FIRM A2

WORKSHOP 2
LAND TRANSACTIONS
PART (A) – GROUP 4
(Lead by Jean)
 What are the available rights for James
Musajjalumba TASK A

• Based on the facts that are before us, the following are the rights that accrue to James by
virtue of the intended Government acquisition of his land.
• Article 26(2a) of the 1995 Constitution is to the effect that, no person shall be compulsorily
deprived of their property or any interest or right over property of any description except
where the acquisition is necessary for public use or in the interest of defense, public safety,
public order, public morality.
• In the instant facts, James has no objection against this acquisition, save that he reserves the
right to demand fair and adequate compensation in respect to his land (property).
• The following are the rights that James has in the circumstances;
• Right of ownership: This is more to do with legal interests in land. Primarily, Article 273 of
the 1995 constitution vests land into the hands of the Citizens in accordance with the various
tenure systems.
 CONT……………….
• Article 26(1) of the 1995 Constitution also provides for the right of Citizens to own land,
either as individuals or in partnership with others.
• S.42 of the Land acquisition Act provides for circumstances where Government may
compulsorily acquire land from citizens, but this is provided to be in consistency with Article
26 and 237 (2) of the 1995 Constitution.
• Right to claim and protect his interests: This may include legal or equitable rights. Section
5 of the land acquisition Act cap 226 provides for notice of interest in the land and states that
every person that claims for an interest in the land has a right to claim for compensation. In
Salim v Boyd and another (1971) EA 550. Court made a ruling basing on the case of
Gabriel Mbui v Mukindia Muranya civil case no.283 of 1990, where possession was
described as a matter of fact depending on all the particular circumstances of the case, and
that the type of conduct which indicates possession varies with the type of land. And that
there must be actual possession which requires some sufficient degree of physical occupation
for the requisite period.
 CONT……………….

• Right to prior and adequate notice: This is the right to be informed in time in regards to the
decision of government to take over land, but also gran opportunity for the affected parties to
interact with authorities and table their claims.
• Section 5(3) of the Land acquisition Act provides that a notice published under subsection (1)
shall give the particulars of the land to which the notice relates and shall require all persons
having an interest in the land to appear personally or by agent before the assessment officer
on a day and at a time and place specified in the notice in order to state the nature of their
respective interests in the land; the amount and particulars of their claims to compensation for
those interests; and their objections, if any, to any plan of the land made or otherwise.
 CONT……………….

• Right to prior and adequate compensation: The compensation should be at per with the
land market value. In Buran Chandmary v The Collector under the Indian Land
Acquisition Act (1894) 1957 EACA 125, it was held that the 75 market value of land is the
basis on which compensation must be assessed. Market value of land is the price which a
willing vendor might be expected to obtain from a willing purchaser. Likewise, the
compensation should be fair, just and adequate.
• Inter freight Forwarders (U) Ltd v East African Development Bank Supreme Court
Civil Appeal No. 33 of 1992, it was held that Assessing property at the current market value
leads to reasonable, fair and just compensation to deprived persons. And further more in the
case of Commissioner for Lands v Jiwagi EA (1976-1985) court held that no withholding tax
can be deducted from a payment of compensation for compulsorily acquired property.
 CONT……………….

• Also in Sheema Cooperative Ranching Society & 31 Others v the Attorney General
High Court Civil Suit No.103 of 2010, wherein the claimants were the registered owners of
land in the Ankole - Masaka Ranching Scheme. The Government compulsorily acquired
their land following a policy to restructure the ranches for the purpose of resettling landless
people. Persons were resettled on the land without payment of fair and adequate
compensation to the land owners. It was held that fair, timely and adequate compensation
must be paid to persons with an interest in the land at market value upon compulsory
acquisition. Certain procedures must be followed before compulsory acquisition can be
lawful. The Government did not do so in this case. Other tenets of compensation were
discussed in Esso Standard (U) Ltd v Samu Amanu Opio Supreme Court Civil Appeal
No.3 of 1993, where it was held that in situations where there are fluctuations of currency,
such fluctuations need to be taken into consideration in an effort to arrive at what is adequate
fair compensation.
 CONT……………….

