[2001] UGCA 62

# $183$

### 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**

#### VENANSIO BAMWEYAKA & 5 OTHERS ::::::::::::::::::::::::::::::::::::

### AND

#### (1) KAMPALA DISTRIC LAND BOARD) ) ::::::::::::::::: RESPONDENTS (2) GEORGE MITALA

$20$

$\frac{1}{10}$

$15$

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

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

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 $\overline{35}$ and he was latter registered as the proprietor of the suit land on

$20 - 11 - 2000$ . 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.

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:-

- 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.

5. Remedies.

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.

$\overline{2}$

$20$

$10$

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;

$\overline{ }$

$10$

$15$

$20$

$25$

- 7. the learned trial judge crred in law and in fact when he decided the case ageinst thc appcllan6 without affording them a proper hearing; - {i. the lea rned trial judge errcd in lar+ and in fact when he failed t<t evaluate the evidence <tn re'cord and conscquentll reached a \r'r(,ng dccision.

Upon thcse grounG. tlre appcllants asked tlris coun lo -

- (a) allou'the appeal. set aside the judgment and decree of the High Court: - (b) enterJudgment for the appellants. - (c) condemn the respondents to costs here and in the High Coun: and - (d) alternativell' order a retrial of the suit on the ments.

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. lt is appropriate to deal u,ith it at this stage.

2(l

l5

l0

]'.

D

t

The point is that at the begrnning of the hearing of this appeal. Mr. Karuma-Kabenge. [earned counsel for the 2nd respondent dreu, our atlention to a letter which was '\*ritten b1' M/S Lubega-Matoru & Co Advocates on 6 - 4 - ²⁰⁰² purportedll' on behalf of their \*client Edward Kizito-, the 2nd appellant The 25 lefter was addressed to the Registrar of this Court and copied amongst others to lv{/S Kavuma-Kabenge. Sengendo & Co Advocates. In the lener. the author stated that Edward Krzito had never instnrcted anv advocate whatsoever to instirute on

-l

## $|8|$

his behalf, the suit from which the instant appeal arose. He also said that his client denied ever instructing M/S Kamugisha. Byamugisha & 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 letter. Mr. Kavuma-Kabenge prayed that the appeal in respect of the $2^{nd}$ appellant be struck out against the $2^{nd}$ respondent with costs against the $2^{nd}$ appellant.

Mr. Nelson Nerima. learned counsel for the 1^st respondent. associated himself with Mr. Kavuma-Kabenge's submission and praved also for costs for his client.

Mr. Paul Muhimbura, learned counsel for the appellants, expressed surprise at the letter. He pointed out that though the letter indicates that it was copied amongst others to his firm, M/S Muhimbura & Co. Advocates, no such a copy was ever served on his firm. According to him, the $2^nd$ appellant and the rest of them had jointly instructed him to first institute on their behalf the original suit in the High Court, which he did. When they lost that case, they again jointly instructed him to prefer this appeal and jointly paid the necessary instruction fee. Learned counsel however, expressed readiness to endorse the withdrawal bid if he was sure of the authenticity of the contents of that letter.

After a short adjournment. Mr. Muhimbura informed us that he failed to contact the 2^nd appellant to confirm whether or not he had instructed M/S Lubega-Matovu & Co Advocates to write the letter. He, then, sought direction from court on the way forward. We ruled that the hearing of the appeal should proceed with the parties as they are but reserved our reasons, which I now proceed to give.

$\overline{5}$

Tlre procedure for withdrawal of an appcal is prorrded for in rule 93 of the Rules of this Court as under:-

( ^t) \*An appellant mav at anv time after instituting his/her oxn appeal in (he cour( and bcfo re the apg:al is called on for hearing, Iodgc in (hc rcgistn. notice in \*riting thzt hc or she d<x:rs not intcnd further to pros.tute thc a p pca l.

I.

l.'

