Bwetegeine Kiiza & Anor Vs Kadooba Kiiza (Civil Appeal Number 59 of 2009) [2015] UGCA 183 (30 June 2015)

We shall keep the above principles in mind when addressing ourselves to the

grounds of appeal in this matter.

Ground 1:

The learned Judge erred in law in finding that the grant of the suit land by

the Bataka and LC officials in 2000 and the subsequent settlement and development of the land by the respondent amounted to a customary tenure and was lawful.

Arguments for the Appellant

Counsel for the appellant submitted that the issue of customary tenure was not proved during trial as required under Section 46 of the Evidence Act, Cap 6. Counsel for the appellant relied on the cases of Ernest Kinyanjui Kimani v Muira Gikanga [1965] E.A 735, Kampala District Land Board and anor v Venansio Babweyaka and Ors, SCCA No. 2 of 2007 and R v Ndembera s/o Mwandawale (1947) 14 EACA 85 for the proposition that customary tenure must be proved.

Counsel submitted that nowhere in the record was it shown that an expert on Bunyoro custom was called to testify as regards customary land ownership and no legal authority was cited to prove the existence of that custom. Counsel therefore submitted that The Land Tribunal and the first appellate Judge therefore erred in holding that allocation of land by the Bataka amounted to a customary practice in Bunyoro. Counsel further submitted that on the other hand, the appellant proved that he had acquired an interest in the land by his uncle grazing cattle on the suit land for over 30 years which interest was passed on to the first appellant who then went ahead to apply for a lease on the suit land.

Arguments for the Respondent

Counsel for the respondent agreed with the decisions of the Land Tribunal and first appellate Court and submitted that when the Bataka granted the suit land to the respondent, he acquired in it a customary interest. Counsel buttressed his arguments with the authorities of Jakobo Lomolo v Kilembe Mines [1978] HCB 157 and Marko Matovu & others v Sseviri & another [1979] HCB 174 for the proposition that customary tenure may be established by the cultivation only of seasonable crops or the grazing of cattle and related construction of wells to water cattle.

Counsel further argued that the respondent proceeded to carry out developments on the land unlike the appellant which in turn made him a customary tenant. Therefore, the Land Tribunal and the High Court did not err in their decisions and prayed for those findings to be upheld.

Resolution by the Court

We have considered the submissions of both Counsel and perused the Court record. The ground as framed is on a point of law. The point of law to be determined here is whether the respondent is a customary tenant as decided by the Land tribunal and first appellate Court. Section 46 of the Evidence Act, Cap 6 which counsel for the appellant relied upon, provides thus:

"46, Opinion as to existence of right or custom, when relevant

When the Court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of that custom or right, of persons who would be likely to know of its existence if it existed, are relevant"

The expression "general custom or right" includes customs or rights common to any considerable group of persons. What has to be determined therefore is whether there exists a custom among the Banyoro in which the Bataka and LCs allocate land which then amounts to customary ownership. In the case of Ernest Kinyanjui Kimani v Muira Gikanga [1965] E.A 735, Duffus, JA it was held that:

"As a matter of necessity, the customary law must be accurately and definitely established. The Court has wide discretion as to how this should be done but the onus to do so must be on the party who puts forward the customary law. This might be done by reference to a book or document of reference and would include judicial decision but in my view, especially, of the present apparent lack in Kenya of authoritative text books on the subject or of any relevant case law, this would in practice, usually mean that the party propounding the customary law would have to call evidence to prove the customary law as he would prove the relevant facts of his case"

The above dictum was cited with approval by Odoki, C.J [as he then was) in the Supreme Court case of Kampala District Land Board and anor v Venansio Babweyaka and Ors, SCCA No. 2 of 2007, where he held that:

"It is well established that where African customary law is neither well known nor documented, it must be established for the Court's guidance by the party intending to rely on it. It is also trite law that as a matter of practice and convenience in civil cases, relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence of expert opinion adduced by the parties"

The claim of the respondent (as claimant) in the Tribunal is quite interesting. In the Amended Statement of Claim in the Tribunal dated 12^th August 2004 paragraph 5, it is written;

"5. The Cause of Action arose as hereunder:

5 (a) That on the 17^th August 2000 the claimant lawfully acquired a piece of land situate at Kyamugenzi LC 1, the same having been given to him as a gift from the residents (Bataka) of Kyamugenzi, LC 1, Butema Parish, Buhanika Sub-county, Hoima District

2. That the claimant immediately took possession thereof, constructed a j semi-permanent residential house, fenced part of the land and started

practicing animal husbandry thereon..." [emphasis added)

It is therefore clear that the respondent's legal claim to the land was that it was a gift to him from the Bataka. The respondent's pleadings are silent on the issue of customary tenure nor is there an averment that it was a custom in that area among the Banyoro to create a customary tenure through a gift from the Bataka. In any event it is trite law of pleadings that there shall be no departure from pleadings without the leave of the Court or tribunal. A perusal of the proceedings at the tribunal shows that no witness even referred to a form of customary tenure. Indeed even the question of customary tenure was not one of the 3 issues to be determined by the Tribunal. It appears that the question of customary tenure was first raised during the submissions of the parties to the tribunal.

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. First and foremost, as found by the Land tribunal, ownership

of the suit property lay with the Hoima District Land Board by virtue of Section 59(l)(a) of the Land Act, Cap 227 and not the Local Council or Bataka of the area.

The Tribunal found that:

"..We wish to note that we agree with counsel for the respondents' submission that LCs or the Bataka do not own land in the district. We also wish to agree with Counsel for the respondent's submission that land in the district, which does not belong to anybody, is held by (the) Land Board in the District in trust of the people and can be given out by the District Land Board..."

On this point of Law we find that the Tribunal made a correct finding. The Tribunal however goes on to find:

"...Nevertheless, it is a practice that a person who does not want to acquire a registrable interest in the land can go to the local people of the area who upon allowing him to occupy such land which does not belong to anybody and upon occupation and developing such land, it becomes his/her customary holding..."

At the Tribunal, Businge Robert (PW2, Page 54 of the record being the notes of the Chair of the tribunal), the LC 1 Chairman at the time who was instrumental in giving the respondent the suit land testified that the suit land was about 80-100 acres which the respondent paid for by "...ekita kyomwenge" in terms of money (a calabash of beer).

The first appellate Court found that the suit land was vacant land and therefore fell under customary or traditional land tenure (P. 81 of the record). The learned appellate Judge then found:

"...it is my finding that when the Respondent settled on the vacant land in question and developed it, he immediately acquired customary interest on the disputed land..."

In order to have come to this finding the first appellate Court should have reviewed the evidence on record and reconsidered the materials before the Tribunal. However clearly, there was no evidence adduced at the Tribunal as to whether the respondent had acquired a customary tenure on the suit land by way of a gift from the Bataka. If the Bataka did not own the land then how could they in law give it out as a gift which then became a customary tenure? What is even stranger is that a gift had to be paid for with a calabash of beer. We wonder what kind of gift that was.

Therefore, without proof of that custom we do not agree with the finding of the Land Tribunal and the first appellate Court, that LCs and Bataka can grant customary land tenure. 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.

Native custom must be proved in evidence and cannot be obtained from the Court's assessors or supplied from the knowledge of the trial Judge [see: R v Ndembera s/o Mwandawale (1947)14 EACA 85). However, it seems to be the case here as the Land Tribunal held that this was common practice in Bunyoro without any proof from the respondent, which burden lay upon him to accurately and definitely prove. In this regard the respondent did not in law discharge the required standard of proof as no experts were brought to guide the Court on any existing customs relating to land nor were any scholarly materials of customary land law in Bunyoro referred to. In this regard, the appellate Court in reaching its findings did not apply the principles required of the first appellate Court to review and reconsider the evidence and materials before it on this ground.

We therefore find that the appellate Court erred in upholding the finding that when the Bataka gave the respondent the suit land in 2000 that amounted to a customary tenure as there is no evidence to support that finding of fact.

This ground of appeal therefore succeeds.

Ground 2:

The learned Judge erred in law when he omitted to take into consideration that the first appellant had obtained a lease offer from the lawful authority mandated to deal with the land in dispute.

