KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAW
COURSE : LLB
COURSE UNIT : FOUNDATIONS OF LAND
LAW
YEAR : TWO
SEMESTER : ONE
LECTURER : MR. BUKIYA GILBERT

GROUP THREE

NAME REG. NO SIGNATUR

E

NGIRANI SHADRACH 2024-01-24107

NATAMBA CARLOLINE 2024-01-24269
EYIA FRIDAH FAITH 2024-01-23630
ABUR RONAH SCOVIA 2024-01-24742
NAMYALO HODETAH 2024-01-23639
KIZZA WAMALA 2024-01-23331
MUTONYI HILDAH 2024-01-24216
NANKUMBA MARIA VANESSA 2024-01-24210
NALUBOWA ROBINAH 2024-01-23884

EBONG ISAAC 2023-08-

18008
 KIDEN EMILY 2024-01-23290

LAND TENURE SYSTEM IN UGANDA

Land tenure system refers to the way in which land is owned and held in a particular
jurisdiction.

Article 237(1)1 that “land in Uganda belongs to the citizens of Uganda and shall vest in them
in accordance with the land tenure systems provided in this constitution

Additionally, Article 237(3)2 provides that land in Uganda shall owned in accordance to land
tenure systems;

a) Customary

b) Free hold

c) Mailo

d) Lease hold

These systems are provided under section 23 which was made pursuant to the provision of the
1995 constitution. it provides that “subject to article 2374 all land in Uganda shall vest in the
citizen of Uganda and shall be owned in accordance with the following land tenure systems;
customary, freehold, mailo land, lease hold.

CUSTOMARY LAND TENURE SYSTEM

Section 15 defines customary land tenure as land tenure regulated by customary rules which
are limited in their operation to a particular description or class of persons, the incident of
which are described in section 3.

In brief, it is the system of owning/occupying land under customary law. Since the
customs vary from one place to the other, it follows that this system is not uniform deeper
insight of each. However, as already pointed out, there were some common features of
customary ownership.

1
The 1995 Constitution of the Republic of Uganda
2
Ibid
3
The Land Act Cap 236
4
The 1995 Constitution of the Republic of Uganda
5
The Land Act Cap 236
 However, this acknowledges that the land was owned under common customary
practices. Communal ownership of land in many customs ownership of land was based on
these principle where by all members of the community had access to the land for purposes of
grazing, hunting, watering etc. this also included collection of firewood, harvesting timber for
construction, etc. The concept of landlessness was virtually unheard of.

Additionally, there were tendencies for the land to be controlled by political and cultural
institutions set up in the community in places where there were the clans i.e. the so called
state societies. The kingdom/ruler exercised power over land management.

While in places where traditional institutions such as kingdoms did not exist, Land
management was by elders at family or clan level because the community was generally
illiterates land was un surveyed and there was no registration.

An important characteristic of customary tenure is that land in owned in perpetuity.

This means that ownership is not retreated in terms of time or duration. Under this system it
is recognized that land may belong to an individual, a family or a traditional institution.
Section 3 of the land Act provides for incidents of customary tenure to include :-

1. Customary tenure is a form of tenure-

A. Applicable to a specific area of land and specific description of class of persons

B. Subject to section 27, governed by rules generally accepted as binding and authoritative
by the class of persons to which it applies.

C. Applicable to any persons acquiring land in that area in accordance with those rules.

D. Subject to section 27, characterized by local customary regulation

E. Applying local customary regulation and management to individual and household

ownership, use and occupation of, and transactions in land

F. Providing for communal ownership and land use

G. In which parcels of land may be recognized as subdivisions belonging to a person, a

family or a traditional institution and

H. Which is owned in perpetuity.

 According to Art 2376 , all Ugandans owning land under customary tenure may acquire
certifcates of ownership in a manner prescribed by parliament. The Land Act under Section 4
provides for the acquiring of certifcates of customary ownership by any person, family or
community.

This provision was intended to reform the system of customary ownership which until the
1995 constitution had been widely regarded as not as modern as the other systems. One of the
reasons why this system was regarded as inferior was the absence of documents of title.

