Overview The Constitutional Court of Uganda has held that Section 35(1)(a) of the Land Act, which criminalizes tenants by occupancy from assigning their tenancy without the landlord's consent, is constitutional.
Justice Irene Mulyagonja in her lead judgment stated that the provision is a legitimate limitation on the rights of tenants by occupancy, which are not absolute.
The ruling aligns with the 1995 Constitution's prioritization of registered landowners' interests over those of tenants by occupancy. The court also found that the provision does not violate Articles 22(1), 26(1) & (2), and 45 of the Constitution, which protect the right to life, property, and security of tenure.
The decision reaffirms the balance between the rights of tenants by occupancy and registered landowners, ensuring that tenants cannot assign their interests without the landlord's consent.
Brief facts
The petitioners brought this petition challenging the constitutionality of Section 35 (1) (a) of the Land Act, as amended in 2010. This provision makes it an offense for a tenant by occupancy to assign their tenancy without giving the landowner the first option. Failure to do so results in the assignment being invalidated and the tenancy being forfeited to the registered owner.
The petitioners argued that this provision unfairly discriminates against tenants by occupancy, who are mostly poor and vulnerable. They contended that the provision imposes criminal liability on tenants without imposing a similar penalty on landowners who fail to offer tenants the first option to purchase the reversionary interest.
The petitioners also argued that the provision deprives tenants by occupancy of their tenancy without compensation, which violates their constitutional rights. They further contended that the provision exceeds Parliament's mandate under Article 237 of the Constitution, which regulates the relationship between lawful and bona fide occupants and registered owners of land.
The petitioners also sought a declaration that Section 35 (1) (a) of the Land Act, as amended in 2010, is inconsistent with and in contravention of various articles of the Constitution. They also sought an order invalidating the provision and reinstating the rights of tenants by occupancy. Representation.
The petitioners were represented by Mr. Derrick Bazekuketta. On the other hand, the respondent, represented by the office of the Attorney General, was represented by Ms. Claire Kukunda, a Senior State Attorney.
Issues. 1. Whether section 35 (1) (a) of the Land Act, as amended in 2O1O, is inconsistent with and/or in contravention of Article 21(1) and (2) of the Constitution of the Republic of Uganda.
2. Whether section 35 (1) (a) of the Land Act is inconsistent with or in contravention of Articles 22(1), 26(1) & (2) and 45 of the Constitution.
3. Whether section 35 (1) (a) of the Land Act, as amended in 2O1O, is inconsistent with and/or in contravention of Articles 237(8) & (9)(a) and 79(1) of the Constitution of the Republic of Uganda.
Before: Coram: Buteera, DCJ, Mutangula Kibeedi, Mulgagonja, Kihika & Kozibute Kautumi, JJCC Justice Irene Mulyagonja gave the lead judgment.
Resolution of Issue 1
In her lead opinion, Justice Irene Mulyagonja observed that the counsel for the petitioners often referred to tenants by occupancy and bibanja holders as if they held the same interests in land. The judge clarified that
Bibanja holders hold land under customary law, and while their rights are recognized as landowners under the Constitution, security of tenure is only conferred on lawful and bona fide occupants.
The petitioners argued that section 35(1)(a) of the Land Act contradicts the Constitution by criminalizing tenants who assign their tenancy without offering the landowner the first option, without imposing a similar penalty on landowners.
The learned judge emphasized the principle that the Constitution should be read as a whole, maintaining harmony among its provisions. This principle also applies to interpreting statutes.
The judge cited past cases to support the need for a harmonious interpretation and explained that section 35(1)(a) must be interpreted within the context of the entire Land Act. To achieve this, the judge referenced Dewrath Anandi’s five rules for harmonious interpretation of statutes, which include avoiding conflicts between provisions, reconciling differences, and ensuring that no provision is rendered useless.
Relationship between the tenant by occupancy and the landowner.
Justice Irene Mulyagonja opined that,
The relationship between the tenant by occupancy and the landowner, who is, in fact, a landlord, is not regulated solely by section 35(1)(a) of the Land Act. Instead, it is primarily regulated by sections 31 and 34 of the Act, as amended by various land statutes enacted after 1998. For a better understanding of my analysis, I will outline section 31 of the Land Act, as it has been amended since 1998, which now provides for the tenant by occupancy as follows:
Section 31. Tenant by Occupancy
Security of Occupancy: A tenant by occupancy on registered land is granted security of occupancy.
Tenant Definition: Such a tenant is considered a tenant of the registered owner, with terms and conditions specified by the Act.
