[2022] UGCA 173

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

lCoram: Egonda-Ntende, Kibeedi, Gashirabake JJAI

# Civil Appeal No. 13 of 2014

(Arising from High Court Civil Appeal No. I 7 of 2007)

## BETWEEN

Muwulize Growers C0-OP Socictv Ltd Appellant

## AND

Rohcrt Rwenzigyc :::::Respondent

(On oppeal from the judgment of the HighCourt of Uganda, (Kwesiga. J).. delivered on 20't'August 2013)

# JUDGMENT OF FREDRICK EGONDA-NTENDE JA

## lntroduction

l1l The appellant instituted claim No. KBGN0l3/2003 in the Kiboga District Land Tribunal against the respondent fbr trespass. The appellant sought the fbllowing orders:

> '( | ) An order stopping the def'endant fiorn trespassing on lhe clairrant's land.

(2) An order to Kiboga District [-and Board to recommend the claimant to get a land tittle to the suit land.

(3) Costs ofthe suit

(4) Any other relief. the honourable court shall deem tit.'

l2l The District Land Tribunal decided the matter in l'avour olthe respondent and dismissed the claim with costs. The tribunal fbund that the suit property belongs to the respondent because he had been in efl'ective occupation and possession of the suit property since 1992. This finding was based on the cvidence adduced in court that the respondent had f'enced ol'l'the suit property. rears cattle on the property and had built thrce houses and watering points on the land. Dissatislled with the decision ol'the tribunal, the appellant appealed to the High Court on the fbllowing grounds:

> '1. That the tribunal Chairman erred in law and fact to hold that the land belongs to the Defendant/Respondent.

2.'l'hat the Chairman erred in law and lhct when he fbiled to evaluate the evidence properly.'

t3l 'l'he llrst appellate court confirmed the decision olthe tribunal. It found that the respondent is the customary tenant of the suit property and that he was free to bring the land under the operation ofthe Registration of Titles Act by applying lbr a leasehold tenure in accordance with the provisions olthe law. The appellant has now appealed to this court on the sole ground that:

> 'The learned appellate judge erred in law when he failed to address his mind to the provisions ofthe Land Relbrm Decree No. 3 of I 975.'

l4l -l'hc respondent opposed the appeal.

#### Submissions of Counsel

t5l At the hearing, the appellant was represented by Mr. Arinaitwe Peter. The respondent did not appear in court. Counsel for the appellant opted to adopt the submissions on record.

- t6l 11 was counsel lbr the appellant's submission that since the respondent contended that he acquired the suit land in l99l betbre the coming into fbrce of the 1998 Land Act, his occupation was govemed by the Land Reform Decree No.3 of 1975 which prohibited the acquisition of fiesh customary tenancy without written permission from the sub-county chief and as such, the respondent does not qualify as a customary tenant on the suit land. That it was erroneous lbr the trial judge to only apply section 24 ofthe Land Act. That the section should have been read together with section 5( I ) of the Land Act which prohibits creation of customary tenure on any public land except with the permission of the prescribed authority. Counsel relied on Kampala District Land Board and Another v Venansio Babweyaka & others 120081 UGSC 3 tbr his submissions. - l7l It was also counsel fbr the appellant's submission that the respondent did not adduce any evidence to show the custom or the customary practice under which he acquired the suit property to prove his customary tenancy. He also relied on Kampala District Land Board & Anor v Babu,eyaka & 3 Ors (supra) firr this submission. - l8l Counsel concluded that since the respondent's purported occupation of the suit property was illegal, the appellant rightly and legitimately acquired a valid lease olfer tbr the suit property.

## Analysis

- t9l This being a second appellate court, it has no duty to re-evaluate the evidence unless the tirst appellate court had lailed in its duty to do so. See Narsensio Begumisa and Ors v Eric Tibebaga t20041 UCS!' 18. Section 72 of the Civil Procedure Act also limits second appeals to this Court to only questions of law. - ^I^I0] Counsel for the respondent contended that it was erroneous lbr the tlrst appellate court to rely on the provisions the Public Lands Act to hold that the respondent was a customary occupant of the suit property in exclusion of the provisions of the Land Relbrm Decree of 1975. While determining the question of ownership ofthe suit property, the first appellate court stated:

'ln I 99 I when lhe facls of this case started unfolding the land in issue was public land which fell under the control and management of Uganda Land Commission under provisions ofthe Public Lands Act. Act l3 ol t969.

