THE LAND TENURE SYSTEM

Under the 1995 Constitution, Article 237 clause 1 vests all land in the citizens
Uganda and it provides for four types of land tenure
1. Mailo land
2. Freehold Tenure
3. Leasehold Tenure
4. Customary Tenure

MAILO HOLD TENURE

The genesis of this system can be traced in the 1900 Buganda Agreement. The
British colonial Government divided land between the British administration
and the Buganda kingdom (Mailo land).

The subdivisions given to Buganda kingdom were made in sq. miles thus the
dialect Mailo which was later used to describe a new breed of land tenure.

Section 3(4) of the land Act provides for Mailo tenure as a form of tenure
deriving its legality from the constitution and its incidents from written law.

It entails ownership of land in perpetuity (unlimited period).

It further entails the separation of ownership of land from ownership of
developments on land made by lawful and bonafide occupants.

Section 29 (1) of the Land Act Cap 227 defines a Lawful occupant to mean;
1. A person occupying land by virtue of repealed
i. Busuulu and Envujo Law of 1928
ii. Toro landlord and tenant Law of 1937
iii. Ankole Landlord and Tenant Law of 1937
2. A person who entered the land with the consent of the registered owner,
and includes the purchaser; or

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 3. A person who had occupied land as a customary tenant but whose
tenancy was not disclosed or compensated for by the registered owner at
the time of acquiring the leasehold certificate of title.

Under section 29(2) of the Land Act, Bonafide occupant means a person who
before the coming into force of the Constitution-

a) Had occupied and utilized or developed any land unchallenged by the

registered owner or agent of the registered owner for twelve years or
more.
b) Had been settled on land by government or an agent of Government,
which may include local authorities.

Mailo tenure, like freehold, entails holding registered land in perpetuity.

Subject to the customary and statutory rights of lawful and bonafide occupants
of the land, a Mailo owner is entitled to enjoy all powers of ownership of
freehold. i.e. Rights to use any and all produce from the land and entering into
any transaction in connection with the land like selling it off, leasing it,
mortgaging it etc.

Initially Mailo land was regulated by the 1928 Busuulu and Envujjo law and
the rights of occupants on Mailo land were guaranteed and they could not be
evicted as long as they paid the annual ground rent.

LEASE HOLD TENURE

This is provided for under section 3(5) of the land Act. It says that;
“A leasehold tenure is a form of tenure created either by contract or by
operation of law”.
Under this arrangement the lessor grants to the lessee right to exclusive
possession of the land usually though not necessarily for a specified period of
time, usually but not necessary in return for a payment known as rent.
A lease can be created over Mailo land or freehold land
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The lessee acquires a leasehold interest whereas the lessor is left with the
reversionary interest over land

FREEHOLD TENURE
Section 3(2) of the land Act Cap. 227 provides that freehold tenure is a form of
tenure deriving its legality from the constitution and its incidents from written
law.
It involves the holding of registered land in perpetuity or for a period less than
perpetuity which may be subject to a fixed condition.

It enables the holder to enjoy his land by developing it for lawful purpose. They
can utilize the produce from the land, they can sell their land, they can lease it,
mortgage, pledge it, subdivide and create different interests to the desired
people, they can dispose of their land to any person by will if they so wish.

N.B: A freehold title can be created subject to conditions, restriction or

limitations which can be negative or positive.
A freehold estate granted in perpetuity is sometimes referred to as a fee simple
absolute whereas a freehold estate granted and is less than perpetuity i.e.
which is subject to a fixed condition is known as a conditional fee simple
estate. A condition may materialize for example where Juma grants land to
Janat on condition that she puts up a tree storeyed structure. However Janat
manages to put up a small hut or uniport. To that extent the condition is not
fulfilled and Janat cannot talk of a grant.

CUSTOMARY TENURE
This is ownership of land according to the customs and practices of a
particular community.
This system of ownership is limited by the customary rules that are applicable
to a particular class of people.

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This is provided for under section 3(1) of the land Act which provides that
customary tenure is governed by rules that are generally accepted as binding
and authoritative by the class of persons to which it relates.
It is applicable to any person acquiring land in that area in accordance with
those rules.

It applies to local customary regulation and management to individual and

household ownership, use and occupation of land, providing for communal
ownership and use of land in which parcels of land may be recognized as
subdivisions belonging to a person, family or traditional institution and which
is owned in perpetuity.

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TENANT BY OCCUPANCY

The land Act deems a bonafide and lawful occupant of land to be a tenant by
occupancy of the registered owner of the land.

According to section 31(2) of the Land Act, a tenant by occupancy holds the
land subject to conditions as are stated in the Act or may be prescribed by the
minister. As long as the tenant by occupancy complies with those conditions,
he/she enjoys a secure tenure.

Rent payment.

In light of section 31(3) of the land Act, a tenant by occupancy is required to

pay to the registered owner of the land annual nominal ground rent as
determined by the relevant district land board. a tenant or land owner
aggrieved by the board’s determination is entitled to appeal against the
decision to the land tribunal, which may reverse, vary or confirm the decision.

However the Land Act prescribes that no tenant by occupancy shall be required
to pay ground rent in excess of one thousand shillings per annum irrespective
of the size of the land or its location.

The main purpose of rent payment is not to provide income to the Mailo owner
but rather, it functions as an acknowledgement by the Kibanja holder of the
Mailo owner’s superior title. The Act further provides that the ground rent may
be revised every after five years by regulations made under the Act.

Under section 31(6) of the Land Act, where the tenant by occupancy fails to pay
the approved ground rent for a period exceeding two years, the registered
owner is entitled to serve on him/her notice to show cause why the tenancy
should not be terminated. The copy should be in a prescribed form and a copy
forwarded to the relevant committee. If the tenant disputes the notice, he/she
may refer the matter to the land tribunal within a period of six months. If the
tenant does not challenge the notice within the prescribed time or pay the

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outstanding rent within one year from the date of the notice, then the land
owner may apply to the land tribunal for an order to terminate the tenancy for
nonpayment of rent.

