By Andrew Irumba
Members of Parliament were on Thursday bewildered after Attorney General William Byaruhanga told them that government cannot repossess departed Asians properties that were already allcated by court to new owners.
Byaruhanga was appearing before the Committee on Commissions, Stutory Authorities and State Enterprises (COSASE), to explain circumstances under which the Departed Asians Properties Custodian Board (DAPCB) sold properties that had been compensated for by government to individuals.
But Byaruhanga told the legilsators that properties already allocated to different individuals through court processes cannot be reversed.
His statement however shattered the hopes of the DAPCB and COSASE to repossess such properties.
Parliament is investigating allegations of fraud syndicate in acquisition of 460 Departed Asians Properties, who were sold to businessmen and government officials under dubious circumstances.
Some of the individuals who bought these properties include tycoon Sudhir Ruparelia, Secretary to the Judiciary Pius Bigirimana, among others.
However, in a legal opinion to Finance minister Keith Muhakanizi on August 15, 2019, AG Byaruhanga said such properties cannot be subjected to a further Parliament inquiry, since court concluded the processes of allocating them to new owners.
In the letter, Byaruhanga was responding to a letter by the DAPCB which claims to own Plot 98-104 Nakivubo Road, yet it belongs to Hajji Abdu Kasai, a businessman.
Byaruhanga explained that “The powers of the DAPCB are governed by Section 4 of the Assets of Departed Asians Act Cap 83, which stipulates that the Board shall take over and manage all assets transferred to it by virtue of Section 13 of the Assets of Departed Asians Decree, 1973.
He adds that “The same Section 13 mandates the Board to discharge all the liabilities to it by this Act, collect all debts or other monies due to the departed Asian; and may sell or otherwise deal with such assets in the same way as the departed Asian may do.”
He however explained that the Expropriated Properties Act Cap 87 and the Expropriated Properties (Repossession and Disposal)(No.1) Regulations S.I 87-8 limit the involvement of DAPCB and the Minister of Finance in the transfer property already allocated to a person and or take it back to the former owner.
“Section 3 of the Expropriated Property Act Cap 87 provides; (J) Subject to this Act; the Minister shall have the power to transfer to the former owner of any property or business vested in the Government under this Act that property or business,” the Byaruhanga’s letter reads in part.
He adds: “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, repossess and actively manage the property or business. Subsection (2) shall not apply to a former owner who jointly participates with the Government in the ownership and management of any property or business pursuant to section 5.”
Byaruhanga explained that in light of the above provisions, “it is evident that the DAPCB’s involvement is limited to only when the property is still vested in the Government by virtue of Section 2 of the EPA and before the issuance of a repossession certificate by the Minister”.
The Attorney General also quoted a Supreme Court ruling in the case between Mohan Musisi and Kiwanuka Asha Chard. In the case, Justive Mulenga held: “The Minister has no power to cancel a Certificate issued under the Act. By providing in section 14 of the Act, that a person aggrieved by a decision made by the Minister under the Act may appeal to the High Court, Parliament did not expressly reserve in either the Minister or any power to review such a decision upon request by an aggrieved person.”
However, Byaruhanga’s legal opinion ends claims by Departed Asians’ Property Custodian Board on the properties under contention.
It should be noted that a few days ago, Sudhir protested the move by Parliament to investigate how he acquired a property in Kampala on Plot 24 on Kampala Road, yet the High Court had ruled that he genuinely acquired the same property.
The property alon Kampala Road, which belongs to Meera Investments Limited, was named as one fo the properties suspected to have been sold under shady circumstances.
However, Sudhir, in a letter dated August 14th, 2019 addressed to Speaker Rebecca Kadaga, wondered how COSASE is investigating his ownership of the property yet the matter was decided upon by the High Court in 2012.
Sudhir told the Speaker that Meera Investments bought the property in 1995 and when the DAPCB contested the ownership, they took the matter to the High Court, which ruled in their favour and that the Board didn’t appeal.
“Rt. Hon Speaker, in 2012, the Custodian Board claimed that the former owner did not return to Uganda to manage the property and therefore the property belongs to the Custodian Board and was by the state of their pen under their management. Having bought the property and owned it since 1995 we went to High court for Judicial Review under LD CR 16 of 2012 to challenge the Custodian Board’s claim,” Sudhir’s letter reads in part.
He added that; “We are seeking clarification and guidance from you whether Parliament can inquire into a matter where the decision of Court has been made or where a matter is in Court. Then whenever matters in court come to an end, parties can come to Parliament for another decision. We shall be grateful for our guidance.”
