10 December 2006

Uganda: House of the Year

Kampala — In 24 years, ten judges heard this case and seven lawyers argued it out. Hillary Nsambu narrates the story of the Athina club house...

A civil case in which the honorary Consul of Cyprus has been fighting to deregister a London-based Ugandan Asian property tycoon from his multi-million property that encompasses Athina Club House in Kampala, has finally been decided after 24 years.

The Supreme Court, on November 23, 2006, delivered the judgment in which a five-judge coram unanimously dismissed, as worthless, the appeal by the tycoon, Nazmudini Gulam Hussein Virani.

The court ruled that No. 30 Windsor Crescent, Kampala, which is registered as lease No 37670 on LRV 240 Folio3, belongs to the Honorary Consul of Cyprus, Nicholas Roussos, the surviving son of the original owner, the late Eugenia Genovefa Roussos (Mrs).

"It was a difficult case, however, in the end justice has prevailed.

Evidence was very clear that the signature of the original owner, the late Eugenia Genovefa Roussos was forged. The burden was on those who claimed to have bought the property to prove that they were a bona fide purchaser, which they failed to do. All the courts were justified to decide the way they did," Didas Nkurunziza, one of the lawyers for Roussos said after the Supreme Court decision.

The Honorary Consul, Nicholas Roussos had this to say: "I am overjoyed because justice is done and those who claimed to have bought have been proved wrong.

Thanks also to the Ministry of Foreign Affairs officials who restrained Virani from evicting the Consulate from the property at a mere application to set aside the initial judgment."

The late Eugenia Genovefa Roussos filed the case in the High Court in 1982 against Virani, in an effort to recover the suit property from him. Her major contention was that the transfer of the property into Virani's names had been fraudulently done, arguing that the signature on the transfer forms that was purported to be hers, had been forged.

In 24 years, two judges of the High Court, three justices of the Court of Appeal and five justices of the Supreme Court heard the case.

Seven lawyers in all, two of whom have since died, argued this case.

The late Andrew Tibamanya, Joseph Mulenga (now Justice of the Supreme Court), Didas Nkurunziza and John Kaggwa, represented the Roussos family, while the late Jonathan Kateera, Godfrey Lule and James Nangwala represented Virani.

The first trial judge, Kantinti, died after deciding in favour of Eugenia Genovefa Roussos, who also died some time later, when the first judgment was set aside and a second hearing was ordered.

(Their deaths are, in no way, related to the case)

Before she died, Eugenia Genovefa had told the first trial judge that she bought the property from a Goan businessman called De Souza in 1961 and had never attempted to sell it to anyone at all after becoming the registered proprietor on July 19 of the same year.

According to evidence on record, she told the court that in 1969, Virani fraudulently transferred the property into his and his father's names, Nazmudin Gulam Hussein Virani and Gulamhussein Virani respectively, purporting that they had bought the property from Genovefa, which was not true.

Before she could institute a case in court, the military regime of Idi Amin expelled the Roussos family together with the 60,000 Asians from Uganda in August 1972.

According to the court record on April 22, 1969, Gulamhussein Virani, now deceased and his son Nazmudin Gulamhussein Virani were registered as tenants in common of the suit property by a deed of transfer. They mortgaged the property to the Registrar of the Trustees of the Vithaldas Hindas Lohana Vidyrth Bhava.

On April 25, 1969, they took another mortgage in favour of D. Pradhar. A year later, on March 13, 1970 they mortgaged the same suit property to the Housing Finance Company of Uganda. They also left Uganda under the orders of Idi Amin in 1972.

The suit property, like any other abandoned property after the expulsion of the Asians, was expropriated by the Government and was placed under the Departed Asians Property Custodian Board (DAPCB), which allocated it to the Prisons Department for its staff.

The Roussos returned to Uganda in 1980 and on discovering what had happened to the suit property, the late Mrs Eugenia Genovefa Roussos filed a suit in the High court against the Viranis for its recovery.

The first High Court trial judge, Kantinti, believed Mrs Roussos' evidence and entered an exparte judgment in her favour and ordered the Registrar of Titles to cancel Virani's names from the certificate of title and to substitute it with hers as the true owner of the property.

Later, Virani returned to Uganda and successfully contested the exparte judgment and decree of the High Court as he wanted to be heard on the case. On October 12, 1995, Justice Joseph Patrick Berko set Kantinti's judgment aside and ordered the case to be heard afresh with all the parties present in court.

