[2002] UGCA 19

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ CORAM: HON. JUSTICE G. M. OKELLO, JA HON. JUSTICE . A. TWINOMUJUNI, JA

CIVIL APPEAL NO. 20 OF 2002

# **BETWEEN**

#### <table> VENANSIO BAMWEYAKA & 5 OTHERS :::::::::::::::: **APPELLANTS**

## AND

### (1) KAMPALA DISTRIC LAND BOARD) (2) GEORGE MITALA ) **....................................**

(Appeal from the decision of the High Court (Katutsi. J) delivered on $21 - 12 - 2001$ in HCCS No. 511 of 2001)

### JUDGMENT OF G. M. OKELLO, JA $\overline{25}$

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This appeal arose from the decision of the High Court (Katutsi, J) delivered on $21 - 12 - 2001$ at Kampala in High Court Civil Suit No. 511 of 2001.

The appellants who were the plaintiffs at the trial, were occupants of a plot of land 30 situate at Ndeeba in the suburb of the City of Kampala and described as plot 1028 block 7 Kibuga, hereinafter referred to as the suit land. On 8^th November, 2000. the 1^st respondent allocated the suit land to the $2^{nd}$ respondent for lease. A formal lease was subsequently offered to him. The 2^nd respondent accepted the lease offer and he was latter registered as the proprietor of the suit land on 35

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$20 - 11 - 2000$ . A Certificate of Title in respect thereof was accordingly issued to him.

The appellants, who felt aggrieved by this development, sued the respondents jointly and severally seeking inter alia declarations that the appellants were bona fide/lawful occupants and/or customary owners of the suit land. The 1st respondent's allocation of the land to the $2^nd$ respondent was wrongful and that the $2^nd$ respondent obtained the lease thereof wrongfully, unlawfully and fraudulently.

Both respondents filed their respective Written Statements of Defence in which they denied the appellants claim. 10

After the scheduling conference at which agreed facts were recorded and documentary evidence received in court, the following issues were agreed upon for determination by the court:-

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- 1. Whether the Plaintiffs are lawful or bona fide occupants of the suit land. - 2. Whether the Plaintiffs are customary owners of the suit land. - 3. Whether the suit land was available for leasing to the second defendant at the time of the grant of the lease.

4. Whether the second defendant obtained the certificate of title lawfully.

Remedies. $5.$

Counsel for both parties filed written submissions. After considering those submissions, the trial judge answered issues No. 1 and 2 in the negative, issues No. 3 and 4 in the affirmative and finally dismissed the appellants' suit with costs. It is against this decision that this appeal was brought.

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There are 8 grounds of appeal couched as follows:-

- 1. the learned trial judge erred in law and in fact when he held that the appellants/plaintiffs were not bona fide occupants of the suit land; - 2. the learned trial judge erred in law and in fact when he held that a bona fide occupant under section $30(2)$ of the Land Act does not include a purchaser; - 3. the learned trial judge erred in law and in fact when he made a finding that the appellants were not customary occupants of the suit land within the meaning of the Land Act No. 16 of 1998: - 4. the learned trial judge erred in law and in fact when he held that the appellants have no legal interest in the suit land whatsoever when they purchased and have been in occupation of the suit land for a long time;

5. the learned trial judge erred in law and in fact when he refused or failed to find that the 2^nd Respondent obtained registration upon the suit land unlawfully;

6. the learned trial judge erred in law and in fact in failing or omitting to find that the 2^nd defendant acquired title to the suit land through fraud when there was overwhelming evidence to that effect:

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- 7. the learned trial judge erred in law and in fact when he decided the case against the appellants without affording them a proper hearing; - 8. the learned trial judge erred in law and in fact when he failed to evaluate the evidence on record and consequently reached a wrong decision.

Upon these grounds, the appellants asked this court to:-

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- (a) allow the appeal, set aside the judgment and decree of the High $Court:$ - (b) enter judgment for the appellants: - (c) condemn the respondents to costs here and in the High Court; and - (d) alternatively order a retrial of the suit on the merits.

Before I start to consider the arguments of counsel on the above grounds, there is one point which we had decided and reserved our reasons to be incorporated in this judgment. It is appropriate to deal with it at this stage.

