Wakilii

Kiggundu v Byarugaba (High Court Civil Suit 378 of 2018)

High Court · [2023] UGHCLD 164 · 2023 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of customary land rights and trespass
Decision
Plaintiff's claim dismissed; defendant's registered proprietorship upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the plaintiff failed to establish customary tenure interest in the suit land. Under the Public Land Act 1969 and Land Reform Decree 1975, customary tenure was prohibited in urban areas at the time of the plaintiff's alleged 1993 acquisition. The plaintiff failed to prove compliance with legal requirements for acquiring customary tenure, did not adduce evidence of local customs recognising her ownership, and produced an unsigned sale agreement. The defendant, as registered proprietor with proper title from Buganda Land Board, could not trespass on his own land. Suit dismissed.

Outcome

Plaintiff's claim dismissed; defendant's registered proprietorship upheld

Facts

The plaintiff claimed she purchased the suit land at Buziga in 1993 from Eseza Zalwango under customary tenure (kibanja) and developed it with crops and an unfinished structure. She sought recommendations from local authorities for a lease from Buganda Land Board. In 2013 the defendant laid claim to the land. The plaintiff discovered the defendant had obtained a leasehold title including her kibanja, demolished her structures, and destroyed crops. The defendant's late mother, Margaret Kaberuka, had obtained a lease offer from Kampala City Council in 1991. After the Kabaka's land was returned to Buganda in 1993, she obtained a lease from Buganda Land Board in 1996. Upon her death, her children assigned their interests to the defendant, who became registered proprietor in 2011 of Plot 5, LRV 4287 Folio 18, measuring 0.227 hectares.

Issues

  1. Whether the plaintiff has interest in the suit land.
  2. Whether the defendant's acts complained of amounted to trespass.
  3. Whether the inclusion of the plaintiff's kibanja/customary land holding in the defendant's application for lease and/or in lease hold register volume 4287 folio 18 plot 5 Lukuli Link Road, Buziga was fraudulent.
  4. Whether the parties are entitled to the remedies sought.

Orders

  • Suit dismissed.
  • No order as to costs due to defendant's failure to comply with court directives to file written submissions.

Rules and key headnotes

Customary Tenure — Definition and Incidents — Requirements for Establishment
A person claiming to be a customary tenant must prove not only that he carried out activities on land for however long the period, but also that in that area it is a custom that whoever carries out certain activities for a specific period of time becomes a customary owner. Customary tenure applies to a specific area and specific group of people under rules generally accepted as binding and authoritative by the class of persons to which it applies.
Custom — Proof of Customary Law
Where a court has to form an opinion as to the existence of any general custom or right, persons who would be likely to know of its existence are relevant. Native custom must be proved in evidence and cannot be obtained from assessors or supplied from the knowledge and experience of the trial judge.
Customary Tenure — Urban Areas — Prohibition under Public Land Act 1969
Section 24(2) of the Public Land Act 1969 specifically prohibited customary tenure on land in urban areas. Section 5(1) of the Land Reform Decree 1975 declared all land in Uganda to be public land administered by the Uganda Land Commission, and the Decree allowed occupation of public land by customary tenure only at sufferance. Any such land could be granted by the Commission to anyone in accordance with the Decree.
Customary Tenure — Acquisition of Fresh Customary Tenure — Requirement for Application and Approval
For one to acquire fresh customary tenure under the legal regime of the Public Land Act 1969 and Land Reform Decree 1975, one had to apply to the prescribed authorities and obtain approval of his or her application. Under the Land Reform Regulations 1976, a person wishing to obtain permission to occupy public land by customary tenure had to apply to the sub-county chief in charge of the area where the land is situated, and after processing the application, it had to be sent to the sub-county Land Committee for approval.
Tenure — Freehold and Customary Tenure — Mutual Exclusivity
Customary tenure, being a form of tenure owned in perpetuity in accordance with Section 3(h) of the Land Act, cannot legally be held on a freehold tenure which is tenure also owned in perpetuity. The two are mutually exclusive, them being interests that are legally incompatible and cannot legally co-exist.
Trespass to Land — Elements
Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interfering, or portends to interfere, with another person's lawful possession of that land. The tort is committed not against the land, but against the person who is in actual or constructive possession of the land. To succeed in a claim of trespass, one must prove: (1) that the disputed land belonged to the plaintiff; (2) that the defendant had entered upon it; and (3) that entry was unlawful in that it was made without permission or that the defendant had no claim or right or interest in the disputed land.

Legislation cited (13)

Cases cited (5)

  • Kampala District Land Board v Babweyaka (Supreme Court Civil Appeal No. 2 of 2007)
  • R v Ndembera s/o Mwandewale (1947) 14 EACA 58
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Lutaaya v Sterling Civil Engineering Co. (Supreme Court Civil Appeal No. 11 of 2002)
  • Lubowa v Kitara Enterprises Ltd (Court of Appeal No. 4 of 1987)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kiggundu_v_Byarugaba_(High_Court_Civil_Suit_378_of_2018)_[2023]_UGHCLD_164_(16_June_2023)
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.