How is it vital to study land law:

Land is a very scarce resource for the importance of man the

historical development of the land laws in Uganda (the
historical context) j legislating land rights is like legislating the
rights of people, however every land laws that comes has to
bare the rights of human beings importantly then to consider
the old laws the presence of the customary law and the written
law kind of makes the law very complicated.
Some of the concepts of the land law we have to take are
shaped by the English law and as a result registered land and
its concepts have been applied to customary land which is
unfair yet it be possible to apply the basic concept
Customary tenure would be favorite in application but if you
apply a wrong law you may end up injuring another one’s rights
due to application of the wrong concept.
A wrong standard been applied to taste ownership of land is
different from customary approach toward land
But should we strictly follow unregistered interests on land
Who has a better claim to land?’
How is a valid mortgage created?
Under what circumstances it may be terminated.
Was it validly created?
Is land an object of power
Intransigent land lordism. I.e. I just want to be a land load
General introduction.
The basic foundation of Uganda’s land law are deeply rooted in
the English concepts of policy since independence. It is
important to understand the English concepts from which much
of land law has evolved. That way, we can decipher why our
law is what it is today, and the extent to which cultural,
economic, social and political circumstances unique to Uganda
have from time to time, over the years led to modifications of
some of the land law concepts. Although the legal scholars that
confirm this is Michael Norwood. To him;
“land law was developed by the courts and parliament, layer
upon layer, from feudal times and earlier; each layer being
added to understand rather than replaced by the next layer; to
understand the land law of your own age, you had first that of
each previous age, each with its own particular philosophy and
language”.
In short, understanding land law in uganda should involve
making some of the English concepts of the law of real
property; it forms the foundation of a gamut of legal rules and
principles of land law in uganda. Beyond that, one needs to
make sense of other aspects of society that shape the legal
rules, and how legal rules may have shaped people’s reactions
to them. This also means that the English concepts should not
be understood and applied to Uganda in isolation of the
historical and contemporary developments in the land laws of
Uganda. Most importantly since 1903 [a remarkable year of the
crown lands Ordinance] to date [the land act Cap 227] the fact
that today’s land lawyer is grappling with some “in vogue”
matters relating to condominiums, those arising in the oil and
gas industry and contestations on land arising in the arenas of a
post conflict settings among others, does not necessarily render
the relatively historical layers of and law irrelevant.
Land law in Uganda partly concerns the various categories of
right [claims] to land that people, institution/entities, state may
have to land. These vary in terms of nature, length and
importance, land law in general concerns the rules about
creation and nature of those interests determines who of the
interest claimants has a better claim to the land. All the above
determinations are made on the basis of legal and other rules
e.g. those anchored in equity and Aston;]
This does not necessarily make land law clear and certain at all
times and in all respects. Many land law related matters are
complicated by the existence of a dual system; one sourced.
From written/imported law and another routed in customary
form. Ascertainment rights/claims to land. And which claim
should have priority over the other is usually made irksome by
the by the duality f of the system. This duality will feature in a
number of debates in this course. Note that since our written
law system, [as earlier mentioned] has foundations in in the
English system where the act of registration, gives one a better
claimant to land. There are more instances in our land law
where a registered interest or title is considered better than the
other [unregistered interest]. With some exceptions.
Further, from your introduction to land law and the study of
the definition of land. You must have found that the term
“land” is land law is wider than if is used in the English
language. Beyond that, we should remember that land is one of
those objects that have great connotations for power, politics
and identity. Control over rights to land or access to land
denotes power, both over the land and people that might claim
lesser rights to it and normally has implications for social order.

The doctrine of tenure and estates.

The feudal tenure [illustrated below]
The king [lord]
Tenants in chief
Lord of the manor/
Tenants in demarche
Peasant
\in English law all land was owned by the king. His subjects
could hold it on the basis of a tenancy from the king or from
those claiming it under him. “See the above figures to illustrate
this and the hierarchy of claims to land. Tenants in chief
claimed tenure from the king directly. From them the tenants in
demesme got a claim to tenure in land. At the bottom of the
ladder were the peasants whose claims to land were derived
from those of the tenants in dengshe.
This cutlminates into a feudalistic
He who has land has power to
Privatalised rights evolved as a result of coming of the
comunual ownership. But this private rights have to be within
the consecent of the community

What then happens after Uganda had become a protectorate

for the british.
They came with idea of building the economy, but they were
not happy with the land tenure syste and thought of . after the
signing of the 1900 buganda agreement where land was given
out to the kingdom.
Rational for this
Was
To remove legal rights from the peasant and make it a crown
land such that it would possible for it to be available and make
it available for whoever would use it for development agender

FOUNDATIONS OF LAND Laws

This culminates into a feudalistic structure of land holding. With
in this the lord offered protection to the man, and the man
offered services to the lord in return ,hence creating a social
bond that to some extent is significant for a proprietary
relationship to continue in existence. The feudal structure
replaced the communal system by which land was held.
The docTrins of tenures and estates are for that matter
among the fundamental doctrines of english land law .see
Megarry and Wade,THE LAW OF REAL PROPERTY for details
THE DOCTRINE OF TENURE
All land is held by the crown,but it can also be held by others in
a certain form of tenure.

So tenure mainly concern the terms upon which land is held.

