KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAW
COURSE : LLB
COURSE UNIT : LAND LAW
YEAR : TWO
SEMESTER : ONE
GROUP FOUR MEMBERS
NO. NAME REG NO. SIGNATURE
1. ALEXANDER KANYESIGYE 2023-01-14732.
2. WALYAMBOKA KENNETH 2023-01-14368
3. KOMUSHANA RACHAEL 2013-01-14610
4. NANSUBUGA JUSTINE 2023-01-14074
5. JEFFERSON STEPHEN OKELLO 2023-01-14743
6. NDYABAREMA EMMANUEL 2023-01-15310
7. KADAADA DEBORAH 2023-01-15027
8. NIMUSIIMA MICHAEL 2023-01-14343
9. NAMUTEBI PRISCILLAR 2023-01-13586
10. MAFABI SHARON 2023-01-14868
11. SSEKABIITO NOAH 2023- 01-13796
12. NEGOMBYE MASITULAR NAKABUGO 2023-01-14982
Protection of family property land (how does the law protect family
property /land)

Family land refers to land where the family normally resides and derives
sustenance and is treated as family land according to the norms, culture,
customs, traditions or religion of the family (Land Amendment Act 2004)

Section 38a(4) of the land (amendment) Act 2004 defines family land to interalia
mean land on which is situated the ordinary residence of a family and from which
the family derives sustenance and the family agrees to treat it as family land in
accordance with the norms, customs , traditions or religion of the family.

Article 26(1) of the constitution interalia provides that every person has a right to
own property either individually or in association with others

Article 26(2) interalia provides that no person shall be deprived of property or

any interest in or right over property of ay description except where; the taking
od possession is necessary for public use or in the interest of defense, public
safety , public order etc. or the compulsory taking off possession of property is
made under a law which makes provision for prompt payment of fair and
adequate compensation prior to taking possession of the property and a right of
access to a court of law by any person who has an interest or right over the
property

Article 31 interalia provides that a man and a woman have a right to marry and
shall have equal rights at and in marriage, during marriage and its dissolution,
this therefore forms basis for the rights of parties in a marriage which include
rights on land

Both spouses have the right to use and live on the family land as long as the
parties are not separated legally as per Section 38A(5) of the land immendicates
The Uganda constitutional commission reported that throughout the country,
many people had expressed concern about the rights of family members to own
land and have a say of its management. The commission observed that there
were elements of injustices in this regard which could be eliminated by clearly
defined rights

The recommendations of the constitutional commission report a reflected

in the land act as discussed below

Section 39 of the Land Act interalia prohibits a landowner from selling ,

mortgaging , leasing donating (except in a will), or entering into any other
transaction in respect of land the family resides on and earns a livelihood from
(family land) without prior written consent of the land owners spouse

In Inid Tumwebaze V Mpweirwe & Anor

The appellant sought a declaration is that the suit land was family land which was
sold fraudulently without her consent as required by section 39 of the Land Act
as the 2nd respondent (her husband ) used the suit land to acquire a loan from the
1st respondent failing to pay and the land was auctioned

Court held that the actions of the 2nd respondent to pledge the property where he
lived with his wife to the 1st respondent without informing his spouse is contrary
to Section 39(1)(c )(i) which prohibits transactions in such land as the one in
question this void ab initro of the transaction

The section further stipulates that the land owner’s spouse must personally
communicate his or 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
concision by the landowner. Where the land owner resides with dependent
children who have attained majority ago, they too must give consent prior to the
transaction taking effect. Incase minors, the parish committee must give consent
to the transaction

The spouse and or the dependent children of the land owner have a right to
ledge a caveat on the certificate of title or the certificate of customary ownership
of the land in question. The object of the caveat is to give any potential dealer in
the land that land is subject to the requirement of consent

The exception to the provision under section 39(1) of the Land Act is whereby
a land owner mortgages the land with the appropriate consent and he /she
defaults later in payment of the debt, the mortgage does not require the consent
of the land owner to sell the land

Section 5 of the mortgage act, interlia provides not withstanding section 39 of

the Land Act, a mortgage of a matrimonial home including mortgage on
customary land is validity and document used in applying for the mortgage is
signed by or there is evidence from the document that it has been assented to by
the mortgagor and the spouse or spouses of the mortgager living in the
matrimonial home.

In Bainomugisha V DFCU ltd (ca no 63of 7) (2008)

The applicant and her husband acting in capacities secretary and director of their
co-owed farm mortgaged the suit property as security for a loan. The applicant
sought to restrain from exercising the power of sale on grounds of absence of
spousal consent.

Court held that the applicant and her husband were the actual mortgages and
she could not have required consent from herself