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ANALYSIS OF EXPROPRIATED PROPERTY

ACT CAP 87 OF UGANDA

During the period of the economic war of independence in 1972, the Asian’s where given 90 days by the
incumbent government of Field Martial HE: AL hajji Iddi Amini Dada (as he was then) to leave Uganda and
thus had to leave behind their property thus this property was referred to as expropriated property.

Section 2 of the Expropriated Properties Act Cap 87 (herein referred to as EPA) , defined expropriated
properties to mean Any property or business which was Vested in the government and transferred to the
departed Asians property custodian Board under the Assets of department Asians Act. In ONAPA V PUNJANI
(1995-98)2 EA 266, The Supreme Court held. In the circumstance there was no lease or agreement for a lease

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to rest in government when the respondent left Uganda in February 1973 therefore the property did not fall
under the operation of Act.

The objective of expropriated property act cap 87 was fundamentally to return the properties to the former’s
owners. In MBALE GROWERS TEA FACTORY LTD V NOORALI MOHAMMED & REGISTRATOR OF TITLES HCCS
NO.65 OF 2005, court held that the EPA is a noble and laudable legislation enacted for rectifications. It
endeavors to put right a monstrous wrong committed against a section of property owners in Uganda by a
notorious regime. In REGISTERED TRUSTEES OF KAMPALA INSTITUTE V DEPARTED ASIANS PROPERTY BOARD
SCCA NO. 21/93, Platt JSC, held that the aimed at returning property true owners.

The Assets of departed Asians Act cap 83 ( herein referred to as ADAA )was to consolidate with amendments
the law relating to the declaration of assets by departed Asians and to provide for other matters connected
there with or with incidental thereto. Under S.1(1) of the Assets of Departed Asians (ADAA) Act Cap 83, every
departed Asian was obliged to declare his or her assets and liabilities on the forms specified in the schedule
to the Act. The forms had to be accompanied by a list of title deeds, debentures, loan agreements and
contracts or other agreements entered into by the departing Asians. Assets declared by a departing Asian
vested in the government. (S.3 ADAA).All assets and liabilities vested in the government by virtue of S.6 of the
ADAA were transferred to the Departed Asians Property Custodian Board. The board was a body corporate
with perpetual succession and a common seal with capacity to sue and be sued in its corporate name. S. 4(3)

All property vested in government under Assets of Departed Asians Act or in any other way appropriated or
taken over by the military regime was re-vested in the government to be managed by the Ministry of finance1.
Section 2(a) of the Assets of Departed Asians Act nullified all purchases, transfers and grants of or any dealings
of whatever kind in such properties. In Thakkar v Departed Asians Property Board (MISCELLANEOUS CAUSE
NO.379 OF 2019)[2020] UGHCCD 23 (26 March 2020), this case was brought seeking for orders of prohibition
and injunction against the respondent and restraining it and its agents from taking action and purporting to
engage in the verification, investigation of ownership.

Under section 2(2)2 of the Expropriated Properties Act, expired or terminated leases were deemed to have
continued in force and to continue until the property was dealt with under the act. This nullification interfered

1
Expropriated Properties Act, Cap.87, Section 6
2
Ibid Cap.87

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with lawful transactions that had been concluded by the departed Asians custodian board in respect of these
properties.

The nullification was intended to be retrospective that is to affect any dealings that had taken place before
the Expropriated Properties Act, 1982.

Dealings by the minister; the expropriated property re-vested in the government and had to remain so vested
until the minister dealt with them in any of the following ways; - Section 3(1)3, return to former owners, -
Procedure to follow section 4; on application for repossession, section 3(2),nothing in this Act shall be
construed as empowering the Minister to transfer property or business to a former owner unless the Minister
is satisfied that the former owner shall physically return to Uganda, section 6(1) on property in which the
government does not wish to participate.

In the case of Mabale Growers Tea Factory Ltd v Noorali Mohammed & Registrar of Titles(CIVIL SUIT No.
0065 OF 2006) [2009] UGHCCD 10 (30 July 2009); court held that the 90 days’ time frame for applying for
repossession was merely regulatory. Court re-echoed that Expropriated Properties Act is a noble and laudable
legislation enacted for rectification hence in construing its provisions one needs to adopt a liberal approach.
This extension was held legitimate by the Court of Appeal in Jaffer Brothers Ltd v Bagalaliwo (Civil Appeal
No.43 of 1997, Court of Appeal, unreported (1998), court held that the annexture B amounts to a certificate
of repossession under Expropriated Properties Act, in time. And the suit was not time barred.

