The Procedure of Mailo Land Conversion to Freehold And When to Raise an Issue Regarding the Cause of Action? An Analysis of Zalwango & 2 Others v Ladha & 8 Others
- Lawpointuganda
- Jul 7, 2024
- 4 min read
Overview
The Principal Judge ruled on the issue of when to raise a lack of cause of action, holding that it only applies when a plaint fails to disclose a cause of action under Order 7 Rule 11(a) of the Civil Procedure Rules.
The court relied on Kapeka Coffee Works Ltd v NPART (CACA No. 3/2000) and determined that a cause of action is evaluated solely based on the plaint and its annexures, without considering external evidence.
Additionally, the court validated the conversion of the suit land from mailo to freehold tenure, finding it was done legally and properly. The court also ordered the confiscation of the original mailo title, which was in the plaintiffs' possession, and recommended a criminal investigation into the matter.
He further stated that under the law of Agency, where a person acts for an undisclosed or unidentified principal, the Agent is personally liable.
Brief facts
The plaintiffs brought this suit before court for a declaration that the land in issue belongs to the estate of the late Festo Banja and the subsequent plots represented by the defendants were fraudulently created, fake, and non-existent. The defendants denied all the allegations.
Issues
1. Whether the suit land is held under mailo or freehold
2. Whether there was any fraud committed in the truncations affecting the suit land
3. Whether the transferees who are the defendants are bonafide purchasers for value 4. What remedies are available to the parties
Representation
The Plaintiffs were jointly represented by - M/s Allan & Partners Advocates and M/s Arthur-Arutha and Co. Advocates while M/s Lwere, Lwanyanga & Company Advocates and M/s Musoke & Marzug Advocates represented the defendants and Commissioner Land Registration was represented by Attorney General
Holding
The court held that when the plaint raises concerns under Order 7 Rule 11(a) of the Civil Procedure Rules, which empowers the court to reject a plaint that fails to disclose a cause of action.
Citing the decision of the Court of Appeal in Kapeka Coffee Works Ltd v NPART CACA No. 3/2000 which has established that in determining whether a plaint discloses a cause of action, the court must solely consider the plaint and its annexures, if any, and no other evidence.
This issue would have been crucial if the rejection of the plaint for failure to disclose a cause of action was in question. Therefore, the cause of action is determined exclusively by examining the plaint or its annexures, without considering any other evidence.
In the same decision, the Principal Judge observed that the suit land was rightly converted to a freehold tenure. The first defendant was the lawful proprietor of the suit land. The 2nd, 3 rd , 5 th , and 6th defendants had acquired good titles.
And lastly the Commissioner Land registration had acted legally when it subdivided the suit land.
Rationale
The question of conversion of mailo tenure to freehold tenure was clearly expounded (and I agree) by Hon. Lady Justice Prof. Lilian Tibatemwa Ekirikubinza JSC in the case of Emmanuel Lukwajju verus Kyaggwe Coffee Curing Estate Ltd and Commissioner Land Registration Civil Appeal No.2 of 2016 thus, … following the 1900 Uganda (Buganda) Agreement, the Baganda notable and nobles who were allotted land in square miles discovered it’s economic value and started selling it off. Some of these sales were made to non-natives before passing of the 1906 Land Transfer Ordinance and the 1908 Land law.
The learned justice gave a detailed historical background as analysed below
The Land Transfer Ordinance 1906 prohibited natives to transfer land (whether in perpetuity or otherwise) to non- natives without consent of the Governor.” In the instant case, the Governor granted freehold tenure of the suit land.
The Land Transfer Ordinance 1906 prohibited natives to transfer land (whether in perpetuity or otherwise) to non-natives without the consent of the Governor. So transfer of mailo land to non-natives was done prior to 1906 or, if done after that date, with the consent of the Governor and Lukiiko. The same was expounded by Henry West in his book The Mailo System in Buganda at Page 17.
According to Morris & Read (1966) the radical title of all land in Uganda was vested in the Crown, save for that held under Mailo tenure in Buganda. Some freeholds were granted to Africans who were holding such land customary tenure. And in 1916 the Secretary of State decreed that there would be no further alienation in freehold to non-Africans.
This position is confirmed in the Annual Colonial reports for Uganda Report for 1910-11 pages 20-21. It stated that following the Lukiiko consent to a native's land sale and payment of the purchase price, the land would then be transferred to the Governor. After fulfilment of the development conditions by the purchaser, then the Governor would grant the land in freehold to the non-native purchaser.
The colonial policy and practice was to allow negotiations of sale and purchase between natives (Mailo owners) and non-Africans purchasers particularly in Buganda, Tooro and Ankole where commercial agriculture was being practiced for growing rubber, tea and coffee. Upon purchase, the natives would transfer the mailo interest to the Governor which transfers were registered as mailo documents,
The registration of the said mailo document would cause the closure of the said mailo register for that particular land. Thereafter, the Governor would grant the land in freehold to the commercial European or Asian farmer who purchased that particular land from the native owner.
The Land Transfer Ordinance 1906 especially section 2 prohibited the transfer of mailo to non-Africans without the consent of the Governor. When the consent was secured, the Governor would issue an indenture in favour of the non-native purchaser granting a freehold thereof. A freehold register would then be issued to the purchaser bearing the Grant number endorsed on the indenture.
When the steps above were completed, the mailo register in respect of the land would be closed and freehold register opened.
In regards to the case at hand, the principal justice opined that, the conversion was rightly done with the laws governing land conveyance at that time. Despite the claims from the plaintiffs that there was no proof that the late Festo Banja sold the suit land to the governor.
Court further held that the estate of the late Festo Banja is estopped by lapse of time.
Conclusion
The suit was dismissed with all costs to the defendants.
The Agent was held liable fictitious acts of his principal
By
Waguma Mukisa James
Second year student of law at Uganda Christian University
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