THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA HELD

AT MENGO

(CORAM: ODOKI, C.J., TSEKOOKO, MULENGA, KANYEIHAMBA &

KATUREEBE JJ. S.C)

CIVIL APPEAL NO. 2 OF 2007

BETWEEN

1. KAMPALA DISTRICT LAND BOARD }

2. GEORGE MITALA }:::::: APPELLANTS

AND

1. VENANSIO BABWEYAKA }
2. JOHNSON MWIJUKYE }
3. SEMPALA SENGENDO } ::::::::::::::::::: RESPONDENTS
4. APOLLO NABEETA }

(Appeal from the judgment and orders of the Court of Appeal at Kampala (Mukasa-
Kikonyogo, DCJ, Mpagi-Bahigeine and Kitumba JJ.A) dated 21 December 2006 in Civil
Appeal No. 57 2005)

JUDGEMENT OF ODOKI, CJ

This second appeal arises from the judgment and orders of the Court of
Appeal of Uganda whereby the appellants’ appeal against the respondents
was dismissed with costs.

The brief facts of the case are that the respondents brought an action in the
High Court claiming an interest in a piece of land comprised in LVR 2847

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Fol. 9 known as Block 7 Plot 1028 situated at Ndeeba, Kampala. They
claimed to have been in occupation of this land from about 1998 having
purchased their interests from previous occupiers who had acquired it as
far back as 1970. The respondents owned temporary structures on the
land wherein they operated timber yard business.

On 31 October 1999, the 1st appellant which was the statutory owner of the
suit land allocated the land to the 2 nd appellant who obtained a certificate of
title to the land on 20 November 2000. The respondents who were in
occupation of the land were among the 20 plaintiffs who originally filed
HCCS No. 511 of 2000 to challenge the allocation. The rest of the original
plaintiffs have since withdrawn from the proceedings. The respondents
sought declarations that they were bona fide/lawful occupants and/or
customary owners of the suit land.

On 21 December 2001, Katutsi J, held that the respondents were not lawful
occupants or bona fide occupants or customary owners of the suit land
and dismissed the suit with costs. The appellants being dissatisfied with
the judgment of Katutsi J, filed Civil Appeal No. 20 of 2002 in the Court of
Appeal. On 6 August 2002, the Court of Appeal held that the respondents
were not lawful or bona fide occupants but were customary owners of the
suit land and ordered cancellation of the 2 nd appellant’s lease.

The appellants appealed to the Supreme Court against the finding that the
respondents were customary owners vide Civil Appeal No. 16 of 2002.

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On 17 December 2003, the Supreme Court allowed the appeal on the basis
that oral evidence was required to prove the parties claims. The Court set
aside the judgment of the Court of Appeal and ordered a retrial of the suit.

The retrial was held before Okumu-Wengi J. The issues framed at the trial
were as follows:

“1. Whether the plaintiffs were customary owners of the

suit land.

2. Whether the land was available for leasing to the 2 nd

defendant.

3. Whether the second defendant obtained the certificate

of title lawfully.

4. Remedies.”

The retrial Judge held on the first issue that the respondents were not
customary owners of the suit property but were lawful occupants. He
answered the 2nd and 3rd issues in the negative. He ordered the
cancellation of the certificate of title of the 2 nd appellant. The 1st appellant
was ordered to pay general damages of shs.6,000,000/= to each of the
respondents.

The appellants appealed to the Court of Appeal against the judgment of the
High Court and the respondents filed a cross-appeal against the finding
that they were not customary owners of the suit land. The Court of Appeal
dismissed the appeal and allowed the cross-appeal.
The appellants have appealed to this Court on the following grounds:

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1. The learned Justices of Appeal erred in law and fact when they
held that the respondents are customary owners of the suit land.

2. The learned Justices of Appeal erred in law and fact when they
held that the allocation of the suit land to the 2 nd appellant was
unlawful.

3. The learned Justices of Appeal erred in law and fact when they
held that the certificate of title to the suit land had been obtained
fraudulently.

4. The learned Justices of Appeal erred in law and fact when they
upheld the award of general damages.

M/s Sendege Senyondo & Co. Advocates represented the 1 st appellant and
M/s Kavuma Kabenge & Co. Advocates represented the 2 nd appellant. The
respondents were represented by M/s Bamwe & Co. Advocates and M/s
Muhimbura & Co. Advocates. Both counsel filed written submissions.

In their first ground appeal, the appellants complain that the learned
Justices of Appeal erred in law and fact when they held that the
respondents are customary owners of the suit land. Counsel for the
appellants submitted that the holdings by Mukasa Kikonyogo, D.C.J., with
whom Kitumba JA agreed, that the respondents were customary owners
because the Land Act is silent about customary ownership in urban areas,
the controlling bodies acknowledged the respondents’ claims, and

4
customary tenure can be established by any activity on the land, were
grave misdirections of law and fact.