Ground Rent: The tenant must pay an annual nominal ground rent to the registered owner, determined by the Board with the Minister's approval.
Minister's Decision: The Minister must respond to approval requests within 60 days. If no response is given, approval is assumed.
Nominal Ground Rent: This rent should be reasonable, considering the circumstances, and non-commercial.
Board's Determination: If the Board does not determine the rent within six months, the Minister may set it.
Rent Payment Timeline: Rent must be paid within a year after the Minister's approval or determination.
Appeals: Both tenant and owner can appeal the Board's decision to the land tribunal.
Rent Cap: The maximum annual rent is capped at 1,000 shillings, regardless of the land's area or location.
Non-Payment Consequences: If rent is unpaid for over a year, the owner can issue a notice to the tenant, also notifying the committee. If unpaid after another year, the owner can seek a tribunal order to terminate the tenancy.
Rent Revision: The maximum annual rent can be revised every five years via regulations.
Security of Tenure: Security of tenure is not affected by the absence of a certificate of occupancy for lawful or bona fide occupants.
From the above legal provision, the learned judge emphasized that the security of tenure remains intact regardless of certificate possession.
She further noted that the provisions of section 31(2) of the Land Act make it clear that a tenant by occupancy is required to pay rent. This tenant must pay an annual ground rent to maintain security of tenure, a right guaranteed by section 31(1) of the Act and by Article 237(8) and (9) of the Constitution even before the Land Act was enacted.
When Parliament enacted the Land Act in accordance with Article 237, it set terms and conditions for the relationship between tenants by occupancy and their landlords. These terms have evolved due to amendments in the Land (Amendment) Acts of 2004 and 2010, which are reflected in the current version of section 31.
Additionally, section 34 of the Land Act, as amended, further details the terms and conditions governing transactions involving tenants by occupancy and the registered owners of the land they occupy. Section 34. Transactions with the Tenant by Occupancy
Permissible Transactions: Tenants by occupancy can assign, sublet, or transact their tenancy with the owner's consent.
Inheritance: Tenancy by occupancy can be inherited.
Application for Consent: Before any transaction, the tenant must apply to the landowner for consent.
Owner’s Response: The owner has six weeks (or a prescribed longer time) to grant or refuse consent, with or without conditions.
Appeal Process: If the owner refuses consent, imposes objectionable conditions, or fails to respond, the tenant can appeal to the land tribunal.
Appeal Interpretation: Failure to respond within the prescribed time is deemed a refusal.
Tribunal’s Role: The tribunal can grant consent with or without conditions, refuse consent, or adjourn for further negotiation.
Record Keeping: Copies of all consents must be sent to the recorder for official record-keeping.
Validity of Transactions: Transactions without the required consent are invalid, and the recorder will not record them.
From the above legal provision, the learned judge emphasized that transactions without proper consent are not legally valid and will not be recorded
Justice Irene Mulyagonja opined that section 34(1) of the Land Act mandates that any assignment, sublease, or subdivision of land occupied by a tenant by occupancy must have the landlord's consent. The only exception is the inheritance of the tenancy, as outlined in section 34(3). Failure to obtain consent renders the transaction invalid.
The judge highlighted that section 35 of the Land Act is based on the terms and conditions in sections 31 and 34, as amended in 2004 and 2010. Thus, assessing the constitutionality of section 35(1)(a) requires examining its context within the entire Act, considering both its purpose and effect, as established in the Supreme Court case Attorney General v. Salvatori Abuki.
The judge noted that a tenant's security of tenure is not absolute, as they can be evicted for non-payment of rent under section 32A, added by the 2010 amendment.
Eviction can only occur through a court order and for non-payment of nominal ground rent. The court must consider specific matters before issuing an eviction order, provide at least six months for the tenant to vacate, and can include additional orders for expenses, damages, or compensation. The term "court" refers to those presided over by a Magistrate Grade 1 or a Chief Magistrate.
Clarifying that
Given the fact that the tenant by occupancy is by law supposed to be a paying tenant, it cannot be gainsaid that his or her interest in the land, even where it is supported by a 'certificate of occupancy' issued under section 31 (8) of the Act, is subordinate to that of the registered land owner or his or her landlord.
The tenant by occupancy remains a tenant, not a registered land owner as is the case with a person with a freehold title or mailo title and the holder of a leasehold from a freeholder or a designated authority. His/her tenancy is protected where he/she complies with the terms provided for in sections 31 and 34 of the Land Act.