I

T

T

o

l(l

li

l

(2) -t-hc appellant shall. trcfo re or within seven davs 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 rvho intends to rvithdrau' his/her appeal onlv needs to give a untten notice to that effbct to the Regrstr)' of this court before the appeal is called on for heanng. Thereafter. he must sen,e copies of the notice to all respondents \.{,ho have given their address for service under rule 79

I-n the instant case- Irzl/S Lubega-Matow & Co Advocates which wrote that notice purportedll as counsel for the 2nd appellant did not file in this court :rn]' notice of change of advocate. This lack of notice of change of advocate cass doubt on the authenticin of the alleged instruction b1' the 2nd appellant to tWS Lubega-Matovu & Co Advocater when the court record still shou,s that Mr. Muhimbura who represented all the appellants ar rhe tnal is still their counsel on this appeal. l(l

It rvas for thrs reason that we disbelieved the letter and decided agarnst withdrawal

Turning to the merit of the appeal, I wish first of all to observe generally on the manner the trial of this case was conducted. At the scheduling conference held on $25 - 9 - 2001$ , admitted facts were recorded, documentary evidence was received and issues for determination of the court were framed. Thereafter, the case was set down for hearing on $1 - 11 - 2001$ . However, the promised hearing was not conducted, thus shutting out oral evidence. Counsel for both parties and the trial court appear to have agreed that the framed issues could be determined on the law. admitted facts and the documentary evidence received alone. Counsel for both parties then filed written submissions which were followed by the judgment of the court. No oral evidence was called.

I think that was a flaw. The judgment of the trial judge indicated that those issues could not have fairly been determined without oral evidence. The trial judge remarked in his judgment on several occasions that there was no evidence to prove this or that. This shortcoming could have been avoided had the promised hearing The lacking evidence could probably have been adduced. been conducted. Learned counsel for the appellants made half-hearted complaint before us about this point and abandoned it. He even abandoned ground 7 which was on the point. I, therefore, cannot pursue the point any further.

$25$

$\overline{5}$

$10$

$15$

Be that as it may. Mr. Muhimbura argued grounds 1 and 2 together. On these grounds. Mr. Muhimbura criticised the learned trial judge for finding that the appellants were not bona fide occupants of the suit land because they had not been on the land for 12 years or more when the 1995 Constitution came into force. He argued that the trial judge had found as a fact that the appellants were in occupation of the suit land at the time of the grant of its Lease to the 2^nd respondent. The learned trial judge had also found that the $1^{\text{st}}$ , $3^{\text{rd}}$ , $5^{\text{th}}$ and $6^{\text{th}}$

## ( 90

appellanrs had bougfit the plots from. earlier occupants as cvidenced b1' the Sales Agreements (Exh P l8 - 2l ) Both these facts rvere confirmed by the unchallenged lefter fiom the Chairman- l-ocal Council (LC) of Kasumba Z-one- (Exh P l) \$'hich the learned trral ludge admined in evidence. The leltcr rt'as addressed to thc Charrman- Kampala District L-and Board on 7 - l2 ²⁰⁰⁰confirmins that sotne ofthe occupants lrad been on thc sull land lor fonl vears [.carned counsel lurlltcr criticised thc lcanrcd trial ludgc lor {ailure to considcr thcsc picces of docurnentan evidencc. as lre ncvcr rcfcrrcd 1o tllcm in hisludgmen( In counsel's vre\\. had thc tnal ludgc consrdcred thcrn. lre rrould hare come to thc correcl conclusron that tlrc appellants rr,ere bona fide occupants on the suit land. Counsel submined that the tnal judge mrsconstrued the lau uhen he held that a bona fide occupant does not include a purchaser rvhen section 30 ( 5 ) provides that it does

o

l(r

l

li

t5 Learned counsel argued that before the Land Act 1998 came into force- all land in the citl u,a-s held under Statuton L,ease b1'the controlling authoritl,- Kampala Citl Council. except for freehold and rnailo land. He asserted that the suit land \\'as one over which Kampala Ciq' Council had control as former controlling authorit\'. He pointed oul that the trial judge had even found as a fact that the appellants were paying rates to Kampala Ciq' Council under the Local Government (Rating) Decree No. -1 of 1979 over the suit land as eridenced b1'Receipts (Exh P 2) to that effect. In counsel's view. demanding rates from the appellants was a recognition bv Kampala Ciq Council that the appellants were ou"ners of the land over which rates were demanded fiom them He concluded that since the interest of the appellants in the suit land was recognised b1' Kampala City\* Council- Kampala District Land Board had no aurhorirl under section 60 ( l) (a) of the l-ands Act to allocate the land orvned or occupied bv the appellants \\ithout taking into accounr the appellants' interest. l0

