t

FOUNDATIONS OF LAND LAW

1975 Land Reform Decree under Idi Amin and the 1g9S constitution that
sought to give rights back to the people.

Uganda Posts & Telecommunications v Lutaya, securing the registry for

ownership is not enough to find out the occupants. If one buys, then he is
subject to the interests of the occupiers.

Land is not just an object but a political object it also has connotations of
sovereignty e.g. the Uganda-Kenya struggle over Migingo islands. Land too has
social values e.g. prestige. A certificate of title is indifiseable evidence of land
ownership. Under customar5r tenure, everyone in the community is entitled to
land as everyone else. Giving one land title means giving indefeasible rights to
one person to exclude the rest.

Identity of the kind of tenure undey which land is held is very important
because different tenures have different rules.

Land is socially, economically and politically embedded. The outcome of land

cases is always unpredictable. Land cannot be divorced from other subjects
like contract and equity.
Land should be taken beyond everyday understanding of what land is. Whoever
owns land owns all that is below and above except land under mailo tenure.

The land act separates ownership of land from ownership of buildings as

regards mailo tenure.

An interest in land must be acquired according to valid ways of acquiring right

under a specific tenure.

The Key Princlples underlying Land Law

Real Property - it encompasses the bigger family of rights and obligations that
arise in that context of real property. It goes beyond tangible to include the
intangible e.g. a plot of land or mortgage. Real property includes the movable
and immovable. Traditionally, real property should be immovable but due to
evolution, real property has now come to include as well as the immovable. It
'ces beyond immovable to regulate interests
attached to it e.g. tenancy.
 f

Propertyinremandpropertyinpersonam-remissynonymouswithreal
properties are in
property in a sense that real property is rem and other
a cause of action against
personam. ReaI property connotes that one can bring
I

whereas persona property

anyone on the proplrty. Real property is recoverable
replacements' Interests in
is not all the time though one may get damages or
I

I
land is real ProPertY. I

i
The Nature of ProPrletary Rights I

to it' Propreitary
This is a right in something real and someone is connected 1

tangible or intangible' one

I

right exists in relation to a thing. This thing can be

It does not necessarily
can have proprietary rights under leasehold tenure'
come out of o*rr"r"hip and can be in various
forms on a single piece of land
e.g. the land owner, the leasee, mortgagee'
Central Concerns of Law of Property

Principlesthatcanregulateproprietaryrightshavebeensetinthelawof
propertY.
of ownership' The roman
1. ownership- the greatest interest in land is that
overtime, the
concept of o*,,.,"hip is right to own, use and abuse.
to use and dispose in
concept has been modilied to having the right
not absolute but subject
accordance with the law: Ownership is therefore
to the law.
Landlawputsalimitonlandusersinordernottoaffectotherland
level' A
of torts at this
owners. Land law therefore connects to the law
TanzanianscholarShivijilsasaysthatownershipdenotesarelationship or
entity
betweenpersons and invests some human or non human legal
agroupwithprivilegesoveranobjecttotheexclusionofothers.
development and entails
Regulating ownership is important for economic
regulation of social relationships over the land'
people can have
2. Creation of subsidiary interests in land- several
different interests on the same piece of land
3.Prioritybetweencompetinginterests-havingdifferentinterestsonthe
take
same piece of land. If there are different
interests, the best should
there are equal interests
the land or given priority of access/use' where
the equities are equal'
on the tand, ttre rules of equity apply i-e. where
the first in time Prevails'
Key Principles That Underlie English Land Law
I

h'
These principles are basically embedded in English context. [ey are not
wholesomely applicable in our local context but some haye been imported into
our local context. The question is whether these principles are regarded as
foreign or have been domesticated to gain acceptability. The same principles
have gone under evolution to gain acceptability in our local context.

a) Indivtdual ownership of land-under English law, an individual has a

right to won, use and transfer land in accordance with the law. Use as
you chose, abuse as you choose as long as the law allows. The owner is
protected from any interference. Before colonialism, land was
communally owned. The British brought the system of individual
ownership of land through agreements like the 19O0 agreement. Land
under this agreement was divided and given to individuals and titles
were issued. This resulted into classification of society and landless
people. The concept presupposes that what existed was not as good as
this individual ownership which they introduced. It came to be
considered as the best mode of land ownership, better than anything
else"
b) Factlitation of land use-English land law aims at facilitating efficient
land use by creating an environment within which the owner can create
other subsidiary interests for his and the benelit of others e.g. granting
one access or easement to his land.
c) Free marketability of land-this ensures that land is a free marketable
commodity and that purchasers will have confidence in the land market.
That the vendor has a right to sell and that when they acquire land, they
will not be surprised by third party interest that was not initially
disclosed/discussed. If it is a mortgage relationship, the mortgage should
have the conlidence that the security tenure will not be compromised by
undisclosed third party interests.
d) Fair protection of third party interests- this aims at ensuring that
subsidiary interests are protected in such a way that they should not be
easily defeated when land is transferred. There are efforts to ensure that
the purchaser of land is not unfairly burdened by those interests. NB-
interests in land are both tangible and intangible to include easements,
mortgages, and leaseholds. Land interests are both legal both at common
law and equity. As much as physical land can be sold, the other interests
in land can also be sold.
THE DOCTRINE OF TENURES AND ESTATES

The Doctrine of Tenures

 t-

The idea of tenure is rooted in the feudal system of land ownership. In the
feudal system, there is interplay between social structure and political interest
over land. Land was entrenched in the king and land ou'nership denoted
power.

In order for one to access land for use, he had to be a tenant through the
tenant in chief (these were people who had access to the king and would link
others).

The tenant in chief was one who provided services like military, religious and
other economic benefits to the king in return for land and protection.
The people who would not get land directly from the king would get theirs from
the tenant in chief and were called demesne'

These developed a system of creating more and more sub-tenancies as a way of

transferring the tax burden which ended with the peasant paying taxes altine.
This form of creating sub-tenancies was called sub-infuedation'

Tenure refers to the terms in which land is held'

The British through colonialism exported this system of land use to their
colonies.

courts could not allow exact systems of land ownership to be created in other
jurisdictions. Mabo u queenslqnd 7992 HCA 23,Dn$and was attempting
to put the land belonging to the aborigines under the crown. The English had
occupied the land as tella nullius-land on which no proprietary rights exist, so
they attempted to annex it. The English as the state acquired jurisdiction over
the land but could not oust the customary ownership of the land. Courts were
reluctant to allow use of foreign law to apply in the colony.
Amodu Tejan v Secretarg of Southern Nlgericr'court ruled that the
state took authority over land replacing the chiefs but not over the customary
ownership of the land. The tella nullius principle was being used to take over
lands that were unoccupied at that time'
The Doctrine of Estates

The doctrine means the time to which one is entitled to the enjoyment of land.
The time to which the tenure subsists. Wo,lslngham case 7573, states that
an owner of an estate in fee simple 'has a time in the land without end, or the
iAn estate in the land is a time in the land, or
land for time without end,' and
land for a time.' and 1he land itself is one thing, and the estate in the land is

;)
another thing, for an estate in the land is a time in the land, or land for
a time,
and there are diversities of estates, which are no more than diversities
of time,

There are two categories of estates; estates that are freehold in nature
and
leaseholds. A leasehold estate arises in a situation where one gr*rrt"
exclusive
possession of land to someone else for a duration of time. The
rationale for this
is that the owner should be able to get back their land after the estate
u Mountford sets out principles to determine whether someone who
. Street
occupied
a property had a tenancy (i.e. a lease), or only a licence. This mattered
for the
purpose of statutory tenant rights to a reasonable rent, and had
a wider
significance as a lease had "proprietar5r" status and would bind third parties.
Lord Templeman held that the defining feature of a lease was exclusive
possession, despite the fact that this view had been rejected and
heavily
criticised in a number of Court of Appeal cases previously, for example
judgment of Denning LJ in Errington- u Drringtoi. in the

Freehold estates are in 3 forms; fee simple that is based on whether

there will
be heirs to inherit it .Fee simple was wide that as long as one had
someone to
inherit it even in the relatives, it could still exist. The fee tail or the entailed
estate where the categories of would be hers is narrowed down to for
example
linear heirs. Life estate ends at the demise of a person or death ends the
estate

LAND TENURE SYTEMS IN UGANDA

The pre-colonial era in uganda and customary tenure in that period

The common characteristics of customary tenure in Uganda before colonialism

included

Communal ownership of land

Management of land was vested in traditional centres of authority
Management was based on norms of the given community
Land was demarcated using different plants like enkoni in ankole
The demarcating feature s changed overtime with the increasing disputes
over land boundaries
Ownership was along tribal lines
Everyone had a right to access and use of land
There was acceptance of individual ownership-wasswa v Kigungwe,
Matambulile u Yozefu Kimera; the appellant had lent money to the
 respondentandhefailedtopaybackowingpartlytotheappellant,srefusalto
accept part payments. He possessed
the kibania that had been offered as security
He contended that the law applicable
but court ruled such an action as unlawful'
to unregistered, the common law and
to tegistered interests was the RTA and
principlesofequity..given6monthstopayupandredeempropertyandthata
cater for the period the appellant derived
certain amount rt utt U" deducted as to
from occuPation

Land Tenure in Structured Communities

Buganda
land' This can be referred to as
obutaka referred to rights of the clan over
estates held in trust

Obusenze-individual hereditary rights

obutongole-rightsofthekabakaandthechiefs-thesearecalledofficialestates
Ebibanj a- Peasant occuPation
strategic plan 11
statutes include LA, rand policy, Iand sector

rand hording in uganda

How legislation affected customary
government in the immediate a-ftermath
The colonialists and the immediate
holding to suit the development agenda'
were preoccupied with reforming land
not considered a viable system to foster
Customary land holding was however
long before 19OO and continued until
this development. The crusade started
the eventual departure that culminated
in the organization of the conference-
The East African Royal commission
that aimed at changing the holding of
This agenda was to be continued by
customary into freehold and other tenures'
A law reform might not necessarily
the successive post colonial governments'
helpbecauseyouhavepeoplewhohavehugechunksoflandbutlivein
Efforts then are needed to change the
absolute poverty because of mindset.
defines land as a pure economic
tenure to suit the western system that
The change in 1955 though was not
commodity without social attachment'
necessarily made for the peasant but
rather the majority'progressive foreigners
seen as a caveat' It classifiec people into
This was so because the peasant was
lower and uPPer rungs of societY
The 19OB crown lands ordinance; as long as land had
not been issued to
anyone by title, it became subject of the crown in England.
Some land before
then had been issued by title under freehold to the colonial
power to establish
administrative centres. This meant that all land including
customary was
under the crown and could be issued out at will to wilful
developers. It looked
at customary as below the other tenure and wanted put
to it under authority
and the exclusion of private property meant that it
was preferred. This system
would eventually affect the rights of most Ugandans
to land because it in
essence vests this in a few hands. what followed
was the law that protected the
ones that had acquired property in acquisition by
dispossession process.
The Publlc Lands Act 196? - it saw the removal of land
from the crown to the
state and the role of the state was now played by the
uganda Land
commission' The regulation of the customaqr land occupier
here moves to the
commission' Land can be leased out meaning that customary
land could be
leased out to someone who could develop it. Payments
would be made for the
developments on the land and it is likely that this could
not be much. He is not
necessarily denied occupancy of their land but if their
continued occupancy is
a stumbling block, then the rights of such do not matter.
The public Land Act
L969 required that acquisition of customary land was
subject to consent
adding to the monetary compensation requirement. This
compensation had to
come from the state with the approval of the minister
(compensation for the
land)' The customary occupier was entitled to a lease
hold or freehold title over
their land if they could afford it. This however became
to naught as not very
many of these occupiers could fit the description of the law.
There were
stringent restrictions on transfer of customa{r land e.g.
selling though
bequeathing was allowed' one had to satisfy th.
on the need to
transfer such land. "o*.rrission
The 1975 Land Reform Decree - continues with the agenda
of tenure reform
to promote leasehold for purposes of development and
was pro public land.
Recognized the public land occupier but at sufferance.
This meant that the
eviction of these occupiers was more imminent than
before. This land would be
granted as leases to potential developers. They
too would regularize their stay
by acquiring a lease. It emphasised zoning regulations
about what could be
done on his land and what could not. It attempted regulation
of development
on land' conditions were set for anyone who acquired
a lease on the land.
Customary interest was not sealable but the developments
were and notice to
the controlling authority was paramount. All mailo became
leasehold,
individual perpetuity of land ended with the Act. The law
was never

'' i
 lived stay of the Amin regime' Lautrence
implemented because of the short
of land by Kitts way back,
K1tts tl BugTsu Cooperatloe unlon-purchase At the
Decree belonging to clans in Bugisu'
most likely before trre l,ana Reform
all land public land and in order for
time of prr"h""", it. t^* had made
customarytenantstoberecognized,theyhadtoacquireleaseholds.Heapplied
for a leasehold and got an offer but
unfortunately, he went into incarceration
1981, the land was sold to the respondents
and did not accept the offer. Later
whoacquiredtitleandthecontentionwaswhoownedthelandandKits
through fraud' They averred
challenged the titte alleging that
it was acquired
public land and court agreed with him
that at the time of purchase, it was He
to see how they had shaped ownership'
digging through thl various laws
remainedapublictenantonpubliclandandheremainedonsufferance
pending someone applying for the same'
that status quo by giving back land
The1995 constitution wanted to change
tothepeopleandineffectreducinggovernmentcontroloverland.AST|L|
belongs to the citizens and the citizens
clearly stipulates that land in Uganda
aresupposedtoholditaccordingtothetenuresystemsintheconstitution.
2g7|3|liststhetenuresystemsasmailo,Ieasehold,freeholdandcustomary.
2g7,I2|localgovernmentscanholdlandintrustforthepeopleespecially listed
forests, wetlands' national reserves as
environmental sensitive areas like
in237|2|b.2g7|4|providesthatpersonswhoholdlandundercustomary
a law made by parliament
ownership under
tenure can acquire certificates of

TheLAinsec3(1)clearlydefineswhatcustomarylandis.Theinclusionof
a.rr.r..'in the constitution and the LA equates it to the other tenures
customary
oratleastperceivedittobeequalinstatus.Wecanalsoinferfrom3that
are preserved' sec3(l)b governed
customary institutions of land administration
byrulesacceptedasbindingmustbeinlinewithsec27thatpreservesthe with the
persons with disability and connects
rights of chiliren ,women and
constitutior. 2l2l'
Land into Freehold
Certification and Conversion of Customary
Theprocessofformalisingorturningtheformerlyorganicsystemincludes;
Certification provided in 237l4la

COMMUNAL LAND ASSOCIATIONS

I

A group of people believe they own

land but problems arise when questions
who makes the decisions, systems of
and who deals with those who need
access such land like investors. sections to
communal land associations. These
ls-26 provide the framework for
associations can be formed by group
people for purposes of regulating a of
their rano anJ r"rf";;;;;;*.ment.
land can be under any tenure. The

Although 15(1) opens it to customary

and other tenures, the idea was
for the management of customary basically
tenure.
sec23(3) of the land act, the purposes
for which land can be put aside
common use include grazing and for
watering animals, hunting, colection
wood and building materials, gathering of fire
m-eaicine, ,rorr., or other traditional
activities in a given community.

They have introduced an active role

for the district registrar of titles.
key role in helping people form the He plays a
associations (sec l6), he presides
proceedings of the meeting who over the
ensures that among the people
the meeting' 6oYo agree to the formation that come for
of the association. The land act
a provision for the writing of a constitution makes
for the association under section
bv leaders appointed under 16(41.
llrlil:;ritten Not more than 9 leaders are

The land act makes processes of

formation of theses association
east there was a process of implementing hi-tech. In the
a project to regulate access to
pasture for the nomads and land
to agriculturalists
reasons why
of the requirement"";;;';ffi
these efforts failed, it was because
Language too was a problem because for constitutions.
the concept of a constitution in
language was a cha,enge. The law a local
requires that if it is approved, the
communal land association is deemed
to be incorporated on terms stipulated
in the constitution and the terms bind.
Incorporaiior,
and the e people become the committee "o_.s after the
;:H::1,::: that manages the

The Land Act under 19 recognises

the managing committee of the rand
association as an authoritative body
to transact Jn nenalf of the association.
They can make decisions on behalf
of the association. The title of
issued is in the names of the committee the land
that holds on behalf of the association
The district registrar continues
to play a role when it comes to settlement
disputes under section 20, can mediate, of
cause meetings to resolve disputes,
 are ca*ed upon
and the members
to the constitution,
recommend amendments
to obey to his '""**"ndations/resolutions
association'
Jj;;t." annricltion to the
Section22providesfortherightsofindividual3toownlandundera of
ot ownerstrip or acquire certificates
communar "y"t"ri to th"*
,., inf il t
",,f"rr.i into of .n.="""o"iation.
Transfer is
Families ".r,
cu stomary occupanc}
b:f"T jl; ;;;i;* i'y"'
but the has to agree that
he
permissior
li *;
allowed a" torrg ^s
to tt't of the association'
shall abide "fes
is made
think'i n"''"
ii"' not them:;;;;;
oncetheassociationisformed,itcanbedis-certi{icatedordissolvedwhen '"'llt-ot"n
to dissolve'
parties ai""e""'o' 'i of tr'e meeli"g irt* decided
attaching tt *it"'tes of the association' The
to the registrar 1 membeis
uy tt majority
the idea *.r"t u"-".,rpported "
association'
aisJorution of the
approvalofdissolutio,,"o*".*,,"*theregistrar.Theobligationsoft]re
;r;il;
associatio" J;;jissorved llnion to justify the
a Buglsu CooP'latiue
MAILO - Lawrence Kttts
the Brrganda customary land tenure
historica]perspectivetakenui""""'."todecidecurrentcases
in
have any roots to tell the size of
The tenure doesn't 11^*l-** "*rr.' T1;;;'="a
holding system.
It got n*

in sre ad cr ate
e d an o th r o *f
"
e
't "" 1 "Y
t'
: : :?t: ""tHi*t :il;:
land'They'^tt"at"i"t'oa'i"'J'"t*'"gux-tofreeholdsystem'They
:lm:l*
;. sqm for srrip, 8000

ry:t "
*rg?illil"tr;t
land to the
{ljtr::? "*-a
church
notables ;;;tt land systems; butaka
the traditional now
destroyed been butaka was
This tenure system 1 :,11to-land' So what *""'a have chiefs had
rights *t t*"t't' system' They
land and irrJiuiar"r had to
capaci-tv;;;-;"=troyin-g fr"r"t"'"trt1;'
held in O"r-*rru,
the t igt "r.=tlJr=
got tt ^uttt"u
hierarchies and
make".*,""forwhich,*u."t,teandwhichonetheyrejectedcontror over created issues' Imagine
have
of land that chiefs did not I*""r"' The result then
would
Acquisition in^, urr."ay'iu"
a scenario a chief "noo"""i-]rru
be that surfs
emerge

officialestateswereissuedinadditiontoprivateestates...
Environmental"",.,:l:1ff ;X'.X'r'"""*-1*i::lt'Ji*t?:J"Ttt"t:f;utedto
acqurr'eG.'1'l] were banyoro'
Missionaries too "."t.'tents of land
only 12 of recipients
o^*^"ui'J'u-o*'
It has been a basis of quite a number of legislative actions
Monarchisation of the land-question in Uganda makes it difficult to draw a
distinction between mailo land and the monarchy. Efforts to legislate this type
of land becomes a political or a cultural question

The previous system was to the effect that landlords owned the peasants. With
the new system, peasants had to justify their stay on the land. This though was
good because they could now afford to work and buy their own interest.
Whether they could afford that or not is a different matter altogether.

Technical landlessness; no propriety rights

system of dispute resolution - laws were passed because the previous

customaqr law no longer applied. The Native Land Ordinance of 19Og was to
the effect that land was transferable and was transferable at will but it could
not be transferred to a non African in perpetuity or lease. This consigned land;
arable land to the powerful class in Buganda. This led to exploitation of
peasants through the requirement of land rates. It was therefore important
to
find a way of handling the resulting the relationship between the peasant and
the landlords.

Disempowerment of bataka meant that peasants were paying directly to the

landlords thereby bypassing them led to the bataka uprising.
The envunjjo & busullu law of 1928 was passed to stop the exploitation of
landlords of the peasants. A nominal fee of 10 shillings and harvest given in
kind to the land owner as appreciation. Not meant to be official - the spirit of
this law is what motivated the inclusion of rent in the land act 199g, land
amendment act 2010. As long as there was continued use of land even in
default, no eviction would ensue. Abandonment of 6 months or more gave the
landlord enough justification to give it away. This was not new though because
the theories of land law before the notions of titles, the notion was if one fused
labour with land, you become the owner. It does maintain the two without
them fighting. This though does not help streamline the rights of both on the
land but rather creates a confused web of various rights claimed by various
people thereby compounding the problem

L975 Land Reform Decree converted all mailo land into leases-preferred
contractua-l ownership of land to perpetual especially for those that did not fit
the requirements' ULC put development conditions that were to be met before
one was granted the lease. It intended to protect periodic property rights in
 to the development of the
favour of those that would, make a contribution
country.
generally similar terms as those of
The allotment went to Toro & Ankore on
passed to regulate the
Buganda. The Ankore & Toro land lord laws were
landlord-tenant relationshiP'
of land holding
lglsdecree was the final blow to the mailo land system
The individuals that would
because it automatically replaced it with leasehold'
traditional rulers (restitution
not meet the standards were at crossroads. 1993 in
passed to enable restoration for properties' The law
of assets) act was
operationthenwasthedecreemakinglandissuesapriorityofdiscussionfor
the constitutional commission'

Issues
This means that the owners
Art 237(3) revives all tenures including mailo.
whose land had been converted by the
lgTS land reform decree regained their
land in perpetuity. Relationship between the
land owner and the tenant plus
security of the tenant was dealt with unde
r 237{Sl which guarantees security of
all land including mailo'
tenure for the lawful and bonafide owners on
Parliamentwasgrantedpowerunder23T(g|tomakelawtogovernthe
interests on land to one owner
relationship. ThJ ability to fuse the two parallel
able to buy out the tenant
but with clear regulations e.g. the landlord being
report' This fusion would
continuously comes up in the odoki commission
on land' The 1998 Land Act is a
allow a tenant to acquire a registered interest
expectations of Ugandans is
product of 237{91-whether parliament fulfilled the
of a registrable intdrest in
another matter altogether. Whether the acquisition
Registration may protect
land is sufficient to guarantee security of tenure'
because not ever5rthing legal is
people who might not be the rightful owners
ownership may have better security
fair. Regulation of land in a locai system of
than the centrally registered tenures

The protection is for specific people, the

land act in sec29 defines who a lawful
occupant is and among the people that
qualify are those who claim land by
ankole & toro laws; any
virtue of the historical laws like envunjjo & busullu'
of the owner or who purchased
person who entered upon lad with the consent
customar5r interest' E'g' if one
land under this category and undisclosed
owner is protected' It attempts to
acquired a Iease on customary land, the
land deprived by subsequent
restore and to people who historically owned
claim land under the 1900 agreement
legislation. Th; descendants in title who
deprived by the lg281aws are entitled'
It comes as an adverse claim against a
greater claim of ownership. There is a possibility of separate ownership a
separate use of the land between the tenant and owner. So distinction can be
drawn of the land and the developments thereupon sec3(4)b. The section does
not provide clear exceptions e.g. if one entered upon land with permission of
the owner to keep security of the land that one does not use, then it would be
absurd for such to claim protection under the section.
29(2l.p-royl!l.."Jor bonafide occupancy and among the requirements is
occupiltion at dmlGetioi df tEe!-fand by the tenant without any challenge
from the registered owner or agent for a minimum of LLys;gI-before the 1995
constitution. Those settled on the land by government or a local government/
authorities before 1995, the 12 year rule does not apply to this category; all are
bonafide. The section should have been contextualised for special
circumstances like conflict where one leaves his land and another occupies it.
29(3), the government has to compensate the land owner on which it chooses
to settle the above mentioned peoples. Bonafide occupants can get a registered
interest. A purchaser from any of the 2 above acquires the same interest 29(S)
if one purchases from a bonalide occupant, you become a bonafide occupant.
29(4l', if one gets permission from a registered owner, one cannot claim to be a
bonafide occupant. Why is a landowner not allowed to buy out a bonafide
occupant. Kampala Dlstrlct Land Board & Chemico.l Distrlbutors v
ffIfCC-proof of bonalide occupancy-utilisation, occupancy, 12 years, absence
of challenge; this entitles them to protection. If one qualifies to be a bonafied
occupant, they are entitled to application of certificate of occupancy under 31.
The owner can lease but it would contravene the law if the first option is not
given to the first occupier. fraud vitiates the process.

