Wakilii

Kampala District Land Board and Another v Babweyaka and 3 Others (Civil Appeal No. 2 of 2007)

Supreme Court · [2007] UGSC 36 · 2007 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal in a land dispute concerning customary ownership and the lawfulness of a lease allocation.
Decision
Appeal dismissed; respondents held to be bona fide occupants (not customary owners); the cancellation of the 2nd appellant's certificate of title and the award of general damages were upheld.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court held the respondents were not customary owners: customary tenure was prohibited in urban areas under the Public Land Act 1969 and Land Reform Decree 1975, the Land Act 1998 does not operate retrospectively, and no system of customary tenure was proved by evidence. However, the respondents were bona fide occupants under s.29 of the Land Act, having occupied the land since 1970. Their interest could not be alienated without first offering them the lease, so the land was not available for allocation to the 2nd appellant, whose title was obtained by fraud and in breach of natural justice. The damages award stood. Appeal dismissed with costs.

Facts

The respondents and their predecessors occupied land at Ndeeba, Kampala (Block 7 Plot 1028), from about 1970, operating timber yards and garages on temporary structures and paying rates to Kampala City Council. The land was under a statutory lease held by Kampala City Council and later by its successor, the Kampala District Land Board (1st appellant). On 31 October 1999 the 1st appellant allocated the land to the 2nd appellant, who obtained a certificate of title on 20 November 2000 without consulting the occupants; surveyors had deceived the occupants and compensation cheques were prepared before they were heard. The respondents, originally among 20 plaintiffs, sued claiming to be bona fide/lawful occupants and/or customary owners. After protracted litigation, including an earlier Supreme Court-ordered retrial, the High Court found them lawful occupants, cancelled the title and awarded each respondent shs.6,000,000 general damages. The Court of Appeal dismissed the appellants' appeal and allowed the respondents' cross-appeal finding customary ownership, prompting this appeal.

Issues

  1. Whether the respondents were customary owners of the suit land.
  2. Whether the suit land was available for leasing to the 2nd appellant.
  3. Whether the 2nd appellant obtained the certificate of title lawfully and/or fraudulently.
  4. Whether the award of general damages to the respondents should be upheld.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondents, here and in the courts below.

Key headnotes

Land & Property — Customary Tenure — Prohibition in Urban Areas
Customary tenure could not lawfully be acquired in an urban area under s.24(1)(a) of the Public Land Act 1969 and s.5(1) of the Land Reform Decree 1975, and the silence of the Land Act 1998 on that prohibition does not operate retrospectively to validate customary acquisition predating the Act.
Land & Property — Customary Tenure — Proof of Custom
A party asserting customary tenure must prove the custom and that the land is held under rules generally accepted as binding by a particular description or class of persons under ss.1, 2 and 3 of the Land Act; mere long use of or activity on land does not by itself establish customary tenure.
Evidence — Customary Law — Proof by Expert Opinion
Where African customary law is neither notorious nor documented it must be established by evidence, including expert opinion under s.46 of the Evidence Act, and the onus of proving the custom lies on the party who relies on it.
Land & Property — Bona Fide Occupant — Definition and Acquired Interest
A person who occupied and utilised land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution is a bona fide occupant under s.29(2) of the Land Act, and a person who purchases or acquires such an occupant's interest is likewise a bona fide occupant under s.29(5).
Land & Property — Bona Fide Occupant — Security of Tenure — First Option to Lease
A bona fide occupant enjoys security of tenure; where land is occupied by a bona fide occupant it may be leased to another only after the occupant has been given the first option, and absent such an offer the land is not available for leasing.
Land & Property — Registration of Titles — Fraud Defeating Unregistered Interest
Procuring registration of a title in order to defeat a known unregistered interest, where knowledge is accompanied by a wrongful intention to defeat that interest, amounts to fraud, rendering the title defeasible and liable to cancellation under ss.64 and 176 of the Registration of Titles Act.
Administrative Law — Natural Justice — Allocation of Land Without a Hearing
A decision to allocate and register land made without affording the occupants notice and an opportunity to be heard breaches the principles of natural justice and may render the resulting certificate of title liable to be set aside.

Legislation cited (29)

  • Public Land Act 1969 s.24(1)(a)
  • Public Land Act 1969 s.24(5)
  • Public Land Act 1969 s.54
  • Land Reform Decree 1975 s.5(1)
  • Land Reform Decree 1975 s.5(2)
  • Land Act 1998 s.1(1)
  • Land Act 1998 s.2
  • Land Act 1998 s.3
  • Land Act 1998 s.27
  • Land Act 1998 s.29(2)
  • Land Act 1998 s.29(4)
  • Land Act 1998 s.29(5)
  • Land Act 1998 s.31(1)
  • Land Act 1998 s.33(1)
  • Land Act 1998 s.38
  • Land Act 1998 s.59(1)(a)
  • Evidence Act Cap 6 s.46
  • Registration of Titles Act s.59
  • Registration of Titles Act s.64
  • Registration of Titles Act s.136
  • Registration of Titles Act s.176
  • Registration of Titles Act s.178
  • Constitution of Uganda 1995 art.237(8)
  • Constitution of Uganda 1995 art.241(1)(a)
  • Local Governments (Rating) Act Cap 242
  • Public Land (Restriction of Customary Tenure) Order 1969 (SI 103/1969)
  • Land Regulations 2001 (SI 16/2001)
  • Land Reform Regulations 1976
  • Busuulu and Envujjo Law 1928

Cases cited (13)

  • Tifu Lukwago v Samwiri Mudde Kizza and Justina Nabitaka (Civil Appeal No. 13 of 1996)
  • Paul Kisekka Ssaku v Seventh Day Adventist Church (Civil Appeal No. 8 of 1993)
  • Marko Matovu and Others v Mohammed Sseviiri and Others (Civil Appeal No. 7 of 1978)
  • R v Ndembera s/o Mwandawale (1947) 14 EACA 85
  • Kampala District Land Board and Another v National Housing and Construction Corporation (Civil Appeal No. 2 of 2004)
  • Ernest Kinyanjui Kimani v Muira Gikanga [1965] EA 735
  • General Medical Council v Spackman [1943] 2 All ER 337
  • Kampala Bottlers Ltd v Damanico Ltd (Civil Appeal No. 22 of 1992)
  • Sajjaka Nalima v Rebecca Musoke (Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v Lutaaya (Civil Appeal No. 36 of 1995)
  • Katarakawe v Katwiremu (1977) HCB 187
  • Norman Overseas Motor Transport (Tanganyika) Ltd (1959) EA 131
  • Byabalema and Others v UTC (1975) Ltd (Civil Appeal No. 10 of 1993)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.