It Mr. Nerima contended that submission that the appellants are bona fide occupants contradicts the appellants' pleadings. He pointed out that in para 4 (b) of the Plaint. the appellants had claimed to be bona fide/lawful occupants and/or customary owners of the suit land. In prayer 10 (b) the appellants sought a declaration to that effect. Yet, in their submissions in the High Court as well as here, counsel for the appellants did not argue these claims in the alternative. Learned counsel submitted that under the Lands Act, bona fide occupancy and customary ownership are mutually different interests. One cannot, therefore, claim one and the other at the same time.

$10$

$20$

On the letter (Exh P 1) from the Chairman, LC I of Kasumba Zone, which the appellants relied on for evidence of their bona fide occupancy. Mr. Nerima submitted that the letter referred to three different plots namely: 1034, 1028 and part of 975. It does not specify which of the original twenty plaintiffs had been on which of the three plots for forty years since only some were claimed to have been on the land for that long. Learned counsel submitted that only the Sales Agreements (Exh P 18 – 21) show the period of the 1^st, 3^rd 5^th and 6^th appellants occupancy of the land. According to Mr. Nerima, these documents show that these appellants had been on the land for less than 12 years when the 1995 Constitution came into force. In his view, that justified the learned trial judge's finding that the appellants were not bona fide occupants.

$25$

Learned counsel further 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 evidence of a registered owner of the suit land before the $2^{nd}$ respondent whose registration was on $20 - 11 - 2000$ . He rejected the submission by Mr. Muhimbura, that before the coming into force of the Lands Act of 1998, the suit land was subject of a Statutory Lease held by Kampala City Council, as untenable for being evidence from the bar. No evidence to that effect was recorded and no finding was made by the trial judge to that effect. Counsel also discounted the Receipts (Exh P 2) issued in respect of the rates payment by the appellants as unhelpful since all were dated after 1995. No Receipt issued twelve years before 1995 was tendered in court.

Learned counsel, however, conceded that the learned trial judge had erred when he held that a bona fide occupant does not include a purchaser since under section 30 (5) a bona fide occupant includes 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 trial judge dealt with the issues in his judgment thus:- $15$

> "Section 30 (1) of the Land Act, 1998 defines 'a lawful occupant' $as:-$

(a) A person occupy land by virtue of the repealed:-

- $(i)$ Busulu and Emunju law of 1728. - $(ii)$ Toro Landlord and Tenant Law of 1937 - Ankole Landlord and Tenant Law of 1937. (iii) - (b) A person who entered the land with the consent of the registered owner, and includes a purchaser;

$|0\rangle$

$25$

(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:

$10$

- (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.

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

$\overline{11}$

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."

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.

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:-

$\overline{10}$

- that all the appellants were not lawful occupants as $(1)$ there was nothing that brings them within the ambit of section $30(1)$ . - that a bona fide occupant does not include a purchaser. $(2)$ He relied on section 30 (2) (a) of the Land Act No. 16 of 1998. - $(3)$ that all the appellants were not bona fide occupants because they had stayed 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:-

"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

NO.

As regards finding Nos. 1 and 3 above, the terms: "Lawful occupant" and "bona **fide occupant**" are defined in section 30 (1) and (2) of the Land Act respectively. The provisions of these sub-sections are set out above in the quoted part of the trial judge's Judgment. I need not reproduce them here again. The thread that runs through both sub-sections is that the occupied land must have been registered in the name of another person or authority for the occupant to claim to be either a lawful or a bona fide occupant.

