Kisoro Municipal Council and Another v Zungu (Civil Appeal 294 of 2016) [2020] UGCA 2151 (25 June 2020)

Full Case Text

## THE REPUBLIC OF UGANDA. IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO 294 OF 2016 (ARISING FROM CIVIL APPEAL NO 003 OF 2014) (ARISING FROM CLAIM NO 02 OF 2004) (CORAM: KAKURU, KIRYABWIRE, MADRAMA JJA) 1. KISORO MUNICIPAL COUNCIL} 2. KISORO DISTRICT LAND BOARD} ………………APPELLANTS **VERSUS**

## ZUNGU CHRISTINE} ………………………………………………………………………………………………

$20$

$10$

$\overline{5}$

## JUDGMENT OF CHRISTOPHER MADRAMA IZAMA

This is a $2^{nd}$ appeal having emanated from a decision of the Magistrate Grade 1 Kisoro District. The facts from which this appeal arises are that the Respondent initially filed a claim in the Kisoro District Land Tribunal on 7th of April 2004 against the Appellants claiming that she was at all material times a customary owner of a chunk of land in Kisoro Town having received the same from her mother as a gift. That in 1995 without any colour of right or consent from the claimant, the 1st Appellant started plotting the land and distributing it to various developers. Other facts are not material for the moment. What is material being that the Respondent claimed the return of her land and alternatively for the Appellants to pay adequate compensation for the land to be agreed upon and the value to be determined by an independent valuer. She also sought payment of exemplary damages and general damages for the inconvenience, loss and damages suffered by her as well as for costs of the claim.

In reply the 1st Appellant among other things averred that the suit property $\mathsf{S}$ was situated within the Town Council boundary by virtue of Statutory Instrument No 65, the Urban Authorities (Declaration of Town Council) (Mukono and Kisoro) Order. The 1st Appellant further indicated that it had applied to the Uganda Land Commission for a statutory lease which was granted and is dated $6th$ of September 1995. 10

For its part, the 2nd Appellant, Kisoro District Land Board also opposed the claim and contended *inter alia* that pursuant to section 57 (1) the Land Act Cap 227, it became the controlling authority over public land matters in the district. Further that the suit property originally belonged to Bufumbira County and was later vested in the Kisoro town Council when the latter 15 became a controlling authority under the Public Lands Act 1969 (now repealed). The 2nd Appellant contended in the reply that the plotting of land was done in accordance with the law and the claimant enjoyed no customary right thereto whatsoever. Last but not least, the 2nd Appellant further contended that at all material times, the land in dispute belongs to it having 20 been conferred upon it by a statutory lease executed by the then controlling authority in 1995.

The claim was subsequently transferred for hearing to the Chief Magistrates Court. The record shows that the suit was heard by a Magistrate Grade 1. The trial magistrate held that the Appellants were aware of the claimants claim 25 and ignored it in the allocation of plots without settling the issues and this violated the claimant's rights. She held that the Respondent had customary interests on the suit property which were violated by the Appellants. Further that the property did not fall in the hands of the Appellants to allocate without regard to the plaintiff's interests. Having found that some of the land 30 was allocated, the learned trial magistrate ordered for survey of the land and valuation for purposes of compensation to be determined by the Chief Government Valuer.

- 5 The Appellants were aggrieved and appealed to the High Court on 5 grounds of appeal as contained in the amended memorandum of appeal namely that: - 1. That the learned trial magistrate erred in law and in fact in finding that the Respondent/plaintiff is a customary owner of the disputed land. - 2. That the learned trial magistrate erred in law and in fact in failing to find the Respondents (plaintiffs) house on the land was all along not there and was only erected at the time of instituting her claim. - 3. That the learned trial magistrate erred in law and in fact in holding that there is always documentary evidence concerning properties of government including public land. - 4. That the learned trial magistrate erred in law and fact in failing to find that the Respondent/plaintiff's claims for either the recovery of land or adequate compensation against the Appellants are not sustainable at law. - 5. That the learned trial magistrate erred in law and in fact in finding that the Appellants violated the Respondents (plaintiffs) right to the land in issue.

The High Court dismissed the Appellant's appeal. On grounds i. and 2 of the appeal the learned 1st appellate court judge held that on the balance of probabilities the claimant is the rightful owner of the suit property by virtue 2s of her proved possession. The learned L't appellate court judge further found O that the resolution of ground 3 of the appeal would be superfluous in view of his findings on grounds 7 and 2 of the appeal. On ground 4 of the appeal, the learned 1-st appellate court judge held that the Town Council took possession of the suit property without giving the claimant a right to be 30 heard to prove her ownership of the same. He held that the right to private property is protected by Article 26 of the Constitution and where land is to be acquired for the public good, the owner of the land must be promptly paid a fair and adequate compensation under section 76 (1) (a) of the Land

5 Act Cap 227. He further held that because of the allocations of the Town Council, the interest of justice was that the process of valuation and compensation initiated before the filing of the appeal shall be reinstituted and concluded.

