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Nampewo & Another v Attorney General (Constitutional Petition 10 of 2020)

Constitutional Court · [2024] UGCC 20 · 2024 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of a statutory provision
Decision
Petition dismissed; section 35(1)(a) of the Land Act upheld as constitutional

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court dismissed a petition challenging section 35(1)(a) of the Land Act, which makes it an offence for a tenant by occupancy to assign the tenancy without first offering it to the registered owner, with forfeiture and reversion on default. Reading the Land Act harmoniously, the Court held the registered owner is under an equivalent obligation under section 35(2), so there is no discrimination contrary to Article 21. Forfeiture follows the tenant's own illegal exit and is not compulsory acquisition under Article 26, nor does it deprive a non-owner of property or livelihood under Article 22. The differing values of the interests flow from Article 237's land tenure scheme. Parliament acted within Articles 237 and 79.

Outcome

Petition dismissed; section 35(1)(a) of the Land Act upheld as constitutional

Facts

The petitioners, lawyers and researchers at the Human Rights and Peace Centre (HURIPEC), challenged section 35(1)(a) of the Land Act, introduced by the Land (Amendment) Act 2010. The provision makes it an offence for a tenant by occupancy to assign the tenancy without first giving the registered owner the option of taking the assignment, and provides that on default the transaction is invalid, the tenant forfeits the right over the land, and the land reverts to the registered owner. The petitioners contended that no equivalent penalty is imposed on a registered owner who sells the reversionary interest without first offering it to the tenant, that the provision discriminates against poor and vulnerable occupants, deprives them of their interest without compensation, and exceeds Parliament's mandate under Article 237. The Attorney General opposed the petition, arguing tenants by occupancy are not owners but paying tenants whose subordinate interests, the amendment, and section 35(8) protections must be read with the whole Land Act.

Issues

  1. Whether section 35(1)(a) of the Land Act, as amended in 2010, is inconsistent with or contravenes Article 21(1) and (2) of the Constitution (equality and freedom from discrimination).
  2. Whether section 35(1)(a) of the Land Act is inconsistent with or contravenes Articles 22(1), 26(1) and (2) and 45 of the Constitution (right to life/livelihood and protection from deprivation of property).
  3. Whether section 35(1)(a) of the Land Act is inconsistent with or contravenes Articles 237(8), (9)(a) and 79(1) of the Constitution (Parliament's mandate to regulate the landlord–tenant by occupancy relationship).
  4. Whether the petitioners are entitled to the reliefs sought.

Orders

  • The preliminary objection to the respondent's affidavit is overruled.
  • Section 35(1)(a) of the Land Act, as amended in 2010, is not inconsistent with or in contravention of Article 21(1) and (2) of the Constitution.
  • Section 35(1)(a) of the Land Act, as amended in 2010, is not inconsistent with or in contravention of Articles 22(1), 26(1) and (2), and 45 of the Constitution.
  • Section 35(1)(a) of the Land Act, as amended in 2010, is not inconsistent with or in contravention of Articles 237(8), (9)(a) and 79(1) of the Constitution.
  • The petition fails on all grounds and is dismissed.
  • No order as to costs, the petition having been brought in the public interest.

Rules and key headnotes

Constitutional and Statutory Interpretation — Rule of Harmony — Reading an impugned provision within the whole statutory scheme
An impugned statutory provision cannot be tested for constitutionality in isolation; both the Constitution and the related statute must be read as an integral whole so that provisions sustain rather than destroy one another, and the purpose and effect of the legislation must be taken into account.
Land & Property — Tenancy by Occupancy — Subordinate nature of the interest relative to the registered proprietor
A tenant by occupancy is a paying tenant of the registered owner and not an owner of land within Article 237(3) of the Constitution; the interest is subordinate to the paramount registered title protected by section 64 of the Registration of Titles Act, even where a certificate of occupancy has issued.
Constitutional Law — Equality and Non-discrimination (Article 21) — Differential treatment grounded in distinct legal interests is not discrimination
Section 35(1)(a) of the Land Act does not contravene Article 21 because the registered owner is under an equivalent obligation under section 35(2) to offer the reversionary interest first to the tenant; any inequality in the value of the respective interests flows from the land tenure system entrenched by Article 237 of the Constitution, not from the provision.
Constitutional Law — Protection of Property (Article 26) — Forfeiture for breach distinguished from compulsory acquisition
Forfeiture of a tenancy by occupancy under section 35(1)(a) following an unlawful assignment is not a compulsory acquisition of property under Article 26(2); the land is taken back by the owner who held the reversionary interest, the tenant being a non-owner with no property attracting compensation.
Constitutional Law — Right to Livelihood (Article 22) — Assignment by a tenant by occupancy effects the tenant's own exit
A tenant by occupancy who assigns the tenancy causes their own exit from the land, since occupancy rights cannot be transferred and retained simultaneously; consequently section 35(1)(a) does not deprive the tenant of a livelihood contrary to Article 22, and the principle in Salvatori Abuki is distinguishable.
Constitutional Law — Legislative Mandate (Articles 237 and 79) — Power to regulate includes power to penalise breach
In enacting section 35(1)(a), Parliament acted within its mandate under Article 237(8) and (9) to regulate the relationship between lawful or bona fide occupants and registered owners, and within Article 79; the provision is part of a regulatory scheme that constitutes a limitation justifiable under Article 43(2)(c).

Legislation cited (30)

Cases cited (16)

  • Uganda Journalists' Safety Committee and 2 Others v Attorney General (Constitutional Petition No. 7 of 1997)
  • Hard Rock Quarry Ltd v Commissioner Land Registration and Another (HCMA No. 115 of 2015)
  • Caroline Turyatemba and 4 Others v Attorney General and Another (Constitutional Petition No. 15 of 2010)
  • Christopher Martin Madrama Izama v Attorney General (Constitutional Appeal No. 1 of 2016)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Charles Onyango Obbo and Andrew Mwenda v Attorney General (Constitutional Appeal No. 2 of 2012)
  • Charles Onyango Obbo and Another v Attorney General (Constitutional Petition No. 2 of 2002)
  • Prince Kefa Wasswa and Another v Joseph Kiyimba (HCCS No. 482 of 2011)
  • P. K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v. Rev Christopher Mtikita (2O1O) EA 13
  • Attorney General v David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Olga Tellis & Others v. Bombay Municipal Council [19851 2 Supp scR 51
  • Uganda National Roads Authority v Irumba and Another (Constitutional Appeal No. 2 of 2014)
  • Asuman Irumba and Others v Attorney General and Uganda National Roads Authority (Constitutional Petition No. 40 of 2012)
  • Katikiro of Buganda v. Attorney General of uganda [19591 EA g82
  • Davis Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)

Full judgment

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

Nampewo & Another v Attorney General (Constitutional Petition 10 of 2020) [2024] UGCC 20 (4 July 2024)
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.