Section 5(2)4 of the Expropriated Act provides for Joint venture between the government and former owner.
Where the negotiations under subsection (1) are successfully concluded, a joint venture company shall be
incorporated and the Minister shall issue a certificate transferring the property or business to that company.

Also, these laws authorize the Minister to sale one’s property under certain circumstances. Section
9(1)(2)(3)(4)5 provides for when there is failure to claim. ‘…the Minister may make an order that the property
or business be retained by Government, or be sold or disposed of in such manner as may be stipulated in the
regulations made under this Act.

3
Expropriated Properties Act, Cap.87
4
Ibid Cap 87
5
Ibid Cap.87

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Moving on, the laws enacted also give rise to dealing with encumbered properties. Encumbered property
means the real property (including all improvements, buildings, fixtures, building equipment and personal
property thereon and all additions, alterations6. Where property applied for is subject to a caveat, lien, charge
or mortgage in favor of any lender, the minister must first hold consultations with the former owner and the
lender with a view to securing a mutually acceptable arrangement for the discharge of such an encumbrance
as per Section 9 Expropriated Properties Act cap 87 .

Section 10 Expropriated Properties Act cap 87 of the Act talks of present tenants. That a person who at the
commencement of the Act, is legitimately occupying or managing property or a business affected by section
2 shall continue to so occupy until the property is returned to the former owner or sold under this Act. We see
that this has greatly affected the laws on real property in Uganda.

In so analyzing the expropriated act cap 87, didn’t change our due process of land conveyancing but however
the legal implication was to compensate departed Asians thus after their compensation they still record
their land property as per our jurisprudence of land management and conveyancing as clearly analysed
below.

Section 2(2) (a) of Expropriated Properties Act Cap. 87 nullified all purchase transfers and grants of any
dealings of whatsoever kind in such properties. In interpreting this section, the court in GOKALDAS
LAXIMAIDAS TANA V SISTER ROSEMARY & DEPARTED ASIANS PROPERTY CUSTODIAN BOARD (1994-95) HCB
53, held that section 2(2) (a) of the Expropriated Properties Act Cap. 87 nullified any of the transactions
entered mentioned therein, if the transactions was effected between the times when the property was first
vested. In government by the Assets of Departed Asian decree 1973 and the time when the act of 1982 came
into force namely on 21st Feb 1983. That provision of the act has a retrospective effect and nullified all the
categories of transactions and dealings entered into in regard to expropriated properties in the period
between expropriated by the decrees of Idi Amin on the EPA as correctly pointed out by Oder Expropriated
Properties Act Cap. 87 nullified sale, notwithstanding that the bank as mortgagee had carried out a sale or
transfer. The mortgage sale fell under any other dealings. 7In MBALE GROWERS TEA FACTORY LTD V NOORALI
MOHAMMED & REGISTRATOR OF TITLES HCCS NO.65 OF 2005, court held that the EPA is a noble and laudable

6
https://www.lawinsider.com/dictionary/encumbered-property accessed on 7th October, 2020
7 Management of land law in Uganda Article by Prof. Anthony Jacob Kuku

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legislation enacted for rectifications. It endeavors to put right a monstrous wrong committed against a section
of property owners in Uganda by a notorious regime.

Section 4 of Expropriated Properties Act8 provides for application for repossession. Any former owner of
property or business vested in the government under section 2 may, within 90 days of the commencement of
this Act, apply to the Minister in writing, and in such form as may be prescribed, for repossession of the
property or business. Victoria Tea Estates v James Bemba CACA 49/1996, it was held that once it is proved
that property was expropriated it becomes the statutory property of government and any dealings in it are
nullified. Under this law the minister was empowered to manage any property or business vested in
government. Jaffer Brothers v Mohammed Magid Bagalaliwo CACA 43/1997, it was held that the Minister
has powers under Section 8 of the Act to issue the General Notice and there was no misconception to have
referred to the Notice in the preamble of Statutory Instrument No. 1 of 1994.

Section 6 of Expropriated Properties Act Cap 87 Act provides for property in which the government does not
wish to participate; that on receipt of an application made under section 4 relating to property or business in
which the government does not wish to participate, The Expropriated Properties Act gives certain powers to
the minister to give repossession and transfer of the Asians’ business or property.