The Appellants were further aggrieved by the decision of the High Court on the lst appeal and lodged a 2nd appeal to this court on the following grounds: 10

1. That the learned trialjudge erred in law and in fact and a miscarriage of justice was occasioned when he erroneously made a finding that the Respondent/plaintiff is the owner of the disputed land.

- 2. The learned trial judge erred in law and in fact and a miscarriage of justice was occasioned when he failed to appreciate all the available and unrebutted evidence that the suit land falls within the jurisdiction of the Ls Appellant Municipal Council. - 3. That the learned trial judge erred in law and fact and a miscarriage of justice was occasioned when he erroneously failed to appreciate that the Respondent could not have at the same time of the alleged cause of action, owned any land customarily, within the 1-'t Appellant Municipal Council. - 4. That the learned trial judge erred in law and in fact and a miscarriage of justice was occasioned when he failed to evaluate all the evidence on record thereby arriving at a wrong conclusion. - 5. That the learned trial judge erred in law and in fact and a miscarriage ofjustice was occasioned when he granted an order that exceeded the scope of the orders sought on appeal.

At the hearing of the appeal, the Appellants were represented by the learned Senior State Attorney Mr. Mwabeze Ndibarema and the Respondent was represented by learned counsel Mr. Anthony Ahimbisibwe. Both lawyers adopted their written submissions which are on court record. 30

5 We heard submissions on the question of whether this appeal, being a second appeal was on points of law as required by section 72 of the Civil Procedure Act and therefore competent or on matters of fact and therefore incompetent.

## Resolution of the appeal

- 10 I have carefully considered the submissions of counsel on the question of jurisdiction of this court to only determine questions of law in a second appeal under section 72 of the Civil Procedure Act as well as submissions on the merits of the appeal. - o, After carefully considering the law, what stands out from the submissions inter alia is that the 1't and 2"d Appellants rely on a statutory lease as the root of their title and defence in the lower courts to the claim of the Respondent. The Respondent on the other hand claimed to be the customary owner of the property deriving title from her parent.

I have further considered the attempt by the Appellants' counsel to amend 20 the memorandum of appeal to exclude the appeal on "errors of fact" and ensure that all the grounds read as if it is only errors of law that is appealed against. There was a further attempt by the Appellant's counsel to formulate one ground of appeal out of all the grounds of appeal on a point of law without success. I must note for instance that ground 5 of the appeal alleged G that the orders granted by the High Court were outside the scope of the orders sought in the l-'t appeal and this is a point of law.

The basis of the right of the Appellant in this appeal is a statutory lease formerly granted to urban authorities under the repealed Public Lands Act, Act L3 of 1969. A statutory lease is defined by the repealed Public Lands Act, Act 13 of 1969 to mean:

5 a lease granted or deemed to have been granted in pursuance of section 15 of the repealed Act.

It is clear from the averments in the original claim that both Appellants claimed to derive their rights from a statutory lease granted to Kisoro Urban Council (Town Council) by virtue of Statutory Instrument No 65 known as the Urban Authorities (Declaration of Town Council) (Mukono and Kisoro) Order.

Under the repealed Public Lands Act, Act L3 of 1969 and the interpretation section 54 thereol the following definitions are relevant:

In this Act, unless the context otherwise requires,

"controlling authority" means,

(a) in relation to land held on a statutory lease, the designated authority by which the land is so held;

(b) in relation to land vested in freehold in the Commission and not let on a certain lease, the commission;

The term "designated authority" means: 20

> "A city council, municipal council, town council or Town board, established in a designated urban area;

> "designated urban area" means an urban area mentioned in Schedule 3 to this Act or any area declared by the minister responsible for urban administration by statutory instrument to be a town;

"urban area" means a city, municipality, or a town.

The statutory lease which formed the basis of the reply to the claim of the Appellants in the trial court had been revoked by Article 286 of the Constitution of the Republic of Ugandan 1-995 in the following terms:

286. Revocation of statutory leases to urban authorities.

Upon the coming into force of this Constitution and subject to the provisions of article 237 (2)(a) of this Constitution, statutory leases to urban authorities shall cease to exist.