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The point is that at the beginning of the hearing of this appeal, Mr. Kavuma-Kabenge, learned counsel for the $2^nd$ respondent drew our attention to a letter which was written by M/S Lubega-Matovu & Co Advocates on $6 - 4 - 2002$ purportedly on behalf of their "client, Edward Kizito", the 2^nd appellant. The letter was addressed to the Registrar of this Court and copied amongst others to $25$ M/S Kavuma-Kabenge, Sengendo & Co Advocates. In the letter, the author stated that Edward Kizito had never instructed any advocate whatsoever to institute on

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hrs behalf- the suit from u,hrch the instant appeal arose. He also said that his client denred ever rnstnrctlng lvl,rS Karnugrsha- By'amuglsha & Co Advocates to file this appeal on his behalf. He requested that the name of his client be removed from the record of this appeal. Upon that lener- Mr Kavuma-Kabenge pra-'"ed that the appeal rn respect of the 2nd appellant be struck out against the 2n respondent uith costs against the 2nd appellant.

Mr Nelson Nenma learned counsel for the l" respondent. associated himself u'ith Mr Kavuma-Kabenge's submission and praled also for costs for his client

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Mr Paul Muhimbura. learned counsel for the appellants. expressed surpnse at the lener He pointed out that though the letter indicates that it uas copied amongst others to hrs firm- Ir,t/S Muhrmbura & Co. Advocates- no such a cop\' \f,as ever sened on his firm According to hrm- the 2nd appellant and the rest of them had tointh' instructed him to first rnstitute on their behalf the onEnal suit in the High Court. whrch he did. When ther lost that case- thel again.;ointlr instructed him to prefer this appeal and lointlr pard the necessan instruction fee Learned counsel hovvever. expressed readiness to endorse the lr'ithdrau,al bid rf he was sure of the authenticitl of the contents of that letter

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After a short adjournment. Mr Muhrmbura informed us that he failed to contact the 2"d appellant to confirm rrhether or not he had instnrcted M,'S Lubega-Matoru & Co Advocates to lrrrte the letter. He. then. sought directron fiom court on the uav forward We ruled that the hearing of the appeal should proceed uith the partres as thev are but resen,ed our reasons. whrch I nou proceed to give.

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The procedure for withdrawal of an appeal is provided for in rule 93 of the Rules of this Court as under:-

(1) "An appellant may at any time after instituting his/her own appeal in the court and before the appeal is called on for hearing, lodge in the registry, notice in writing that he or she does not intend further to prosecute the appeal.

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(2) The appellant shall, before or within seven days after Lodging the notice of withdrawal, serve copies of it on Each respondent who has complied with rule 79."

It is clear from the above provision that an appellant who intends to withdraw his/her appeal only needs to give a written notice to that effect to the Registry of $15$ this court before the appeal is called on for hearing. Thereafter, he must serve copies of the notice to all respondents who have given their address for service under rule 79

In the instant case, M/S Lubega-Matovu & Co Advocates which wrote that notice $20$ purportedly as counsel for the $2^nd$ appellant did not file in this court any notice of change of advocate. This lack of notice of change of advocate casts doubt on the authenticity of the alleged instruction by the $2^nd$ appellant to M/S Lubega-Matovu & Co Advocates, when the court record still shows that Mr. Muhimbura who represented all the appellants at the trial is still their counsel on this appeal. $25$

It was for this reason that we disbelieved the letter and decided against withdrawal.

Turning to the ment of the appeal. I u'ish first of all to obsene generallv on the manner the tnal of thrs case u'as conducted At the scheduling conference held on 25 9 - 2001. admitted facts rr ere recorded- documentan' evldence uas received and issues for determrnation of the court were fiamed. Thereafter- the case \ras set dou'n for heanng on I - I I l00l However. the promised heanng \r'as not conducted. thus shutting out oral evrdence. Counsel for both parties and the trial court appear to have apneed that the fiamed rssues could be determined on the la\r. admined facts and the documentan evidence received alone. Counsel for both partres then filed lrrinen submrssrons uhich uere followed bl the ludgnnent of the court. No oral evidence uas called.

I think that uas a flau. Theludgment of the tnal ludge indicated that those rssues could not hare fairlr been determined uithout oral evidence. The trial ludge remarked in his ludgnnent on ser eral occastons that there was no evidence to prove this or that This shortcomrng could have been avoided had the promised hearing been conducted. The lacking evidence could probabll har.e been adduced. Learned counsel for the appellants made half-hearted complaint before us about this pornt and abandoned it. He even abandoned ground 7 u.hich \ras on the pornt. I- therefore. cannot pursue the pornt anl further.

