UGANDA CHRISTIAN UNIVERSITY – MUKONO

FACULTY OF LAW

FOUNDATIONS OF LAND LAW

6TH DEC 2014

MARKING GUIDE

This is merely a guide and not an exhaustive answer to the questions asked. The examination
was closed book. Candidates were expected to attempt three questions including question one
that was compulsory. The exam mark in total adds up to 70% which is added to 30% of the
coursework mark to form a total of 100%. Practical use of relevant and applicable authorities
will be an added advantage. Critical analysis of the principles will also be rewarded.

QUESTION ONE (40 marks)

This was a compulsory problem question. Students were expected to give brief facts, raise issues,
give law applicable and resolve the issues. The question is divided into three sets namely A, B
and C.

Set A (15 marks)

Issues

I. Whether Kikazi had the right to assign.

II. Whether Kikazi can sublet the second piece of land
III. What are the remedies available to Kikazi, Kiwala and Kisajja with respect to the
transactions
IV. What remedy is available to Kisajja with respect to non-payment of rent and what
procedure can be followed to realize this remedy.

Law Applicable

The Constitution, 1995

The Land Act

Case law

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Resolution of issues

I. Issue one - Whether Kikazi had the right to assign. ( 1.5 marks)

s.35 (1) permits the tenant by occupancy to assign the tenancy by giving the first option of
taking the assignment of the tenancy to the owner of the land. The same section makes it an
offence for a tenant who does not give the first option to the owner of the land and
invalidates such a transaction. A tenant, who does not observe the above in effect, forfeits the
right over the land and the land reverts back to the registered owner.

Issue two -Whether Kikazi can sublet the second piece of land (1.5 marks)

s.34 (1) of the Land Act gives a tenant by occupancy a right to assign the tenancy but subject to
the consent of the land owner.

s.34 (2) requires the tenant by occupancy to make an application to the owner of the land for his
or her consent to the transaction.

Issue three - Remedies available to Kikazi, Kiwala, and Kisajja with respect to the
transactions (6 marks)

Kikazi – s. 34(5) is to the effect that where the registered owner refuses to grant consent to the
transaction, the tenant by occupancy may appeal to the land tribunal against the refusal. Hence,
Kikazi can appeal to the land tribunal.

Kiwala - s.34 (9) makes any transaction to which the owner’s consent has not been sought
invalid and not effective to pass any interest in land. Kiwala has not acquired any interest in the
land.

Kisajja – With regard to the assignment given to Kiwala without granting Kisajja the first option,
the land reverts back to Kisajja in accordance with s.35.

Issue four - What Remedies are available with respect to non-payment of rent and the
procedure to be followed to realize the remedy. (7 marks)

S. 31(3) makes it mandatory for the tenant to pay to the registered owner an annual nominal
ground rent.

With respect to non-payment of rent for a period exceeding one year, s. 31(6) requires the
registered owner to give a notice to the tenant requiring him to show cause as to why the tenancy
should not be terminated.

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According to s.31(7) if the ground rent is not paid within one year from the date of service of
notice, the registered owner may apply to court for an order terminating the tenancy for non-
payment of rent.

Courts will takes into consideration different factors as mentioned under s. 32(1) before it can
make the following orders.

 Direct that the tenant shall pay the arrears either in lumpsum or in instalments.
 Grant the application for the termination but suspending the coming into effect of the
order so as to allow the tenant an opportunity to pay the arrears.
 Granting the application for the termination stating the date by which the tenant shall
have vacated the land.

Set B (12.5 marks)

Issues

1. Whether the sale was valid

2. Whether or not Msichana can own land
3. Whether the decision taken by the village elders was valid
4. What are the remedies available to Bibi, Mukora and Msichana

Law Applicable

The Constitution
The Land Act
Case Law

Resolution of Issues

Issue one – Whether the sale was valid (4 marks)

s.38A (4) defines “family land” as land on which is situated the ordinary residence of a family
and from which the family derives sustenance.
s.38 A (3) is to the effect that the spouse shall in every case have a right to use the family land
and give or withhold his or her consent to any transaction.
s.39 (1) requires a person to obtain the consent of his or her spouse before selling any family
land.
s.39 (4) makes any transaction entered without the consent of the spouse in respect to family land
void.

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The sale in this case was void given that Bwana did not obtain the consent of Bibi prior to the

Issue two – Whether or not Msichana can own land (2 marks)

Article 26 (1) is to the effect that every person has a right to own property.