Advantages of possession of land title.

Possession of a land title is important because a title is document of ownership. A

certificate of title can be used as security for a loan from credit institutions such as banks. In
traditional money lending, possession of a land title to be used as security for loan is a pre
requisite to being considered for a loan. This loan money can be used to provide capital for
development.

The capital raised from mortgaging the land can be used to develop the land or to finance
other economic activities. In the absence of a certificate of title to the land, traditional money
lending institutions often decline/refuse to advance any money to would be borrowers.

It has been argued that where land is registered and the owners have certificates of title, land
would be regarded as a commercial item, which can be sold to raise money to finance
economic activities.

Some scholars have argued that it’s for this reason that Buganda was able to develop at a
level that was comparatively greater than that of other regions.

Possession of land titles is associated with security of tenure. Security of tenure is regarded as
an impetus to developing since one carries out developments well knowing that he or she will
not be evicted from their land.

This point should be analyzed against the background of the Land Reform Decree that had
taken away security of tenure of customary occupants of land.

So where one has a land title more especially where land is owned in perpetuity there is a
feeling of security of tenure such land owner would be encouraged to carry out meaningful
and long lasting development programs on the land in questions.

6
The 1995 Constitution of the Republic of Uganda
Finally, possession of land titles is said to reduce on the number of the land disputes. The
argument is that since land title requires surveying of the land boundary disputes that are
common with surveyed and unregistered land will be reduced where land is registered and a
land little is used to the owner. Boundary disputes are very common in customary tenure.

A land title comprises of a deed plan which among others stipulates the exact size of the land
either in acres, hectares and decimals. So, in the event of a land dispute boundaries can be
opened with the guidance of the survey stones.

Disadvantages of customary land tenure system.

Customary land tenure is the communal ownership of the land difficult commercial grazing
fields that could be hard to control ticks and tickborne diseases and good pasture management
cannot be practiced.

Another problem with customary tenure is land fragmentation where people own plots
scattered in various places. This problem is worsened by the method of inheritance of the
land which leads to dividing of the land into small plots phenomenon which does not favor
mechanization of agriculture.

PROCEDURE FOR APPLICATION FOR CERTIFICATE OF CUSTOMARY

OWNERSHIP

Section 67 provides for the procedure for application for certificate of customary ownership
as follows: -

The chairperson of the committee shall be responsible for ensuring that the procedures to be
followed by the committee as set out in the section and any other procedures that may be
prescribed are complied with.

Where an application has been submitted to the committee, a notice in the prescribed form
shall be published and posted in a prominent place in the area and on the land which is the
subject of the application: -

A. Specifying the location and approximate area of the land.

B. Requiring all persons who claim any interest in the land or in any adjacent land which may
be affected by the application, including in respect of any adjacent land claims as to the
boundaries of that land, to attend a meeting of the committee at a specified time and put
7
The Land Act Cap 236
forward their claims and the time specified shall be not less than two weeks from the date on
which the notice is published and posted as required by this subsection.

On the date specified under subsection (2), the committee shall hear and determine all claims
made under that subsection.

The committee may adjourn any hearing into any claim and request an officer from the
district land office, any person or a group of persons recognized within the area as having
knowledge about the land and it's incidents of tenure to conduct further investigation into that
claim.

In hearing and determining any claim, the committee shall use it's best endeavors to mediate
between and reconcile parties having conflicting claims to the land.

The committee shall: -

A. Prepare a report on the application, recording all claims to interests and rights in the land
or to the occupation and use of the land and it's opinion on whether those claims have been
proved to exist, setting out its findings and recommendations with reasons on the application,
including in all cases whether the application should be approved with or without conditions,
restrictions or limitations endorsed on the certificate and forming part of the incidents of
customary ownership evidenced by the certificate or refused, and all claims made in relation
to the application.

B. Give or send a copy of the report to the application

C. Submit the report to the board.

D. Make a copy of the report available within the area for inspection by all persons who
submitted claims to or who were heard by the committee.

