Bibanja holders score big win over landlords

Residents express their dissatisfaction after an alleged land grabber razed their gardens in Wakiso District in December 2023. Photo/ Busein Samilu. 

What you need to know:

  • The Attorney General has clarified that anyone who has legally stayed on a piece of land for 12 years uncontested with clear intentions of acquiring it can apply to the Registrar of Titles in the Lands ministry for the title.

Land owners who have not showed up for 12 years risk losing their land to both registered and unregistered occupants with a certificate of title, the government has confirmed.

A common law doctrine, which is applicable in Uganda’s land tenure system, has been used to unlock this possibility. The doctrine—adverse possession—is the legal process whereby a non-owner occupant of a piece of land gains title and ownership of that land after a certain period of time.

Under the adverse possession process that the Attorney General (AG) green-lit, bona fide occupants (Bibanja holders) and their colleagues on leasehold land can now apply for the title.

Under this arrangement, anyone who has legally stayed on the land for 12 years uncontested with clear intentions of acquiring it will apply to the Registrar of Titles in the Lands ministry for the title. Applicants get titles upon clearance.

The 19-page guidance—from AG Kiryowa Kiwanuka to the Lands minister Judith Nabakooba—stipulates the steps such legal occupants can go through to fully acquire a title. After using the Black’s Law Dictionary to define adverse possession, AG Kiwanuka proceeds to carefully lay out for Minister Nabakooba how tenants qualify to receive a title. Besides staying on the land for a dozen years uncontested, the tenant must also have had interests that are hostile to those of the possessor.

Mr Kiwanuka listed multiple sections in the Limitation Act Cap 80 and Registration of Titles Act (RTA) Cap 230 to detail the path to title acquisition.

His counsel, contained in a March 18 letter, followed an inquiry Ms Nabakooba made last December. The Lands minister sought legal guidance on acquisition of land titles under the adverse possession and closure of Blue pages.

On May 20, the Lands ministry confirmed receiving the legal guidance.

The Lands ministry spokesperson, Mr Dennis Obbo, confirmed receiving the guidance which bureaucrats are scrutinising to get the implementation.

“The guidance came to our political leadership and was passed to the technical officials where a team of technocrats, led by the Registrar of Titles, have been constituted,” Mr Obbo revealed.

He added that the team will, after review, “come out with the roadmap of implementation and upon completion, we shall inform the country how it will be handled.”

Ms Nabakooba wrote to Mr Kiwanuka last December after discovering that the current trend of land fraud in the country is mainly occasioned by two issues: tripartite aspects of absentee landlords and presence of land on Blue pages without land titles. The loopholes created by the two issues, the Lands minister noted, are repeatedly exploited by land speculators, who allegedly use them to grab land of absentee landlords and as well carry out illegal evictions.

The Lands minister further revealed that the fraudsters, upon learning about the land with absentee landlords, have been fronting fraudulently-made documents to graduate land from the Blue page to the White page. The fake documents used include Land Purchase Agreements; Wills; Gift Deeds; Letters of Administration; or Probate Grants. These, Ms Nabakooba disclosed, are used to pave the way for registration and transfer processes of the land.

The minister said fraudsters also use the ‘principle of Bona fide purchaser for value without notice of fraud’ to defeat justice and secure pieces of land.

“These are usually done having identified that the tenants on the land do not know their true landlords, or registered proprietors and having been possessing the land for so long and are vulnerable and can easily be pushed off when one introduces him/herself with a certificate of title which is held as conclusive evidence that the holder of the land title is the owner of the land,” the minister’s letter reads in part.

“Fictitious beneficiaries are created for claim of the land that has stayed for long without update of status and there is no obligation on the Land Registry officials to probe registrable instruments lodged for registration as to how they were procured as in most cases these follow legal processes before lodgement for registration,” it adds.

How to acquire titles
The AG disclosed that the land can be acquired in three ways, including registered, unregistered and leasehold. Mr Kiwanuka noted that one can under adverse possession arrangement, apply for the title through the procedures laid out under Sections 78 to 91 of the Registration of Titles Act (RTA) Cap 230.