• Right to appeal where the takeover is unfair and illegal: Provided for under Article 50 of
the 1995 Constitution, any person whose rights or freedoms are entitled to seek Court
intervention for the breach of such rights. In Uganda Electricity Board (UEB) v Launde
Stephen Sanya Court of Appeal Civil Appeal No.1 of 2000, UEB, The Court held that UEB
contravened Article 26(1) (2) and Article 237 of the Constitution by entering and taking
possession of private land without acquiring it and paying compensation to the affected
parties. UEB should have first notified the owners of the land before taking over the land
which they did not do.
 WHAT IS THE PROCEDURE AND PROCESS REQUIRED BY
GOVERNMENT TO ACQUIRE LAND?

• Article 237 (1) of the Constitution of Uganda 1995 as amended provides that, land in Uganda
belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems
provided for in the Constitution.
• Article 237 (2) (a) provides that the government may subject to Article 26, acquire land in the
public interests and the conditions governing such Acquisition shall be as prescribed by Parliament.
• Article 26(1) of the Constitution provides that every person has a right to own property either
individually or in association with others. And clause (2) further provides that no person shall be
compulsorily deprived of property or any interest in or right over property of any description except
where;
a) where the taking of possession or acquisition is necessary for public use.
b) the compulsory taking of possession or acquisition of property is made under the law which
makes provision for prompt payment of fair and adequate compensation prior to the taking of
possession or acquisition of the property.
 CONT……………….

• Section 2 of the Land Acquisition Act provides that in order to ascertain the suitability of any land for
public purpose, any person authorized by the minister may enter upon the land and survey the land or
do anything necessary for ascertaining its suitability for that purpose.
• This is as illustrated in the case of Bhatt and Anor V Habib Rajani (1958) EA. Public interest was
defined to mean the same purpose or objective in which the general interest of the community as
opposed to the popular interest of individuals is directly and virtually concerned. And Section2 (2)
provides that government shall pay compensation to any person who suffers damage as a result of the
exercise of the powers conferred.
• In the case of Chand V The Collector (1957) AC 125. Court held that the compensation to be made is
based on the market value of the willing seller and willing buyer. 74 Section 59 of the Land Act
provides for the functions of the district land bboard to include compiling and maintaining a list of
rates of compensation payable in respect of crops and also review every year the list of rates of
compensation. In conclusion therefore the government can acquire the 50 acres of land pursuant to the
provisions of Article 26 of the Constitution and section 2(2) of the Land Acquisition Act.
 CONT……………….

• Acquisition can only be occasioned for either public use or in the interest of defense, public
safety, public order, public morality or public health. The acquisition must be made under law
providing for access to court and compensation.
• The Legal Premise provides that land Acquisition can only be occasioned for either public
use, in the interest of defense, public safety, public order, public morality or public health.
The Constitution of Uganda 1995 as amended under Art 237 provides for Land ownership.
The Government or a local government may acquire land in accordance with articles 26 and
237(2) of the Constitution.
• Ross vs. Common Wealth of Australia and others (1985) LRC 292;
• Held: (6-1, Murphy J. dissenting) Ther term 'public purpose' in the Act meant only public
purposes involving the specific use, active or passive, of the land in question: it did not
extend to authorize action merely depriving the former owner of the land, thereby achieving
some more remote public purpose.
 CONT……………….

• PROCEDURE FOR LAND ACQUISITION:

• The minister must make a declaration to that effect via a statutory instrument
• This declaration must be served on the owner of the property - The land is then accordingly
marked out - Notice of the government’s intention to take over must be advertised in the
gazette and accordingly placed on or near the land
• The notice shall inter-alia require all interested persons to appear, with details pertinent to
their interests in the land, objections and compensation
• An assessment officer then holds an inquiry to determine the amount of compensation and its
apportionment
• Upon the making of the award the assessment officer then takes possession of the property -
Any disgruntled party may appeal within 60 days to the High court pertinent to the
compensation or any apportionment of the same.
 CONT……………….