CONVERSION OF CUSTOMARY TENURE TO FREEHOLD TENURE

Article 237(4)(b)8 provides that "on the coming into force of this constitution land under
customary tenure may be converted to freehold land ownership by registration." This
presupposes that freehold tenure is superior to customary tenure. if the applicant has no
certificate of customary ownership, he or she need not first apply for it before seeking to
convert from customary tenure to freehold.

8
The 1995 Constitution of the Republic of Uganda
The procedure for conversion of customary tenure to freehold tenure is provided for under
section 99. It thus provides the following;

Any person, family, community or association holding land under customary tenure on
former public land may convert the customary tenure into freehold tenure in accordance with
this Act.

The decision of the board approving the conversation to freehold tenure shall be in the
prescribed form.

An application for conversion from customary tenure to freehold tenure shall be in the
prescribed form and shall be submitted, together with the prescribed fee, to the committee of
the area in which the land the subject of the application is situated.

On receipt of the report and recommendations of the committee, the board shall cause the
land in respect of which the application is made to be surveyed before approving the
application.

When the board approves an application for conversion, the board may attach conditions to
the conversation.

Any party aggrieved by the decision of the board may appeal to the District Land Tribunal;
and the District Land Tribunal may confirm, reverse, vary or modify the decision and make
such orders as it is empowered to make by this Act.

EFFECT OF CERTIFICATE OF A CUSTOMARY OWNERSHIP

According Sec. 8(1)10, a Certificate of Customary Ownership is deemed to be conclusive

evidence of customary rights arid interests endorsed on such certificate. The land continues to
be owned under customary land tenure and customary law continues to govern the rights of
third parties on the affected land.

A customary owner may lease the land, sell it, mortgage it, sub divide the land or dispose of
it an in any other way hit Subject to any restrictions that may have been imposed. Restrictions
operate as encumbrances.

Any subsequent transaction in the land after grant of certificate of customary ownership must
be notified to the Recorder who must keep a record of such transaction According to Section

9
The Land Act Cap 236
10
The Land Act Cap 236
8(4) if the transaction is a lease or mortgage or sale, it cannot be effective or conclusive
unless and until the Recorder has registered.

It can be seen that for the time, the law has provided for a system of dealing in customarily
owned Land in a way similar to dealings in land registered under the RTA.

This is a welcome step since in the past, most of such transactions in customarily owned and
have been done orally resulting in a lot of disputes arid even where they have been written,
there has been no central Registry where member of the public who wants to deal in the land
may make a search or get information concerning ownership and claims in respect of the
land.

Over all, it is expected that certificates of customary Ownership land and also facilitate the
obtaining of loan from credit institutions. Sec 8(2) of the Act specifically requires financial
institutions to recognize the certificate of customary ownership as evidence of title Sec 8(5)
further allows a lender who has lent money on the basis of a certificate of customary
ownership to, in the event of default, sell the land and even to sign transfer of such sold land
in favour of a buyer.

It should be noted however that customary owners of land have security of tenure which does
not depend on the acquisition of a certificate of customary ownership. Whether or not to
obtain a certificate of customary ownership is an optional matter and there is no legal
requirement that a customary owner of land should endeavour to register his or her land. It is
hoped however, that the advantages likely to flow from acquisition of a certificate of
customary ownership will encourage people to get certificates of customary ownership. The
registration here however, does not involve surveys such as those under the RTA, which must
be scientifically done.