Learned counsel for the appellants pointed out that the learned Deputy
Chief Justice agreed with the appellants submissions that Section 24 of the
Public Land Act 1969 and Section 5(1) of the Land Reform Decree 1975
prohibited customary tenure in urban areas. He referred to the decision of
this Court in Tifu Lukwago vs Samwiri Mudde Kizza and Nabitaka Civil
App. No. 13 of 1996 which cited the decision in Paul Kisekka Ssaku vs
Seventh Day Adventist Church Civil Appeal No. 8 of 1993 (unreported)
where it was held that customary occupation without consent of the
prescribed authority was unlawful. He argued that the respondents
acquired the land between 1998 and 2000, deriving their interest from
Misaeri Nsubuga (P.W.1) who acquired the land in 1970 and since it was
illegal for Nsubuga to hold a customary tenure in the city, the respondents
could not acquire an interest which he did not have. He contended that
although the Land Act does not prohibit customary tenure in urban areas
the Act is not retrospective and cannot apply to pre-1998 customary
occupation.

As regards the holding that the controlling bodies acknowledged the

respondents’ claim of customary ownership, learned counsel for the
appellants submitted that there was no evidence to that effect. They
contended that payment of rates under the then Local Governments
(Rating) Act, Cap 242 levied on owners hereditaments including building
structures did not amount to acknowledging customary ownership.

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On the holding that customary tenure can be established by any activity on
the land, learned counsel submitted that the respondents did not adduce
any evidence to prove the custom of the area in order to establish their
claim of customary ownership. Counsel contended that the respondents’
witnesses either disowned customary tenure or expressed ignorance about
it. They pointed out that Misaeri Nsubuga (PW1) said he acquired
business premises, not land. He also stated that there was no customary
interest over the land. The second witness Tumusiime Robert testified that
he did not know the custom governing the occupancy of land in the area.
And the Land Officer, Elizabeth Laker stated that she was not an expert in
customs of the area or any area in Uganda.

Learned counsel argued that the learned Deputy Chief Justice misdirected
herself in holding that construction of timber sheds and offices and
operation of different types of businesses made the respondents lawful
customary tenants. Counsel referred to the definition of customary tenure
in Section 1(1) of the Land Act as “a system of land tenure regulated by
customary rules which are regulated in their operation to a particular
description or class of persons” the incidents of which are described in
Section 3. They contended that whoever relies on a custom must prove it,
citing Tifu Lukwago vs Samwiri Mudde Kizza and Justina Nabitaka,
(supra) in support of their contention.

It was counsel’s submission that it is not enough to carry out activities on

land for however long the period, but the claimant must prove that in that
area it is a custom that whoever carries out certain activities for a specified
period of time becomes a customary owner. Counsel contended that the

6
case of Marko Matovu and 2 others vs Mohammed Sseviiri and 2
others, CA No. 7 of 1978 is distinguishable from the instant case because
the appellants in that case were pastoral people who could claim rights
over land by construction of wells and clearing land for cultivation and
customary tenants were protected under both the Public Lands Act and the
Land Reform Decree.

On proof of custom, learned counsel for the appellants submitted that

Section 46 of the Evidence Act provided that where a court has to form an
opinion as to the existence of any general custom or right of persons who
would be likely to know of its existence, are relevant. He relied on the case
of R. V. Ndembera s/o Mwandawale (1947) 14 EACA 85 where it was held
that native custom must be proved in evidence and cannot be obtained
from the assessors or supplied from the knowledge and experience of the
trial Judge.

Learned counsel for the respondents argued all the grounds of appeal
together but I shall first consider their submissions on the first ground of
appeal in view of its importance. Counsel supported the holding by the
majority Justices of Appeal that the respondents were customary owners of
the suit land. Their main argument was that the respondents and their
predecessors had been in exclusive possession of the suit land since 1970,
and had utilized it for business of selling timber and motor garage, on
structures they constructed to facilitate their trade. The respondents also
paid taxes and rates to the Kampala City Council.

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Counsel submitted that the instant case was an all fours with the case of
Kampala District Land Board and Another vs National Housing and
Construction Corporation Civil Appeal No. 2 of 2004 where it was held
that the respondent who had been in possession of the suit land for a long
time and utilized it was entitled to have its interest recognized and
protected by the first appellant.

In reply to the submission that previous statutory provisions prohibited the

holding of customary tenure in urban areas, learned counsel for the
respondent contended that the respondents would rely on exclusive
possession and usage for a long time without interruption or challenge
citing the decision of this Court in Kampala District Land Board and
Another vs National Housing and Construction Corporation (Supra) as
authority for their proposition. Counsel also submitted that the 1995
Constitution and Land Act enhanced the rights of persons claiming
ownership of customary land in urban areas.

Learned counsel referred to the case of Marko Matovu & 2 Others vs

Mohammed Sseviiri & Another Civil Appeal No 7/788 (CA) where it was
held that customary tenure can be established by the cultivation of
seasonal crops or grazing cattle and related construction of wells to water
cattle, and submitted that the decision supported the respondents’ claim of
customary ownership. Counsel conceded that the respondents’ interest
was not derived from mailo land or under the Busuulu and Envujjo Law
1928, but was established by their activities on the suit land. It was the
contention of counsel that what is customary in a particular place depended

8
on the use to which the land is put by the occupants as well as the duration
it has taken.