Article 286 of the Constitution of the Republic of Uganda was subsequently repealed in 2005. That repeal did not affect the act of revocation of statutory 10 leases to urban authorities. The status quo is that upon the promulgation of the 1995 Constitution of the Republic of Uganda in October 1995, the land tenure system in Uganda was affected. All land in Uganda land had hitherto been vested in the Uganda Land Commission under the Public Lands Act 1969 and this was reversed by Article 237 of the Constitution of the Republic 1s of Uganda. Secondly, urban authorities granted subleases out of statutory O leases granted by the Uganda Land Commission. Article 237 of the Constitution came into force on 8th October L995 before the claimant filed her claim before the District Land Tribunal in 2004. Article 237 vested the land in the citizens and it can be deduced that it was removed from being zo vested in the Uganda Land Commission under the Public Lands Act which in any case was repealed by the Land Act, 1998 (now Cap227). Article 237 of the Constitution of the Republic of Uganda provides as follows:

237 . Land ownership.

(L) Land in Uganda belongs to the citizens of Uganda and shall vest in them in 25 accordance with the land tenure systems provided for in this Constitution.

O (2) Notwithstanding clause (1) of this article-

(a) the Government or a local government may, subject to article 26 of this Constitution, acquire land in the public interest; and the conditions governing such acquisition shall be as prescribed by Parliament;

30 (b) the Government or a local government as determined by Parliament by law shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens;

5 (c) noncitizens may acquire leases in land in accordance with the laws prescribed by Parliament, and the laws so prescribed shall define a noncitizen for the purposes of this paragraph.

> (3) Land in Uganda shall be owned in accordance with the following land tenure systems-

> > o

(a) customary; 10

- (b) freehold; - (c) mailo; and - (d) leasehold.

(4) On the coming into force of this Constitution-

(a) all Uganda citizens owning land under customary tenure may acquire certificates of ownership in a manner prescribed by Parliament; and 15

> (b) land under customary tenure may be converted to freehold land ownership by registration.

(5) Any lease which was granted to a Uganda citizen out of public land may be converted into freehold in accordance with a law which shall be made by Parliament. 20

> (6) For the purposes of clause (5) of this article, "public land" includes statutory leases to urban authorities.

(7) Parliament shall make laws to enable urban authorities to enforce and to implement planning and development.

(8) Upon the coming into force of this Constitution and until Parliament enacts an appropriate law under clause (9) of this article, the lawful or bonafide occupants of mailo land, freehold or leasehold land shall enjoy security of occupancy on the land.

30 (9) Within two years after the first sitting of Parliament elected under this Constitution, Parliament shall enact a law- (a) regulating the relationship between the lawful or bonafide occupants of land referred to in clause (8) of this article and the registered owners of that land;

$\mathsf{S}$

(b) providing for the acquisition of registrable interest in the land by the occupant.

Article 237 of the Constitution of the Republic of Uganda has several elements that need to be considered. The 1st element is that the land was vested in the citizens of Uganda and this included the Respondent. The 2nd element is that land is only held by the district land board in trust for the true owners who are the citizens of Uganda. Finally, and consistent with Article 237 (2) (a) of the Constitution of the Republic of Uganda, a local government authority may acquire land in the public interest subject to payment of compensation under article 26 of the Constitution of the Republic of Uganda.

Last but not least, Article 286 is explicit that statutory leases to urban authorities were revoked. Parliament was required under article 237 to enact a law to provide for the framework for urban planning and the development.

Article 237 of the Constitution guaranteed the security of tenure or occupancy *inter alia* of customary owners and bona fide occupants of land.

The Appellants premised their right of opposition to the Respondents claim on a statutory lease which had been revoked. This is a question of pleading which cannot be amended at this stage. The 2nd Appellant claimed to be a successor of the controlling authority. That is simply not feasible because we are dealing with a statutory lease and not a lease granted to a citizen by the former Uganda Land Commission. That statutory lease was revoked and ceased to exist. This rendered the claim of the Appellants without any lawful basis as against the right of the Respondent.

As a question of fact, the trial court and the $1^{st}$ appellate court found that the Respondent was entitled to occupancy of the property in question. Whether 30 this proceeded from the premises that the Respondent was the customary owner of the property in question or the bona fide occupant of the property 5 in question, she would in both instances be entitled to apply to have it registered in her names as the freehold owner or to compensation if the land is allocated by the 1't Appellant to other people for purposes of urban planning.

The Constitution of the Republic of Uganda, article 237 (3) thereof provides that land in Uganda shall be owned in accordance with the followinq land tenure systems: 10

- (a) customary; - (b) Freehold; - (c) Mailo;and - (d) leasehold 15

The Respondent could be perceived as a customary owner as held by the trial couft or a bona fide occupant with security of occupancy. The terms lawful or bona fide occupants are firstly provided for under article 237 (8) of the Constitution of the Republic of Uganda which provides that:

Upon the coming into force of this Constitution and until Parliament enacts an appropriate law under clause (9) of this article, the lawful or bona fide occupants of Mailo land, Freehold or leasehold land shall enjoy security of occupancy on the land. 20