Section 32 of the Land Act prescribes the powers and matters to be taken into
account by the tribunal when determining application to terminate tenancy for
nonpayment of rent. The tribunal is required to ascertain whether the
applicant is the registered owner of the subject lad or his/her duly authorised
agent. The tribunal must also ascertain that the registered owner has not been
in breach of tenant’s rights. In particular, the registered owner must not have
interfered with the tenant’s quiet enjoyment of the land.

Moreover, the tribunal must also examine the circumstances surrounding the
tenant’s failure to pay. It should be established whether the tenant has made
efforts to pay, whether the reason for failure to pay is it lack of money or
he/she has money but just refuses to pay e.t.c. in other words the tribunal
takes into account all relevant circumstances that help it to come to a fair
decision.

Right of a tenant by occupancy to enter into transactions.

The rights of tenant by occupancy constitute a proprietary interest on land.

Just like other proprietary interests, a tenancy by occupancy is inheritable and
subject to provisions of the Act, it could be sold, sublet, pledged, subdivide or
take any other lawful transaction in respect of the occupancy. However, the
power for the tenant to deal with their right of occupancy is subject to the
approval of the registered owner of the land.

Section 34(3) of the Land Act states that prior to entering into any deals
affecting the land the tenant must apply to the land owner for his/her consent
to the transaction. The land owner has six weeks from the date of receipt of the
application to respond. Where the land owner refuses to respond within six
weeks or imposes unreasonable conditions, the tenant can appeal to the land

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tribunal. Where the land owner gives his/her consent, it must be
communicated to the tenant in a prescribed form duly signed by the land
owner.

It is submitted that where the tenant by occupancy purports to transfer

his/her land without prior consent or despite the refusal of the registered
owner to consent to the transaction, the land owner is entitled to treat the
purported transferee as a trespasser and evict him/her. Further, the tenancy is
considered terminated and the tenant loses his/her interest in land.

The Land Act stipulates circumstances under which tenancy by occupancy

terminates. As already discussed, a tenancy by occupancy terminates for
nonpayment of rent. In addition, we shall presently see that it terminates
where the tenant voluntarily abandons the land or where the tenant transfers
ownership without consent the registered proprietor.

Accordingly, it is submitted that where the tenant purports to transfer his/her

occupancy without consent of the land.

Option to purchase

Section 35(1 and 2) of the Land Act gives the tenant by occupancy and the land
owner the statutory right of first refusal to purchase each other’s interest.

Section 35(1) provides that where a tenant by occupancy wishes to assign his/
her right of occupancy, he/she must give the first option of purchasing it to the
land owner. Section 35(2) gives a tenant by occupancy a similar right where the
land owner wishes to wishes to assign the land. Note that the provision only
applies to willing seller willing buyer basis. The object of the provision is to give
either party the first opportunity to negotiate to purchase where one of them
decides to sell.

On receiving the terms of the offer, a party is given three months within which
to respond his/her acceptance. If negotiations run for three months without

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reaching an agreement, a matter is referred to a mediator for three months.
Where parties fail to agree, any party willing to sell the interest can dispose it of
as he/she thinks fit.

Subdivision and or co-ownership between tenant and the registered owner

The registered owner and the tenant by occupancy may by mutual agreement
subdivide the land over which the tenant has a right of occupancy so that each
acquires exclusive ownership of a portion of land. The provision envisages a
situation for example, where a tenant may wish to relinquish part of his/her
plot to the land owner in exchange for exclusive ownership over the part
retained.

Instead of subdivision, the tenant and the land owner may agree to become co-
owners of the land either in joint tenancy or tenancy in common. Where they
agree to become tenants in common, they should stipulate in their agreements
the shares of each party and any other terms of their agreement.

Where parties agree to subdivide land or become co-owners, they must notify
the registrar of titles accordingly. Upon satisfaction that parties have complied
with statutory requirements, the registrar must make appropriate entries in
the registry and issue each party with a new certificate of title.

Application for certificate of occupancy

A tenant by occupancy may acquire any of the registrable interests in respect

of the land he/she occupies including freehold, Mailo, lease and sublease. A
tenant by occupancy may apply for a certificate of occupancy in respect of
his/her plot. The certificate of occupancy is a registrable interest under the
registration of titles Act.

Section 38(2) states that a tenant by occupancy who wishes to acquire a

registrable interest may apply to the registered owner, who may cause such
interest to be granted upon such terms and conditions as may be agreed upon

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by parties within three months. Where parties fail to agree, the matter is
referred to a mediator for three months and his/her failure to help parties
agree on the transaction shall not deter parties from continuing with
negotiations.

Upon presentation of requisite consent, the recorder must issue certificate of

occupancy to the tenant. There after the recorder is required to notify the
registrar of titles of the issue if a certificate. The registrar is required to record
the certificate as an encumbrance on the certificate title of the land owner.

The effect of endorsing the certificate of occupancy on the land owner’s

certificate is that the tenant’s interest in the land will bind any person who
purchases or deals in that land. In other words, the land rights of the holder f a
certificate of occupancy would constitute an exception to indefeasibility of title
under the Registration of Titles Act.

Termination of tenancy

As already stated, a tenancy by occupancy may be terminated where the tenant

defaults in payment of rent. In addition, section 37 of the Land Act provides
that a tenancy by occupancy may be terminated where the tenant voluntarily
abandons his/her occupancy for three years or more or is ordered to vacate the
land by statutory authority.

Conversion of tenancy by occupancy to a registrable interest

Section 38(1) of the Land Act empowers a tenant by occupancy to convert

his/her right of occupancy to any one of the following registrable interests:
Mailo, freehold, leasehold or sublease.

The power to convert tenancy is subject to approval of the registered owner of

the land. Section 38(2) provides that a tenant by occupancy may apply to the
registered owner for permission to convert his/her tenancy.