Counsel submitted that there was proof of how the respondents had
acquired the land and utilized it. They relied on a passage in Marko
Matovu vs Mohammed Sseviiri & Another (Supra) where the Court of
Appeal observed,

“There is no definition of customary tenure perhaps

because it is so well understood by the people. Where a
person has a kibanja, it is generally accepted that he
thereby established customary tenure on public land. But
not all people live on a kibanja. In many areas people grow
seasonal crops on the land they occupy and in other
places some use the land for grazing cattle only. Yet all
these people also enjoy customary rights over land they
use.”

In the leading majority judgment on the question whether the respondents

were customary tenants, the learned Deputy Chief Justice supported by
Kitumba J.A. accepted the submission of counsel for the appellants that the
respondents were customary tenants on the suit land. On the issue of
prohibition of customary tenure in urban areas, the learned Deputy Chief
Justice said,

“On the submission of counsel for the 2nd appellant that

the respondents could not have had customary tenure in
urban areas due to prohibition in my view they do not
affect the respondents’ claim in this case. I am mindful of
Sections 24 of the Public Land Act 1969 and S. 5(1) of the
Land Reform Decree 1975 which prohibited customary
tenure in urban areas.

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 For some reasons not known, the 1998 Land Act is silent
on the said prohibition. This could be seen perhaps as a
general tendency in the Act to enfranchise occupants with
usufruct rights to enable them secure other interests in the
land by either obtaining a certificate of occupation or a
leasehold.

In the instant case the silence of the Act coupled with the
facts of this case including acceptance of payment of
taxes and rates by the Kampala City Council, in respect of
activities carried out on the suit land, support the
respondents’ claim of customary tenure. It is not disputed
that prior to 1998 Land Act, Kampala City Council had a
statutory lease over the suit land which passed over to the
Kampala District Land Board its successor in title. By the
conduct of both those controlling authority bodies, they
acknowledged the respondents’ claim.”

As regards proof of customary law, the learned Deputy Chief Justice held
that in accordance with Section 2 of the Land Act, it was an accepted
practice in the area comprised of the suit land for the people there to carry
out the various types of businesses which the respondent carried out in the
area. The Deputy Chief Justice acknowledged that the respondents’ claim
was not traced to mailo land under the Busuulu and Envujjo Law 1928.

On the other hand, Mpagi-Bahigeine J.A. differed with the majority decision
on this issue and agreed with the trial judge that the respondents were not
customary tenants within the definition of Section 3 of the Land Act, but
they were licensees with possessory interest in the suit land who should
have been given priority over anybody else. In coming to this conclusion,
she held that payment of rates does not establish title to land but
establishes user of land or property, and that the respondents’ claim does

10
not answer to the definition of customary tenure under Section 2 of the
Land Act or its incidents or features under Section 3 of the Act.

The first point to deal with is whether there was a prohibition of customary
tenure in urban areas. I think it is common knowledge that the Public Land
Act 1969 abolished customary tenure in urban areas. Section 24(1) (a) of
the Act provided,

“24(1) subject to the provisions of subsection (5) of this

Section it shall be lawful for persons holding by customary
tenure to occupy without grant, lease or licence from the
controlling authority unalienated public land vested in the
Commission, if

(a) the land is not in urban area.”

Subsection (5) stated as follows:

“The Minister may by statutory order specify any area of
Uganda to be an area in which public land is not occupied
by customary tenure at the commencement of such order
shall not thereafter be occupied otherwise than by virtue of
an estate interest or other right of occupancy granted by
the controlling authority or upon such conditions as the
Minister may specify.”

The prohibition of customary tenure in urban area is clear from Section

24(1)(a) of the Public Lands Act. The provisions of subsection (5) merely
enabled the Minister to extend the prohibition to other areas especially the
rural areas as can be seen from the Public Land (Restriction of Customary
Tenure) Order 1969 (SI 103/1969). Therefore, at the time the predecessors

11
of the respondents occupied the suit land in 1970 they could not do so
under customary tenure.

The Land Reform Decree 1975 declared all land in Uganda to be public
land to be administered by the Uganda Land Commission in accordance
with the Public Land Act 1969, subject to such modifications as may be
necessary to bring that Act into conformity with the Decree. The system of
occupying public land under customary tenure was to continue, but only at
sufferance and any such land could be granted by the Commission to any
person including the holder of the tenure in accordance with the Decree.
Under Section 5 it was provided,

“5(1) With effect from the commencement of this Decree,

no person may occupy public land by customary tenure
except with the permission in writing of the prescribed
authority which permission shall not be unreasonably
withheld:

Provided that the Commission may, by statutory order

specify areas which may be occupied by free temporary
licence which shall be valid from year to year until
revoked.”

Subsection (2) provided,

“(2) Any agreement or transfer purporting to create a

customary tenure of land contrary to Subsection (1) of this
Section shall be void and of no effect and, in addition the
person purporting to effect such transfer shall be guilty of
an offence and shall be liable on conviction to a fine not
exceeding five thousand shillings or to imprisonment for a

12
 term not exceeding two years or to both such find and
imprisonment.”

Under the Land Reform Regulations 1976, any 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 was situated. After
processing the application, it had to be sent to the Sub-county Land
Committee for approval.