The Constitution of the Republic of Uganda 1995 in Article 237 (8) caters for occupants of certain registered interests in land namely of Mailo, Freehold or leasehold. The statutory lease of the L't Appellant having been revoked, the Respondents claim was merely that of a citizen in whom the land was vested by virtue of customary ownership or occupancy and she had a right to apply for registered proprietorship. 25

Parliament enacted the Land Act Cap 229 in L998 to regulate the relationship between the lawful or bona fide occupants of Mailo land, Freehold land or 30

5 leasehold land under Article 237 (9) of the Constitution. The Land Act reproduced in part Article 237 (3) under the definition section 2 thereof on the forms of land ownership in Uganda. The terms "lawful occupant" and "bona fide occupant" are defined by section 29 of the Land Act which provides that:

29. Meaning of "lawful occupant" and "bona fide occupant".

- (1) "Lawful occupant" means- - (a) a person occupying land by virtue of the repealed- - (i) Busuulu and Envujjo Law of 1928; - (ii) Toro Landlord and Tenant Law of 1937; - (iii) Ankole Landlord and Tenant Law of 1937;

(b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or

(c) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

(2) "Bona fide occupant" means 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 the Government or an agent of the Government, which may include a local authority.

(3) In the case of subsection (2) (b)-

(a) the Government shall compensate the registered owner whose land has been occupied by persons resettled by the Government or an agent of the Government under the resettlement scheme;

Drisoa ol Hon. Mr, ./uctice ChtAtOFtb,.llkdrAma lz.^a ,f1zq rulhak',r3r.curtty)( D\*tlamffnfrI qbn

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5 (b) persons resettled on registered land may be enabled to acquire registrable interest in the land on which they are settled; and

> (c) the Government shall pay compensation to the registered owner within five years after the coming into force of this Act.

(4) For the avoidance of doubt, a person on land on the basis of a licence from the registered owner shall not be taken to be a lawful or bona fide occupant under this section.

(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.

Clearly the claimant/Respondent in this appeal claimed the property by virtue of having acquired it from her parents. There are concurrent findings on a question of fact of the trial court and the 1st appellate court confirming a right to occupancy. This right cannot be challenged on a point of law as it is a question of fact that is barred by section 72 of the Civil Procedure Act from being tried in a 2nd appeal. Section 72 of the Civil Procedure Act 15 20

stipulates that:

# 72. Second appeal.

(1) Except where otherwise expressly provided in this Act or by any other law for O the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that-

(a) the decision is contrary to law or to some usage having the force of law;

(b) the decision has failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

' s Section 72 is entrenched by section 74 which provides that no second appeal shall lie on any ground other than that provided for in section 72 and provides as follows:

# 74. Second appeal on no other grounds.

Subject to section 73, no appeal to the Court of Appeal shall lie except on the 10 grounds mentioned in section 72.

Secondly, the L't and 2nd Appellants have no colour of right to challenge the right of the Respondent to the property because their right as disclosed in their pleadings is founded on a statutory lease that ceased to have effect in October L995 before the claimant filed her claim form compensation.

e In the premises, the Appellants appeal lacks merit and is hereby dismissed with costs.

or Jtrut 2020 a.. '-\o Dated at Kampala the')S 6s,

Pher Madrama lzama

20 Justice of Appeal

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 294 OF 2016

- 1. KISORO MUNICIPAL COUNCIL - 2. KISORO DISTRICT LAND BOARD APPELLANTS

#### VERSUS

| ZUNGU CHRISTINE | RESPONDENT | |-----------------|------------| |-----------------|------------|

# CORAM: Hon. Mr. f ustice Kenneth Kakuru, lA Hon. Mr. f ustice Geoffrey Kiryabwire, fA Hon. Mr. f ustice Christopher Madrama, fA

IUDGMENT OF IUSTICE KENNETH KAKURU. JA

I have had the benefit of reading in draft the Judgment of my learned brother Madrama, lA.

I agree with him that this appeal has no merit and ought to be dismissed with costs for the reasons he has set out in his Judgment.

I have nothing useful to add.

As Kiryabwire, JA also agrees it is so ordered

)\*.-E Dated at Kampala this ...... .....day of Jrl vrP

.................... : 2020.

Kenneth Kakuru

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 294 OF 2016

KISORO MUNICIPAL COUNCIL AND ANOR================== APPELLANT

# **VERSUS**

ZUNGU CHRISTINE====================================

# (CORAM: KAKURU, KIRYABWIRE, MADRAMA)

# JUDGMENT OF HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

#### **JUDGMENT**

I have had the opportunity of reading the draft Judgment of my Brother Hon. Mr. Justice Christopher Madrama, JA in draft and I agree with the findings and final decisions and orders and have nothing more useful to add.

$25$ day of June 2020. Dated at Kampala this.......

Lightig

HON. MR. JUSTICE GEOFFREY KIRYABWIRE JUSTICE OF APPEAL