THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

OVOYA EMMANUEL ………………………......................…..… APPELLANT

VERSUS

LILY NZIZORI …………………...........…………………………. RESPONDENT

Before: Hon Justice Stephen Mubiru.

JUDGMENT

In the court below, the appellant sued the respondent for trespass to land, seeking an order of
eviction / vacant possession in respect of land situate at Kololo Central Ward, Paidha Town
Council measuring approximately 30 metres by 15 metres. The appellant’s case was that the plot
in dispute had initially been granted to a one Mama Lucy Akello under a temporary licence to
occupy the land by Paidha Town Council. The appellant entered into a negotiation with the said
Mama Lucy Akello whereupon he paid her shs. 1,200,000/= and took over possession of the
land. The appellant then formally applied for a lease from Nebbi District Land Board for the
disputed piece of land and the District Land Board accordingly granted him the lease under its
minute number NDLB/44/8/2007. He paid all the designated fees and processed a building plan.
Before he could begin construction, the respondent, without his permission, consent or other
lawful authority entered onto the land and began laying a foundation for the construction of a
building. Paidha Town Council advised the appellant to compensate the respondent with a sum
of shs. 554,580/= which he duly offered the respondent but the respondent rejected it.

In her written statement of defence, the respondent denied the appellant’s claim and instead
contended that the documentation relating to the grant of a lease by Nebbi District Land Board
was a forgery since that Board did not exist in 2004. She averred further that the land in dispute

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belonged to her and Mama Lucy Akello under customary tenure but that the appellant had only
compensated Mama Lucy Akello and not her prior to the purported application for a lease. The
respondent counteracted that it was the appellant who had instead trespassed onto the land when
he engaged persons to level it in preparation for construction.

In his testimony, the appellant stated that before applying for a lease, he had inspected the land
and found that there were occupants on the land holding under temporary occupation permits
issued to them by Paidha Town Council. He entered into negotiations with one of the occupants,
Mama Lucy Akello now deceased, and paid her shs. 1,200,000/= to enable him take over
possession of the land. Before Paidha Town Council had allocated the disputed land to Mama
Lucy Akello, it had initially allocated it to the respondent’s husband. As a result, there was also a
latrine and grass thatched house on the land belonging to the respondent. Paidha Town Council
advised him to compensate the respondent with a sum of shs. 554,580/= which he duly offered
the respondent but the respondent rejected it. She instead began ferrying building material onto
the land, hence the suit. He admitted under cross-examination that Zombo District did not exist
in 2008 but its name appears on the documents relating to his acquisition of a lease over the land
because it was anticipated as a new District.

P.W.2 Odar Robinson, a former land supervisor with Paidha Town Council, testified that the
Department of Agriculture of Nebbi District originally operated as a demonstration farm on land
now comprised in plot 16 Block A, now in dispute. When Paidha became a Town Board, it took
over the land and decided to allocate it to residents on a temporary basis. In 1987, it allocated the
plot to a one Wilfred Binega, husband of the respondent. The late Lucy Okello who was a
neighbour to the plot too secured a temporary allocation over the plot. The latter had a grass
thatched houses on the plot. During 1995 Paidha Town Council decided to survey the entire area
and the occupants were given first priority to apply for leases over the plots which they occupied.
Wilfred Binega applied for and was allocated plot 17 Block C designated as a commercial plot as
a result of which he had to relinquish the current plot 16 Block A. Then plot 16 Block A
designated as a residential plot was allocated to Lucy Okello as compensation for her original
plot which had been taken up entirely by a planned road. When Wilfred Binega died, his widow,
the respondent took over and began developing plot 17 Block C. These allocations were done in

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June 1995 in accordance with an allocation list tendered in evidence and marked as exhibit P.E
No. 7. The respondent was entitled to compensation in the sum of shs. 554,580/= under the
resultant compensation scheme. In compensation for his grass thatched house on plot 16 Block
A, Wilfred Binega was allocated plot 17 Block C.

