KAMPALA — The ongoing Parliament investigation into the alleged fraudulent acquisition of departed Asians properties is facing potential collapse after High Court has ruled that it is illegal for the Departed Asians Properties Custodian Board (DAPCB) to launch investigations into repossessed properties.
A select sub-committee of Parliament that is investigating the fraudulent acquisition of some Asians properties had also listed some of those rightfully repossessed by their current owners.
But in a May 26, 2020 ruling issued by Justice Musa Sekaana, the Expropriated Properties Act (EPA) does not leave room for repossessed properties to be recalled or investigated unless the responsible minister appeals for change of the law.
This follows an Application for judicial review lodged by Manharlal Thakkar through Byenkya, Kihika & Co. Advocates, challenging the Acts of the Custodian Board.
Thakkar was issued with a Repossession Certificate on 28th November 1991and acquired partial interest in the suit property on the basis of Letters of Administration.
But in 2019, the Custodian Board wrote a letter to the Applicant requiring him to submit his Repossession Certificate and all other related documents for purposes of carrying out investigations.
The investigations were termed as a verification exercise. The Custodian Board needed to know if the property was rightly repossessed.
However, the High Court has held that it’s illegal for the Custodian Board to try and reopen the repossession exercise concluded 28 years ago under the guise of verifying the authenticity of documents accompanying the repossession.
“The Act under section 7 (a) provides that a certificate of repossession issued under section 5 and 6 shall be sufficient authority for the Chief registrar of Titles to transfer title to the former owner.
Having issued the said certificate of repossession, the Minister is functus officio according to the Act as it did not leave a window for which the Minister’s decision would be changed or amended unless by way of appeal under section 15 of the Act which is to be made within thirty days from the date of communication of the decision to the High Court,” Justice Sekaana ruled.
“Retention of any implied power by the minister to revoke his decision on the ground that it was made in error would perpetuate the very uncertainties about ownership of the expropriated properties, which the Act intended to eliminate,” he added.
The ruling reinforces last year’s opinion by the Attorney General, Mr William Byaruhanga, who explained that Asians’ properties already allocated to different individuals through court processes cannot be reversed
The Departed Asians Properties Custodian Board, in an ongoing parliamentary inquiry investigating suspected fraud syndicate in acquisition of 460 Departed Asians Properties, had listed some properties, including those of individuals such as business tycoon Sudhir Ruparelia, which court had ruled that they were rightfully acquired.
Mr Ruparelia had always raised the same concerns, telling Speaker of Parliament Rebecca Kadaga why court was investigating a matter that had already been closed by court.
And now in a legal opinion to Finance Keith Muhakanizi on August 15, Mr Byaruhanga said such properties cannot be subjected to a further Parliament inquiry.
Under Decree No. 27 and 29 of 1972, all property for non-citizen Asians and Ugandan citizens of Asian Origin was vested in government upon their expulsion from Uganda. The laws on the management of expropriated property were eventually consolidated into the Assets of Departed Asians Act Cap 83, which vested the Departed Asians Property Custodian Board with power to manage the assets until 1982 when the Expropriated Properties Act was enacted.
Upon its enactment, the property which had been expropriated during the military regime was vested in the hands of the Minister for Finance on behalf of the Government to provide for return to its former owners.
Thakkar through his lawyers had argued that the Board created earlier was re-vested with powers to manage these properties but without any power to effect transfers or sale.
“As per annexure B, the then Finance Minister issued a certificate of repossession to Harilal Gagulal Thakkar and Monharlal Tribhovandas Thakkar as co-owners of the suit property on 28th November 1991 and thus the said property falls within the Act,” the lawyers had argued.
Justice Sekaana in his ruling agreed with the lawyers that in circumstances, the respondent had a right to apply to court for an appeal against the decision of the Minister having been aggrieved by the same rather than investigate the authenticity of the applicant’s repossession certificate as it does not have the power to do so.
“It would be wrong and unjust to return property which the Military Regime took over lawfully and refuse to return property which was illegally taken over. This Court cannot approve of such an injustice and which runs contrary to the purpose of the Act,” he ruled.
He added that the Custodian Board overstepped its authority when it tried to investigate the applicant’s interests in the suit property after 28 years without any justification or in accordance the law.
“The common principles of judicial review are based upon this edifice of Constitution, parliamentary intent and statutory interpretation. I therefore find that the respondent acted illegally when it purported to investigate the authenticity of the applicant’s repossession certificate without following the law and for improper motives,” Justice Sekaana stated.
He also ordered that the Custodian Board should henceforth order stop investigating the authenticity of the Repossession Certificate issued to the Applicant in excess of its powers.
“An injunctive order restraining the respondent and its agents from purporting to engage in verification, investigation or any other action adverse to the interests of the applicant in respect of the suit property,” he added.
This may serve as relief to most owners of repossessed properties who have always been summoned by Custodian Board to explain acquisition.
Also, by default this decision shall have an impact on the ongoing Parliamentary investigations into repossessed properties.