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Be that as rt ma\'. Mr Muhimbura argued grounds I and 2 together On these grounds- Mr Muhimbura cntlctsed the learned trial -ludge for finding that the appellants were not bona fide occupants of the suit land because the1. had not been on the land for 12l'ears or more uhen the 1995 Constitution came into force He argued that the trial ludge had found as a fact that the appellants w.ere in occupation of the suit land at the time of the grant of its Lease to the 2"d respondent The learned tnal ludge had also found that the 1". 3'd. is and 6s

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appellants had bougfrr the plots from earlier occupants as eudenced b1'the Sales Agreements (Exh P l8 2l) Both these facts rvere confirmed b-n- the unchallenged lener fiom the Chairman. Local council (LC) of Kasumba Zone- (Exh p l) which the learned tnal .yudge admined rn evidence. The letter was addressed to the chairman. Kampala Disrno Land Board on 7 - 12 - 2000 confirming that some of the occupants had been on the suit land for fory years. Learned counsel further criticised the learned tnal ludge for failure to consider these pieces of documentan. e'idence- as he never referred to them in his.;udgment. In counsel's vre\ - had the tnal .yudge considered them. he r,rould have come to the correct conclusron that the appellants were bona fide occupants on the suit land. counsel submrtted that the tnal ludge misconstrued the lau uhen he held that a bona fide occupant does not include a purchaser when section j0 (5) pror.ides that it does

Leamed counsel argued that before the Land Act 1998 came into force. all land in the ciq was held under Staruton Lease b'the controlling authonB- Kampala Cin Council- except for freehold and mailo land. He asserted that the suit land w:.s one over which Kampala Ciq council had control as former controlling authoriq.. He pointed out that the tnal ludge had e'en found as a fact that the appellants w.ere pa'ing rates to Kampala cin Council under the Local Government (Rating) Decree No 3 of 1 979 over the suir land as evidenced b1. Receipts (Exh p 2 ) to that effect. In counsel-s vieu. demanding rates fiom the appellants was a recognition bl Kampala Cin Council that the appellants were owners of the land over which rates were demanded fiom them He concluded that since the interest of the appellants in the suit land uas recogrrised bl Kampala citl' Council- Kampala Distnct tand Board had no authong under sectron 60 ( l ) (a) of the Lands Act to allocate the land owned or occupied b1 the appellants without taking inro account the appellants' interest. t5

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Mr Nenma contended that submissron that the appellants are bona fide occupants contradicts the appellants'pleadings He pointed out thar in para 4 (b) ofthe Plaintthe appellants had claimed to be bona fide/lawful occupants and.ror customan. owners ofthe suit land. In praler l0 (b) the appellants sougfit a declaration to that effect. Yet. in their submrssions rn the Hrgtr Court as w'ell as here. counsel for the appellants did not argue these claims in the alternative. Learned counsel submined that under the Lands Act- bona fide occupancl and customan ownership are mutualll different interests One cannot. therefore. claim one and the other at the same time.

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On the lener lExh P l) liom the Chairman. LC I of Kasumba Zone- which the appellants relied on for evidence of their bona fide occupanc\'. Mr Nenma submined that the letter referred ro three different plors namel\': 1034. 1028 and part of 975 It does not specifi uhich of the onEnal tw'enq plaintiffs had been on whrch of the three plots for forn vears since onlv some were claimed to have been on the land for that long Learned counsel submitted that onlv the Sales Agreements (Exh P 18 - 2l) shou the penod of the 1". 3d 50 and 6s appellantsoccupanc) of the land. According to Mr Nerima. these documents shou. that these appellants had been on the land for less than 12 vears when the 1995 Constitutron came into force. In his vieu. that lustified the learned tnal ludge's finding that the appellants were not bona fide occupants

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Learned counsel Iirther argued that for one to be a bona fide occupant under section 30 of the Lands Act- he,she must be on someone else's registered land. He submitted that there was no evrdence of a regrstered owner of the suit land before the 2nd respondent whose registration was on 20 - ll - 2000 He rejected the submrssion bv Mr. Muhimbura- that before the coming into force of the lands Act

of 1998- the suit land was sub.;ect of a Statutory Lease held by Kampala Citl Council. as untenable for being evidence fiom the bar. No evidence to that effect was recorded and no finding wa-s made bl the tnal ludge to that effect. Counsel also discounted the Receipts (Erh P 2) issued in respect ofthe rates payment b) the appellants as unhelpful since all \*ere dated after 1995 No Receipt issued twelve vears before 1995 was tendered in court

Learned counsel. however. conceded that the leamed tnal ludge had erred when he held that a bona fide occupant does not include a purchaser since under sectron 30 (5) a bona fide occupant rncludes a purchaser. He contended nevertheless that this change would not reverse the outcome of the case because there was no evidence that the persons from whom the appellants purchased the land qualified to be bona fide occupants.