KDLB & George Mlto.la u Venanslo Bamgegaka & Others-land owned

by petitioner, occupied by a tenant since lg7\, sold to the respondents in
1998. A timber business was being run on the land when in 1999 an assertion
was made that they were purchasers of the land from KDLB. If one purchases
from a person who qualifies as a lawful owner, then awful ownership is
transferred. The first court held against them, coA ruled that they were
customary owners. SC conlirmed that they were bonafide occupants according
to 29(21and emphasised that if one occupies land for 12 years without
challenge, that land must be written in the names of someone else and
introduces the notion of successors in title of someone who would qualify as a
bonafide occupant. Relied on KDLB V NHCC.
Read Baleke Kayira.& 4 thers v AG & others, were customary owners who
sued in.representative capacity o^f 115 peopl6 from +
"itt"g.='f#'forcefut
removal and non-compensation for property and plants dEstroyfi uy uirnn

\;i-
 \roL*t*^ . , -.^r^-+^ ,rrLio r.qrrier! out on the
a'll carried
soldiers on the u%iit"r the respondents.
Tlis rrrae
wa.s all <

p"id and that the land

oromise that adeffia[;"*oi|;'.ii6i"*..ita-il No 6 months notice
^owner had securJJiii.i"ill'G r""Jfoii."Jtitetfieni.
'G;";;;Ere; whether plaintiffs were
was siven r.q,il;Ji,, tft pw tt Lii was. Lawful'
occu-pants^"of tnJ^s;;t id;d- Ii-d;,;i,:i[;; toof. over "c&pation
vacairt possession of the
wherher or not ifri,t"""iia',iif..iaiiii
-p
d;iiff ;;;r;'1"*iliit evic te d o,
suit ran d, wh e trrt I .ffii*tr,
" d,Lrt"a"n[s wer6 vicariou slv "ff#rl"
I r8l
the defendan ts,';i;id;;-o-i r,,it .tiii" to the parties'
the eviction of ,#ir"r'"ii"1iir"'.ira *t ai remedies

LandActCap22TArtic|e2,recognisesthellryfu-lownershipof
tiiliid't'"a itt 0eanda shall vest in
customary tenanis;iibh i'tates with the land
citizens or ugandJ#;;h;il b;-"'d;d'i;
accoraafrce
land
tenure system *fiJii'ili.i?i" i"ctuaes
customary

C.qULD NOT PASS

UIA HAD FLAWED TITLE ANP.THEREFORqsfi#iir?r.L.rtora 1itt" is encumbered with
ADEeUTB who were unlawfully
the statuto.y ,rglt iJ"'iitt" 1i""."i"'-i"';"-t"p;11on
'rId-ro'ra"*;;; would be subject to
d;man in"estors
evicted ,any teas'dir'oid iiii..iq-ih;
;h;; ;;"'*brances and rights
u*'hn'.d,
,n.
^;;dtrig trr"i_sou.rnment was at the
Discussionshiftedtowhe.therornottheywereevictedonbehssL
sovernment; the judege disagreed art26' sec 76'
iorefront of enacting law tfrat prJtect'ed t|nants-including
77 of the iand act

11,%'fl'#;l:"Jie'f i-"?:s'#,1.,1ii:i&l,i*?:it+t3!iu{:lliliJxi'
ifft;.;;; i.s;i #EJiil."t trrat aia not secure vacant possesslon

the title of Block 168 from Mityana District

I therefore obtained copies of the landlord had never
Registry. . fvfy ,."6iuaiions we-rg thqt in 2001
"L'"fit*.a
acquired ilr" suji"ta'nd^Eiirrer rvrailo or
leasehold

damages awarded
Special, general, disturbance and exemplary

InKampalaDistrictLandBoard&GeorgeMitalaVVenancioBabweyaka&
3Ors.CivilAppealNo.2of2ooT(unreported)theSupremeCourtheldthata
personwhohasbeeninoccupationorpossessionofthesuitlandformore
than twelve years at the time of coming into force of the 199s Constitution
without any challenge from the registered proprietor was entitled to enjoy
its
occupancy in accordance with Article 237(81 of the Constitution and section
31
of the Land Act, if the suit land was registered land. Similarly, in Kampala
District Land Board and Chemlcal Distributors V National Houslng and
construction corporation civil Appeal No. 2 of 2oO4, (unreported) where
the respondent had occupied the suit land since lgTO and had used it
as a
playground for children residing in its adjoining estate, among other
uses, and
having fenced the land and constructed a toilet on it, the Resptndent,s
claim to
bona fide occupancy against the 2nd Appellant who had been granted
a lease on
the same-land was upheld by the court of appeal. In his teaa
3uagment in the
Kampala District Land Board & George Mitala V Venancto iabweyaka g
&
ors, supra, B J Odoki cJ, referred with approval to what was held in Kampala
District Land Board and Chemical Distributors V Natlonal Housing and
Construction Corporation, supra that:-
"A bona fi.de orcupant was giuen security of tenure and. his interest could.
not be alienated except as prouid"ed by the law. For instance the bona
fid.e
ocanpant could applA for a certificate of occupancg under section 33(1)
of
the Land Act. A bona fi.de occupa.nt could. appla
fo7 a lease und.er section
38 of the Land AcL While the land. occupied by a bona
fide occapant could.
be leased to someb'odg else, I think the first option would" haue
,to be giuen
to the bona fide occapan.t. As this was not d"one in this case, th.e suit land.
was not auailable for leasing to the 2"a Appellant.',
The right to bona fide occupancy must be actual or real based on
an
unchallenged right of bona fide occupancy or a right that originates from
a
bona fide occupant. Bona fide occupancy is an interest created by
the 1995
Constitution and the Land Act, cap 227 which came into force on 2.d July
2008
francis Kgepaka a George Ruto,kq.rongo & others, the plaintiffs
instituted this suit against the Defendants for eviction, a permanent
injunction, general damages for trespass since 2006, punitive damages,
interest of 49o/o on generdl and punitive damages from t-he date of cause
of
action till payment in full, costs of the suit, and any other relief.'The plaintiffs
contend that at all material times they were the regislered prfiprietors
and
beneficiaries of the estate of the late Samwiri Kakono and Kabukuru paul
including the land comprised in LRv 3416 Folio 5, Ranch No. 24- A,
Nyabushozi, Mbarara. The Plaintiffs claim that in 1980 the plaintiffs,
predecessors allowed the l"t Defendant who is a relative of the
2rd plaintiff to
graze his cows on the suit land so that they could multiply and he
6btains a

.1
 for himself and his ch*dren. The l"t Defendant was not authorized to
riverihood other
the land with permanent structures or obtain registrable interest
develop
claim that in 2006 0r thereabouts the
l"t
than that offered. The Plaintiffs also and 3rd
Defendant without any iota of
right hired out the suit land to the 2nd
between him and the Plaintiffs' He
is
Defendants contrary to the undertaking
arso a*eged to have fenced off
a chunk of the suit land thereby maliciously
areas
livestock access to the then grazing
attempting to exclude the Plaintiffs'
andpurportingtobethelawfulownerofthesaidpieceofland.
ThePlaintifflscasetherefore,forthereasonsgivel,isdismissedwithcosts.The
WSD and Counterclaim are
1"t Defendant'spraliers in the counterclaim to the
accordinglY granted as follows:-

a)Thel"tDefendantisalawful/bonafideoccupantofthesuitland.
of ifre suit land or acquired his
b) The Defendant is lawfully in possession
interestfrompersonswkroposSessedthelandformorethan12years
beforethelgg5Constitutionandisprotectedbythelaw.2g(2|a&b
appliesthe12yearruleandgovernmentresettlement.3l(1)providefor
of rights uy regltered owner peacefully with a bona-fide
enjoyment
registered the suit
c) ffi"JirT:tiffs wrongfully, unrawfullv and fraudulentry
land' vol' 3416
-,- -A
d) The certificate of title to Ranch
24A^ now comprised in LRv
Folio5inthenamesofFrancisKyepakaandNorahKakono(as
administratorsoftheestatesofSamwiriKakoroandCharlesKakono
respectively)becancelled,andafreshtitlewiththenamesofFrancis
Kyepaka,NorahKakono(asadministratoroftheestateofthelate
CharlesKakono)andGeorgeRwakarongoastenantsincommoninequal
shares be issued'
e)ApermanentinjunctionisgrantedagainstthePlaintiffsrestraining,
preventingandprohibitingthemrromalienating,interferingand
land'
trespassiig upon the lst Defendant's
0Thel"tDefendantisawardedgeneraldamagesofU.Shs.20,000,000/=
for tresPass on the suit land'
g)Intereston(0attherateof2oohperannumfromthedateofjudgmenttill
PaYment in full'
to the l"t Defendant
The costs of this suit are awarded

Sec31-38ofthelandacttracingtheiramendmentsin2ao4and2010
Eram Mujjuzi Kagwa v city council of Kampala-29(l)b-consent was for
management and not to claim ownership. There has to be some intention to
give the respondent tenancy for one to claim under the provision.

29(5), bonafide occupants give bonafide occupancy-Francis Kyepaka

Security of Occupancy of lawful & bonafide occupants

Guaranteed under sec3, a tenant by occupancy can get a certilicate of

occupancy under 33 and a land owner is involved in giving this authorisation
via 33(1).
The law makes the tenant a tenant of the land owner 31(2) but their
relationship has to be controlled within the provisions of the Land Act. Sec31(9)
is to the effect that the security of a bonalide occupant shall not be prejudiced
by lack of a certificate. This provision and the requirement under 31(1) makes
application of the certificate nugatory. Transaction in the land will of course be
limited by lack of certificate. The reasoning behind this is to secure the
interests of hitherto disadvantaged groups

Rent

Sec3l(3) as replaced under the 2004 amendment provides that the tenant by
occupancy shall pay the owner nominal ground rent annually. It has to be
determined by the board and approved by the minister. Sec31(3)c inserted by
the same amendment is to the effect that ground rent is non commercial and
has to be reasonable depending on the circumstances. If the board does not set
the fees, tJ:e minister can. Statutory instrument no55 of 2O11-within the city
50000, rural 5000, municipalities 40000, town councils and boards 10000

Some other districts like kabarole, amuru have come up with their own rates
which have not been largely embraced. one can only be evicted for non
payment of rent.

31(6) as amended if the tenant failed to pay for 2 years, a notice is given before
the lapse of 6 months before eviction. The amendment makes it one year.

31(7) applications are made to the tribunal, 2010 amendments give these
powers to Chief magistrates court (inserted 32@lal because of the defunct
tribunal system

f
 to push the dominant
There is a level of unfairness in trre ,entffilntends
at the end of the day may end up
argument of the protection of tenants and
between the two'
*poitirrg than improving the relationship

32Aunderthe20loamendmentthatevictionisforfailuleforpaymentofrent
grants a maximum of
of court' 32A(3)
and can only be effected upon the order
6 months to vacate
Evictions can be politicised
Touches social, economic and political nerves'
Kaylira Peter& others v AG & Others'
through the unpopular investors. Ba-leke
interests' uia hired Nangwala
Lawful & bonafide occupancy, politics, economic
of the identified villages' The
to workout.compensation and resettlement
been handled properly' The
process at the launch of the project had not
the commald o,f RDC' Judgment
evictions were done by men in uniform u(rder
the case itself' we missed a huge
is given to parties that were not party to
protection of occupancy drowned in
,

opportunity for a pronouncement on the

ego battles and Politics'

The provisions are so procedural but

it is difficult to ascertain how the ordinary
Ugandanscanadheretotheminutedetailsliketheproceduralrequirementsof
educate the people
to sensitise and
time frames. Effort then would be required
about these requirements

The Merger of overlapping interests

for options for either to purchase
The first attempt is through the provisions
to assign his tenancy' the land lord
the land in section 35. If the tenant wants
getsthefirstoffer.Thesamegoesforthelandlord.Thelawexcludes
to be willing seller; willing buyer'
possibilities of coercion; at all times, it has
seclA that makes it an offence for the
The 2010 amends section 35 and inserts
to the landlord' There is however
tenant to sell without giving the first option
for the landlord to sell without
no similar provision that makes it an offence
givingthetenantsthefirstoption.Thezo|oamendmentintroducessubsec8
the sale does not
the landl0rd sells'
to sec 35 which is to the effect that when
purchaser takes over the encumbrances
displace the tenants'rights. The new
including the tenants
a good relationship between the
The willing seller/willing buyer presupposes
to give up the land' It is rafTto find a
twoand that either of the two is willing
tenantwillingtosellinabscenceofathreattohistenure.
Mutual agreement between landlord and tenant to share the land provided for
under 36y and arises where the two agree to divide that iand among or between
themselves and when this is done, an instruction is made to the registrar to
make adjustments to the register. It is also allowed under the same section for
the two to become joint tenants or tenants in common. Joint tenants own
ascertained or known percentages of land. They all have an equal voice in
making decision on the land and this voice may depend on the percentage
owned. The bigger the percentage the bigger the leverage. Ownership in
common is ascertainable but not yet ascertained. Consensus governs usership
rights and all common tenants have the same voice.
Where the tenancy is terminated and termination is provided for in sec37 and
sometimes arises when the law assumes that the tenant abandoned the
tenancy voluntarily. This allows the tenant to remove the developments when
they abandon the tenancy voluntarily. Under 37(21a, a tenant has to inform the
landlord that he is voluntarily abandoning. This should occur in absence of
coercion. Abandonment by implication occurs when the tenant leaves the land
unattended for 3 years. It is clear in 37(2)b that total abandonment occurs
without leaving an agent. Abandonment may be engineered through
incarceration. Proof may be given under 37(3) to prove that the abandonment
was unintentional but for incapacity or inability. It is illusory for one to think
that the concept of willing seller/willing buyer works smoothly because these
1$egotiations take place between unequal parties
So much work needs to be done to realise the provisions of the land act.
Mapping the land, identifying the land lords and tenants in order to assist in
resolving the issues

The possibility for the tenant to acquire registrable interests in accordance with
sec38. A tenant can get a freehold, a sub lease, leasehold. from the land lord
through application. They are free to come up with the terms and conditions of
such grant. The land lord is required to receive the application and consider it
within6 months (3 months to receive, 3 to decide).
The Land Fund-the land act makes provision for the land fund sec41 to
facilitate merger of interests by availing moneys to those who want to acquire
exclusive interest on their land. Options to which the fund can be utilised in
sub4 including advancing loans to tenants, government acquiring the land
using the money and then helping the tenants get registarble interest, '
resettling the evicted tenants e.t.c. last used to settle the Kibaale land question

Read the land policy on mailo land, 43,45-48,

 of land holding
The future of mailo land system

Itisimportanttocreateanequitablesystemthatallowsalternativesfor
the title
tenants where the tandlord takes
 THE MEANING OF LAND

Land is central to every human being's existence because human beings

live on
land and when they die, most of them are buried on land.

Land law is the study of the relationship between the land and the
owner or
users of that land. It is therefore very much about rights and duties as
they
may vest in or affect different people. The rights may relate to actual
owners,
legal users or all of the land as a result of these competing rights,
there will
be
a number of competing interests over the same piece of land. The definition
of
land is summed up in a Latin phrase, ucqjus est solum ejas est usque
ad,
coelum et ad. inferos" which means that the land owner owns the
airspace
above and everything below it. Land therefore does not refer
merely to the soil
on which we walk, it is a multi dimensional concept covering the soil
that we
see, covering the space above the soil as well as covering beneath
the soil that
we see.

Land is therefore complex. There are several statutory definitions of land

in
Uganda including;

The Registratlon of Titles Act that defines land to include messuages,

tenements and hereditaments, corporeal and incorporeal and in every
certificate of title, transfer and leases issued or made under the RTA. It
also
includes easements and upper tenancies appertaining to the land described
therein reputing to be part of the land.

The Mining Act 2Oo3 (Section 2f delines land as land beneath any
water, the
sea bed and subsoil of such land

The Interpretation Act defines land to include messuages, tenements,

heriditaments, houses and buildings of any tenure and land covered by water.

The Petroleum Production and Exploration Act defines land to include land
beneath the water and subsoil thereof.
 more than the ground and
From these definitions, land is clearly much
with the ground' There are two
therefore it is complex set of rights associated
and incorporeal heriditaments' A
broad categories of such rights i.e. corporeal
Corporeal heriditaments are
hereditament is a right that can be inherited'
as those that may be seen felt or
those things that affect the senses such
of land and contain mainly of the
handled and they are physical features
They are real and tangible in terms
surface and things attached to the surface'
ofqualityandtheyincludethingsunderthesurfacesuchasminerals.

Incorporeal hereditaments are rights in

land that are intangible' they may not

bephysicallyseenortouchedbuttheireffectcanbefeltbytheowner.

Messuagesarephysicalstructuresonlandsuchashousing
by tenants
Tenements are things which may be held

Uppertenanciesrefertoprofitsthatattachtolandthroughtheactofperson
and they may be acquired by grant
or restriction'

Easementsarerightswhereonepersonenjoysarightofwayoveranother
person's land.

also carries with it what is below the

The ownership of the surface of land
surfaceofthelandandthecontroloftheairspace.Historically,itwassaidthat
owned land owned everything above it
up to the heavens and
whoever
everything to the depths of the earth'

Rights Below the Surface

The owner of the land is entitled to

deposits below that land however in Uganda

thisrightisqualifiedbynationalinterest.Atcommonlawanyun-mined
minerals belong to the crown'
provides that subject to 26' the
In Uganda, Article 244 ofthe constitution
entire property in and the control of
all minerals and petroleum in or under

,r
nl
any land or waters in Uganda is vested in the government of the Republic of
Uganda (244. Minerals

(1) Subject to clause (2) of this article, Parliament shall make laws regulating-
(a) the exploitation of minerals; (b) the sharing of royalties arising from mineral
exploitation; (c) the conditions for payment of indemnities arising out of
exploitation of minerals; and (d) the conditions regarding the restoration of
derelict lands.

(2) Minerals and mineral ores shall be exploited taking into account the
interests of the individual land owners, local governments and the Government.

(3) For the purpose of this article, "mineral" does not include clay, "murram,
sand or any stone commonly used for building or similar purposes.

Clause 3, minerals, mineral ores and petroleum shall be updated by taking into
account the interests of individual land owners, local government and the
government.

Clause 5, minerals do not include clay, murram, sand or any stone commonly
used for building or similar purposes).

Sec43 Land Act provides that a person who owns or occupies land shall
it in accordance with the Forests Act, the Mining Act,
manage or utilise
NEMA Act, The Water Act, IIWA Act and any other law. For example, the
Water Act in Sections 7 & 8 dictates that when one owns land where water
bodies occur, one cannot extract the water for commercial purposes. The
Forests Act was repealed by the National Forestry and Tree Planting Act.

The physical planning Act of 2OLO also has a definition of land where it is
said to include any buildings or other things attached to land and any interest,
right or easement into or over the land. (Section 2 "land" includes any land
covered with water, and any buildings or other things permanently attached to
land, and any interest or right of easement in, to or over land; )
 land ownership and its use isn,t
From these provisions, it is clear that
absolute. while ownership may vest
in private where resources of natural and
government or legislation will affect use or
national importance is controlled by
utilization.

Spaces below the surface whether

natural or manmade is therefore land and is
or intruders ' ln Metro Rallutag
capable of protection against trespassers
CompangaFowlerTsg2TQBT65,itwasheldthatownershipofa
tunnelwastoberegardedasownershipofaninterestinlandandwasto
attractpropertyrates.TherailwaycompanywasbytheirspecialActauthorized
and to enter upon, take and use such
to construct an underground railway
plans as might be required for that
lands delineated upon certain deposited
purpose.TheActprovidedthatwithrespecttoanyofthoselandswhichwere
street should not be required wholly
in or under the roadway or footway of any
surface thereof but they might
to take those lands or any part of the
or
the undersurface of any such roadway
appropriate and use the subsoil and
footway.Inpursuanceofthepowersthusconferredonthem,thecompany
street' In
the footway and the roadway of a public
constructed a tunnel under
doingso,theyremovedthesubsoilandbuiltanarchinthebrickworkwith
built in the soil'
thick, the foundation being permanently
walls four or five feet
was
The rails of the railway were laid at
the bottom of the arch' After the tunnel

constructed,thecompanyhadthesoleuseandoccupationofitforthe
purposesofherrailway.Theplaintiffshadneverpaidanyrentorpurchase
The
in respect of the occupation by their line of the space thus created'
money
the year ending
by the defendants to the land tax for
plaintiffs were assessed
The plaintiffs having refused to pay'
the
1883 in the respect to the tunnel.
commissioners distrained on the
plaintiffs goods and the plaintiffs thereupon
brought this action

Thequestionstatedbythespecialcasefortheopinionofcourtwaswhether
were liable to be assessed towards the payment of land tax in
the plaintiffs
respect of the tunnel under the street. The divisional court held that the
plaintiffs were liable hence this appeal.

Held,

That the right or interest of the cornpany in the tunnel was a hereditament

Lord Esher and Kay with Lopes dissenting held that the company was
chargeable with land tax in respect of the tunnel.

In Grisgsbg u Melallle l9z\wLR go, it was held that an owner of a

house also owned the cellar underneath that house and although he could not
access it from his own land, he was entitled to an injunction barring his
neighbor accessing it without his permission.

The facts of the case were that a property in single ownership had been divided
into two semi-detached properties and each of these was sold to a separate
buyer (P and D respectively). The entrance to the cellar under p's propert5r was
on D's land. The conveyance to P excepted and reserved 'such rights and
easements or quasi-rights and easements as may be enjoyed with the adjoining
property'.

P learned that D was using it and sought an injunction to restrain what he

alleged to be a trespass. D argued: (i) that the cellar had been conveyed to her
not P; or (ii) that she enjoyed an easement allowing her to use the cellar.

The Court of Appeal held that P's ownership of his land included the cellar
underneath it. Stamp LJ said: 'lt is, however, axiomatic that a conveyance of
land carries with it alt that is beneath the surface. It was ultimately a matter of
the construction of the conveyance but nothing in the conveyartce pointed to
any other conclusion than that p's ownership included the cellar.
 case that would point to
The Court of Appeal saw nothing on the facts of the
D,s enjoyment of an implied easement to use the
cellar' The easement issue
wasexploredingreaterdetailinthefirstinstancejudgment.

wanterleg Borough council u Fletcher 7995 4 ALLDR

756' the
park owned by the claimant council'
defendant was using a metal detector in a
Thedefendantfoundabroochandreportedthistotheauthorities.TheCoroner
decided that it was not a treasure trove. The
issue was then who could claim

the brooch - the claimant or the defendant' The

court of Appeal held that the
better right to the brooch. As it had been found within
or
council had the
it belonged to the person who
attached to the land, rather than on the surface,
owned the soil

Rights Above The Surface

above and is entitled to assert

The owner of the surface is entitled to the space
minor trespass that is quite
his rights. As such, injunctions are available for
a balcony over a neighbour's
incapable of damaging the property e.g. building
space. The space is not unlimited because
what can be claimed depends on
has a storeyed building will
what one is using with his space e.g. a person who
the case o.,f Kelsen u rmperial
claim much than one with a single storey. tn
granted an injunction to
Tobacco 7957 2 QB 3g4, the owner of land was
had entered his space by
restrain a neiglrbour who had erected a sign that
some 4 inches. The facts of the case were
that; by an assignment in April 1946'
the tobacconist's business carried
the plaintiff acquired the lease of a shop and
a ground flo-or room with a flat
on there. The premises were on a street with
rooftop.onthetwofrontsidestheshopwasboundedbystreetsandonone
of three stories' During the lease'
side of the back was an adjoining building
three advertising signs on
the defendants, wholesale tobacconists, displayed
the wall with the adjoining building about
the shop' The signs made of sheet
I

metal mounted on a frame which fixed against the wall but, on account of the
mounting, protruded a distance of 4 inches into the air space above the flat
roof of the shop. In April 1948 the landlords gave to the owners of the adjoining
building consent to a large new sign in place of the existing signs. In December
1948, the landlords granted a new lease of the shop to the plaintiff. By clause 1

of the lease, which contained the parcels, the premises devised to the plaintiff
were expressed to be subject to hll that right so ds wants to any of the adjacent
property, and by clause 2 t}:e plaintiff covenanted not to permit any sign or
advertisement to be posted on or over any part of the exterior at the shop and
premises" In Januar5r 1950, no new sign having yet been affixed on the
adjoining building, its owners again obtained the permission of the landlord of
the plaintiffs shop for the defendants to substitute a new large advertising sign
for the existing the smaller ones. A new sign was erected by the defendants in
1950 with the plaintiffs knowledge. Its total length was about 20 feet, and the
maximum distance by which part of the sign projected from the wall and over
the building was 8 inches. From time to time the defendants' servants had
access to the sign, from the plaintiff's shop andwith his knowleclge, to carry
out maintenance work and repairs. In December 1953 as a result of a business
dispute between the plaintiff and the defendants, the plaintiffs asked the
defendants to remove the sign. After the dispute was settled, the plaintiff on
being asked by the descendants whether he still wanted the side removed,
replied that it could remain. Further animosity arose between the parties, and
the plaintiff gave notice to the defendant to remove the sign, and the
defendants having failed to do so now brought an action against them for
trespass.
Held: 1 the air space above the shop was part of the premises demised to the
plaintiff on a true construction of the lease of December 1948 there was
nothing to displace the prima facie conciusion that the demise of the premises
included the air space above the shop;
 I

to the substitution of the

2. when in January 1950, the landlords consented
of the airspace in December
new sign, they could not derogate from the demise
1948 to the Plaintiff;

remain on the wall of the

3. the plaintiffs conduct in allowing the sign to
estop him from subsequently
adjoining building from 1950 onwards did not
requiringittoberemoved,becauseabehard,aSmost,maryrepresentedto
sign in future and representation
the defendants but he would not object to the
and on the facts, the
of an intention did not give rise to an estoppel;
to their
descendants had not been induced by the plantiff's conduct to act
prejudice to such an extent as to oblige them to
continue to display the sign:

the sign amounted to a trespass

4. The invasion of the plaintiffs air-space by
to a nuisance' on the facts of the
on the part of the defendants and not merely
rights was small, he was
case' although the injury to the plaintiffs,legal
the defendants to remove that
entitled to a mandatory injunction requiring
slgn

owner claimed that there was

In B@ns tein u sky aieuts Limited, the land
trespass where an aero plane crossed his
land severally to take photographs on
was no actionable trespass because
a height of 700 feet. It was held that there
man to utilize space up to
in view of the scientific developments that enabled
space, it was necessary to balance the
rights of an individual with those
outer
of the Public.

The facts were that the plaintiff attempted

to sue for trespass when aerial
case established that a property
photographs were taken of his property. The
over the airspace above their land'
owner does not have unqualified rights
photograph of the plaintiff s
on 3 August lg74 the defendants took an aerial
the aerial photo' the defendants had
house. The plaintiff alleged that in taking
The defendants admitted taking the photo
trespassed in the plaintifls airspace.
over an adjoining property' The
but claimed that they had taken it whilst flying
I
a

defendants also argued that if they had flown over the ptaintiff s land, then
they had the plaintiff s implied permission.

Griffiths J stated: "I can find no support in authority for the view that a
landowner's rights in the air space above his property extend to an unlimited
height." The case established that the rights of a land owner oyer his land
extend only to a height necessary for the ordinary use and enjoyment of his
land.

Therefore any claims above the surface should be restricted to such a height as
is reasonably necessary for the ordinary use and enjoyment of the land and the
structures on it.