As mentioned earlier the doctrine of tenure is ruuted in the
feudal system ,which does not fully exist anymore .It has
substancially vanished although its substance is still identifiable
in English land law.Aspects or strands of its remnants are still
visible,although minimally in legal regimes like thaqt of uganda
to some extent.examples from class??
In some instances during colonialism the english standard of
tenure was used as a basis to determine if land in any country
that was colonised by the british was actually owned.Afailure
for any locally rooted system to fit with in the concepts of
tenure (aand indeed other conbcepts in english law0would9to
the coloniser) most likely go to show that such land was not
owned ‘terra Nullius” or no mans land.This situation was
challenged ina number of cases.These cases will also be
importyant in our discussion if customary tenure in
uganda’lateron.
Among the most important are:Mabo vs
queensxland9Australia0 and Amoudi Tijan vs secretary of
southern Nigeria.(nigeria)
In the mabo case the british asserted that since the land in
question was held under customare tenure , it was free or not
owned.The court in this case asserts that occupancy is
important as a status indicator for those claiming rights over
land. It could not therefor be said that the land in question
was free and not owned(in english terms) if it was occupied by
the Aboriginal Australiians and had been utilised since before
the coming of the British. Mabo
vs queens land no.2 1992 HCA 23

(In Mabo v queens land no.2) it could not be said that the
aboriginal communities of Australia that lived on their
ancestral land for time immemorial had lost a right to claim it
when the crown/ sovereign conquered the teritory..This is so
because the aboriginal community had asserted its members ‘
exclusive right to occupy and use the land. Their claim by the
reason , by the reason becomes an encumbrance on the title
claimed by the crown, after the ‘after the territory is acquired.
In this case ,the nature of “proprietary right” as known to as
known to English law could not cover claims to land known as
to mabo customary law .The court in a pragmatic way came
out of the box and found value equivalents in mabo
community’s custom to conclude they had a claim to land.
The Mabo case bases on occupation and use to establish a
proprietary right in the land that outlasts occupation of
territory by the crown.
Similarly in Ahmad Tejan v secretary of southern Nigeria , the
rights that were ceded to the British crown were those in the
king (oba) and would not in any way affect the usufructuary
right of his people to the land. In S.6 of the land act (6) In this
section, “usufructuary right” means the right to use and derive
profit from a piece of property belonging to another while the
property itself remains undiminished and uninjured in any way.
Just like in earlier cases the above ruling points to the fast that
acquisition of territory by estates through colonization does not
put an end to existing customary rights in property .They
survived the establishment of sovereignty. The sovereign
could later by legislation confirm such rights or interest
claimed on the basis of custom .Further a chief cannot claim a
fee simple in customary land, but only a right to hold as
trustees or caretakers of such land for a whole
community .’ownership per se is in the whole community that
has the benefit ton share in the proceeds of sale or lease of the
land if at all
Question: what would be the likely implication of a conclusion
that the land in those areas colonized by the British was TERRA
NULLIUS?

THE DOCTRRIN OF ESTATES

Tenure in land is usually valid for a duration of time,and this is
technically an estate in land.In principle , the land was owned
by the king and therefore one could only get the right over
land for a period of time. This also points to the fact that
English law distinguished between ownership of land the
physical, and use of the land or enjoyment o0f rights in the
land, with the ability to exclude all other potential concurrent
claimants of rights to the particular land. This cannot be better
put than it was in an old but very important case of
Walsingham. (1573)2 plowed .574 at 555
“the land itself is one thing, and the estate in the land is
another thing, for ban estate in the land is a time in the land, or
land for a time, and there are diversities of estates which are
no more than diversities of time”
From the above ,it is clear that one of the first questions to be
addressed is for how long is a claim to the land valid? The
length /duration of estates is the most important
distinguishing feature in and among them.
Estates in land can be categorized as freehold or lease holds.
The lease hold estates are less than the freehold estates in
time.
FREE HOLD ESTATES:
These are mainly three:
 Fee simple
 Fee tail
 Life estate.
The length of these is based on the period of time the estate is
supposed to last .,or the gravity or duration of life of the state
holder.
Fee simple: it is the longest estate at Common law which is as
good as ownership of land (see Cheshire and Burns Modern law
of real property pages 149 to 150 for details).Briefly this estate
continues in existence as long ag there are heirs to the
holder(from a wide range of relatives) that can inherit it. It can
only come to an end if the holder dies intestate: without a
relative to inherit it.( Was it possible for the estate to last in
perpetuity??)
Although English law ownership of the land remained in the
crown, a grant of rights to use land under fee simple estate
would in practical terms be equivalent to grant of ownership.
(why)? In the Walsingham’s case (supra), the fee tail estate was
referred to” a time in the land without end. ”This in principle
does not displace the crown’s radical title to land on which
there is a fee simple estate.
Feetail: it is an estate that lasts for as long as the lineal
descendants of the grantee live.it is an equitable interest that
exists behind a trust. It is not possible to create a feetail any
more.Walsingham’s case (supra) describes this as “time in the
land for as long as the grantee has has issues of his body”
Life estate:This is terminated on the death nof the original
grantee no matter whether it was transferred to someone
else. For example, if the grantee of a life created a lesser
estate will terminate on the death of the grantee of the
original life estate. This kind of estate cannot be
inherited(relevance of the above in Uganda??)
LEASE HOLD ESTATES:
These are estates less than free hold that allow for seperation
between ownership of land and use of land by virtue of an
interest in it.
Street vs Mount ford (1985)AC 824, defines as an agreement in
which one person grants to another “exclusive possession or
occupation of land for a (duration of time) in return for a
periodic payment in monetary terms.
Lease are interests in land that are measured or are valid for
an ascertained /ascertainable period f time. They could be
fixed term leases , periodic leases or tenancies at will. The
fixed time is always for a clearly ascertained period of time
and will expire at the end of that period, say 45 years .Periodic
leases are for a certain period of time and depending on the
agreement of the parties automatically renew at the
expiration of that period. Finally tenancies at will are
terminable by any party to them at any time.
(How do you distinguish a lease from a license?)
Licenses are personal rights claimed on the basis of an
agreement with the owner of the land and are personally
enforceable against the owner or the giver of the license. On
the other hand , leases are interests in land . This is on of the
fundamental but problematic distinctions between these
two ,details of which will be saved for the second semester
land transactions course.