P.W.3 Bidongo Okun, the Chairperson of Kololo village Central Ward testified that the land in
dispute originally belonged to the Department of Agriculture under Nebbi District. Later during
1987 it was allocated to occupants on temporary basis. They were permitted to construct grass
thatched but not permanent houses. In 1995, Paidha Town Council decided to plan the area for
development of permanent buildings. The planning scheme covered Kawa village, Kololo village
and Awinjiri village. The Town Council then invited applications for allocation of plots under
the planning scheme. Wilfred Binega applied for and was allocated plot 17 Block C where he
constructed a commercial building. His wife demolished their grass thatched houses which
existed on the plot they were occupying by then which became plot 16 Block A under the
scheme which was then allocated to Lucy Okello because the plot she occupied was taken up by
a planned access road. In 2006, a dispute broke out when the respondent claimed entitlement to
plot 16 Block A and rejected compensation fro her developments on the plot.

P.W.4 Mananano Zoro, the Engineer of Paidha Town Council testified that under the
development Scheme of the Council, people who had grass thatched houses would be
compensated. On 19th September 2006, the respondent was offered compensation of shs.
554,580/= to enable the appellant develop the land. The respondent’s husband had been allocated
plot 17 Block C, a commercial plot in place of plot 16 Block A, a residential plot, which he
occupied at the time. The respondent had presented a building plan for plot 16 Block A but was
advised it had been allocated to another person and therefore her building plan could not be
approved. That was the close of the respondent’s case.

In her defence, the respondent testified that the land in dispute was given to her husband during
1983 by Paidha Town Board after payment of shs. 15,000/=. They began construction of a grass
thatched house thereon in 1987 and begun occupying it during 1993. On 30 th June 2011,
following the death of her husband, she submitted building plans for the plot to Paidha Town

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Council. Sometime during the year 2010 her grass thatched house on the land was demolished in
her absence since she was no longer living in it at the time. The elders met and diced in absence
of the appellant that she was the rightful owner of the land. She then deposited construction
material on the land and that is when the dispute with the appellant started.

D.W.2 Irma Othele a neighbour to the respondent testified that the land in dispute was initially
used by the Agriculture Department but later the respondent was allocated the area in dispute on
15th January 1988 by the then engineer of Paidha Town Board. She and her husband then
constructed two grass thatched house on it. They lived on the land from 1990 until the year 2007
when the appellant engaged some prisoners in demolition of the houses intending to construct
one of his own on the land hence this dispute.

D.W.3 Miriam Mungu Acel a neighbour to the respondent testified that the respondent’s late
husband bought the land in dispute on 15 th January 1998 but did not know from whom he bought
it or the price at which he bought it. The couple constructed a grass thatched house on the land
which they initially occupied and subsequently let it out to tenants. Later the appellant
demolished that house. Before the respondent’s late husband purchased the land, it belonged to
the Town Council. Lucy Akello too had a grass thatched house and kitchen on the disputed plot.
A planned road was to traverse her houses.

D.W.4 Abdul Oroga Jangidu testified that the respondent inherited the land in dispute from her
late husband. Her late husband had acquired the land on 15 th January 1998 from the Town Board.
The couple constructed a house on the land and let it out to tenants. They had lived in the house
before that. The appellant later demolished the house claiming that it belonged to Lucy Akello
who had two grass thatched houses on the land but which were traversed by a planned road.
Lucy then occupied the land from the year 1989 – 2000. That was the close of the defence case.

The court then visited the locus in quo on 1st June 2016 where it received evidence from the
parties and their respective witnesses, each of whom restated their respective claims to
ownership of the disputed land. The court prepared a sketch map of the land as well.