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The land owner may grant his/her consent with or without any conditions or
reject the application outright or invite the tenant to enter into negotiations.

Unlike the application for a certificate of occupancy, where the tenant could
appeal to the tribunal against the landlord’s refusal to give consent, in this
case, there is no such right. It would seem it is up to the parties to reach an
agreement.

Section 38(5 and 6) of the Land Act state that where parties have agreed to
negotiate, either of them could invoke the assistance of a mediator to bring
them to a settlement. But if a period of three months of negotiations the parties
fail to reach an agreement, the mediator shall make a report to that effect and
he/she may withdraw from the negotiation. However, the parties, if they so
agree, may continue to negotiate.

ADVERSE POSESSION AND LIMITATION.

At common law, possession of land is the root of title. A person who is in

possession has a title which is good against the whole world except a person
with a better claim. If any person, who is not the owner or his/her duly
authorized agent, interferes with the land, the possessor may bring an action
in trespass against him or her.

The fact that the person in possession is a squatter is irrelevant, for as far as
the common law is concerned a wrongful possession is effective against
everyone else except one with a better title. So long as it is enjoyed, possession
gives rise to rights including the right to defend possession against third
parties or to sell the interest.

Power to evict squatters

The risk for a person in wrongful possession is that the true owner may at any
time evict him/her without prior notice or compensation for the improvements

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on the land. However the power of the land owner to evict a squatter is limited
by the land Act. We have already seen that under the land Act, the land owner
is prohibited from evicting a person who qualifies as a bonafide occupant
except in very limited circumstances described in the Act.

Limitation period.

The limitation Act limits the period within which an action can be brought to
recover land. Beyond that time, an action is statute barred.Section 6 of the
limitation Act provides that no person shall make an entry or bring an action to
recover land after the expiration of twelve years from the date the cause of
Action accrued to him/her or a person through whom he/she claims.

The right of action is deemed to accrue to a landowner when a stranger enters

into adverse possession of his or her land. This may happen by a stranger
dispossessing the rightful owner or by entering into possession following
abandonment of possession or death of the rightful owner. Either way
possession must be acquired without permission or license of the owner.

Thus where a person occupies land as a servant or caretaker of the land owner,
limitation time does not run in that person’s favour irrespective of the period
he/she remains in possession. Similarly, time does not run in favour of a
tenant for the duration of a lease.

However possession gained by permission becomes adverse possession if a

person remains in possession after permission is withdrawn or expires. For
example, a tenant becomes an adverse possessor if after the lease expires
he/she remains in possession without the land lord’s consent.

Also if a person collects rent under a lease wrongfully claiming ownership of

the land he/she is deemed to be in adverse possession of the subject land from
the date rent is paid to him or her.

Proving adverse possession.

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In absence of contrary evidence, the owner of the land with paper title is
deemed to be in possession of the land. Hence, where a person without
documentary title claims ownership of land on the basis of adverse possession,
he/she must prove to have both factual possession and the intention to possess.

Factual possession entails exercise of sufficient physical control over the entire
land. This can be established by proof for example, of use of the land for
accommodation or cultivation or generally using the land as an owner might be
expected to deal with it. Whether a particular act constitute sufficient control
varies depending on the nature of the land, its size and the manner in which
land of that nature is normally enjoyed.

Factual possession must be accompanied with the intention to possess the

land with the exclusion of everyone else including the landowner. The intention
to exclude must be plain for all to see. Where there are other people using the
land, it must be apparent that they are doing so with his/her permission.

Just like factual possession, the degree of the requisite intention varies
depending on the circumstances of each case. However, it is not required to
prove that the squatter consciously intended to exclude the true owner. Rather,
what is required is proof of intention to exercise exclusive control. For example,
a person who encloses land, which is adjacent to his or her plot under a
mistaken belief that it is part of his/her land satisfies this requirement even
though he/she had no conscious intention to exclude the true owner.

Running of time

The limitation time begins to run against the owner from the time the right of
entry or the right to bring an action to recover the land first accrues to him/her
or to the person through whom he or she claims.

The limitation Act prescribes specific rules for determining when the right of
action is deemed to accrue in various circumstances. Generally, time starts to
run against the true owner from the day a squatter enters into adverse

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possession. The Act does not specifically state whether the land owner must
have knowledge of the adverse possession before time starts to run against
him/her.

However, judicial authorities in Uganda suggest that time does not start to run
against a landowner until he/she become aware of the intrusion. For example
in Musoke Bafilawala V Jogga (1976) HCB 26 the plaintiff in 1960 went
abroad and lived there for many years. He left the defendant in charge of his
house with instructions to collect rent on the plaintiff’s account. Subsequently,
he stopped sending money that he collected to the plaintiff and, without the
plaintiff’s knowledge carried out structural improvements to the land.

The plaintiff found out only when he returned from overseas. In an action for
eviction the defendant pleaded that the action was time barred because he had
been in adverse possession for the requisite limitation period. The issue was
whether the time started to run against the plaintiff from the date the
defendant asserted ownership of the house or from when the plaintiff became
aware of it on his return to Uganda. Manyindo J held that time began to run at
the later date i.e. after returning to Uganda.

Sekandi J also expressed a similar view in Nambalu Kintu V Efulaimu Kimira

(1975) HCB 221 in that case, the defendant originally entered the land with
consent of the land owner. When the plaintiff sued for possession the
defendant sought to argue that the action was time barred as he had been in
possession of the land for more than twelve years. The issue was, when did the
cause of action accrue to the plaintiff for the purposes of determining the
limitation period? His Honour held that the cause of action did not accrue until
the plaintiff discovered the challenge to his interest.

It is submitted that legal position is different where the person entered the land
as a trespasser. In that case, as long as the trespasser’s occupation is open
and not clandestine, the limitation time will immediately start running against
the owner whether or not he/she is aware of the intrusion. A land owner who

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for more than twelve years is unaware of the intruders on his or her land does
not deserve legal protection.

