THE EXPROPRIATED PROPERTY

The Historical Background.

Asians who came to work on the Uganda Railway later had lucrative businesses in
retail trade, coffee hulling, cotton ginning, produce buying, transportation as
well as import and export trade.
Ugandans had by 1940 started strikes and boycotts to protest this imbalance of
economic power.

In order to address this imbalance, the Colonial Government responded by several

measures like setting up the Lint Marketing Board in 1949 which was set up to
handle all cotton exports and to ensure a more descent return to the farmers.

The Uganda Credit Savings Bank in 1950 with the object of facilitating loans to
Africans in furtherance of agriculture, commerce, building and co-operative
societies.

The Uganda Development Corporation was set up in 1952 to facilitate the industrial
and economic development in Uganda.

The Acquisition of Ginners Ordinance 1952 was set up for the government to
compulsorily acquire privately owned ginneries and sell them to the Africans.
The product Marketing Board was set up in1953.These laws were a deliberate effort
to help farmers to access credit and to sell their produce at more favourable and
stable prices.

After independence, the National Housing Corporation was set up in 1964 to

construct houses and sell them to Ugandans on long term basis.
The National Trading Corporation Act was set up in 1966 the purpose of which was to
limit the operational area of non-citizen traders.

In 1969 the Trade Licensing Act was enacted to limit operations of non- Africans to
major towns so as to remove business competition of foreigners in small towns and
rural trading centres. The Minister was empowered from time to time by statutory
order to declare any trading centre to be an area in which a person who is not a
citizen of Uganda is prohibited from trading

All the above measures made tremendous contribution to the integration of Africans
in the economy but the dominance of Asians in commerce and industry still remained
a contentious political issue in the country and between Uganda and Great Britain
since most of the Asians were British Citizens and it was not surprising that
hardly two years in office President Amin Dada decided to expel them from Uganda.

In August 1972 Amin Dada declared the infamous Economic War whereby all persons of
Asian origin were expelled from Uganda and all their properties were confiscated by
the Government and placed under the Departed Asian Property Custodian Board for
allocation and management.

However, after Amini’s fall a number of legislations were enacted under which most
of the properties were either returned to the former owners or sold off. These
included the following.

Section 2 (1) of the Assets of Departed Asian Decree of 1973 provided that every
departing Asian leaving Uganda had to declare his assets forms 1 and 2 specified in
the schedule to the decree. The departing party had to state all his assets and
liabilities including these relations to any business interest and give the
Minister such other particulars and information relating to such assets and
liabilities as the minister would require.
Section 4(1) provided that any assets declared by the departing Asian who failed to
p[rove his citizenship at the time and in a specified manner, it automatically
vested in the government without any further authority.

INTENTION OF LEGISLATION
The Expropriated Properties Act of 1982 was enacted to provide for the transfer of
properties and businesses acquired or otherwise expropriated during the military
regime to the Ministry of finance and to make provision for the return to former
owners or disposal of the same by government and to provide for related matters.

Its important to note that the Departed Property Custodian Board which was
created earlier was vested with powers to manage the properties but had no power to
effect transfers or sale.

PROPERTIES WHICH THE ACT APPLIES

Section 2(1) of the Expriopriated Properties Act Cap 68 gives a list of these
properties to include;

a) Any property or business which was vested in the government and transferred to
the Departed Asians property Custodian Board under the Assets of Departed Asians
Act

b) Acquired by government under the properties and Business Acquisition Decree 1973

c) In any other way appropriated or taken over by the military regime except
property which had been affected by the provisions of the National Trust Decree,
1971, shall from the commencement of this Act remain vested in the Government and
be managed by the Ministry responsible for finance.

NULLIFICATION OF DEALINGS.
The Departed Asians Decree 27 of 1973 vested property of the Departed Asians under
the Control of the Departed Asian Custodian Board.

However, the Expropriated Properties Act vested the property in other way
appropriated or taken over by the military regime was re-vested in the government
to be managed by the ministry of finance. The minister could by statutory order
appoint another person or body to manage any such vested property.

To ensure that the expropriated properties remained vested in the government and
that they were dealt with under the provisions of the expropriated properties Act
1982, all purchasers, transfers, ranks or any other dealing in whatever kind in
such properties were nullified.

Section 2(2) of the EPA Cap 68 provides that all purchases, transfers, grants or
other dealings of whatever kind of such properties were nullified. This
nullification affected leases or tenancies, which had expired or terminated. Such
expired or terminated leases were deemed to have continued in force and to continue
until the property had been dealt with under the act.

This nullification interfered with the lawful transactions that had been concluded
by the Departed Asian Custodian Board in respect of these properties. Purchase or
leases or surrenders lawfully effected by the custodian board were nullified.
Equally nullified were sales of mortgaged properties by mortgages.
In Godfrey Lule v Attorney General Engwau J explained that the 1982 Act nullified
the otherwise valid sale effected before 1982 and the buyer is entitled to
compensation from Government. The buyer was also entitled to compensation for
improvements made on the land from the re-possessor based on the market value.