Arguments for the Appellant

Counsel submitted that the first appellant applied for a lease over the suit land in 1995 and his application was considered and approved by the Department of Land Administration, Ministry of Lands vide ULC MIN: 3/95(a) 25 of 6/3/1995 Appl. No. 5927. The appellant received a lease offer from the Commissioner Land Administration dated 30^th January 1998. In that respect, the appellant acquired equitable interest which only required to be perfected into a legal interest; unlike the respondent who had no title at all. Counsel for the appellant also submitted that the Bataka and LCs had no authority to give vacant land to the respondent when the authority over suit land lay with the Hoima District Land Board. Consequently, the grant of the suit land by the Bataka and LCs when the District Land Board had already previously allocated the same land to the first appellant was unlawful and did not vest any title in him.

Counsel for the appellant further argued that assuming, the respondent had also acquired an equitable interest, then it followed that the first appellant's interest was the first in time. In this regard he relied on the authority of John Katarikawe v William Katwiremu (1977) HCB 187.

Arguments for the Respondent

Counsel for the respondent submitted that the lease offer given to the appellant did not create any interest in the suit land. It was merely an “offer” as the title suggests and was subject to the land being available and free from disputes at the is time of the survey. Counsel pointed out that the land was never even surveyed as the respondent disrupted the exercise. He contested the interest of Babyesiza which the first appellant allegedly acquired because there is no evidence to show that he either occupied the land or made any developments on it. Therefore, the appellant did not have either equitable or legal interest on the land and this appeal should be dismissed for lack of merit.

Resolution by the Court

We have considered the submissions of both parties for which we are grateful.

the respondent testified that the offer to the first appellant from the Hoima Land Board of 1998 was a forgery. However during the hearing before the Tribunal the allegation of forgery or fraud was not proved in evidence.

As earlier decided here, the local authorities and residents did not have any authority over the suit land. The authority over the suit land lay with the Land Board. Following the procedure to acquire .land from the Land Board, the authority of the Bataka or LCs ended with the recommendation as to the availability or unavailability of land so as to establish any encumbrances. We find under the law that the grant of the land beyond a recommendation to the Land Board by the LCs and Bataka was irregular. From the record, the appellant testified that he acquired the land from one Sira Babyesiza who had grazed his cattle there uncontested for over 30 years. Sira Babyesiza (Dw3) also testified to that effect. This evidence was not challenged at all.

We acknowledge that both the appellant and respondent at some stage occupied the suit property. The appellant did so through the lease offer and subsequent occupation and the respondent through occupying the land purportedly granted by the local authorities.

The Tribunal in its Judgment (p.66 of the record) found that a lease offer was not a certificate of title and therefore was not evidence of ownership of land. The Tribunal referred to the lease offer EX D1 and referred to the last paragraph which read:

"...The offer is subject to the land being available and free from disputes at the time of survey..." The Tribunal found that when the first appellant tried to survey the suit land in 2000, the land was already occupied by the respondent and a dispute ensued so, technically the lease offer collapsed. The Tribunal further held that from their visit on the site (locus in quo) the respondent settled on the suit land a few months before the first appellant so the first appellants had to be the trespasser.

The appellate Court (P 83 of the record) found that:

"...The legal position is that a lease offer if (sic) a step in the procedure for acquiring the land in question. It does not bestow any superior interest on the land. It is subject to other conditions applicable to all offers for instance the availability of land..." The appellate Judge then faulted the first appellant for taking long to develop the land and only rushed to do so when the respondent took possession of this "...very important source of wealth and means of production..." which should not be allowed to go to waste. He then went on to hold that the land was free and that the respondent had acquired a customary tenure over it.

It has already been found as a fact that the jurisdiction over the suit land lay with the Hoima District land Board. It is also an uncontested fact that the Hoima District Land Board in 1995 vide Min ULC Min: 3/95 (a) (25) of 6/3/1995 approved and granted the first appellant a lease offer. It is not in doubt that in 1995 the respondent was not on the suit land. He only came in 2000. This is all on Court record. It is also on Court record that a formal lease offer for an initial period of 5 years was only issued to the first appellant 3 years later on the 30^lh January 1998. This again was before the respondent came on to the suit land. The stamp on the lease offer shows that fees were paid by the first appellant on the 13^th November 2000. At this time the respondent was on the suit land. From the evidence, it is