AG Kiryowa Warns COSASE On Departed Asians Property, Says Recommendations Are Illegal, and Could Cost Gov’t Billions In Court

Earlier this year, the Government of Uganda’s Attorney General, Mr Kiroywa Kiwanuka warned that the recent recommendations by the Parliamentary Committee on Public Accounts―Commissions, Statutory Authorities and State Enterprises PAC-COSASE that the Departed Asians Property Custodian Board (DAPCB) should initiate processes to cancel repossession certificates previously issued by the Government/Ministry of Finance, Planning and Economic Development are untenable in law, a nullity and shall cause government further innumerable and costly suits.

In the letter, to the Ministry of Finance, the Attorney General advised the government that the law does not give powers to the Minister of Finance to undo a decision on the properties and that only the High Court has the powers to do so. We reproduce the letter here below.

The Hon Minister of Finance, Planning and Economic Development

Dear Colleague,

RE: THE DEPARTED ASIANS EXPROPRIATE ASSETS

As a result of the debate that has taken place in the recent past, both within Government and among others, regarding the manner in which the captioned assets have been managed by the Custodian Board, and considering the numerous cases filed against Government in relation to the same matter, I have been Directed by H.E to render this Opinion to the Government.

1. As you are aware, in August 2016, the Auditor General in Exercise of his Statutory Mandate, conducted two Special Audits on the Operations of the Departed Asians Property Custodian Board (DAPCB) for the Period 1^st February 2011 to 31^st March 2016 and 1^st April 2016 to 31^st March 2017. The two Special Audit reports were submitted to Parliament in accordance with Article 163 (4) of the Constitution,
2. Pursuant to Article 164 (3) of the constitution and Rule 178 (a), (b), (c) and (d) of the Rules of Procedure of Parliament, 2017, the Parliamentary Committee on Public Accounts (Commissions, Statutory Authorities and State Enterprises) (COSASE) was assigned by Parliament to examine two Special Audit Reports of the Auditor General on the Operations of DAPCB.
3. Accordingly, COSASE constituted a sub-committee to consider the two special audit reports and investigate the management of the properties.
4. Under the DAPCB, in this regard, among the recommendations of the subcommittee was that the DAPCB should initiate processes for the cancellation of certain repossession certificates previously issued by the Government/Ministry of Finance, Planning and Economic Development and any substitute titles issues contrary to the opinion of the then Attorney General, (Hon Bart Katureebe) in his letter to the Minister of State for Finance dated 9^th of June 1997. The same recommendation was adopted by Parliament.
5. Although the COSASE sub-committee investigations elicited findings similar to those of the  Auditor General, as contained in the two Special Audit reports mentioned above, the recommendation of the COSASE sub-Committee is thatDAPCB initiates the process for cancellations of certain repossession certificates and any substitute titles is legally untenable. This is in light of Section 9(1)(d) of the Expropriated Properties Act Cap 87 and case law, and if carried forward, such action would only increase the number of lawsuits likely to cause substantial financial loss to the government.
6. Section 9 (1) (d) of the Expropriated Properties Act gives the Minister power to repossess, sell or dispose of the property for the failure of the former owner to return to Uganda within 120 days. However, once the Minister has issued a title of repossession, the Minister has no powers to cancel it.

Mohan Musiisi Kiwankuka versus Asha Chand SCCA No 14 of 2002 which dealt with the certificate of purchase, Mulenga JSC held:

“IN 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 THE MINISTER, ANY POWER TO REVIEW SUCH A DECISION UPON REQUEST BY AN AGGRIEVED PERSON. IT ONLY DIRECTED THAT SUCH A PERSON SHOULD APPEAL TO THE HIGH COURT. I AM ALSO UNABLE TO CONSTRUE FROM THE ACT, THAT THE MINISTER RETAINED ANY IMPLIED POWER TO REVOKE HIS DECISION ON THE GROUND THAT IT WAS MADE IN ERROR. IN MY VIEW, TO DO SO WOULD PERPETUATE THE VERY UNCERTAINTIES ABOUT OWNERSHIP OF THE EXPROPRIATED PROPERTIES, WHICH THE ACT WAS, INTENDED TO ELIMINATE. IT WOULD ENABLE THE MINISTER AT ANYTIME, AD INFINITUM TO REVERSE EARLIER DECISIONS, AND CANCEL OR ANNUL CERTIFICATES ISSUED UNDER SECTIONS 4,5 OR 8 OF THE ACT, MERELY BECAUSE OF CHANGE OF MIND OR OPINION, OR BECAUSE OF OTHER WHIMS OR CONSIDERATIONS. IF THE LEGISLATURE HAD INTENDED TO RETAIN IN THE MINISTER CONCURRENTLY WITH THE HIGH COURT, ANY POWER TO REVIEW HIS DECISIONS, IT WOULD HAVE DONE SO EXPRESSLY. THE ONLY INTENTION I READ FROM THE PROVISIONS OF THE ACT IS TO EMPOWER THE MINISTER TO DECIDE AND DISPOSE OF AN EXPROPRIATED PROPERTY ONCE, AND TO LET ANY GRIEVANCE ARISING FROM THE MINISTER’S DECISION TO BE RESOLVED BY THE HIGH COURT”

From the above decision, the position of the law is that the Expropriated Properties Act did not expressly reserve in the Minister any power to review his decision, even if made in error.

• Accordingly, I wish to advise that:
  • Once the Minister of Finance Planning and Economic Development has dealt with an expropriated property, by issuing a repossession certificate (letter of repossession), a certificate of purchase or a certificate of receipt (letter of receipt), he or she has no power under the Act to cancel the certificate issued.
  • Even if there was an error on the part of the government, the minister cannot cancel a certificate of repossession
  • That power to cancel a certificate of repossession exclusively vests in the High Court
  • The Recommendation of the COSASE subcommittee for DAPCB to initiate a process for cancellation of repossession certificates acquired and any substitute titles, is not capable of implementation in light of the existing case law.
  • Any person who is aggrieved by any decision made by the minister under the Act, may within 30 days from the date of communication of the decision to him or her, appeal to the High court against the decision. Needless to say, the time to do this has expired for many of the cases in the report.
  • Once the Certificate of Repossession (letter of repossession) has been issued, DAPCB has no mandate to deal with such property.
  • The Custodian Board Divestiture Committee does not have powers to repossess, manage or allocate any property that has been dealt with by the Minister.

C.C

• Deputy Attorney General, Ministry of Justice and Constitutional Affairs, PS/Secretary to the Treasury
  
• Deputy Solicitor General, Ministry of Justice and Constitutional Affairs
• The Executive Secretary, DAPCB
• The Divestiture Committee, Ministry of Justice and Constitutional Affairs