Stopping time running

The possession of a squatter must be continuous for a total period of twelve

years or any extended period that may be required by the operation of this Act.
If before the limitation time runs out the squatter abandons possession the
land ceases to be in adverse possession and time stops running against the
owner.

Where subsequently the squatter or another intruder re-enters a fresh

limitation period will begin to run calculated from the date of re-entry.
However, where a squatter does not abandon possession but instead purports
to transfer the land to another person, the latter may add the grantor’s period
of adverse possession to his/her own to makeup the necessary limitation
period.

The owner can stop time running if before the period expires he/she brings an
action of ejectment or asserts ownership of the land under possession. The
assertion of ownership must be accompanied by effective and physical
resumption of possession of the land. once the owner resumes the possession
of the land, it effectively interrupts the running of the limitation period even if
he or she remains in possession for a brief period.

The limitation time also stops running when a squatter acknowledges the
owner’s right to the land. section 23(1) of the limitation Act provides that
whenever a squatter in a sighed written document addressed to the owner
acknowledges the superiority of the owner’s title to the land, or make any
payment to the owner on account of that title, the limitation time begins to run
afresh as from that date.

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Consequences of lapse of time

At the expiration of the limitation period, the dispossessed owner loses his/her
right to re-enter or sue to recover land. Moreover unless the land is registered
under the registration of titles Act, it is deemed to be extinguished.

If the dispossessed owner holds his/her title under customary tenure or

tenancy by occupancy, upon expiration of the limitation period his/her title is
automatically extinguished by operation of the limitation Act. Legally the
squatter does not succeed to the title of the person he/she dispossessed.
Rather, he/she is left in occupation of the land with a title gained by
possession resting on the infirmity of the right of others to eject him.

The title so acquired by the squatter is freehold in fee simple estate because the
largest estate known is presumed unless a lessor estate is proved. The
presumption could be rebutted for example where a squatter dispossess a
lessee. Upon expiration of the lease the landlord could re-enter since the
limitation period does not run against a landlord until the lease expires.

It is submitted that where a squatter dispossesses an owner of land under

customary tenure, the presumption is that the squatter’s title is a freehold
rather than customary title. This is because the title acquired by a squatter is
not the same as that of the person dispossessed.

With respect to land registered under the Registration of Tiles Act, section 30 of
the limitation Act provides that although upon expiration of limitation period a
registered proprietor is barred from evicting or suing for recovery of land, the
proprietor’s title is not thereby extinguished. However, the section deems the
proprietor to hold his or her title for the benefit of the person who dispossessed
him/her.

The Registration of titles Act makes provision (section 78 of the RTA) for the
adverse possessor to make an application to the registrar of titles for an order
vesting in him or her estate in fee simple or other estate claimed. Upon

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satisfaction that the applicant has complied with the appropriate procedure
and with all the legal requirements, the registrar may grant the order sought
and cause the land to be registered in the name of the applicant. The process is
completed when the registrar cancels the existing title (and any claims
registered against it) and issues a fresh certificate of title to the applicant.

Where a person has been in adverse possession for the requisite statutory
period, it is submitted that even if his or her title were unregistered it would
defeat that of the proprietor he/she dispossessed. The reason is that under
section 30 of the limitation Act, after expiration of the limitation time the
proprietor is not only precluded from evicting the squatter but also he/she is
deemed to hold title on the squatter’s behalf.

Prescription

Prescription is primarily a common law doctrine extended by statute by which

an intruder after a long period of uninterrupted use and occupation may
acquire a proprietary interest over another’s land.

Unlike adverse possession, the doctrine of prescription is confined to acquisition

of interests in land that do not carry a right to exclusive possession.

Acquiescence

The doctrine of acquiescence or laches entails unreasonable delay in enforcing

or asserting a legal right. It is based on the maxim that equity aids the vigilant
and not the indolent. Thus where the land owner knows that his or her rights
are being violated and he/she chooses to sit idly by, he or she is taken to have
acquiesced in the violation and will be estopped from arguing otherwise.

Unlike adverse possession, the doctrine of acquiescence can only be used as a

defence against an action and not as a basis for establishment of a cause of
action. But to raise this as a defence two things must be satisfied; firstthe

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defendant must have dealt with the land under an honest but mistaken
impression that it is his/her land. Secondly the true owner must have been
aware of the defendant’s activities on his/her land and chose to do nothing.

In the case of Citamong V Olinga (1985) HCB 86, the appellant, for a period of
thirty years, occupied and cultivated the respondent’s land. in an action to
evict the appellant the High Court held that the respondent had taken too long
to assert his rights. In equity he was deemed to have acquiesced in the
appellant’s long and uninterrupted occupation.

Unlike adverse possession, where the timeframe within which to institute

eviction proceedings is strictly fixed by the limitation Act, there is no fixed time
for the doctrine of acquiescence to operate. It is up to court to decide whether
or not in the circumstances of a particular case it considers that the delay to
bring an action was unreasonable. For example in Citamong V Olinga (1985)
HCB 86, the delay was for a period of thirty years yet in Lomolo V Kilembe
Mines (1978) HCB 157 was seven years.

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CONTROL OVER LAND

There is very little control over landowners under the land Act. Generally, land
owners are free to deal with their land as they so wish.

Ownership of land by non-citizens

Article 237(1) of the Constitution declares that land in Uganda belongs to its
citizens and shall be vested in them in freehold, mailo, leasehold and
customary tenure.

Article 237(2c) of the Constitution states that a non-citizen of Uganda may

acquire a lease in land in accordance with the laws prescribed by parliament.
Likewise, section 40(3) of the land Act provides that a non-citizen of Uganda
may acquire a lease for a maximum period of 99 years.

