ISLAMIC UNIVERSITY IN UGANDA

BACHELOR OF LAWS
NAME : KAKOOZA MICHAEL ANGEL. (0702907627)
REG. NUMBER : 222-053011-23563
YEAR : THREE (Stream A)
SEMESTER : TWO
COURSE UNIT : LEGAL RESEARCH. (Coursework)
LECTURER : DR. ASS. PROF. CAPT. SHADAT MOHMED
SSEMAKULA. “Lead Consultant CADER &
Institute of Petroleum, Member of NCIA, CIArb, Visiting prof of Rwanda
Independent University, Examiner Pretoria University, UMI, UCU LLB,
(UK) LLM, (UK) LPC (UK), MPhil in Criminology (Wales) PhD in
Arbitration (London)” EMAIL: captaindrshadat@[Link]

QUESTION:
a) Examine how courts have crystalized and applied laws in solving land
matters.
LAND OWNERSHIP AND HOW COURTS HAVE SOLVED LAND MATTERS IN

UGANDA.

In Uganda, land can be defined in different perspectives. To a lay person, land refers to the part

of the earth’s surface that is not covered by a body of water.1

However, in the Legal perspective, land includes messuages, tenements and hereditaments

corporeal or incorporeal; and in every certificate of title, transfer and lease issued or made under

this Act, “land” also includes all easements and appurtenances appertaining to the land described

therein or reputed to be part of that land or appurtenant to it;2

WHAT ARE LAND MATTERS OR DISPUTES?

“Before we begin to talk about what causes land conflicts and ways to resolve them, we

must first define what Land Conflict is. Conflict is the process which begins when we

perceive that someone has negatively affected, or is about to negatively affect, something

we care about. The more deeply we care about something, the more intense the conflict.

Land disputes are widespread in Uganda, affecting 33%2 to 50%3 of landholders. In

Uganda, land disputes are the most significant form of conflict, with many escalating into

violence. Land disputes crop up throughout Uganda, with the greatest number of disputes

arising in Northern Uganda Districts, some parts of Hoima and Amuru District where oil

has recently been discovered and where the government has given away large tracts of

land. Most land disputes in Uganda fall into two broad categories: disputes between

individuals and Families and disputes related to private sector investment. The majority of

land disputes in Uganda are between relatives, neighbors, and families/clans. Most of these
1
[Link]
2
Section 1(i) of the Registration of Titles Act Cap 230.
disputes are related to the delineation of boundaries or competing claims for land use and

ownership. Common types of land disputes include:

• Disputes between junior and senior family members;

• Disputes between widows and members of their late husband’s family;

• Land grabbing by neighboring families or villages;

• Selling family land without permission;

• Disputes between landowners and squatters; and

• Disputes related to gifting and other unrecorded transfers of ownership.3

In trying to understand the crystallization and application of laws by courts in solving land

matters, one needs to understand that the laws applied have been enacted over time, dependent

on the needs of the time.

THE HISTORICAL PERSPECTIVE OF LAND OWNRSHIP AND DISPUTE

RESOLUTION IN UGANDA.

Before the advent of colonialism, land was owned customarily depending on the customs and

cultures of a particular community. Disputes were likewise resolved depending on the different

customs and cultures of the respective societies in Uganda.

With the British occupation of Uganda around 1894, land ownership was subsequently affected

due to the introduction of new systems of land and as a result, more disputes arose. With the

3
Article prepared by Musumba Michael in December 2014 from Karuma Oyam District.
([Link]
reception clause in the Orders in Council, laws governing land ownership and land dispute

resolutions were transported to Uganda and as a result, Courts started adjudicating matters

concerning land disputes.

The case of NDIGEJJERAWA V KIZITO AND ANOTHER4 is an example on how courts

applied the laws that were existent during the Pre-colonial era; Ainley J gave his judgment that,

“No document or instrument can be registered unless it fulfills the requirements and no

instrument (however perfect it fulfills the statutory requirements) is effectual to transfer any

interest in land unless it has been registered based on the Registration of Titles Ordinance”.

Court applied the Law of the time (The Registration of Titles Ordinance, to solve a land dispute

among three parties.

Another example is the case of LUKWAGO V BAKWA SINGH AND ANOR 5, Bennet J. Clearly

stated that the essence of the relationship between a Mailo owner and holder of a kibanja is that

the Kibanja holder’s right of occupancy runs for an indeterminate period and it is heritable by

his/ her or successor.

A Mailo owner could not evict a Kibanja holder except where land was required for public

purposes or any other reasonable and sufficient cause or if the Kibanja holder left the land

unattended to for more than six months and in all cases of eviction they had to be by the sanction

of the court. It is evident therefore that Courts have been using the laws available in Uganda, to

resolve all the disputes arising out of land right from the time of the colonialism era.