Issue three - Whether the decision taken by the village elders was valid (2 marks)

s.27 L.A provides that a decision that denies women access to ownership, occupation or use of
any land violates articles 33, 34 and 35 and shall be null and void.

Issue four – Remedies available to Bibi, Mukora and Msichana (4.5 marks)

Bibi and Msichana – s.76 L.A gives power to District Land Tribunals to determine disputes
relating to land.

Bibi and Msichana can report the matter to the District land tribunal/court for redress.

Mukora – s.39(4) gives a right to a bonafide purchaser for value without notice to claim from any
person with whom he or she entered into the transaction any money paid or any consideration
given by him or her in respect of the transaction.

Mukora can ask for a refund of sh.3,000,000 from Bwana.

Set C (12.5 marks)

Students here are required to discuss the legality of Government’s intended move to acquire land
before compensating its owners in light of the Constitution, Land Act Cap 227 and Land
Acquisition Act cap 226.

Article 26(2) (a) (b)i provides that no person shall be compulsorily deprived of property except
where the acquisition is necessary for public use or in the interest of defence, public safety,
public order, public morality or public health and prompt payment of fair and adequate
compensation has been made prior to the taking of possession or acquisition of the property.

Article 237(2)a empowers the government subject to article 26 to acquire land in the public
interest.

s. 42 L.A gives government powers to acquire land in accordance to articles 26 and 237(2) of the
constitution.

S.7 of the Land Acquisition Act is to the effect that the government takes possession of the land
after the award for the land taken has been made.

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In the discussion it’s important to acknowledge the power and legitimacy of government to
compulsorily take over private property for public use. The law however provides for private
property rights that should be secured by government. There is need to balance individual
property rights against those of the public. The logic of fair, adequate and timely compensation
before compulsory acquisition is a safeguard embedded in the law attempted to reconcile the
diametrical opposition and balance the pendulum.

That said, paying compensation post-acquisition is problematic for a number of reasons.

Considering the social, cultural and economic value of some properties, compensation cannot
always assuage the material and immaterial loss and suffering of the deprived. Paying it post-
acquisition increases the burden on the deprived.

If the deprived is dissatisfied with the amount of compensation or anything in the processes, it is
too late to change the status quo.

Although the practical realities in Uganda might not allow for compensation prior to compulsory
acquisition for instance when the government does not yet have money, the proposed categorical
changes need to be debated within the wider context of our country’s legal and constitutional
regime. This emphasizes compensation prior to acquisition and the importance of this principle
has been re-emphasized by courts of law for years.

Making changes to the law to remove compensation before compulsory acquisition without a
contextual focus and heed good precedents set by courts of law could have an effect of reneging
on such precedents and may also be seen as an affront to the role of the judiciary.

QUESTION TWO

This was a problem question where students were expected to write brief facts, raise issues, law
applicable and resolve issues.

Issues

1. Whether the items placed on the land remained chattels or fixtures.

2. Whether Mubiru can remove the items from the land

Law Applicable
Constitution, 1995
The Land Act

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Case law

Resolution of issues
1. Issue one - Whether the items placed on the land remained chattels or fixtures.
 Grinding mill – it was a fixture because it was attached to the stone floor by
means of nails driven through holes. Holland v Hodgson(1872) LR 7 CP 328
 Wooden structure – it remained a chattel since it was merely resting on the land
by its own weight. Holland v Hodgson(1872) LR 7 CP 328
 Flat screen – it remained a chattel since it was just placed on the table. Holland v
Hodgson(1872) LR 7 CP 328
 Chairs that were fastened on the floor with screws

Lyon & Co. v. London City and Midland Bank (1903)2 K.B 135 - chairs that
were fastened on the floor of a cinema with screws were held to have remained
chattels despite their annexation to the land because they had been installed for a
temporary duration of 12 weeks.
 Heavy cloth hang
Leigh v Taylor (1902) A.C – Tapestries that were hang in a drawing room were
said to have remained chattels though affixed to the land because they were never
intended to form part of the structure of the house and were only attached to
enable them to be better enjoyed as ornamental decoration.
 Cement statue of a lion
Berkely v Poulett – court held that the statue had remained a chattel since it was
not part of an architectural design to improve the land, as evidenced by the fact
that a different ornament had previously stood in the same place.
 Trees – They became fixtures
 Windows and doors – They became fixtures

Issue two

Whether Mubiru can remove the items from the land

Mubiru can remove items that remained chattels and trade fixtures, ornamental fixtures and
domestic fixtures. He can hence remove the wooden structure, flat screen, chairs, heavy clothes,
cement statue. He can also cut down the trees because they were trade fixtures. He cannot
remove the grinding mill, the windows and the doors because they became fixtures and do not
fall under the category of fixtures that can be removed.