In the instant case, the admitted fact shows that the appellants were in occupation $\overline{1}$ of the suit land at the time of the grant of its lease to the $2^{nd}$ respondent. The letter (Exh. P 1) from 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. 18 - 21) from those who had occupied the land unchallenged for over forty years. The Receipts (Exh. P. 2) acknowledging payment by the $15$ appellants of property rates to Kampala City Council, is evidence of recognition of the appellants as owners of properties on the suit land. There is however, no evidence that before the impugned registration of the 2^nd respondent as the proprietor of the suit land, the land had been registered in the name of any person or authority. Under the provisions of section 30 $(1)$ and $(2)$ of the Land Act, the $20$ appellants therefore, cannot, irrespective of the length of their occupation of the land, claim either to be lawful or bona fide occupants of the suit land because it was not a registered land of any person or authority. In fact section 30 does not I cannot therefore fault the conclusion of the learned trial apply to the suit land. $25$ judge that the appellants were neither lawful nor bona fide occupants of the suit land. Ground 1 and 2 would therefore fail.

On ground i. Mr. Muhimbura cnticised the trial judge for finding that the appellants were not customar)' o\\,ners of the suit land He submitted that the appellants having purchased the land from thc peoplc who had hetd and utilised it for over forq'years. qualified lo tre customan' o\\'ners. He argued that case lau has establishcd that use of land bl occupalrt cstablishes customalJ' tenure. He cited Matovu and 2 others vs Sseviri and Anottrer. (.ivit Appeal No- 7 of 1978. l-o emphasrse that point. Mr. B1'arn ugrsha-Kam ugislra relied on Jacob Lomolo vs Kilembc \{ines Ltd. (1978) HCB I57

lo Seclron I of the l-and Act defines cusloman tenure to mean:-

'a s1'stem of laud tenure regulated b1' customary rules which are limited in their operation to a particular description or class of persons.'

Section 4 of the Act sets out the features or incidents of a customarv tenure to be:-

(l) It is a form oftenure

o

p:

l5

t5

l

I

I

- (a) applicable to specific area of land and a specilic description or class of persons; - (b) subject to section 28 of this . A,ct governed b1- rules generall.t- accepted as binding and authoritative by the class of persons to which it applies; - (c) applicable to anv p€rson acquiring land in that a rea in accordance with those rules:

- (d) subject to section 28 of this Act. characterised b-'- local customera' regu latio n ; - (e) appl.'-ing local cus(oman' rcgulations and management to individual and houschold owncrship, ust'and occupation of and transaction in [and; - (0 providing for com rnunal o\*'ncnihip and use of land; - (g) in which parcels of land ma1' be recognised as subdivisions belonging to a person, a famill' or ^a traditional institution : and

(h) which is owned in perpetuiry-.

Mr. Nerima submitted that the appellants' claim to be customary owners of the surt land rvas incompatible '\*,ith their earlier claim that thev rvere also bona fide occupants of the same land. In counsel's vieu'. these two nghs are mutuallr' exclusive and the appellants did not argue their claims in the altern ative. He contended that there is no evidence u'hich bring the appellans urthrn section 4 of the land Act. l(

The learned tnal ludge found thus.-

o

i(l

ti

:

\*A close study of section 4 of the .{ct removes the plaintiffs from the cetegot\_1' of customan' owners. I would answer the second issue in the negative."

ll I must 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 citizens of Uganda and are owned in accordance with the following land tenure systems:-

- **Customary** $(a)$ - Freehold $(b)$

$\leq$

- Mailo; and $(c)$ - Leasehold. $(d)$

The learned trial judge did not determine under which of the above land tenure $10$ systems, the land which is in dispute was owned. This omission obviously was because oral evidence was not called as the promised hearing was not conducted. It appears however, that it is not in dispute that until the impugned registration of the $2^{nd}$ respondent as its proprietor, the suit land was not registered in the name of any person or authority. The admitted fact shows that the appellants were in $15$ occupation of the suit land at the time of the grant of its lease to the $2^{nd}$ respondent. This was confirmed by the letter (Exh. P. 1) from the Chairman, Local Council I of Kasumba Zone. The letter adds that the appellants had occupied the land or bought it from those who had occupied it unchallenged for over forty years. The purchase was evidenced by sale Agreement (Exh. P. $18 - 21$ ). There is no contrary evidence $20$ to this. The receipts $(Exh. P2)$ acknowledging payment by the appellants of property rates to Kampala City Council is evidence of Kampala City Council's recognition of the appellants as owners of properties on the suit land. This type of occupation of land as done by the appellants on the suit land without any lease or licence from the former controlling authority, brings the occupiers under 25 customary tenancy within sections 2 and 4 of the Land Act.