SALIENT EFFECTS OF THE CONSTITUTION AND LAND ACT ON CUSTOMARY

LAND TENURE

The constitution of the Republic of Uganda 1995 in conjunction with the land Act impacted
the customary land in the following ways

Article 26(2)11
11
The 1995 Constitution of the Republic of Uganda
Is to effect that the right and freedom of the individual and groups enshrined in this chapter
shall be respected up held and promoted by all organs and engencies of government and by
all persons

Article 26 (1)12

Provides that every person has the right to own property either individual or in association
with others

Article 237(4)13

Empower all Ugandan citizens owning land under customary tenure to acquire certificates of
ownership in a manner prescribed by parliament and to convert to freehold land ownership

Section 2714

Provides for right of women, children and a disability regarding customary tenure whether in
respect of land held individually or communally shall be in accordance with the customs,
traditional and practice of the community concerned except that decision which denies
women or children or person with disabilities access to ownership, occupation or use of any
land or imposed condition which violate Article 33, 34and 3515 of the constitution on any land
shall be null and void

Section 416

Is to the effect that individual, families or communities owning land under customary tenure
of former public land may acquire a certificate of customary ownership (CCO) in respect of
that land.

FREE HOLD SYSTEM

This is provided for under Section 3(2)17. It is an interest in land of a fixed but uncertain
duration. It may also be a system where land in owned in perpetuity. Where the interest in
land is said to fixed there is usually provision that imposed some condition as to when the
tenure comes to an end.

12
Ibid
13
Ibid
14
The Land Act Cap 236
15
The 1995 Constitution of the Republic of Uganda
16
The Land Act Cap 236
17
Ibid
For instance, it may be provided that an owner may hold the land for as such owner and
his/her representative remain alive. In such a case of duration is said to be fixed. However, it
is uncertain because no one can tell for how long the owner and his representative will remain
alive the owner and his descendants will remain alive. The more common form of free hold
however involves holding of the land in perpetuity. For this reason, the free hold system is
described in English law as the most sample interest one can hold in land. Under a free hold
tenure, the land is registered and the owners have certificates of title to the land.

A free hold owner has the right to use the land usually with minimum restrictions/ limitations.
Under the common law, the free hold owner was said to have the right to use and even abuse
the land. However, under the land act it is provided that a free hold interest may be subject to
conditions [like the one mentioned above], restrictions or limitations.

According to this provision, a free holder has a right to sell the land mortgaged, lease it or to
sell it or create third party rights a free hold owner may dispose of his or her land by will. the
free hold system was introduced in Uganda first in Ankole and Toro under the Toro
Agreement and Ankole agreements.

A free hold owner has a security of tenure and therefore can benefit from the advantages of
security of tenure such as having the impetus to develop the land. A free hold owner also
enjoys all the benefits which accrue from possession of the land title.

One big disadvantages of free ownership in Uganda has been the problem of absentee
landlords i.e. people who own land but neither use nor are in actual occupation. This system
may leave other people landless and yet the absence of restrictions makes it difficult for
government to regulate how free hold owners utilize their land. This has led to suggestions of
introducing a land tax which would greatly affect people who own large pieces of land but do
use it. It is hoped that if such a tax is introduced, such people would be forced either to utilize
the land on to dispose of it to the landless. It also hoped and argued that the land tax could be
used to develop the local communities.

A free owner also enjoys all the benefits which come from possession of a land title. One big
disadvantage of free hold has been the problem of absentee landlords i.e. people who own
land but neither use it nor are in actual possession or occupation. This system may also leave
other people landless and yet the absence of restrictions makes it difficult for government to
regulate how free hold owners utilize their land. It has been suggested that introducing a land
tax over land would greatly affect people who own large pieces of land but don’t use it. It is
hoped that if a tax is introduced, such people would be forced either to utilize the land or to
dispose it of to the landless. It is also argued that revenue from the land tax would be used to
develop the local communities.

MAILO LAND TENURE SYSTEM IN UGANDA

The mailo land Tenure system is a unique system of land ownership in Uganda that originated
from the 1900 Buganda Agreement. It is a feudal system that is similar to free hold, where the
owner holds the Title in perpetuity.

S.4[1]18 provides that Mailo Tenure is a form of Tenure deriving its legality from the
constitution and its incidents from the written law which involves the holding of registered
land in perpetuity, permits the separation of ownership of land from the ownership of
developments on land made by lawful or bona fide occupant

S.29 Provides that lawful occupant means a person occupying land by virtue of the repealed
that is Busuulu and Envujjo law19, Totoro land lord and Tenant law20, Ankole landlord and
Tenant law21

Bonafide occupant means a person who before the coming into force of the constitution- had
occupied and utilized or developed any land unchallenged by the registered owner or agent of
the registered owner for 12 years or more

Had been settled on land by the government or an agent of the government, which may
include a local authority

HISTORICAL CONTEXT.