The question is whether the respondents did acquire the customary

ownership following the enactment of the Land Reform Decree. The
answer to this question appears to be in the negative. Restrictions on
acquisition of customary tenure under the Public Lands Act seem to have
continued as the law continued to govern all types of public land including
customary tenure subject to the provisions of the Decree. In order to
acquire fresh customary tenure one had to apply to the prescribed
authorities and receive approval of his or her application. There was no
evidence that such prescribed authorities existed nor that the respondents
or their predecessors acquired fresh customary tenure in accordance with
the Land Reform Decree. I would therefore hold that the respondents
could not have legally acquired customary tenure in an urban area of
Kampala City prior to the enactment of the Land Act 1998.

It was held by the Court of Appeal that the Land Act is silent on the holding
of customary tenure in urban areas. It was submitted on behalf of the
respondents that the respondents were therefore free to hold land under
customary law. That may well be so, but as counsel for the appellants

13
submitted, the provisions of the Land Act could not apply retrospectively to
legalise acquisition of customary tenure in urban areas before 1998.

The next question is whether the respondents proved that they occupied
the suit land by customary tenure. Customary tenure was first defined in
S.54 of the repealed Public Land Act as “a system of land tenure
regulated by laws or customs which are limited in their operation to a
particular description or class of persons.” The Land Act now gives an
elaborate definition of customary tenure. Section 1 (l) defines customary
tenure as follows:

“Customary tenure is a system of land regulated by

customary rules which are limited in their operation to a
particular description or class of persons of which are
prescribed in Section 3.”

The incidents of forms of customary tenure are described in Section 3 in

these terms:

“(1) Customary tenure is a form of tenure-

(a) applicable to a specific area of land and specific
description or class of persons;

(b) subject to Section 27, governed by rules

generally accepted as binding and authoritative
by the class of persons to which it applies;

(c) applicable to any persons acquiring land in that

area in accordance with those rules;

(d) subject to Section 27 characterized by local

customary regulation;

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 (e) applying local customary regulation and
management to individual and household
ownership the use and occupation of, and
transaction in, land;

(f) providing for communal ownership and use of

land;

(g) in which parcels of land may be recognized as

subdivision belonging to a person, a family or a
traditional institution; and

(h) which is owned in perpetuity.”

Section 46 of the Evidence Act Cap 6, provides that the opinion of experts
is relevant in establishing the existence of a custom or customary law. The
Section states:

“When a Court has to form an opinion as to the existence

of any general custom or right, the opinions as to the
existence of that custom or right of persons who would be
likely to know its existence if it existed are relevant.”

It is well established that where African customary law is neither well

known nor documented, it must be established for the Courts’ guidance by
the party intending to rely on it. It is also trite law that as a matter of
practice and convenience in civil cases relevant customary law, if it is
incapable of being judicially noticed, should be proved by evidence of
expert opinion adduced by the parties. In Ernest Kinyanjui Kimani v.
Muira Gikanga [1965] E.A. 735, Duffus J. A. said at page 789:

15
 “As a matter of necessity, the customary law must be
accurately and definitely established. The Court has a
wide discretion as to how this should be done but the onus
to do so must be on the party who puts forward the
customary law. This might be done by reference to a book
or document of reference and would include a judicial
decision but in my view, especially, of the present apparent
lack in Kenya of authoritative text books on the subject or
of any relevant case law, this would in practice, usually
mean that the party propounding the customary law would
have to call evidence to prove the customary law as he
would prove the relevant facts of his case.”

No expert in customary land tenure was called and the Courts below relied
on the evidence adduced by the parties. The evidence adduced was
inconsistent and contradictory and in my view inconclusive in establishing a
system of customary tenure over the suit property. For instance Misairi
Nsubuga (P.W.1) admitted that Tom Kibirige (the previous occupier) sold
him a business premises, but not the land. He denied having a kibanja on
that land, or any customary interest on the land. The second witness
Robert Tumusiime who also bought land from PW 1 through Edward Kizito
(PW1’s nephew) claimed to be a customary occupant of the land because
he had been living on the land without title. He conceded that he did not
know the custom governing the occupancy of the land in the area. The
third appellant Sempala Sengendo claimed he bought the land according to
customary practice in the area. He asserted that he was a bona fide
occupant as a customary owner.

On the other hand Edward Kizito who was the nephew or “son” of the
original occupier Nsubuga claimed that Nsubuga did not own land but only
business in Ndeeba. He also asserted that he and his “father” Nsubuga

16
had not had bibanja in the area, nor were they customary tenants on the
land. It should be noted that this witness had been one of the original
plaintiffs but who had withdrawn his claim against the appellants.

The respondents called Ms Elizabeth Laker a Senior Land Officer whose

duties include processing lease offers. In her evidence, she admitted that
she was not an expert of Ndeeba area customs nor was she a customary
law expert of any customary area of Uganda, and therefore did not know
customs governing occupation of land in Ndeeba.

On the basis of this evidence the learned trial judge concluded:

“From the above as well as the statements of other

plaintiffs’ witnesses it became clear that the plaintiffs told
Court what they believed to be land ownership. That was
not a legal definition but a question of possession and
occupation without reference to legal issues of land tenure
and land ownership. For this Court their evidence
establishes the fact that they became lawful occupants and
had lawful possession without legal title. They were also
not customary tenants as the land in question was under a
statutory lease. I agree that they had land under some
kind of license and they had established a usufruct interest
in the occupation and possession of the land in question.
They were not in the category of customary tenants as
such. They were occupants by whatever title and this was
an agreed fact.”

