{UAH} LAND AND FAMILY LAW IN UGANDA.

LAND AND FAMILY LAW IN UGANDA.

Land is the base on which all other activities are carried out. According to the law Dictionary Featuring Black's law dictionary, the word "land" includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man as buildings and fences. Mott -v- Palmer 1 N.Y. 572.

Therefore in order to foster development in Uganda such as attaining food security and farm land, acquiring proper infrastructure, buildings and factories e.t.c, a favorable land tenure system has to be in place.

Land in Uganda is owned in accordance with the following land tenure systems –

a) Customary land

b) Free hold land

c) Mailo land

d) Lease hold land

a) Customary land tenure is applicable to a specific area of land and governed by customary laws – for instance in the north and in Buganda, where it is mainly found in the slum areas owned under "Kabaka"'s land or "kibanja" by low income earners. (My opinion with a disclaimer, is that is why these areas are underdeveloped) e.t.c

b) Free hold involves holding of registered land in perpetuity or less than perpetuity and enables the holder to exercise full powers of ownership.

c) Mailo land involves the holding of land in perpetuity. It also permits the separation of ownership of the land from the ownership of developments on land made by a lawful or bonafide occupants.

d) Lease hold tenure is a form of tenure under which one person, namely the landlord or lessor, grants or is deemed to grant another person namely a lessor exclusive possession of the land for a specific period of time e.g 5, 45 & 99 years. The tenure is usually granted for a rent or a premium or both or for free.

Note: The landlord also holds the reversionary interest even if there are developments on the land.

TYPES OF OCCUPANCY.

S.29 of the land act.

1. Lawful occupant.

A person who occupies the land by virtue of the repealed laws in Buganda (1928), Toro (1937), and Ankole (1937).

A person who occupies land with the consent of a registered owner e.g a buyer.

A person who occupied land as a customary tenant but his tenancy was not disclosed or compensated for by the registered owner at the time when the registered owner was acquiring the certificate of title.

2. Bonafide occupant.

This is;

A person who occupied and utilized the land unchallenged by the registered owner or his agent for twelve years or more.

A person who was settled on the land by the government or an agent of the government including a local authority.

A person who purchased an interest from a bonafide occupant.

3. Non bonafide purchaser.

S.30, to be assisted by a mediator to enter into a negotiation with the registered

owner.

N.B; Further stressed by s.13 of the land (amendment)act 2004.

RIGHTS AND OBLIGATIONS OF A TENANT BY OCCUPANCY.

S.31 Land Act also amended by S.1, of the Land Amendment) Act 2010

i. Enjoys security of occupancy.

ii. Pay to the registered owner annual ground rent.

iii. Acquire a certificate of occupancy by applying to the registered owner.

iv. May sub-let, sub-divide or give away the land by will with the consent of the registered owner.

v. Has priority to buy the land if the registered owner wants to sell it.

vi. May change occupancy into freehold, mailo, lease or sub-lease.

vii. Can only be evicted for non-payment of ground rent under an order of court (land amendment act 2010).

MY RECOMMENDATION (Subject to debate)

The different types of land tenures should be consolidated into freehold and leasehold tenures to avoid the confusion in our land laws. This is because "Mailo" is a luganda word loosely translated as "Mile" whereby the British distributed land in Miles to the Baganda loyalist of the colonialist. Mailo land tenure is also owned in perpetuity like freehold tenure and so these two should be consolidated into Freehold tenure.Some forms of customary tenure like the "Kibanja" (These are also referred to as bonafide occupants) are the same as "leasehold tenure" and so these two should also be consolidated into "leasehold tenure". This will encourage development and in some instances government take over of the land for development subject to payment of compensation to the affected individuals in accordance with the Constitution.

FAMILY LAND.

Defined under S.38 of the land (amendment ) acct 2004,

Family land means land on which is situated the ordinary residence of the family and from which the family derives sustenance and which the family freely and voluntarily agrees shall be treated as above and which is treated as family land in accordance with the culture, customs, traditions or religion of the family.

Restrictions on the transfer of family land.

Aspouse or any or person shall not sell, exchange or transfer, pledge, mortgage, giuve away intervivos or enter into any other transaction in respect of family land except with prior consent of his spouse,

N.B: A spouse is a wife/husband of a legally subsisting marriage.