The Doctrine of Tenure and Estates :

Relevance to Uganda:
This is mainly in a historic context.W hen uganda became a
British protectorate , much of the land by law was vested in the
crown in England. For example , the crown lands (declaration
Ordinance of 1922 .(Now repealed, laws of Uganda cap 118)
provided that all land and any rights in it were vested in the
protectorate v and (…”shall be presumed to be the property of
the crown unless they have been or are therefore recognized
by the government, by document to be the property of a
person or until the contrary there of be proved )”
The above means that any land not held on th basis of the
registered title(much of which was in central Uganda) was
deemed to be in crown land .Therefore a real title to those
land vested in the crown in England and the presumption is
the English concepts would be applicable to this land. It would
regulate the relationship between the crown and those that
held the land .This however remains something of academic
more than practical importance: This law did not go a long way
to affect how land was held and for how long it was held by the
locals.
CHAPTER TWO
EVOLUTION AND LAND TENURE SYSTEMS
2.1 INTRODUCTION
The pre-conceptional guide to this study derived from
grounded theory and the general constructs of respected
urban scholars (Southall and Gutkind,1957),(Kanyeihsamba
1974) , (Kanyeihamba and Mc Auslan eds 1978), (Huton n.d)is
that: land tenure is the central determinate factor of the
forms of urban development, closely related to land tenure in
the urban development , are the llegal and administrative
frameworks and processes.Because of their closeness ,tenurew,
law and urban administration often get difficult to isolate and
assess the extents of their respective influence s on the forms
of urban development.The appreciation of urban tenure , law
and administration; Firstv in their respective conceptual senses
, second in their de facto and de jure senses,or the ideal and
real and third , their practical interactive mechanics’ has been
quite problematic to most urban stake holders.
Land tenure is not the all determinant factor in the urban
development processes and of the forms of the urban
develooment .While land tenure interplays withb various non
tenurial factors, it also varoiusly impact s on these other factors
. Land tenure is conbsidered a central detrminate factor
because almost all the other urban development factors
crucially hinge on it , and whil, there can be reciprocal
influences among sets of factors interse, la

LAND TENURE
Land rtenure is the mode of land holdinbg , together with the
terms and copnditions of occuoancy.It is about the bundle of
rights held and enjoyed in thye land resource.The bundle of
rights are relative in terms of the degree of their enjoyment
and they trsanslate into the manner of using of vland, the
duration if use orv occupancy ,as well as relocation of the
rights .(transfer , lease , sublease ,
licencing,bequeath,etc)Tenure is characterised of a multiplicity
of influencesw; legal, social cultural,ecological/ clim,atic ,social
economic , the foprmal, semi informal, and informal
institutional arrangements ,etc. The essense of a tenure system
arew the ways in which the rights , restrictions and
responsibilities that people have in respect vbtpon the land
and properyty are held. Uganda’s land tgenure regime has
been for over a century,characterized by multiple tenure
systems ; customary, freehold ,milo, and lease hold .The land
rights and tenure relations peculiar to the responsive systems
of tenure have both legal and social legitimercy. In addition to
the different complexity of the land tenure relations , the
difference between the legal recognition of a claim to land and
its social recognition, and between recognition and
enforcement, often create prohibitions on urban land use
planning , development and administration.

Depending on the land relations in the tenure system, there

are also limitations entered by the distinction between
ownership of land and effective control. Legal ownership does
not always carry with it the rights of control in all its senses .A
legal ownership may meet with restrictions , some of which are
user burdens of a squatting nature v encumbrances on the
land, while others are familial restrictions imposed by family
members on an owner of land(especially on milo land)
restrictions the disposal of land by the owner.Others are legal
restrictions , such as those stemming from joint tenancy or
tenancy in common , as well as the spousal restrictions in
section 40 of the land act,1998,prohibiting the dealing with
dealing in land by a spouse without the other spouse’s
consent or that of the children.