• The minister must make a declaration to that effect via a statutory instrument: THE LAND
ACQUISITION ACT CAP 226: Sec 3. Declaration that land is needed for public purpose.
• Whenever the Minister is satisfied that any land is required by the Government for a public
purpose, he or she may, by statutory instrument, make a declaration to that effect.
• K Quatina vs. Law Development Center (1975) H.C.B 296
• The S.I come before the acquisition it cannot come subsequent to the acquisition. This
declaration must be served on the owner of the property:
• Section 3 of the land acquisition act cap 226 provides that, Declaration of land acquisition is
needed for public purpose. The Minister shall cause a copy of every declaration to be served
on the registered proprietor of the land specified in the declaration or, as the case may be, on
the controlling authority and, if the proprietor is not the occupier of the land, on the occupier.
 CONT……………….

• The land is then accordingly marked out:

• Section 4 of the land acquisition act cap 226, Land to be marked out, etc. On the publication
of a declaration under section 3 in respect of any land, the assessment officer shall cause the
land to be marked out and measured and a plan of the land to be made if a plan of the land
has not already been made.
• Notice of the government’s intention to take over must be advertised in the gazette and
accordingly placed on or near the land, section 5 the land acquisition act cap 226 Notice to
persons having an interest. As soon as may be after the publication of a declaration in respect
of any land, the assessment officer shall cause a notice to be published in the Gazette and
exhibited at convenient places on or near the land, stating that the Government intends to take
possession of the land and that claims to compensation for all interests in the land may be
made to him or her. The notice shall inter- alia require all interested persons to appear, with
details pertinent to their interests in the land, objections and compensation:
 CONT……………….

• Section 5 of the land acquisition act cap 226, Notice to persons having an interest, a notice
published under subsection (1) shall give the particulars of the land to which the notice relates
and shall require all persons having an interest in the land to appear personally or by agent
before the assessment officer on a day and at a time and place specified in the notice in order
to state;
(a) the nature of their respective interests in the land;
(b) the amount and particulars of their claims to compensation for those interests; and
(c) their objections, if any, to any plan of the land made under section 4 or otherwise. An
assessment officer then holds an inquiry to determine the amount of compensation and its
apportionment:
 CONT……………….

• Section 6 the land acquisition act cap 226, provides for an Inquiry and award where a notice is
published under section 5 in respect of any land, the assessment officer shall, on the day specified
in the notice, proceed to hold an inquiry into claims and objections made in respect of the land and
shall make an award under his or her hand specifying;
(a) the true area of the land;
(b) the compensation which in his or her opinion should be allowed for the land
(c) the apportionment of that compensation among all the persons known or believed by him or
her to have an interest in the land, whether or not they have appeared before him or her.
• Ngumuyo Estate L.T.D vs. A.G (1971) H.C.B 89:
• A licensee cannot be compensated
• Abdulla vs. The Collector (1958) E.A 779:
• All tenants are entitled to compensation.
• Chand vs. The Collecter (1957) A.C 125:
 CONT……………….
• Compensation is based on the market value of willing buyer willing seller Any disgruntled
party may appeal within 60 days to the High court pertinent to the compensation or any
apportionment of the same:
• THE LAND ACQUISITION ACT CAP 226: Sec 13. Appeals. Where an award is made under
section 6, any person awarded or claiming that he or she should have been awarded
compensation may within sixty days of the date of the award appeal to the High Court by way
of objection to any or all of the following;
(a) the total amount of the compensation awarded
(b) the apportionment of the compensation
(c) any failure or refusal of the assessment officer to include him or her in the apportionment.
Upon the making of the award the assessment officer then takes possession of the property:
• THE LAND ACQUISITION ACT CAP 226: Sec 7. Taking possession. (1) Where a
declaration has been published in respect of any land, the assessment officer shall take
possession of the land as soon as he or she has made his or her award under section 6; except
that he or she may take possession at any time after the publication of the declaration if the
Minister certifies that it is in the public interest for him or her to do so.
 Whether there are any available remedies to James due
to the dissatisfactory compensation offered by the
government?