A transaction entered into withoutconsent of the spouse iz void abnitio or can be set aside.

NON-CITIZENS

A non-citizen can only hold land under leasehold tenureof not more than 99yrs..

N.B: Other tenures are not applicable to non-citizens.

MORTGAGE

A mortgage entered into without the consent of the other spouse is void.

A spouse can lodge/register a caveat on the family land if he is not sure of his/her position to protect his/her interest in the land.

N.B: The caveat has to be registered before the mortgage.

FAMILY LAW AND DOMESTIC RELATIONS.

WILLS.

A will is a written document made by a person showing how his affairs will be managed after his death.

Requirements of a valid will.

a) It must be the last will made before a person's death.

b) It must be made by a person without force, undue influence or coercion.

c) The property distributed must belong to the person making the will.

d) It must have a date when it was made.

e) It must be signed by the testator'

f) It must be witnessed'

Who may make a will?

a) A person above 21yrs.

b) A person of sound mind.

N.B: a person of unsound mind/mad/influenced by alcohol cannot make a valid will at that particular time.

A fisherman/soldier can make a will on attaining 18yrs, if going to war or at sea.

How is a will made?

A will has to be in writing except the one made by a fish monger or a soldier at sea.

Contents of a will.

a) Name of the testator, place of residence and origin.

b) Property of the testator and where it is located'

c) Beneficiaries.

d) Distributed property, nature of distribution, and the beneficiaries of the property.

e) Guardians of the minors.

f) Executor/executrix of the property.

g) Burial wishes'

h) Debts, value of the debts, debtors and creditors'

i) Any other persons the testator wishes to bequeath property to.

j) Conditions on the excecutrix / excecutor.

N.B: All dependants must be provided for and where they haven't, reasons why must be clearly stated.

Where should a will be kept for safe custody?

a) High Court registrar.

b) Administrator General's office.

c) Bank or Microfinance institution.

d) Advocate/lawyer's office.

e) Best friend.

f) Religious leader.

INTESTATE SUCCESSION.

The beneficiaries of an intestate's estate are;

A wife/husband of a valid marriage in Uganda.

Parties must have stayed together for atleast 6months before the intestate's death.

Children ; -children of the deceased.

-dependant children.

Dependant relatives.

Heir (customary or legal).

DISTRIBUTION OF THE INTESTATE'S PROPERTY.

The court divides the property in accordance with the following ;

a) The wife/wives of the deceased -15%

b) Children of minority and majority -75%

c) Customary/legal heir -1%

d) Dependant relatives -9%

N.B: The above are some of the common problems that arise.

Case note on the law of succession

CONSTITUTIONAL PETITITONS NOS. 13 /05 /& 05 /06

BETWEEN

15 LAW & ADVOCACY FOR WOMEN IN UGANDA ::::::::::: PETITIONER

AND

ATTORNEY GENERAL OF UGANDA :::::::::::::::::: RESPONDENT

JUDGEMENT OF THE COURT
The petitioner, an association that advocates for women rights in Uganda, filed two separate petitions that were later consolidated. The petitions were brought under Article 137 (3) of the Constitution and The Constitutional Court ( Petitions and References) Rules, 2005 ( S.I. No. 91 / 05) challenging the Constitutionality of some sections of the Penal Code Act and 2n (i) and (ii), 14, 15, 23, 26, 29, 43, 44, of the Succession Act. The petitioner

alleged that the above impugned provisions are contrary to Articles 20, 21, 24, 26, 31, 33, and 44 of the Constitution.

It was held that:

The concession by the respondent in respect of the impugned provisions of the Succession Act lead to the inevitable finding that the said provisions are inconsistent with the stated provisions of the Constitution and are therefore void. Consequently, we answer the second issue in affirmative.

The petitioner is entitled to the following declarations:-

1. Section 154 of the Penal Code Act is inconsistent with article 20 (1) (2) (3) 24, 31 (1), 33 (6) of the Constitution and it is null and void.

2. Section 2 👎 (i) and (ii), 14,15, 26, 27, 29, 43, 44 of the Succession Act and Rules 1, 7, 8, and 9 of the Second Schedule of the same Act are inconsistent with and contravene Articles 21 (1) (2) (3) 31, 33(6)of the Constitution and they are null and void.