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In his judgment, the learned trial magistrate found that the respondent was in possession of the
land as far back as during the 1980s. The respondent and her late husband had lived on the land
and had structures on it, for which the appellant acknowledged that he sought to compensate the
respondent. The documents relating to a lease offer relied on by the appellant did not indicate the
plot number. Zombo did not exist as a District by 7th January 2008 when the purported lease offer
was issued. The appellant claimed to have been granted a lease offer yet the documents he
presented relate to an offer for freehold land alongside another set relating to a leasehold. Both
are signed on the same date but by two different individuals. The land belonging to Lucy Akello,
for which the appellant paid compensation in the sum of shs. 1,200,000/=, was different from the
land in dispute since evidence revealed it was the one traversed by the planned road. The
evidence relied upon by the appellant was unsatisfactory and mainly based on forged documents.
On the other hand, the respondent had lived on the disputed land for 28 uninterrupted years and
therefore acquired bonafide interests in the land. He respondent’s actions on the land were
consistent with her interest and therefore she is not a trespasser. The court decline to grant the
reliefs sought by the appellant and instead dismissed the suit with costs to the respondent. The
respondent was also awarded shs. 2,000,000/= as general damages for “her inconvenience and
disturbances by the plaintiff.”

Being dissatisfied with the decision the appellants appeal on the following grounds, namely;
1. The learned trial magistrate erred both in law and fact when he held that the
respondent acquired legitimate protectable interests in the suit land.

2. The learned trial magistrate erred both in law and fact when he declined to declare
the appellant as the owner of the suit land and held without evidence that P.E.1 and
P.E.2 were forged whereas they are not.

Submitting in support of the appeal, counsel for the appellant Mr. Manzi Paul argued that the
evidence before the trial court showed that the land in dispute was under the mandate of Nebbi
District Land Board. In 1995, Paidha Town Council surveyed the land and scribed plot numbers.
The appellant was granted an offer of freehold land of one of the plots by Nebbi District Land
Board. Being land in an urban area, the respondent could not have acquired a customary interest
in the land. The documents relied on by the appellant were not challenged as forgeries during the
trial and the court was wrong to find so in absence of evidence to that effect. Forgery, being akin
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to fraud must not only be pleaded but it must also be proved to a high standard and must be
attributed to the transferee. He relied on the decision in Kampala Bottlers Limited v. Damanico
(U) Limited, S. C. Civil appeal No. 22 of 1992. At the time the documents were issued, the
survey had not been done yet and therefore they could not have indicated a plot number. The
land was described by location and size. The appellant paid all dues after the allocation and the
decision of the court below should therefore be set aside and substituted with one declaring the
appellant the rightful owner of the land.

In response, counsel for the respondent Mr. Henry Odama argued that the findings of the trial
court are supported by the evidence adduced before that court and should therefore be upheld.
There were several anomalies in the documents presented by the appellant including; Zombo
District was created in 2009 and became operational only in 2010, the exhibited documents had
no plot number indicated on them, the appellant applied for a lease but was granted an offer for a
leasehold, he presented two offers issued on the same day but which were signed by two
different officers. The visit to the locus established that the land of Lucy Akello was different
from the one now in dispute. Being an occupant, the respondent was entitled to compensation for
her developments on the land. Bing a sitting tenant, she was entitled to first priority in the offer
for a lease. The appeal should therefore be dismissed with costs.

The duty of a first appellate court was appropriately stated in Selle v Associated Motor Boat Co.
[1968] EA 123, thus:
An appeal …… is by way of retrial and the principles upon which this Court acts in
such an appeal are well settled. Briefly put they are that this Court must reconsider
the evidence, evaluate it itself and draw its own conclusions though it should always
bear in mind that it has neither seen nor heard the witnesses and should make due
allowance in this respect. In particular this Court is not bound necessarily to follow
the trial judge’s findings of fact if it appears either that he has clearly failed on some
point to take account of particular circumstances or probabilities materially to
estimate the evidence or if the impression based on the demeanour of a witness is
inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali
Mohamed Sholan (1955), 22 E. A. C. A. 270).

This court therefore is enjoined to weigh the conflicting evidence and draw its own inferences
and conclusions in order to come to its own decision on issues of fact as well as of law and

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remembering to make due allowance for the fact that it has neither seen nor heard the witnesses.
The appellate Court is confined to the evidence on record. Accordingly the view of the trial court
as to where credibility lies is entitled to great weight. However, the appellate court may interfere
with a finding of fact if the trial court is shown to have overlooked any material feature in the
evidence of a witness or if the balance of probabilities as to the credibility of the witness is
inclined against the opinion of the trial court.