Another observation is that, between the years 1962 (after Independence) and 1995 (when the

current Ugandan Constitution was promulgated), land ownership and dispute resolution

4
( 1953) 7 ULR 31
5
(1959) E.A 282 at 284.
experienced different phenomena, from court decisions to reform decrees. For example, at the

time Uganda became an independent state, customary tenants on public land were tenants at will

of Government with no legal protection against eviction. Later this position was changed by the

1969 Public lands Act the Security of customary tenants was safeguarded and their land could

not be alienated without their consent and if they so wished, they could apply for a lease over the

land they occupied.

But in 1975, the trend of events was changed by the Land Reform Decree. The land reform

decree declared all land public land and all land was vested in the Uganda land commission

which had the power to manage and allocate land on behalf of the state. Mailo and native

freehold were converted to 99 years leases for private individuals and 199 years for public

bodies. It is probable to say that at this time, land disputes were mainly handled by the State

through the Uganda Land Commission.

Development conditions were imposed to holders of these leases and failure to fulfill the

conditions within 8 years would result in forfeiture of the land to the Government. However the

law never lived to materialize due to a number of problems and later on in 1995, the Constitution

of the Republic of Uganda changed the situation by providing four forms of land tenures.

THE LAND TENURE SYSTEM UNDER THE 1995 CONSTITUTION OF UGANDA.

Under the 1995 Constitution, Article 237 clause 1 vests all land in the citizens of Uganda and it

provides for four types of land tenure that the courts consider in applying laws to solve land

disputes and they include:

- Mailo land
 - Freehold Tenure

- Leasehold Tenure

- Customary Tenure.

In the pursuance of these four types of tenures, different Laws have been enacted, crystalized and

applied by courts in Uganda, in solving disputes and these include The Land Act Cap 236, The

Registration of Titles Act Cap 240, The Mortgage Act Cap 239, The Land Regulations of ….

Among others and all these have been at center stage as being applied by courts in solving

different land disputes as seen in the following ways: -

In solving the issue of Fraud, the Supreme Court of Uganda in the case of Frederick J. K.

Zaabwe versus Orient Bank & 5 Other 6 defined Fraud according to Black’s Law Dictionary, to

mean an intentional perversion of truth for the purpose of inducing another in reliance upon it to

part with some valuable thing belonging to him/her or to surrender a legal right, and fraudulent

means acting willfully and with the specific intent to deceive or cheat, ordinarily for purposes of

either causing some financial loss to another or bringing about some financial gain to oneself.

This case further defined fraud to mean;

“Anything calculated to deceive, whether by a single act culmination, or by suppression of truth,

or suggestion of what is false, whether it is by a single, direct falsehood or the innuendo by

speech or silence, word of mouth, or look or gesture….a generic term embracing all multifarious

means which human ingenuity can devise and which are resorted to by one individual to get the

advantage over another by false suggestions or by suppression of truth and includes all surprise,

6
SCCA NO. 4/2006;
trick, cunning, dissembling any unfair way by which another is cheated….” Examples given

were,

 Forgery,

 Uttering a false document,

 Obtaining registration to defeat an unregistered interest,

 Deliberately refusing to find out the truth,

 Under declaration of value to deny government revenue.

Court also applied Section 59 of the Registration of Titles Act Cap 239 in solving the issue of

indefeasibility of a Title in the case of IWA RICHARD OKENY V OBOL GEORGE OKOT 7;

“Section 59 of the RTA guarantees that a title deed is conclusive evidence of ownership of

registered land. A title deed is indefeasible, indestructible or cannot be made invalid save for

specific reasons listed in Sections 64, 77, 16 and 176 of the Registration of Titles Act,

essentially which relate to Fraud or illegality committed in procuring the registration. In the

absence of Fraud on the part of the transferee, or some other statutory ground of exception, a

registered owner of land holds an indefeasible title. Accordingly, save for those reasons, a

person who is registered as proprietor has a right to the land described in the title, good

against the world, immune from attack by adverse claim to the land or interest in respect of

which he or she is registered”. This was direct crystallization and application of the Law as

provided by the Registration of Titles Act by the court.

7
HCMA No. 063 of 2012.
Courts have as well crystalized and applied Common and Principles of Equity in solving land

matters in Uganda as provided for by Section 14(2)(b)(i) of the Judicature Act of Uganda. A

good example is the principle in Lysaght vs. Edwards which was followed in the case of

Serunjogi vs. Katabira8. In that case, by a 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 possession to the plaintiff. The plaintiff sued for specific performance of the

agreement. Byamugisha J, after 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 judgment.

Another example is in the case of Katarikawe vs. Katwiremu9 in which court partly relied upon

the case of Walsh vs. Lonsdale10, Ssenkandi J said that “although mere knowledge of

unregistered interests cannot be imputed as fraud, coupled with a wrongful intention to defeat

such claims would suffice as fraud”. Thus in this case the plaintiff purchased land from the first

defendant but there was no transfer effected in his favor. The plaintiff never the less took

possession and effected many improvements on the said land. Meanwhile the first defendant

transferred the land to the second defendant, who was his brother in law. It was found that as the

8
CS No. 547 of 1987 (unreported) (1988-90 HCB 148).
9
(1977) HCB 187
10
(1882) 21 Ch. D
plaintiff had openly carried out improvements on the land and the fact that the two defendants

were closely related were sufficient grounds to prove connivance by the defendants to defraud

the plaintiff. That the second defendant’s title had therefore been obtained through fraud.

