High Court Throws Out DAPCB Application Challenging COSASE From Investigating Them Over Departed Asians Properties

High Court Judge Justice Musa Ssekaana, has on Wednesday October 7, 2020 in a seating at the Civil Division of the High Court in Kampala, has trashed with costs an application filed by three members of Departed Asians Properties Custodian Board (DAPCB) in which they were challenging parliament’s COSASE from investigating their involvement in the alleged mismanagement of the said properties and a number of mischievous activities within the board.

This follows a  May, 26, 2020 ruling where Justice Sekaana noted that 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.

“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 tiles 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 ministers decision would be changed or amended unless by way of appeal under section 15 of the act which is to be made within 30 days from the date of communication of the decision to the High court,” Justice Ssekaana ruled.

“Retention of any implied power by the minister to revoke his decision on the ground that it was made in error would perpetuate that very uncertainties about ownership of the expropriated properties, which the act intended to eliminate,” he added.

Sekaana’s ruling by then reinforced last year’s opinion by the Attorney General Mr Willian Byaruhanga who explained that Asian properties already allocated to different individuals through court processes cannot be reversed.

In yesterday’s ruling whereby applicants including Muhammed Allibhai, Pradip Nandlal Karia and Minex Karia brought separate applications for judicial review combined with enforcement of rights under articles 28, 42, 44 (c) and 50 of the constitution and sections 36 and 38 of the Judicature Act cap 13 and rules 3, 6, 7 and 8 of the judicature rules, S.I no. 11 of 2009, Justice Ssekaana ruled, ordered and declared that;

A DECLARATION that the respondents’ parliamentary sub-committee on commission, statutory authorities and state enterprises COSASE acted ultra vires when it held out to act as court of law, sat in judgments of court and issued warrant of arrest against applicants and the same is null and void.

A DECLARATION that the respondents COSASE decision to hear disputes involving private individuals and make decisions and order of a criminal nature usurped and hijacked the jurisdictional mandate of the constitutional court by continuing to conduct parallel proceedings to interfere with the Independence of the judiciary and is ultra vires, illegal, unfair, null and void.

A DECLARATION that the respondents directive to the applicant to cede his statutory rights and privileges to petition the speaker and get her decision excusing him from proceedings and production of documents without her making a decision or else contemporaneously/forcefully issue a criminal arrest warrant against him is irrational, illegal unfair, null and void

A DECLARATION that the speaker of parliament decision to abdicate and/or not to act on the applicants petition and objections and letting the COSASE committee to continue with the impugned proceedings was a breach of discretion and the law governing Parliament is ultra vires, illegal, null and void

A DECLARATION that COSASE acted irrationally when it usurped and subjected the applicants petition to the speaker of parliament to the jurisdiction whose very decision it was against orders and pronouncement without waiting speakers decision and this was vires and denial of a fair hearing and null and void

A DECLARATION that the COSASE decision to disregard the applicants petition to the speaker of parliament before she exercised her discretion on excuisn him from the hearinf and producing documents as part of his statutory rifht and privilege under s. 1 of the parliamentary act and proceeding to make contrary pronouncements, orders and directives was a denial of a fair hearing and the same is ultra vires, null and void.

An ORDER OF CERTIORARI doth issues to call for and quash the respondents decision and proceedings of 10th mach 2020 and 16 march 2020 into court for quashing for being an illegality

An ORDER OF PROHIBITION doth issues barring the respondent, their agents or any other person acting under them enforcing the decision to issue an arrest warrant without the involve of the speaker of parliament as required by law to commenced criminal proceedings against the applicants

An ORDER OF INJUNCTION doth issue restraining the respondent , their servants, agents or any other person acting under their authority from subjecting the applicant to any criminal proceeding arising from the decision contained in the respondents impugned proceeding dated 10th march 2020 and 16th march 2020

Punitive and exemplary damages for the respondents arbitrary, highhanded and oppressive treatment of the applicants.

General damages

Costs

Background of the case: 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 a return to its former owners.

Meanwhile, under the law, the Act Cap. 87 guides the repossession of formerly expropriated Asian properties in Uganda and this provides that eligible persons to repossess the property include; a former owner who was a registered proprietor at the time of expropriation or a shareholder and a duly appointed attorney of any former owner.

Some of the property under investigation include plots 33-37 on Kampala road Entebbe and plot 65 on Kampala road Entebbe which the committee queried on how the ownership of such property changed from leasehold to freehold.

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