It is common ground that the land in dispute was originally managed by the Department of
Agriculture of Nebbi District as a demonstration farm until sometime in the mid 1980s when
Paidha Town Council granted temporary occupation rights to various people, including the
respondent and her late husband to occupy and construct temporary shelters on the land. Under
section 1 of The Land Reform Decree of 1975, the law in force then, all land in Uganda had been
declared public land to be administered by the Uganda Land Commission in accordance with The
Public Lands Act of 1969, subject to such modification as were necessary to bring the Act into
conformity with the Decree. Section 23 (2) of The Public Lands Act, 1969 provided that the
Uganda Land Commission would grant to the Urban Authorities of designated areas, such lease
and on such terms and conditions as the Minister would direct and any lease so granted would be
deemed to be a statutory lease. A controlling authority then had the capacity to lease out the land
entrusted to it under the statutory lease, to individuals.

Under that legal regime, for an Urban Authority to be constituted into a controlling authority,
and hence acquire capacity to lease land or confer similar interests in land, there had to be proof
of prior grant of a statutory lease by the Uganda Land Commission. For example in Nyumba ya
Chuma Ltd v. Uganda Land Commission and another, Const. Petition No. 13 of 2010, where the
Constitutional Court found no evidence whatsoever to show that the then Kampala City Council,
now Kampala Capital City Authority, had ever had a statutory lease over the suit property from
which it could have legally granted a lease to the petitioner or its alleged predecessor in title, it
decided that Kampala Capital City Authority did not have any authority to grant a lease over the
land. In the instant case, it was not proved that Paidha Town Board, and later Town Council, was
at any time before the purported grant of a lease to the respondent granted a statutory lease by the
Uganda Land Commission.

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In absence of evidence to the effect that Paidha Town Board, an otherwise planning and
regulatory authority, was ever constituted into a controlling authority over public land nor
granted a statutory lease by the Uganda Land Commission, it therefore had no powers to create
interests in land under its political / administrative jurisdiction, of any nature. Even assuming that
Paidha Town Board was a controlling authority, under both The Public Lands Act and The Land
Reform decree, 1975, occupants, including customary tenants on public land, were only tenants
at sufferance and controlling authorities had power to lease such land to any person. The
respondent did not acquire any interest in the land as a result of any permission granted to her
and her late husband by Paidha Town Board to occupy what was for all intents and purposes,
public land vested in the Uganda Land Commission.

Regulation 1 The Land Reform Regulations 1976 (S.I 26 of 1976) in force at the time provided
that any person wishing to obtain permission to occupy public land by customary tenure had to
apply to the sub county chief in charge of the area where the land is situated. The applicant then
had to be registered as a customary occupant of land by the sub-county Land Committee
according to Regulation 3. Since there was no evidence that the respondent undertook any of
this, the respondent was barred from acquiring interest in the land of a customary nature by
section 5 (1) of The Land Reform Decree which prohibited the occupation of unoccupied public
land by customary tenure without permission of the prescribed authority, and Section 6 which
made it an offence for one to do so (see Paul Kisekka Saku v. Seventh Day Adventist Church
Association of Uganda, S. C. Civil Appeal No. 8 of 1993).

On the other hand, both D.W.2 and D.W.3 testified that the respondent’s late husband acquired
the land on 15th January 1998 while she on her part claimed it was during 1983. This
contradiction was never explained nor resolved. Nevertheless, it is trite law that proof of mere
occupancy and user of unregistered land, however long that occupancy and user may be, without
more, is not proof of customary tenure. That occupancy should be proved to have been in
accordance with a customary rules accepted as binding and authoritative in respect of that land,
in such circumstances. In Bwetegeine Kiiza and Another v Kadooba Kiiza C.A. Civil Appeal No.
59 of 2009; where the respondent claimed ownership of the land in dispute on the basis that it
had been given to him as a gift by the Bataka (local elders) of the area and also due to the fact

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that since he had from then onwards occupied and used it for a long time, on that basis he had
acquired a customary interest in the land. The court decided;
We have carefully perused the record, and it is our finding that there was no
evidence led or adduced to prove the custom that LCs and the Bataka (local elders)
can allocate land in the form of a gift from which arises a customary interest in
Bunyoro…….We also disagree with the finding that as a general rule when one
occupies or develops land then ipso facto, a customary interest is created. The effect
of that holding is that no matter how one comes to the land, as long as one develops
it, a customary interest is acquired. Even trespassers would then acquire interest on
property which they otherwise shouldn't. In any event this was not proven in
evidence and, as a general proposition of customary law, would be unacceptable. It is
clear from the authorities above that customary law must be accurately and definitely
established and sweeping generalities will not do under this test.