This system was established during British colonial rule and largely reflects the power
Dynamics between the ruling class and the peasant population.

TENANT RIGHTS.

Technically tenants, Kibanja Holders often have strong customary rights to their plots making
eviction difficult and leading to land disputes

18
The Land Act Cap 236
19
1928
20
1937
21
Ibid
LAND DISPUTES.

Due to the complex nature of mailo land ownership and the potential for conflict between
land owners and Tenants, land disputes are prevalent.

HOW IT WORKS.

-The Buganda Agreement gave the Buganda kingdom land that had been taken by the British.

-The King and Nobles were given large blocks of land while other chiefs were given similar
blocks.

-The land was measured in square miles, which is where the name " Mailo Comes From.

-The land was governed by Buganda law and custom, which meant it was passed down to
male heirs.

-The mailo system introduced private property for customary authorities, but ignored the
rights of the Tenants.

TYPES OF MAILO LAND.

KABAKA MAILO

Land given to the king which is now owned by the Buganda Land Board.

OFFICIAL MAILO.

Land Given to certain officials, which is now owned by the Buganda Land Board.

PRIVATE MAILO

Land given to individuals which can be sold, sub divided or passed down.

CHARACTERISTICS OF MAILO LAND.

The mailo land Tenure system, primary found in Uganda is characterized by Dual ownership
structure where a land owner [mailo owners] holds legal Title to the land.

While Tenants [ often called Kibanja Holders] have a right to occupy and cultivate specific
plots on that land, creating a complex dynamic with potential for conflict due to unclear
boundaries between ownership and Tenancy rights.

Its system where land owners have private ownership but must acknowledge the rights of the
long-term Tenants who resides on the land.
Dual -ownership.

A mailo owner holds legal title to the land while tenants [kibanja holders] have the right to
occupy and cultivate specific plots on that land, often with long standing occupancy rights.

Origin In Buganda Kingdom.

The mailo system originated in the Buganda agreement22, where land was allocated to the
Kabaka [King] and certain officials, who then could sub-divided and lease portion to Tenants.

The owner has certificate of Title that describes the land. The owner is free to pass on the
Title to the other parties .

The owner holds land subject to customary and other statutory rights such as rights of way
and rights of bonafide and lawful occupants on the land

LEGAL FRAME WORK.

PROBLEMS WITH THE MAILO SYSTEM.

-Conflicts Between land owners and Tenants can occur.

-There is lack of knowledge and Transparency about land rights.

-Land Lords may hide to avoid paying Tenants, leading to Eviction.

LEASEHOLD TENURE SYSTEM.

Leasehold tenure in Uganda is a system where a landowner grants another party the right to
use their land for a specific period of time in ex-change for a rental fee. The landowner or
lessor, retains ownership of the land and any improvements made to it after the lease expires.

The leasehold is a form of tenure which arises either by contract or by operation of law. It
involves an owner of land giving to another person the right to exclusive possession of his or
her land for specific period of time usually but not always in return for a periodic payment of
money called rent. Where the lease is created by contract, it is referred to as a contractual
lease while a lease created by statute/legislation is referred to as a statutory lease (refer to sect
2 and S 3 (5)23.

22
1900
23
The Land Act Cap 236
The periodic payment is referred to as annual because it is paid annually. There is also usually
a payment called a premium which is paid once and which usually is the consideration for the
lessor’s agreeing to lease the land.

The owner of the land who leases it out is the one referred to as the lessor whereas the person
whom the land is leased is referred to as the lessee.

Most leases that exist today are contractual. However, examples of statutory leases do exist
such as those leases formerly granted to urban authorities. Another example is leases are a
result of operation of the Expropriated properties Act24.