Section I of the Act vesled in the Commission all rights. titles. eslates and interest in land and other obligations. Section l7 ofthe Act gave Uganda Land Commission the powers to grant leases- Section 19, and 24 protected and gave the customary tenants priority to being granted lease over the land they occupied. Section 24( l) made it lawful for a customary tenant Io occupy public land without grant. lease or licence fiom the controlling authority while Section 24(2) prohibited leasing any public land which or part of \*'hich was occupied by a cusbmary tenant without their consent. Section 24(3) provided that fbilure to disclose that the land applied for was occupied by customary tenants was a ground lor withdrawal by the conlrolling authority any grant made.

Bekunda Prv I conceded that the land was occupied and under use ofthe Respondent for grazing and had established cattle wells. He conceded these were the facts when he applied to lease this land now in dispute. Pw3 confirmed that the Respondenl had occupied and developed the land and conlinued being in occupalion since l99l . In my view failure to disclose these facts in the application lbr lease by the appellant was done in bad fhith to def'eat the interest of the Respondent's unregistered interest and the offer based on this application is invalid. I am satisfied that thc Respondent was a customary tenant on public land that was protected by section 24 ofthe Public l-ands Act (Act l3 ofl 1969) as a whole. It is hereby ordcred that the lease offer given to the Appellant be and is hereby struck ofT fbr being nu ll and void lbr failure to disclose the Respondent's interests.

The evidence constituting proof of Ihis customary tenure include the following: - (i) The Respondent occupied this land since l99l with the consent ofthe LC I Chairman the local authority and nobody else occupied the land or part of it. (ii)'l'he Respondent cultivated part ofthe land and grazed cattle on the land. (iii) The Respondent had alienated the land by clearly fencing the land.

(iv) The Respondent had developed three cattle watering wells or dams and buih houses on the land.

ln my view the above evidence provides answers as to who is the owner of the land. I have lbund it was the Respondent who occupied. possessed and used the suit land to the exclusion of other people and was recognized by the local authorities, the L C ^I Chairman. as the customary tenant ofthe land therefore he is the owner ofthe land.'

- I I ] It is not in contention that before the parties started laying their respective claims on the suit property, the land was fiee public land. The respondent's claim over the land arose in l99l and at the time, acquisition of interests in land was govemed by the Public Lands Act of 1969 subject to the Land Reform Decree of 1995 and the regulations thereunder. - ^Il2l However, the point of law the appellant is raising now was neither raised in the court offirst instance nor in the tirst appellate court. This is the question ofwhether or not section 5 ofthe Land Relbrm Decree applied to the suit land. Notwithstanding that this was irregular without seeking leave of this cou(, I will nevertheless. consider this sole ground. - ^I^I3] ^Iagree with the leamed judge's interpretation ol section 24 of the Public Lands Act of 1969. I will set out Section 24 ofthe Public Lands Act 1969 in its entirety. It stated:

'24( I ) Subject to the prov isions of subsection ( 5 ) of this Act. it shall be lawf'ul for persons holding by customary tenure to occupy without grant . lease or licence from the controlling authority any unalienated public land vested in the Cornmission. if. (a)the land is not in an urban area; and (b)no tenancy or other right ofoccupancy has been created in respect of it. (2) A controlling authority shall not make a grant of freehold or leasehold ofpublic land which or part of which is occupied by persons holding by customary tenure without the consent of such persons. (3) Without prejudice to anything provided under section 49 olthis Act an applicant for an estate in

freehold or leasehold of public land which is occupied by customary tenure at the time ofapplication shall, (a) state in the application that the land is so occupied; and

(b) Furnish to the controlling authority evidence of the consent ofthe occupier required under the immediately preceding subsection,

And failure to comply with paragraph (a) of this subseclion shall be a ground for the withdrawal by the controlling authority ofany grant made in respect of such application.