In her judgment, Mpagi-Bahigeine J.A. agreed with the finding of the

learned judge when she held that the respondents claim to the suit land did
not answer the definition of customary tenure in Section 2 of the Land Act
nor the incidents stipulated in Section 3 of the said Act. She observed,

17
 “It is clear that the appellants enjoyed uninterrupted use of
the land for a long time, their right to such possession
stemming from Misaeri Nsubuga (PW1) who bought it from
Tom Kibirige who used to operate a garage on it. PW1 was
emphatic that he had no interest in the land though
Kampala City Council had a statutory lease granted by the
Uganda Land Commission in 1920 and which ceased to
exist when the 1995 Constitution came into force, the
respondents’ possession remained uninterrupted as much
as the land remained unsurveyed. Thus the first appellant
the Kampala District Land Board which came into
existence under the Land Act 1998 should have recognized
the respondents whom it found on the land.”

The learned Justice of Appeal concluded,

“I would thus agree with the learned Judge that though the
respondents are not customary tenants within the
definition of Section 3 they are licencees with possessory
interest in the suit land who should have been given
priority over anybody else.”

I am in general agreement with the learned Justice of Appeal that the

respondents failed to establish that they were occupying the suit land under
customary tenure. There was no evidence to show under what kind of
custom or practice they occupied the land and whether that custom had
been recognized and regulated by a particular group or class of persons
living in the area. I therefore find merit in the first ground of appeal which
should succeed.

In the second ground of appeal the appellants complain that the learned
Justices of Appeal erred in law and fact when they held that the allocation

18
of the suit land to the 2nd appellant was unlawful. Counsel for the
appellants criticized the Justices of the Court of Appeal for holding that the
2nd appellant did not obtain the certificate of title lawfully, on the grounds
that the respondents were entitled to a first offer of the lease to the 2 nd
respondent and that there was a breach of the principles of natural justice.

Learned counsel for the appellants contended that there was no illegal act
or omission proved. Counsel submitted that the respondents were not
lawful occupants, bona fide occupants or customary tenants protected by
the Land Act. It was the contention of counsel that it was surprising that the
Justices of Appeal agreed with the finding of the trial Judge that the
respondents were lawful occupants of the disputed land yet the
respondents had cross appealed alleging that they were customary
tenants. Counsel argued that since the law does not recognize their
occupancy, the question of natural justice could not arise.

Citing Section 178 of the Registration of Titles Act which was relied on by
the Court of Appeal, counsel for the appellants submitted that the learned
Justices of Appeal misapplied the Section which protected only a person
who was deprived of land or any estate or interest in land which the
respondents did not own, nor had any legally recognized interest therein. It
was their submission that where a person is deprived of land or interest in
land the remedy provided under the same Section is damages not
impeachment of title.

Counsel for the appellants also relied on Article 241(1) (a) of the
Constitution and Section 59(1) (a) of the Land Act for the submission that a

19
District Land Board has power to allocate land in the district which is not
owned by any person or authority. It was contended that since the
respondents were not owners of the suit land, no law was violated in
allocating the suit land. Moreover, counsel submitted, the Land
Regulations 2001 (SI 16/2001) were not applicable to the suit land because
they were published on 23 March 2001 well after the allocation of the suit
land on 31 October 2000.

The second ground of appeal seems to cover the 2 nd and 3rd issues framed
at the trial namely.

“2. Whether the land was available for leasing to the 2 nd

Defendant.

3. Whether the second defendant obtained the certificate

of title lawfully.”

As pointed out earlier the learned Judge answered both issues in the
negative. He stated his conclusion as follows:

“I have come to the conclusion that the plaintiffs were

lawful occupants of the disputed land and as such were
like tenants of some sort even if they were like what land-
Lawyers derogatively refer to as squatters. They had
developments and property and worked on the land. They
had usufruct interest over it as it were continuing to
occupy and use the land. They could have secured a lease
or if it were to be given to other persons their interests
should not have been overshadowed the way it was done
giving the impression that some disputed the leasing of
the land.”

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Mpagi-Bahigeine J.A. agreed with the conclusion of the trial Judge. She
held that the 1st appellant should have recognized the respondents’ interest
in land whose possession has been uninterrupted over the unsurveyed
land. She also held that the respondents were licencees with possessory
interest in the suit land who should have been given priority over anybody
else. She therefore held that the suit land was not available for leasing to
the 2nd appellant.

The learned Justice of Appeal further held that the failure to give the offer of
a lease to the 1st appellant before anybody else amounted to a breach of
natural justice. She observed,

“The second appellant was deliberately dishonest when he

proceeded to obtain a title without consulting with the
occupants and authorities of the area. The surveyors they
sent to survey the land had the audacity to deceive the
respondents that they were looking for water pipes for the
neighbouring Wilson Zone whereas not. Most surprisingly
even the compensation cheques for the respondents were
made out long before the respondents had been heard and
listened to over the matter.”