According to section 3 (5), the terms and conditions of a lease can be regulated by law to the
exclusion of any contractual agreement. This means that, some of the terms in a lease
agreement are implied by law even where a lease is silent on certain terms.

The Registration of Titles Act (RTA) has terms to be implied e.g. even if the lease agreement
is silent, the RTA implies in the lease the right to quiet possession and peaceful enjoyment of
the land by the lessee. This is also an implied term on the part of the lessee not to part with
possession of the land without the prior consent of the lessor (usually, this consent must be
written). It is therefore important to examine whether an RTA provision is subject to the lease
agreement or vice versa. A lease is entitled to exclusive possession during the term of the
lease the lessor is entitled to a reversionary interest and payment of the considerate i.e.
premium and rent. Premium is paid once while the rent is paid annually.

The lease agreement may not contain a provision for payment of a premium but if must
contain a provision on ground rent. This is because there must at all times be consideration
for a contractual lease other wise it would not be binding even where the parties do not intend
to charge rent. It is therefore advisable that even where the parties do not intend any further
payment of rent, a nominal figure should be provided for as rent.

After all, it is the principle of the principle of the law of contract that though there must be
consideration, the consideration need not to be adequate. It is sufficient in law if some value
is attached as rent failure to pay rent is a serious breach of a contract which entitles the lessor
to re-enter the property which means that the landlord is entitled to consider the lease as
having come to an end and to resume possession which would have earlier been given away
to the lessee.

24
1982
This is usually done either by taking physical possession with out a court order or by
applying to court for an eviction order and for an order determining the lease. Whichever
method is used, if the lessor succeeds in re-entering the lease, is said to have been forfeited.
In other words, it is said that there has been forfeiture of the lease. It is an implied term of any
lease agreement under the RTA that where the rent falls due for a period of 30 days, a right of
re-entry accrues to the lessor.

However, the law provides for a right to seek relief against forfeiture. This is provided for
under the judicature Act. It is only the High Court which has the powers to grant relief against
forfeiture. This is because if the landlord has re-entered, there is a need for the Registrar of
Titles to note a re-entry in the register book i.e. to cancel the lease and make an entry in the
land register and title showing that the landlord has re-entered.

Only the High Court has powers to order the Registrar to take any action provided for by
law. Land Tribunals, magistrate courts and Executive Committee courts do not have these
powers. However, under the Land Act25, land tribunals had been empowered to give orders
to the Registrar of titles but this position was reversed by Act 1/2004 (the Land (Amendment)
Act).

Even then those powers did not cover relief against forfeiture but only covered vesting
orders-orders by court vesting title in registered land in a person in such a way as requires the
Registrar of Tiles to register that person as the proprietor of the land. The right to grant relief
against forfeiture however, is expressly reserved to the High Court. If landlord seeks to re-
enter by taking possession without a court order, he or she must actually be in physical
possession or control of the premises. After taking physical possession, he/she must then
apply to the Registrar of titles to note a re-entry. The Registrar usually requires proof to
his/her satisfaction either in the form of statutory Declaration i.e. a statement on oath or a
letter from the Local

Council Authorities or both confirming that the landlord has taken over actual possession.
The Registrar then proceeds to issue a notice to the lessee taking him to show reasons as to
why a re-entry should not be registered.

The lessee must get a court order stopping the Registrar from continuing with the re-entry.
Where the lessee does not get an order stopping the Registrar, the Registrar will complete the
re-entry after expiry of the notice.
25
1998
The consequences of not paying ground rent are therefore very serious even though the law
gives a right to the lessee to seek relief against forfeiture if she or he has just cause.

NOTE: it should therefore be emphasized that in contractual leases, breach of the terms
entitles the aggrieved party to seek redress in court. Under the public Lands Act of 1969
which is now repealed, urban authorities had been granted statutory leases over land occupied
by them. This gave them control and management powers over the land in the urban areas.
Where one wanted to acquire a plot of land located in an urban area. Where one wanted to
acquire a plot of land located urban area, he/she had to apply to the respective urban authority
which would consider the application.