(4) where. in accordance with the provisions of this section, a controlling authority makes a grant in freehold or leasehold of public land. any person occupying such land by customary tenure shall be entitled to be paid such compensation as lhe Minister may, in writing. approve.

(5) the Minister may, by statutory order. specify any area of Uganda to be an area in which public land which is not occupied by customary tenure at the commencement of such order shall not. thereafter. be occupied otherwise than by virtue ofan estate. interest, or other right of occupancy granted by the controlling authority or upon such conditions as the Minister may specify in such order.'

- I4l Under this section, it was lawful lbr a customary occupant to occupy fiee public tand without a lease, grant. or licence from the govemment. 'l'he govemment was prohibited from granting in freehold or leasehold any public land that was lawfully occupied under customary tenure without the consent of the customary occupants. Applicants tbr land occupied by customary tenants had to fumish the controlling authority with evidence that the occupants consented to the application and the compensation payable to them. Failure to provide such evidence. or to pay the customary occupants compensation approved by the Minister. was a ground fbr revocation of the grants. - [5] I]owever. the right enjoyed by the citizens to occupy unalienated public land by customary law without prior permission liom the govemment

was abolished by the Land Relorm Decree of 1975. The Land Refbrm Decree declared all land in Uganda public land to be administered in accordance with the Public l,ands Act.

[6] Scction 5 olthe l.and Reform Decree stated:

'5( | ) With eftbct from the commencement of this Decree, no person may occupy public land by customary lenure excepl with the permission in writing ofthe prescribed authority \*,hich permission shallnot be unreasonably withhe ld:

Provided that the Commission may. by statutory order. specifo areas which may be occupied by free temporary licence which shall be valid flrom years to year until revoked.

(2) Any agreement or transfer purporting to create ^a customary tenure of land contrary to subsection ( l) of this section shall be void and of no effect and. in addition, the person purporting to effect such transfer shall be guilty ofan oft'ence and shall be liable. on conviction, to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding two years or both such fine and imprisonment.

(3) Upon lhe conviction of any person under subsection (2) ofsection 4 or subsection (2) of this section. Ihe court shall, in addition to the penalty prescribed in each sub-section. order the refund olanything paid as purchase price to the person by whom such payment was made.'

l17l The Land Reform Regulations of 1976 stipulated the procedure to be Ibllowed by persons who wished to occupy public land by customary tenure. In Kampala District Land Board and Another v Venansio Babweyaka and Others t20081 UGSC ³ . Odoki CJ (as he then uas) stated

> '-l'he Land Retbrm Decree 1975 declared all land in tJganda to be public land to be administered by the tJganda Land Commission in accordance wilh the Public Land Act 1969. subject to such modifications as may be necessary to bring that Act into conftrrmity with the Decree. The system ofoccupying public land under customary tenure was to continue. but only aI sufl-erance and any such land could be granted by the Commission Io any person including the holder of the tenure in accordance with the Decree. Under Section ⁵ it was provided,

"5( l) With ethct fiom the commencement of this Decree. no person may occupy public land by cuslomary tenure except with the permission in writing oflhe prescribed authority which permission shall not be unreasonably withheld:

Provided that the Commission may. by statutory order specify areas which may be occupied by free temporary licence which shall be valid from year to year until revoked."

Subseclion (2) provided.

"(2) Any agreement or transfer purporting to create ^a customary tenure of land contrary to Subsection ( l) of this Section shall be void and of no el'fect and. in addition the person purporting to elfecl such transfer shall be guilty ofan offence and shall be liable on conviction Io a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding two years or to both such find and imprisonment."

lJnder the [-and Reform Regulations 1976. any person wishing to obtain permission to occupy public land by customary tenure had lo apply to the Sub County Chief in charge ofthe area where the land was situated. After processing the application. it had to be sent to the Sub-County Land Committee lbr approval.