Section 78 of the RTA qualifies the applicant to be an adverse possessor. The section reads thus: “A person who claims that he or she has acquired a title by possession to land registered under this Act may apply to the registrar for an order vesting the land in him or her for an estate in fee simple or the other estate claimed.”

During application, the applicant must, under Section 79, submit a full application containing different particulars. The application must be signed by the applicant, attested by one of the people mentioned in Section 147 of the Act, supported by a statutory declaration and accompanied by a survey plan.

According to Section 147, the attester must be: any government official; a judge; an advocate, a notary public; a bank manager; a minister of religion authorised to celebrate marriages within Uganda; a medical practitioner; any literate chief of the rank of a sub-county (Gombolola) chief or a corresponding or higher rank; or any other person authorised in that behalf by the minister by statutory instrument.

“Where an application for a title by adverse possession is lodged, Section 80 of the RTA grants the Registrar of Titles discretionary powers to reject the application...Where the Registrar does not reject the application, the Registrar proceeds to advertise a notice of the application as set out under Section 81 of the RTA,” AG Kiwanuka wrote.

The Registrar, at the expense of the applicant, will advertise the Notice at least once in the Gazette or give the Notice to the person and every person appearing by the Register Book to have any estate or interest in the land or in any encumbrances notified on the title of the land. If every step is cleared, the old title is then cancelled and the new applicant gets their title.

Unregistered land
Like on registered land, occupants of non-registered land for 12 years and above can under Sections 16 and 29 of the Limitation Act Cap 80 apply for a certificate of title under the same procedure as a registered proprietor because the lapse of the limitation period has the effect of terminating the interest of the unregistered owner.

The AG further quoted section 29 of the Act, which clears such occupants to apply for the titles to the Registrar of Titles.

Leasehold land
Mr Kiwanuka said acquisition of certificate of title over leasehold land under adverse possession will arise in respect of the reversionary interest in the land. The applicant, he said, must be very careful and sure that the person whom they are paying rent to, is the right one.

“It is important to note that in order to establish adverse possession in regard to leasehold interest, there must be proof of no permissive use of the land to the detriment of the owner, which is actual, open and exclusive and adverse for the statutory 12-year period described,” he said.

He added: “The procedure of acquisition of title where land has been leased is also similar to that of registered land. A person who satisfies the conditions for one to be an adverse possessor of leasehold land can apply to the Registrar for a certificate of title to the land in question.”

The sanctions
Lawyer Elias Nalukoola of Nalukoola & Co Advocates expressed fear over this process, which he said is tricky because it might be used even against landlords who are present.

“What if I buy my land and travel to the UK and you come around as a kibanja holder and after years, you claim I am not known? The bad thing is that this government has chosen to side with bibanja holders and left out the landlords. That is why even the interpretation of the kibanja holder is not clear. It says someone who occupied the land before coming into force the 1995 Constitution but it has been abused,” he reasoned.

The AG’s guidance came to light a few days after Mr Sam Mayanja, the junior Lands minister, concluded different locus visits in Mukono Municipality. During the visits, Mr Mayanja settled different landlord-tenant disputes in villages of Kirangira, Nakoosi, Namukonkomi, and Kimwanyi.

Ms Nabakooba also asked the AG to guide on legal implications of removing the Blue prints, which she said provide loopholes that enable easy penetration by fraudsters. In her letter, the minister detailed a number of pain points occasioned by the Blue prints; “although they help to provide historical background to show that someone owned that un-ascertained/surveyed piece of land.”

AG Kiwanuka described a Blue page as the original registry copy of un-surveyed and un-ascertained Mailo land, which when surveyed and ascertained is graduated to a White page.

“The Blue pages are valid certificates of title and can be converted with White pages [of course if there exists no adverse claims to that interest] and subject to the Laws of Limitation],” he guided.