The land Act expressly prohibits a non-citizen of Uganda from acquiring or

owning mailo or freehold land. The ban on non-citizen owning mailo or freehold
is not new in Uganda. It goes back to 1916, when the secretary of state for the
British colonies prohibited the governor from alienating freehold land to non-
Africans.

The ban was reinforced in 1921 by the Buganda lukiiko resolution, which
prohibited the Baganda from selling outright their mailo to non-natives. The
policy against granting freehold to non-Africans was maintained throughout
the colonial period and after Uganda became an independent state.

The difference between the previous and current ban is that the former applied
to non-Africans who included Uganda citizens of non-African origin. Neither
the Constitution nor the land Act makes any reference to the race of citizens.
Hence, ownership of land in freehold or mailo is open to all citizens of Uganda
regardless of the race.

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For purposes of land ownership, a person is deemed no to be a citizen of
Uganda if the person is not a citizen of Uganda as defined by the Constitution
or the Uganda citizenship and immigration control Act 1999.

With respect to corporate body, a company limited by shares is deemed nit to

be a citizen of Uganda if the majority if its shareholders are non-citizens. If the
company has no shares, it is deemed to be a non-citizen of Uganda where non-
citizens hold the majority vote.

Where the company is incorporated in Uganda, it is deemed to be a non-citizen

unless its articles of association contain a provision that restrict the transfer or
issue of shares to persons who are not citizens of Uganda.

If for any reason an owner of freehold or Mailo loses his or her Uganda
citizenship, the tenure automatically converts to leasehold for a period of 99
years from the date of the loss of citizenship. In that case, the district land
board in which the land is situated becomes the lessor. The Act does not imply
any terms in the converted lease nor does it include a requirement to pay
ground rent.

The absence of any such provision suggests that parliament had no intention
to impose any covenants in the leasehold. It should also be noted that the Act
does not make provision for compensation to land owners for conversion of
their freehold or mailo tenure to leasehold.

Protection of family land

The Uganda Constitutional commission reported that throughout the country

many people had expressed concern about the right of family members to own
land and to have a say in its management. The commission observed that there
were elements of injustices in this regard, which could be eliminated only by
clearly defined rights.

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The recommendations of the constitutional commission report are reflected in
the land Act. Section 39 of the Act prohibits a land owner from selling,
mortgaging, leasing, donating (except in a will), or entering into any transaction
in respect of land family resides and earns a livelihood from (herein referred to
as family land) without prior written consent of the land owner’s spouse.

This provision applies to any land irrespective of the system of tenure under
which the land is owned. The section stipulates that the land owner must
personally communicate his/her consent to the parish committee in the area
where the land is situated. This is to ensure that the consent is freely given
without coercion or intimidation by the land owner.

Where the land owner resides on the land with dependent children who have
attained the age of majority, they too must give their consent to the
transaction. This provision envisages mature age children who for some
reason, such as physical disability are dependent on the land owner for
sustenance.

Section 38A of the land (amendment) Act 2004 guarantees the security of
occupancy on family land in favour of a spouse which means a right to have
access to and live on family land.

Family land is defined under section 38A (4) of the land (amendment) Act
2004 to mean land on which is situated the ordinary residence of the family
and from which the family derives sustenance or which is treated as family
land according to the norms, culture, customs, traditions or religion of a
family.

Ordinary residence means the place where a person resides with some degree
of continuity apart from accidental or temporary absences; and a person is
ordinarily resident in a place when he/she intends to make that place his
home for an indefinite period.

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In order for a person to invoke the protection conferred by section 39 of the
Land Act as amended, the following must be satisfied;

a) That the claimant is a spouse within the meaning of the law. A spouse is
not defined under the land Act but means a person married under the
laws of Uganda.
b) The subject land if registered must be registered in the names of one of
the spouses. Where the land is registered in the names of a third party,
that land for legal purposes belongs to that third party and can not
constitute matrimonial property for purposes of section 39.

In all cases, under section 39(5) the Act requires that consent shall not be
unreasonably withheld. A person aggrieved by denial of consent may appeal to
the land tribunal. In an appropriate case, the tribunal may dispense with the
requirement for consent.

Under section 39(4) of the Act, where any transaction is entered into by a
purchaser in good faith and for value without notice that spousal consent has
to be complied with, the transaction is void; but the purchaser shall have the
right to claim from any person with whom he/she entered into the transaction
any money paid or any consideration given by him/her in respect of the
transaction.

In spirit of section 39(7) of the Land Act, the spouse or children of majority age,
not being the owners of any land to which the requirement of consent applies,
may lodge a caveat on the certificate of title or certificate of customary
ownership of the person who is the owner of the land to indicate that the
property is subject to the requirement of consent.

However, it is submitted that in spirit of subsection7, whether or not the caveat

is lodged, a transaction affecting the land would still be void without the
requisite consent. The significance of a caveat is that where it is lodged, the
person who enters into a transaction affecting land without the prescribed

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consent, when he/she attempts to recover the consideration will have a heavy
onus to prove that he/she was a bonafide purchaser without notice.

Further, the parish committee may, on behalf of children below majority age or
orphans below majority age and not being the owners, lodge a caveat on the
certificate of title or certificate of customary ownership of the person who is the
owner of the land to indicate that the property is subject to the requirement of
consent.

Under the general principles of the law of contract, where the making of a
contract is prohibited by statute, not only is the purported contract void but
also any consideration transferred pursuant to such contract normally is not
recoverable.

It is thought that this is the intended legal consequence under the Act. This
view is partly based on section 39(4) of the Act. The section states that if a
purchaser is a bonafide purchaser for value and had no notice that consent
was not given, the purchaser shall be entitled to recover from the land owner
any consideration paid even though the transaction is void. The converse is
that where the purchaser is not a bonafide purchaser or had notice of the
absence of consent the money is not recoverable.