It is also possible to own land that is stratilied (layers) under The

Condominium Act 2OO1. It allows ownership to be segregated and stratified
although it is over the same piece of land. This is a system of separate
ownership of individual units in a multi unit building. Where those units are
designed for separate ownership and common areas are designed for collective
ownership by the owners of the separate units. The law of real property
includes the rights of. The latter deals with how to transfer the rights of land
the former. This covers ownership, veratin of subsidiary interests and
understanding priorities between competing interests. Every land owner will
want to know the extent of boundaries of his ownership, there is therefore a
formal process by which boundaries are created and a formal document by
which they are presented called a deed print. So every certilicate of title will
have a deed print attached and boundaries attached. Usually there will be no
issue about boundaries once the boundaries appear in deed print. However,
where the land borders a water body, there may be changes that occur in the
form of physical activities such as erosion that results in chunks of land being
removed from one location and deposited in another with the result that one
piece becomes smaller than another. The law has come up with t..vo d.octrines
 (

,
t

of boundaries surrounding water

to help resolve disputes arising from changes
bodies
additions of soil to water side
Accretlon which means any naturally occurringof the owner of that land' on
land means that that soil u."o*.. inl
property
the other hand, aiio"io* describes " .it r"tiori where there is reduction in the
boundaries of land occurring naturally
through movement of soil' These are
guided by what the courts have referrld
to changes occurring through slow'
gradual and imperceptible movements. south
ein centre of Theosophg
a perpetual lease granted by the
rnc u state oy soith Austrqlia, By
Crown to the plaintiffs predecessor
in titte i" ig 1 1 the Crown demised a parcel
on the shore of an inland tidal lake
of land containing 500 acres or thereabouts
,as the same is de-lineated in ttt" p"tfi" deposited in the Land Office in
-T."p".
public plan,.which had been prepared
the City of edefaiJe'. Onthe retevlnt
after a Survey in |979,the eastern boundary of the land was marked by a thick
wavyline.Referencetothesurveyor,sfieldnote:.""ddiagramsshowedthat
the lake'
that line with *t ui*"" then the high-water mark of of the
"o.r.*iorrJJ and lefiexposed to the east
Between 191 1 o:.rJ rgzS the lake receded
which had previgusly been covered by
demised fana a., area of about 2b acres
caused by the gradual deposit of sand
water. In the northern sector, that was
or soil by the *.t.r" of the lake, but
in the southern sector it was caused or
sand. The plaintiff claimed title to
mainly caused by the deposit or ri"a"*ept
the area covered by the accretion, ""
p..i of !h-e land comprised in its lease'was
The trialjrog.'i"rr'.
j"ag*""1 for the plaintiff, but an appeal by the crown
Court of Souikr Australia' which held'
aliowed by the FrU C""tt of the Supreme plaintiffs land was fixed by the line
inter alia, that the eastern uorrrJri of the
law doctrine of accretion was' in the
on the public maps and thlt- trt. "o**on
circumstances, not applicable. ihe
ptaintiff appealed to the Privy Council'
of being applied to an inland
Held - (1) The doctrini of """r"iio, *^" ""p.ti.
notwithstanding that both the land to
lake, and was capable of being afpried
which the accretion was claimedand
that covered by the waters of the lake
G. e p 2p7 b e, post);
dictuq of Alderson B
were atlodiat property of the c;;
& w at ggz-393 followed; Trafford u
in Re Hutt and setbg Rtg cotraggi S M
-ihro*",llg2gl45
TLR 502 doubted' the
(2) Where Iand bounded Uy *"iL.
was the subject matter of a conveyance'
landwas,i,,tt,"absenceor".,yintenti-onofthepartiestothecontrarSr,
Uenefit of such gradual and imperceptible
conveyed subject to and wltf, itte
and diluvion as mlght take place over
subtractions olna additions by erosion
the years. Because that rule was so
firmly founded in justice and convenience'
io exclude it was plainly shown' A
it would be excluded only ir an iniention water, or as delineated on a plan
by
description oi rurra as being bounded
whichshowedthelandasboundedbywater'or,aSinthecaseoftheplaintiffs
evidence to have been drawn with
land, on a plan which ^pp.ur.J fromihe to exclude the doctrine
referenceto the high-wate, t"utrt, was not sufficient
p 287 hto p 288 aandi;;;'pZAO bb dand
g' post); A-Gof Southern
(see
Nigeria u John Holt & Co (Liuerpootl Ltd [1914-15] All ER Rep 444 and
Gouernment of the State of Penang u Beng Hong Oonllg7ll3 All ER 1163
followed.
(3) Since accretion was a doctrine of the common law, it was capable of
adjustment by the use of analory, and as it might be impossible in practice to
ascertain to which cause (by air or by water) a given accretion was to be
attributed or to apportion it between contributory causes, it was applicable to
the northern sector of the plaintifl's boundary, where accretion was caused, or
mainly caused, by wind, as well as to the southern sector. Furthermore, on the
evidence before him, the judge had been entitled to infer that the movement of
sand in the northern sector had been gradual and imperceptible so as to satisfy
the requirements of the doctrine. The appeal would accordingly be allowed (see
p 29O ato h and p 292 hto p 293 a, post).
FIXTURES*'t'

Generally ownership of land carries with it the relationship attached to that

land. The class of corporeal things which are regarded as part of land is known
as fixtures. The overriding principle is that whatever is attached to the land
becomes part of that land and therefore the property of the owner of that land.
This principle is captured in the Latin maxim oqulc qutd plantatur solo
solo ced.ltD, whatever is planted on the soil becomes part of the soil. There is
also no legal obligation to compensate the person who attaches such a fixture
on the land in absence of prior understanding. A fixture is therefore something
that has become so attached to the land that it can no longer be removed from
that land without negatively affecting the land or changing the character of that
Iand altering the manner in which that land can be utilized. ?rq.ncis a
Imbitogo 7936 M,R I, the parties were negotiating for the sale of land and
before the negotiations concluded begun to construct structures
on the land. Unfortunately, the through and the would be buyer was
asked to vacate. He asked for compensation and in the alternative, the return
of the money. He could not recover for the improvements on the land. The
principle was used to decide that whatever he was doing on the land was at his
own risk. Articles or materials that are not fixtures can become fixtures when
their character is changed. For example if a heap of stones aye used to
construct a wall or house. Articles that are for a tenant e.g. clothes remain
chattels but where they are put i.e. a wardrobe may or may not be a chattel.
Jne that is inbuilt may not be taken away and one that is detached can. The
Land Act and the Constltution provide for a land tenure system mailo and
among its characteristics is separation of land form ownership of developments
on the land made by a lawful or bonafide occupant. This therefore suggests
that in Uganda fixtures established on mailo land may not be taken as part of
land because they remain owned by the lawful or bonafide occupant. Sec
3(4)(b), 237-Constitution. Mailo tenure is a form of tenure deriving its legality from the
Constitution and its incidents from the written law which permits the separation of ownership of
land from the ownership ,
 or bona fide occupant;
of developments on land made by a lawful
and

The law has come up with 2 broad tests

to determine whether it's a lixture or
and the second is the Purpose'
not. The first is the degree of annexation
o Hodgson 7872 LR 7 CP328'
These tesrcqme out of the case of Holland
The judge in his ruling said that
perhaps the true rule is that articles not
own weight are not to be considered as
otherwise attached to land but by their
intended that they become part
part of the land unless the circumstances were
of the land. The onus of showing that
they were so intended lies on those who
And to the coqtrary' an article
assert that they have ceased to be chattels'
as part of land unless
which is affixed to land even slightly is to be considered
thecircumstancesaresuchastoshowthatitwasintendedallalongto
the onus lying on those who contend that
it is a chattel'
continue as a chattel
He continued that there is no doubt
that the general maxim of the law is that
part of the land but it is difficult if not
what is annexed to the land becomes
impossible to say with precision what
constitutes an annexation sufficient for
on the circumstances of each
this purpo"L. tt is a question that must depend
case and mainly on 2 factors i.e.
the degree of annexation and the intention of

parties.Whenthearticleinquestionisnofurtherattachedtolandby
itssownweightitisgenerallytobeconslderedamerechattelbutevenin
such a case if the intention is apparent
to make the article part of the
land,theybecomepartoftheland'Ontheotherhand,anarticlemaybe
veryfirmlyaffixedtothelandandyetcircumstancesmaygotoshowthatit
was never intended to be part of the
land and as such does not become part of
which may not be part of the land but
the land. The example is of an anchor
serves the purpose of an annexation
to land, suspension bridges whose cables
floor lies on its own eight but when
are anchored in the land. A carpet on the
to fasten it on the ground' the
you decide to remove the cement and seek
that woulci be different from affixing
character of the room would not change;
tiles
Degree of annexation depends on whether the item is resting on the land by
its own weight or whether it has been fixed and so traditionally the view was
that if the object rested on the ground by its own weight, it was regarded as a
chattel. However it is also clear that the way the item is fixed is not conclusive
particularly when one considers the technological advances that have allowed
items to be easily removed even where they appear to be fixed. The utility l
enjoyed on the land never amounts to a fixture thus it cannot be of great harm
if the land is obtained without it.

Take for example partitioning office space using three different methods; with
brick walls, plywood and aluminum. Technolory in this way enables one to
create differences that will be construed as a fixture or a chattel depending on
the effect left behind by their removal. The removal of plywood will not leave the
same effect as the brick wall. Regnolds v Ashbg 7904 AC 466, Machines
had been affixed to the premises. The court was asked whether they were
caught by a fixec charge over the company's land and fixed assets.
Held: The machines were fixed by only and no damage would be caused to the
building by their removal. Nevertheless, the machines were part of the
mortgaged property. In .Efobson a Gorringe, Blackburn J \pas contemplating
and referring to circumstances which shqved the degree of annexation and the
object of such annexation which were patent for all to see, and not to the
circumstances of a chance agreement that might or might not exist between
the owner of a chattel and a hirer thereof.'

Leigh u Taglor, Valuable tapestries had been set up for display in a room in
a stately home. They were first stretched over canvas and then tacked to the
canvas. That canvas was then stretched over strips of wood and nailed to those
strips of wood which in turn were nailed to the walls of the drawing room. The
tapestries could be removed without doing any structural damage to the
building.
Held: Despite the degree of attachment to the walls of the house, having regard
to the nature of the items and the purpose of
their being placed as they were,
new rule reflected a change tn our
the tapestries did not become fixtures. The
habits and mode of life''
be equally clear' namely' that
Lord Halsbury LC: 'Another principle appears to
where it is something which, although it may be
attached in some form or
degree of attachment) to the
another (I wilt say a word in a moment about the
of the thing itself' and the
walls of the house, yet, having regard to the nature
to form part of the realty' but
purpose of its being placed there, is not intended
is only a mode of enjoyment of the thing while
the person is temporarily there'
then it is removable and
and is there for the purpose of his or her enjoyment,
goes to the executor'

acquired land on
Dlite storm u Mortl.s 7g7 7 WRL 687, The plaintiff
to quit so that the site could
which 27 chalets were erected. They served notice
bedeveloped.Thedefendantsarguedthattheyhadresidentialtenancieswith
protection under the Rent Act L977 '
Held:Thetenants'appealssucceeded'Abuiltstructurebecomespartofthe
of annexation and
land and itself real property, according to the degree
purpose. In this case the bungalows were not demountable'
Lordclyde:'Asthelawhasdevelopedithasbecomeeasytoneglecttheoriginal
of a chattel to realty
principle from which the consequences of attachment
derive. That is the principle of accession,
from which the more particular

examplehasbeenformulated,inaedificatumsolosolocedit.Acleardistinction
and the rules of
has to be drawn between the principte of accession
removabilitY.
the duties of a vendor
Berkleg tt Poulet 7946 DG 977' The court discussed
These duties and rights [of
to the property between exchange and completion:
sale and it is because of their existence
a purchaserl arise from the contract of
or a trustee sub modo' of
that the vendor is said to be a constructive trustee,
when the contract is constituted'
the estate for the purchaser from the time
trustee for the purchaser to care
But to say that it is the duty of the vendor as

lj
t_,
for the property is to put the cart before the horse and may lead you into error.
He is said to be a trustee because of the duties which he has, and the duties do
not arise because he is a trustee but because he has agreed to sell the land to
the purchaser and the purchaser on tendering the price is entitled to have the
contract specilically performed according to its terms. Nor does the relationship
in the meantime have all the incidents of the relationship of trustee and cestui
que trust. That this is so is sufficiently illustrated by the fact that prima facie
the vendor is until the date fixed for the completion entitled to receive and
retain the rents and profits and that as from that date the purchaser is bound
to pay interest. And you may search the Trustee Act 1925 without obtaining
much that is relevant to the relationship of vendor and purchaser. Thus,
although the vendor because of his duties to the purchaser is called a trustee,
it is wrong to argue that because he is so called he has all the duties of or
holds the land on a trust which has all the incidents associated with the
relationship of a trustee and his cestui que trust.'

Scarman LJ discussed what were the two tests for whether an item became
affixed to the land: '(1) the method and degree of annexation; and (2) the object
and purpose of the annexation. ' and 'ln other words, a degree of annexation
which in earlier time the law would have treated as conclusive may now prove
nothing. If the purpose of the annexation be for the better enjoyment of the
it may remain a chattel, not withstanding a high degree of physical
object itself,
annexation. Clearly, however, it remains significant to discover the extent of
physical disturbance of the building or the land involved in the removal of the
object. If an object cannot be removed without serious damage to, or
destruction of, some part of the realty, the case for its having become a fixture
is a strong one. The relationship of the two tests to each other requires
consideration. If there is no physical annexation there is no fixture. Quicquid
plantatur solo solo cedit. Nevertheless, an object, resting on the ground by its
own weight alone, can be a fixture, if it is so heavy that there is no need to tie it

lrt
 IL

\ r${r"
Nr
place to improve the Prima Facie'
into a foundation, and if it were put in '"'lW'
however,anobjectrestingonthegroundbyitsownweightaloneisnota
fixture:seeMegarryandWade,pTL6.Conversely,anobjectaffixedtorealty
without much difficulty may yet be a fixture' if'
but capable of being removed
the purpose of its affixing be that 'of creating a beautiful room as a
for example,
whole'(NevilleJinInReWhaleg[7gOS]7Ch675atp619'Andinthe
famous instance of Lord chesterfield's
settled Estates [7917] 7 Ch
been affixed to a suit of rooms 200
237 Grinling Gibbons carvings, which had
years earlier, were held to be fixtures.
Today so great are the technical skills of
or buildings that the second test is more
affrxing and removing objects to land
of the frrst
likely than the firstto be decisive. perhaps the enduring significance
some degree of physical annexation
test is a reminder that there must be
before a chattel can be treated as
part of the realty"

...Someindicatorscanbeidentified.Forexample,iftheitemisornamental
the item to be displayed and enjoyed as
and the attachment is simply to enable
an adornment that will often indicate
that this item is a chattel' obvious

examples are pictures. But this will

not be the result in every case; for example
and bathrooms. The abiiity to remove
ornamentar tiles on the walls of kitchens
an item or its attachment from the
building and the tests' in the case of an
item which has been attached to the
building in some way other than simply by
of the item and the purpose of the link
its own weight, seem to be the purpose
to
between the item and the building'
If the item viewed objectively' is' intended
improvement to the building' the thing
be permanent and to afford a lasting
a fixture. If the attachment is temporary and is no more than
will have become
isnecessaryfortheitemtobeusedandenjoyed,thenitwillremainachattel.
withoutdamagingthefabricofthebuildingisanotherindicator.Thesameitem
may in some areas be a chattel and
in others a fixture' For example a cooker
the building only by an electric flex' be a
will, if free standing and connected to
hob
But it may be otherwise if the cooker is a split level cooker with the
chattel
surface and the oven forming part of one of the cabinets in the
set into a work
kitchen. It must be remembered that
in many cases the item being considered
may be one that has been bought by the mortgagor on hire purchase, where
the ownership of the item remains in the supplier until the instalments have
been paid. Holding such items to be lixtures simply because they are housed
in
a fitted cupboard and linked to the building by an electric cable, and, in
cases
of washing machines by the necessary plumbing would cause difficulties
and
such findings should only be made where tJ:e intent to effect a permanent
improvement in the building is incontrovertible. The type of person who installs
or attaches the item to the land can be a further indicator. Thus items installed
by a builder, e.g. the wall tiles will probably be fixtures, whereas items installed
by e.g. a carpet contractor or curtain supplier or by the occupier of the building
himself or herself may well not be.
The judge's directions to himself on the law were these: that the primary
test
whether an item is or is not a fixture is the degree of annexation of the item
to
the building. He cited Megarry and wade on Real property at page 732:
'An article is prima facie a fixture if it has some substantial connection with the
land or a building on it'and A chattel attached to the land or a building on
it,
in some substantial manner, eg by nails or screws, were prima facie a fixture
even if it would not be difficult to remove it. Examples in this category
are a
fireplace, panelling, wainscot and a conservatory on a brick foundation.,

D'eghcourt a Gregorg, The court was required to determine if some

tapestries, some ornamental statues of lions in the hall, staircase and gardens,
some vases resting in nitches and stone garden seats were fixtures
or chattels.
Held:

The tapestries were fixtures as they were integral to the decoration of

the room
where they attached as wallpaper or frescos. The statue of lions, the garden
seats and vases were also fixtures as they formed part of the overall
architectural design.

Lord Romilly MR:

 is used for fixing these
,,Ithink it does not depend on whether any cement
weight, but upon this--whether they
articles, or whether they rest on their own
design for the hall and
are strictly and properly part of the architectural
as distinguished from mere
staircase itself and put in there as such,
ornaments to be afterwards added"'

Sometimes, there may be no annexation

at all but the item may rest in a

mannerthatappearstobepermanentbutthismaybeduetoitsheavyweight
e.g.acontainer.Therearealsoinstanceswhenstructuressuchaswooden
housesarecapableofbeingmovedfromplacetoplaceandwouldhavebeen
following in the example of a
placed on land on stilts. These remain chattels
the character of the land' The
kernel. The movement of these will not change
manner of annexation certainly matters;
if one used concrete' it would be a

fixture'CompareGregoryandTaylortogettogripswiththeclassdiscussion.
that the degree of annexation in
ln Barkeleg u Pouletlord scarman stated
may have been treated as conclusive
but may now prove nothing'
earlier times
lnotherwordsthedegreeofannexationmayinSomeinstancesbeless
of advances in technology' Nonetheless
it helps to ascribe
important because
is annexation however sliglrt' the
the burden of proof because where there
burdenisontheonewhosaysthattheitemremainsachattel'

Thedegreeofannexationwasforalongtimeconsideredhoweveritappears
now in the context of modern life that
that test is insufrrcient. whereas it aptry
in determining whether an item
ascribes the burden of proof, it is inconclusive
of annexation is now considered a
has become a fixture or not. The purpose
mainly by the fact that technolory has
more decisive test and this is informed
or
allowed humans to acquire skills
where Iixing or removal of objects to land

buildings does not necessarily mean

that they are permanently fixed' A trunk

forinternetforexamplemayappeartobepartofthewallbutitisaffixedand
removedwitheasewithoutchangingthestructureofthewall.ReWhaleg

T
7908 7 CH 6IS-the purpose of annexation

Th€:ease concer ed a Rurmber of tapestries that were hurrg in order to crea.te

the cornpoeite effect of ar.r Elizabethan dwelling hoLase; as.sucle:it was held that

afffied pure.ly for enJoyment? If so, then they were not flxtures,

Was the object affixed in order to enjoy it better or in order to enjoy the land
better. A window for example makes the enjoyment of the house better. If the
window was removed, would you enjoy the window? It then qualifies as a
fixture. If the windows were not there, one can still be able to enjoy the house.

The courts also consider the intention of the parties in the context of the two
tests. This test allows for exceptions to solo doctrine.

These exceptions include ornamental fixtures.'They are items which would

otherwise satisfy the test of being fixtures but because they are for ornamental
purposes, they are considered as items which can be removed. A simple light is
there to give light there is nothing ornamental about it. But if the light is a
chandelier given as a gift from a special person, then the ornamental value will
create an exception. Although they are affixed and their purpose to give light,
they are ornamental.

Trade fixturep-it has generally been understood that items which are affixed to
land for purposes of trade can be removed when the relationship ends but
these have to be proved to be critical for the trade. Fuel service stations for
example have many things that are used for the trade e.g. tanks, pumps,
underground facilities etc. if an underground tank is designed to be used with
a particular type of pump, then it can be taken but if it is to the contrary, then
it won't be treated as so.

I
objects that would otherwise be chattels
but are embedded in t].e design
become fixtures. The independence
statute is architectural in nature and is
the statue of muteesa nearby is not
designed to flow with the space whereas
partofthedesignbecauseitwasnotincontemplationatthetimeof
construction. The salne goes for the art
in parliament' The churches for
example have stained glass, arches
that have to be taken to have been part of

thearchitecturalplanthestatutesmayormaynothavebeenpartofthe
original Plan.

Vfitaaoille Electrlc Cinema Ltd V Muriget 1923 2 CH 74' Cinema

by screws were held to constitute
chairs attached to the floor of the cinema
fixturesdespitethefacttheycouldbeeasilyremovedwithouttoomuch
damage.Theyhadbeenaffixedinordertobecomeapermanentfeatureandto
as a cinema' Ownership of the chairs
enable the building to be better enjoyed
their mortgage
thus passed to the bank when the claimant defaulted on
vs L*,.}*^ u$*i)\CIr^d llc"'F
payments c^F;;ir "'.";-.,'U*"i(co

smith v citg Petroleum 79O4 Aller 7 26o,Action in detinue claiming

thed'eliveryofcertainpetrolpumpsthepropertyofthedefendants,thetenants
let property under a tenancy agreement to
of the plaintiff. The landlord, Smith,
atenant,Ridge,whoplaceduponthepremisespetrolpumpsandtanksofthe
type usually used by roadside filling-stations'
Ridge,stenancycametoanendinoctober:rg37,whenthedefendantsbecame
done about the pumps and tanks, which
the tenants, but nothing was said or
wereusedbythedefendantsforthepurposesoftheirbusiness.Itwas
and passed to the landlord' but it was
admitted that the tanks were fixtures
fixtures and were the property of
contended that the pumps were tenant's
of his interest in the prernises' he had
Ridge, and that, upon the determination
them within a reasonable time' It was
further contended
the right to remove
that,ashehadnotdoneso,thepumpsbecamethepropertyofthelandlord,
that the defendants had no interest
in them'
and
 Petrol pumps affixed to tanks embedded in the ground
are tenant,s lixtures,
and are removable within a reasonable time after the determination
of the
term. If not so removed, the property in the pumps passes to
the landlord, and
a subsequent tenant takes no interest in them.

simmons v Mtdford 7969 2 cH 415, A deed of transfer dated

14 october
1964 and made on the sale of land by C to the plaintiff's
predecessor in title,
included a right of way over a servient strip together with the ,,right
to lay and
maintain '.. pipes and cables over under and along the said
strip ... and the
rree and uninterrupted passage
and running of water soil gas and elect ricityT
there through and the right to enter upon and open up
the said land for the
purposes of laying maintaining and repairing the ,,The
said drains ...
purchaser built a dwelling-house on the land and laid
a drain from the house
under and along the servient strip to the public sewers. The
property was
subsequently acquired by the plaintiff, together with the
rights over the
servient land. In 1968 the successors in title of C to the
servient strip, and a
building society as mortgagee, granted and confirmed to the
defendant the
right to lay a drain under certain other land and "insofar as
[they] have power
so to grant and confirm", the right to connect that drain
to the drain in the
servient strip. The plaintiff issued a writ for an injunction to restrain
the
cefendant from connecting any pipes or drains to those in the
servient strip.
Held - The defendant should be restrained from connecting
any pipe or drain
to those in the servient strip because, by the terms of the grant
of l4 october
1964 to the plaintifl"s predecessor in title, ownership of
the drain was vested in
the plaintiff, as appurtenant to his land

webb v Frank Beuls Ltd r94o I Aller 247, The appellant company was
in occupation of part of land held by the respondent on lease from the War
Ofhce' The respondent had covenanted that he would, at the end of his term,
at
his own expense remove all buildings and erections and res[ore the land to its
original state. The appellant company carried on business as manufacturers of

1., ,1 '
breezeandcementproducts,and,forthepurposeofhousingtheirmachinery
they erected on the land a
shed
plant and materials,
and warehousing their
l35ftlongand50ftwide.Itwasbuiltofcorrugatediron,andwaslaidupona
concretefloor.Theroofresteduponsolidtimberposts,whichinturnrestedon
theconcretefloor,buttheywerenotembeddedinit'Eachpostwastiedtothe
concretefloorbywroughtironstrapsontheoppositesides,andwasheldin
positionbyaboltwhichratlhorizontallythrougheachpost.Thestraps,which
werefixedinandprotrudedfromtheconcretefloor,werefastenedtightlybya soil.
of the bolt. There was no other attachment, to the
nut screwed on one end
Intheshed,therewerethreeheavypiecesofmachinerysimilarlyattachedto
theconcretefloor.Oncetheroofandsidesoftheshedhadbeenremoved(and
thesecouldberemovedinpanels)'thepostscouldeasilyO"t:::"edby
undoingthebolts,and,ifneedbe,theupstandingstrapscouldbecutofflevel
withthefloor.Itwascontendedbytherespondentthatthesuperstructureof a
as one with the concrete floor and as constituting
the shed must be regarded
singleunita-ffixedtothesoil,andconsequently,thatitwasalandlord's'and
not a tenant's, fixture:- flnr were not a stng1te unit, and
and the ^_ora floor
concrete
Ileld - the superstructure
removabie by the tenant'
the superstructure was
v BMI (No 3) Ltd
Melluish (Inspector of Taxes
 PROTECTION OF FAMILY PROP ERYA

4rt237 provides that all land in uganda shall vest in the

citizens of uganda
and shall be owned in accordance with the available land
tenure systems.
These are set out in Sec2 of the Land Act vide customa4r, mailo and leasehold
(subJect to article 237 of the constltution, all land
in uganda shall vest in
the citizens of uganda and shalt be owned in accordance with
the
following land tenure systems- (af customary; p) freehold;
(c) mailol and
(dl leasehotd.) Kampalo. District Lo.nd, Boq.rd
and Anor u alrrcc. This
is an appeal from the judgment and orders of the court
of Appeal of Uganda
which allowed the respondent's appeal against the appelants.

The facts as found by the courts below were that

around 1996, the respondent
was granted a lease of land registered under Leasehold Register volume
106s
Folio 16 Plot No. M 239 at Bugolobi, a suburb of Kampara
city. The rand was
part of a statutory lease of 190 years granted to Kampata
city council by the
Uganda Land commission. Adjacent to this land and
also part of the statutory
lease was another piece of land known as Plot
No. 157 Luthuli Second close,
Bugolobi (hereinafter referred to as the suit land)

In 1970 the respondent constructed blocks of flats on

its land during which
period it
was allowed to utilize the suit land to facilitate construction.
It
constructed on the suit land a latrine for workers
and subsequently built a
fence around its block of flats which enclosed
the suit land. Between 1g70 and
2000 the respondent remained in possession of the
suit land, and kept it
properly maintained for use as children's prayground,
for drying residents,
clothes, and passed water pipes underneath
it. The public latrine remained on
this land in use by the respondent's workers and Local
council residents
during their meetings.
 respondent learnt that the suit land had been offered on a
In June |ggg,the and other
to the second appelrant. Despite protests from the respondent
rease
granted the lease'
of the Local council of the afea' the lst appellant
residents
now registered
the 2'd appellant received a land title to the land
Subsequently,
Register Volum e 286a,Fo1io
4, Luthuli Second Close, Bugolobi.
as Leasehold

filed a suit against the two appelrants seeking the following

The respondent
orders:

(a)AdeclarationthatallthelandcomprisedinLeaseholdVolume2860Folio
20Plot4LuthuliSecondCloseatBugolobiuntil25January200l
Second Close
described at Plot M 597 Luthuli
BugolobiEstate,belongsexclusivelytotherespondentandnotanyother
party

(b) Adeclarationthatthegrantoftitleoverthesuitlandbythefirst
appellarrttothesecondappellantwasvoidoiblnTtToastherewasno
for grant to 2nd respondent'
land available to the respondent

suit land
that the second appellant's lease and title to the
(c) A declaration
was null and void'

the Registrar of Titles to cancel the certificate of title to

(d) An order directing
2"d appellant'
the suit land issued to the
(e) A permarlent injunction to issue against the second defendant
restraining it, its agents, servants and any other person deriving title
from the 2nd defendant from entering remaining or otherwise interfering
with the suit property.

(0 An order for eviction of the second appellant from the suit land.

(g) An order directing the first defendant to grant the suit land to the
respondent.

(h) An award of punitive and general damages, costs and any other relief
deemed fit by the court. In their written state.ments of defence the
appellants denied the respondent's claims. The first appellant denied that
the respondent ever fenced or was in possession of the suit land, that the
respondent was a bonafide purchaser or lawful or customary tenant on
the suit land, and also denied allegations of fraud.
The Court forund for the current for the appellants and the respondent
successfully appealed iin the coA thence the cuerrent appeal
The appellants preferred eleven grounds of appeal which are stated as follows:

1 The learned Justices of Appeal erred in law when they failed to consider
the submission of the appellants.
2. in law when they failed to properly
The learned Justices of Appeal erred
re-evaluate the evidence and when they made finding of fact without
evidence on record to support them.

3 The learned Justices of Appeal erred in law and fact when they held that
the respondent was in possession/occupation of the suit land since
1970.
 in law and fact when they held that
4 The learned Justices of Appeal erred
thesuitlandwasregisteredonthecomingintoforceofthel99S
Constitution.

The learned Justices of Appeal erred

in law and fact when they held that
5

theexistenceofaplotnumberforthesuitlandmeansthatitwas
registered

learned Justices of Appeal erred in law and fact when they held that
6 The
the suit land belongs to the respondent'

in law and fact when they held that

7 The learned Justices of Appeal erred
occupant of the suit land'
the respondent was a bona fide

erred in law when they held that the

suit
B The learned Justices of Appeal
land was not available for leasing'
that
learned Justices of Appeal erred in law and fact when they held
9 The
of the 2"d appellant was fraudulent'
the application and registration

10. ThelearnedJusticesofAppealerredinlawandfactwhentheyheldthat
thedoctrineofestoppelwasnotapplicabteagainsttherespondent.

11. TheiearnedJusticesofAppealerredinlawwhentheyawardedthe
respondentdamagesandorderedthelstappellanttoleasethesuitland
to the resPondent'

grounds for affirming the decision of

the court
The respondent filed a notice of

of Appeal consisting of the

following grounds:
1 The suit land was part of land registered under the Statutory Lease LRV
796 Folio 6 granted to the City Council of Kampala as from lst May, t97O
for a term of 190 Years.

2 The respondent was a bona fide occupant of the suit land as Kampala
City Council, which had a Statutory Lease over the same till October
1995 and never changed the respondent's occupancy'

3 The 1995 Constitution, though it abotished statutory leases, did not

declare the said leases to have been null and void ob tntdo.

Fencing off, toilet facilities , acknowledgement by KCCA that pipes had been
installed all point to unequivocal occupancy, therefore grounds 1, 2 and 3 tail.