The learned tnal ludge dealt u rth the rssues rn his ludgrnent thus. t5

> \*Section 30 (l) of the Lend .{c( l99t delines -a lawful occupant' as:-

- (a) A person occupy lend b1'virtue ofthe repeeledi - l{r

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- (i) Busulu and Emunju lew of 1t28. - (ii) Toro Lendlord and Tenent Lew of ¹⁹³⁷ - (iii) Ankole Lendlord and Tenent Lew of 1937. - (b) A person who entered the land with the conscnt of thc rcgistered owtrerr end includes a purchaser; (c) A person who had accupied 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.

There is no evidence on record nor is it agreed that plaintiffs were persons occupying the land by virtue of the repealed laws mentioned There is no evidence nor was it conceded or argued that above. plaintiffs entered upon the suit property with the consent of the registered owner. There is no evidence to suggest that plaintiffs were customary tenants whose tenancy had not been disclosed or compensated for by the registered owner. In short there is nothing on record to bring the plaintiffs under the ambit of section 30 (1) of the Land Act, 1998.

Section 30 (2) of the Land Act 1998 defines a bona fide occupant as a person who before the coming into force of the Constitution:

- (a) Had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years, or more; or - (b) Had been settled on land by Government or agent of the government which may include a local authority.

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To qualify as a bona fide occupant under section 30 $(2)$ (a)

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therefore, one must have been on the land unchallenged for more than twelve years. The question now is does the period of twelve years or more include a purchaser who though has not been on the land for twelve years has taken over from someone that has been on the land for twelve or more years. It is to be noted that when defining a lawful occupant under section 30 $(1)$ (b) a purchaser is included. When defining a **bona fide occupant under section 30 (2) (a) the purchaser is** omitted. In the case of Gousper-Essex vs Action L. B. (1889) 14 App. Case 153, 169 Lord BRAMWELL said:

"The words of a Statute never should in interpretation be added to or subtracted from, without almost a necessity."

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## In the case of Attorney General vs Salem (1864) 2 H & C 431 **Pollock C. B. said:** $\mathbf{P}$

"In order to know what a Statute does mean, it is one important step to know what it does not mean; and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean, must be in harmony and consistent with what is clear that it does not mean.

What it forbids must be consistent with what it permits.

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If a matter is altogether omitted from a Statute, it is clearly not allowable to insert it by implication, for to do so would be as James L. J. said in the case of **RE. SNEEZUM (1876) 3 Ch. D 463"**

"not to construe the Act of Parliament but to alter it.".

I think the category of a "purchaser" was excluded or omitted in section 30 (2) (c) of the Land Act not accidentally but purposefully.

From the evidence on record four of the defendants went on the suit property just recently and after the coming into force of the 1995 Constitution. These are the first, third. $5^th$ and $6^th$ plaintiffs. It is argued that plaintiffs have been paying property rates to the City Council of Kampala, with respect the City Council of Kampala is not one and the same body as Kampala District Land Board. If I have construed the law correctly, these plaintiffs cannot be referred to as bona fide occupants.

There is no evidence on record to show how long plaintiffs 2 and 4 have been on the suit property. What was admitted is

that they are occupants on the suit property. Section 30 $(2)$ (c) therefore cannot apply to them. I would answer the first issue in the negative."

The trial judge found:-

$(1)$ that all the appellants were not lawful occupants as there was nothing that brings them within the ambit of section 30 $(1)$

$(2)$ that a bona fide occupant does not include a purchaser. 10 He relied on section 30 (2) (a) of the Land Act No. 16 of 1998.

> that all the appellants were not bona fide occupants $(3)$ because they had staved on the land for less than 12 years when the Constitution came into force.

With regard to finding No. 2 above, I agree with counsel for both parties to this appeal that the learned trial judge erred. He made that finding without regard to section 30 (5) of the Land Act which provides:

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"Any person who has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant under this section shall be taken to be a bona fide occupant for the purpose of this Act."