The learned trial magistrate therefore erred when he found that the respondent had proved
ownership of an interest in the land in dispute, an interest he never classified, based only on
evidence of a long period of occupation and user without proof that such occupancy and user was
in accordance with known customary rules accepted as binding and authoritative in respect of
that land, proved by the evidence adduced before him to that effect. An interest in land must be
one capable of surviving the parties and must be recognisable to the whole world (See National
Provincial Bank v. Anisworth [1965] A.C.1175). The trial magistrate ought to have expressly
categorised the nature of interest acquired by the respondent, which he never did. I am unable to
find one myself. In any event, section 24 of The Public Land Act and Section 5(1) of The Land
Reform Decree prohibited customary tenure in urban areas. Any customary occupation without
consent of the prescribed authority was declared unlawful (see also Tifu Lukwago v. Samwiri
Mudde Kizza and Nabitaka S. C. Civil Appeal No. 13 of 1996 and Paul Kiseka Ssaku v. Seventh
Day Adventist Church S. C. Civil Appeal No. 8 of 1993). Clearly therefore, the respondent could
not have acquired any customary proprietary interest in the land.

Not being a Controlling Authority at the time, Paidha Town Board could not even grant a licence
or temporary occupancy over land not vested in it. On the other hand, assuming that Paidha
Town Board was an authorised Controlling Authority capable of creating interests in the then
Public Land in 1983 when the respondent claims her husband was authorised to occupy the land,

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the learned trial Magistrate then erred in not taking into account the provisions of Rule 10 of The
Public Lands Rules S.I 201-1 then in force at the time of the transaction which stated:
Any occupation or use by a grantee or lessee of land which the controlling authority
has agreed to alienate shall until registration of the grant or lease be on sufferance
only and at the sole risk of such grantee or lessee.

That notwithstanding, since there is no evidence that Paidha Town Board had the legal capacity
to create interests in the land and the respondent’s long user was of itself incapable of creating
one, the respondent was at best a tenant at sufferance on what was otherwise public land and the
trial magistrate came to a wrong conclusion when he decided that she acquired rights in the land.
Ground one of the appeal therefore succeeds.

The second ground of appeal assails the trial court’s evaluation of the evidence. Since there is no
standard method of evaluation of evidence, an appellate court will interfere with the findings
made and conclusions and arrived at by the trial court only if it forms the opinion that in the
process of coming to those conclusions the trial court did not back them with acceptable
reasoning based on a proper evaluation of evidence, which evidence as a result was not
considered in its proper perspective. This being the first appellate court, findings of fact which
were based on no evidence, or on a misapprehension of the evidence, or in respect of which the
trial court demonstrably acted on the wrong principles in reaching those findings may be
reversed (See Peters v Sunday Post Ltd [1958] E.A. 429).

At the trial, the burden of proof lay with the respondent. To decide in favour of the respondent,
the court had to be satisfied that the respondent had furnished evidence whose level of probity
was not just of equal degree of probability with that adduced by the appellants such that the
choice between his version and that of the appellants would be a matter of mere conjecture, but
rather of a quality which a reasonable man, after comparing it with that adduced by the
appellants, might hold that the more probable conclusion was that for which the respondent
contended. That in essence is the balance of probability / preponderance of evidence standard
applied in civil trials.

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The appellant’s claim was hinged on having been offered a lease / freehold over the land in
dispute by Nebbi District Land Board, whose validity the respondent refutes. Upon the
promulgation of The Constitution of the Republic of Uganda, 1995, according to article 241 (1)
(a) thereof and section 59 (1) of The Land Act, the power to hold and allocate land in the district
“which is not owned by any person or authority,” was vested in the District Land Boards, in this
case, Nebbi District Land Board. The District Land Boards by operation of law as well became
successors in title to controlling authorities or urban authorities in respect of public land which
had not been granted or alienated to any person or authority.