On the question whwtwhr the respondent was a bonafide occupant on

registered land, owing to yte coming int aopertaion of the 1995 constitution
that abolished statutory leases thereby leaving the land under no control. This
conculson is certainly flaed because the abolishio of statutory leases had far
reaching effects including cerating new tenures and new authorities that were
successors in title for the and hitherto held by government and was not
alienated to anyone. One of such authorities is the Kampala District Land
Board which succeded in tilte the ownership of the said land as such the
respondent can claim from it his rights as a bonafide occupant. The question of
the respondent is a bonafide occupant has already been answered in the
positive because it has been shown that effective utilization has been ongoing
on the same piece of land. The existence of a plot/blok number it was argued is
not proof of registration. We disagree because like we have said, it is imagined
that if KDLB was the successor in title, then the land must be registered with
them. Grounds 4, 5 and 7 have no merit.
 the question ofwhetherthe garnt of the lease to the second
we now consider
appellantwasfraudulent.TheholdingoftheCoAwasthattherespondentwas
therfroe it was not available for leasing
the bonifide occupier of the landand
fide occupant was given security of
without reference to him first. A bona law'
and his interest could not be alienated except as provided by the
tenure
land can be leased, first priority has to be given to the sitting tenant'
while the
stems from the procedure followed
to award the
Ground 8 therefore fails. Fraud
leasetothesecondappellant,theknowledgethetwohadthattherewasan
by of the respondent though ignored and the protests that the
interest
raised about the ongoing process of awarding the lease to the
respondent
appellant that were ignored' Deliberate failure to follow prescribed
second
or to deceive that the land is available for leasing or to deny the
procedure
to fraud
respondent a fair hearing amounted
was in error for granting damages' we
Grounds 6 and 11 aver that coA
respectfullythinkthatthejudgmentoftheCoAwasjustifiedandweagreethat
thisappealisdismissedwithcostsinthiscourtandcourtsbelow.

Intermsoffamilyproperty,Art26lz(,.Protectionfromdeprivationof
proPertY.
(1|EveryPersonhasarighttoownpropertyeitherindividuallyorin
association with others'
2}NoPersonshallbecompulsorilydeprivedofpropertyoranyinterestin
orrightoverpropertyofanydescriptionexcePtwherethefollowing
conditionsaresatisfied_(a)thetakingofpossessionoracquisitionis
safety' public
necessary for public use or
ln the interest of defence' public
order,publicmoralityorpublichealth;and(b}thecompulsorytakingof
possessionoracquisitionofpropertyismadeunderalawwhichmakes
provisionfor-(i}promptpaymentoffairandadequatecompensation, (ii) a
to the taking of possession or acquisition of the property; and
prior
rightofaccesstoacourtoflawbyanyPersonwhohasaninterestorright
over the property.) lays the foundation for ownership of property in Uganda
and entitles zury person to own land either individually or in association with
others. Adaocates for natlonal resources & 2 others o AG. This was a
petition to challenge government's action of arbitrarily acquiring land for the
purposes of constructing the Hoima- Kaiso Tonya Road without compensating
the owners. In its defence, the AG argued that section 7 of the land Act is good
law and that all actions of government were in pursuance of that provision.
Court however was of the view that the section was inconsistent with Article 26
of the constitution and as such nullified. The court made the following
declarations, that Section 7(If of the Land Acquisition Act is hereby nullified
to the extent of its inconsistency with Article 26121of the Constitution. That is
to say, to the extent that it does not provide for prior payment of compensation,
before government compulsorily acquires or takes possession of any person's
property. It is hereby declared that, the acts of the 2"d respondent complained
of in the petition, to wit:-taking possession of the 2'd respondents land prior to
payment of compensation contravened his right to property as enshrined in
Article 26121of the 1995 Constitution. No order is made as to costs.

Itfollows therefore that the right to protection of family property derives its
genesis from Art26 read together with all other applicable legislations. The
Land Act principally regulates the protection of family property under the
provisions of Sec 38A & Sec 39 of the land Act as amended. Sec 38A(11
provides that every spouse shall enjoy security of occupancy on family land.
Security of occupancy for that purpose means a right to access and live on
family land (it does not mean co-ownership of family land any the spouses).
Justice Musoke Kibuukrr ln Imeld.a Nnalongo Bassudd.e a Tebgasa
Matouu & Anor, this was an application for an injunction to stop an
impending eviction of the applicant from her supposed matrimonial home. The
applicant was married to the first respondent but their marriage did not last
long as the man picked up his belongings and left her. The claim that the
matrimonial home belonged to her was found by court to be erroneous because
 accordingtoevidenceavailable,thehouseinquestionbelongedtohermother
inlawthatwastransferredtothesecondrespondentwhohappenstobeher
sisterinlaw.Aclaimofsuchnaturecouldnotsucceedunderthe
circumstancesbecausethetitledeedwasveryclearandaSsuch,the
application fails' ---:.,^:-
sec38A & 39 is restricted only to spouses within the meanrng
Protection under
ofthelaw.TheLandActdoesnotdefinethewordSpousebutinlaw,itmeansa
personwhoislegallymarriedunderanyoftherecognisedmarriagesin
Uganda.Marriageunderthemarriageact,customaqlmarriage,Hindu
marriage,marriageundertheMohamedianmarriageanddivorceact.UGv
PeterKatoSescuro,thiswasacriminalcasethat..involvedtheaccused
killingafriendofhisthatheowed60shillings.onthefatefulday,the
only had 20 shillings
that his money be returned but
Kato
deceased requested
whichthedeceasedrefusedinsistinghebepaidinfull.Katomanagedto
in the bar and paid
great difficulty from his colleagues
mobilize the money with
off.Thedeceasedthenleftthebarridingonhisbicycleandwithinafew
minutes,Katofollowedhim.Afewmetresawayfromtheirhomes(thetwo
sharedaneighborhood),Katoaccostedthedeceasedwithahugestickthathe
hitonthebackoftheheadonceandthedeceasedfellatonceinaheapdead.
was told to mind her
was witnessed by his wife who tried to stop hi but
A11 this

ownbusiness.Thecontentionthenisabouttheuseofthewifeasawitnessto
thetrialofherhusband'Courtdeclaredthathertestimonywasallowable
becauseKatohadnotfulfilledtherequirementsofavalidmarriage.
Aspousewhoqualifiesassuchunderthelawisentitledtousethefamilyland
andtogiveorwithholdherconsentinanytransactionreferredtoinsec39.
Thissectionbarsanypersonfromselling,exchanging,transferring,pledging,
mortgagingorleasinganyfamilylandorfromenteringintoanycontractforthe
sale,exchange'transfer,pledging,mortgagingorleasingthefamilylandorgive
t awayanyfamily|and,interuiuos(givingawayfamilylandasagiftwhilealive)or
enteringintoanyothertransactioninrespectoffamilylandexceptwithprior
1r consentofhisorherSpouse.Inessence,theprovisionmakesitamandatory
requirement of the consent of the spouse to be obtained prior to any of the
aforementioned transactions being concluded. Tumwebaze a Mpelrwe
(Justlce Andreu Bo,sha{a). In this case, the appellant sought a
declaration/s that the suit land was family land which was sold fraudulently
without her consent as required by section 39 of the Land Act. The facts of the
case were that her husband (second respondent) used the suit land as security
to acquire a loan from the first respondent. He failed to pay and the land was
auctioned off. Their defence was that land sold in pursuance of a court order is
not subject of section 39. The presiding judge disagreed averring that that only
applies if the subject land was not mortgaged but only attached after judgment
of court as property o a judgment debtor. The defence further claims that prior
to pledging the security, the lad had been demarcated to have one piece with
the banana plantation and the other that had the homestead. The argument
was that since the wife had her homestead, the claim of family land started and
ended there. This in my opinion is wrong because life in the rural setting relies
heavily on agriculture and a banana plantation forms the largest part of
sustenance of rural families the deprivation of which results in untold
suffering, The division of land then was only aimed at defeating the provisions
of sec39 and is found to be fraudulent. Court therefore finds that the land was
subject of consent and where consent was never sought, the transaction was
illegal ab initio and therefore the orders of the lower court are set aside.

In order for a spouse to sustain an action challenging any of the

aforementioned transactions, such spouse must prove the following;
- That he or she is a spouse within the meaning of the law and is currently
under a valid subsisting marriage. Justice Musoke Klbuuka- Lq.mulo.ti
Ssanyu Nakankuagl a HaJJf Asuman JJumba & Othrs, The
Plaintiff sued the three defendants jointly and severally. Her prayers were
for a declaration that the suit land is family land to which the plaintiff is a
beneficiary as a spouse to the first Respondent, a declaration that the sale
of the suit land by the first defendant to the second defendant was null and
 voidforlackofthestatutoryconsentbythePlaintiffasspousetothelirst
a declaration that the transfer of the suit land by the first
defendant;
defendanttothethirddefendantwasnullandvoidforluckofstatutory
consentfromthespouse,thePlaintiff;anorderagainsttheCommissionerof
landregistrationrequiringhimtocanceltheregistrationofthethird
defendantasproprietorofthesuitlarrdandrestorethenamesofthefirst
andseconddefendantsasproprietors;apermanentinjunctionrestraining
or their agents from evicting the plaintiff from the suit
the defendants
land;anorderawardinggeneraldamagestothePlaintiff;andanorder
to the plaintiff'
awarding the costs of this suit

institution of this suit is that the plaintiff is wife to the first

The background to the
196z ' At first they
They got married under rslamic law in February,
clefendant. where
first defendant,s principar home at Mbulire in Masaka District
resided at the the
had two other wives whom he had married earlier' Later
the {irst defendant
plaintiffappearstohaveeithermovedtostayuponthesuitland,wherealsotwo
occasionally visit the suit
stayed, or merely would
other wives of the first plaintiff has about seventy
the first defendant's home at Jjingo' The Iirst defendant
land from Two out of
a,I. out of those, thirteen children were born by the plaintiff.
children in suit land
born by the praintiff carried out some activity on the
the thirteen children had
bibanja and homes at Mbulire where their father also
but had their respective
his princiPal home

at a place called Kyakajwiga arso in

Masaka
land is a farm land situated
The suit Block 914
Leasehold Register Volume 2180, Folio 15 or Buddu,
District' It comprises
The leasehold was jointly
12g hectares.
(Kalungu) plot g. It measures
approximately

heldbythefirstdefendantandoneMuhamadiLubuuka.Theygotregistered,as
of ritle shows' The
as exhibit D1, the certificate
tenants in common, on 19.10"rgg3,
leasewastorunwitheffectfromlstJuly,lgT6,foraperiodof49years.
I

On 30.10.2000, the first defendant borrowed some money from the second
defendant. The amount was shs.1,750,000/=. The written agreement, exhibit D2
stipulated that the money was to be repaid not later than 30.11.2000. The first
defendant pledged his share in the leasehold (suit land) as the security for the land.

I' rn failure to clear the debt with the second

defendant, the first defendant entered
>ther agreement with the second defendant, exhibit D3, dated lst December, 2000.
In it, the first defendant agreed to sell his share in the leasehold to the second
defendant at the cost of the debt of shs.1,750,000/= which the first defendant owed
the second defendant. The lirst defendant handed over the certificate of title to the
second defendant.

ISSUES

The issues for determination, as agreed upon by all counsel, are:-

a) Whether the suit land is a family land within the meaning of the provisions of
the Land Act;
b) If so, whether consent by the plaintiff was requisite before the sale of the
lst defendant's interest in the suit land
c) Whether the plaintiff is wife to the first defendant;
d) Whether the plaintiff is entitled to the remedies she seeks in the plaint.
Court will resolve issue number three first. That is whether the plaintiff is wife to the
first defendant. Then it will resolve the remaining three issues in the order in which
they are listed.

The first issue will be answered in the negative because evidence before court shows
that she did not live upon the land nor did she nor her sons extract any meaningful
subsistence. Besides, the land in question had been divested of the owner (Hajjil consent
 t

issue too is
judgment and as such could not qualify. This means that the second
consent is no subject to consent.
answered the same way because land sold via court

The third issue is answered in the positive because evidence clearly shows that she was
married to the first respondent regardless of the fact
that they have been apart for some
Iive years

The remedies sought are hereby denied. olouto & othrs v Mupere Tonng & Anor

2. The claimant must prove that the subject land falls

within the definition of
Ntende' Flora
family land as provided in sec38A(4) . Justice Egonda
the husband of
Rutc/molru/rgu o D?CU Bo;nk Ltd. Yusufu Rwamarungu,
his two omnibuses
the applicant, got a loan from the respondent for which
were the security. Yusufu Rwamarungu was unable
to clear the loan which
became a debt amounting to shs.!72,356,530/= by 2617l2oo5' For some
reason, he instituted Hccs No. 613 of 2005 against
the respondent in the
December, 2005, the two
commercial Division of the High court" on 20th
present counsel for the parties entered a consent decree
by which it was
agreed, in paragraphs 3 and 4 thereof' that-

3 The ttao buses Reg. Nos' UAE

g46N and" UAE 956N - s?wll be
qduertised for sale-------
4 The land LRV 1113 Folio 19 Nyabushozi, Block 52 plot 2
comprised. in
sale in the press
Ruyonza Kasana, Kinoni shall be aduertised for
prouiding for thirty (30) dags' return peiod'
Land was consequently sold to a third party
who is not party to the present
home which is currently
proceedings. The suit land houses the matrimonial
injunction preventing the
housing the applicant. She continues to seek an
possession of the purchaser and to maintain
the status quo until the
to justify my interference
substantive suit is disposed off. There is no evidence
by the court of Appeal to
with the opinions of the trial judge which was upheld
I

the effect that the applicant has not proved that she will suffer irreparable loss
if the status quo is not maintained. There are no compelling circumstances to
justify the issuing of an interim order of stay of execution even if it is possible
to execute. The mere statement from the bar by counsel for the applicant that
she is in occupation of the house is not sufficient in as much as the same
house was sold to a third party long before she filed her suit and the purchaser
of the house is not a party to the suit.

I decline to grant the order. I dismiss the application with costs.

3. Family land means land on which the ordinar5r residence of a family is

situate. Bonng Katatumaba & others v Shumuk deaelopment
& Othrs (Matter on Appeal), Re M an Infant-ord.inarilg
)
resident, This is an appeal against the Ruling of Byamugisha J.,
whereby she rejected the appellant's petition for an order for the adoption
of the Infant. The Infant is an Orphan. His mother was killed on 17-4-87,
by her own husband and father of the infant; one Katarihya. The latter
died on 19-1-88, while on remand at Mityana Government Prison
pending trial for his wife's murder.

The Infant was taken to the Probation Officer, Mityana B.K. Lubega by a Good
Samaritan. Lubega in turn presented the infant to a Magistrate Court at
Mityana which committed him to the care of Sanyu Babies Home in Kampala,
as his relatives could not be traced. Subsequently, Sanyu Babies Home and the
Probation Officer, Mityana decided in the circumstances, a foster parent or
foster parents are sought for the infant.

The appellants. who are husband and wife, offered to foster the Infant.
Accordingly, on 3-2-89, the Buganda Road magistrate's Court made an order
committing the lnfant to the care of the appellants. The infant has been with
 I

petitioned the High court

them ever since. Sometime in lgg4, the appellants
for an Order of Adoption of the infant'

found that the appellants and Infant

Byamugisha J, who dealt with the matter
had attained the requisite age and
were citizens of Uganda; that the appe[ants
thateachappellantwas2lyearsolderthanthelnfant;thatthelnfantwasl0
age of 21 years); that the consent
yeafs old (well below the permitted maximum
as they were dead and that the
of the Infants parents could not be obtained
for 4 years'
Infant had been in custody of the appellants

view that the appellants, who lived

However, the Learned Judge was of the
partly in Uganda and partly in Austria, were
not resident in uganda and partly
the meaning of Section a(5) of
in Austria, were not resident in Uganda within
she accordingly dismissed the petition.
the Adoption of children Act (cap 216,,.

The Section states as follows:

"4 (1)

(4)....
(5)Anadoptionordershallnotbemadeinfavourofanyapplicant
of Uganda and is resident in Uganda
unless he is a British subject ot a ctttzen
or in respect of any infant unless he
is a British subject or a citizen 01 Uganda

and is resident in EastAfrica'"

was to the effect that they had a

The affidavit evidence of the appellants
The first appetlant Fredrick
permanent residence at Bbunga in Kampala.
Industrial Development Programme
Kiyingi is employed by the united Nations
He stays there with his wife (second
organisation {UNIDO) based in Austria'
appellant), their only four year old
child Moire Kirabo Kiyingi and the Infant'
4. Land on which is situated the ordinary residence of the family and from
which the family derives sustenance. Lq,mulcrt ssolngu Nakankwagl
o HalJt Asumqnt JJumba-refer to the notes"aboae for facts,
Justice Musoota-Busonga. & others v Ebeke & Another, this case
involved sale of two lots of land situated in Mbale Municipality by the
husband of the appellant. The appellant together with her two children
aver that the suit land was family land that was used to grow crops for
their benefit and that in pursuance to section3g, they never consented to
the sale. Evidence was provided to show that the appellants are
permanent residents of Sironko district and that the suit land was never
used for any our purposes as alleged. The land was never utilized for
anything and the temporar5r shelter they claimed to have stayed in every
time they came too Mable was found to be on a separate piece of land
when court visited locus. The land was apparently sold to raise school
fees and court is inclined to believe the assertions of defence counsel that
this is just a ploy by the seller to connive with his family to deprive the
bonafide buyers by claiming that the suit land was famity land. The
provisions of the Land Act do not apply here because they have failed to
prove that it was family land. Besides, in absence of any other interest in
land, the children are not required to provide consent. Appeal dismissed.
5. Land which the family freely and voluntarily agrees shall be treated as a
or b.
6. Land which is treated as tamily land according to the norms, culture and
customs traditions or religion of the family. Tumwebq.ze v Mpelrute-
Justice BashalJa explalnlng the importance oJ sectlons 3g &
39'refer to case in notes aboae.In that context, land from which a
family derives sustenance means land which a family farms or land
which the family treats as a principal place providing for the livetihood of
the family.
7. Land which the family freely and voluntarily agrees to be treated as the
family's principle place for source of income or food.
They come to Uganda from time to time and certainly spend all their leave time
here at their Bbunga residence. Indeed the Trial Judge observed in her ruling
that at the time of presenting the petition the appeliants were here on 3

months leave

But she held that was not enough. In her view, residence means a home where
one lives and where one can be found daily. It cannot mean a home which one
visits once or so a year while on leave. She followed the decision of Harman, J,
in: Adoption Application (1951) 2 All LR. 93O. Harman, J, interpreting
Section 2(S) ot the British Adoption Act 1950 which is almost similar to S. a(5)
of our Adoption of children Act. In that case the petitioner was a Briton
working in the British foreign Mission in Nigeria. Harman, J declined to
grant

the adoption order on the ground that the Petitioner had to be resident in
British on a full time basis.

It is remarkable that the Learned Judge did not allude to her earlier decision in
n Cause No. I of 1993 .in the matter of Yonne Kamah una An Infant
where she had held that: -

,To constitute residence there must be a presence in Uganda for a

considerable period of time. Both petitioners are resident in Britain
according to their affidavits. There is nothing before me to show
that the
petitioners have a fixed place of abode in Uganda or have lived in Uganda
for a

Considerable period of time in the past or even now' They do

not therefore
satisfy the requirements of residence'"

The word residence -is not defined in the Act' Harman, J, gave a very restrictive
with
interpretation of the British provision in my view, but then he was dealing
adopting
a highly prohibitive Act. It was against British Citizens living abroad
British Citizens. I do not think that it was the intention of the legislature
to
stop ugandans living abroad on a temporar5r basis from adopting
Ugandan
children. In my view it is right to adopt a liberal interpretation of
the word
residence as Lord Denning (M.R.) did in: Fox V. (19 70t 3 . E.R. 7
(court of Appeal). In that case the Court had to construe the word
residence for
the purpose of registering as voters for elections. The law required
a voter to be
resident where he wished to vote at the time he registers. The Election
Officer
disqualifred students who studied at Bristol and Cambridge and lived
there for
about 30 weeks in a year. He thought that they were not residents.

Lord Denning held in the reading Judgement of the court, that_

(a) one can have two residences and reside in both;

(b) a temporary presence at an address does not make one a resident
there and;
(c) that temporary absence, depending on the circumstances of the
CASC, does not deprive one of his residence. He found that the
students
were either resident at cambridge or Bristol as well as at their
respective parent's places.

Byamugisha J's observation in: Adoption cause No. 1 of 1998 (supra)

is in
line with the decision of Lord Denning which is to be preferred. She
should
have applied the principle in this case. I agree with Counsel for the appellants
that she was wrong to hold that the appellants were not resident in Uganda.

I would accordingly allow the appeal, set aside the Ruling of Byamugisha J,
and substitute an Order granting an Adoption Order to the appellants.
I would
order that the petitioners bear the costs of the appeal. As odoki,
J.s.c. and
Tsekooko J.S.C. also agree, it is so ordered.
 Theclaimantsmustalsoprovethatatthetimeofthetransactionbeing
challenged,heorshewasnotlegallyseparatedfromtheotherSpouse.
Sscrng lt case' tefer to notes
aboue'
Lamulati
property falls in the definition of famity land' any
where the subject
enforceable where there is proof that
the
transaction can only be valid and
requisitespousalconsentwasobtainedpriortothetransaction.Justlce
Capital Saoe 2OO4 Ltd 'the
Helen Obura ' Alice Okiror a Global
of money advanced to the plaintiff by the
case dealt with murtiple amounts
to be
which she secured with two land titles one of which happened
defendant
home that she shared with her husband and children' Her
her matrimonial
that her spouse did not consent to mortgaging the title to
husband testified
Ug. Shs 350,000,000/=. PW2 also testified
their family home for the sum of
thatheneverconsentedtoanymortgageofUg.Shs.350,000,000/=.He
he had in the property was that it was
his
further testilied that the interest
written
although registered in his wife,s name' In the instant case, no
home
was adduced in evidence to prove that the second plaintiff
spousal consent
consentedtothemortgagingoftheproperty.Thepropertymortgagediswhere
their children' It is in that sense family
the plaintiffs ordinarily reside with
land.lagreewithcounselfortheplaintiffsthatintheabsenceofwritten
spousalconsenttomortgagingthepropertyinissuefortheamountstatedin
themortgage,themortgagecreatedoveritisvoidandlfindsointhiscase.
charged
the return of the title' that interest
court ordered alnong other things
illegal and unconscionable, that the plaintiff had paid back the
was harsh,
wholeloantogetherwithinterest.Damagesandcostsofthesuitwerealso
awarded

Madrorml lzama ' Wq'mono Shem v Equitg

Justice Christopher
Bank.Theapplicantsuedthebanktogetherwithhiswife;Constance
Wakyembawhohadpledgedalandtitlethathepurportedtobefamilyproperty
consent for a loan of 100 million
that she failed to pay back' The
without his
land in question is located in Kamyolrya and on evidence was shown not to be
an ordinary residence of the plaintiff. He produced a letter to show proof that
he had paid bride price to regularize his marriage to the second respondent but
no proof was shown that such marriage was registered. Iir the absence of that,
court failed to treat the land in question as family land and since he could not
prove that a lawful marriage subsisted between the two, consent was not
required. Dismissed with costs

The consent must be in the manner prescribed under the regulations made
Okiror cq.se-cottrt d.ecreed that consent to
under the land act-Alice
be aalid ho,s to be ln writlng whtch utas absent-facts ore ln the
notes aboue.

Egond.a Ntende Flora Rwamarungu-cq.se in notes above,

Agnes Bainomuglsha a DFCU Ltd., T}re applicant is seeking a temporary
injunction to restrain the respondent from selling or otherwise dealing with the
suit property comprised in Plot No. 15 Kashari Block 18 Folio 8 Volume 2514
Mbarara until the hearing and determination of the main suit. Ten grounds
have been put forth on the notice of motion in support of this application. The
application is supported by an affidavit sworn by the applicant. and is opposed
by the respondent which has filed an affidavit in reply.
The facts of this case are not substantially in dispute. The applicant's
husband, Mr. Frank Baine Bitamazire, is the registered proprietor of the suit
land. Mr. Frank Baine Bitamazire, granted powers of attorney over the suit
land to Bainebitamaztre Mixed Farm Ltd, which company in 2OO2 mortgaged to
the respondent the suit property as security for a loan granted to
Bainebitamazire Mixed Farm Ltd. The husband and the applicant are directors
in the said company, and the applicant also serves as the secretary. The
mortgage deed was signed by the applicant as a director/secretary of
Bainebitamazire Mixed Farm Ltd. The applicant also executed a personal
guarantee for the loan advanced to Bainebitamazire Mixed Farm Ltd.
 this
The applicant has now come to
this court for interim relief' she wants
restraining the respondent from
court to issue a temporary injunction
that mortgage as the mortgage is contended
exercising the power of sale under
tobeanullity.Allthel0groundssetforthinthenoticeofmotioncanbe is
applicant contends that the suit property
summarised to the effect that the
mortgaged without the express prior
written
the family home that cannot be
its
consent of a spouse aS provided
under Section 39 of the Land Act, before
by the Land (Amendment) Act, 2OO4' As she did not provide the
amendment
form, this mortgage is a nullity'
prior written consent in a prescribed
Itisnowsettledthatthatwhereapartyseeksatemporaryinjunctionbefore
determinationofthemainsuit,thatpartymust,firstly,showthatithasa the
to suffer irreparable loss should
prima facie case. Secondly that it stands
resolved on
case of doubt, the matter can be
injunction not be granted. And in
a balance of convenience'
r: ^.. +1^^ ^^^r; :lstrate that
Inordertosucceedonthisapplicationtheapplicantmustdemot
stage, as no trial
she has a prima facie CaSe,
or at least an arguable one. At this
is not required to evaluate the case
in detail or
has taken piace the court
assessatgreatlengththeprobabilityofsuccessoftheSame.However,the be
must be able to be satisfied that there is some serious question to
court
investigated'
that in this case, as director and secretary
It is worth considering at this stage
the
Mixed Farm Ltd' the applicant was
of the mortgagor, Baineb ttamaz\re
director'
together with her husband' the other
actual 'mind' of the mortgagor,
She,ineffect,togetherwithherhusband,wasthemindthatmortgagedthe
suitproperty.Didsherequireanyconsentfromherselfasaspouseto
perhaps this
Bainebita mazireMixed Farm Ltd or at all? I would think not but

isaquestionthatwillbefullyexplored,arguedanddecidedatthetrialofthe
main suit.
Neverthelessgiventhatscenariolamunabletofindthattheapplicanthas
madeoutaprimafaciecaseforthegrantofatemporaryinjunction.Ifindthat
this application has no merit whatsoever. I dismiss the same with costs.

The requirement for spousal consent does not apply to any transfer of land by
the mortgagee in exercise of powers under the mortgage-39(3). where no
spousal consent is obtained, the transaction shall be void save that the
purchaser is entitled to recover her money in respect of the transaction.
Tumuebaze u Mpelrute, Katatumba's case. A spouse is entitled to lodge
a caveat where the subject property is registered property and such caveat
shall not lapse while the caveator's rights to occupancy subsist.

The Uganda Land Commission

ULC is recognisesd by the constitution as one of the institutions for land

management in Uganda. Among the institutions created for holding land in
trust for the citizen of Uganda is the ULC. Art 237(i) provides that land in
Uganda belongs to the citizens and shall vest in them in accordance with the
land tenure systems provided for in the constitution. The constitution
mandated parliament in that context to enact legislation that would
operationalise the system and management and manner of control of land in
the country.

Sec 46 establishes the ULC as a body corporate with perpetual succession and
its functions are set in sec49, the principal function being to hold and manage
any land in Uganda which is vested in or acquired by government in
accordance with the constitution. Kampala Distrlct Land Board, a
.^IIICC, stated in the case that the main function of the Land Commission was
to hold and manage any land vested in or acquired by the Government of
Uganda. The functions of a District Land Board included holding and allocation
of land in a district which is not owned by any person, and to facilitate the
registration and transfer of interests in land-facts in the notes.
[email protected]
or offices or residences for its
officers'
crossings
URA uses as border custom
Thepropertiesinclude,AirportRoadEntebbe,MalabaBridge-Bukedi,Merama
and 54 Seventh Street
Post, Block E Butiab a, 52
Customs Post, Goli Customs Road Mbarara'
plot 4!, 43,45 and 47 Kamugugunu
Industrial Area Kampala,
PlotgNjaraRoadFortportal,plotlandlAHayesSadlerRoadandplots6,8,
12 and 14 School Drive
Mbale'

Itaversthatithasrequestedthatthesamebetransferredtoitsnamesinvain
andthatSomeofthesehavebeensoldoffortransferredillegallytoits
detriment.ThehistoryoftheselandsisthatatonetimethereexistedtheEast
AfricanCommonServicesAuthorityincorporatedundertheEastAfrican
CommonServicesOrganizationordinance.Thisauthorityownedsevera]
propertiesincludinginteraliathepropertieslistedinthisapplication.