Had his attention been drawn to that sub-section, the learned trial judge would 25 have found that a bona fide occupant includes a purchaser for the purpose of this Land Act

As regards finding Nos. I and -i above. the terms \*Lawful occupant" and'bona fide occupant" are defined in sectron i0 (l) and (2) ofthe Land Act respectivel)' The provisions of these sub-sections are set out above rn the quoted part ofthe tnal ludge-s Judgnnent. I need not reproduce them here again The thread that runs through both sub-sections is that the occupied land must hare been registered in the name of another person or authontl for the occupant to claim to be either ^a lauful or a bona fide occupant

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lll In the instant case. the admitted fact shou's that the appellants were in occupation ofthe suit land at the time ofthe grant of rts lease to the 2nd respondenr The letter tExh. P l) fiom the Chairman. Local Council I of Kasumba Zone confirms that fact and adds that some of the appellants had occupied the land and others had bought it ( Exh P I 8 - 2 I ) fiom those u'ho had occupied the land unchallenged for over forn vears. The Recerpts (Exh. P 2) acknou'ledglng pat'ment b1 the appellants of properq rates to Kampala Ciry'Council- is evidence of recognrtion of the appellants as owners of properties on the suit land. There is however. no evidence that before the impug,ned reexstration of the 2nd respondent as the propnetor of the suit land- the land had been registered in the name of anv person or authorit) Under the provrsrons of sectron l0 ( l) and (2) of the Land Act. the appellants therefore. c:mnot. irrespective of the length of their occupation of the land. claim erther to be la\*fu| or bona fide occupants of the suit land because rt \r'as not a registered land of an\ person or authonn. In fact section 30 does not appll to the suit land. I cannot therefore fault the conclusion of the learned tnal tudge that the appellants were neither lau.ful nor bona fide occupants of the surt land Ground I and 2 r,rould therefore fail li lr t5

On ground l. Mr Muhimbura crrticised the trial ludge for finding that the appellants were not customar) o\\'ners of the suit land. He submitted that the appellants haung purchased the land lrom the people who had held and utilised it for over fortl years. qualified to be customan owners. He argued that case lau has established that use of land bl occupant establishes customar) tenure. He cited Matovu and 2 others vs Sseviri and Another, Civil Appeel No. 7 of t97t. To emphasise that point. Mr. B1'amugisha-Kamugisha relied on Jacob Lomolo vs Kilembe Mines Ltd. (197t) HCB 157

ro Sectron 2 of the Land Act defines customan'tenure to mean.-

## \*a system of lend tcnure regulated by customer-v rules which are limited in their opcration to a perticuler description or class of persons."

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Section 4 of the Act sets out the features or incidents of a customan'tenure to be.-

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- (a) appliceble to specific a rea of land and a specific description or class of persons; - (b) subiect to scction 2t of this .{ct governed by rules generell;- .ccepted as binding and authoritetive by tbe cless of persons to which it applies;

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(c) applictble to rnr- person acquiring lend in thtt erea in eccordence with those rules;

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- (d) subiect to scction 28 of this .{c( cheracteriscd by locel customr r-v reguletion ; - (e) eppl-viag locel customar.v reguletions end memgement to individuel end household ownership, use end occupetion of end trensection in land: - (f) providing for communal ownership end usc of lend; - l(r (e) in which percels of land ma-v- be recognised es sub divisions belonging to a persoo, a femily or e treditiooel institution: and - which is owned in perpetui(v. (h) - l5 l(r Mr. Nenma submined that the appellants' claim to be customary owners of the suit land was incompatible with their earlier claim that thel were also bona fide occupants of the same land. In counsel-s vieu- these rw.\_o nghts are mutualll' exclusive and the appellants did not iugue therr claims in the alternative He contended that there is no evidence uhrch bring the appellants within section 4 of the Land Act.

The learned tnal ludge found thus.-

\*A close study of scction 4 of the .{ct removes the pleintiffs from the qtegor.v of customar.v owners. I would enswer the second issue in the negative."

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o ^Imust point out that under section 3 of the Land Act- subject to Article 237 of the Constitution. all lands in Uganda are vested in the citzens of Uganda and are owned in accordance with the follouing land tenure s-v-stems.-

- (a) Customary' - (b) Freehold

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- (c) Mailo- and - (d) Leasehold. - l0 t5 t5 l(r The learned tnal ludge did not determine under which of the above land tenure svstems. the land which is in dispute uas owned. This omission obviousll was because oral evrdence was not called as the promised heanng was not conducted. It appears however- that it is not in drspute that until the impugned regrstration of the lnd respondent as its proprietor. the suit land was not regrstered in the name of an] person or authont) . The admined fact shows that the appellants were in occupation of the surt land at the time ofthe gnant of its lease to the 2d respondent This uas confirmed b1 the lener (E\h P ^I) fiom the Chairman- Local Council I of Kasumba Zone The letter adds that the appellants had occupied the land or bought it fiom those who had occupied it unchallenged for over forq'years. The purchase was evidenced b1 sale Agreement (Erh P l8 - 2l ). There is no conn-an evidence to this The receipts (Exh P2) acknouledglng payment bl the appellants of propert)' rates to Kampala Crq Councrl is evidence of Kampala Ciq Councrl's recognition of the appellants,ls o\ ners of propertres on the suit land. This ryoe of occupation of land as done b1 the appellants on the suit land without an1' lease or licence fiom the former controlling authonn. brings the occupiers under customan' tenancv within sections 2 and -l of the Land Act.