In the instant case, the land in dispute formed part of land formerly managed by the Department
of Agriculture of Nebbi District as a demonstration farm until sometime in the mid 1980s. Being
land in the district “which is not owned by any person or authority,” it was by operation of law
land vested in Nebbi District Land Board (see Kampala District Land Board and another v.
National Housing and Construction Corporation S. C. Civil Appeal No.2 of 2004). Nebbi
District Land Board therefore had the capacity to lease it out to qualifying applicants in
accordance with The Land Regulations and the principle that a sitting tenant ought to be given
the first option to lease and failing which, the offer would be made to another interested party.

Under section 5 (2) of the law then in force, The Town and Country Planning Act, (repealed by
The Physical Planning Act 2010), the Minister could by statutory order declare an area to be a
planning area. In the court below, there was no evidence adduced to the effect that Paidha was
ever declared a planning area. It however is apparent that Paidha Town Council during or around
1995 embarked on a development scheme of sorts for the town. They came up with a planning
scheme (exhibit P.E. 3) by which land within the town was sub-divided into plots, creating
access roads in between them. Most of the plots within the locality of the area in dispute were,
according to P.W.2 reserved for residential purposes, while three of them were reserved for
commercial purposes. It so happened that the area now in dispute was ascribed plot No. 16 Block
A, a residential plot, in place of which the respondent was given a commercial plot No. 17 Block
C and the former given to Lucy Akello in compensation for what she lost to land reserved for a
planned road.

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Whereas under section 16 (1) (a) of The Town and Country Planning Act, provided that when a
detailed or planning scheme has been brought into effect, the authority empowered in that behalf
under the provisions of any enactment relating to the compulsory acquisition of land may, on the
advice of the board and in accordance with that enactment, acquire; any land in the planning area
required for roads, open spaces, etc. or any land within the planning area which has not been
developed in accordance with the outline scheme or a detailed scheme, the evidence before the
trial court did not canvass the circumstances in which Paidha Town Council came up with a
system of allowing each occupant one plot upon application. Whether or not it considered this
legal requirement, I have not found that system to have been unfair at all considering that the
respondent had no proprietary interest in the land that was the subject of the scheme. There was
no evidence that the respondent suffered any loss in the market value neither of her
developments on the land nor of any damages attributable to disturbance. She did not adduce
evidence of any damages for injurious affection or any special difficulties in relocation.

Under the law, a tenant at sufferance is not covered by articles 26 and 237 (2) of the Constitution
and is therefore not entitled to compensation in the event of compulsory acquisition of land,
considering that at common law a tenancy at sufferance may be terminated at any time and
recovery of possession effected. According to the Court of Appeal in its decision of, Hajati
Mulagusi v Pade C.A Civil Appeal No. 28 of 2010, a trespasser or a tenant at sufferance is not
entitled to compensation. In Joseph Ihugo Mwaura and others v. The Attorney General and
others, Petition No. 498 of 2009 (Unreported), the High Court of Kenya decided that the
Constitution contemplates that the person whose property is the subject of compulsory
acquisition has a proprietary interest as defined by law. For that reason, the fact that the
respondent, a tenant at sufferance on the land in dispute, was compensated by way of plot No. 17
Block C not only satisfied the requirements of compensation under section 17 of The Town and
Country Planning Act, which guaranteed compensation from the board in the amount by which
her property was decreased in value, or expenditure incurred in respect of plot No. 16 Block A,
so far as it was reasonably incurred, but also in as far as the requirement for being given first
priority before grant of a lease to any other person in respect thereof, was concerned, if at all she
qualified for such compensation, a fact she did not prove in the first place.

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By virtue of that gratuitous compensation, effected way of swapping plots, the land was now
available for leasing to any other person, all that was required of the appellant was to comply
with the procedures of acquisition of leases on former public land. The procedures were by then
outlined in The Land Regulations, S.I. No.100 of 2004. He was by Regulation 16 of those
regulations required to submit a formal application by filling in the prescribed form (Form 8 in
the First Schedule thereto) and paying the prescribed fees.