'lhepropertieswereusedbythedepartmentsofcustoms,incometaxand
that these properties were taken over by the
inland revenue' It appears
defunctEastAfricanCommunityforthesamepurpose.WhentheEastAfrican
Communityceasedtoexist,thepropertieswerevestedintheMinistryof
FinanceoftheUgandaGovernmentbeforethecreationoftheapplicantandas
isthenorrn,thepropertieswereregisteredinthenamesoftherespondentto have
predecessors and later the applicants who
hold in trust for the applicant,s
since 1991'
possession and occupation of the suit'properties
been in effective
Theapplicanthasbeentryingtohavethepropertiestransferredintoitsnames
the request hence this
been ignoring or refusing
but the respondent has
application

Thisisanapplicationforavestingorderofthelistedpropertiesintothe
applicantunder3'166RTA'Usuallyavestingordercanbemadeinthe
-
following circumstances:

Where there has been

a sale of registered land;
(i)
price has been paid;
(ii) When the whole purchase
 (iii) possession has been taken by the purchaser with acquiescence of the
vendor, and;
(iv) The transfer has not been executed and cannot.be obtained because:
(a) The vendor is dead (or non-existent in case of a corporate body);
(b) The vendor is residing outside jurisdiction; or
(c) The vendor cannot be found.

Although under S.49 of the Land Act the Uganda Land Commission is enjoined
to

"49 (a) hold and manage any land in Uganda uhich is

uested in or acEtired by the Gouernment in accordance
with the Constitution,"

the land which it has been holding in trust for the government and were used
by the customs, income tax and inland revenue departments ought to have
been surrendered to the applicant upon commencement of the URA Act. There
was no justification for Uganda Land Commission to wait for litigation to do so.
If there was justification, Uganda Land Commission has not brought it forward.
Vesting powers are herby granted with the exception of Plot 7-11 Maluku Road
which was subject of contention in the case of Yasimi Nabirye Kahira v URA
that court ordered should be returned to URA because of the fraudulent
transfer involved.

ULC may also hold and manage land and may delegate such function to
Uganda's missions abroad. It may equally procure a title for land vested or
acquired by government. Sec53 created powers in favour of the ULC in so far as
land management is concerned which includes acquiring by purchase or
exchange or otherwise holding land rights, easements and interests in land,
erect or demolish structures on land held by it. To sell, lease or otherwise deal
 and other necessary matters
with land held by it and cause surveys, plans
pertaining such land'
a lease' any interested
In the exercise of its powers to allocate land under
Ptrtl,theULCisbylawrequiredtoverifywhetherthelandisavailablefor
of such land
leasing and whether the interests if any
or persons in occupation
must ensure that priority is given to
are catered for. The land commission
intended occupier has
persons inoccupation of the land save where they
persons' where the land has been the
compensated the interests of such
reversion vests in the Uganda Land
subject of a lease which has expired the
Land Board' Paul Kamya' the
commission. Paul Kamya v Kampala District
decision
of Appeal intending to appeal against the
applicant, who has instituted a Notice
2011, has fiIed a Notice of Motion under Rule
of the court of Appeal dated 01$ June,
6(2Xb)oftheRrrlesofthisCourtseekingforanorderofthisCourttostayexecutionofthe
The facts agreed upon between the parties
in the
said decision of the court of Appeal.
CourtofAppealarethatPfiraT*NazaraliParrjwaniwastheregisteredproprietorofa49
1g2g' over the properly comprised in' and
year lease that commenced on 01$ January ,
the
loeown as, LRV 99 Fol.22Plot 2, Makerere Road (hereinafter referred to as
formerly
suitproPertY).

was e>rpelled from Uganda in 1972 hy the Idi

Like many other Asians, Mr. Panjwani
26b June, lg74' on oSo', May' 1995'
the 2d
Amin regime and he died in canada on
Higlt
a son of the deceased' was granted by the
respondent, sadrudin P$raz*Panjwani,
to the Estate of Alirazak Nazarali Panjwani
Court of Uganda, Irtters of Administration
respondent) obtained a certificate Authorizing
and on the 27u July, 1995, he (2d
under Instrument No' 30054 on
Repossession of the suit property which was registered
provisions of the F;<propriated Properties
lgth March, 1999" By virtue of the
was
(SI No' 06 of 1983)' the term of the lease
(Repossession and Dsposal) Regulations

extended uP to 27u JudY,2001'

On 13 December, 2OO2, Uraz* Nazaxali Panjwani atlegedly applied for a special
certificate of the title through the firm of Kityo and Co., Advocates. It seems that during
June, 2OO4, one Bazilio Lukyamuzi purportedly acting under a power of attomey granted
by Alirazak Nazarali Panjwani sold the suit property to the applicant who was registered
as proprietor under Instrrment No. 344341. The applicant's proprietorstrip was
canelled when it became apparcnt to the Regiskar of titles, after the 2'd respondent
raised the issue arnong other things, that the lease had already o<pired. On24:o. Augus!
2OO4, the 2"d respondent applied to Kampala District tand Board (the Board) for
extension / renewal of the lease over the suit property. On 10tl, November, 2004, the
applicant also applied to the Board for the lease over the same suit property.

Sometime in March, 2005, the Board offered a lease on the suit property to the applicant.
On 1lth March, 2005, the Board communicated to the 2d respondent its decision and
reasons for not gantinghim lease.

On 16th March, 2005, the 2"d respondent obtained leave from the High Court of Uganda
to institute proceedings against the Board. On 14th July, 2O05, the building on the suit
property was demolished. B5r consent, the applicant was joined as a party to the suit.
The Higlr Court heard the parties and in its judgment detvered on 21$ April, 2006.,
granted the prerogative orders of certiorari quashed the decision to award the lease on
the suit property to the applicant and granted mandamus, ordering that the lease be
awarded, on exacfly the same terms, to the 2nd respondent. IGmpala District I.and
Board and the applicant jointly appealed to the Court of Appeal, which dismissed the
appeal. A Notie of Appeal bearingthe names of Ihmpala Dstrict tand Board and the
applicant was belatedly lodged in the court.

We have already mentioned in this ntling, that the sarne present parties on 26lO8l2OlL
appeared before one of us and by consent of their respective Advocates an interim stay of
execution in Supreme Court Miscellaneous Application No. 18 of 2O11 was granted.
It reads this waY:-

1. Thdqnlntrarilnotdcrdottaissrreagafulr;t,thercqoldctltsine,x*ttdttg
d&t@oftttcloueralurt4'-'df"gthchsfitrganddfqa*lot
stry of etc&ud.on beforc
Iyft*ll/rn/{,tts Alryltution tib. 77 of
2o77 lor
ttlrelralltuttcrl-

burt ht
ttlc Alpltlclret de4sits to| of ttn-?-*^Y
itt High
2. Thd,
5,8g7,227F ptue ltfrllton Etght
fauour of tttc- N *"prr*iiii,
71r"r*"rrd-n; tt"rrara. fiMtq *1Ptt sltiflincts
Hudtd.
-fiil lfrneq, *oen
w'it;h tt@ Supteme @ttrt Rqisaat'

3. Ilb otdetsfor@sts'"
we think it is
Neither party has complained
about its effect so far' In the circumstances
judge of this
salne terms as ordered by a sing[e
just that the application is grarrted on the
court on26lO1l2011' We so order

KampalaDistrlctLandBoard&AnorvVenancioBabulegaka&3
others,ThisisasecondappealarisingfromthejudgmentoftheCourtof
AppealwhichallowedanappealbytheRespondentsagainstthedecisionofthe
may be simply stated: -
High Court. The facts of the case

ThefirstappellantisabodycorporatecreatedundertheLandAct,lgg8,and
isresponsibleforadministrationandmanagementoflandinKampalaDistrict.

Therespondents,whoareSomeofthetwentyoriginalplaintiffsatthetrial,
wereoccupantsofaplotoflandsituateatNdeebainthesuburboftheCityof
Kampala,KampalaDistrict,anddescribedasplotlo28blockTKibuga,
hereinafterreferredtoasthe,,suitland,,.onSthNovember,2000,thelst
appellantallocatedthesuitlandtothe2ndappellantforalease'Aformallease
wassubsequentlyofferedtothelatter'Heacceptedtheleaseofferandwason
20llll2OOO registered as the proprietor of the suit land. A Certificate of Title
in respect thereof was accordingly issued to him. The respondents who felt
aggrieved by the leasing sued the appellants jointly and severally seeking, inter
alia, declarations that the respondents were bona fide/lawful occupants
and/or customarSr owners of the suit land; that the lst appellant wrongfully
leased the suit land to the 2nd appellant and that the latter obtained the lease
thereof wrongfully, unlawfully and fraudulently. Evidence on record shows that
the trial judge (HC) requested for written submissions from either party and
scheduled an oral hearing for later. This hearing never took place for some
ofor
reason and in his judgment, the learned judge continued to lament that
lack of evidence on this and that....." which showed that had he stopped there
and then and required the parties to present oral evidence, he would have
reached a different conclusion. For this, we allow the appeal.

Justlce Outlng Dollo in Yowerl Bamuhlga & Others o Chrlstlne

Mugala & Others, the dispute was about land that had been recently
'complete ignorance or
leased to the defendants by the district land board in
rather disregard of the interests of the plaintiffs. The Plaintiffs have averred in
their pleadings and testified in Court that they had acquired and have been in
unchallenged possession of the suit lands under customary tenure long before
the contested lease grants; and that they have grazed their respective herds of
cattle in these lands throughout the period of their said possession, and have
several homesteads with cattle kraals in various locations in the suit lands. For
their ptrt, the Defendants pleaded in their written defences and testified in
Court that their proprietary rights over the suit lands were based on the grants
made to them by the corporate Defendant, in whom the lands had vested as
controlling authority, following the degazetting of the Controlled Hunting Area
which the suit lands had been part of. They denied that the plaintiff S had
prior to 2005 occupied the suit lands at all. Their case was that there was no
way the Plaintiffs could have occupied these suit lands prior to the degazetting,
as this was Government land under the control of the Uganda Wildlife
Authority, and its predecessor the Game Department. This issue is settled by
reference to statutory provisions and the correspondences between the head
officials of UWA to the effect that settlement was allowed on the protected lands
and as such, I find the first issue in favour of the plaintiffs.

I now turn to the second leg of the first issue: namely'whether the Plaintiffs
were in fact in possession of the suit lands; and if so whether lawfully. Yoweri
Bamuhiga (pWl), in his testimony stated that he had acquired and been in
possession of his portion of the suit lands since colonial times; and that
Uganda,s attainment of independence found him already in occupation thereof,
meaning that by the time the leases were granted to the Defendants herein, he
had already occupied his several portions of the suit lands for well over 40
years. He stated that when the area was declared a controlled hunting area he
was already in occupation of the land; and that the other Plaintiffs followed
him later

The plaintiffs all testified as to how they had acquired their portions of the suit
lands; and that it was either through alienation by first occupation in
accordance with Batuku customary practice, or by inheritance from their
parents. Further to this, my findings that Controlled Hunting Areas have
always expressly permitted human settlement therein, has partly answered this
issue. The plaintiffs all testified that in the suit lands they each have several
homesteads, owing to the large number of cattle they each own. In fact their
evidence disclosed that they have, between themselves, cattle numbering well
over g000 (eight thousand). In the course of hearing, court visited locus and
was able to confirm that the plaintiffs have been in occupation of his landf or a
long time as compared to the defendants'whose homesteads were found to be
new and constructed in a haphazard manner. It was also confirmed that before
the issuance of the new lease, the authority never took due diligence of
gathering enough information about the original occupants. Evidence of blatant
fraud was also observed where hundreds of acres were issued to well-
connected individuals without recourse to due process. Damages of 15 million
each had been prayed for but since there is no evidence to show that the
plaintiffs had been denied use of the land, 3 million is awarded'

In the result, I make the following declarations and orders:

(i) The plaintiffs are the customaqr owners of the suit lands and are entitled to
quiet possession thereof.
(ii) The alienation of the suit lands to the Defendants in both suits by the
corporate Defendant and the processes that ensued there from are hereby all
nullified for being unlawful, wrongful, and or fraudulent.
(iii) The Defendants are all ordered to give vacant possession of the suit lands
to the Plaintiffs.
(iv) An order of permanent injunction hereby issues restraining the corporate
Defendant and the other Defendants from meddling in, or in any way
interfering with the proprietary interests of the Plaintiffs in the suit lands.
(v) The Plaintiffs are each awarded general damages in the sum of U' shs'
3,000,000/= (Three million onlY)'
(vi) The Defendants shall pay the costs of the suit"

THE DISTRICT LAND BOARDS

These are setup by virtue of sec57 I Eb 2 as body corporate with capacity to

sue or be sued as such Justlce odokt ln KDLB & Anor u NI'CC' He
stated that the functions of a District Land Board_ include holding and
allocation of land in a district which is not owned by any person, and to
facilitate the registration and transfer of interests in land.
It seems to me, therefore, that the District Land Boards became successors in
title to controlling authorities or urban authorities in respect of public land
which had not been granted or alienated to any person or authority. The

District Land Boards became successors by operation of law because land was
 under Section
vested in them by law, not by grant, transfer or registration'
59(8) of Land Act'

The functions of DLB are set out

in sec59 and include allocating land in the
on the district. Taking over the
district which is not owned by any authority
role and exercise of powers of a lessor
in case of a lease (those that existed
controlling authority - Justlce odoki
before the land act) granted by a former
aboae.Thepowersaresetoutinsec60_KDLBVVenacioBamgegaka-
exercise of its powers is required to take
refer to notes above. The DLB in the
on the in occupation of such land who
into account the interests of persons
due consideration before the land is
must be given a fair opportunity and
allocatedtoanyotherperson.YowerlBo;muhlg@&sothersuChristine
Mugarra & 2 Others-refer to case facts
ln notes aboae

LAND COMMITTEES

Theyareestablishedbys64andtheirpowersandmandatearesetoutin69
subjecttotheDLBand|JLC-YoulerTBqmuhtgaaChristineMugarra.
aboae.

institution established by the LA is the office of records under 68 and

The other
recorder is responsible for keeping records relating to certificates of
such
customaryownershipandoccupancy.JusticeMukasaelaboratesthisin
v Nankabirwa on the role of documentation'
uganda Ecumenical Church Fund
church Loan Fund' Ltd' claims
In this suit the plaintiff, uganda Ecumenical
in December, 1998 it advanced to the defendant' Nankabirwa Harriet'
that
as "The New Generation" a loan facility of Ugshs4g'800'000/= with a
trading
of UgshsS '442'OOO l= all payable within
one
total interest on the principle loan
year bY twelve
Instalments effective lst March lggg until
30th March 2000. The plaintiff is
claiming shs4l ,9zg,ooof = being unpaid contractual
due barance shs.
6'510'000/= being unpaid contracted due interest
on the principal loan,
shs6'500'0o07= being unpaid contractual surcharge
on. the aforesaid unpaid
two totals.

A plerimiraly objection was raised by counsel

for the defenandt that the suit
was time barred' In reply, the plaintiff averred
that the last of installments
brings the suit wiyhin time because I came
exactly 2 years and 3 months
before the suit' Letters produced as eveidence
showed that the defenandt had
pledged two immovable properties as security
for the loan and the plaintiffs
wanted to rely on them to have created an
equitable mortage at common law.
In her defence, it was argued that she merely predged
the properties and not
mortaged them

Subsection 3 requires the holder of a certificate

of customary ownership who
undertakes any transaction in respect of the
land to which the certificate
relates to register a copy of the transaction
with the recorder. section 6g of the
Land Act provides for the office of a recorder
for each sub-county, each
gazetted area and each division in the
case of a city, responsible for keeping
records relating to certificates of customary
ownership and certificate of
occupancy

In the instant case there is no evidence or pleading

to show that the charge
created by the defendant was registered. Equally
there is no evidence to show
that the defendant had registered her interests in
the land pursuant to the
provisions of the Land Act in which case
the provisions of Section g of the Act
would not apply to such land.
All in all I find that this suit was time-barred by the provisions of Section 19(I)
of the Money -Lender Act. It is accordingly rejected and dismissed under Order
7 rule 11 (d) of the Civil Procedure Rules with costs to the defendant. I so
order.

59, 73, 74and.75 of the RTA empower the registrar of titles/ commissioner
land registration to call in duplicate certificate of title for purposes of rectifying
or cancellation of such titles where obtained under the circumstances
enumerated in s91(2) of the LA

In order for the commissioner to exercise the powers under 91, he is duty
bound to notify the intended victims of her actions and afford them a hearing
before making a decisison. Saro,h Nakku a The Commlssioner of Land
Reglstratlon, This is an appeal by the appellants brought under the section
91(10) of the Land Act cap 227, Article 139 of the Constitution and section 33
of the Judicature Act, against the orders/decisions of the Commissioner Land
Registration, for orders to set aside the said orders and to allow the appeal with
costs.

The brief facts of the case as presented by the appellants are that they are the
registered proprietors of land registered as Mawokota Block 92 Plot 176 land at
Mpami. On 16th April 2O1O the 1st respondent allegedly wrote to the appellants
a notice of intention to effect changes on the register on grounds that:-

l. It ts alleged that the lqte Yuliana No,katude sold onlg tuo acres of
the ahoue mentloned land. That this is confirmed bg the copg of the
sdleof land agreement avo;iled to her otfice.
2. Thg1t when the duplicate certificate oJ tttle uto;s atntiled to the
appellants' mother for Purposes of sub diaision qnd transfer of the
two acres, she utent aheqd and trqnsferred. the uthole tltle.
 3. Trtat she recetved a copg of the record of proceedlngs oJ crlmlnal
co.se no. 422 oJ 2OO9 of the Chtef Maglstrate's court oJ Buganda
Road uhere the appellants' mother plea.ded gulltg to the charges.
4. Thll;t since the appellants' mother ls entltled to 2 acres out of the
32.4 dcres this etror has to be corrected bg cancelling the
appellants' entries on the tltle,

On the 10th June 2O1O the lstrespondent allegedly issued the second letter to
the appellants cancelling their proprietorship of the said land. The appellants
appealed against the order on the following grounds:-

1. The Commissioner erred, in law and fact bg not gtving the

appellants an oppottunitg to be heard before cancelllng their tltle,
a ulolqtlon oJ the canon prlnctple of naturalJustice.
2, The Commissioner erred ln lqu and fact bg cancelling the
appellants' tltle without effecting proper serdce on them-
3. The Commissioner erred ln law and fact bg cancelling the
appellants' proprietorshlp of land reglstered as Mawokota Block
92 Plot 776 basing on falsehood.s and. ltes bg the 2d respondent.
4. The Commissioner erred ln law o;nd fact bg cancelling the
appellants' proprLetorship of the aboae descrlbed land over matters
that were being adJudtcated, upon ln the courts of Judicadtre vide
Htgh Court Ciail Sutt IVo. 98 of 2OO8
5. The Commtssloner erred in lo;ut and fact bg cancelllng the
appellants' proprletorshlp on the above land basing on non;
exlstent documents or forged, documents.

Counsel for the appellant argued grounds 1 and 2 together. He submitted that
though the Registrar has special powers to cancel a certificate of title under
section 9l(21of the Land Act, she/he cannot do so without providing the other
party the right to be heard as required by section 91(8) of the same Act. He
submitted that the appellants were not accorded an opportunity to be heaid.
He submitted that the appellants never received the notice written to them of
the Registrar's intention to cancel their proprietorship, and that they came to
know about it when their Counsel Bwambale David stumbled through it at the
l"trespondent's office while checking for another client's letter. On inquiry the
Secretary informed him that the letter had been sent to the appellants'
registered postal address of P. O. Box No.746 Kampala and that the title had
already been cancelled

The respondent on the other hand, submitted that section 91 of the Land Act
empowers the Registrar to take such steps as necessary to give effect to the act,
whether by endorsement or alteration or cancellation of certificate of title, the
issue of fresh certihcates of title or otherwise without referring the matter to
court

In the instant case, it is clear that the Registrar of Titles was exercising the
statutory special powers accorded to him/her in cancelling the applicant from
the title in respect of land comprised in Mawokota Block 92 Plot 176. A cursory
examination of the affidavit evidence and the court record reveals that the 1st
respondent by a notice dated 16th April 2010 annexture A informed the
applicant of the intention to correct and amend the register by cancelling his
registration on the suit property. The same notice requested the applicant to let
the respondent know if there was any objection to the proposed action' The
letter was posted to the appellants'last known postal address. This was the
address that was furnished during the transfer. The appellants contended that
the postal address through which the letter was sent had long ceased to
operate. However they did not show that this fact was bought to the attention
of the lst respondent, who could only post the letter through the appellants'
Iast known postal address. This was the only way he/she could have contacted
the appellants. In my opinion, this exhibits diligence on the part of the lst
respondent in as far as serving the appellants was concerned. This therefore
would make ground 2 of this appeal to fail.
a

Section 91(3) of the Land Act provides that if the person holding a certificate
of
title refuses to produce it to the registrar within a reasonable time, the registrar
shall dispense with the production of it and amend the registry copy and where
necessary issue a special certificate of title to the lawful owner. Thus
the
Registrar's going ahead to cancel the appellants'names from the tiile was
presumably done under section 91(3) of the Land Act after the appellants
failed
to respond to the notice. This was after exercising due diligence and serving
them through their last known address as stated above.

In the final result, I find that the appeal lacks merit. It is dismissed with costs

wq.swa Peter a commissioner of Land Registratlon-reJer to case

facts ln notes. He may however not exercise powers under 91 where the
intended cancellation is premised on allegations of fraud that merits and
investigation by a court of law or where the matter is already before a
competent court of law or where a competent court of law has already
pronounced self on the rights of the parties. The commissioner is barred
from
taking any decision under 91 without affording the parties a fair hearing or
before complying with the preconditions set out in 91(2). Sulait Ssemakula
v
Commissioner of Registration & Others,

Ed.ward. Gasinzl v Gutangq. steaen, Ed.ward. Gatsinzi and, Muk6.5anga

Ritah (hereinafter referred to as the "Plaintilfsljointly brought this suit against
Lutanga Steuen (hereinafier referred. to as the "Defendant")seeking orders of
cancellation of the Defendant's names from the certificate of title for land
comprised in Buntll Block 279 Plot 2 (hereinafier referced. to as the osuit
land");that they be registered on the title to the suit land as Administrators of
estate of late Augustine Lwamulangwa, and costs of the suit.
The Plaintiffs' father one late Augustine Lwamulangwa on O2IOT/19g0 got
registered as proprietor on the certificate of title for land comprised in Buruli
Block 279 Plot 2. Together with his family, they had occupied the suit land
prior to his registration and utilized it for cultivation and grazing cattle. On
 t

301O711991 Augustine Lwamulangwa died and he was buried on

the suit land'
land
In 2004, one John Sekimpi started laying claim of ownership over the suit
as Administrator for the estate of one late Salimini Kabalu
who was previously

registered on the title in tgg4 and died in 1g60. John Sekimpi's

lawyers M/ s.

sengoba & co. Aduocates, in letter dated 1910511993 moved the chief
Registrar of Titles under section 178(a) of the Reglstiation of Titles Act to
grounds that he was
cancel Augustine Lwamulangwa's entry from the title on
be removed
erroneously registered on the suit land, and that his names should
interest.
to enable the children of Salimini Kabalu to register their beneficial
The chief Registrar of Titles on 1410611993 issued notice to Augustine
Lwamulaflgw&, who by then was dead for about two
years, stating that his
be cancelled
registration in 1980 was done in error and that his name would
the chief
and salimini Kabalu's reinstated on the title. In the same notice
Registrar of Titles required Augustine Lwamulangwa to- forward
the duplicate
certificate of title to for scrutiny'
on06/071|gg3,M/sKitao&Co.AduocatesactingforthelateAugustine
Lwamulangwa's family responded to the notice informing the
chief Registrar of
Titles that Augustine Lwamulangwa died some years- earlier, and
that his
physical occupation
family members who were minors were in possession and
of the suit land, and that the process of administering the
deceased's estate
of
had not yet been done. Further citing section 59 of the Reglstrotlon
of Titles
Titles Act, M/ s Kitgo & co. Aduocate.s warned the chief Registrar
against the intended action without first obtaining a High
court order' The
Augustine
Chief Registrar of Titles, nevertheless, on 2O11211995 cancelled
Kabalu on the
Lwamulangwa's entry on the title in favour of the Salimini
ground that the signature of the Land of{icer against Augustine
Lwamulangwa's entry in the Register was forged by
someone' The chief

RegistrarofTitleswentontoregisterJohnSekimpitheAdministratorofthe
estateofSaliminiKabaluvideAdministrationCauseNo.oT2gof2ooSas
sold the suit land to
proprietor on the title on 17 I LO 12003. John sekimpi then
the current Defendant who got registered on the title
on 19/06 l2oo8'
On 22107 l2OO4 the Plaintiffs who had become of age obtained Letters of
Administration for the estate of their late father Augustine Lwamulangwa and
on 2tlO9/2OO4 instituted this suit against the Chief Registrar of Titles and
John Sekimpi seeking, inter alia, for an order of cancellation of Instrument No.
BUK 53003 and No. 57796 under which Salimini Kabalu was re-entered on the
title as proprietor and John Sekimpi as Administrator of the estate respectively.
The Plaintiffs further sought an order that the suit land be transferred in their
narnes as Administrators late Augustine Lwamulangwa,s estate.
Evldence.
Gatsinzi Edward the 1"t Plaintiff (PW1) in his evidence more or less repeated the
above stated background facts. The Defendant for his part disputed the
Plaintiffs' claims and adduced evidence of four witnesses. The main thrust of
his evidence is that the Defendant was approached by Jofrn Sekimpi the then
registered proprietor of the suit land who wanted to sell the same. The
Defendant proceeded to the suit land and found the family of one late Mbwana
who confirmed to him that there were no any other Kibanja holders on the suit
land and that the family of the Plaintiffs was and is stitl living on the adjacent
land belonging to one Mutina Nakanwagi.
Further, that the said family of late Mbwana had no objection to the Defendant
purchasing the suit land and promised to buy their Kibanjainterest in the land
in future. That after confirming the names on the title particulars and what
was on the ground the Defendant purchased the suit land and was later
registered as proprietor on 1910612008. The Defendant insisted that the
Plaintiffs are resident on the neighboring land belonging to the estate of late
Mutina Nakanwagi, and that he had no knowledge of the alleged or of any
fraud or error in title of his predecessors, if any, as none was brought to his
attention, and that he did not personally participate in the alleged fraud. The
Defendant also denied that the Plaintiffs have any gardens or graves of the suit
land.
For the plaintiffs to claim any interest in the land, depends on whether or not
the father had a lawful claim to the property.
A careful reading of the provision reveals that the actions of the Chief Registrar
of Titles in the instant case were, with due respect, grossly irregular, illegal,
and done in utter disregard of the law.
In the instant case, if indeed the signature against the entry of Augustine
Lwamulangwa's names on the title was forged, that would amount to fraud.
Since Augustine Lwamulangwa had not appeared as per the notice, it was a
requirement of the law under Section 69 (supra) for the Chief Registrar of
Titles to apply to the High Court to issue a summons for the defaulting party to
appear before the Court and show cause why his entry on the title should not
be cancelled. At no time was the Chief Registrar of Titles empowered to take a
unilateral decision to cancel an entry. Therefore, by cancelling Augustine
Lwamulangwa's entry and re-entering names of Salimini Kabalu on the title,
the Chief Registrar of Titles acted ultra uires his statutory power, which
rendered his actions and decision null and void.
Apart from the above, it also found that by taking a decision affecting rights of
the Plaintiffs without according them opportunity to be heard the Chief
Registrar of Titles exercised power improperly. This invariably violated the
cardinal principle of natural justice as relates to a fair hearing, and that a
party sha1l not be condemned unheard. It is settled that an administrative
body/person acts improperly and or illegally where it/he exercises its/his
power to decide a question without affording a party affected by the decision an
opportunity to be heard, or where the procedure adopted in dealing with the
dispute is contrary to principles of natural justice
I further find that the Defendant fails the test of a bona ft.de ptrchaser owing to
the fact that by 2008 when the he purportedly purchased suit land, the vendor
John Sekimpi was already battling a court case with the Plaintiffs in respect of
the land. The existence of the court case and the court orders relating to
ownership of the suit land are facts the Defendant was and or ought to have
been reasonably aware of if he carried out any due diligence at all
I

Accordingly, the Plaintiffs have proved their claim to the required standard. The
Defendant has failed to prove his claim in the counterclaim" It is declared and
ordered as follows;

7. Judgment is entered, ln fannur of the platnttffs.

2. rt ls declared. that the PlqlnttfJs are bonq, Iide occup@nts of the
land. comprl.sed.ln Butttll Block 219 plot 2.
3. The Commissloner for Land Reglstration is dlrected. to reglster the
Platntl.ffs cs Admlnlstrators of the Dstate of Late Augustine
Lwamulangutq,.
4. The DeJendant's counterclaim is dismissed wtth costs to the
Plaintiffs.
5, The Defendant's Certlficate of Tttle for Buntlt Block 219 plot 2 ts
herebg cancelled
6. A permanent inJunctlon is lssued against the Defend,ant or his
agents, ond seruants from evlctlng the Platntijfs Jrom the sult
land.
The Plaintiffs are awarded costs of the suit.

