The Constitution of the Republic of Uganda (1995).

The Constitution is the supreme law of the land of Uganda and shall have a binding force on all
authorities and persons throughout Uganda. If any other law or custom is inconsistent with the
provisions of the Constitution, the Constitution shall prevail and that other law or custom shall to the
extent of its inconsistency be void.1

The Constitution under the national objectives and directive principles of state policy provides that in
the furtherance of social justice, the state may regulate the acquisition, ownership, use and disposition
of land and other property in accordance with the Constitution.2

The Constitution further provides that Land in Uganda belongs to the citizens of Uganda and shall vest in
them in accordance with the tenure systems provided for in the Constitution 3, that land in Uganda shall
be owned in accordance with the following tenure systems inter alia customary, freehold, mailo and
leasehold tenure systems4. The Constitutions further provides that on coming into force of the
Constitution, all Ugandans owning land under customary tenure may acquire certificates of ownership in
a manner prescribed by Parliament, and land under customary tenure may be converted to freehold
land ownership by registration5.

The Constitution provides for district land boards for each district6, these district land boards are to hold
and allocate land in the district which is not owned by any person or authority, facilitate the registration
and transfer of interests in land and deal with other interests connected with the land in the district in
accordance with the laws made by Parliament. In the performance of their ftu1ctions, a district land
board shall be independent of the Uganda Land Commission and shall not be subject to direction or
control of any person or authority but shall take into account national and district council policy on
land7.

The constitution grants the institution of a traditional or cultural leader capacity to hold assets or
properties in trust for itself and the people concerned thereby acknowledging their role in management
of customary land.8

The Constitution in addition to the district land boards provides for land tribunals, that the
1
Article 2 of the constitution

2
National objectives and directive principles of state policy

3
Article 237(1)

4
Article 237 (3)

5
Article 237 (4)

6
Article 240

7
Article 241

8
Article 246(3)(a)
Parliament shall by law provide for establishment of land tribunals; among its function is the
determination of disputes relating to the grant, lease, repossession, transfer or acquisition of land by
individuals, the Uganda land commission or other authority with responsibility to land, and the
determination of any disputes relating to the amount of compensation to be paid for land acquired 9.

The Constitution also recognizes the right to property that every person has a right to property either
individually or in association with others and no person shall be compulsorily deprived of property or
any interest in or right over property of any description10.

The Land Act Cap 227(as amended) (1998).

The Land Act recognizes land ownership subject to the Constitution11that all land in Uganda shall vest in
the citizens of Uganda and shall be owned in accordance with the tenure systems of customary,
freehold, mailo and leasehold12.

Customary land is the land which is held in accordance with the generally acceptable norms and
practices of a particular community. Section 1(I) customary tenure means a system of land tenure
regulated by customary rules which are limited in their operation to aparticular description or class of
persons the incidents of which are described in section 3.

The Land Act 1998 defines customary tenure by setting out its basic characteristics and incidents, under
Section 3 of the Act, customary tenure applies to a specifi c people, it is regulated by customary rules
accepted as legitimate by that people, generally regulated by the local authorities, and has to be
followed by whoever acquires land in that community.

The Land Act recognizes customary tenure as a form of tenure applicable to a specific area of land and a
specific description or class of persons subject to section 27, governed by rules generally accepted as
binding. Customary rules are recognised as authoritative as they are in line with the rights of women,
children and persons. A number of provision under this section are designed to prevent discriminatory
practices, any decision taken in respect to customary land should follow customary law, that a decision
will be null and void if it discriminates against women and children's right to ownership, occupation or
use of land.

Customary tenure applies to former public land that has not been registered in any form; is regulated by
local customary rules which however have to be in line with Section 28 of this Act; provides for
communal ownership, occupation and use of land; also provides for individual and household
ownership, use and occupation of (and rights and interests in) land according to the customs and norms
9
Article 243

10
Article 26

11
Article 237

12
Section 2 land act
of the community; an individual, family or traditional institution may occupy a specific area (recognized
as a subdivision) of communal land; and the land is owned forever13.

The Registration of Titles Act Cap 230.

The definition of land is said to include misusages, tenements and hereditaments corporeal or
incorporeal; and in every certificate of title, transfer and lease issued or made under the RTA. Land also
includes all easements and appurtenances appertaining to the land described therein or reputed to be
part of that land appurtenant to it14

All documents relating to land which was alienated in fee or for years by or on behalf of the Crown
before the commencement of the Registration of Land Titles Ordinance, 1908, shall immediately on the
commencement of this Act be collected from the district offices and lodged for custody in the office of
titles, and t11e following procedure shall be adopted with regard to that land 15.

Where after the commencement of the a Registration of Titles Act, an instrument affecting land referred
to in subsection (I) or any interest in that land is presented for registration, the registrar shall proceed to
bring the whole of that land under the operation of this Act in the same manner as hereafter prescribed
on an application to bring that land under the Act; but if any such land has not been surveyed, the
registrar may call upon the person entitled to a certificate of title under this Act to have that land
surveyed;16 All land within the meaning of this section may be brought under the operation of this Act
on an application in Form I of the First Schedule to this Act, which application may be made by any of
the following persons- (a) the person claiming to be the owner of the fee simple or term of years either
at law or equity; (b) persons who collectively claim to be the owners of the fee simple or term of years
either at law or in equity; (c) persons who have the power of appointing or disposing of the fee simple or
term of years; (d) the guardian of any infant or the committee of any lunatic or person of unsound mind
unable to govern his or her estate so, however,. that the application is made on behalf of that infant,
lunatic or person and the certificate of title is directed to issue in his or her name. 17