Matovu & 2 Others vs Sscviri and Anor (supre) was decided under the Land Reform Decree. 1975. which like the current Land Act- permitted customar] land tenure svstem In that case. it uas held that customan tenure mal be established by cultrvation onll' of seasonal crops or the grazing of caftle and related constructron of wells to \*ater cattle.

In the instant case. the appellants occupied the suit land and constructed properties on rt without anv lease or licence from the controlling authonN and remained on it unchallenged for forry y'ears. This constituted their customan nght of tenancv over the land. It w:ls wrong for the tnal ludge to have ignored this nght and found that the appellants were not customan tenants on the suit land. I. therefore- find merit on this ground. I would allou it.

This leads me to ground.4 which reads thus -

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\*The leerned trhl judge erred in lew end in fict whcn he hdd thet the eppellents heve no legal intercsts in the suit lend whetsoever when they purchescd end have been in occupetion of the suit lend for e long time.'

The complaint raised on this ground \r:rs rhar the tnal .yudge erred in finding thar the appellants had no legal interest u'hatsoever in the suit land. It was argued that since thev had purchased and occupied the land for over forty'years. the appellant had acquired the nght ofoccupancl over rhe land which the first respondent could not igmore when allocating the land to the second respondent

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Under section 60 t I ) (a) of the Land Act- a Distnct Land Board is en;oined to allocate in its distnct onll land rvhich is not owned by anl person or authontl' ^I have alreadv found in ground -i that the appellants were on the evidence on recordcustomary tenants on the suit land lt uas. therefore. wrong for the first respondent to allocate it to the second respondent without taking into account that interest of the appellants That act of the first respondent violated the clear provision of sectron 60 (l) (a) ofthe Land Act To that extent- the allocation ofthe suit land b} the first respondent to the second respondent was unlawful. This ground wouldtherefore- succeed.

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The next are grounds 5 and 6 rr.hich were argued together. Ther are couched thus -

- \*5. The learned triel judge erred in law end in fact when he refused or failed to find that the 2nd respondent obtained registration upon the suit land unlawfulll'. - 6. The learned triel judge erred in law and in fact in failing or omitting to find that the 2od respondent acquired title to the suit land through fraud when there was overwhelming evidence to thet effect. "

The complaint raised in these grounds was that the registration of the f"d respondent's interest in the surt land did not follo\$ the proper procedure and \.r'as fiaudulent in nature. Mr Muhrmbura cited a lefter dated z 12'2000 tExh P lt fiom the Chairman- Local Council I of Kasumba Zone to the Chairman. Kampala Drstnct Land Board as evrdence of failure to follou proper procedure. The lener

t: denied that the 2d respondent obtained recommendation to lease the suit land from the author who had lunsdiction orer the land. Learned counsel for the appellants submined that failure to obtain recommendatlon from the Chairman. Local

Council I- whose .;unsdiction cover the suit land. amounted to flouting the right procedure It was pornted out that the 2nd respondent instead obtarned recommendation to lease the suit land from a neighbouring Charrman- Local Council I. whose lunsdiction drd not cover the suit land. A Lener dated .l - 12 - 1000 (Erh P l0) from the Member of Parliament of Lubaga South. addressed to the Chairman. Kampala Distnct Land Board. was Even as evidence to support this assertion. Learned counsel subrnitted that bl obtaining recommendation from the neighbouring Chairman. Local Council I- w'hose lunsdiction did not cover the suit land. the 2nd respondent did not onlv act unlawfulll but also fiaudulentll

Learned Counsel firther crted a letter dated 20 ll - 2000 (Exh P 3) from the Pnncipal Staff Suney'or introducing a Land Sune-,-or to the Chairman- Local Council I- Wilson Zone- as evidence of the 2d respondent's fiaud The letter Introduced a Land Sunel'or to car4' out sunev for opening up boundanes of plot ¹⁰²⁸block 7 Learned Counsel submined that the certlficate of title was issued to the 2nd respondent on the da1 the lener Exh P -i was wntten thus showing that the certificate uas issued before the land rras surveved li l0