. In Uganda Posts and Telecommunications & Another vs. AKM Lutaaya and Anor11, 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 like Pilcher vs. Rawlins12 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. All the above examples are ways on how courts in Uganda have

crystalized and applied laws, in solving land matters.

Courts have also crystalized and applied laws to solve land matters through applying the Sections

of the Mortgage Act Cap 29. An example is the case of Barclays Bank Ltd vs. Katenda

11
(1995) unreported
12
(1871) 7 Ch. 250)
Luttu13, court held that if the mortgage agreement provides that the debt is payable on demand

and that in case of default, the mortgagee has the right to sell land without court order. He

defaulted the payment of the debt. Court further held that of the mortgagee has power to sell

without court order, the court has no power to order some other remedy or postpone the sale and

the only way the mortgagor can redeem the land is to pay the loan.

In the case of Sajjabbi Vs. Klamala And Anor14 , it was stated that when the application is

made, the court will assess the amount due and fix a date which must not exceed a period of 6

months from the date of default, within which payment is to be and if the mortgagor fails to pay

within the prescribed time, the court must order the mortgagor not to redeem the mortgaged

property and therefore the mortgagor has no right to redeem after foreclosure and the mortgagee

is granted the right to sell the property.

b) What are the limitations to the research made?

Generally speaking, Research is the systematic investigation towards increasing the sum of

human knowledge and a process of identifying and investigating a fact or a problem with a view

to acquiring an insight into it or finding an apt solution.

Legal research on the other hand is the finding and assembling of authorities that bear on a

question of Law15.

13
SC 22 of 1993
14
(1952)22 EACA 71.
15
Black’s Law Dictionary 8th Edition (2004) Page 2625.
It may be defined as the ‘systematic’ finding of law on a particular point and making

advancement in the science of law. However, the finding of law is not so easy. It involves a

systematic search of legal materials, statutory, subsidiary and judicial pronouncements.

The purpose of research, thus, is to acquire knowledge or to know about ‘something’ in a

scientific and systematic way. Its purpose may, however, be to find solution to the identified

problem. The former is referred to as ‘basic’ or ‘pure’ or ‘fundamental’ research while the latter

takes the label of ‘applied’ or ‘action’ research.

There are numerous Research methods employed by researchers to get the intended results and

these include Empirical, Doctrinal and Teleological types of research. In the above research, the

method or type of research used is Doctrinal research.

This means theorizing without considering the practical consequences. It is called a visualized

research, imaginative research, unpractical research.

The researcher pays excessive attention to theory as opposed to practice. Most legal research is

of this kind. Legal researcher wade through volumes of books, statutes and cases after which

they analyze their findings and make recommendations or suggestions. This type of method is

also called a priori research.

It involves a rigorous systematic exposition, analysis and critical evaluation of legal rules,

principles or doctrines and their inter-relationship. It arranges the existing law in order and

provides thematic parameters for such an order.

It also concerns with critical review of legislations and of decisional processes and their

underlying policy. Doctrinal legal research, as conceived in the legal research domain, is

research about what the prevailing state of legal doctrine, legal rule, or legal principle is.
A legal scholar undertaking doctrinal legal research, therefore, takes one or more legal

propositions, principles, rules or doctrines as a starting point and focus of his study. He ‘locates’

such a principle, rule or doctrine in statutory instrument( s), judicial opinions thereon,

discussions thereof in legal treatises, commentaries, textbooks, encyclopedias, legal periodicals,

and debates, if any, that took place at the formative stage of such a rule, doctrine or proposition.

The above research has the following limitations among others:-

 Subjectivity, whereby different scholars depending upon the reasoning power and

analytical skills may analyze legal concepts differently. It can be subjective and suffer

from the vice of perception of the researcher about the enquired subject matter. Therefore

another person can reach upon an entirely different dimension to the same question.

 It does not involve a study of the factors that lie outside law or legal system but have

directly or indirectly influenced the operation of the law, a legal rule, concept or doctrine.

 Sole reliance on traditional sources of law and judicial pronouncements of appellate

courts may leave the actual practice and attitude of lower courts and of administrative

agencies with quasi-judicial powers, whose judgments remain unreported, unexplored.

 Since there is no support from social facts or values, it may be far from social reality and
inadequate. This is a serious concern as law can act as an instrument of social
transformation.

 It neglects the factors that lie outside the strict brackets of law, which might have a
bearing upon the legal principle, theory or doctrine. For example, the recent amendment
in the criminal law regarding rape, wherein a huge public outcry was an extra-legal factor
that shaped the law.
 The actual practice and attitudes of people who are the functionaries and those who
implement the law is also not taken into account. Example the attitude of judges, lawyers,
police, administrative authorities, courts, and tribunals etc.