Issues of land ownership, access,and they control of access and

ownership are at the core of urban land use planning,
development and administration .The particular land tenure
relations under which ownership, access, and the controls
are characterised ,may present with serius constraints on the
land market ,a skewed land market may develop, as in the
case of kampala city, such tat the land owner virtually have no
rights of control of access to the land.The market instead
becomes vibrant between the informal land users themselves
instead of between the owners and users. As informal land
market hold sway in the face of rampant land encumbances,
there is created an artificial land shortage of land, resulting in
high land prices , and thus denial of opportunities to formal
urban developers.
On the other hand , the historical process of tenure building
and the private character of the land tenure relations, as those
of mailo systems , attended by sub national and national
political influences , have denied the urban authority KCCA,
effective use of power to control and manage urban land use
in kampala city. With the land tenure relations (both sanctioned
at law) and under social recognition ) enfranchising individuals
with the overriding powers of controls of access and
ownership of urban land the mere relegation of the urban
authority and other administrative urgencies to the drawing
of the urban plan and supervision of compliance are in
effectual in face of the large quantum of private powers
vested in the individual urban land consumer. There are
practical difficulties of enforcing physical planning in a city of
multiple tenure systems , in which the land is (and has
been)predominantly privately owned(75%milo land), and
where there is an over lay of the formal and informal means of
ownership and access to urban land.
LAND TENURE RELATIONS
The social relationships in which people enter sis-a-vis land are
the land tenure relations. While ‘tenure regime” is a collective
reference to all the land tenure system in the country, land
tenure relations are a translation of specific tenure systems: the
land relations are sub-categories peculiar to a specific tenure
system. They are the sets of personal arrangements and
transactions by which individuals’ access land, or have rights in
land reallocated. The arrangements and transactions may lead
to permanent tenure rights or mere temporary transfers of
ownership and lesser rights in land, such as where land is
borrowed or rented for a short period. In general, land tenure
relations reflect a range of values and norms. Because of the
dynamics of urbanization and urbanism, the land tenure
relations in urban areas (urban tenure relations) may build up
with values and norms that are different from those of the rural
areas, despite the commonality of the tenure systems and
bases of tenure legitimacy for the rural and urban areas.
As the state laws and social recognition define the general
incidents of a tenure system, so also land tenure relations are
regulated through the state laws and the non-state normatives
(social customs/practices). The dual system of tenure rules in
which the state laws co-exits with the custom-based tenure
relations and rules has implications for urban planning,
development and administration. This is especially the case in
the situations when the non-state rules run counter to, and
override the state laws. The dual system of tenure rules is often
called legal dualism. Duality, here, means the dual (or plural?)
rule-system for the vindication of land rights, and also the
dual/plural institutional arrangements for the control of access
and ownership of land.
Legal dualism is compounded by the plurality of the tenure
system, whose particular incidents of tenure in some respects
conflict across the tenure, such as those of mailo tenure and
freehold. There are competing and contradictory legitimacy
claims over land by individuals or groups under the plural urban
tenure and the plural legal institutional controls of access and
ownership of land. The multi-forms of tenure in their
attendance by a dual system of rules (the state and non-state),
as well as the multiple land management agencies (the
government institutions, civil society, and traditional/cultural
institutions) affect urban planning, land control and
administration, and thus the forms of urban development.
Land Administration
As used in the study, land administration refers to a judicious
process, laws, and institutions that operate to regulate, allocate
and control access and use of land. In case of Kampala city,
there are a number of institutions with the responsibility of
administering land. These include both state and non-state
actors. The former comprise Uganda Land Commission and
Kampala City Council, which have responsibility over public
land. The latter institutions include, Buganda Land Board.
Which is the sole authority for administering what is referred to
as Kabaka’s land. Other Non-Governmental actors include
religious and social sector institutions such as schools, which
were granted chucks of freehold land. It is therefore clear that
there is multiple legitimacy over land ownership with
excessively permissive land tenure system. It is this factor that
has complicated development of standards and lack of
coordination of urban development in Kampala City.
Pre-Colonial Land Tenure Systems in Uganda
Before the advent of colonialism there was no single tenure for
Uganda. Customary tenure under which individual ownership is
not absolute was dominant. Initially when there was surplus
land, rights were more defined for groups than for individuals.
Within the groups, individual or family rights rested on
elaborate traditions and customs, which served to enforce
group control over the use and disposition of land. Because the
community endures beyond the lifetime of any one individual,
the concept of community tenure carried with it an obligation
to future generations as well and individual rights were
transitory.
The individual right to posses and use land, subject to control
by the family, clan and community was, however, recognized
and all this was weaved to a framework of multiple rights in
land. The individual could utilize his land as he thought best,
could lend it out for temporary purposes, and could pledge the
crops on it, but not the land itself. He had a right to dispose of
trees growing on his land, fence his homestead and cultivation
and prohibit grazing near them. He was entitled to
compensation for damage to his crops by grazing animals. But
disposal of the land was strictly in accordance with the
customary rules obtaining in the areas.
The family and the clan settled disputes in their areas of control
and exercised the option to buy land offered for sale by a
member. They could veto the transfer of land by a member to
an undesirable person and could nullify any transaction which
had not received their approval. The community as a whole
exercised rights of access to water, grazing, natural vegetation
like building poles, reeds and grass for thatching houses. They
also had rights of access to clay points for pottery, anthills and
hunting grounds. The community’s authority was vested in
kings, chiefs and clan heads, and, in some cases, community
elders. In the kingdom areas, special land rights had evolved to
semi-feudal status. In the case of Buganda, four such categories
of rights had coalesced:

The Effects of the Historical Land Tenure Relations on the

Current Status of Kampala City
Urban Change in Kampala City
In 1990 Uganda had a population of around 18 million. The
percentage of the population in urban areas has increased from
3.1 per cent in 1950 to 11.2% in 1990. With the return of
relative peace in the latter half of the 1980s the city’s
population is expanding once again and is now estimated at
one million.

