Court ends illegal eviction of bibanja holders

A court in Kampala has finally put to rest the long-running lack of clarity on the equitable interest of tenants (bibanja holders) on titled land, ruling yesterday that a landlord is obliged by law to recognise their third party rights before carrying out a land sale. 

Judge Bernard Namanya of the High Court, Land Division, ruled that whereas it is a fundamental rule that a purchaser of a legal estate without notice has an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner, “the purchaser must undertake a full investigation of the title before completing the purchase. In order to derive benefit from the doctrine, a purchaser must have made all the usual and proper inquiries, and still found nothing to indicate the equitable interest of a third party”. 

The judge held that a purchaser, who falls short of this standard, cannot plead that he or she had no notice of third-party rights, which in proper due diligence would have been discovered.

According to the court decision, a purchaser has a duty to inspect the land and make a full inquiry about anything which appears inconsistent with the title offered by a vendor.

With the legal precedent set by this ruling, the real estate sub-sector can hope to settle the long-standing and contentious issue involving the sometimes-violent conflict between landlords and bibanja holders. It will also likely have far-reaching implications in especially central Uganda where evictions of sitting tenants, sometimes of entire villages, is rampant and has become a serious socio-political issue.

The court ruled that possession of land that is inconsistent with a vendor’s title constitutes sufficient notice to the purchaser of the rights of the possessors who are normally bibanja holders.

The ruling resulted from a suit in which Mr John Kaggwa, administrator of the estate of the late Michael Kaggwa, successfully sued eight people, among them the former Wakiso District surveyor,  Mr Joseph Kizito Batume.

The decision was in respect of land measuring 42.8 acres found at Lugumba, Zziba, Kasanje, in Katabi Town Council, Wakiso District.

Others accused included Mr Denis Kasoma, Mr Hudson Mukasa, Mr Eddie Kasozi Kitaata, Mr Benon Tugume,  Mr Jascenta Nabanoba, Mr Agnes Babirye, Wakiso District Land Board and the commissioner for land registration.

Through his lawyers, Mr Kaggwa and or his ancestors submitted that they had occupied the disputed land since the early 1900s. Sometime in 2011, Mr Kaggwa said he was surprised to learn that Kasoma, Mukasa, Kasozi, Tugume and Nabanoba had fraudulently applied for, and were granted freehold certificates of title in respect of the suit land, which they transferred to Ms Babirye.

Judge Namanya considered two legal issues in the contested land transaction, that is; the legal consequences of failure to declare the true value of consideration on the title transfer form -- where Ms Babirye declared Shs105 million instead of Shs892.5 million that was actually paid.  Secondly, he also considered the legal consequences of creation of a freehold certificate of title in disregard of an unregistered bona fide interest on the same land.

“It is my finding that the evidence before me proves that up to the time of commencement of the present court proceedings in 2017, Kaggwa and/or his predecessors in title had been in occupation of the suit land for about 111 years.

The plaintiff adduced photographs showing developments on the suit land including exhibits P3 which is a photograph of his grandfather’s house (an old house), which he claimed has since been improved,” the judge reasoned.

He declared Mr Kaggwa as the bona fide occupant of the 42 acres and that Kasoma, Mukasa, Kasozi, Tugume, Nabanoba and Babirye were fraudulently registered as proprietors of the land.  The court faulted the accused parties for colluding with Wakiso District land board to deliberately defeat the complainant’s interest in the land.

“The eighth defendant, Wakiso District Land Board, failed to implement its statutory mandate by approving the creation of a certificate of title in favour of the second to the sixth defendants in disregard of the plaintiff’s interest in the land. There was a failure by the eighth defendant to ensure that a freehold certificate of title was not created over land that was already in occupation of the plaintiff (Kaggwa),” the court observed.

Judge Namanya noted that the sale agreement between the accused parties and Ms Babirye had a clause requiring the sellers to remove customary tenants from the suit land, which proves that she was aware of the plaintiff’s developments, and that there would be need to evict the plaintiff.

Section 29(2)7 of the Land Act, 1998, defines a bona fide occupant as a person who, before the coming into force of the 1995 Constitution, had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for 12 years.  Such an individual automatically assumes an enforceable equitable interest in the said land. 

The court ordered the commissioner for land registration to cancel the freehold title issued to Ms Babirye and also directed the accused parties to stop dealing or transacting on the said land. The defendants were directed to pay Shs30 million to Mr Kaggwa as general damages at a rate of 6 percent interest from the date of judgement till payment in full, as well as his legal costs.

As a response to much public outcry, President Museveni in 2017 set up what became known as the Judge Catherine Bamugemereire commission of inquiry into the effectiveness of the law, policy and processes of land acquisition, administration, management and registration. Among the commission’s findings was the central and pressing matter of rampant evictions of the bibanja holders, especially in central Uganda.  

The report attributed the evictions to government’s failure to implement existing land laws. Judicial officers’ rulings, she said, were responsible for the eviction of poor bibanja holders and the fraudulent giving-away of gazetted forest reserves and wetlands. The commission found evidence of bogus court orders, rulings, judgements, injunctions and connivance involving judicial officials and land dealers.

Three years after it opened inquiries into land matters, the commission handed in its report to the President in July 2020.  Cabinet has since formed a sub-committee chaired by 3rd deputy prime minister, Gen (rtd) Moses Ali , to study the commission’s recommendations. 

Legal provisions 

Section 29(2)7 of the Land Act, 1998, defines a bona fide occupant as a person who, before the coming into force of the 1995 Constitution, had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for 12 years.