The powers of the commissioner under 91 are therefore subject to statutory

limitations tough the HC may not interfere with the exercise of such
administrative powers unless there is evidence that the commissioner is acting
ultravires. Stephen Pepe u commlssl.oner Land Registratlon, a
temporarSr injunction be granted against the 1"t Respondent/Defendant,
his/her agents and or servants and his/her assignees, from cancelling the
Plaintiffs certificate of title comprised in Block 19 plot 5 Gomba, land at
Kalyabwalo until the determination of the main suit, The application is
supported by the affidavit of the Applicant Steven Pepe which contains the
grounds of the application which are briefly:-

" 1. That the Applicant is a bona fide purchaser for valuable consideration
and is the registered proprietor of the land ancl developments
comprised in Block 19 Plot 5 Gomba, land at Kalyabwalo (hereinafter
 ?

referred to as the suit land). A copy of the certificate of title is attached

hereto as Annexture "AA'.

2. That in 1991 the Applicant purchased the suit land from Badiru Ssali
the registered proprietor. A copy of the sale agreement is attached as
annexture t'BBtt.
3. That the lst Respondent/Defendant has summoned the Plaintiff to
appeaf for public hearing on 28 -06 -201 1 and show cause why his
certificate of title to the suit land should not be cancelled. Copies of
ttCC L",
summons are attached as annexture "Q.Qzttr "CC3" & "CC4"'
4. That the Applicant shall suffer substantial or irreparable loss which
an award of damages will not adequately atone if the lst Respondent or
his/her agents are not constrained by court from cancelling or otherwise
interfering with his certificate of title to the suit land.
5. That the Applicant/Plaintiff has filed a civil suit in the High Court
(Land Division) vide CS No. 216 of 2)ll, wherein he seeks inter alia a
declaratory order that he is a bona fide purchaser for valuable
consideration and is legally registered as proprietor of the suit land and
for a permanent injunction against the 1"t Respondent or his/her agents
from cancelling his certificate of title to the suit land. A copy of the plaint
is attached and marked as annexture "DD"'
6. That if the application is not allowed the Applicant's/Plaintiffs
certificate of title to the suit land is at danger of being cancelled and his
rights to the suit property greatly prejudiced qnd his suit rendered
nugatory.
7. That the Applicant's said suit has a high likelihood of success.

8, That it is just and equitable that a temporary injunction be issued to

restrain the lst Respondent/Defendant from cancelling the Applicant/Plaintiffs
certificate of title to the suit land pending the determination of the suit,

In the instant application, the notice to cancel the certificate, which is the basis
of this application, did require the Applicant to voice his objections as required
under the said legal provisions. Indeed, by the time this application was heard
the public hearing where the Applicant was heard had been conducted but the
l"t Respondent was yet to communicate her hndings. In the circumstances,
until the Commissioner communicates his/her decision, it would be mere
speculation to conclude that the Commissioner would or would not cancel the
certificate of titre, or to grant a temporary injunction
on an apprehended
decision which could fall either way. Thus, in
view of the nature of the given
circumstances of this particular case, this court is
in no position to make a
finding that there are serious triable issues for
determination in the main suit.
I find that the Applicant has failed to show that
he has a prima facie case
against the Respondents

It may also be noted that the pleadings in the main suit

indicate that the
Applicant/Plaintiff is seeking decraratory orders
purchaser for valuable consideration and legally
that he is a bona ftd.e
registered proprietor ot the
suit property, and a permanent injunction ,."tr"irrirrg
the lst Defendant or his
agents, who have indicated to the Plaintiff their
intentions to cancel the title,
from cancelling his title to the suit land. The instant
application also seeks
court to restrain the lst Respondent from cancelling
the Applicant,s certilicate
of title until the main suit is heard.

It is my opinion that, in the given circumstances,

that a grant of a temporary
injunction would have the effect of disposing of
the entire suit without hearing
the main suit on the merits. There are case decisions
to the effect that a
temporary injunction is not available where making
such order
would
tantamount to making the final order of court
when the case is heard and
completed

In the instant case, the facts as deduced from the

chamber application and
affidavits on record are that the Applicant is
the registered proprietor of the
suit property comprised in Block 19 plot 5 Gomba
at Karyabwalo which he
purchased from the 2"d Respondent/Defendant
a one Badiru Ssali in 1991.
He has since occupied and developed the property.
The Applicant claims that
the lst Respondent/Defendant has threatened
and continues to threaten to
cancel the Applicant's name as registered proprietor
on the certilicate of title to
the suit property and re instate Paulo Kiddu Muslsi
as the registered
proprietor. The Applicant filed civil suit No.
216 of 2ort against the
Respondents seeking inter alia a declaratory
order that he is a bona fide
purchaser for valuable consideration and is
legalry on the suit property as
registered proprietor. The Respondents on the other hand maintain that the
transfer of the suit land to the names of Badinr Ssali and his eventual sale
and transfer of the same to the Applicant is tainted with fraud, which is the
reason why they want it reinstated to the names of the late Paulo Kiddu
Musisi the original registered proprietor whose estate is being administered by
the lstRespondent/Defendant. The Applicant has filed this application seeking
to preserve matters in status quo until the main suit is heard and determined.
He seeks to prevent the lst Respondent from cancelling the Applicant's name as
proprietor of the suit property until the main suit against the Respondent is
determined by this court. The Applicant is therefore alleging the danger of
alienation of the suit property by the Respondent

The application is dismissed with costs. The interim order earlier issued by this
court in respect of this application is hereby vacated.
I so order.

The court system and jurisdiction to adJudicate land related matters

The land act under the provisions of 74 established district land tribunals and
mandated them to adjudicate disputes concerning land matters within the
district. The jurisdiction of the district land boards is set out in 76 of the land
act and relates to disputes over grant of leases, transfers and acquisition of
land, disputes relating to land under the Act. The district land tribunals are
however no longer in existence their term having expired and not renewed.
practice direction no of 2006 therefore gave courts jurisdiction in all matters
which were being handled by land tribunals.

The HC and courts presided over by magistrates Gl and above have

jurisdiction to entertain land disputes in so far as the same is within their
statutory limits. Justice tuhdise in
Sa,rah Nakku a Commissioner
Land, Registration- page 3 refer to facts in notes above. Section 76 LA as
amended has also provided for limited powers exercisable
by the parish or ward
executive committee as a court of first instance in respect
of land disputes. The
provision has been repealed by the enactment of the Local
Courts Act no.13
2006.

OWNERSHIP OF LAND BY NON CITIZENS

Art237(1) provides that land in uganda belongs to the citizens

and will be the
rights shall be exercised according to the land tenure systems.
However, the
same constitution recognizes ownership by non citizens
specifically regulated
by s40 of the land act. 4o(1) entitles a non citizento a right
to acquire a lease
in land in accordance with the section.

A non citizen is specifically barred from acquiring a holding

in mailo or freehold
land in Uganda.s40(4)-Justice Mulangira in sulait Semakula
v comm Land Reg
page 13' It follows therefore that at any acquisition
of a mailo or freehold land
by a non citizen is null and void on account of breach of
statutory provisions.
FRV-Freehold title

Block & plot-mailo land

LRV-Lease Register Volume

in a block that is bigger. Lakeside city Limited v Sam Engola

Plots fall
&
others, Justice Bashaija in Musisi Gabriel v Edeco LTD & Another
page g & 9.
Ref s40 1& 4.

The land act however allows a non citizen to acquire an interest

in land
whether on mailo or freehold in for of a lease which shall
not exceeed a period
of 99 years. where the lease exceeds 5 years, it must be
registered in
accordance with the provisions of the RTA s40 2 & 3.
-
Where a person acquired an interest in form of mailo or freehold before the
coming into force of the constitution as a lease on conversion with the meaning
of the decree law reform of decree of 1975, that person shall be deemed to
continue to hold lease for 99 years from I l6ll975-sec40(5). Musisi Gabriel v
Edeco pgg,Bagarye & Anor v Damanco Properties s40(6).

Who is a noncitizen?

For purposes of sec4o, a non citizen is defined in sec40(7). A citizen is a

question of law and fact and must be proved. In case of a company, citizenship
is determined by the parameters set out in a0(7) b to subsection 8 of s40.
Musisi Gabriel v Edeco pg9, Lakeside City v Sam Engola, Lakeside Township v
Lakeside City

The position of the law in Uganda is that every person is entitled to a

constitutional right to own land either individually or in association with
others-Art26(1)-Phi1lip Karugaba V AG CA 1 2OO4 pg 10, 11.

CoMPULSORY ACQUISITOIN Or LAND

Property for purposes of the article means and includes land - Bart Katureebe
on the decision of property in the context of art26 . for purposes of land, the
articie extends to to the registered interests in land and unregistered interests.
Where the plaint property is registered land, production of certificate of title
becomes a precondition to sustain any claim of ownership by a party alleging
that his/her land has been illegally, compulsorily acquired-Onegi Obel &
Another v AG & Gulu District Local Government CC No OO66 2OO2 (HC) page
12. The law however allows government or a government body to compulsorily
acquire any land for purposes of use by government. The power of government
to compulsorily acquire land derives from the provisions of sections 2,3, 6 and
7 of the Land Acquisition Act Cap 226Iaws of Uganda. However, article 26{*21

provides that no person shall be compulsorily deprived of property or any

interest in or right over property of any description unless the prescriptions
therein are duly satisfied-Kamishani Taremwa & others v AG & 2 Others HC
Misc 0038 2ot2 pg 5. The constitution under 26(2)para,s a & b limits the
circumstances under which property can be compulsorily acquired by
government to the following;

1. Public use
2. Interest off defence
3. Public safety
4. Public order
5. Public morality and public health

Advocate for natural resources for governance development & 2 others v AG &
UNRA Const Pet 40 2013.

Section 3 & 7 of the Land Acquisition Act empower government by declaration

to take possession of land for is use. However, the said sections do not provide
for prompt payment of compensation prior to taking possession. On the other
hand, article 46(2lb provides that the deprivation of property shall be a subject
of prompt payment of fair and SA to the taking of
possession or acquisition of property. There appears to be a conflict between
section 7 of the Land Acquisition Act that does not cater or prior compensation
and Article 26(2lb which makes it a pre condition before possession or
acquisition. By virtue of article 2(21, it is the supreme law of the tand and any
provision in any other legislation inconsistent therewith is null and void to the
extent of its inconsistency-Advocates for Natural Resources for Governance &
Development v AG & UNRA-Supra. Section 7 of the Land Acquisition Act has to
be read together with Art274 of the constitution which provides for existing law
before the coming into force of the constitution to be read subject to such
modifications, adaptations, qualifications and exceptions as may be necessary
to bring them into conformity with the Constitution without the necessity of
repelling or amending the Act (reading the words prior compensation into the
section to cure the inconsistency). It has been applied in the following cases-
Advocates Case, Osotraco Limited v AG CACA 32 2OQ2, Kabandize & Others v
KCCA-Service of statutory notice to government is no longer a requirement,
now in the Supreme Court. Meera Investments v URA-it is mandatory but court
did not address itself to article 2l read together with 274 which would have
brought it to the conclusion that government is like any other ordinary
Ugandan in matters of the law.

The Constitution therefore provides for the procedure and pre conditions of
acquisition of land by government which must be satisfied before the
constitutional right of ownership of property is interfered with. Justice Andrew
Bashaija in Taremwa Kamishani & 8 others v AG Supra, Carol Turyatemba v
AG. It follows thereof that compulsory acquisition of land and property by
government is only lawful and constitutional if it is for the purposes specified
in 26(2la and if provision is made for prior compensation before the taking of
possession or acquisition of property-Onegi Obel & Another v AG & Another
supra, Annet Zimbwiha v AG. Compensation is required to be {t *a adequate
depending on the value of the land and other relevant considerations

Conclusively, it can be stated that compulsory acquisition of land is

constitutionally allowed as long as the preconditions set out in 26121are duly
complied with by government or its agents.

LAND TENURE AND URBAN DEVELOPMENT IN UGANDA

Art 26 provides the right to own property in Uganda. Ownership of property or

land is supposed to be in accordance with the land tenure systems provided for
in the constitution. Art 237{ll & (3). Art 242 empowers government or any
statutory body under government pursuant to any laws made by parliament to
regulate the use of land. It follows from the foregoing provisions that ownership
and use of land are varyingly regulated in the sense that ownership of land
does not per se entitle the owner to utilize and in any manner such owner may
deem fit. Art 242 and any laws that may be passed by parliament must
therefore be resorted to in the determination of the right to usage of land. It is
I

therefore not possible in law for an owner of land to exercise such right of
ownership without due regard to the laws and regulations that govern land use
and development in Uganda. Art 26 has to be read together with 237(1) and
242 with the effect that ownership of land as guaranteed in 26 must be limited
to such use as is permitted by law. Sec43 of the LA requires an owner of land
to manage and utilise the land in accordance with the Fcjiests Act now
repealed, Mining Act also repealed by Act 9 of 2003, NEMA Act, Water Act,
UWA Act and any other law. The said prpovision binds lild owners and urban
authorities to manage and use land in accordance with the legal and regulatory
framework provided for ii the relevant Acts of parliament. In the context of
urban development, the current principal legislation is the Physical Planning
Act 2010 which came into force on April 29 2O11. The cardinal principles set
out in the Act include declaration of Uganda as a planning area, establishment
of district urban physical and local planning committees at sub county and
division levels which in effect constitutes decentralisation of physical planning
functions all coordinated by the national physical planning board. The Act
repealed the then country and town planning act cap 246 which provided for
only town and country planning board mandated to regulate construction of
buildings or other structures as well as roads. Urban planning and
development in Uganda has therefore been harmonized by the Act -sec4&9-31
of the act. In summary, the Act sets out mandatory substantive and procedural
requirements for the subdivision or consolidation of land, renewal and
extension of leases that must be subject to relevant physical planning
approvals. The Act harmonises the functions of the relevant DLB's, the area
committees and the physical planning committees in the exercise of their
respective statutory mandate (Sec 36 & 56). The law provides for regulation
and control of land use and development of any physical planning area. Such
intended development of land must be subject to the relevant development
permission obtained from the relevant physical planning authority (33& 35),
Sec22 of KCCA Act. Amooti Godfrey Nyakana v NEMA & 6 others.
 a

,.

Effective management of urban planning areas is therefore guided by a

comprehensive legal, administrative and institutional framework capable of
harmonising the relevant institutions and bodies whose ultimate function is to
ensure a well structured and managed development strategr for Uganda as a
planning area.

LA and Physical
Quiz; in light of the provisions of the constitution, the
planning Act, examine the efficacy of such legislations in the regulation of land
use and development in uganda highlighting the challenges posed by the
social, economic and political realities. TEAN V AG, Amooti Nyakana v AG,
Advocates Coalition for Development & Environ v AG, Kanyerezi v The
Management Committee of Rubaga Girls School'

And protect natural lakes, rivers, wetlands, forest reserves, game reserves,
national parks for any land to be reserved for ecological and tourist purposes
for the common good of atl citizens. A right to a clean and healthy environment
is provided for in 3g(1) of the constitution. In that context, parliament is vested
with powers under 242 to enact legislation from time to time to regulate the
use of land. This is further amplified by 235 which caters for protection and
preservation of the environment. Also look at sections 43 & 44 of the LA that
impose an obligation on an owner or occupier of land to manage and utilise
it
in accordance with the legislations stipulated therein. In effect, mere
possession of certain title does not guarantee the utilisation of such land in a
manner that the owner may deem fit. The constitutional right of ownership
must therefore be distinguished from the right of management and use of land
which is subject to limitations imposed by any act of parliament enacted
pursuant to art 245. Where any other legislation preceded the constitution,
such legislation must be read subject to modifications and qualification
to

bring it in line with provisions of the constitution. Osotraco v AG

In the context of environmental protection, parliament has enacted the NEMA

Act as the principal legislation governing land use and environmental
I

protection in uganda. sec 6 0f the

NEMA Act for the purpose of
the Act, 67 and
68 in terms of the orders that may
be made by NEMA. NEMA is
the principal
agency vested with the mandate
to ensure compliance with the
NEMA Act and
put in place appropriate policies
as well as regulations governing
the use of
land in a manner that conserves
the environment. In that context,
NEMA is
mandated to issue orders directing
all land owners and occupiers to
ensure
compliance with the obligations to
conserve and protect the environment.
decision or order made by NEMA Any
is not unconstitutional to the
extent to which
it arises out of the exercise of the powers
vested in it by virtue of the
NEMA Act
provided that the victim is accorded
a hearing in accordance with
Art 2g of the
constitution.

conclusively therefore, it may be argued

that the right to ownership of land
guaranteed by the constitution
is not absolute in so far as it
does .rot .o.rr.,
an unrestricted right to the owner
to use the land in any manner
that they
deem fit' Possession of a certificate
of title only confers the right of
ownership
but not use in the sense

that any for mof utilisation of land

must conform to the legal framework
regulating physical planning and
environmental protection in Uganda.
Amooti
Godfrey Nyakana v NEMA & 6 .thers.
Essay Question-interplay of ownership
vis a vis environmental protection
and physical planning-dissenting
opinion of
Justice Esther Kisajje' Has a title,
constructs, takes it that possession
of title
entitles him to utilisation as he deems
under 26, theland is in a wet la'd,
informed that the land he is constructing he is
in is in a wetland, he proceeds,
NEMA causes demolition and ceasement
of further developments. Goes
to the
constitutional court challenging that
a mere act of parliament cannot
take
away the right conferred by the
constitution. He is informed that
the act was
made pursuant to the constitution.
The court rules against him and
confirmed
by the Supreme Court
 i
,J-

Theprinciplesofphysicalaswellastheenvironmentalprincipleswiththeir but
and conclude recognising the right conferred by the constitution
limitations
with limitations

Spousalconsent.familyland,married,registeredinthenalnesofeither,effect
ofconcludinggrtwithoutspousalconsent/legalconsequence.Whenbothof
themareonthetitle,thereisnoneedforconsent,bothofthemhavetosign

FRV-Freehold,LRV-Leasehold-periodandthenecessarypreconditions-lakeside
city,companybeinganoncrttzen(sectionT),statutorybodylikeUNRAwanta
wayontheland,theclientrefuses,theyinvokesec7-Naturalresourcescase-
compulsoryacquisitionbecomesanissue.Promptandfaircompensation.Part
ofthelandisawetland,physicalplanningact-sub-divisionbeyondapointmay
NEMA all have to guide him before he acquires or
not be viable' Sec 44, art 39,

constructs the factory'

Anissuethatconnectstothefactindispute'Thepositionofthelaw-legal
principle-section.dissectthelegalprinciple.DefineSpousewithcase.Yougoto
thenextitem,whetheritisfamilyproperty.Stateaprincipleandtheprovision
of the law
{
MAKI.]ITERE, T]NIVT]IISI'IY - SCIIOOI, OI.'I,AW, SFIMES'I'ER I -20161017
t'ot]ND^Dl'toNti oF- LAND LAW L. 2110

I.O GENIIRAI,IN'I'IIODUC'IION
'['he basic lbundations
ol [Jganda-s land law arc dceply rootcd in the l]nglish concepts of
the law of rcal propcrty. Although thcrc havc bccn a lot ol changcs in Llganda's land law and
policy sincc indcpendencc. it is important to undcrstancl thc t:nglish conccpts fiorn which much
of land law has evolved. l'hat rvay', wc can deciphcr rvhy our law is what it is today. and the
extent to which oultural, cconomic, socral and political circumstances uniquc to Uganda have,
over the years led to modification o[ sorne ol- the land law conccpts. Among the legal scholars
that confirm this is Michael l larwood. lo hirn.

"'[.and l3r^,' was dcvclopc.l b1' thc courts ancl Pa:']iament.

lavcr upon
laycr. lxrm |cr"rdal timcs i.ind r.:arlici': eerch laver l;,cing added to rather
than rcplaced by thc ncrr lavcr. l'u unccrsland thc iand law ol'your
own agc, you had l-rrsl to understand that of each previous agc, each
rn,ith its own particLrlar philosophy and language."l

ln short. uuderstancirng land larv in [Jganda shrluld int,olve making sense of thc l:nglish
conccpts ol' thc law o1' rcal propcrt-v: r1 lilrms the tbundation of a gamut of legal rules ancl
principles ot' iarrd ltrw in tlganda. llcvoncl that, one neecls to make scnse of other aspects 61.
sot:ict.v- thlt- ir.tt,. li't-.n-i iristorr' [o dat,- shrqteil r legai rules on mattcrs of owncrship. rights of'
access ancl usc rlt'ianci. l'his alsrl mcans ihat tht' I:nglish conccprs shotrld nol be unrlerstood and
applied to IJganda in is<;liiliori oi-thc lristoric;rl arrd contctnp()rftr'y rlcvelopments in the land Iaw.s
of Uganda, most importantly'sincc ltX)i (a rcr.aalkablc yerar o1'tire Clrown Lands Ordinance) t<>
dalc (the I-anii Ac1 Cap. ?.271. 'lhc [act tlrat today's land ia,uv,vcr is grappling with some "in
\,ogue" mattcr! (sttch as those: rclatinlr to conclominiums, others ln thc oil and gar; inclustr5r,
intcrsections bctwccn lancl liglrts antl il,c impcrative lor cnr.'rronmontal trlrotection. contestations
rln iand arisinlt in tlrc arclrzr trl ,r prrst c()lilii:i sriltrlus aroong othc:rs). docs not neocssarily renclcr
thc rciati vci y historical lay, crs, r l' land r',r., i i"ri: l c,,, arrr.
i

Land lart'in l.lgar:cla partly con,.'if]ns thc various c&lcgiirrc:,>i'rigl-rts (claims) to lanC that
peoplc. institutions/cntities. state ma_r havc to land. l'hcsc vru.,, ll1 tenns o1'nature, Iength and
importancc. l,and law in gcneral dcals u'ith lhc rulcs abr;ut r:realion and naturc of thcsc intercstl;.
their sourccs. conscclucnc:cs atrcl also contltarcs or',luiding int..-rr.::s1s on thc same trriece ol. land to
dctcrminc *'ho ol' thc rntcrr:sI claiurarrtr; i.lr:; a bctk:r clairn i.o thc lantl. All thc abovc
dctcrminations al'e matlc ot-t tlrc basis t;i lcral and otlrt:r rules ic.g.. thosc anchorccl in cquity and
CuSt()m).
'lhis does i'lot iiiird lair clcarr and ccrlain at all times and in all rcspr-cts.
ltcccst.sirrily rnakc
IV{any land larv rclatccl nlatlcrs arc cotnl-riii:aLcci L:,v thc c.xislcncc ol'a dr-ral systcm; onc sourci:cl
lrom writtcn/rnlported law anti attoihr:r xrtilt)ri rn crrstoiilalrv itorrns. Asccrtaintncnt g{'
i See Michael Harwood, BEGINiNING LAND LAW, (Sempie i;ig,gi,t llochez LtC, londt-rn 2005), at 12
l:LL 2110 lnstruction MIteriols I RN/\K 20:! 5,/.1 i
rights/claims to land, and which claim should have priority over the other is usually made
irksome by the duality of the legal system. 'l"his duality will I'eature in a number of debates in this
course" Note, that since our written law system (as earlier mentioned) has foundations in the
English system wherc the act of registration gives one a better claim to land, there are more
instances in our land law where a registered interest or title is considered better than the other
(unregistered interests), with somc exceptions.2
Furthcr- liom our introduction 1o land law and thc study of the definition of land, we will
find that the term "land" in land law is wider than it is used in thc h.nglish language. Beyond that,
we should remember that land is one of those objects that have great connotations for power,
politics and identity. Control over rights or access to land denotes power; both over the land and
people that might claim (lesscr or usufructuary) rights to it. which may also have implications for
social order.-i It is {urther important to note that connotations of the land law principles for
gender and hun-ran rights will bc discusscd.

2.0'T'HI.] (]ONCEP'T OF' OWNERSIIIP O}' I,AND

I'he concept of ownership is a product of historical evolution ol' land law, and it differs across
communities. It has been argued by some scholars such as Ku,amc Akufb that the differences
among community conceptualization of property should not blind us into assuming that there are
no common li'atures on what amounts to property across communiti"s.'' ln this section, we look
at the orgirrs ol' thc concept o1'ownership only picking ou1 r,r,hal is suflcient for this course.
'l'here arc various
dirnensions or points to notc in this arca as sccn bclow:

Philosophical claims:

According to .lohn Locke. 5cod gare the earlh to mankind to holil in common, which means
universal owncrship ol' all the land by thc human comnrunity. I-le however believed that
individual clainr to land is possible. 'l'his mainly arises wherc inclividuals in his words ,.man,,
(which includcs wornan today) mixes his labor /work with lancl by say fanning it.6 ln such cases,
thc land is removed liom thc slate of nature or communal land ancl it becornes personal land.

2
The exceptions to this are mainly in the Registration of Titles Act. Detailed discussion <tf this will be next
semester; also see efforts to introduce registration for customary interests in land under the Land Act Cap.227.
3
See,RoseNakayi anoJorgWiegratz,'Theyoreoll myPeople':Museveni'sNeoliberol populismondthepotiticsof
Lond Disputes in Ugondo, Third World Quorterly Journollunder review-201,6).
o
Kwame Akuffo, The conception of tond ownership in African Customory Low ond lts lmplicotions Development,
for
17 RADIC (2o09lst 77 ats7.
t
John Locke, The Second Treatise on Civil Government, at p. 19 (Prometheus Books 19g6).

u
rbid, at 20

FLL-2110 lnstruction Moteriols I RNAK. 201.6/17

Ilven then, such land cannot be f'ully enjoyed in disregard of the community which retained the
political control and power to regulate relations over land and its use.

N.B. Terra Nullius- explain

Ownership hy conquest
'fhere are a number of jurisdictions where
land that was from time immemorial communally
owned by persons indigenous to those areas was claimed by conquerers as their exclusive land.
A good example of this is in North America. Land communally claimed by Red Indians and
utilized as hunting grounds, for lbraging, acccss to communal water resources was claimed by
fiuropeans immigrants whcl asserled exclusive claims cither through conquest or barter. In the
barter transactions. thcy accluired land in exchange tbr bcads, trinkets, etc.