Establishment of Kampala
In the nineteenth century, the Ganda king (Kabaka) moved his
kibuga (capital) every few years from hilltop to hilltop. The
kabaka closely controlled all visitors to his kingdom and
directed them on where they could live. This changed in 1890
with the arrival of captain- the British colonial forerunner
Lugard who made a force march to the kibuga and then
camped on and fortified a hill of his own choosing. The
justification for Lugard’s actions was that Kabaka had formally
asked for British protection. Lugard choose Kampala hill for his
site, but for at leased a decade after, the growing urban
conglomeration continued to be called Mengo after the hill on
which the kabaka’s palace stood. However, by 1906 the rapid
development of the British administrative post was exerting so
much influence that the name Kampala superseded that of
Mengo (Southhall and Gutkind, 1975:1-2).

In 1949; Kampala gained the status of a municipality. Fro

several decades, Kampala catered almost exclusively to
European and Asian interests. Influential Africans lived outside
the boundaries of the town in the Kibuga around the kabaka’s
palace and seated of the Ganda native government on Mengo
Hill. Although also increasingly urbanized, the administration of
this area was the responsibility of Buganda native Government.
Despite the passing of a township sanitary law in 1931 and a
town planning law in 1947, little control was exercised over
development of Kibuga. Increasingly, the Kibuga was referred
to as the ‘sceptic fringe’ of Kampala. (Ibid).

Urbanization of Mengo and the Changing Tenure Relations

Opportunities for mailo owners to escape the economic limits
of the Busuulu and Envujjo Law of 1928 arose through greater
demand for residential and commercial land use in areas such
as Mengo. Part of this demand came from Ganda workers (such
as clerks) who desired to acquire land and so enter the bottom
of the class of landed gentry. So great was the demand for
mailo that land purchases and inheritance increased the
number of land owners in Buganda from less than 4,000 in the
initial mailo allocation after the turn of the century, to
approximately 112,000 in 1967 (from less than 1.0 to 6.1 per
cent of the population) (West, 1971: 196). On the other hand
rental demand increased as Africans, unable to afford lease on
crown land, sought to stay within short commuting distances of
their work. This resulted in many of them being induced to
crowd into slums and shanties on the periphery of the towns.

Urban research in the 1950s reflected the urbanization process

with its interest in migration, and adjustment to urban life. The
classic book making of townsmen resulted from the study done
by southall and Gutkind in 1953-1954. They found land in
kisenyi (a densely settled part of Mengo) was increasingly being
used for commercial and residential building sites. The building
sites were referred as plots to distinguish them from bibabanja.
The rapid change was evident from their observation that there
are now only half a dozen customary tenants left in Kisenyi but
there are several hundred holders of plots. While plot holders
paid around ten shillings a month, the remaining customary
tenants were obligated to pay only ten shillings a year, unless
they made a verbal agreement with the land owners to
increase their rent in exchange for permission to build or
extend for renting purposes. Whether permission was gained or
not, bibanja holders took the opportunity to increase their
earnings through rental arrangements on their kibanja.
In early 1960’s, a UN team on urban renewal reported that plot
tenancies were easily distinguishable by the congested, sub-
standard development upon them. Single storied mud and
wattle houses and shops mingle together in squalid confusion.
The report also noted that it was common for the mailo land
owner to have several plots let to an intermediary or principal
tenant who built and maintained the rented premises, and to
whom most of the profits accrued. The principal tenant was
often the former kibanja holder who successfully resisted any
attempt at eviction but reached an understanding with the
mailo owner under which they both may benefit.
Legally bibanja holders were still covered by the Busuulu and
envujjo law even though it was arguable whether the tenant
could still claim the protection of that law when the use to
which the land was put had diverged so far from that envisaged
in the law. Mailo owners argued that with the change in land
use the 1928 law was no longer applicable and that they should
be free to charge rentals as the market permitted. Moreover, as
is evident from the reports above, there was a form of
residential lease growing that was based on informal, verbal
agreements between landlords and tenants and bibanja holders
and tenants that lacked any legal definition or documentary
ratification. The term bupangisa (meaning rented or hired land)
was applied to all derivative interests in land that were not
regulated by busuulu and envujjo law. In urbanized areas
bupangisa took the form of either plots (puloti) tenancy or of
formal registrable leases.

The unregulated growth of informal land use practices

continued with 1960s urbanization. The Obote regime was pre-
occupied with the constitutional crisis of1966 when the
federation was abandoned and the Buganda Kingdom
dissolved. The kabakaship land (mailo land owned by the king)
was confiscated and was subsequently administered as public
land by the Kampala City Council (this land was returned to the
kabaka in 1993). In 1968, formal distinctions between Mengo
and Kampala were dissolved when Mengo came under the
formal administration of Kampala.

Following Amin’s seizing of power in 1971 the capacity of

Kampala City Council (KCC) to land use plan or to enforce
existing regulations declined even further. As a result of the
inability of the authorities to enforce regulations during the
political chaos off the 1970s- mid 1980s many people took the
opportunity to occupy urban land to illegal and unplanned
dwellings and grow food. Others, more closely connected with
the regime, took the opportunity to take over the businesses
and move into the dwellings vacant by the expelled Asians
(Porter, 1998).

Effects of the historical Tenure Relations

Kampala City has had to grow on the basis of multiple land
tenure systems as a result of the historical events and socio-
economic realities that made it necessary to sanction the multi-
forms of tenure relation, as well as sustained them to the
present day. The private character of the urban tenure
relations, and the rural-orientation of the major tenure system
on the basis of which Kampala has developed (i.e., the mailo),
have left the city to develop on the basis of uncontrolled
landlordism. The effect has been the creation of a complex
hierarchy of intermediate landlords on the same land, a
situation that limits effective land use control. This has abated
informal land user ships and irregular development.