It should be noted that when a land owner mortgages the land with appropriate
consent, and he/she defaults in the payment of the mortgage, the mortgagee
does not does not require consent of the land owner’s family to sell the land.
The reason for this is obvious. By consenting to the transaction the family
members are deemed to accept the risk involved in the event of default. Indeed,
that is why the section requires consent of the family. It would be unfair to
require a mortgagee to seek family consent again before exercising the power of
sell.

Interestingly, it would seem that section 39 does not apply where it is sought to
sell family land in execution of a judgment debt against the landowner,

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including, ironically, to recover consideration paid by a bonafide purchaser
under a void consideration.

Compulsory acquisition of Land

The constitution of the republic of Uganda protects individual rights to

property. Article 26(2) of the Constitution prohibits the government from
compulsorily depriving any person of his/her property or right to possession
unless three conditions are satisfied.

a) The taking of possession or acquisition of property must be necessary

for public use, interest of defence, public safety, public order, public
morality or public health.

In the case of Ross V Common wealth of Australia and Another

(1985) LRC 202 court held that public interest is the acquisition of land
for public use and not to acquire land merely for purpose of depriving
owners of it.

b) It must be made under a law which provides for prompt payment of a fair
and adequate compensation.
c) The law must provide for a right to access the courts to interested
persons aggrieved by the decision.

The power of the government to acquire private property compulsorily is not

unique. All governments irrespective of their political persuasion reserve
themselves this power. It is based on the philosophy that in certain
circumstances, individual rights may be sacrificed for the greater good.
Provided the individual is adequately compensated and the power otherwise
used fairly, compulsory acquisition of property is not objectionable on human
rights grounds.

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The government may acquire land by compulsory process under the land Act.
Section 42 of the Act provides that the government or a local authority may
acquire land in accordance with articles 26 and 237(2) of the Constitution of
Uganda.

The Act gives the district land tribunal jurisdiction to determine any disputes
relating to the amount of compensation to be paid for land acquired under this
provision. In determining the amount of compensation, the tribunal must take
into account the improvements on the land.

For example if the land acquired is customary land its value is determined by
reference to the open market value of the land, without taking into account the
improvements. In the case of a building, the method of assessment varies
depending on whether the land in urban or rural. If it is urban land, the value
of the building is its open market and if rural, it is the depreciated replacement
cost of the building. Where there are crops on the land, their value must be
included except annual crops which could be harvested during the period of
notice given to the land owner. The value of crops must be assessed in
accordance with a list of rates compiled and kept by district land board.

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LEGAL AND EQUITABLE INTERESTS IN LAND

An interest in land can be legal or equitable. A legal interest (legal estate) is an

interest in land that wasrecognized and protected by the common law courts.
In contrast an equitable interest (equitable estate) was recognized and
protected by the court of equity even though at law the interest was not
recognized. This is what is known as ‘duality of ownership’. The legal/equitable
dichotomy is rooted in the history of English Land Law.

The Legal and Equitable Interests (ownership) Compared

Most interests in land exist both at law and in equity. Thus a freehold, lease
and mortgage could be an equitable or a legal interest.

In the eyes of equity, an equitable interest in many respects is as good as a

legal interest. An equitable interest is as much a proprietary interest as a legal
interest. It can be disposed of intervivos or by will or in testate succession, just
like a legal interest, remedies that accrue to a holder of a legal interest are
available to a holder of similar interest in equity indeed the courts treat a
holder of an equitable interest as if his or her interest were a legal interest. This
is because equity regards as done that which ought to be done (Walsh Vs
Lonsdale, (1882) 21 Ch. 9)

In Walsh Vs Lonsdale the defendant entered into a contract to lease certain

premises to the plaintiff for a period of seven years, under terms of which the
rent was to be payable yearly in advance. Although the lease was in writing, it
was not executed by deed as required by law (no legal lease was ever granted
by the defendant by deed). Nevertheless, the plaintiff went into possession.
When the plaintiff defaulted in payment of rent in advance, the defendant
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distressed upon his goods, as he was entitled to do at common law. Distress is
a self- help remedy recognized by law, involving the right of a landlord to seize
and detain a tenant’s chattels in the tenanted premises to force the tenant to
pay outstanding rent).

The plaintiff sued the defendant for trespass to goods. He argued that the
defendant had no right to levy a distress for rent because distress is a legal
remedy, which is only available where there was a legal lease. (There was no
legal lease, as the purported lease was not created by deed). -- The court
dismissed the plaintiff’s argument, holding that in the eyes of equity a tenant
in possession under a specifically enforceable contract for a lease was in the
same position as if a lease had been executed. Accordingly, as far as equity was
concerned, the plaintiff was already a lessee for seven years and subject to all
the terms of the agreement and all rights and remedies available at law. Hence,
the defendant was entitled to exercise his common law remedy of distress as if
a legal lease for seven years had been granted.

A holder of an equitable interest is not in exactly the same position as a holder

of a similar interest at law. In Uganda, for example S. 64 of the R.T.A (Cap
230) provides that a registered proprietor holds the land free from any
unregistered interests except as provided in the Act. In practice a registered
interest is equated to a legal interest and unregistered interest to equitable
interest.

Another major distinction between legal and equitable interests is that the
enforcement of equitable interest depends on the willingness of the Court to
grant specific performance of the contract according to its terms. Thus, no
equitable interest would arise where for any reason the court would not grant
the remedy of specific performance (Swain Vs Ayres (1888) 21 QBD 289). In the

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case of Souza Figueiredo & Co. Ltd. vs. Moorings HotelCo. Ltd. [1960] EA
926, the Court of Appeal of Eastern Africa held that an unregistered interest
operated as a contract between the parties and can give rights to specific
performance or damages. A court may. for example decline to award specific
performance where in its view the plaintiffs claim could be adequately satisfied
by the payment of damages. Likewise, the court may refuse to grant specific
performance if the person seeking the order does not come to court with “clean
hands”. For example, in Swain Vs Ayres, above the court refused to grant an
order of specific performance in favour of a tenant because he was in breach
of several terms of his agreement
with the landowner .

