{UAH} Understanding mailo land and dual ownership

Written by GEOFFREY MULINDWA

The Mailo land tenure system is one of the most complex among Uganda's four tenure system.

Its ambiguity leaves many people mistaking it for the Freehold tenure system. While these two tenure systems have some similarities, they are by far different. Mailo land has its origins in the 1900 agreement which was signed between the regents of Buganda, acting on behalf of the young Sir Daudi Chwa, and Sir Harry Johnson on behalf of the queen of England.

This agreement divided the 19,600 square miles that form Buganda kingdom among different entities and individuals. These included the Kabaka (king), regents, chiefs, central government, key offices and other individuals who were found fit.

Before we delve much into the distribution of this land, let us first understand Uganda's four tenure systems. The first one is customary land tenure; this is land that is held basing on particular customs, traditions and norms of people. It is often communal. It is commonly owned by indigenous communities in Uganda.

Such land is found in the northern and eastern parts of the country. Freehold tenure system; under this system, one owns land for eternity and he/she is entitled to a certificate of title. In Uganda, this is the most favoured tenure.

Leasehold tenure; this is where a lessee has exclusive possession of land through an agreement with the landlord. The agreement is for a specific period of time subject to premium and ground rent. Mailo land tenure; This is the most misunderstood tenure in Uganda simply because it creates dual ownership over the same piece of land.

Mailo land owners have the same rights as freehold land owners, but they must respect the rights of lawful and bonafide occupants and Kibanja holders to occupy and live on the land. (Section 3 (4) of the Land Act). Buganda Land Board operations are largely based on Mailo land and there have been some divergent voices over this land because many people find it hard to understand how Mailo land works.

Buganda's land falls in the category of Official Mailo land which means it cannot be sold entirely but can accommodate bibanja holders as well as lease holders. Hereunder are a few descriptions of key terms used on this land tenure. Kibanja holders; Persons who had settled on the land in Buganda as customary tenants with the consent of the Mailo land owner under the Busuulu and Envujjo Law, 1928.

A Kibanja holder holds an equitable interest in mailo land which can be transferred with consent of a registered owner. It is worth noting that kibanja is peculiar to Mailo land found mostly in Buganda Bonafide occupant; A Bonafide occupant is one who, before the coming into force of the Constitution 1995—

(a) Had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or

(b) Had been settled on land by the Government or an agent of the Government, which may include a local authority. Lawful occupant; This means a person who entered the land with the consent of the registered owner, and includes a purchaser.

For this article we will go with this definition though a lawful occupant is also one who occupies land by virtue of the repealed— (i) Busuulu and Envujjo Law of 1928; (ii) Toro Landlord and Tenant Law of 1937;(iii) Ankole Landlord and Tenant Law of 1937.

Tenant by occupancy; These include bonafide and lawful tenants. They are considered tenants of the registered owner of the land which they occupy and are required to pay annual ground rent. (Sections 1 and 31 of the Land Act).

Most people in Buganda are tenants by occupancy and are required to pay Busuulu. a. Rights and Duties of Tenants by Occupancy and Kibanja Holders

1. Tenants by occupancy have a right to occupy land under the laws of Uganda.

2. They have the right to enter transactions with respect to the land they occupy with the consent of the registered land owner, which should not be denied on unreasonable grounds. (Section 34 of the Land Act).

3. The law strictly requires tenants by occupancy to give the landowner first option where they wish to sell their interest and vice versa where a land owner wants to sell the land. This must be on a willing buyer willing seller basis. (Section 35 of the Land Act).

4. Where a tenant by occupancy or Kibanja holder sells their interest without giving the land owner first option, he or she commits an offence and loses the right to occupy the land. (Land (Amendment) Act 2010). 

5. A person who buys registered land which has tenants by occupancy must respect and observe their rights.

6. He or she must not evict them except if he or she obtains a court order of eviction for non-payment of the annual nominal ground rent. (Section 32A of the Land Act as amended in 2010).

7. Similarly, any person who buys registered land in Buganda must observe the rights of Kibanja holders on the land.

8. Tenants by occupancy and Kibanja holders can also register a caveat at the Registry of Lands where they have reason to suspect that the registered landowner intends to enter a land transaction which will affect their rights and interests. (Section 139 of the Registration of Titles Act).

One can only secure their land by knowing the tenure he or she is under, his duties and responsibilities on the said piece of land.

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"When a man is stung by a bee, he doesn't set off to destroy all beehives"

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