Matovu & 2 Others vs Sseviri and Anor (supra) was decided under the Land Reform Decree, 1975, which like the current Land Act, permitted customary land tenure system. In that case, it was held that customary tenure may be established by cultivation only of seasonal crops or the grazing of cattle and related construction of wells to water cattle.

In the instant case, the appellants occupied the suit land and constructed properties on it without any lease or licence from the controlling authority and remained on it unchallenged for forty years. This constituted their customary right of tenancy over the land. It was wrong for the trial judge to have ignored this right and found that the appellants were not customary tenants on the suit land. I, therefore, find merit on this ground. I would allow it.

This leads me to ground 4 which reads thus:-

"The learned trial judge erred in law and in fact when he held that the appellants have no legal interests in the suit land whatsoever when they purchased and have been in occupation of the suit land for a long time."

$25$

The complaint raised on this ground was that the trial judge erred in finding that the appellants had no legal interest whatsoever in the suit land. It was argued that since they had purchased and occupied the land for over forty years, the appellant had acquired the right of occupancy over the land which the first respondent could not ignore when allocating the land to the second respondent.

Under section 60 (1) (a) of the Land Act, a District Land Board is enjoined to allocate in its district only land which is not owned by any person or authority. I have already found in ground 3 that the appellants were on the evidence on record. customary tenants on the suit land. It was, 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 section 60 (1) (a) of the Land Act. To that extent, the allocation of the suit land by the first respondent to the second respondent was unlawful. This ground would. therefore, succeed.

$OZ$

The next are grounds 5 and 6 which were argued together. They are couched thus:-

"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 respondent acquired title to the suit land through fraud when there was overwhelming evidence to that effect."

The complaint raised in these grounds was that the registration of the $2^nd$ respondent's interest in the suit land did not follow the proper procedure and was fraudulent in nature. Mr. Muhimbura cited a letter dated $7/12/2000$ (Exh P 1) from the Chairman, Local Council I of Kasumba Zone to the Chairman, Kampala District Land Board as evidence of failure to follow proper procedure. The letter

denied that the $2^{nd}$ respondent obtained recommendation to lease the suit land from the author who had jurisdiction over the land. Learned counsel for the appellants submitted that failure to obtain recommendation from the Chairman. Local

Council I, whose jurisdiction cover the suit land, amounted to flauting the right procedure. It was pointed out that the 2^nd respondent instead obtained $\ddot{\cdot}$ recommendation to lease the suit land from a neighbouring Chairman. Local Council I, whose jurisdiction did not cover the suit land. A Letter dated $4 - 12$ – 2000 (Exh P 10) from the Member of Parliament of Lubaga South. addressed to the Chairman, Kampala District Land Board, was given as evidence to support this assertion. Learned counsel submitted that by obtaining recommendation from the $10$ neighbouring Chairman. Local Council I, whose jurisdiction did not cover the suit land, the $2^nd$ respondent did not only act unlawfully but also fraudulently.

Learned Counsel further cited a letter dated $20 - 11 - 2000$ (Exh P 3) from the Principal Staff Surveyor introducing a Land Surveyor to the Chairman. Local 15 Council I. Wilson Zone, as evidence of the $2^{nd}$ respondent's fraud. The letter introduced a Land Surveyor to carry out survey for opening up boundaries of plot 1028 block 7. Learned Counsel submitted that the certificate of title was issued to the 2^nd respondent on the day the letter Exh P 3 was written thus showing that the certificate was issued before the land was surveyed. $20$