Because of this, the lease hold system became a common system of tenure in the urban areas
and most Ugandans who were aware about its existence tended to think that this system was
superior to all the other systems of tenure. this however was and is not very correct because
of the disadvantages leasehold tenure has.

The biggest disadvantages of lease hold tenure is the limited nature of the interest since a
lease has a definite beginning and a definite end, a lease hold owner has a lesser estate than a
freehold, mailo land owner or customary tenure. before the 1995 Constitution however, it
could be said that a leasehold owner had a better estate than a customary occupant since
customary occupants were tenants at sufferance who could be evicted if their land was leased
to some one else.

It would therefore be right to argue that during the operation of the Land Reform Decree,
before customary occupants were granted security of occupancy, the lease hold tenure was
better than the customary tenure. This position has however been decisively dealt with by the
1995 constitution and the 1998 Land act.

The other disadvantage of lease hold tenure is the fact that a lease can be terminated by re-
entry upon breach of a fundamental contractual term (condition) especially the term regarding
payment of annual rent. Where a lease is forfeited, the lessee stands to lose. The presence of
this possibility implies that there is relatively less security of tenure under leasehold tenure
than under the other three systems. (Under the other systems, land is held in perpetuity.

This renders the leasehold system to be liable to suffer the problems associated with lack of
security of tenure. N.B: Statutory leases to urban authorities were abolished by the 1995
Constitution since land now belongs to the citizens of Uganda and not to the State. Leases
formerly granted by the Urban authorities are now under the control of the District Land
Board which has taken over the role of the lessor.

A lease may not be valued as much as a free hold or mailo or even a customary tenure by
credit institutions because of its limited duration and because of possibilities of restrictions on
how the land should be utilized or death worth by the lessee. Yet these terms and restrictions
are of a binding nature.

ADVANTAGES OF LEASEHOLD TENURE.

A lease hold owner to a very big extent enjoys the same advantages as those enjoyed by free
hold or mailo owner such as possession of certificates of title. When a lease is a created for
example over mailo land, a lease hold title would be made out for the lessee, while the mailo
owner will keep his or her mailo title which however will show on the encumbrances page
that there is a place. Similarly, if a lessee were to sub-lease his/her land, the sublease would
be recorded on the lease title as an encumbrance (i.e. third-party interest or claim).

Leasehold tenure can be good for development horn the point of view of the Lessor. This is
be me a lessor can have his/her land developed by a lessee who at the termination or expiry of
the lease would have to leave the deve1opments to the reversioner.

Similarly leasehold tenure is of an advantage to a lessor the sense that the lessor can dictate
the nature of developments which should take place on his/her land. This, is especially so in
the case of land in urban areas where the district Land Board would be interested in ensuring
that land is actually put to productive use in line with the development plans of the respective
urban authority. Indeed, this aspect of leasehold tenure has in the past and up to the present
been used by urban authorities (how the District Land Board) which always impose
development conditions esp. during the initial period of the lease usually between 3-5 years.

Development conditions are terms included in a lease agreement stipulating the nature of
developments that should be carried out on the leased land and the standards to which those
developments should he carried out.

Failure to comply with the development conditions within the prescribed time may lead to
refusal by the District Land Board or a lessor generally to renew the lease.

It’s because of this advantage of lease hold tenure that it was the preferred system under the
Land Reform Decree since the absence or capacity to impose development conditions on
mailo and freehold land have been cited as one of the causes of under development in areas
slum areas like Makerere Kavulu and Katanga in Kampala.

CONVERSION OF LEASES INTO FREE HOLD

According to Art 237(5)26, parliament was to enact a law whereby any lease that was granted
to a Ugandan Citizen out of former public land can be converted into a freehold. Pursuant to
this clause.

Section 2827 of the Land Act makes provision for conversion of leases into free hold.

The conditions which must be met before this can be done are that the lessee must be a
Ugandan citizen and the lease must have been still running at the time when the Land, Act
came into force.

