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

By Andrew Irumba

Kampala: Hon. Justice Musa Ssekaana, has Wednesday, October 7, 2020, seating at the Civil Division of the High Court in Kampala, thrown out, 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 with in the board.

Download Final Ruling Here👉Ruling Mohammed Allibhai, Minex Karia and Pradip Karia v AG

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.

READ ALSO: COSASE Summons V/President Ssekandi Over Departed Asian Properties In Masaka

“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.

READ ALSO: City Tycoons Allibhai, Pradip Sweat Plasma Over Dubious Acquisition Of Departed Asians’ Properties

“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.

Sekaana’s ruling by then reinforced 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.

READ ALSO: Tycoon Sudhir Appears Before Parliament Over Departed Asians Property Row

Now in yesterday’s ruling whereby applicants including Mohhamed 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 (Judicial Review) Rules, S.I No. 11 of 2009, Justice Sekaana ruled, ordered and declared that;

1) A DECLARATION that the respondent’s Parliamentary sub-committee on Commissions, Statutory Authorities and State Enterprises’ COSASE acted ultra vires when it held out to act as a court of law, sat in judgments of court and issued Warrant of Arrest against Applicants and the same is null and void.

READ ALSO: Red-Hand! Asian Custodian’s Board Boss Irine Apiyo Arrested Over Destroying ‘Crucial’ Documents On Asian Properties Ownership

2) A DECLARATION that the Respondent’s 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 and interfered with the independence of the judiciary and is ultra vires, illegal, unfair, null and void.

3) A DECLARATION that the Respondent’s 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 to contemporaneously/forcefully issue a criminal Arrest Warrant against him is irrational, illegal unfair, null and void.

READ ALSO: Lawyers Refuse To Meet COSASE Over Departed Asians’ Property Dubiously Sold To Tycoons, Gov’t Officials

4) A DECLARATION that the Speaker of Parliament’s 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.

Download Final Ruling Here👉Ruling Mohammed Allibhai, Minex Karia and Pradip Karia v AG

5) A DECLARATION that COSASE acted irrationally when it usurped and subjected the Applicants petition to the Speaker of Parliament to their

the jurisdiction whose very decision it was against orders and pronouncements without awaiting the Speaker’s decision and this was ultra vires and denial of a fair hearing and null and void.

READ ALSO: Tycoon Alibhai Sweats Plasma In COSASE Over Departed Asians’ Properties

6) A DECLARATION that the COSASE decision to disregard the Applicant’s petition to the Speaker of Parliament before she exercised her discretion on excusing him from the hearing and producing documents as part of his statutory right and privilege under S. 12 of the Parliamentary (Powers & Privileges) Act and proceeding to make contrary pronouncements, orders and directives was a denial of a right to a fair hearing and the same is ultra vires, null and void.

7) AN ORDER OF CERTIORARI doth issue to call for and quash the Respondent’s decision and proceedings of 10th March 2020 & 16th March 2020 into court for quashing for being an illegality.

READ ALSO: ‘Gov’t Cannot Repossess Already Sold Asians’ Properties’-AG Byaruhanga

8) AN ORDER OF PROHIBITION doth issue barring the respondent, their agents or any other person acting under them from enforcing the decision

to issue an Arrest Warrant without the involvement of the Speaker of Parliament as required by law or proceed to commence criminal proceedings against the applicants

9) 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 proceedings arising from the decision contained in the Respondent’s impugned proceedings dated 10th March 2020 & 16th March 2020.

10) Punitive and Exemplary damages for the Respondent’s arbitrary, highhanded and oppressive treatment of the Applicants.

11) General damages.

12) Costs.

Download Final Ruling Here👉Ruling Mohammed Allibhai, Minex Karia and Pradip Karia v AG

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.

READ ALSO: COSASE Summons Nzeyi, NSSF Over Fraudulent Acquisition Of Departed Asians’ Properties

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 Ex­pro­pri­ated Prop­er­ties 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.

READ ALSO: Departed Asians Property Custodian Board Bosses Cited In Multibillion Fraud

It is worth noting that 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 of how the own­er­ship of such prop­erty changed from lease­hold to free­hold.