'l'his happencd
in most cases in situations wherc thcre was no equality of arms between the
vcnders and thc purchases. 'fhe vendors were not lully awarc of the implications of the
transactions they had entered into; until exclusive claims werc laid on the land by the foreigners
who had acquircd it.

A number of indigenous communities have in history lost their land in such circumstances. Key
among the pertinent issues is whether the object land was bartered lor is important enough in
exchange for land on which the community derivcd a livclihood. Also important is the fact that
acquisition ol- land by thc foreigners had implications lilr the continued customary norms that
grride relationships over land.

Conflicts between communal and individual claims to land

Communal use and enjoyment of land in many communitics clid not exclude the possibiliqz of
laying claim to land by small units such as the lamily and thc individual. In Russia, for example,
a family or a man would be granted exclusive rights to land, which would be used in accordance
to what is acceptable within the community contcxt. 'l'his is similar to what is acceptable in a
number of communities in lJganda, where customary rules allowcd for family and individual
rights on communal land. fransfer of land in the communal text was prohibited, although
inheritancc was allowcd.

Individuals hetve an obligation to usc land in sucir a wav thar thcy bear in mind the wider
communit\'. to av<lid what is technicallt rel-crrecl to as thc tragedy 1o the commons.
'l'he existence of both private
and communal rights to land a1 times leads to competition, and
jealous control of land that is privately owned by l'encing ir ofI. In the tJ.S. American context,
the cattle kecpers believcd rangelands were communal availablc fbr use by all as communally
owned propcrty. 'l'his was not until thc dirt farmcrs canrc and {'cnced otT land as individually
owned land. taken out of un-owned rangclands. ln response . thc cattle keepers too started fencing
off land.
FLL 2110 lnstruction Moteriols I RNAK. 2016/17
Among the key debates that arise from the above is the conflict between the ancient agrarian
custorns and patterns of land use that are based on market relations. Believers in rights to land
driven by market relations castigate ancienl agrarian customs on land use as backward and not in
line with modern trends where land is commoditized. and notions of willing-buyer willig-seller
are seen as more important than customary norms of land not for sale.

In such cases, the landed aristocrats are protective of their acquisition whereas the dispossessed
speak the language of rcdistribution; whereby land (illegally) acquired by the aristocrats should
be redistributed as means of social justice. Similar debates are arisen in some African countries
such as Zimbabwe and South Africa.

Roman f,aw conccption of ownership

Traditional Roman law conccptions cxprcsscd ownership in perpetual and absolute terms. An
owner had a righto usc his land and abusc as it he deemed fit. Over the years, such notions were
limited in the sense that in a number o1'places that applied I{oman Law, exercise of the right of
ownership was subjected to the limits laid down in the law. I'he traditional Roman law
conceptions only looks at ownership as that relationship a person has with a thing s/he owns.

English law conception of ownership

Ownership is not an absolute notion; land belongs to the crown and persons only had rights to
use it in accordance with set terms. So posscssion o{'land gave one rights to exclusive use, and
entitlement to a remedy in case it was violated.

Generally

'['he concept of ownership denotcs rights to own,

a use, enjoy, and dispose of anything
including land.
a Ownership is politically and socially embedded. Politically, control over land may
translate into political strength and vice vcrsa.
a As a juridical concept, ownership is about how one person relates with another on land.
In this case, one person rnay bc vcstcd with authority to grant others rights to use land. or
the power to limit such use or cvcn cxcludc othcrs fiom use of land.
a This brings abclut the valuc of thc conccpl of br-rndlc of rights

Further reading:

Ojiendo'f.O, Conveyacing principlcs and practicc, ([.aw Africa. Nairobi Kenya,20l0)

[,e Favre, Itober,'l'he Philosophy of owncrship (1974) Cfh. 8

4
FLL-2110 lnstruction Moteriols I RNAK. 2016/17
3.0 Classification of Property as "Real Properfy" or "Personal Property"

The above classification and distinction has its origins in English common law and has remained
relevant to date. The classification is important since it guides us in the choice of laws to apply to
each type. Real property is considered to bc immovable property such as land (and whatever is
so attached to it so to be considered part of the land). Personal property are movables or what
as
we technically refer to as chattels. In reality, the distinction between real property and personal
property may not bc so easy to make, espccially in situations where the personal properties may
attain a different character depending on how they are alfixed to the land, so as to lose their
character as movablc. So personal property may also be considered as physical property most
times, such as furniturc and other houschold items.

It should be noted that legal systcm has evolvcd in such a way that it does not only deal with
ownership of the physical; such as lar.rd or chattels, but also ownership of a wide variety of
interests in such physical properlies and non-physical or intangibles such as copy rights and
shares. l'his therefbre makes the devclopmcnt of clcar laws to regulate such diversities in
ownerships important.

The other important distinguishing feature betwcen real property and personal property is that if
it is "real property" and it is lost. the courts can order its restoration; refurn of the res. This is as
opposed to ordering for compensation lbr sav loss ol'land. If it is personal property, it is difficult
to order for its return <lnce lost, but instcad issue othcr rcmcdies that can atone to the loss
sulfered such as compcnsation. ln sumr-nary. rcalty is rccovcrablc and personality is not. It has
been argucd that most intcrcsts in land arc classillccl as rcalty, cxcept leaseholds

(See, John Stevens and Robert A. Pearcc: [.and Law (sweet and Maxwell 2000 at pg. 4-8)

4.0 The Nature of Proprietary Ilights

'l'hese could be defincd

as rights of owncrship that a person may have in an item of property, or
in land specifically. Although owncrsl,ip is thc highcst proprictary right, there are other rights
l.hat may exist in an itemof propcrty. An cxamplc ariscs in a situation where a house that belongs
to Juma is leascd to Mary. who mortgagcs it to a bank. In that case, Juma, Mary and the Bank
have proprietary rights but o1'varying kinds.

Most times, proprietary rights are considcrcd 1o bc rights in the thing itself and are capable of
enduring through changes of owncrship ol- thc thing. In that case, they are enforceable in rem,
(against the whole worlcl) specilicallv against that pcrson rvho may be holding the item on which
the contention arosc at tl-re timc. On thc othcr hand. pcrsonal rights are enforced in personam,
against a specific individual who may havc violated the rights ol'another.

FLL-2170 lnstruction Moteriols I RNAK" 2016/1t

5
Central concerns of thc f,aw of lleal Propcrty

The law of real property cornprised a number of legal rulcs and principles which regulate
proprietary rights in things. Note that there are a number of overlaps between the law of real
property and other arms of the law such as contract. What makes the law of real property unique
is that it concerns some specific issues such as:

a" Ownership; who is the owner of a thing and what rights and obligations do owners have.
b. Subsidiary interests: whether there are any subsidiary rights or interest in a thing that is
owned by someone else, what is the level and extent of those subsidiary rights, how are
they validly crcaled. and what is thc holdel entitled to do with the thing. For example
what is thc holdcr ol'a lease entitlcd to do and not.
c. Priority between competing interests: '['his addressed the question- In a situation where
there are more than one competing rights in a thing; which of them has priority over the
other and why?

Key Principles undcrlying l)nglish Land Law

These have grcatly inlluenccd the development of English land law and also contributed to
shaping the core principles of this body of law.
'Ihey are also a reflection of the social, cultural,
economic and political background of good old England, which may not necessarily be a true
reflection of the situation in the other jurisdictions in which these principles of land law have
been introduced and applied:

a. Individual owncrship of land

English law reveres individual ownership of land, unlikc thc case in a number of other
cultures. whcrc thcrc is cmphasis on ownership by tribe, community or family.
'the English
concepts point to the notion of sel/-flsssrmination which leaves an owner with more leverage
to determine how to use land and when to create other rights on it. The owner is entitled to
exclude others frorn the land. Yet, the communal, family or tribal entity would restrict the
owner's exercise of power over their property in other cultures.

b. Facilitation of the use of land

Bnglish lau' aims at lacilitating efficient land usc by enabling lhe owner to create subsidiary
interests lbr sel['-bcncfit and that of othcrs. For cxamplc, i1 a land owner is not willing to live
on his land, s/he shotrld be in position to derive value from it by renting it out for money. If
another land owner does not have an access road to her/his land. s/he should be in position to
access the land through a ncighbor's land. In essence, the law facilitates an owner's rights to
enjoy her/his land. and at the same time allow others to utiliz-e it for their purposes hence
mutual benefit.

c. F'ree markctability of Land

i
P,
FLL-2110 lnstruction Moteriols I RNAK" 20L6/17
:"
 The other object of tlnglish land
law was to maintain rand as a
number of principles are therefore commodity on the market. A
developed to reduce the difficulties
buying and selling o1- land' 'I'ransactions that are inherent in the
in land should take place with in an
where a prospectivc purchaser environment
can be confident that the vendor
land in question' Such a purchaser is indeed entitled to sell the
should not be surprised by other
interests which may affect the existing subsidiary
value of her/his purchase"

Also' with in this arena of free marketability

of land, r]ngrish law extended to protection
mortgage lenders to ensure that they
can continue lending without
of
security in case there the risk of losing the
are other undiscovered third parly
intcrests in the land given as
A secure environmcnt is provided
through the law. without such
security.
would be a possibility that the housing an environment, there
market woulcl crumble since very
position to purchase propeny in few peopre are in
cash.

d. F-air protection of third party interests

trnglish law aims to ensure that subsidiary
interests in land are fairry protected
is transferred' They should not be when the land
easily defeated by a mere transfer
owner' ]'he law also pays attention of the land to a new
to the need to balancc protection
against the rights of a new purchaser. of subsidiary rights
Among the ways in which this is
a new purchase is n<11 unfairly burdened done is to ensure that
by pre-existing subsidiary interests
s/he was not aware of at the time -..gurd, in land which
of purchase. In that principles such as bonafide
for value without notice arc developcd
and lonowrcd to prorect those purchases
ffifi:t who

4.0 SOURCITS OT'UGANDA'S

LAND I,AW
'fhe sources
of Uganda's land law are statutes,
customary law. common law
equity. in addition to the constitution. .r.he and principles of
Judicaturc ncr c.ap. r3 provides:
" 14. Jurisdiction of thc I I igh Court.
( l) The High Courr sha ll, subject to the Constitution
such appellatc and othcr jurisdiction , have unlimited ori ginal jurisdiction in
as may be conferred on it by all matters and
law the o onstitution or this Act
or any other
(2) Subjecr ro the C'onstitution
and rhis Act, the jurisdiction
a) in ol.the Il igh Coun shall be exercised_
of this Act:
(b) subjecr to anl wriaerr raw
and instrfar as thc writlcn law
(i).the cornmon law and the au.trin", d<lcs not c xtenrl or apply, in
oi.q,L,fy; conformity with_--
Otaaye$abfiihcfuld c u rre nr c usro rn oiiaii and
(iii) the powers vesrcd in, onO tt . p-*arr.iiJ ;
pracricc obscrved b_v, the tligh
commencement olthis Act insofar Courr immediately before
as any such jurisdiction i, .";;;i;; the
(c) noexpress law or rule is appticabie id t with the provisions of this Act; and
^where uny rnu,,., in issue
before rhe High Court. in conformiry'*itt,
tf,f- i.in.iptes
E of
justice. equity and good conscience.

- FLL-21j.0 tnstructionioiiriot, I RNAK )0rc/t, .:11':i6r@e

t

(3) The applied law, thg so_rlrm.qn !,awgnd rhe doorines

af equitJ shall borqjLrgj_lUly_1n5ofa1_4ilh9
circumstancesofUgandaandofitspeoplesperrni1,a"o
render necessary.
(4) Subject to subsecrion (2),
una if tt,.* irlf*flict or variance between the rules
equity and the rules of common law with reference to the same subject, of
the rules of equity shall prevail.
(5) For the purposes of this secrion, rhe expressions ..common
r*" unj :.d;;r;;;;;a;;,rr,, mean those
parts of the law of Uganda' otherthan the written law. the
applied law orthe customary law, observed and
administered by the High court as the common law and the doctrines
of equity respectively.,, (emphasis
added)

Note the following:

a Customary land law differs lrom community to community
and the applicable
customary law 1o any land nlaltcr should be that of the community
in which the
matter arises ( See thc [.and Act scction 3 ( I )
a The applicablc customary practiccs and norms have to be in
line with the
constitution of lJganda and should nol deny marginalized groups
their equal rights
(Land Act section 27)
a By corollary discriminatory cultural norms or practices should
not be followed
(see, 199
. The courts can at times apply English law of equity in deciding
matters in our local
context in pursuit of fairness. (see..
fies2)
N'b' what happens in case thcrc is a conllicl among or bctween laws
applicable?

ooo

. , .,"f:

.; i
.''. FLL-2110 tnstruction Materiols I RNAK 201"6/12
 TENURE AND ESTATES IN UGANDA
A Historical Perspective of Land Hording Systems in Uganda until 1995

Formation of the State of Uganda brought together people of diverse

backgrounds and
ways of life in one country. The conglomeration of the diverse
into one means that challenges at
unity in a number of aspects, including land tenure were expected.
This, among others explains
the existence of various land holding systems in Uganda; both
in history ana to date. These
systems are not static; they keep on evolving. The main systems
that will be studied here are: (i)
the Customary (ii) Mailo (iii) Freehold and (iv) Leasehold.

The Pre-colonial era:

a See: John T. Mugambwa, SouRcE BooK oF UGANDA'S I.AND LAW,

Fountain Publishers 2002. pages r-z and think through following:
o l'enure system in Buganda. kingdom areas in Uganda as compared
to
other parts of Uganda.
o Communal verses individual rights to land
o The relationship if at ail between land on the one hand and power
and
social class on the other.
o ldentity, social relationships between and among peopre in respect
to rand
o Transferability of land; what role did the family/clan/community play?
o Land dispute settlemenl

Customary System of Land Holding

Read
o John T. Mugambwa, PRINCIpLES oF LAND LAw IN UGA.r-DA. Fountain
Publishers 2002, pages 4-5

Customary systems were not universal; they differed from community

to community in
Uganda and also depended on the nature o1' social, economic
or political set up of a givcn
community. That notwithstanding, we can point to some basic characteristics
of this tenure thal
cut across many, if not all customary tenure systems of various communities
in Uganda:
l ' In almost all tribes, land was considered communal property, vested in the
king or a
legitimate Authority in a given community. Individuals had a
right to use and not to
alienate, sale or give land as a gifl to another in contravention of
custom.

Note however that in Kingdoms like Buganda, individual claims to land

are
identified in for example bwesengeze. going away from the original
concept of Butaka
Dr. R. Nokoyi, Droft FLL-2110 clossroom tnstruction Mdteriot-Do
not cite ! Mok. Low sch.
 land (which was communal)" 'Ihe same trend is seen in Bugisu and Kigezi in the period
leading up to colonialism. With time, individual rights to customary land evolved as can
be seen in some decided cases. Wasswa vs. Kikungwe 1952 7 ULRI is about a default on
a payment in an agreement that looked like a mortgage agreement in English Law, in
which the respondent's galvanized house would be taken in case of default in payment.
'fhe court was confronted with the question whether the above was acceptable in Teso
custom. Also see Mqtombulire vs. Yozefu Kimera 1975 HCB 150, and Mtoro Bin
Mwamba vs. A.G (1952) (Does custom recognize individual ownership of land?).

2, Cultural leaders played a prominent role in the management /administration of land.

These are kings, clan heads or chiefs in those areas without kings. Their role included
alienation of land to clans or families and dispute resolution.
3. Customary land was generally not titled/recorded and there was no written evidence of
boundaries to land. (Why? What challenges can this pose?).
4. 'fhe customary was and still is for many a way of life and has significance for kinship.
fhe land is held in the interest of the dead, living and those yet to be born.

The customary in the Law 1903 to 1995: Key issues

-l.here
are a number of laws in Uganda's history concerning customary tenure. Below is a
summary of these as they affected customary tenure:

a Crown Lands Ordinance of 1903 (passed prior to independence in 1962) made

customary land Crown [.and, vested in her majesty the Queen of England. (l(hat
is the rationale for this? How would this aflecl the agency/trust system in the
customary system of land holding that existed prior to the passing of the
Ordinance?).
a East African Royal Commission of 1955 among others recommended registration
and conversion of customary land into freehold, but it remained vested in the
state. During this period, those in power were preoccupied with development,
using land as a tool. The Commission's recommendation was seen ps one of the
wavs to boost and develoDment. Drevent subdi vision of land and also
I
support the "progressive farmers".l
a fhe Constitution of Uganda 1962, Article l7 guaranteed fundamental rights for
all individuals in lJganda irrespective of their race, creed, color, sex etc., but wcre
"subject to the respect fbr the rights and freedoms of others, and for the public
interest..." . The protected rights included property-
" . (c) protectionfor privacy or his home and other property qnd,from
deprivation of property withoul compensation. "

" wADADA NABUDITRE IMPERIALISM AND REVOLUTION IN IiCANDA II (Onyx Press t.rd (London) and
&202.
Tanzania Publishing llouse (Dar es Salaam 1980) at 201
Dr. R. Nokoyi, Draft FLL-2770 Clossroom lnstruction Moteriol-Do not cite I Mok. Low Sch.
 Nabudere argues that the inclusion of the right to property in the constitution to a
great extent shows the desire to preserve bourgeoisie monopoly control over
property in the new neocolonial state of Uganda.'2 The Law, constitution and the
new state are just a new form of weapon used to achieve this; domination of the
have-nots by those that have, thereby maintaining the pre-colonial status quo.
After the exit of the British customary land was vested in the new independent
state by virtue of the Public Lands Act 1962 (and later 69), administered by the
Uganda Land Commission.
a Customary land (un-alienated crown land) could be sold or leased without the
consent of the occupier. See section 33 Crown Lands Ordinance and 22 of the
Public Lands Act 1962. The occupiers were susceptible to eviction by the
government. (Compensation would only be for improvements and crops).
Public Lands Act 1969 introduced the required for consent of the customary
occupier before his land was alienated; see section 24.
a The passing of the Land Reform Decree 1975 (during Idi Amin's time) brought
all land previously dealt with (under the Public Lands Act) under a new regime
established by the Decree with the following effects:

o All land in Uganda

was declared public and vested in Uganda Land
Commission to manage/administer it on behalf of the state.
Land could still be held undercustomarytenure. See Section 3 (1) of the Land Retbrm
Decree -
"The systenr of occupying public land under customary tenure may continue and
no holder of a customary tenure shall be terminated in his holdingexcepl under
lerms and condilion.s imposed by the Commission, including the payment of'
compensation. and approved by the Minister having regard to the zoning scheme.
if any, affecting the land so occupied, and accordingly, the Public [,ands Act,
1969. shall..."
The above provision seems to protect customary tenure by protecting persons under it fiom
termination of their rights without compensation. However, section 3 (2) makes customary
evicted no matter how
tenure to land. By implication, customary tenure was outlawed. Section 3 (2): -

"...a customary occupation of public land shall, notwithstanding anything

contained in any other written law. be only at sufferance and a lease of any such
land may be granted by the Commission to any person including the holder of
the tenure in accordance with this Decree."

o Acquisition of new customary tenures without permission of the

"prescribed authority" was unlawful.
o A customary tenant could only lawfully transfer (by sale or otherwise)
improvements on land, and not his interest in land.

'2 WADADA NABUDERE IMPERIAI.ISM AND REVOLUTION IN UGANDA I I (Onyx Press [.td (London) and
Tanzania Publishing House (Dar es Salaam) 1980) at I 77.

E Dr. R" Nokoyi, Droft FLL-2170 Closstoom lnstruction Moteriot-Do not cite I Mok. Low Sch.
For class discussion:

o What was the rationale for all the above legal provisions?
o Customary tenure and economic development.
o Could economic development or marketability of land be achieved without
protecting the land rights of the poor?
o How relevant is customary tenure in a neoliberal state like Uganda. How can it
survive in a country moving towards capitalism?

Dr. R. Nokayi, Droft FLL-2110 clossnx)m tnstruction Materiol-Do not cite

I Mok. Low sch.
 The Mailo System of Land Holding: A historical Perspective

Read: Mugambrva's SOURCE BOOK pages 4-5.

"Mailo" a Luganda word coined from the English word "mile" or the metric system of
"square miles". The tenure derives its name from the 1900 Buganda Agreement that was signed
by the British Government and the Kingdom of Buganda. By virtue of the Agreement, 8000
square miles of land rvere given to the Kabaka of Buganda and some of his chiefs and notables
(private mailo). A law was passed in 1908 to deal with this land.
It is also said that 9000 square miles were given out as official mailo, attached to some
offices in Buganda Government. This was official mailo that was not inheritable by family
members of the office holder on his demise. It was attached to a specific office and passed to the
new office bearer.
Those entitled to receive land under the Agreement were notified of the amounts they had
to take, and it was up to them to identify land whereupon it would be surveyed, demarcated and a
final certificate of title issued.
Not all land that was given to the above people was free and vacant land. Much of it was
traditionally occupied and farmed by the local "peasants". The act of giving out the land to the
chiefs and notables among others put those that traditionally held it in a precarious situation,
since the recipients of the land claimed better rights in law. It was therefore necessary to protect
the traditional/customary holder of the land, or regulate his/her relationship with the new
registered land owner. Below is some important information about the mailo system of land
holding and related issues:
. This tenure is considered to bestow to holders of land under it rights and
privileges as good as those that arise from freehold tenure.
. Mailo land interests are normally encumbered by rights of persons claiming the
same land by traditionalicustomary occupancy (these are the lawful or bonaJide
occupants inthe language of the Land Act).

'*:,T."i[iillJHn'J:::Ti::.T,TAr;],1,ffi
i,H[:1trilH::::":
makes existing customary occupants their tenants. The power dynamics are
constructed in such a way that the landed aristocrats control the "landless"
customary occupier. The customary occupier is no longer the exclusive controller
of his land, but one with lesser rights to it compared to the new landlord.
The mailo system in its original state did not provide protection for the customary
occupier. This situation if not addressed would most likely lead to embarrassing
situations and failure of the whole land holding structure of mailo. It was
therefore iriiportant to protect the customary oceupier and this was done through a
law: -.p

i
Dr. R. Nakoyl, Droft FLL-2770 clossroom lnsttuction Motirio!-Do not cite
: I Mok.l.ow sch.
i
i

lj

ti

s
I
I
li
The Busuulu and Envuiio Law 1928'
LRD 1975 and other Larvs
o Long title?
the nrrqtom'
iAo the customary tenant with secur ity
of tenure'
o Was intended to provide of '1'0'' staillings to the
o In return, the tenant had to pay an annual fee
landlord'
oThetenantwasalsosupposedtogiveenvujjo;whichwouldbeaportionof
is inheritable although he cannot
his harvest from the land. His tenancy
transfer or sublet it' easily
landlord nor the tenant could
o within this social sttucture, neither the
activity (why?)'
utilize the land for any developmental
o The tenant could not be evicted
if he continued cuitivating his land' His
the land for 6months'
tenancy could be lost if he abandoned
oTherentfeesthatwerepaidbycustomarytenantsundertheBusuluand
EnvujjoLawandtheAnkoleandToroLandLordandTenantLawswere these
Degree which also repealed
abolished in the 19?5 Land Reform
laws' r . -r -:-^^ +Lo r the
Reform Decree: 1975 abotished
o The above is logical since the Land by the
in uganda public land managed
mailo land systel. It'made alt land
U ganda Land Commission'
to leaseholds of 99
o Section 2 LRD, mailo land and freehold was converted
yearsfortheindividualholdersandlggforinstitutions.
condition land holders had to
o Section g iri ino carries a development
develop their land within a period
of 8 years'
. - ^r- +L^ ^^hcrn*
osectionl0LRD,alesseeofaconvertedleasehadtoseektheconsentof
theUgandaLandCommissionbeforehecouldsellorleasehisland,By
this,theylostsomepowelthattheyinitiallywieldedunderthemailo
sYstem.
On the other hand' they gained power
to evict the tenant with
o they needed it for
only improiements on land in case
compensation for
developmentpu{poses.Customaryoccupiersweretenantsatsufferancea
eariier discussed'
of uganda had abolished
o Note that earlier on, the 1967 constitution
kingdoms.officialmailolvasvestedintheUgandaLandCommissionin
remained intact'
Freehold, although private mailo
(Restitution of Assets) Statute No'9 of 1993'
o See the Traditional Rulers
and claims to land' (what happened
the reinstatement of traditional rulers
tothe350sq.milesofkabakashipland?Howabouttheg000sq.miles
commonlyc,alled..mailoakenda,?The..mailoakenda,,wasBuganda,s

I Mok' tow Sch'

lnsttuction Mioteilal'Do not cite
Dr. R. Nakayi, Oroft FLL'2770 Classroom
 was explopriated in i966 and is
communal land (un-alienated land) which
currently called "public land'"13
revives the mailo
o Article 237 (3) (c) (8) (9) of the 1995 Constitution
holding'
sYstem of land
Other important issues arising from
the 1900 Buganda Agreement include the "Iosf
Counties"ta
a GeographicalareasofBunyoroonthesouthandeastoftheKafuRiver
Buganda rendered
were arlnexed to Buganda asreward for the assistance
to the British in defeating the Banyoro'
some Baganda elites who
a After the 1900 Agreement.it was parceled out to
were issued with land titles'
(what does this
a It was held on a mailo land system with lord and man
mean in terms of the relationship between
landlord and tenant?)
referendum of 1964, administration of Buyaga .
and
a Following the
Bugangaizi was shifted from Buganda to Bunyoro'
Titles to this land remained in the hands of the
Baganda landlords,
a
of Bunyoro after the
(absentee landlords) many of whom left the kingdom
referendum.
by the absentee iandlords'
a This meant rent was in most cases not collected
tand held by the Uganda
a Yet the LRD of 1975 converted the land to Public
Land Commission'
very contentious in the
a The issues surrormding the lost counties has been
for the protection of
history of Uganda, *d for*s part of the iustification
tenants on registered land under the Land Act 1998'

Freehold Tenure: A brief

The freehold tenure gives the holder of land under it rights that are akin to
(perpetual) ownershiP of land'
Agreement (to the
. Land was given out in freehold under the 19Gt Toro
omukama and some of his outstanding chiefs) and
the 19 Ankole
Agreement.

the
t'see., John Kigula, Administration of Kabakaship Land under the Constitution, 1995, Paper prepared for
- The
Buga ndo's Position , Paper Presente d under the topic
Mpanga'
Bugan dd Land Board, August 2004 ; David Hall, ThursdaY ,31"
: o rtu niti es a nd Ch a ll e nges' Christ the King CommunitY
Lond (Am e nd me nt) B itl, 2007 O p p

JanuarY, 2008 at Page 4.