The learned Justice of Appeal referred to the authority of General Medical

Council vs Spackman (1943) 2 All E.R. 337 where it was held that a
decision arrived at in the absence or departure from the essential principles
of natural justice must be declared no decision at all. She concluded that
the 2nd appellant had not obtained the certificate of title lawfully.
The learned Deputy Chief Justice supported the conclusions reached by
Mpagi-Bahigeine J.A. on these issues. She observed,

21
 “In this appeal, clearly the failure to follow the prescribed
procedure for registration of the 2nd appellant’s interest in
the land was a trick to deceive the relevant authority that
the land was available when it was not. The registration
was hence unlawful and cannot be left to stand. As it was
rightly pointed out by Bahigeine J.A. the respondent had
the first option to the lease. The offer to the 2 nd appellant
would have been considered if the respondents had
declined to take it for one reason or another. This was a
breach of the rules of natural justice and Section 178 of
RTA (Supra).”

She concluded that therefore there was no land available to allocate to

other people as long as the respondents continued to use the disputed land
or had been taken away from them lawfully which was the case here. She
held that the respondents would be entitled to the first offer or be given
adequate compensation.

With respect I am unable to fault the conclusions reached by the learned

Justices of Appeal on the issue whether the 2 nd appellant obtained the
lease lawfully. It was an admitted fact that the respondents were in
occupation of the suit land at the time the lease was granted to the second
appellant. The predecessors in occupation to the respondents had been in
possession of the suit land since 1970. Although it is my view that they
were not customary tenants, they were described variously in the lower
Courts as squatters, tenants of a tentative nature, licencees with
possessory interest, or bona fide occupiers protected from administrative
injustice.

22
It seems to me that the finding that the respondents were bona fide
occupants of the suit land was not seriously challenged in this Court. The
attack by the appellants appears to concentrate on the finding that the
respondents were customary tenants. I agree with the lower Courts that
the respondents were bona fide occupants as defined in Section 29(2) of
the Land Act which states:

“(2) “Bona fide occupant” means a person who

before the coming in force of the Constitution –

(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.”

The respondents purchased the suit land in 1998 from persons who had
occupied and utilised the land since 1970, and were therefore deemed to
be bona fide occupants in accordance with subsection (5) of Section 29 of
the Act which provides:

“(5) 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 purposes of this
Act.”

In my view the respondents were not licensees on the suit land as they had
not been granted such licences by the controlling authority, or the 1 st
appellant. Therefore the provisions of subsection (4) of Section 29 of the
Act which state that a licence of a registered owner shall not be taken to be
a lawful or bona fide occupant, does not apply to the respondents.

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In Kampala District Land Board and Chemical Distributors vs National
Housing and Construction Civil Appeal No. 2 of 2004, the facts of the
case were similar to the present case. The respondent in that case had
occupied the suit land since 1970 and had used the land as a play ground
for children residing in its adjoining estate, among other uses. It had
fenced the land and constructed a toilet on it. The 1 st appellant granted a
lease over the suit land to the 2nd appellant ignoring the objections of the
respondent and local council officials of the area. The respondent sued the
appellants claiming that the grant of the lease to the 2 nd appellant was
unlawful and fraudulent. The respondents’ claim was upheld. In my
leading judgment, I observed,

“I have already held that the respondent had been in

occupation or possession of the suit land for more than
twelve years at the time of coming into force of the 1995
Constitution. The respondent had not only occupied the
land but also utilised it, without any challenge from
Kampala City Council. The respondent was entitled to
enjoy its occupancy in accordance with Article 237(8) of
the Constitution and Section 31(1) of the Land Act, if the
suit land was registered land.”

Since the respondents were lawful bona fide occupants, their interest in the
suit land could not be granted or transferred to a third party without
affording them the protection provided in the Land Act. As this Court was
held in Kampala District Land Board and Chemical Distributors vs
National Housing and Construction Corporation, (supra):

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 “A bona fide occupant was given security of tenure and his
interest could not be alienated except as provided by the
law. For instance the bona fide occupant could apply for a
certificate of occupancy under Section 33(1) of the Land
Act. A bona fide occupant could apply for a lease under
Section 38 of the Land Act. While the land occupied by a
bona fide occupant could be leased to somebody else, I
think the first option would have to be given to the bona
fide occupant. As this was not done in this case, the suit
land was not available for leasing to the 2 nd appellant.”

The holding in Kampala District Land Board vs National Housing

Construction Corporation (Supra) applies with equal force to the present.
Moreover the rules of natural justice were not followed in the instant case
as the respondents were not given a fair hearing before they were deprived
of their interest in land. This was in violation of the principles of natural
justice contained in the Constitution of Uganda, the Land Act and
regulations made there under. In the result I find no merit in ground 2
which should fail.

I shall now consider the third ground of appeal which is to the effect that the
learned Justices of Appeal erred in law and in fact when they held that the
certificate of title to the suit land had been obtained fraudulently. Learned
counsel for the appellants submitted that fraud was not one of the issues
framed for determination by the court but both the High Court and Court of
Appeal dealt with it amid protests by counsel. Counsel conceded that the
amended plaint contained particulars of fraud but contended that fraud was
not strictly proved.