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QUESTION THREE (15 marks)

This question required the students to give the historical background of the doctrine of tenure
and estates under English Law and relate it to Ugandan law.

The doctrine of tenure focused on the terms under which a person held land and the doctrine of
estates indicated an interest in land of some particular duration.

English law was founded upon the premise that all land was owned by the king and his servants
could only make use of it on the basis of some form of tenancy either directly or indirectly from
the others deriving their title ultimately from the king.

QUESTION FOUR (15 marks)

The question required students to discuss whether or not joint tenancy and tenancy in common
are the same in all aspects.

A joint tenancy is where two or more persons together as a group own the entire interest in the
property. This differs from tenancy in common where tenants hold land in individual shares.

A joint tenancy has two essential features which distinguishes it from a tenancy in common;
presence of the four unities and the right of survivorship. One similarity between the two is the
fact in both the unity of possession must be present.

QUESTION FIVE (15 marks)

The question requires discussing how customary tenants enjoy security of tenure in Uganda
today with reference to the Constitution, The Land Act 1998, and Case law.

a) The Constitution under article 237 vests land in the citizens of Uganda as opposed to
vesting it in the state as was the case under the Public Lands Act, 1969 as amended by the
Land Reform Decree.
b) The introduction of four land tenure systems as opposed to the two tenure systems
introduced by the Land Reform Decree. (Article 237 (3), and s.2 of the Land Act.
c) The fact that customary tenants on former public land now own the land they occupy and
that they may acquire certificates of ownership as stipulated under article 237 (4) a and
s.4 of the Land Act.
d) The Constitution’s recognition and protection of lawful and bonafide occupants on
registered land (mailo, freehold and leasehold) and regulation of the relationship between
the lawful or bonafide occupants and the registered owners of the land and also the

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 acquisition of registrable interests by the occupants. (Article 237 (8) s.29-30 of the Land
Act).
e) The Land Act further protects the security of land tenure of a bonafide and lawful
occupant by providing that eviction of such tenants can only be sanctioned by court.
f) The Constitution also permits holders of land under customary tenure to convert those
tenures to freehold. (Article 237 (4)b and S.9 Land Act.
g) The holders of land under Customary tenure who desire to or in fact use land as common
property may protect their interest through the establishing of Communal Land Asso
citations (s.150 and/or enforced by the establishment of a Communal Land Management
Scheme(s.24-26).This would protect the rights of pastoral land holders whose rights
remain expansive and transhumant.
h) In the case of compulsory acquisition of land by Government or Local Government, the
requirement to pay compensation upfront before taking possession of one’s land as
provided for in article 26, 237 and s.42 of the Land Act.
i) The decentralization of land management (s.56,64,68,74 and 80)

QUESTION SIX (15 marks)

a) Focusing on Kampala city, discuss the relationship between land tenure and
development in urban areas in Uganda. (5 marks)

Land tenure is considered a central determinant factor in urban development because almost all
the other urban development factors crucially hinge on it. The tenure influences are inhibiting
factors for orderly urban development because of the following;

 The private character of the land tenure relations has denied the urban authority effective
leverage of power to control and manage urban land use in Kampala city.
 The rural character of tenure – The primate emergence of Kampala city and its continued
growth, mainly on the basis of the tenure systems historically designed to meet the rural
socio-economic needs has presented a contradiction over the years between the rural
character of some tenure systems and the dynamics of urbanization.

b) Distinguish framework legislation from sectoral legislation (5 marks)

Framework legislation expresses management principles embodied in the national

environmental policy. It also defines the scope and functions of the central environmental
authorities. On the other hand, sectoral legislation consists of several pieces of legislation
that establish specific regimes to tackle particular aspects of environmental management.

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c) Discuss environmental Law considerations related to Wetlands Management in
Uganda today.
 The state in Environmental conservation
 Tenure relations and legal dualism in the use and management of wetlands
 Land tenure impacts on the use and management of wetlands
 The interface between framework and sectoral laws
 Institutional arrangement for environmental management