There are four (4) formal categories of land tenure in Kampala.

They are public land, freehold land, mailo land and kabakaship
land. These forms of tenure survived despite the 1975 LRD that
converted all land to leasehold. The 1995 constitution formally
abolished the LRD. These tenure systems are overlaid by a
variety of formal occupancy categories and informal access
mechanisms that include land borrowing squatting, illegal
subdivisions, and purchases and sale of informal use rights. The
market in use rights has emerged between users, not between
owners and users.

Tenure and estates in Uganda

A historical paspective of land holding in system in Uganda until
1995
Formation of the state of Uganda brought together people of
divers backgrounds and ways of life in one country. The
conglomeration of the divers in to one means that challenges at
unity in a number of aspects, including land tenure were
expected. This, among others explains the existence of various
land holding systems in ugand both in history and to date.
These systems are not static, they keep on evolving. The main
system that would be here are
1. The customary
2. Milo
3. Free hold and lease hold
Precolonial error;
See; john T uganbwa source of of ugand’s land law, fountain
publishers 2002 p1 to 2 and think through the following,
a. Tenure system in bugand kingdom areas in Uganda as
compared to other parts of Uganda.
b. Communial versus individual rights to land
c. The relationship if at all, between land on the one hand
and power and social class on the other.
d. Identity, social relationships between and among people in
respect to land.
e. Transferability of land. What role did the family, clan,
community play.
f. Land dispute settlement
Customary system of land holding
Read john T mugambwa, principles of land law in ugand,
fountain publisher 2002 p4-5
Customary systems were not universal, they differed from
community to community in Uganda and also depended on the
nature of social, economic or political set up of given
community. That not withstanding, we can point to some basic
characteristics of this tenure that cut across if not all
customary tenure systems of various communities in Uganda.
1. In almost all tribes land was considerd communial
property, vested in the king or a legitimate authority in a
give community. Individuals had a right to use and not
alienate, sell or give land as a gift to another in
contravention of custom.
Note; however that in kingdoms like Buganda, individual claims
to land are identified in /E.g bwesengeze, going away fro the
original concept of butaka land [which was communial] the
same trend is seen in bugisu and kigezi in the period leading up
to colonialism. With time. Individual rights to customary land
evolved as can be seen in some decided case. Wasswa v
kikungwe 19952 v7 ulri. Is about a default on payment in an
agreement that looked like a mortgage agreement in English
law. In which the respondent’s galvanized house would be
taken in case of default in payment. The court was confronted
with the question whether the above was accepted in teso
custom. Also see mutambulile v yosefu kimera 1975 hc at p150.
And mutoro bin mwamba v attorney general 1952 [does
custom recognize individual ownership of land]
2. Cultural leaders plaid a prominate role in the
management/administration of land. These are kings, clan
leaders or chiefs in those areas without kings. Their role
included alienation of land to cans or families and dispute
resolution.
3. Customary land was generally not tittled/recorded and
there was no written evidence, boundaries to land [why”
what challenges can this pose]
4. The customary was and still is for many a way of life and
has significancy for kinship. The land is held in the interest
of the dead, living and those yet to be born.
The customary in the law 1903-1995..
Key issues
1. Crown lands ordinancy of 1903 [was passed prior to
independence of 1962] made customary land crown land
vested in her majesty the queen of England. [what is the
rational for this” how would this affect the agency/trust
system in the customary of land holding that exist prior to
the passing of the ordinancy]
2. East African loyal commission of 1955] among other
recommended registration and conversion of customary
land in to free hold but it remained vested in the state.
 During this period, those in power, were pre-occupied
with development, using land as a tool. At the
commission’s recommendation was seen as one of the
ways to boost investment and development, prevent sub-
division of land and also support the progressive farmers.
3. The constitution of Uganda 1962 Art17 guaranteed
fundamental rights for all individuals in Uganda
irrespective of their race, creed, colour, sex etc but were
subject to the respect for the rights and freedoms of
others and for the public interest. The protected rights
included [c] protection for privacy or his hoe and other
property and from deprivation of property without
compensation. Nabudere argues that the inclusion of the
right to property in the constitution to a grate extent,
shows the desire to preserve bourgeoisie monopoly contro
over property in the neo-colonial state of Uganda. The
law, constitution and the new state are just a new form of
weapon used to achieve this. Ie dominancy of the have-
nots by those that have, thereby maintaining there
precolonial status quo
4. After the exist of the british customary land was vested in
the new independent state by virtue of the public land’s
act 1962 and latter 1969, administered by the Uganda land
commission.
 5. Customary land [un alienated crown land] could be sold or
leased without the consent of the crown. See S33 crown
land’s ordinancy and 22 of the public land’s act 1962. The
occupiers were susceptible to eviction by the government.
[compensation would only be for improvement and crops].
6. Public land’s act 1969. Introduced t the requirement for
consent of the customary occupier before his land was
alienated S24
7. The passing of the land reform decree 1975. [during idi
amin’s time brought all land previous dealt with [under
the public land’s act] under a new regime established by
the decree with the following effects.
a. All land in Uganda was declared public and vested in
ugand land commission to manage/administer it on behalf
of the state. Land could still be held under customary
tenure S3-1 of the land reform decrees
“the system of occupying public land under customary tenure
may continue and no holder of customary tenure shall be
terminated in his holding except under terms and conditions
imposed by the commission and approved by the minister
having regard to the zoning schem. If any, affecting the land so
occupied, and accordingly the public lands act 1969 shall”
The above provisions seem to protect customary tenure by
protecting persons under it from termination of their rights
without compensation. However S3-2 makes customary
tenants-tenants sufferance, they could easily be evicted no
matter how they acquired their tenure to land. By implecatio,
customary tenure was out law. “a customary occupation of
public land shall, notwithstanding anything contained in any
other written law, be only at sufferance and a lease of any such
land may be granted by the commission to any person including
the holder of the tenure in accordance with the decree.
Acquisition of new customary tenures without permission of
the prescribed authority was unlawful
A customary tenure could only lawfully transfer [by sell or
otherwise] improvement in land, and not his interest in land.
Questions
What was the rational for all the above legal position
Customary tenure and economic development
Could economic development or marketability of land be
achieved without protecting the land rights of the poor.
How relevant is customary tenure in a neo libral state like
Uganda. How can it survive in a country moving towards
capitalism
Legal and equitable interest on land
Equitable interests are those that arise in equity
 The equitable and the common law courts Brought about
Walsh v Lonsdale
This case brings out the following principles
importantly draws the distinction between legal and
equitable interests.
A failure to create a legal mortgage or legal interest where
your intention was a legal interest does not result in to no
interest at all. The resulting interest will be an equitable
interest. And the failure to perform the terms does not
necessary mean that there will be no remedy. The court will
look at your intention and presume that you achieved the
intention.
The remedies the court will grant will differ whether the
case of equitable or legal remedies. Equitable will be specifically
remedies in personum whereas the legal remedies are
remedies in Rem
Another principle here is that equity looks at that which
oughts to be done
The requirement was, if you had created a lease
Even there was a failure to sign the document, there was
performance of the deed.
Uganda telecommunication v lutaya
 In the case of kampala district land board v venasio
babweyaka
The plaintiff a land owner of a plot at Ndeba was deprived
of his land by the defendant after obtaining a Lease yet he had
lived on this land for over 12 years. He the second defendant
was passed on this land by the land board ignoring the interest
of the plaintiff on the said land. In his defence, he contended
that he held this land under customary tenure and that he was
a bona fide occupant on the said land. It was found in favor of
the plaintiff by the trial court.
On appeal
Issues
Whether the plaintiff had a customary tenure on the land
in question
Whether he was a bonafide occupant of the land.
It was held that the respondent [plaintiff] was the bona
fide occupant of the land and had interest in the land