It is therefore also my opinion that the fact that the landlord does not take action against him/her for non-payment of rent, for whatever reason, does not make the interest of the tenant by occupancy equal to that of the registered owner of the land that he/she occupies.
In essence, a tenant by occupancy has specific rights and protections under the Land Act, but these are contingent on compliance with the law, and their interest in the land is always subordinate to that of the registered owner.
In determining whether section 35 (1) (a) of the Land Act, contravenes or is inconsistent with Article 21 (I) and (2) of the Constitution
Justice Irene Mulyagonja's analysed that the principles of equality and non-discrimination as enshrined in Article 21(1) and (2) of the Constitution, particularly in relation to the Land Act.
Contextualizing the implications of section 35(1)(a) within the broader framework of the Land Act, highlighting its requirement for tenants by occupancy to offer their tenancy assignment to the landlord first, failing which the transaction becomes invalid.
This provision contrasts with section 34(1), which encompasses assignment, subletting, and subdivision, raising questions about why the landlord's consent is prioritized only in the assignment context.
Furthermore, Justice Mulyagonja distinguished between lawful and bona fide occupants under section 29 of the Land Act, noting that both categories derive their rights from the registered owner, unlike customary owners whose rights are separate.
Affirming that this distinction is crucial in understanding the legislative intent to protect historical rights disrupted by past legal reforms, such as the Land Reform Decree of 1975.
Overall, her opinion highlights the constitutional mandate to balance the rights of tenants by occupancy with those of registered landowners, ensuring fairness and legality in land transactions governed by the Land Act.
Moreover, Justice Irene Mulyagonja highlights the hierarchical nature of land rights under Ugandan law, particularly emphasizing the supremacy of registered landowners protected by the Registration of Titles Act (RTA).
Registered owners, whether of freehold, leasehold, or mailo interests, enjoy paramount rights under the law, free from most encumbrances except those specified in their title.
In contrast, tenants by occupancy, while able to register their rights under a certificate of occupancy, hold subordinate rights derived from the registered owner's title. This subordinate status is reinforced by constitutional provisions distinguishing tenure systems like customary, freehold, mailo, and leasehold, with tenants by occupancy not intended to hold ownership akin to customary tenants.
Regarding legal implications, Section 35(1)(a) of the Land Act penalizes tenants by occupancy who attempt to transfer land without the owner's consent, emphasizing their subordinate status. Conversely, Section 35(2) grants these tenants the first option to purchase if the owner intends to sell, balancing the rights between owner and occupant.
Obligations vs Interests
The learned judge emphasized that both tenants by occupancy and registered owners have equal obligations to offer each other the first option to purchase or assign their interests. However, the value of the interests held by tenants by occupancy and registered owners is unequal, with the latter's interest being higher.
She emphasized that the equality in obligations under Article 21(1) of the Constitution, noting that both landlords and tenants by occupancy must give the tenant the first option to purchase the reversionary interest before disposal. Section 35(3)-(7) of the Land Act outlines a detailed process for offering and responding to offers, ensuring transparency and compliance with constitutional principles.
This inequality is intentional and arises from the Constitution and the Land Act, which ranks the rights of tenants by occupancy as subordinate to those of registered owners.
The judge noted that if a tenant by occupancy assigns their tenancy without complying with section 35, the transaction will be illegal and invalid.
Hence implying that the inequality between tenants by occupancy and registered owners is inherent in the land ownership system in Uganda, as established by the Constitution and the Land Act.
The limitation of rights for tenants by occupancy is constitutional
Justice Irene Mulyagonja ruled that the limitation of rights for tenants by occupancy is constitutional, as it is based on the land tenure system established by the Constitution.
Article 43 of the Constitution allows for limitations on protected rights if demonstrably justifiable in a free and democratic society. The Land Act's Section 35(1)(a) limits tenants by occupancy from disposing of their tenancy without the consent of the registered owner, aiming to uphold the hierarchical land tenure system entrenched by Article 237.
The Constitution prioritizes the interests of registered land owners over those of tenants by occupancy, who are considered tenants of the land owner.
The Constitution further established tenants by occupancy as tenants, not owners, ensuring their subservience to registered landowners under Sections 34 and 35 of the Land Act
Section 35(1)(a) seeks to maintain order by obliging tenants by occupancy to respect the rights of landowners. Conversely, Section 35(8) protects tenants' security of tenure, aligning with constitutional and legal provisions.
While critics argue about penalties, Justice Mulyagonja noted that Section 92(5e) provides severe penalties for landowners who unlawfully evict tenants by occupancy, ensuring legal parity in treatment under the law.