Further the lease must be out of former public land. The citizenship requirement/condition is
in line with the principle in our current land law that non-citizens cannot acquire an interest
greater than leasehold and even where they acquire a lease hold interest the term must not
exceed the period of 99 years.

The other condition that must he fulfilled is that the applicant must satisfy the District Land
Board that the lease was validly granted and that there were no customary interests of third
parties at the time when the lease was granted.

In case there has been such customary interest, the District Land Board must be satisfied that
they were compensated. The board must also be satisfied that all development conditions as
well as any other conditions in the lease were complied with. It should be noted however that
if the land in respect of which this application is made exceeds 100 hectares, the Board must
be satisfied that conversion from lease hold into freehold will be in the public interest (Sect.
28 (1) (f) Land Act.

Even then, where approval is given in respect of land exceeding 100 hectares, the applicant
must pay for the land at market rate as determined by the Chief Government Valuer. Upon
conversion, the process should be perfected by registration under the Registration of Titles
Act.

In case there was any sub-lease created out of the lease, such sub lease will be automatically
turned into a lease according to sect. 28 (3).
26
The 1995 Constitution of the Republic of Uganda
27
The Land Act Cap 236
Salient Effects of the Constitution and the Land Act on the Customary Land Tenure. The
constitution provides for the acquisition of registrable interests for customary land owners. It
also provides for the conversion of customary Tenure to ‘freehold.

The registerable interests provided for involve acquisition of certificate of customary

ownership as provided for as article 237(iv)28 and Sec 4(i)29 allows individuals, families and
communities owning land under customary ownership to acquire certificates of customary
ownership of their land.

These must be persons who own land previously referred to as public land under the public
lands Act30. Persons who occupy land that, belongs to private individuals or institutions do
not qualify to obtain certificates of customary ownership except if and when they buy
from/buy out such individuals/institutions. Such persons at e classified as customary
occupants and in the absence of buying from absolute owners of the land, they are only
entitled certificates of Occupancy.

The procedure for applying for a certificate of customary ownership involves an application
in the prescribed form accompanied by a prescribed fee.

The form and fee must be lodge with the Area Land committee. Reg. 3 of the Land
Regulations provides for the form which the application must take. It should be noted from
the very beginning that the ultimate decision to grant a certificate of customary ownership
lies with the District Land Board.

The Area Land Connellite upon receiving the application must put a notice both on the land
in question and in the Parish.

This notice must be put in a prominent place and a is intended to notify the general public
who may have objections as well as neighbours who may be affected or persons who may be
interested. The applicant and other interested parties have a right to attend the meeting of the
Area Land Committee on the date of its meeting consider the application.

Fortunately, the committee is not bound by rules of procedure of evidence. The Committee is
supposed to write a report detailing all claims made in relation land and whether such claims
have been proved. The Committee must also give it opinion and the reasons Pm its opinions
on the third-party claims.
28
The 1995 Constitution of the Republic of Uganda
29
The Land Act Cap 236
30
1969
The committees must then make recommendations of whether to reject or accept the
application or whether the application should be allowed subject to some restrictions.

In case restrictions are imposed, the same would have to be endorsed on the certificate as
notice to the whole world. The report must then be submitted to the relevant District Land
Board (DLB) and the copy of the report sent to the applicant.

The Board may accept or reject the application as well as the recommendation. The Board
may also require the Committee to make further investigations, however in line with
principles of natural justice, all the decisions of the DLB must be communicated to the
applicant who however has no right to be heard at this stage.

In the event of dissatisfaction, the aggrieved party has a right to appeal to the court which
may confirm, vary or, reverse the Board’s decision. If a certificate of customary ownership is
to be given an officer called the Recorder is instructed by District Land Board to issue the
Certificate.

The office of the Recorder is a new office created as one of the changes brought about by, the
Land Act in a bid to reform or improve on customary land tenure by making land owned
customarily to be registrable.

At the Sub-County levels, the recorder is the Sub County chief while in urban areas the
Recorder is the Town clerk and in the case of Kampala City the Recorder is the Principal
Assistant Town Cleric of the Division where the land is located.