• Any person aggrieved by the award of the government conducted by an Assessment officer
may appeal to the District Land Tribunal or the High Court if the value of the land exceeds
50,000,000/=.
• Section 76 1(b) of the Land Act Cap 227 provides that the jurisdiction of a District Land
Tribunal shall be to determine any dispute relating to the amount of compensation to be paid
for land acquired. Section 76(c) amended by Section 31(a) of the Land Act 2004 provides
further that the jurisdiction of the Land Tribunal shall be to determine disputes as the court of
first instance in all land matters where the subject matter does not exceed two thousand five
hundred currency points.
• In consideration of the facts, James cannot appeal to the District Land Tribunal because the
value of the land and the properties thereon (coffee plantation) exceeds UGX 50,000,000/=
which is not within the jurisdiction of the Tibunal.
 CONT……………….

• The available remedy to James is to appeal to the High Court.

• Section 13 of the Land Acquisition Act, Cap 226 provides that where an award is made
under Section 6 for land, any person awarded or claiming that he or she should have been
awarded compensation may within 60 days of the date of the award appeal to the High Court
by way of objection to any or all of the following;
• The total amount of the compensation awarded
• The apportionment of the compensation
• Any failure or refusal of the assessment officer to include him or her in the apportionment.
• In the instant facts, James is dissatisfied with the compensation offered or awarded by the
government and his expectation is to receive a hefty compensation which is not within his
expectation.
 CONT……………….

• In this circumstance, James’ expectations shall be grounded because the provisions of

Acquisition in accordance with the Land Acquisition Act provides for public interest as one of
the main reasons. In the facts, the aim and purpose of the government taking over this land is
to set up a giant thermos power plant and the thermos plant pipeline is expected to supply
power to industries that are expected to emerge in the Masaka and Greater Masaka area and
thereby boost revenues of the region and generally improve the livelihood of Ugandans
served by the station when completed. This purpose will serve the public interest therefore
James’ expectation may be grounded by court.
 PART B & C
GROUP ( Lead by Shamim Nandyose)
 Workshop 2 Part B

BRIEF FACTS:

James wishes to fence off the entire 150 acres of land left after the compulsory
acquisition and set up a coffee processing plant, the extreme end of the 150 acres
James intends to fence off, there is a community well which has existed for
generations.
The surrounding communities were allowed to use it by the great grandfather of
James’ predecessor in title to the land. James, however would like to close it off to
avoid villagers straying onto his farm and bringing disease to his crops and livestock.
You are James’ legal advisor.
 Issues & Law Applicable
ISSUES
Issue 1.whether James can achieve his objectives and how?
Issue 2. whether the community members have any right to access the well on James’ land?
issue 3: what is the process of ensuring that the interests of the community so secured are duly
registered on the land title of James?

LAW APPLIVABLE
The Constitution of the Republic of Uganda 1995 as amended
Case law

RESOLUTION OF ISSUES
ISSUE 1 :
1.WHETHER JAMES CAN ACHIEVE HIS OBJECTIVES AND HOW?
 Resolution of Issues
.
Article 26 (1) provides that every person has a right to own property either individually or in association with others.

• 2) is to the effect that no person shall be compulsorily deprived of their property or any interest in or right over property
of any description except where;
• According to the facts at hand, James has a right to own his land without deprivation by any one as provided by the
constitution or the republic of Uganda under Article 26, However according to the facts part of his land has to be used by
the community for a water source, therefore which is public use as provided by the Article 26 (2) (a) of the Constitution
of the republic of Uganda

• In Mugisha Stephen V Karugaba Yostasi HCCS LD 0050 of 2013 an easement was defined to mean an interest inland
owned by another person with the right to use or control the land, or an
 Resolution of Issues Contn’d

Barclays Bank D.C.O V Patel [1970] EA 88(CA) court held that the fact that the
certificate of title did not mention the right of way was immaterial because parties do
not create an easement of way of necessity.