Legal and equitable interest.

 Equitable interests usually arise where someone fail to
fulfill a legal requirement for the creation of a legal interests. It
is not at all times that equitable interests will rise as a failure to
to fulfill a legal interests
Serunjoji v katwilamu
These are distinguished from the fact that. The general
rule is that legal interests are considered indefeasible. If the
first interet was equitable and the second is legal,
the general rule is that the legal rule has priority unless if
you have equitable grounds to displace the legal interest,
reasons grounded with fairness shall we displace the legal
interest. Such equitable interests to displace the legal interests
include
for example a case where
A situation where some one buys a property that is
occupied by some one who’s grate father was barried on such
land. Some where the land is given to care an organization
wanting to build a school for children with disability. X has
equitable interests and \care has a legal interest.

 Suspicion of fraud on the side to aquire the legal interests

  Apply the doctrine of Notice in this case actual or
constructive notice. So if one can prove that the was actual
or constructive notice then a legal interest will be displace
Because bad faith will be imputed on you
Uganda post and telecom v and nor lutaya and anor
Mutual court is an example of the free hold holder who has
allowed good transfer of land
Intransigent land lords, [sturboness] some one with fifteen
acares does not want to sell of any
 Through the doctrine of estopel. If the claimant of the
legal interest
 If there are two equitable interest, first in time first in right
ie if the equities are all equal
Kampala bottles litd v damlico ug ltd civil appeal 22 1992. It is
about fraud and it should be proved.
Fredrick jk zabwe v orient bank and 5 otherssula’s sells land to
musisi
Uganda post and telecommunication v lutaya
Wosila sells land to musisi, musisi travels abroad. He says that
[wosila[ that musis’s purchase was January first, wosla sells the
same land to juma on jan 12th,
In such a case, juma will get the duplicated instrument of tittle
and the registrar will keep the original but musisi who bought
first will get the original instrument of tittle fro the registrar
S48 of the RTA
According to this section, the document that you present uou
land to be registered will be registered according to the time
they presented. He who presents the document first has
priority and the doctrine of notice will not apply.
S54, RTA
imagine a situation where musa insists that he is the owner of
such land
this Section one will claim an interest on land if that
instrument is registered
the section only applies to land under the act to a registered
land
it applied to any estate or interest on land, if your creating a
lease the mortgagor or mortgage until they have registered the
instrument that is created to that estate. E.g musis will not
claim right of ownership until the instrument has been
registered. The terms that have been created can not be
benefited from unless such instrument has been registered.
In his section, in case two instruments have been registered at
the same time, the Section further says that the one who brings
the original certificate will be the one to be registered and not
that one who takes the duplicate. It is a question of othenticity
S59 of the RTA
This seals the importance of certificate of tittle. According to it,
a certificate of tittle is a conclusive evidence of tittle.
S60 RTA
This also protects a person owning a certificate of tittle about
an easement
S64 RTA
This section; it is about the estate of a registered proprietor
being paramount even over those estates that might have been
considered to be important than his under other circumstances
or loss.
1. Fraud,
2. He can not be protected if some land was only if it is
wrongly included in his tittle
e.g
where sula inherited his father’s estate, and this estate part of
it is a very huge chank of land and then latter sula had brothers
and had arguments about who the right administrator should
be and some how a portion of it gets in to the hands of john
who gets registered after having bought it from ton.
If we had to be fair, we would not consider john’s estate
paramount because sula has a better claim to property. This is
in line with S64 except if some one can prove
Fraud because the estate holder can only be held accountable
to interests that have been registered.
The estate of a registered proprietor is paramount even there
were better interest unless
There was fraud, wrong inclusion of some land to the tittle,
there is some who acquired that same interest as a bona fide
purchaser without notice.
In the absence of such grounds a registered proprietor.
Exceptions to S64
You can use the estate of registered proprietor to run away
from taxes, to chase people who had acquired rights through
adverse possession. To refuse to pay dews to the government

