisions of section 5(2) and concluded as follows,

"I would find it hard to think of any reason, legal or otherwise, justifying the Act protecting a mortgage subsisting at the commencement of the Act, that is to say, when the Act came into force on 21st February, 1983, and throw aboard or nullify a mortgage which was in force at the expropriation of such property even if the mortgage was discharged or released as was the case in this present case."

With respect, I am unable to say what the decision of the court was in respect of section 1 of the Expropriated Properties Act.

In so far as is relevant, section 1 of the Expropriated Properties Act provides as follows.

"1. (1) Any property or business which was,

- $(a)$ vested in the Government and transferred to the Departed Asians Property Custodian Board under the Assets of Departed Asians Decree, 1973, - $(b)$ ......................................

(c) $\cdots$

shall, from the commencement of this Act, remain vested in the Government and be managed by the Ministry of Finance.

$\sqrt{ }$

(2) For the avoidance of doubt, and notwithstanding the provisions of any written law governing the conferring of title to land, property or business and the passing or transfer of such title it is hereby declared that,

$(a)$ any purchases, transfers and grants of, or any dealings of whatevorkind in, such property or business are hereby nullified; and

ple in

$6/\ldots.$

(b) where any property affected by this

section was at the time of its expropriation held under a lease or an agreement for a lease, or any other specified tenancy of whatever description, and where such lease, agreement for a lease or tenancy had expired or was terminated, the same shall be deemed to have continued, and to continue in force until such property has been dealt with in accordance with this Act; and for such further period as the Minister may by regulations made under this Act prescribe.

(3) The Minister may, by statutory order, appoint, any person or body to manage any property or business vested in the Government under sub-section (1) of this section."

Having regard to these provisions I have no doubt in my mind that the sale and transfer of the property in this appeal were nullified and accordingly I would agree that this appeal should fail.

As Platt JSC agrees with the judgment and orders proposed by Oder JSC this Court orders as proposed by the learned Justice of the Supreme Court.

Given under my hand and the Seal of this Court this 12th day of January, 1993.

> Sgd: S. W. W. WAMBUZI CHIEF JUSTICE

I CERTIFY THAT THIS IS A TRUE

COPY OF THE ORIGINAL.

| | <b>B. F. B. BABIGUMIRA</b> | | |--|--------------------------|--| | | REGISTRAR SUPREME COURT | |

IN THE SUPREME COURT OF UGANDA

之足误 ៖

AT MENGO

(CORAM: WAMBUZI, C. J., ODER, J. S. C, & PLATT, J. S. C.)

CIVIL APPEAL NO. 12 OF 1992

BETWEEN

GOKALDAS LAXIMIDAS TANNA ::::::::::::::::::::::: APPELLANT

AND

SR. ROSEMARY MUNYINZA $1.$

EXAMPLE 11: ::::::::::::::::::::::::::::::::: DEPARTED ASIANS PROPERTY $2.$ CUSTODIAN BOARD

> (Appeal from the Judgment and decision of the High Court of Uganda at Kampala (Ouma, J.) dated $28$ th March, 1991)

> > IN

HIGH COURT CIVIL SUIT NO. 707 OF 1987

JUDGMENT OF PLATT, J. S. C.

I agree with the judgment and orders proposed by Oder J. S. C. and have nothing to add.

Dated at Mengo this 12th day of January, 1993.

Sgd: H. G. PLATT JUSTICE OF THE SUPREME COURT

$\mathcal{O}(\mathcal{E})$

I CERTIFY THAT THIS IS A TRUE

COPY OF THE ORIGINAL.

$\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}}$ B. F. B. BABIGUMIRA $\cdot\cdot\tau$ REGISTRAR SUPREME COURT