Mr Karuma-Kabenge. learned counsel for the 2n respondent contended that there \\as no illegaliq or liaud on the part of the 2"d respondent in obtaining tltle to the sult land He argued that there is no lau requinng recommendation fiom Local Councils before grant ofa Lease Therefore. failure bl the 2nd respondent to obtain recommendatron fiom the relerant Local Council did not constitute an illegalitl

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As for Exh P 3- Mr Karuma-Kabenge contended that the purpose of the survel in the area \r':rs to open up boundaries of plot 1028. block 7 In his view- that in itself was nol evidence of fi'aud.

- I have found on ground 3 that the appellants hold the suit land under customan' tenure Kampala Distnct land Board therefore. had no authontv whatsoever over it Under sub-sections | (a) and (b) of section 60 of the Land Act. it could onlv allocate in its Dtstnct Land which is not owned bl person or authonq,'. - Where the Distnct Land Board has authonS. the procedures to be followed in allocation of land bv the Board or Commission are set out in regulation 22 of the Land Regulations. 2001 (Sl No 16 of 2001) Sub.regulation 2 of regulation ²² provides thus llt - \* (2) On receipt of en application referred to in suEreguhtioo ^I of this reguletion, tbe Boa rd or Commission mev: t5 - (e) edvertisc the epplication for at lerst twentv one devs in a Nerspeper with wide circuletion in tte district end by such other means es are likely to drew the m.tter to the ettention of persons within the district; - (b) irvite. Dy person to commendan or object to the epplicetioo, giving reasons for any commetrt or objection; - l5

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(c) dctermine, efter taking into account . Dy commetrt or objcctions thet ma.r- be made in a meeting et which

members of the public ma-'- be pr€seirt whether the epplic.nt should be alloceted the lend for which applicetion is made.'

The purpose of the above regulatron is to encourage the Board to publicise the application for allocatron of anr land in the distnct so ,ls to sohcit comments or objections from the affected persons It follows that before anl land is allocated. the people who reside ln the area where the land applied for rs situate- must be consulted for comments or objections.

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In the rnstant case- even if Karnpala Distnct Land Board had pow.er over the sutt land- which is not so- there is no evrdence that the above procedure was followed pnor to the allocation of the surt land to the second respondent. On the contrar). there is evidence (Exh. P. l0) a letter fiom the area Member of Parliament whrch sho\*'s that consultatron uas made to the Chairman- Local Council I of the nerghbounng Zone who could not knou anv information about the land That uas fiaud. The tnck uas intended to deceive the Land Reglstration or Distnct Land Board that the land applied for uas available for lease I am satisfied. that there rs menl rn these grounds. Thel uould both succeed.

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Finally I nou turn to ground 8 since ground 7 was abandoned Ground 8 rras couched as follows:-

# \*The learned trial judge erred in law and in fact when he failed to evaluate the evidence on record and conscquentl-r- reached a wrong decision.-

Mr Muhimbura's complaint on this ground was that the learned tnal ludge drd not evaluate the exhibits especialll Erh P 2 whrch were admined unchallenged. According to him- the learned trial ludge never made anl reference to the receipts in hrsludgrnent. vet some of these recerpts were issued in 1987 He submined that the failure resulted into the tnal .yudge coming to wrong conclusron.

Mr. Kavuma-Kabenge did not agree He contended that the learned tnal judge considered the receipts Exh P I in his .ludgment. Learned Counsel submitted however- that pa!'ment of rates did not confer on the appellants ownership over the land for u'hich thel pard rates since these pa!'ments were for their occupation of the land.

The learned tnal ludge dealt uith thrs maner in hisludgrnent thus -

# \*It is ergued thet the pleintiffs have been paying propcrtv r.t€s to tb€ Citv Council of Kampala. with rcspcct thc Citv Council of Kempele is not one and the seme body as Kempale District Lend Board."

The above passage clearll shous that the tnal ;udge made a reference in his .yudgrnent to the evidence of appellants pa\ment of properry' rates to ',vhich Exh P 2 related. It was admined at a schedulrng conference that the appellants were in occupatron of the suit land. These pa)ments of properry'rates were made when the appellants were rn occupatron of the surt land. Thel are evidence of Kampala Ciq Council's recogrition of the appellants as owners of properties on the land thel' occupied. It was the appellants' method of occupation of the suit land rather than their pavment of rates which established their customan tenanct' over the land. ^I aeree that the learned tnal ludge did not properll direct his mind to the l0 t5

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significance of the evidence of the appellants' occupation of the suit land. Had he done so, the learned trial judge would have found that it brought the appellants within the ambit of sections 2 and 4 of the Land Act. This ground 8 would also succeed.