An easement of necessity does not arise if there is an alternative means of access, it

must exist at the time of grant and not merely arise later.

In conclusion therefore, James should provide an alternative part for the well to the
community if he must fence off the part of the land that has the well in order to
achieve his objectives.
 Resolution of Issues Contn’d

ISSUE 2:WHETHER THE COMMUNITY MEMBERS HAVE ANY RIGHT TO ACCESS THE
WELL ON JAMES’ LAND?
Usage enjoyment Rights

Usage rights are those that entitle one to carry out certain activities on the land in
question without any sort of disturbance from other parties.

Usage rights enable to carry out activities like grazing, gathering of firewood or obtain
water from the land even though one is actually not an owner of the land. An
easement which
 Resolution of Issues Contn’d

• Article 43 of the Constitution of the Republic of Uganda provides that, in the

enjoyment of the rights and freedoms described in the constitution no person shall
prejudice the fundamental or other human rights and freedoms of others or public
interest while enjoying their rights.
• Easements/ Access to roads Mugambwa describes an easement as a right attached
to a particular piece of land that entitles the owner of that land either to use the
land of another person in a particular manner or to restrict that other person’s use of
his or her land to a certain extent.
• In Mugisha Stephen V Karugaba Yostasi HCCS LD 0050 of 2013 an easement was
easement was defined to mean an interest inland owned by another person with the
right to use or control the land
 Resolution of Issues Contn’d
Easement acquired by long user or subscription at common law, an easement may be acquired by
prescription or long use even though there may not be evidence of grant of the easement. Nambula
Kintu vs Kamira CA No.26 of 1973.

Section 26 of the Limitation Act, 1908 provides for acquisition of right to easement. The term
easement’ is defined in section 2 (5) of the Act.

Section 26 of the Limitation Act provides for the rules of acquisition of the right of easement. According
to this section the right of easement regarding enjoyment of light, air, way, watercourse, use of water or
other easement shall be absolute and indefeasible ………..”.

But this use or enjoyment must fulfill some essential conditions which have been stated as follows:
• Peaceably: Enjoyment of easements must not be by force stealth or violence of any sort.
• Openly: Easement must be open and not by stealth or surreptitiously or in disguise.
• As of right: The enjoyment must be rightful for both the parties and not unfair.
• Without interruption.
 Resolution of Issues Contn’d

• According to the facts at hand, there is a community well which has existed for
generations The surrounding communities were allowed to use the well by the great
grandfather of James’ predecessor in title to the land therefore the community has a
right to use the well.

• Issue 3: What is the process of ensuring that the interests of the community so
secured are duly registered on the land title of James?
 Resolution of Issues Contn’d
The holder of a water permit who wishes to bring water to, or drain water from, his or her land over land
owned or occupied by another person may apply for the creation of an easement over that land.

To obtain an Easement Certificate in Uganda the applicant has to contact the Directorate of Water
Resources Management, Ministry of Water and Environment or you can write to the Director on the
following contact:
• An application is made to the Executive Director of Directorate of Water resources Management on
prescribed Form G 1 (obtainable from the Ministry of Water and Environment).

• The form is available at the cost of Shs.10, 000 and there is no processing fee.

• If the Applicant has been unable to obtain an easement by agreement with the owner or occupier of that
land. The director of Directorate of water resource management shall invite all parties having an interest
in the land, including the applicant, who wish to be heard.

• After hearing all the parties the director may create an easement over that land in the prescribed form as
may be appropriate.
 Resolution of Issues Contn’d

• Once the applicant application is successful, the applicant proceed apply for the
permit on prescribed Form G1 with the appropriate attachments.

• Attach all the relevant documents including proof of payment of Ugsh.100,000

before submission to the office of the Director of Directorate of water resource
management.