Notwithstanding subsection (3), a mortgagor shall not be entitled to make such application unless the
mortgagee consents to the application; nor a mortgagee unless in the exercise of his or her power of
sale, and unless the certificate of title is directed to issue in the purchaser's name; and the attorney of
any corporation, howsoever and whosesoever incorporated, whether already constituted or hereafter
to be constituted by a power of attorney under a seal purporting to be the common seal of the

13
Section 3(1) land act

14
Section 7(1) of the registration of titles act

15
Section 9(1) of the registration of titles act

16
Section 9(2) of the registration of titles act

17
Section 9(3) of the registration of titles act
corporation giving the power may make such application for or on behalf of the corporation of which he
or she is the attorney, and may make the requisite declaration to the best of his or her knowledge,
information and belief, and may subscribe the application in his or her own name. 18

The Mortgage Act 2009, Act 8

The Mortgage Act provides that the creation and operation of mortgages on customary land shall
continue to be in accordance with customary law applicable to the land in respect to which the
mortgage on customary land is created.19

Where the mortgage on a customary land seeks to exercise any customary remedy which involves or
may involve the mortgage being dispossessed or permanently deprived of the occupation of the
mortgaged land, the mortgagee shall, after using the services of the mediator to try and mediate on the
application of the proposed or any other remedy, make an application to the court for an order
authorizing the exercise of that remedy; and the court shall, in determining whether to authorize the
exercise of that remedy be guided by an application for relief by the mortgagor20.

The mortgagor under the mortgage on customary land may after making use of the services of the
mediator to try and mediate on the matter use of the services of the mediator to try and mediate on the
matter with the mortgage, apply to the court for the mortgage to be reopened on the ground that the
terms of the mortgage are unconscionable; or an unreasonable departure from the normal terms of a
mortgage on the customary land applicable in the area where the land is located; or disadvantageous to
the interests of the dependents of the mortgagor.21

In any case concerning a mortgage on customary land, the court determining the case determining the
case shall, where it appears to the court that the customary law applicable to that mortgage is
inadequate and no other system of customary law makes adequate or any provision for the matter in
question, be guided by the relevant provisions of the Act, common law and the doctrines of equity. 22
This section shall not apply to customary land which is owed by community23 and in case of customary
land which is owned by a family, the land mortgaged may only be mortgaged with the consent of the
spouse or spouses and the children of the mortgagor.24

18
Section 9(4) of the registration of titles act

19
Section 7(1) of the mortgage act

20
Section 7(2) of the Mortgage act

21
Section 7(3) of the Mortgage act

22
Section 7(4) of the Mortgage act

23
Section 7(5) of the Mortgage act

24
Section 7(6) of the Mortgage act
Common law and cases.

Uganda's legal system is based on English Common Law and African customary law. However, customary
law is in effect only when it does not conflict with statutory law.25 The laws applicable in Uganda are
statutory law, common law, doctrines of equity and customary law.

Common law, also known as case law or precedent, is law developed by judges through decisions of
courts and similar tribunals rather than through legislative statutes or executive branch action.

A common law system is a legal system that gives great precedential weight to common law on the
principle that is unfair to treat similar facts differently on different occasions. The body of precedent is
called "common law" and it binds future decisions. In cases where the parties disagree on what the law
is, an idealized common law court looks to past precedential decisions of relevant courts.

If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the
prior decision (this principle is known as stare decisis. If, however, the court finds that the current
dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make
law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

The decisions of a court are binding only in a particular jurisdiction ruled even within a given jurisdiction
some courts have more power than others. For example, in most jurisdictions, decisions by appellate
courts are binding on lower courts in the appellate jurisdiction and on future decisions of the same
appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions
between common law, constitutional law, statutory law and regulatory law also give rise to considerable
complexity. However stare decisis, the principle that similar cases should be decided according to
consistent principled rules so that they will reach similar results, lies at the heart of all common law
systems.

Paul Kisekka Saku vs. Seventh Day Adventist Church Association, Supreme Court Civil Appeal 26 in this
case, it was held that under customary tenure system proof of mere occupancy and use of
unregistered land, however long that occupancy and use may be, is not proof of customary tenure.
Actual possession of vast lands is established by evidence showing sufficient control
demonstrating both an intention to control and an intention to exclude others from the entire
land. Involuntary abandonment of a holding does not terminate one’s interest therein, where such
interest existed before.

25
Article 2 of the Constitution

26
No 8 0f 1993
Mkungu v. Mbui27, his was a case of the Court of Appeal of Kenya dealing with the effect of the
Registered Land Act on customary tenure. In an effort to replace traditional land ownership under
customary law by registered titles under the Registered Land Act, the colonial Government had
embarked on massive registration of land which had disastrous results in rural areas.

Traditionally land passes by inheritance from one generation to another under well-established rules
whereby the designated "heir" in effect acquires mere stewardship over the land for the benefit of the
family. With the registration of land, these "heirs" came forward to register as "owners" resulting in
total obliteration of any rights in the land by other family members. The Courts in a stroke of genius
constructed the notion of a "trust" to rectify an obvious injustice resulting from the wholesale adoption
of a totally alien system of tenure whereby individual land ownership supersedes communal ownership
that prevailed for generations. The effort by the Court in this case is in marked contrast with the total
disregard of customary land rights by the Supreme Court in Uganda, in Saku's case.

The significance of customs is that they give rise to expectations that guide people's actions, and what
will be regarded as binding will therefore be those practices that everybody counts on being observed
and which thereby condition the success of most activities.

27
[2000] LLR 4317 (CAK)