Before the trial court, in his testimony at page 13 of the record of appeal, the appellant testified
that he applied for a lease over the disputed land on 29 th June 2007 and he presented a copy of
the application he submitted to the District Land Board, which was received and marked by
Court as exhibit P.E. 3. However, at page 76 of the record, the document marked as such is not
an application for a lease but rather a cartographic drawing. It is the same document referred to
in the judgment at page 54 of the record of appeal. In effect the appellant never presented to
court a copy of the application which he submitted to the District Land Board, if any. This is
despite the fact that Regulation 16 of the then Land Regulations, S.I. No.100 of 2004 was
couched in mandatory terms; “An application for a leasehold in case of land held by ....... a board
shall be in Form 8 in the First Schedule to these Regulations.” (emphasis added). It was
incumbent upon the appellant to prove to the trial court that he had complied with this
requirement. Compliance with the prescribed form is important considering the content of the
form which requires, among other things; a description of the location of the land, disclosure of
its approximate area, the current user of the land and the names of owners of adjacent land. The
land should therefore be described with sufficient particularity to avoid scenarios such as the one
which unfolded subsequently in the instant case.

In his testimony, the appellant at page 12 of the record of appeal revealed that he received a lease
offer dated 7th January 2008 made pursuant to Board Minute NDLB/44/8/2007 of 20 th December
2007, a copy of which he presented to court and was marked as exhibit P.E. 2. However, the
offer appearing at page 74 of the record of appeal, although referencing the appellant’s
application dated 29th June 2007 (which according to the appellant was for a lease) is an offer for
freehold and yet (exhibit P.E.4) has a receipt dated 01.02.2010 as payment for freehold land
application form (three years after the offer). Regulation 23 (5) (c) of The Land Regulations, S.I.

13
No.100 of 2004 then in force required that such an offer should be “conditional upon acceptance
of the offer within a specified period.” (emphasis added). This particular offer did not specify a
validity period. Regulation 23 (7) of The Land Regulations, S.I. No.100 of 2004 then in force
required that an offer for freehold of land held by boards, was to be in accordance with Form 19
specified in the First Schedule to the Regulations. Item 4 of the form provides that; “The offer is
conditional on the terms and conditions of the grant of freehold being accepted within forty five
days of the date of this offer,” (emphasis added). The receipts of payment presented by the
appellant (exhibit P.E.4) are dated; - 27.10.2006 as payment for the plot allocation, lodgement
and survey fees; 01.02.2010 as payment for freehold land application form. The offer having
been made on 7th January 2008, it lapsed on 21 st February 2008, forty five days later. The
appellant did not produce evidence of acceptance in writing of the offer and payment of the
prescribed fees within the specified time yet he presented a letter dated 7 th January 2008 (exhibit
P.E.1) addressed to him notifying him of the offer, signed by a person whose identity is
undisclosed, on behalf of the Acting Secretary, Nebbi District Land Board. In the light of all the
above anomalies, the appellant cannot claim to have secured a valid lease offer in respect of the
land in dispute. That the trial magistrate in light of the anomalies formed the opinion that this
was evidence of a forgery may have been too strong an expression but the evidence before court
left a lot to be desired. Consequently, neither the appellant nor the respondent acquired any valid
interest in the disputed land which for all intents and purposes, according to article 241 (1) (a) of
The Constitution of the Republic of Uganda, 1995 and section 59 (1) of The Land Act, remains
land in Paidha District “which is not owned by any person or authority,” and by law is vested in
either Zombo or Nebbi District Land Board, depending on whether the former is now fully
constituted, for allocation as it may deem fit.

In the final result, the appeal is allowed. The judgment and orders of the court below are set
aside. Since the appeal succeeds only on one ground and it has been determined that none of the
parties before court has a lawful claim to the land in dispute, each party is to bear its costs of the
appeal and of the trial.
Dated at Arua this 2nd day of March 2017. ………………………………
Stephen Mubiru
Judge

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