Bugangaizi (present day Kibale District) . The other
contested areas that are still in
'o These are BuYaga and (Kiboga District), North
Bu gerere (KaYunga District), North Singo
Buganda include Buruli(Nakasongola District),
Bulemezi and Buhekura ( currentlY form ing a
part of Mubende District)

ml, Dr, R. Nokoyi, Droft FLL'2.70 Ctdssroom tnstruction Moterlal'Do

not cite I Mok, Low Sch.
 the Govemol was empowered to
a Under the 1903 crown Lands ordinance,
or gloups in freehold' mainly
alienate some of the crown land to individuals
development purposes'
to the "progressives" who would use it for
a AdjudicatedfreeholdswereencouragedinAnkoleandToroasavehicleto
encouraging the customary land holders
to verify their holdings and have
themregisteredasfreeholdandacquirecertificatesoftitle.
schemes in Ankole and Toro
O Native freeholds arise from the distribution
attached to their offices'
Agreements giving land to chiefs;
a Since there were customary hoiders
of land alienated in freehold to new
relationship
protect the tenants or regulate their
landlords, there was a need to
with the landiords. for this
Tenant Laws of i937 were passed
a The Ankole and Toro Landl0rd and
purpose.

lnconclusion,theabovehistoricizednarrativesoflandtenureandlawsinUgandagiveus
thg many loopholes in the
our land law is-as- is today' lt exposes
a good understanding of why land holder, and instead
to protect the customary oI traditional
System, which indicate a faiiure 1995 and the Land Act
persue economic development at
his expense. For this, the constitution
historical mistakes as will
timely move in the riglrt direction in an attempt to correct the
were a
be seen in later in this course'
and Land Act'
(Mr. Kyazze) w*r handle Land tenure under the constitution
NB. My colleague
and Equitable interests in Land'
tuty ,,.*t topic will be Legal

I Mok' Low Sch'

lnstruction Moteriol-Do not cite
Dr. R. Nokoyi, Drolt FLL'2770 Clossroom

L
 .I'HII
DOC'I' RINII OF .I,ENURI.]
A ND ITS I.A'I.ES

Before delving into the

doctrine of tenures and
to briefly highlight some features estates and the feudal
beginnings, it is rmportant
relationships over land
of the feudal system.'fhis
have a great bearing structure shows that
on the politics social
contemporary pieces of of any given socrety. Also
li terature, the ability to exert as stated in
social, economic. poli control over land rs pertment
tical dynamics rn any given in controlling
correlation between ownership society.l The feudal
or control over who accesses structure shows a
concentrated in the upper land and power; with
strata of the hierarchy more power
F'eudalism in Medieval
England and craims to
Land (r.eudar .I.enures)
Feudalism as defined
in a webster dictionarv
in Lrurope during mostly the gtl'to is that kind of poriticar
structure that existed
thc 15 century. ;;. svstcnr
relationship between Lord is characterized by a power
and Vassal, Iand hercr
paying homage or offering o, ,.*0, and rights ,oJ,'0,
service to t-o.a. r-o. vassar are after
.*u.pt"],r," ro.a courd give
courd give rand to rcnigr,ts-i,-,,,., Iand to Barons, and
f,::';'r::T il::ffi;f' promised aregiance.
rr is more or

,ppri.o#ffi:iJ ;1',#"lH#I,*o*u' conquesr in r066.2 rr

is mainry characterized
by
asp(.crs or ri'c: soc:iar and econom,;
ti:.*il1Y,,ffi:T:J;,.ff ;"X*iTJ:T*::fl
woura be dttermin"o
|-.:1.]",jT::':;;i:,?H"l,IJ1[:'f
,q,u Wds tne sourcc of privileged un rhc basis;i;;; much contror he
socicty.l s.cial status una po*.,
in the feudal
As victor after the Norman
conqucst, william the
inrroduce the feudar land conqueror embarked
system; ,rl"ou many on a journey
towards this was the declaration ,.u., ,o form. Amor;; significant to
that uti t*a in.Engruoo steps
onll get it fiom the king; directly ,.."r,.0 in the King. Everyone
o. inoi.*"rtr."liri" o"*1, erse courd
thc basis .l' agrecments betwcen ,""0 was only given ro someone
the king and ,rru, p.".*r. on
rccipicnt was bound to
olfer linder the agreement, the
to the king in .",r.n for land
the agrecmcnt '"'uit".
(a,d the te,ns) granring
thc of land. r.enure
:H;fffiJeant "rloym.r,t
the rccipicnr of'rand
(the renant) rights
to
1
Scc. Rose Nakayi, Neglected
.yet nol di.ycqrded? An atrulys
Post-conflic.t sncielies:
Ins ighrs .liom Acholiland, is of the stale of cus lomary
t:ast Afr rcan Journal land righrs in
I)au I i rre I)cters, ('onflic:ls of
o ver land and threats ('u.ttontttry Peace and Human
I)o,cltt ptncnt aI l.larvard [Jniversi to Tenure in A"[rica, Center R ighrs,;
2 ty (C'lD) worki ng Paper for Interna tronal
SecJ crhn l)alrym No. 247 Sepr.2 012
trtle, An lissuv Tou,ards a General ar 8
l-ri l,li.\.tort) of l.eudul propertl.in
Greil Britain, 1757,
See .. Jesse Dukerninier
and Jarnes K ner, PROPI]R]-Y,2'd
See Pollock and Maitlan Ld rtion. 1988 ar 146
d, FIISI'ORY OF ENGI-IS}-I
r,AW (2'd Editicrn) at
237
: RNAK, rori7fr,'iili#ili,i nli.,t"r,
i
oi-,o, i"oi. Mok. SOL
 'fhe tenants
were not of the same class;
the source of their "rights" their classes (social status)
to land' P.rron, that were varied according to
are those that; for exampre, considered of significant
had access to a number status as ,,lords,,
of fighters/troops whose most
,1T:[?JilU;::J:" would orrer to the king in .*.r,ung" for rand. ri.r. revered
*.." k o*n as the
Once one was a Tenant
in chief he had the authority
tenure to someone else, to make "agreements,' or grant
in return for servrces or
land from the l-enant in chief what would be agreed upon. Such
could also grant rights a recipient of
Generally, to o ther persons on specific
terms.
cateqories: (i) Military;
where one got land in
period of time/days in return for providing knight
a year; (ii )Economic; included service for a specific
( say provision of goods) among others payment
in return for land; (iii) of money or in kind
of money or an exclusive requtrement Religious; this could be
in addition to payment
that the recrpient of land
for the land. In addition to prays for the his lord
the above tenures, s ometimes in return
(give other benefits) to tenants/vassals had to ,,incidents,,
the lord such as taxes pay
As earlier ment ioned. holders
of land could create more
in the end a feudal p yramid tenures out of their tenures,
was formed with the king and
Iords and rcnants in demesne at the top; mesne lords or
(Vassal). This culminated rntermediate
holding.s Within rhi s, the into a feudalistic structure
Lord offered protection
to
of land
lord in return, hence creating the man, and man offered services
a social bond that to some to the
relationship,,to continue extent is significant for
in ex istence.6 t he process a "pleplietary
was callcd .rubinfeudution of creating new tenures by exisi
processes that led tlng tenants
structure placed pcople at to a pyramid type system
varrying levels of hi erachy, of clai ms to land.The
end, this fbudal structure got with the peasants at the bottom.
rooted and replaced the In the
communal syslem by
In the leudal s ystem, it was which I and was held.
norm that one stopped paying
rntroduced someone (a new taxes the moment they
tenant) liable to rncidents
corrected, subinfeudati on such as taxes. Ilesidcs reducing
became un popular over taxes
banned by parliament through time and under Edward I's regime, it
the Smtus of was
was liable to inci dents (taxes Quio Emprores (1290) Afler this
every land holder
fbrmally ended around 1660.
). Feudalism and the system over the years
Aspects of the system lost its glory, and
Law. l-he doctrines ol'tenures can however be identifiable
and estates are among in English Land
law, aspec ts of which are the fundamental d octrines of English
traceable in feudalism land
REAL PROPERT'y lor details - see, Megarry and Wade, THE LAW
OF

j
See Cheshire,s Law ol-Real
Property, I 2tr, Edition (edited
a Webster dict ronary is that by E. H. Burn at 10. Feudalism
kind of political structure ) as defined in
I5 Century The systern is characterized that existed in Europe
by
during mostly the 9,l,to
Lord, and ri gh ts to it by vassal a power relationshi p between the
are a fter payi ng homage Lord and Vassal, land
or offering service to Lord held by
could give lan d lo Barolrs, For example, the lord
and get soldiers i n return;
al legiance. Ir is more or Ilarons could give land
6 less a social class structure to Kni ghts if they promised
See MA Il-l-AND, T'Ht1
CONS.ft.t. U]'IONAI, HISTORY
OF ENGI-AND
t RNAK,20t6/17,
FLL-lnstruction Nloterio!s
- Oo not cite I Mak. SoL
'I'he F'eudal Tenure (illustrated below):

What is described above resulted into a feudalistic structure of land holding.T Within this, the
Lord offered protection to the man, and man offered services to the lord in return, hence creating
a social bond that to some extent is significant for a proprietary relationship between lord and
*un.8 The feudal structure replaced the communal system on the basis of which land was earlier
on held.

The King (Lord)

Tenants in Chief

Lord of the Manor/

tenants in demesne

Peasa nt

Historical attempts to apply the Doctrine of 'l'enure:

From the above, we can conclude that in the feudal period all land belongs to the Crown, but it
could also be held by others in a certain form of tenure. So tenure mainly denotes the terms
upon which land is held. Per thc leudal system, tenure alludes to the social relationship (rather
than legal) between a lord and a tcnant of the lord.
As mentioned earlier. thc doctrine of tenure is rooted in the feudal system which does not
fully exist anymore; it has substanlially vanished although its substance is still identifiable in the
English law of real property. Also, aspects or strands of its remnants are still visible, although
minimally in legal regimes of a number of commonwealth countries such as Uganda.
In some instances during colonialism, the English standard of tenure was used as a basis
to determine if land in any country that was colonized by the British was actually "owned". A

7
See Cheshire's Law of Reat Property, l2'r' Edition (edited by E.H.llurn) at l0
8 -Ihe
See Maitland, Constitutional Ili sto.ry ol l,ng-! and
RNAK, 2076/77, FLL-lnstruction Moterials - Do not cite I Mok. SoL
a
,)
failure of any locally rooted system to fit within the concepts of tenure (and indeed other
concepts in English law) would (to the colonizer) most likely go to show that such land was not
owned; that it was "TerraNullius" or no mqn's land. This situation was challenged in anumber
of cases. These cases will also be important in our discussion of, customary tenure in Uganda,
later on. Among the most important are: Mabo us. Queensland (Australia) and Amodu Tijan
vs. Secretary of Southern Nigeria (Nigeria)e.
In the Mabo case the British asserted that since the land in question was held under
customary tenure, it was free or not owned. The court in this case asserts that occupancy is
important as a status indicator for those claiming rights over land. It could not therefore be said
that the land in question was free and not owned (in English terms) if it was occupied by the
aboriginal Australians who had utilized it for so long, dating back before the coming of the
British.
lln Mabo v. Queensktnd (No.2)t" it could not be said that the aboriginal communities
of Australia that lived on their ancestral land for time immemorial had lost a right to claim it
when the crown/sovereign conquered the territory. This is so because through occupation, the
aboriginal community had asserted its members' exclusive right to occupy and use the land.
Their claim, by that reason becomes an encumbrance on the title claimed by the Crown, after
the territory is acquired. In this case, the nature of "proprietary right" as known to English
Law could not cover claims to land known to Mabo customary law. The court in a pragmatic
way came out of the box and found value equivalents in Mabo community's custom to
conclude they had a claim to land. The Mabo case bases on occupation and use to establish a
proprietary right in the land tlrat outlasts occupation of territory by the Crown.
Similarly, in Amodu T'ejan v. Secretary of Southern Nigeria,rrthe rights that were
ceded to the British Crown were those in the King (Oba) and would not in any way affect the
usufructuary right of his pcople to land. Private property rights were not affected by this
cessation. 'fhe British Crown would therefore only claim a right to administer what was not
tampered with in terms of property rights; it would not claim proprietary ownerslrip of tlre
land.
Just like in earlier cases, the above ruling points to the fact that acquisition of
territory by state through coloniz-ation does not put an end to existing customary rights in
property - they survived the establishrnent of sovereignty.'' The sovereign, could later by
legislation confirm such rights or interest claimed on the basis of custom.r3Further, a chief
cannot claim a fee simple in customary land, but only a right to hold as trustees or caretakers
of such land for the whole community. "Ownership" per se is in the whole community that
has the benefit to share in the proceeds of salc or lease of the land if at all.lta

Question: What would bc the likely implication of a conclusion that the land in those areas
colonized by the British was Terro Nullius?

'No 2; 1992HCA23;1992175 ct.R l.

'oMubo v. Queensland (No 2\ 1992 t{CA 23; 1992 175 Ct,R l.
";tezt1 z AC399.
''rr ELIAS, supra note 692, at224.
On this, see the case of Attorney Ceneral of Soutlrern Nigeria v. LIolt, t l9l 5l AC 599.
lu
Block paragraph lifted verbatim frorn; Rose Nakayi, T'he Dynamics of Cuslomary Land Rights and
'li"unsitional Justice: The case of Acholi Sub-region o/ Northern Uganda, Center for Civil and Human
R , Univ of Notre Dame- I 9-14'(vteY?91?) U al 239-240
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I

I'he Doctrine of listates

Tenure in land is usually valid for duration_qfulpqe, and this is technically an estate in
Iand. In principle, the land was owned by the king, and therefore one could only get a right over
land for a period of time. This also points to the fact that English law distinguished between
ownershin of land the phvsical. and use of the land or eniovment of rishts the land. with the
ability to exclude all other potential concurrent claimants of rights to that particular land. This
cannot be better put than it was in an old but very important case of Walsingham (f573) 2
Plowd.574 at 555

...the land itself is one thing, and the estate in the land is another thing, for an estate in
the land is a time in the land, or land for a time, and there arc diversities of estates which
are no more than diversities ol'time.

it is clear that one of the first questions that ought to be addressed is for
F-rom the above,
how long is a claim to land valid? The length/duration of_estates is the most important
distinguishing feature between and among them.

Estates in land can be categorized as freehold or leaseholds. The leasehold estates are less than
the lreehold estates in time.

I;reehold estates:
'fhese are mainly three: -l'he
F'ee simple, Fee tail and Life estate. length of these is based on the
period of time the estate is supposed to last, or the longevitl. or duration of I of the estate
holder.
Feesimple: It is the longest estate at Common Law, which is as good as ownership of
land. (Scc ('heshirc and Burn's Modern [,aw of Real Property pages 149-150 for details).
Bricl1y, this estate continues in existence as long as there are heirs to the holder (from a wide
range o1'relatives) that can inherit it. It can only come to an end if the holder dies intestate;
without a relative to inherit it. (Was it possible for the estate to last in perpetuity??)
Althoughin English law ownership of the land remained in the Crown, a grant of rights to
use land under a fee simple estate would in practical terms be equivalent to grant of ownership.
(Why?). In the Walsingham's case (supra), the fee simple estate was referred to "a tirne in the
land rvithoul end."'fhis in principle does not displace the Crown's radical title to land on which
there is a f'ce simple cstatc.
lail: It is ar.r cstate that lasts for as long as thc lineal descendants of the grantee live.
l"ee
It is an equitable interest that exists behind a trust. It is not possible to create a fee tail any
more.Walsingham's case (supra) describes this as "time in the land for as long as the grantee
has issues of his body."

l.i/b estate."l'his is terminated on the death of the original grantee no matter whether it
was transl-erred to someone else. f'or example, if the grantee of a life created a lesser estate for

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I

another person (a life tenant)" the life tenant's estate will terminate on the death of the grantee of
the original life estate" This kind of estate cannot be inherited.

(Relevance of the above to [,iganda??).

Leasehold estates:

These are estates less than freehold that allow for separation between ownership of land and use
.-
of land by virtue of an interest in it. )
Street vs. Mountford [985] AC 824, defines a lease as an agreement in which one person
grants to another "exclusive posscssiorr or occupation of land for a (duration of time) in return
for a periodic payment in monctary tcrms.
l,eases are interests in land that are measured or are valid for an ascertained/ascertainable
period of time. They could be fixed term leases, periodic leases or tenancies at will. The fixed
time is usually for a clearly ascertained period of time and will expire at the end of that period,
say 45 years. Periodic leases are for a certain period of time and depending on the agreement of
the parties automatically renew at the expiration of that period. Finally tenancies at will are
terminable by any party to thcm at any time.
(llow do you distinguish a lcase fiom a License?)

Licenses are personal rights claimed on the basis of an agreement with the owner of land
and are personally enforceable against the owner or the giver of the license. On the other hand,
leases are interests in land.
'l'his is one of
the fundamental but problematic distinctions between
thesetwo, details of which will be saved lorthe second semesterLand Transactions course.

Doctrine of tenures and cstates; Relevance to lJganda

'l his is mainly in a historical context. When
Uganda became a British protectorate, much
of the land in the country was by law vested in the Crown in England. For example, the Crown
Lands (Declaration) Ordinance o{ 1922 (Now repealed, Laws of Uganda Cap I l8) provided that
all land and any rights in it were vested in the Protectorate and "... shall be presumed to be the
property of the Crown unless they have been or are therefore recognized by the government, by
document to be the property of a person or until the contrary thereof be proved."
'l'he abovc means l.hat any land not held on the basis of registered title (much
of which
was in central Uganda) was deemcd to be Crown land. 'fherefore, allodial title to this land vested
in the Crown in England and the prcsumption is that English concepts would be applicable to this
land. It would regulate the relationship between the Crown and those that held the land. This,
however remains something of academic more than practical importance; this law did not go a
long way to affect how land was held and for how long it was held by the locals.

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t.
I
J
CREATION OF EQUITABLE INTERESTS

Equitableinterests may be formally created by written agreement of the parties. More

often they result from operation of law, where the parties enter into a specifically enforceable
contract to convey or create a legal interest in land but fail to fulfil the legal requirements for
creation of that interest. The resulting interest in such cases is equitable. This is more so due to
the fact that: "equity looks on that as done which ought to be done." The classical exposition of
this rule is the case of Lysaght vs. Edwards (1876) 2 Ch. D. 499. In that case, E entired into a
written contract to sell certain land to the plaintiff. On signing the contract, the plaintiff made a
down payment and promised to pay the balance upon execution of a deed of conveyance. E died
before he signed the deed. The plaintiff sued the executor of E's estate for an order of specific
performance, and the court obliged. It ordered the executors to convey the legal title to the
plaintiff as promised by E upon payment of the purchase price. Sir George Jessel MR, in
delivering his judgernent said:

"The moment you have a valid contract for sale the vendor becomes in equity a trustee
for the purchaser ofthe estate sold, and the beneficial ownership passes to ihe purchaser,
the vendor having a right to the purchase- money, a charge or lien on the estate until the
purchase- money is paid, in the absence of express contract as to the time of delivering
possession"

(Read Katarikawe vs. Katwiramu)

The principle inlysaght us. Edwards was followed in the case of Serunjogi ys. Katabira CS
No. 547 of 1987 (unreported) (1988-90 HCB 148). In that case, by.i memorandum of
agreement, which was duly signed by both parties, the defendant sold to the plaintiff a piece of
land and a house situated thereon. The plaintiff paid the full purchase price, but the defendant
failed or neglected to transfer title and deliver vacant posr.riion to the plaintiff. The plaintiff
sued for spe_cific performance of the agreement. Byamugisha J, aft1'5 citing the above-mentioned
principle in Lysaght vs. Edwards,and held that;-

"I am satisfied on the facts and circumstances before me that this is a case, in
which the court will exercise its discretionary powers and grant the remedy of
specific performance".

She ordered the defendant to deliver up vacant possession of the suit property to the plaintiff
within thirty days from the date of the judgement

PRIORITY OF'INTERESTS IN LAND

One of the central issues with which land law has to grapple with is the determination of
priorities between competing interests in land. The need to do this arises where, for example;
a
person purchases land and there are third parties who claim pre-existing interests in it.
It
therefore becomes important to determine if the purchaser is to be bound by such pre-existing
third party interests.

Dr. R. Nokayl, DtottFLl-2ll, closstoom lnstructlon Moteilol-Do not cite I Mok. Low sch,
 I

t
L

For example, imagine a situation where Musais the legal owner of a house. I{e granted Nuru a
three-year lease of the house so that she could live theie while she
studies at a university. Owen
enjoys a right of way on Musa's land. He_accesses his garage through
a drive way on Musa,s
land' Paul, who owns land at the back of the house, enjJys the benefit of a restrictive
covenant
entered by Musaagreeing that he will not use his land for business prrpo*
Musamay have
declared himself a trustee of a half share of the house in favour of his giilfriendSharon.
ln this
situation Nuru,Owen, Paul and Sharon all have proprietary interests in
the house owned by
Musa. Their interests are valid and enforceable against Musa. What happens if
he decides to sell
the house to Clare? When the house is transferr.d to Clu..'s name, is
itre still bound to observe
their interests?
This will depend upon whether their interests have priority over the interest
that she has
acquired in the house. If they do, she will be bound by thern. If not, she will
take the land free
from them. The same question would arise if, for eiample, instead of selling the housed
to
Clare, Musamerely transferred it to her as a gift, or grantidhis bank a mortgage over
the house
to secure a loan. The question is; which of these intereits should take preced"i." or.,
the other?
The answer will depend on how the interests are ranked against eaci other in accordance
with
certain prescribed rules.

The rules for ranking competing interests over the same land envisage four possible
situations:
i. claim to legal right followed by claim to legal right. (Nuru a ct*.j
ii, Claim to equitable right followed by legal right
iii. Claim to legal right followed by equitable right
iv. Two competing equitable claims

PriorityRules Governing Legal Rights

Historically, legal rights were simply indefeasible. This was expressed by the maxim that
"legal rights bind the yo1ld." A legal right would always gain priority or., any iubsequent
rights
acquired in the landwhether Iegal or equitable. In the examplis cited above, if M,r.u
owned the
fee simple of a house and had granted Nuru a legal lease foi three y"*, *d then
sold the house
to Clare, Clare would be bound by Nuru's lease which is a legal interest acquired earlier than
Clare's interest.
Legal interests were not, therefore defeated by changes in the ownership of the land or by
other subsequently acquired interests. If Musa had granted a legal mortgage to tris bank it woulO
takethe security(house) subject to Nuru's prior legal lease and wouldio-t gain priority over it.
Whether the person acquiring the subsequent interest in the house knew iUoui the subsisting
legal interest was irrelevant. He would be bound by it even if he had no idea that it existed.

Equitable interests followed by legal interest

The Doctrine of Notice

As a general rule, a legal claim prevails over an earlier created equitable interest unless
there are equitable grounds for its postponement. Equitable interests were not so durable
as legal
interest and did not bind the world automatically. As between themselves, priority to
equita[le

Dr. R. Nokoyi, DrcltFLL-2L[o ctossroom rnstruction Moteilal-Do not cite I Mok. Law Sch,
interests was governed by the order of their creation, so that pre-existing
equitable interests took
priority over those, which were created subsequent to them. In relation tio fegut interestshowever,
it was not necessarily the case that a pre-exiiting equitable interest wouldlave priority over
a
subsequently created legal interest" [n a sense, legal interests had the ability
to trump pre-existing
equitable interests with some with exceptions.
One of these arises in the application of the doctrine of notice According
to this,
equitable interests took priority over all subsequently created interests except
those of a person
who had purchased a legal estate in the land, bona fides, for v aluable consideration
without
notice of the existence of the equitable interest. The element of notice means
that if a purchaser
knew, or should have known about the existence of the equitable interest, he
cannot acquire his
legal estate free from that equitable interest. Such a le gal interest holder is presumed
to have
known what he was gettingl an already encumbered estate. In the example above,
enjoyed only an equitable lease, then Clare would take free from it ONLY
if Nuru
IF she was a bona
fide purchaser of a legal estate, for value without notice of Nuru's interest.
The term "purchase" technically denotes a person to whom land is expressl
y transferred
by action of the parties rather than by operation of law. Thus a buyer, donee (by will
or inrer
vivos), mortgagee or lessee is a purchaser (Caunce vs Carurce (1969) 1
ALL ER.7Z2). But a
person who acquires land by intestate succession is not a purchaser
because he acquires title by
operation of law (i.e. have to apply to court for letters of administration
& goes through legal
processes to get a court declaration as part ofthe process).
The expression "value" means that the purchaser must have given suffrcient
consideration (note sufficient verses adequate tn contract law) in money
or money's worth such
as some other land or provision of services in retum for land. Promise
of marriage is also
considered as valuable consideration (A- G vs. J acobs Smith (1895)
2 eB 34 A). "Bona fide"
implies that the purchaser must act in good faith or honestly
The purchaser must not have had notice of a rival equitable claim
to the land at the time
of purchase. it
notice. Constructive notice arises when knowledge of facts is imputed
on the purchaser. These
are facts which the purchaser would have got to know had he
acted prudently. It may arise in
instances where the purchaser deliberately or carelessly abstained
fro m making inquiries that a
prudent purchaser would have made m the circumstances In
Uganda Posts and
Telecommunications & Anor vs. AKM L utaaya and Anor (1995)
unreported, the respondent
leased a large piece of land from the Mailo owner, to the
second respondent. U nknown to him,
part of the land was occupied by the first appellant with
the consent of the Mailo owner. The
respondent successfully sued the first appellant in the High
court for trespass. On appeal, the
decision was reversed. In delivering the judgment of the Court
Karokora JSC said that:
"The law is very clear that if a person purchases an estate which
he knows to be in the
occupation of another other than the vendor, he is bound
by all the equities which ttre
parties in such occupation may have in the Iand....,,

Karokora JSC, cited several English cases to support the proposition

that occupation of land bya
third party constitutes constructive notice to the purchaser of any
equitable rights that the
occupier might have in the land.

(See.,Pilcherys. Rawlins (1871) 7 Ch.250)

Ot. n, Nokoyl, DrofiFLl-2llo Closstoom tnstructlon MoteilobDo not cttc Mak.

I Low Sch.
Legal interest created prior to equitable interest

In certain circumstances a prior legal interest may be displaced by a subsequent equitable

claim under the principle of estoppel. According to this principle, a holder of a prior legal
interest may be estopped from denying that the vendor had title to convey to a subsequent
purchaser. For example, the principle would be invoked whereNuruconspired with Musa in order
to defraud a subsequent purchaser such as Claire, or Nuru may be guilty of gross negligence that
enabled Musa to enter into the transaction with Claire to the latter's detriment.
In Walker vs. Linom (1907) 2 Ch. 104 a ptrchaser of a legal estate left the title deeds
with the vendor after he had paid the purchase price. The vendor deposited the title deed with the
defendant as security for a loan, thereby creating an equitable mortgage. It was held that leaving
the title deeds with the vendor was an act of gross negligence, which enabled the vendor to
defraud the defendant. In the circumstances. it was held that the nurchase's estate must be
nnctnnned fn thp rlpfpnrlanftc enrritqhl mnrfcacp thnrroh if rrros n-aatarl later Note however that
mere carelessness is not sufficient ground to displace an earlier legal interest (Northern counties
of England Fire insurance Co. ,t. Wttipp (1884) 26 Ch. D. 4S2).

Competing Equitable claims

In a situation where all rival claims are equitable interests, the rule, is that where equities
are equal in all respects, priority of time gives a better equity (Rice vs. Rice(1854). In other
words, it is "first in time first in righf'.
Equities are unequal where a holder of a subsequent equitable interest was guilty of fraud
or negligent conduct that enabled the vendor to deceive the latter that there were no other
equitable claims to the land. In Rice ys. Rice the plaintiff sold land to P and he signed a
document indicating that P had paid him the full purchase price. As it turned out there was an
outstanding amount of money. Later, P. created an equitable mortgage in favour of TP. When P
defaulted in paying the mortgage debt, the land was sold but the proceeds were not enough to
pay the mortgage debt and the balance of the purchase price to the plaintiff.
The plaintiff claimed that he had priority over the proceeds since his equitable lien. (An
unpaid sellei has a lien over the land sold for the balance of the purchase price, which constitutes
an equitable interest) was earlier than the equitable mortgage. The court held that thelrs/ in time
rule applies only where equities are equal. In determining the merits of each case the court will
look af all circumstances and the conduct of the parties. In this case by signing the receipt
acknowledging full payment, the plaintiff armed the purchaser with false colours, which enabled
him to pr"r.nihi*riti ur owner of an unencumbered fee simple. Therefore, the plaintiff s first-
in- time, equity had to be displaced.

It should be noted that in determining priorities between competing equitable interests the
doctrine of notice does not apply. Hence, the fact that the subsequent claimant had no notice of
an earlier equitable interest is of no consequence (Rice vs. fuce)

E Dr. R. Nokoyt, DroftFLL-277l Clossfoom tnstructlon Mdteilol-Do not cite I Mok. Low sch.