Section 12 of Expropriated Properties Act Cap 87 deals with compensation. Section 12(2) makes the owner
of the property who repossess responsible for paying for the value of any improvements on the property to
the person who had effected such improvements Rule 8 of the Expropriated Property (repossession and
disposal) regulations. Under Section 12 (1) & (3) of Expropriated Properties Act Cap. 87, the government is
liable to pay compensation to a person or body, which property or business had been transferred to any
person or body for value & such property or business was returned to the former owner or otherwise dealt
with in accordance with the Expropriated Properties Act Cap. 87. in PYARALI ABDUL RASUL ISMAIL V EDRIAN
JIBO, NO.01 OF 1997, The court stated that for compensation to be reasonable, it must be assessed at the
market value at the Day of Judgment or at the time of trial The court distinguished between Section 12 (2)
and Section 12(4) he stated that Section 12(2) covers compensation for improvements on the property while
Section 12(4) caters for compensation of the property as originally purchased. In HABRE INTERNATIONAL
CO. LTD V EBRAHIM ALARAKIA KASSAM & OTHER60, Karokora JSC held that since the appellants could not

8
Expropriated Properties Act, 1983, Cap.87, Section 4

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proceed under the Act, to get a refund, claim for compensation such as after the 90 days had expelled from
the competent jurisdiction hence the appellants were right to file the claim in the high court which under
the constitution has unlimited jurisdiction. The compensation payable according to Section 12(4) of
Expropriated Properties Act Cap. 87 is the purchase priceless the derived or which ought to have been
derived from the property or business from the date of such transfer Section 12(6) provides that such
compensation must be paid over such a period and in such a manner as the minister may determine or
negotiate with the person or body to be compensated.

If one is aggrieved upon the decision of the minister in compensation as far as the expropriated property
is concerned, the provision is stipulated Under Section 15(1) of Expropriated Properties Act Cap. 87 an
aggrieved person may appeal the decision of the minister to the high court.

PROCEDURE of commencing the proceedings ; Regulation 15 of the Expropriated Properties (Repossession

and disposal) (no.1) Regulations provides that the rules of civil procedure governing the institution of suits
in the High Court apply to appeals under Section 15 of Expropriated Properties Act Cap. 87 .In MOHAM
MUSISI KIWANUKA V ASHA CHAC.C.A NO.14 OF 2002, court held that the appeal against the decision of the
minister was not a judicial appeal. The challenges of the suit may be done in an ordinary civil suit. The appeal
is therefore by way of ordinary plea to the High Court.

LAPSE OF 30 DAYS IN WHICH TO APPEAL; In HABRE INTERNATIONAL CO. LTD V EBRAHIM ALARC KASSAM61,
the court held that the power under the Act does not take away the High Court’s original jurisdiction & the
person can contest the minister’s decision in the high court even after 30 days have elapsed. Bibliography

In conclusion therefore, the expropriated properties act cap 87 only embarked on compensating the
departed Asians interest in Land upon the land they had left in 1972 economic war, making them to own
the property as article 26 of the constitution entail. Thus it didn’t change our presumptions per our land
conveyancing but however their interest is registered per our interests of our title deeds hence also given
the form of tenure system as article 273 of the 1995 constitution prescribe

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References

Assets of Departed Asians Act (repealed)

Expropriated Properties Act, 1983, Cap.87
Registration of Titles Act, Cap.230
Cases

Habre International Co Ltd v Ebrahim S.C.C.A/1999,

Mabale Growers Tea Factory Ltd v Noorali Mohammed & Registrar of Titles(CIVIL SUIT No. 0065 OF 2006)
[2009] UGHCCD 10 (30 July 2009);

The Registered Trustees of Kampala Institute Civil Appeal 12 of 1992, Supreme Court unreported (1993),

Jaffer Brothers Ltd v Bagalaliwo (Civil Appeal No.43 of 1997, Court of Appeal, unreported (1998)

Thakkar v Departed Asians Property Board (MISCELLANEOUS CAUSE NO.379 OF 2019)[2020] UGHCCD 23 (26
March 2020),

Registered Trustees of Kampala Institute v D.A.P.C.B (Civil Appeal 12 of 1992, Supreme Court unreported
(1993)

PYARALI ABDUL RASUL ISMAIL V EDRIAN JIBO, NO.01 OF 1997

HABRE INTERNATIONAL CO. LTD V EBRAHIM ALARAKIA KASSAM & OTHER60

ONAPA V PUNJANI (1995-98)2 EA 266

Chris Akena v. Mohammed Husein(Civil Appeal No.22 of 1995, Supreme Court unreported)

Victoria Tea Estates v James Bemba CACA 49/1996

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