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It was argued on behalf of the appellants that the respondents had no
recognized interest in the suit land, and in any case failure by the District
Land Board to give a hearing to the occupants did not amount to fraud on
the part of the allocatee because fraud must reside in the transferee.
Counsel further submitted that even if the appellant was deliberately
dishonest when he obtained a title without consulting with the occupants
and the authorities in the area, sending surveyors to the land and deceiving
the respondents that they were looking for water pipes, and making
compensation cheques before the respondents were heard did not amount
to fraud. Counsel also argued that there was no legal requirement for
consulting anyone and that it was not the 2 nd appellant who sent the
surveyors, but the Kampala City Council to open up the plot boundaries.

Finally counsel for the appellant submitted that according to Section 136 of
the Registration of Title Act, mere knowledge of unregistered interest shall
not of itself be imputed as fraud. It was also submitted that a certificate of
title is conclusive evidence of ownership under Section 59 and cannot be
impeached except for fraud under Section 176 of the same Act. Counsel
contended that the respondents had no protected interest in land which
could be said to have been defeated and that the respondents’ remedy was
to seek adequate compensation for their structures, not cancellation of the
title of the 2nd appellant.

Learned counsel for the respondents submitted that it was fraudulent for
the 1st appellant to have leased out the suit land to the 2 nd appellant well
knowing that the land was being occupied and utilised by the respondents
who were paying taxes and rates in respect of the land. They pointed out

26
that the 2nd appellant was aware of the respondents’ occupation and
utilization of the suit land as evidenced by his obtaining recommendations
from a different Local Council and attempting to compensate the
respondents arbitrary. Counsel contended that the respondents’ interest
was protected by Section 178 of the Registration of Titles Act which was
considered in the case of Marko Matovu vs Mohammed Sseviiri &
Another (supra) where it was held that knowledge of other person’s rights
or claims over land and deliberate acquisition of a registered title in the face
of protests amounts to fraud.

Counsel submitted that the 2 nd appellant was deliberately dishonest when

he proceeded to obtain a title without consulting the occupants and
authorities of the area. Counsel argued that the surveyors of the 2 nd
appellant deceived the respondents that they were looking for water pipes
for a neighbouring zone.

As regards the issue of fraud, counsel for the respondents contended that
the particulars of fraud were property set out in the amended plaint and that
failure to frame a specific issue of fraud was not fatal so long as the parties
to the proceedings knew what the real question between them was and
evidence was taken on it and the Court duly considered it. Counsel cited
the case of Norman Overseas Motor Transport (Tanganyika) Ltd (1959)
EA 131 in support of his submission.

Learned counsel for the respondents further submitted that a certificate of

title can be impeached for flouting the principles of natural justice by failing
to inform the respondents of the application and giving them an option to

27
apply for it. Counsel relied on the case of Marko Matovu vs Mohammed
Sseviiri (supra) and Kampala District Land Board & Another vs
National Housing and Construction Corporation (supra) in support of
his submission.

Fraud was pleaded in the amended plaint, and its particulars stated. The
respondents adduced evidence to prove fraud by the appellants and
counsel addressed the issue in their submissions. The trial Judge
considered the matter and held that it had been established. The Court of
Appeal upheld the finding of the trial Judge on the issue.

It is true that there was no specific issue framed on fraud as it ought to

have been done but it seems it was presumed to be part of the third issue
namely “whether the second defendant obtained the certificate of title
lawfully.” It is common knowledge that a certificate of title obtained by
fraud cannot be said to have been obtained lawfully, and such a certificate
is defeasible and liable to be cancelled in accordance with Sections 64 and
176 of the Registration of Titles Act. Under Section 64, the estate of a
registered proprietor is paramount except in the case of fraud. Similarly,
Section 176 provides that a registered proprietor is protected against
ejectment except in certain cases including where a person has been
deprived of any land by fraud by the registered proprietor.

Fraud has been defined to include dishonest dealing in land or sharp

practice intended to deprive a person of an interest in land, including
unregistered interest. See Kampala Bottlers Ltd. vs Damanico Ltd Civil
Appeal No. 22 of 1992 (SC) Sajjaka Nalima vs Rebecca Musoke Civil

28
Appeal No. 2 of 1985 (SC) and Uganda Posts and Telecommunications
vs Lutaaya Civil Appeal No. 36 of 1995 (SC).

In Kampala District Land Board and Another vs National Housing and

Construction Corporation (supra), this Court observed that it is now well
settled that to procure registration of title in order to defeat an unregistered
interest amounts to fraud. The Court quoted with approval the case of
Katarakawe vs Katwiremu (1977) H.C.B 187 where it was held that:

“Although mere knowledge of unregistered interest cannot

be imported as fraud under the Act, it is my view that
where such knowledge is accompanied by a wrongful
intention to defeat such existing interest that would
amount to fraud.”

In her lead judgment Mpagi Bahigeine J.A. held that fraud had been
established because the suit land was not available for allocation to the 2 nd
appellant, and that the respondents were entitled to the first offer of the
lease before anybody else could be considered. The learned Justice of
Appeal held that this action amounted to a breach of the principles of
natural justice and brought into play the provisions of Section 178 of the
Registration of Titles Act. The learned Justice of Appeal observed:

“The second appellant was deliberately dishonest when he

proceeded to obtain a title without consulting with the
occupants and authorities of the area. The surveyors they
sent to survey the land had the audacity to deceive the
respondents that they were looking for water pipes for the
neighbouring Wilson Zone whereas not. Most surprisingly
even the compensation cheques for the respondents were

29
 made out long before the respondents had been heard and
listened to over the matter.”