In the result, I would allow the appeal, and order as follow:-

Judgment and decree of the High Court is set aside. $(1)$

In its place it is substituted judgment for the appellants. $(2)$ 10

(a) They are the customary tenants of the suit land.

(b) The $2^{nd}$ respondent obtained his Lease fraudulently and the same be cancelled.

the respondents pay the appellants' costs here and in the High $(3)$ Court.

6^TL day of August, 2002. Dated at Kampala this ... $20$

G. M. Okello JUSTICE OF APPEAL.

$25$

$15$

$\overline{5}$

# **THE REPUBLIC OF UGANDA**

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ CORAM: HON. JUSTICE G. M. OKELLO, J. A $\checkmark$ HON. JUSTICE A. TWINOMUJUNI, J. A.

## CIVIL APPEAL NO.20 OF 2002

# VENANSIO BAMWEYAKA AND 5 OTHERS....................................

# VERSUS

#### 1. KAMPALA DISTRICT LAND BOARD } **}.............. RESPONDENTS** 2. GEORGE MITALA

$20$

$\mathsf{S}$

$10$

$15$

### (Appeal from the decision of the High Court (Katutsi, J) delivered on 21-12-2001 in HCCS No.511 of 2001)

# **JUDGMENT OF TWINOMUJUNI, J. A.**

I have read, in draft, the judgment of his Lordship, Hon. Justice G. M. Okello, J. A. I agree with his findings and conclusions. I wish, however, to 30 add only a few remarks: -

1. There is on record more than enough evidence clearly showing and proving that the appellants occupied and developed as customary occupants the disputed land in Ndeeba, a suburb of the City of Kampala, described as Plot No.1028 Block 7 Kibuga. For a very long time, the

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appellants and their predecessors in title have occupied the land as customary owners which interest was recognised by Kampala City Councit, the former Statutory Lease Holder of most public lands in Kampala City.

- 2. The 1995 Constitution of the Republic of Uganda abolished all Statutory leases and liberated all customary landowners by raising their maximum interest in the land from leaseholding to freeholding and ownership in perpetuity. Therefore, nobody can deprive a customary holder of his ownership except under article 26 of the Constitution. - 3. The provisions ofsection 30 ofthe Land Act, 1998, have no relevancy or application to customary land tenure at all. The concepts of "lawful occupant" and "bonafide occupant" only apply to freehold, mailo and leasehold land tenure - 4. Section 60 of the Land Act. 1998, does not apply to customary land ownership except where the owner wishes to register or transfer his/her interest in the land. The role of a District Land Board is limited to facilitatin such registration or transfer. - 5. The issue allegedly agreed upon at the scheduling cont'erence before the trial court to the effect that the l" respondent, Kampala District Land Board, was the Statutory owner of the disputed land was invalid and of no consequence whatsoever since statutory leases ceased to exist on the coming into force of the 1995 Constitution.

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- I 6. There is abundant evidence to prove that the 2nd respondent fraudulently applied for Plot 1028 Block 7 Kibuga but he was allocated "air" by o Kampala District Land Board. - 7. I would allow this appeal with costs here and in tlie trial court to the appellants.

Dated at Karnpala this day of ( .2002 lr

l0 ulunl STI F APPEAL.

t,

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

DRAM:

HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE G. M. OKELLO, J. A. HON. JUSTICE A. TWINOMUJUNI, J. A.

# CIVIL APPEAL NO. 20 OF 2002

# VENANSIO BAMWEYAKA AND 5 OTHERS............ APPELLANTS

## **VERSUS**

| KAMPALA DISTRICT LAND BOARD | | |-----------------------------|--| | GEORGE MITALA | |

Appeal from the decision of the High Court (Katutsi, J) delivered on 21^st December, 2001 in HCCS No.511 of 2001

# **JUDGMENT OF MUKASA-KIKONYOGO, DCJ**

I have had the opportunity of reading in draft the judgment prepared by Okello J. A. and I agree with him that this appeal should succeed. I do not have anything useful to add on.

As Twinomujuni J. A. also holds a similar view this court allows the appeal with the proposed orders by the learned Justices of Appeal.

Dated this. 6. Day. 1:192002

L. E. M. MUKAŠA-KIKONYOGO DEPUTY CHIEF JUSTICE