Babweyaka and Others v Kampala District Land Board and Another (Civil Suit No. 511 of 2001) [2001] UGHC 120 (21 December 2001)

Full Case Text

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THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 511 OF 2001

VANANSIO BABWEYAKA & 5 OTHERS :::::::::::::::::: PLAINTIFFS

## VERSUS

KAMPALA DISTRICT LAND BOARD & ANOTHER :::::::::: DEFENDANTS BEFORE: HON. MR. JUSTICE J. B. A. KATUTSI:

## **JUDGEMENT:**

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In the City of Kampala, there is property known and described as Kyadondo plot 1028 Block 7 and registered as LRV 2847 Folio 9. It is registered in the names of GEORGE MITARA of P. O. Box 1962 Kampala now the second defendant.

The 6 plaintiffs have been on that property before it was registered in favour of the second defendant.

On 8th November, 2000 the first defendant an Urban Authority allocated the property (herein after referred to as the "suit" property") to the second defendant. On $20/11/2000$ by instrument No. 312919 the suit property was registered under the Registration of Titles Act in favour of the second defendant as above indicated. The plaintiffs were not amused. Hence this suit. It was agreed between the parties that plaintiffs were occupants of the suit

TUCEIPT No.7. OURTS OF IL.

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property. That the first defendant is suit property and that the proprietor of the suit property. a statutory owner of the second defendant is the registered

The following issues were agreed upon for the determination of the court:

- 1. the suit property; Whether the plaintiffs are lawful or bona fide occupants of - 2 . Whether the plaintiffs are of the suit property; customary owners - 3 . Whether the said property was available for leasing to the second defendant at the time of the grant of the lease; - 4. Whether the second defendant obtained the certificate of title lawfully; and - Remedies. 5.

rather In a lawful counsel for and bona fide occupants. the plaintiffs submitted that plaintiffs were both lengthy and convoluted written submission learned

In an elaborate written submission learned counsel for first defendant submitted that there was absolutely no evidence that the suit property was held under a statutory lease by the City Council of Kampala. The short answer here is that the city council of Kampala is not a party to these proceedings. He goes on to submit that the suit property belongs to Kampala District Land Board which is a separate entity. I think the point he was attempting to raise here is that payment to Kampala City Council did not amount to payment to Kampala District Land Board. This I think with respect is a valid point. I will turn to this point later.

Section 30 (1) of the Land Act, 1998 defines "a lawful occupant" as

- A person occupying land by virtue of the repealed. $(a)$ - Busulu and Envujio Law of 1928. $(i)$ - (ii) Toro Landlord and Tenant Law of 1937 - (iii) Ankole Landlord and Tenant Law of 1937. - A person who entered the land with the consent of the $(b)$ registered owner, and includes a purchaser; - A person who had occupied land as a customary tenant but whose $(c)$ tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the lease hold certificate of title.

PES PAID. **COURTS OF JUIN**

## *IZI*

There is were persons occupying the land by virtue of the repealed laws mentioned above. no evidence on record nor is it agreed that plaintiffs

There is no evidence nor was it conceded or argued that plaintiffs entered upon the suit property with the consent of the registered owner. There is no evidence to suggest that plaintiffs were customary tenants whose tenancy had not been disclosed or In short there is nothing on record to bring the plaintiffs under the ambit of section 30 (1) of the Land Act, 1998 . compensated for by the registered owner.

Section 30 (2) of the Land Act, 1998 defines a bona fide occupant as a person who before the coming into 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; or - (b) Had been settled on Land by Government or agent of the government- which may include a local authority.

To qualify as a bona fide occupant under section 30 (2) (a) therefore, one than twelve years. must have been on the land for more

• —N'T No c)t P ls HE

The question now is does the period of twelve years or more purchaser who though has not been on the land for twelve years has taken over some one that has been on the land for twelve It is to be noted that when defining a lawful occupant under section 30 (1) (b) a purchaser is included. When defining a bona fide occupant under section 30 (2) (a) the purchaser is omitted. In the case of GOUSPER L. B. (1889) 14 APP. case 153, 169 LORD BRAMWELL said: include a or more years? ESSEX V. ACTION

statute never should in interpretation be added to or subtracted from. without almost a necessity. " "The words of a

In the case of ATT. GEN. V. SALEM (1864) 2 H *Sc* C 431 POLLOCK C. B said:

"In order to know what a statute does mean, it is one important step to know what it does not mean; and if it be quite clear that there is something which it does not mean. then that which is suggested or supposed to be what it does mean *,* must be in harmony and consistent with what is clear that it does not mean. What it forbids must be consistent with what it permits."

is altogether omitted from a statute, it is clearly not If amatter insert it by implication. for to do so would be as "not I think be allowable to JAMES L. J. said in the case of RE SNEEZUM (1876) 3 Ch D. 463, J to contrue the Act of Parliament , but to alter it."

PAID ' # *Of. H.*

*I* **X2,**

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the category of a "purchaser" was excluded or omitted in section 30 (2) (c) of the Land Act not accidently but purposefully.

From the evidence on record four of the defendant went on the suit property just recently and well after the coming into force of the 1995 constitution. These are the first, third, 5th and 6th plaintiffs. It is argued that plaintiffs have been paying property rates to the city council of Kampala, with respect the City Council of Kampala is not one and the same body as Kampala District Land Board. If I have construed the law correctly, these plaintiffs $\iota$ $\iota$ cannot be referred to as "bona fide occupants."

There is no evidence on record to show how long plaintiffs 2 and 4 have been on the suit property. What was admitted is that they are occupants of the suit property. Section 30 (2) (c) therefore cannot apply to them. I would answer the first issue in the negative.

The Act defines "customary tenure" as a system of land tenure. regulated by customary rules which are limited in their operation to a particular description or class of persons the incidents of which are described in section 4 of the Act. A close study of section 4 of the Act removes the plaintiffs from the category of customary owners. I would answer the second issue in the negative.

FEE PAID. 1500 b CEIPT No. $\pm 2$ For SECRIFICAL COURTS OF $n$

Having found that the plaintiffs were neither lawful nor bona fide not customary owners or the suit property the third issue will be answered in the affirmative. **14^** occupants of the suit property and that, they were

There is evidence record to show that the suit property was statutory body which leased the property to the first defendant. Though the six plaintiffs were indeed on the property there was nothing in my judgement to stop the second defendant leasing out the property. It is my considered view therefore that the first defendant obtained the certificate of **t** title lawfully. I would answer the 4th issue in the affirmative. *o n* vested in the second defendant a

defendants with costs. The sum total of my judgement is that I enter judgement for the

J. B. - - Kat;

JUDGE

21/12/2001 Nerima Kabenge for second defendant. Kavuma Muhimbura for plaintiffs. for first defendant.

Nabatanzi clerk. Judgement delivered.

J. B. A. Katutsi

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JUDGE

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$21/12/2001$

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