In her supporting judgment Mukasa-Kikonyogo D.C.J., agreed with the

conclusions reached by the learned Justice of Appeal and added:

“Further, I agree with Bahigeine J.A. that there was

evidence of fraud. Clearly the grant of the lease to the 2 nd
appellant was intended to defeat the unregistered existing
interest of the respondents. The appellant knew the
respondents’ interest in the land but the latter were not
given opportunity to be heard on the matter which
amounted to fraud.”

I entirely agree with the conclusions reached by the Court of Appeal on the
issue of fraud. There was a deliberate effort by the appellants to sideline
the respondents as bona fide occupants or tenants at sufferance of the suit
land. The respondents were not informed of the 2 nd appellant’s interest in
leasing the land and given an option to lease the land or to make any
representations to protect their interest. The appellants seem to have
consulted officials of a different Local Council and ignored the views of the
proper Local Council. The communication from the relevant Local Council
of Kasumba Zone clearly indicated that the suit land had been occupied by
the respondents for a long time. The respondents were even offered
compensation packages without negotiation or consultation. In addition the
relevant law and procedure were not observed. I am therefore unable to
fault the decision of the Court of Appeal on this issue. I find no merit in
ground 4 which should also fail.

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In the final ground of appeal, the appellants complain that the learned
Justices of Appeal erred in law and in fact when they upheld the award of
general damages. Learned counsel for the appellants relied mainly on their
submissions in the Court of Appeal which in my view is a bad practice.
Counsel submitted that the Court of Appeal did not reevaluate the evidence
before summarily rejecting the grounds of appeal. They also contended
that the Court of Appeal ignored the complaint that the interest of 20% on
general damages from the date of filing was too high, yet counsel for the
respondents conceded that the interest on general damages should be
between 6 – 8% from the date of judgment.

In reply counsel for the respondents submitted that the general damages
awarded were fair in the circumstances of wrongful alienation of prime land
located within the city whose value was high. Counsel contended that the
matter had taken a long time in Court and the respondents had their
structures on the suit land destroyed by the 2 nd appellant on a number of
occasions. It was counsel’s submission that an award of damages is in the
discretion of the trial judge who gave reasons for the award and an
appellate Court should be slow to interfere with the award. Counsel relied
on the decision of this Court in the case of Byabalema & 2 Others vs UTC
(1975) Ltd Civil Appeal No. 10 of 1993 (SC) in support of his submission.

With regard to the rate of interest, learned counsel for the respondents
pointed out that it was conceded in the Court of Appeal that it should be 8%
and that the interest should run from the date of judgment until payment in
full, and that this had already been corrected by the Court of Appeal under
the slip rule.

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It is my opinion that no valid grounds have been advanced for interfering
with the award of damages made by the trial Judge and confirmed by the
Court of Appeal. As was held in the case of Byabalema & 2 Others vs
UTC (1975) Ltd. (supra):

“It is now a well settled principle that an appellate Court

may only interfere with an award of damages when it is
inordinately high or low as to represent an entirely
erroneous estimate. It must be shown that the Judge
proceeded on the wrong principle or that he
misapprehended the evidence in some material respect
and so arrived at a figure which was inordinately high or
low.”

The complaint regarding the rate of interest and when it should run has no
merit as the same was dealt with by the Court of Appeal and corrected
through the slip rule. Accordingly, ground 4 should also fail.
In the result, this appeal should substantially fail and I would dismiss it with
costs here and in the Courts below.
As the other members of the Court agree, this appeal is dismissed with the
orders I have proposed.

Dated at Mengo this 11th Day of February 2008

B J Odoki
CHIEF JUSTICE
JUDGMENT OF TSEKOOKO, JSC

I had the benefit of reading in draft the judgment prepared

32
by my Lord the learned Chief Justice which he has just delivered.
I agree with it and with the orders which he has proposed.

Delivered at Mengo this 11th day of February 2008

J. W. N TSEKOOKO
JUSTICE OF THE SUPREME COURT

JUDGMENT OF MULENGA, JSC

I had the advantage of reading in draft, the judgment prepared by my Lord

The Chief Justice and I agree with him that for the reasons he has given, I
also would dismiss the appeal with costs.

Dated at Mengo this 11th day of February 2008.

J. N. Mulenga
JUSTICE OF SUPREME COURT

JUDGMENT OF KANYEIHAMBA, JSC.

I have had the benefit of reading in draft, the judgment of My Lord Odoki,
C.J. and for the reasons he has ably given, I agree with him that this appeal
has no merit and ought to be dismissed. I also agree with the orders he has
made.

Dated at Mengo, this 11th day of February 2007

33
 G.W. Kanyeihamba
JUSTICE OF SUPREME COURT

JUDGMENT OF KATUREEBE, JSC.

I have had the benefit of reading in draft the judgment of my Lord the Chief Justice. I agree with
him and the orders he has proposed therein.

Dated at Mengo this 11th day of February 2008.

Bart M. Katureebe
Justice of The Supreme Court

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