Creation of equitable Interests

An equitable interest may be formally created by written agreement of the
parties. But more often, it is created by operation of law where the parties enter
into a Specifically enforceable contract to convey or create a legal interest in
land. This is because of the equity maxim: “equity looks on that as done which
ought to be done.”

Priority of Interests in Land

One of the central issues with which land law has to grapple is the problem of
determining priorities between competing interests in land. This difficulty
arises in particular where a person purchases land and there are third parties
who enjoyed interests in it prior to the purchase. Is the purchaser to be bound
by such pre- existing third party interests?

Rules of Priority Governing Legal Rights

Historically, legal rights were simply indefeasible. This was expressed by the
maxim that “legal rights bind the world” A legal right would always gain priority
over any subsequent rights acquired in the land, whether legal or equitable.

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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. The
principle, known as the doctrine of notice, was that equitable interests took
priority to all subsequently created interests except those of a person who had
purchased a legal estate in theland, bonafide, for valuable consideration
without notice of the existence of the equitable interest. The element of notice
is the most significant, and means that if a purchaser knew, or should have
known, of the existence of the equitable Interest, he cannot acquire his legal
estate free from it.

The term “purchase” technically denotes a Person to whom land is expressly

transferred by action of the parties rather than by operation of law. Thus a
buyer, donee (by will or intervivos). mortgagee or lessee is a purchaser (Caunce
Vs Caunce (1969) 1 ALLER. 722). But a person who acquires land by in testate
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 court declaration etc)

The expression “value” means that the purchaser must have given sufficient
consideration (note sufficiently Vs adequacy in contract law) in money or
money’s worth such as some other land or provision of service. Promise of
marriage is also considered as valuable consideration (A-G Vs. Jacob’s Smith
(1895) 2 QB 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

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at the time of purchase. Notice need not be actual notice, actual notice aside, it
may be constructive or imputed notice. Constructive notice is knowledge of
facts, which, if the purchaser had acted prudently, would have known. For
example, where, deliberately or carelessly he abstained from making those
inquiries that a prudent purchaser would have made. In Uganda Posts and
Telecommunications & Anor Vs AKM Lutaaya (1995) unreported, the
respondent leased a large piece of land from the Mailo owner, to the second
respondent. Unknown 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 the parties in such occupation may have in the land....”

Karokora JSC, cited several English cases to support the proposition that
occupation of land by a third party constitutes constructive notice to the
purchaser of any equitable rights that the occupier might have in the land. If a
purchaser employs an agent, such as a lawyer, to act on his behalf, any actual
or constructive notice that the agent receives is imputed upon the purchaser
(Pilcher Vs Rawlins (1871)7 Ch. 250)

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 estoppels. 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.

In Walker Vs Linom (1907) 2 Ch. 104 a purchaser of a legal estate left the
title deeds with the vendor after he had paid the purchase price. The vendor

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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 purchase’s legal estate
must be postponed to the defendant’s equitable mortgage though it was created
later. However, mere carelessness is not sufficient ground to displace an earlier
legal interest (Northern counties ofEngland Fire insurance Co. Vs. Whipp
(1884) 26 Ch. D. 482)

Competing Equitable claims

In a situation where all rival claims are equitable interests, the rule, variously
stated, is that where equities are equal in all respects, priority of time gives a
better equity(Rice Vs Rice (1854). In otherwords, “first in time first in right”.
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 Vs Rice
the plaintiff sold land to P and he signed adocument indicating that (P had paid
him the full purchase price. It turned out there was still outstanding 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 seller 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 the first in time rule applies only where
equities are equal. In determining the merits of each case the court will look
at 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 present himself as owner of an
unencumbered fee simple. Therefore, the plaintiff’s first- in- time, equity had to
be displaced.

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Priority in cases of Registered Land
The general rules for determining priorities are substantially different with
respect to land registered under the Registration of Title Act (Cap. 230) (All land
that is owned under Mailo freehold and leasehold tenure is subject to the Act.
The only land to which the Act does not apply is customary tenure). Under the
Act priority of competing interests is determined in accordance with the date of
registration and not the date of the transaction. (See S.48. R.T.A CAP 230). In
the absence of fraud on the part of the first person to be registered, he takes a
better title than a person who purchased the same land earlier but did not
register his interest. This is because every title procured or made by fraud is
void as against all parties or privies to the fraud. (See S.77. R.T.A CAP 230)

However, where neither competing interests is registered then priority is

determined with reference to the general law principles, which apply to
competing equitable interests, in the case of MustafaNdigejjerawa Vs Kizito
and Kubulwamwana (1952-6) 7 ULR. 31, Kizito was the registered proprietor
of the subject land. By a written contract. Kizito agreed to sell the subject land
to Kubulwamwana. Four days later by another written agreement he
purportedly sold the same land to Mustafa. The later lodged with the registrar
of Titles certain documents for the purpose of transfer of his title. But the
transfer was not registered because the documents were not in order.
Consequently, at the time of the trial neither Mustafa nor Kubulwamwana had
a registered title. Under the RTA, an unregistered interest constitutes an
equitable interest (Katarikawe Vs Katwiremu & another). The issue was who
between Mustafa and Kubulwamwana had a better equitable claim to the land.
Ndigejjerawa argued that since he lodged his documents for registration his
claim should have priority over Mustafa’s claim.

It was held that Kubulamwana’s equitable interest had priority because it was
created earlier than Ndigejjerawa’s interest. The court said that a prior

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lodgment for registration of an instrument of transfer, which was not in a
registrable form, could not give Ndigejjerawa a better claim to the land than
Mustafa.

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CO-OWNERSHIP IN LAND LAW.

Co-ownership in land law (common law) refers to holding of title to the same
land by two or more persons.