RE-ENTRIES AFTER THE ACT CAME INTO FORCE

Re-entries by lessor on the expropriated leases were also nullified and such
forfeited leases restated to be dealt with under the Act. The rationale for this
nullification was to ensure that all the expropriated properties remained vested in
government and to ensure that they could be dealt with under the Expropriated
Properties Act.

Thus this interfered with existing legal relationships between vendors and
purchasers, mortgagors and mortgagees and leasers and leases. The nullification on
the face of it was intended to be retrospective, i.e. it affected dealings that had
taken place before the expropriated properties act 1982.

This principle was expounded in the case of Victoria Tea Estates Ltd V James Bbemba
, the Court of Appeal reconsidered the true impact of Section 2(1) and 9(2) of the
Expropriated Properties Act in view of the purported re-entry by a lesser
registered on 29th May 1991 and a certificate of repossession issued in respect of
the same property on 28th November 1981. Court held that since the government in
1973 expropriated the suit property, if followed that the Act of 1982 applied to it
and the suit property became the statutory property of the government until the
Minister of Finance dealt with the property as provided for by the Act No.19 of
1982. Any other purported dealing with such property were null and void.

POWERS OF THE MINISTER AND APPEALS FROM HIS DECISION.

The Minister would deal with the expropriated property in the following ways
according to section 3(1) of the EPA Cap 68 is to the effect that the Minister
shall have power to transfer to the former owner of any property or business vested
in the government under this Act in fulfilment with section 3(2)

SALE BY THE MINISTER.

Section 9 of the EPA empowers the Minister to make an order that the property be
sold in the following circumstances.

a) Where a former owner of any property or business does not apply for repossession
within the period specified under section 4 which is to the effect that any former
owner of property or business vested in government may within 99 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.

b) Where the Minister is not satisfied with the application under section 4

c) Where negotiations for a joint venture fails under section 5(1)

d) Where a former owner fails to physically return and reside in Uganda within a
period of 120 days from the date of authorisation.

APPEALS
Section 15 of the EPA provides that a person who is aggrieved by any decision made
by the Minister may within 30 days from the date of communication of the decision
to him/her, appeal to the High Court against the decision.

Repossession by former owners.

Section 4 of the EPA provides that any former owner of property or business vested
in the government within 90 days may apply to the Minister in writing and in such
forms as may be prescribed for repossession of the property or business.

Section 6 (1) of the EPA provides that the Minister upon receipt of the application
and being satisfied with the merits of the application, shall issue a certificate
authorising the former owner to repossess the property or business.

In Mohan Musis Kiwanuka v Asha Chand court explained the two certificates issued
under this Act. The first was the purchases certificate and when the Indian
returned the Minister issued the certificate of repossession.

The supreme court held that there was an error on the certificate of purchase which
had the same force and effect as a certificate of repossession. Court ordered that
the Indian be compensated in money terms and Mohan Kiwanuka be reinstated on the
certificate of title.

Section 7 of the EPA provides that a certificate of repossession issued under

section 5 or 6 shall be sufficient authority for the Registrar of Titles to
transfer title to the new joint venture company or the former owner.

Joint venture Between the Government and the former owner.

Section 1 of the EPA defines joint venture to mean a company in which the
government and a former owner invest and participate together.

Section 5(1) of the EPA provides that where an application made under section 4
relates to property or business in which government wishes to participate, the
minister shall notify the applicant accordingly and invite him or her to enter into
negotiations for that purpose.

Section 5(2) is to the effect that where the negotiations 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.

Various forms of compensation.

Section 12(2) of the EPA provides that where property or business is returned to a
former owner or transferred to a joint venture company or retained by the
government in accordance with this Act, the former owner or the company or the
government as the case may be shall be liable to pay for the value of any
improvements in the property or business to the person or body that effected the
improvement.

Section 12(3) further provides that where the property or business had been
transferred to any person or body for value and the property or business is
returned to a former owner or is otherwise dealt with in accordance with this Act,
the government shall be liable to pay compensation to that person or body.

In conclusion, Section 14 of the Expropriated Properties Act Cap 68 provides that a

person has no right to sue the government for damages arising from any loss,
damage, waste or deterioration of any property or business covered under this Act
where the loss, damage, waste or deterioration occurred before the commencement of
this Act.
REFERENCES.
1. Expropriated Properties Act Cap 68
2. Assets of Departed Asians Act Cap 63
3. Properties and Business Acquisition Decree, 11/1975
4. Isaac Christopher Lubogo, current and Emerging Land laws, urban smart cities &
Eco friendly Renewable Energies, Jescho Publishing House Kampala
2023
5. Godfrey Lule v Attorney General CACA. NO.2/2000
6. Victoria Tea Estates Ltd V James Bbemba Civil Appeal No. 49 of 1996
7. Mohan Musis Kiwanuka v Asha Chand SCCA NO. 14 of 2002