'l'he question is whether the respondents did acquire the customary ownership following the enactment of the Land Refbrm Decree. The answer Io this question appears to be in the negative. Restrictions on acquisition ofcustomary tenure under the Public Lands Act seem to have continued as the law continued to govern all types of public land including customary tenure subject to the provisions ofthe Decree. ln order to acquire tiesh customary tenure one had to apply to

the prescribed authorities and receive approval of his or her application.'

- t I 8I Considering the above, a fiesh customary interest could not accrue from merely occupation. possession and use of l'r'ee public land as was held by the leamed appellateiudge. I find that the respondent did not acquire a customary interest in the suit property in light olthe then prevailing law. However, that is not the end of the matter. The question then remains as between the appellant and the respondent whose interest in the suit land had priority, given that both ofthem had received lease ot-fers fiom Uganda Land Commission. - [9] PWl, Mr. Bekunda Claver Francis. the Secretary General to the appellant testifled that at a time he does not recall. the appellant applied to the Uganda Land Commission for a lease on suit property. 'Ihe appellant was granted a lease of-fer on 23'd September 1994 and the District Land Board allowed the appellant to survey the land in 1995. That the appellant was subsequently inlbrmed by the District Land Board that it cannot process the land title to the land because the respondent was doing the same. He stated that the respondent told them that he had also been ofl-ered a lease on the same piece of land. PW I testified that the appellant has no developments. On cross examination. he stated that he was aware of the respondent's developments on the suit land. - I20l PW2, Mwesigye Sam's evidence was to the same effect as that of PW I . He testilied that the members of the association led by PWI approached him in 1994 and told him that they wanted land in Kyampagi village. That they identificd the suit property and the LC1 chairman of the village (PW3) told them that it was free.'['he chairman gave him a recommendation that he took to Mityana Land of'fice. l'hat the district land Committee Kiboga went to the suit land and recommended that it was fiee fiom dispute and thereafter a lease ol'lbr was granted. The appellant adduced documentary evidence to that eflfect. He stated that the appellant paid premium and thereafter the land was surveyed. A copy of the deed plan was produced in court. When the association was in the process of getting a certificate of title, it was stopped by the respondent who claimed to have an interest in the suit property.

- 121) PW3, Semyalo l,ivingstone was the LC I chairperson Kyampagi village fiom I 991 to I 996, he stated that he recommended both parties for the application ofa lease on public land on diflbrent pieces of land. His evidence corroborated the evidence of the respondent that he applied for the land in 1991 and sta(ed carrying out developments on the land in 1992. - 122) lt was the respondent's testimony that when he bought his three bibanja in Kyampagi village, he was inlbrmed by the people he purchased from that there was tiee public land in the area and upon establishing that the suit land was indeed free public land, he went to Kyampagi L. C.l and a got a recommendation endorsed by all the 9 executive members to use the land . This was in the year 1991. That he was also told by the land officers in Mityana to use the suit property until the enactment of the 1995 Constitution. He stated that he started cultivating on the land in 1992 and started grazing his cows on the land in I 993. Between those years, he constructed three houses and three watering wells on the land. He instructed Robert Kakumba to survey the land in 1995 befbre being transl'erred to the 4tr' inl'antry division and that when he came back in 1998. he discovered that the appellant had surveyed the same land. Upon cross examination, the respondent stated that he got permission to use the land by the land Board at Mityana. - l23l DW2, the LCI chairman of Kyampagi village since 2001 corroborated the evidence of DWl. He stated that the appellant's land is different lrom the disputed property. That the forwarding letter for acquisition of land and the lease ofl-er that the appellant got were regarding a completely diff'erent piece of land. - l24l From the evidence on record, both parties applied tbr a lease on the suit property and had been granted offers by the Uganda Land Commission. This is confirmed by the letter on record dated 6'h October 2003 from Kiboga District Local Govemment to the Secretary, Kiboga District Land Tribunal and the letter dated l4th May 2003 from Kiboga District Local Govemment to the part ics.