There are various types of co-ownership known in land law, the most important
however are:

a) Joint tenancy
b) Tenancy in common

Joint tenancy

This is where two or more persons jointly own land as tenants or owners but in
such a way as though they are single owner. There are two main features of
this tenancy.

1. The right of survivorship

2. Presence of four unities

The doctrine of survivorship operates to determine the ownership of the

property upon the death of one or more of joint tenants. Where the right of
survivorship applies, then when one joint owner dies, his/her interest in land
passes to the surviving tenant or tenants. The process continues until there’s
only one survivor who then becomes entitled to the whole property as one
single owner.

The interest of a joint tenant cannot be passed on to his/her estate upon

death, neither can a joint tenant validly give away his/her interest in jointly
held property by a will. The right of survivorship takes precedence over the will

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of the deceased joint tenant. And any gift by will of the interest in the jointly
owned property therefore will be void.

Therefore if property is to be held by two or more persons who are interested in

having their beneficiaries (other than the co-owner) benefiting from it after their
death, it is advisable that land should not be held by them as joint tenants
since the doctrine of survivorship will defeat the claims of their descendants or
legal representatives.

When a joint tenant dies, the surviving tenant only has to notify the registrar of
titles of the death of such tenant whose name would then be cancelled from the
title such that the property left is owned by the surviving tenant/tenants.
There is no need to apply for letters of administration since there will be no
interest to pass over, all one needs is proof of death. Otherwise by operation of
law, the property becomes that of the surviving tenant(s) to the exclusion of the
estate of the deceased.

Note: the right of survivorship does not apply where the land was acquired
and registered under joint tenancy but the purpose was for business such as a
partnership.

Under joint tenancy, there are four unities namely;

a) Possession
b) Interest
c) Title and
d) Time
a. Possession: Each joint tenant is entitled to possess any part of the land.
If a tenant can point to a particular part of the land as his/hers to the
exclusion of the other, then there’s no joint tenancy because there will be
no unity of possession. It is said that under a joint tenancy, all the joint
tenants own everything but nothing in particular.

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 Bull V Bull (1935)1 QB 234. In this case, a mother and son owned a
house together. The son sought to evict the mother after a
misunderstanding. It was held that where a joint tenancy is established,
no single tenant can exclude the other from possessing the property.
b. Interest: The interest of each joint tenant should be the same in extent,
nature and duration. This means that there cannot be a joint tenancy
between a freeholder and a lease holder because the nature of their
interest is different. Neither can there be a joint tenancy between a
tenant having a lease of 14 years and another with lease of 120 years.
Similarly where rent from the property is not shared equally, there
cannot be joint tenancy in respect of the property from which the rent is
derived. See Ag Securities V Vaughan (1988)3 ALLER 1058
c. Title: The title or ownership of a tenant must be created by the same act
or instrument e.g. where land is purchased by A and B and is
simultaneously transferred to then jointly using the same transfer form,
if there are two transfer forms in respect of the same property but in
favour of different transferees, there will be no unity of title because
there would be different acts done at different times.

The case of Ag Securities V Vaughan, illustrates the above four unities.

The appellants owned a 4 bedroom home under separate contracts and
entered at different times. They granted a right to occupy the flat to four
individuals. The contract entitled each occupant to use the premises in
common with other people who might from time to time have a similar
right. The rent payable by each tenant varied. The court of appeal held
that this was not a joint tenancy.
d. Time: unity of title alone is not enough; the interest of each tenant must
have arisen at the same time. Under common law however, an exception
is provided for spouses and also for gifts under a will. A joint tenancy
cannot arise where X conveys a particular portion of his land to A in

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 January and another portion to B in March because interests would have
arisen at different times.
The spouse exception however allows spouses to own as joint tenants
what was acquired previously by one spouse before marriage.

Under the RTA, transfer of land to two or more transferees without

stipulating the type of co-ownership will operate as a joint tenancy with
the exception of property acquired for business such as in a partnership.

Tenancy in common (TIC)

Like joint tenancy, tenancy in common is a form of co-ownership. However

under this type of co-ownership, each tenant in common has a fixed share in
the property even though the shares are undivided.

It follows that each tenant has a distinct share or interest and as a result, the
right of survivorship does not apply. When one tenant in common passes away,
his/her undivided share in the property becomes part of his/her estate and
passes under his/her will or in intestacy.

The other unities under joint tenancy could be absent but as long as there is
the unity of possession. For instance the unity of interest may be absent such
that the tenants do not hold equal shares but for as long as they all posses the
property, a tenancy in common will be said to exist. Because the right of
survivorship apply, a tenant in common is free to give his/her interests in the
property as wishes without any restrictions or without having to seek consent
from the co-owners as is required under joint tenancy where individual acts
not consented to by the other joint tenant(s) would be null and void.

TERMINATION OF CO-OWNERSHIP

Co-ownership whether joint tenancy or tenancy in common may be terminated

in the following ways:

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 1. Partition: a co-tenancy may be determined by the voluntary subdivision
of the property such that each co-owner becomes the sole owner of the
piece allocated to him/her.
2. Sale: if the co-owners sale their property, this automatically brings to an
end their co ownership but the co-owners remain entitled to their
respective shares in proceeds of the sale.
3. Union in a sale by tenants. Where the property subsequently becomes
vested in a sole owner, the co-ownership is there by terminated.

A case in point is where under a joint tenancy with two joint tenants, one of the
two dies and the property becomes vested in one owner there by terminating
the joint tenancy. The same would happen if a joint sold his/ her interest to
the other joint tenant.

Severance: although under joint tenancy, no tenant has a distinct share in the
property but a share equal in size to that of co-tenant, if joint tenants decide to
severe their interests, joint tenancy could be terminated. This can be done by
introducing words which denote the particular share of each joint tenant.

In the case of Robertson, it was held that anything which in the slightest
degree indicates an intention to divide the property must be held to abrogate
the idea of joint tenancy and to create tenancy in common.

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