Mr. Kavuma-Kabenge, learned counsel for the 2^nd respondent contended that there was no illegality or fraud on the part of the $2^nd$ respondent in obtaining title to the suit land. He argued that there is no law requiring recommendation from Local Councils before grant of a Lease. Therefore, failure by the 2^nd respondent to obtain recommendation from the relevant Local Council did not constitute an illegality.

for Exh P 3. Mr. Karuma-Kabengc contended that the purpose of the survev in area was ro opcn up boundaries of plot 1028- block 7 ln his view. that rn itself was not evidence of fraud

I hare found on ground -3 that the appellants hold the suit land under customan tenure Kampala lfistnct [-and Board tltcrefore- had no authonll whatsoever over ir. Under suFseclions I (a) and (b) of section 60 of the Land Act. it could onh' allocale in its Disrrict Land s,hrch is nor ou,ned br.person or authont\'.

I

I

I

I

l5

l(l

l5

- Where the Distnct t^and Board has authonn'. the procedures to be followed rn allocation of land b1' the Board or Comrnission are set out in reeulation 22 of the Land Regulations. 2001 (SI No 16 of200l) Sub-regulation ) ofregulation ²² prorrdes thus:- - \* (2) On receipt of an application referred to in sub-regulation I of this regulation. the Board or Commission mav:- - (a) advertise the application for at least tweor-r" one days in a Newspapcr with wide circulation in tbe district and b;- such otber means as are likely to draw the matter to the attentioo of persons within the district; - (b) invite an]- person to commendan or object to the application, giving reasons for an-'- comment or objection; - (c) determine. after taking into account an-v- comment or objections that ma1' be made in a meeting at which

## $205$

members of the public may be present whether the applicant should be allocated the land for which application is made."

The purpose of the above regulation is to encourage the Board to publicise the $\overline{5}$ application for allocation of any land in the district so as to solicit comments or objections from the affected persons. It follows that before any land is allocated. the people who reside in the area where the land applied for is situate, must be consulted for comments or objections.

In the instant case, even if Kampala District Land Board had power over the suit land, which is not so, there is no evidence that the above procedure was followed prior to the allocation of the suit land to the second respondent. On the contrary. there is evidence (Exh. P. 10) a letter from the area Member of Parliament which shows that consultation was made to the Chairman. Local Council I of the neighbouring Zone who could not know any information about the land. That was fraud. The trick was intended to deceive the Land Registration or District Land Board that the land applied for was available for lease. I am satisfied, that there is merit in these grounds. They would both succeed.

$20$

$25$

$10$

$15$

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

"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."

$206$

Mr. Muhimbura's complaint on this ground was that the learned trial judge did not evaluate the exhibits especially Exh P 2 which were admitted unchallenged. According to him, the learned trial judge never made any reference to the receipts in his judgment, yet some of these receipts were issued in 1987. He submitted that the failure resulted into the trial judge coming to wrong conclusion.

Mr. Kavuma-Kabenge did not agree. He contended that the learned trial judge considered the receipts Exh P 2 in his judgment. Learned Counsel submitted however, that payment of rates did not confer on the appellants ownership over the land for which they paid rates since these payments were for their occupation of the land.

The learned trial judge dealt with this matter in his judgment thus:-

$10$

"It is argued that the 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."

The above passage clearly shows that the trial judge made a reference in his judgment to the evidence of appellants' payment of property rates to which Exh $P$ 2 related. It was admitted at a scheduling conference that the appellants were in occupation of the suit land. These payments of property rates were made when the appellants were in occupation of the suit land. They are evidence of Kampala City Council's recognition of the appellants as owners of properties on the land they occupied. It was the appellants' method of occupation of the suit land rather than their payment of rates which established their customary tenancy over the land. I agree that the learned trial judge did not properly direct his mind to the

## 207

significance of the evidence of the appellants' occupation of the suit and. Had he done so, the learned mal 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. $(2)$ - (a) They are the customary tenants of the suit land. $(a)$ - (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.

| 20 | Dated at Kampala this b day of August, $20_{12}$ . | |----|----------------------------------------------------| | | | | | $G. M. Okello$ | | | JUSTICE OF APPEAL |