• The Directorate if satisfied with all the documents shall take 14 days to issue out an
easement, the certificate created under this segment terminates six months after the
date of creation. Unless it is registered with the registrar of titles.
 Workshop 2 Part C
Brief Facts:
• Erukana Sentongo (Erukana) in 2016 bought, from a one Ssempijja, a third of an acre of land (Kyadondo
Block 256 Plot 110) bordering a slum in Kampala.
• He developed a state-of-the-art mansion facing the lake, with a very beautiful ‘to-kill-for’ panoramic
view.
• In December 2022, Ssempijja decided to sell the other two thirds of the residue to Col. Mansur Majje.
• Col. Mansur Majje (Majje) is currently putting up a skyscraper completely and literally killing
Erukana’s panoramic view.
• Col. Mansur Majje has blocked Erukana’s access road to the public way claiming it is on the part of the
land he (Majje) bought from Ssempijja.
• Majje has refused to listen to any suggestions of negotiations and has even threatened to deal anybody
who dares to touch any inch of his land as described in his title Kyadondo Block 256 Plot 110.
 Issues

• Whether Erukana has a right to the panoramic view and what remedy is
available to him in regard to the blockage?

• Whether Erukana has a right to the access road?

• What remedy is available to Erukana?

• What is the necessary procedure, forum and documents?

 Law Applicable

1. Constitution of Uganda of 1995

2. The Judicature Act Cap 13
3. The Land Act, CAP 227
4. The Roads Act, 2019
5. The Survey Act Cap 232
6. The Civil Procedure Act Cap 71
7. Case Law
 Resolution of Issues

• Whether Erukana has a right to the panoramic view and what remedy is
available tI him in regard to the blockage?
• Article 43 of the Constitution provides that in enjoyment of the rights and freedoms
described in the constitution, no person shall prejudice the fundamental or other human
rights and freedoms of others or public interest while enjoying their rights.
• According to Meggary and Wade’s “The law of real property” 8th Ed page 1245, it is
stated that “common law recognized a limited number of rights which one
landowner could acquire over the land of another, and these rights were called
easements and profits, examples of easements are right of way, right of lights and
right of water.
• Erukana can therefore seek a permanent injunction from court to protect his right to
light as enshrined in common law.
 Resolution of Issues Contn’d

• Whether Erukana has a right to the access road?

• The right to the access road is by virtue of the fact that it is an easement. An easement means an
interest in land owned by another person with the right to use or control the land, or an area above or
below it, for a specific limited purpose (such as to cross it for access to a public road) as observed in
the case of Mugisha Stephen v Karugaba Yostasi HCCS LD 0050 of 2013.
• Justice Elizabeth Musoke in Paddy Musoke vs. John Agard and 2 others Civil Appeal No. 46 of
2016 notes that one may enjoy an easement by virtue of the Access to Roads Act Cap 350 or as a
common law right as discussed above.
• According to the Judge, the Access to Roads Act relates to situations where there has never been an
access road so that an application can be made to construct one.
• If, on the other hand, a landowner has access to a public highway by means of a road, albeit through
someone else's land, the above legislation would not apply because there would be no need to
construct an access road. In the instant case, Erukana has right to the access road which is what he
uses to access the public way.
 What remedy is available to
Erukana?

• What is required is to give effect to the common law principles of easements,

which require the person over whose land the road passes to recognise that the
road is an easement for the benefit of those who are entitled to use it.
• In the instant case, the access road was already in existence, however it has
now been blocked by Col Mansur who has refused all suggestions for
negotiations.
• Since the Roads Act is silent on this matter, the remedy is for Erukana to seek
redress from court by Notice of Motion praying that this access road be
unblocked. This will be supported by an affidavit sworn by Erukana.
 What is the necessary procedure,
forum and documents?
• Since the law is silent on the issue, the procedure is by way of Notice of Motion
under Order 52 of the Civil Procedure Rules.
• The forum is the High Court Uganda holden at Kampala, Land Division since the
land is in Muyenga. And more importantly since the Hight Court is clothed with
unlimited original jurisdiction to handle all matters by Article 139 of the Constitution.
Additionally, Section 98 of the Civil Procedure Act grants the High Court inherent
powers to issue remedies in the interest of justice.
• The documents are a Notice of Motion and an Affidavit in Support.(Look at the word
document for details)