3. Each party will bare its own costs.

MARRIAGE IN UGANDA

Laws applicable

a) Marriage Act, Cap 251

b) Customary Marriages (Registrations) Act, Cap 248

c) Marriage & Divorce of Mohammedans Act, Cap 252

d) Marriage of Africans Act, Cap 253

e) Hindu marriage & Divorce, Cap 250

f) The 1995 Constitution of Uganda

TYPES OF MARRIAGE IN UGANDA

a) Church Marriage

b) Customary Marriage

c) Civil Marriage

d) Islamic Marriage

e) Hindu Marriage

CASE NOTE ON DISSOLUTION OF MARRIAGE

Steven. M Versus Deidre Divorce Cause No.23 of 2008

His Lordship Justice Eldad Mwangusya asserted that:

The upbringing of the child is a responsibility of both parents who are both gainfully employed. There is no equitable formula that would make each parent contribute according to his or her financial capacity. It is incumbent on the parents of this to ensure that he does not lack the necessities of a growing childlike clothes and even play things. It is only then that he will not feel the effects of estrangement between his parents for which he is not responsible. A parent need not be told that a child requires food, clothes and school fees all of which should be a matter of course.

The issue of property

The court also relied on the following quotation by His Lordship Twinomujuni, J A in Julius Rwabinumi Versus Hope Bahimbisomwe (Court of Apeal in civil Appeal No. 30 of 2007 (Unreported)

"I do not see why the issue of contribution to the property should arise at all. The property is theirs period. The 1995 Constitution puts into reality the equality in marriage principle contained in Genesis Chapter 2 versus 24 (Supra) and what those who choose to contract marriages under the Marriage Act undertake to practice. My conclusion is that Matrimonial property is joint property between husband and wife and should be shared equally in divorce irrespective of who paid for what and how much was paid. Very often, the woman will find a husband who is already wealthy and has a lot of property. If that property belongs to the man at the time of exchanging the vows in church, that property becomes joint property. These days it is normal for a woman to come into marriage with wealth such as houses, Land, Cows and other properties from her own sweat, her parents, relatives and friends. If at the time the church vows they are solely owned by the woman, they become joint matrimonial property. From then onwards the fact that they are registered in the names of the wife or the husband is not relevant. It belongs to both. If the parties do not exclude any property expressly or impliedly before the marriage, the joint trust principle will be deemed to apply to all property belonging to the parties to the marriage." (Emphasis mine)

This case seems to bring to light the legality of pre – nuptial and post – nuptial agreements in that parties can enter into the foregoing agreements before undergoing a marriage ceremony. There is nothing wrong with parties entering into these agreements to protect their property from being taken over by "target wives/husbands."

In contrast read the case of

UGANDA ASSOCIATION OF WOMEN LAWYERS, DORA BYAMUKAMA, JACQUELINE ASIIMWE MWESIGE, PETER DDUNGU MATOVU, JOE OLOKA ONYANGO AND PHILIPS KARUGABA VERSUS THE ATTORNEY GENERAL (CONSTITUTIONAL PETITION NO 2 of 2003)

HON. LADY JUSTICE C.N.B. KITUMBA, JA

It was held that:

Sections 4(1) and 2, 5, 21, 22, 23, 24 and 26 of the Divorce Act discriminate on the basis of sex, this brings them in conflict with articles 21(1), 2, 31(1) and 33(1) and 6 of the Constitution all of which provide against discrimination on the basis of sex. 1). Petition allowed. The impugned sections of the Divorce Act declared inconsistent. 3). No order is made as to costs, since the petitioners prayed so.

Therefore both spouses must contribute to the property acquired during the lifetime of the marriage except if the other partner gives it to you voluntarily. This is because according to the constitution, all parties / sexes (male and female) are equal before the law.

The author is an advocate of the High Court and other courts of Judicature and practicing law at M.Nassali & Co. Advocates.

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Allaah gives the best to those who leave the choice to Him."And if Allah touches you with harm, none can remove it but He, and if He touches you with good, then He is Able to do all things." (6:17)

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