How does one acquire property by adverse possession

An adverse possessor does not have to be registered in order to
cover a registered proprietor because the law recognizes the
fact that he has lived on the land long enough
S136
This section halts the concept of notice on a registered land
except if there is fraud. This section does not care about the
existence of the rules of equity trying to displace the interests
of the registered proprietor.
Uganda post v telecom.
The RTA
In kampala battlers v damanico
Fredrick Zabwe, if there is a caveat on the land but the
transferee acquired then it would be a sign of fraud

In terms of different schools of thought what they have to say

Compare and contrast sections 64 and 136 of the RTA cap 230
[25 marks]

Question 2010/2011
 a. Discuss the development of land tenure systems in
Uganda between 1900 and 1995?
Approach;
What is a land tenure system, the relationship of the people
that claim land in each of the tenures amongst themselves
regarding land. Address it as who is entitled to land in the land
tenure systems, in terms of access, what rules govern the
relationship of people in a particular land tenure system.
Identify the rights of people in this period, the rights to land,
their obligation, and then who controls access, how is the land
transferred, in terms of access is it in terms of private rights or
community rights, what institutions are in charge of the tenure
systems.
It is vital to identify the key markers/issues during this period
e.g the signing of the Buganda agreement, the grantig of
private rights to specific individual, by stroke of a pen we see
people claiming rights on the same land,
The bataka crisis
The coming in to place of the 1928 of the busulu and envujo
law what is the basic key marker in this period
The state acquired protection over the land e.g the fea simple
holder than the customary holder.
The land reform decree, and its impact to land,
The 1975 land law decree, the changing of all land reserving it
as public land in the name of
In the 1975 land decrees and their resurrection under the 1995
constitution,
The introduction of the ban fide and lawful occupants
Question 8;
In light of the classification of estates in historical English
common law discuss the relevancy and adequacy of Uganda’s
land holding systems
Approach;
First list the tenures in uganda’s land tenure states and discuss
the length of time during which the acquisition is valid
Estates that are referred to is fea simple, free hold, fetail, life
estates, know what they are all about, and the length of time of
each for which land was held,
Ask what are the lengths of time during which one is entitled to
use land according to the terms agreed dependind on the
estate,
Is there any relationship between the tenure today and those in
the past,
A free hold estate arises where one holds land in perpetuatity
and the common law estates arises the same way, what is the
relevancy in holding land that way, there are competing
interest in this particular holding of land between the owner

Before X a non-government organization fighting for land rights

in Uganda, has approached for advise on how the current land
tenure systems in Uganda can be improve, in a detailed
memorandum give legal concepts on how this can be achieved
Identify the problems that required to be improved before
addressing how it should be improved
a. The multiple tenure systems that are not necessarily
properly regulated. e.g. lease hold, free hold, milo
b. The simultaneous claims to land, different claims and the
relationships to land are difficult to control, e.g the law full
or bona fide occupant, the customary owner which
prohibits the transferability of land and hence poor
utilization.
c. The attitudes/perceptions that context towards these
customary systems in view of one being better than the
other. E.g it would be very difficult for one to acquire a
land which is of a lease hold because of the time limit.
On the question of how the issues supra can be fixed
 a. Demarcating customary tenure and attain a form or
register as provided for in land act, the office of
customary tenure on the ground and make this practical
right on the ground.
Summarize the tenure systems in just a paragraph, or every
tenure in ligh of how it can be improved

Discuss the extent to which the tittles act protects the holder of
the certificate of tittle ;
S.138/151/54/59/64/81/64/136
Fredrick Zabwe, if there is a caveat on the land but the
transferee acquired then it would be a sign of fraud P26/35
DAVID SEJJAKA NALIMA Vs REBECCA MUSOKE, SCCA

12/85 [ 1992] V KALR where counsels fraud is imputed to the

client to vitiate his tittle

2005/2006
Question 8
Discuss the issues arising in the facts and advise the parties on
the ranking of their specific interest;
Identify the nature of each one’s interst
Issues,
What is the nature of each parties interst
1. Kityo, the facts in time first in right prevails walsh
Lonsdale,
2. Pias
3. Mutebi the absence of a transfer would mean that he was
entitled under equity but equity stipulates that he who
comes to equity must come with clean hands