Wakilii

Masika & 4 Ors v Attorney General (CIVIL SUIT No. 010 OF 2009)

High Court · [2012] UGHCCD 8 · 2012 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for wrongful eviction and declarations of land ownership
Decision
Plaintiffs entitled to immediate vacant possession of suit lands. Lokeris Line to be demarcated by Commissioner of Surveys. Permanent injunction granted.

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Holding

The High Court held that the cultivators held valid customary and leasehold titles to land measuring 2,050 acres in Kasese District and their forced eviction by Government, ostensibly to pacify conflict with pastoralists but in reality to reallocate their land, violated constitutional protections of property rights. The eviction proceeded without the statutory requirements for compulsory acquisition and contravened the 1995 Constitution's elevation of customary tenure to protected private ownership, warranting exemplary damages for grave abuse of property rights.

Outcome

Plaintiffs entitled to immediate vacant possession of suit lands. Lokeris Line to be demarcated by Commissioner of Surveys. Permanent injunction granted.

Facts

289 cultivators sued the Attorney General for wrongful eviction from 2,050 acres in Rwehingo, Bukangara and Nyakatonzi in Kasese District which they held under customary tenure or leasehold. Government, seeking to resettle Basongora pastoralists displaced from DRC and national parks, evicted the cultivators following a Ministerial Statement allocating 17,000 of the contested 25,000 acres to pastoralists. The cultivators had occupied the land for over 60 years. In 1989, Government resettled youth on 750 acres donated by customary landowner Salambongo. A 1993 Task Force chaired by Hon Kisamba Mugerwa listed Government institutional lands for divestiture to address pastoralists' landlessness but did not include the suit lands. Cabinet adopted recommendations to negotiate with suit land owners on a willing buyer willing seller basis but cultivators refused to sell. Government then forcibly evicted them purportedly to pacify bloody clashes between cultivators and pastoralists. Peter Lokeris established a demarcation line in 1989 separating cultivators and pastoralists in Bukangara/Nyakatonzi, surveyed and mapped by David Langoya.

Issues

  1. Whether the suit lands belong to the Plaintiffs.
  2. Whether the Defendant lawfully evicted the Plaintiffs from the suit lands.
  3. What are the remedies available to the parties?

Orders

  • The Plaintiffs are the respective lawful proprietors of the suit lands and entitled to immediate possession and occupation thereof.
  • The Defendant, its agents, servants or any person acting under its authority must immediately give vacant possession of the suit lands to the Plaintiffs subject to the Lokeris Line.
  • The Commissioner of Surveys is directed to locate and open up the Lokeris Line and put in place distinct landmarks in accordance with the survey and mapping made by Mr David H. Langoya.
  • A permanent injunction issues restraining the Defendant, its agents, servants, or any person acting under its authority, from trespassing onto or in any way interfering with the Plaintiffs' quiet enjoyment of the suit lands.
  • The Defendant shall pay each of the Plaintiffs general damages in the sum of UGX 10,000,000.
  • The Defendant shall pay each of the Plaintiffs punitive damages in the sum of UGX 2,000,000.
  • The Defendant shall pay each of the Plaintiffs costs of the suit.
  • The damages and costs awarded shall attract interest at Court rate from the date of the suit.

Rules and key headnotes

Customary Land Tenure — Transformation under 1995 Constitution — Protection of Private Customary Landholding
The 1995 Constitution ushered in a radical revolution in land tenure that transformed customary occupancy of public land (as it existed under the 1967 Constitution and Public Lands Act 1969) into private customary landholding, affording customary tenure equal protection with freehold, mailo and leasehold tenure under Article 237(3), and effectively extinguishing the vulnerability that previously characterised customary land tenure.
Property Rights — Compulsory Acquisition — Conditions under Article 26
Under Article 26(2) of the 1995 Constitution, no person shall be compulsorily deprived of property except where the acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health, and only under a law which makes provision for prompt payment of fair and adequate compensation prior to taking possession.
Government Eviction — Unlawfulness where Statutory Procedure Not Followed
Where Government evicts landowners whose lands it sought to acquire on a willing buyer willing seller basis after the owners refused to sell, without following the constitutional and statutory procedure for compulsory acquisition, the eviction is unlawful and constitutes a grave abuse of human and property rights.
Youth Settlement Scheme — Land Donated by Customary Owner — No Government Proprietary Interest Acquired
Where Government in 1989 resettled youth on land donated by a customary landowner who parcelled the land among the youth, and Government did not acquire the land from the customary owner through the statutory process under the 1967 Constitution and Public Lands Act 1969, Government never acquired any proprietary interest in the land and the individual youth members acquired the donor's customary interest.
State Obligation — Protection of Property Rights — Impermissible Sectarian Eviction
Government's eviction of cultivators ostensibly to pacify bloody clashes with pastoralists, but executed in a sectarian manner leaving pastoralists to utilise the land and with the ulterior motive of inducing cultivators to sell, gravely offends constitutional protections of property rights and is not demonstrably justifiable in a free and democratic society.
Exemplary Damages — State Abuse of Power — Grave Violation of Constitutional Rights
Where the State forcibly evicts landowners in a manner that gravely abuses their constitutional human and property rights, exemplary damages are warranted as a manifestation of the court's utter displeasure and disapproval, to assure that the rule of law has no place for impunity and that courts will at all times protect such rights.

Legislation cited (10)

Full judgment

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Masika & 4 Ors Vs Attorney General (CIVIL SUIT No. 010 OF 2009) [2012] UGHCCD 8 (25 April 2012)
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.