- [25] It is not in dispute that the respondent has been in occupation and using the suit property since I 991which grants him a possessory interest in the suit property. On the other hand, the appellant was not in possession of the suit land. In his application fbr a lease the appellant did not disclose that the land was occupied by the respondent though its ofl'icers knew that to be the case. The appellant wrongfully claimed in its application that the land was vacant whereas not. This was fiaudulent conduct. As between the appcllant and the respondent it is only t'air and just to recognise the interest ofthe respondent, given that he was in occupation ofthe land and had developed the same. to take priority in consideration of the grant ofa leasehold and registrable interest liom the controlling authority. - 126) In arriving at this decision I take comfort in the provisions ofsection l0 (3) of the Magistrates Courts Act, which empower the Magistrates Court, which has the same jurisdiction as the Lands Tribunal in relation to land matters, even if only by analogy, which require the court where no particular rule applies to be guided by principles ofjustice, equity and good conscience. It states.

'ln civil causes or matters where no express rule is applicable to any mafter in issue. a magistrate's court shall be guided by the principles ofjustice. equity and good conscience.

- [27] There is no particular rule that applies to a case where there are ² competing claimants of a portion of public land. One in undisturbed occupation of the public land, fbr l2 years or more. and had developed it And the other not in occupation, when both ofthem have applied to be granted a leasehold interest in the said property from the controlling authority. Principles ofjustice, fbimess and good conscience would dictate in my view that the party in occupation, who has developed the same. be given priority. - [28] I would direct the Kiboga District Land Board to continue processing the respondents' application fbr the issue ofa leasehold title to the suit land and would quash the of'fbr made to the appellant. I would uphold the orders olthe High Court of Uganda in respect to the suit [and.

l29l Much as the appellant succeeded on his sole ground it is a pyrrhic victory. I would not grant the appellant any costs on appeal. The respondent did not tum up fbr hearing this appeal and much as his success in the courts below remains undisturbed, I would not allow him costs in this court. I would grant the respondent costs in the courts below.

#### Decision

[30] As Kibeedi and Gashirabake, JJA. agree. this appeal is technically allowed with no order as to costs. The appellant's claim to the suit land is dismissed. The respondent is confirmed as the benetlcial owner of the suit land entitled to process a grant fiom Kiboga District Land Board and register the same.

Dated, signed and delivered at Kampala thir'rnliuy oi H 2022.

rick lrgon -Ntcnclc a Justice of Appeal

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

lCoram : Egond a-Ntende, Kbeedi, Gashirabake JJ Al

# Civil Appeal No. 13 of 2014

(Aising from High Courl Civil Appeal N0.17 of 2007)

# BETWEEN

Muwulize Growers CO-OP Society Ltd Appellant

#### AND

Robert Rwenzigye Respondent

(On appeal from the judgment of the High Court of Uganda, (Kwesiga, J), delivered on 20h August 2013)

# JUDGEMENT OF MUZAMIRU MUTANGULA KIBEEDI, JA

I have had the advantage of reading in draft the Judgment prepared by my Lord, Fredrick Egonda-Ntende, JA. I concur with the reasoning and conclusions made.

Dated at Kampata this iL day of \ - -J ²⁰²² ("\^.

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

Coram: I Egonda-Ntende, Kibeedi, Gashirabake] JJA

#### CIVIL APPEAL NO. 13 OF 2014 (Arising from High Court Civil Appeal No. 17 of 2007)

# BETWEEN

# MUWULIZE GROWERS CO-OP SOCIETY LTD : : : : : : : : : : : : : : : :APPELLANT

### AND

ROBERT RWENZIGYE::r::::::::::::::::::::::::r::::::::::::::::: RESPONDENT

On appeal from the Judgment of the High Court of Uganda, [Kwesiga, J] delivered on 20th August 2013.

# JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA

I have had the benefit of reading ⁱ Lord, Hon. Justice Egonda-Ntend conclusions therein. I have nothin n draft the Judgment prepared by tvly e JA. I concur with the reasoning and g useful to dd.

day of ..... Dated at Kampala this aql- ²⁰²²

Ch rtc topher Gashirabake, JUSTICE OF APPEAL