The court had heard that after the exparte judgment had been set aside, Virani registered his names on the title of the property and threatened to evict the Consulate. However, the Ministry of Foreign Affairs restrained Virani from throwing the Consulate out, saying that they should not be disturbed until the Supreme Court finally decided the case.

Unfortunately, Mrs Roussos died before the second proceedings of the case commenced in the High Court. The Honorary Consul, Nicholas Roussos stepped in as the administrator of the estate of his mother and was substituted as the plaintiff in the suit.

Justice John Patrick Mashongo Tabaro, who took over the case from the late Kantinti, formed a crucial issue: "Whether or not the transfer of the property from Eugenia Genovefa Roussos to the Viranis was genuine or forged". It is on this issue that the whole case hinged until it was finally decided.

After a careful analysis of the signatures on the transfer forms which were availed to the court by a handwriting expert, John Baptist Mujuzi, the judge ruled that the signatures on the transfer deed was a forgery.

The judge said the Viranis failed to prove that they were the bona fide purchasers and did not even produce a handwriting expert to disprove that the deed of transfer was not a forgery.

Consequently, Tabaro said: "Since the purported transfer to the Viranis was fraudulent, they (the Viranis) did not validly acquire the title deed".

Tabaro, like his late brother, Kantinti, also ordered the Registrar of Titles to cancel the names of Virani from the certificate of title of the suit property and to substitute it with that of Nicholas Roussos, who succeeded the estate of his late mother. The judge also granted a permanent injunction restraining Virani from claiming ownership of the property. He dismissed, with costs, the counter-claim in which Virani had claimed ownership of the property.

Virani, unsuccessfully appealed to the Court of Appeal against the High Court judgment and orders as the first appellate court dismissed it as worthless and ordered Virani to pay the costs in the CoA and the HC to the Honorary Consul, Nicholas Roussos, hence this appeal to the Supreme Court, which also collapsed.

Chief Justice, Benjamin Odoki, chaired the five-justice coram of the Supreme Court and Justice Dr George William Kanyeihamba wrote the lead judgment. The other members of the coram were justices John Wilson Tsekooko, Alfred Karokora and Bart Katureebe. They ordered Virani to pay the costs of the case in the Supreme Court, the Court of Appeal and in the High Court where it was tried twice.

In his judgment, Dr Kanyeihamba expressed surprise that Nandlal Karia, the purported agent of the Viranis, was not called to give evidence in their favour.

The court also heard that despite the various court decisions, the Viranis have hitherto refused to hand over the title deed to the Cyprus Consul, Nicholas Roussos and to remove a caveat from his property. However, John Kaggwa said that they would challenge the Viranis conduct in a court of law.

According to further records, Virani, in 1994, hit headlines in the press in Britain and Uganda when he was tried and convicted by the Crown Court in London, upon indictment of furnishing alleged false information and false accounting, which allegedly helped prop up the collapse of the Bank of Credit and Commerce International (BCCI). The BCCI was said to be one of the banks in which the Queen of England and the royal family used to bank. At the Old Bailey, the London's Central Criminal Court judge, Michael Hutchison, who convicted Virani, was quoted by the press as saying: "a custodial sentence of two and a half years was inevitable as you have committed very grave offences".

Virani, 57, had been found guilty of seven out of 14 counts of providing false information and false accounting, which helped BCCI conceal the crisis in its finances from auditors and regulatory authorities.

The tycoon was once feted the brightest and best of Britain's Asian business community. In 1994, he was estimated to be worth £110m and was hailed as Asian of the year. He had also been ranked third of the 50 richest Asians in Britain in 1990.

According to British press, Virani was chairman of the Control Securities, a £650m hotel and leisure group with 770 pubs and 23 hotels that employed 3,500 staff in 1994.

The Sunday Telegraph reported that he was a devout member of the Ismail Muslim sect and organised a fund-raising dinner at Kensington Palace on behalf of the Prince of Wales' Youth Business Trust. He had easy access to the Aga Khan, the leader of the Ismail Community.

Senior British politicians from across the spectrum used to accept his hospitality. At one time, Paddy Ashdown, then leader of the Liberal Democratic Party, was led to believe that the tycoon would be part of his party.

Virani led a 19-member British trade delegation to Uganda during the early years of the NRM administration.

Prof George Kiirya , then Uganda's High Commissioner to London, accompanied the delegation.

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