Kampala, Uganda | THE INDEPENDENT | The High Court Civil Division has quashed a report by the Committee on Commissions, Statutory Authorities, and State Enterprises-COSASE that recommended the cancelation of the repossession of properties under the Departed Asians Property Custodian Board whose original owners did not return physically to Uganda.
Justice Boniface Wamala delivered the verdict Tuesday following a successful application by Mohamed Allibhai, the Managing Director of Tight Security Limited, and Alderbrige Real Estate and Management Limited. Allibhai represented some of the former owners of expropriated properties in the repossession and management of the properties by the Departed Asians.
In 2019, the then COSASE Chairperson, Mubarak Munyagwa tasked the former Makindye East MP Ibrahim Kasozi to chair a Subcommittee to investigate the alleged fraudulent acquisition of properties under the Departed Asians Property Custodian Board that was managing more than 10,000 properties led behind by Asians following their expulsion from Uganda in 1972.
However, in 2009 investigations revealed that 1,676 properties including businesses, stock farms, and real estate had been sold, 3,226 had remained unclaimed or claimed whereas others had already been compensated for by the current government. In 2021, the COSASE Subcommittee led by Kasozi found that some properties had ended up in the hands of unscrupulous individuals who had transferred them to other purchasers without notice.
Kasozi gave examples of individuals like Allibhai, whom he indicated had gone to Canada and fraudulently obtained certificates of repossession and went ahead to own properties to the detriment of the real owners. As such, the Sub Committee recommended the cancellation of their certificates and ordered the prosecution of the likes of Allibhai. The committee also went ahead to issue arrest warrants against those implicated in the shady transactions.
Dissatisfied with the report, Allibhai petitioned the High Court, saying that the procedure adopted by Parliament to summon him through newspapers was strange. He also told the court that when he showed up in parliament, he was denied a fair hearing and instead harassed as the COSASE Subcommittee Chairperson continuously forced him to admit to his biased, baseless, and premeditated conclusions.
He also noted that the COSASE Subcommittee acted in bad faith and unfairly when it coopted George William Bizibu the Executive Secretary of the Departed Asians Property Custodian Board as a permanent member of the subcommittee yet it was required to investigate the board. According to Allibhai, Bizibu had already made accusations against him and prejudged him as a fraudster in a confidential document he had sent to the Clerk to Parliament.
He also argued that the recommendations sought to overturn court decisions and invoke inquiries into expropriated properties 20 years after the repossession was effectively done and concluded. Accordingly, Allibhai asked the High Court to quash the report and recommendations by COSASE Subcommittee, which were adopted by the 10th Parliament, and declare them illegal.
In his decision, Justice Wamala noted that the Committee was well aware that there were court proceedings in different cases concerning the Departed Asians Property some of, which had already been determined. He said that despite this, the committee still went ahead to violate the subjudice rule and made its own findings and recommendations, which constituted illegalities and therefore couldn’t be left to stand.
“The findings and recommendations in the report regarding the property in issue contradict the court decision. This is the very essence of the sub-judice rule. A person shall not deal with matters that are the subject of a court proceeding in such a way as to prejudice such a proceeding or its outcome. This rule was clearly breached by the Sub-Committee making the Committee’s investigation and findings illegal to that extent”, said Justice Wamala.
The Judge explained that there was a case filed in 2015 by one Cuthbert Omron Nicanor against Mohamed and others, which concerned one of the properties on Plot 38 in Soroti District and it was still under trial by the time the Subcommittee did its investigations. He said the same was brought to the attention of Parliament but it was ignored and their findings and recommendations contradicted what came out of that decision.
Quoting the Expropriated Properties Act, the Judge said that one of the ways to deal with expropriated properties was through the issuance of a certificate of repossession after taking all the necessary steps of verification by the Finance Minister, who is not mandated to revisit his or her decision. “This same position of the law was confirmed by the Supreme Court in 2002,” he said.
Adding that, “There is also evidence that the Sub-Committee was aware that some properties they were investigating had been dealt with by the Minister by way of issuance of repossession certificates. Yet the Sub-Committee went ahead to undertake investigations, make findings and recommendations over the same properties, which recommendations are contrary to the law and the said court decisions, and thus illegal”, said Wamala.
Accordingly, Justice Wamala declared that it was illegal for the COSASE Sub Committee to make recommendations that purport to overturn court decisions and that it exceeded its jurisdiction when it purported to investigate properties already dealt with under the Expropriated Act.
He directed parliament to expunge from its Hansard and other official records those parts of the COSASE Subcommittee report that are affected by illegalities, procedural impropriety, and unfairness as he has found in his decision. The Judge also quashed the warrant of arrest issued against Allibhai and made several other orders against the government before awarding him the costs of the case.