While tenants by occupancy have security of tenure, land owners have the right to dispose of their land, with penalties for non-compliance. The judge found that the provision is not discriminatory, as both parties have equal obligations and penalties under the law.
Resolution of Issue 2
Whether section 35 (1) (a) of the Land Act is inconsistent with or in contravention of Articles 22(1), 26(1) & (2) and 45 of the Constitution.
Justice Irene Mulyagonja considered the petitioners' argument that section 35(1)(a) of the Land Act, which extinguishes the occupancy of a tenant by forfeiture and reverts it to the registered owner, violates Articles 22(1) and (2), 26, and 45 of the Constitution.
The petitioners argued that this provision deprives the tenant of their livelihood, which is protected under the right to life. They relied on a Supreme Court of India decision and a previous Ugandan court decision (Salvatori Abuki & Abiga v. Attorney General) that affirmed the right to livelihood as part of the right to life. The judge considered these arguments in relation to Article 22 of the Constitution, which protects the right to life, and the previous court decisions.
The Constitutional Court justice drew a clear distinction between the current petition and the previous court decision in Salvatori Abuki & Abiga v. Attorney General.
Unlike the earlier case, where exclusion from home and livelihood was at stake, the current petition revolves around the transfer of rights and property.
The justice pointed out that assigning tenancy doesn't necessarily mean the tenant will retain their occupancy, and that Section 34(1) of the Land Act allows for assignment, subletting, or subdividing with the landowner's consent. However, Section 35(1)(a) specifically makes it an offense to assign tenancy without giving the landowner the first option.
Assigning tenancy rights to another person constitutes a transfer of those rights, resulting in the tenant's exit from the land.
Justice Irene Mulyagonja opined that assigning tenancy rights to another person constitutes a transfer of those rights, resulting in the tenant's exit from the land. This action does not violate the tenant's right to livelihood.
The justice emphasized that a tenant by occupancy does not own the property and cannot dispose of the right to occupy or transfer the tenancy. The provision was found to be consistent with Article 22(1) of the Constitution, which protects the right to life.
Additionally, the justice addressed concerns regarding Article 26(1) and (2), which pertains to property rights, and determined that the provision does not contravene these constitutional protections.
The justice acknowledged the controversial nature of tenants' rights, noting that they defy the notion of supremacy of title, as legal action is required for eviction.
Section 35(1)(a) of the Land Act, which criminalizes assigning tenancy without the landowner's consent, is inconsistent with Articles 26(1) and (2) of the Constitution.
Justice Irene Mulyagonja considered the petitioners' argument that the provision in section 35(1)(a) of the Land Act, which criminalizes assigning tenancy without the landowner's consent, is inconsistent with Articles 26(1) and (2) of the Constitution.
The petitioners likened the forfeiture resulting from this provision to the compulsory acquisition of land by the government under the Land Acquisition Act, which was previously found to be unconstitutional.
However, the justice distinguished the two scenarios, noting that the Land Acquisition Act involves the government taking possession of land for public purposes, whereas the forfeiture under section 35(1)(a) is a result of the landowner exercising their reversionary interest, not for a public purpose.
Clearly, the registered owner cannot compensate the tenant by occupancy for taking back his land on breach by the tenant of the provisions of section 31 (2) wherein it is declared that he/she is a tenant of the land owner. The tenant by occupancy who assigns his interest contrary to section 35 (1) (a) of the Act also does so in contravention of section 34 (1) of the Act which allows him/her to assign, sublet or subdivide the land only with the consent of the land owner first had and obtained. Since the tenant by occupancy is not a land owner but only has the right to occupy the land with an obligation to pay rent, he/she has no property upon which compensation should be Paid.
Thus finding that section 35 (1) (a) of the Land Act, as amended, is not inconsistent with or in contravention of Article 26 (l) and (2) of the Constitution. Neither is it in contravention of Article 45 of the Constitution.
Resolution of Issue 3
Whether section 35 (1) (a) of the Land Act, as amended in 2010, is inconsistent with and/or in contravention of Articles 237(8) & (91(a) and 79(1) of the Constitution of the Republic of Uganda.
Justice Irene Mulyagonja observed that the Land Act, enacted under Article 237 of the Constitution, regulates the relationship between lawful occupants and registered landowners.
While tenants by occupancy enjoy security of tenure, this right is not absolute and is subject to limitations, such as offering the occupancy to the registered owner before assigning it.
Section 35(1)(a) of the Land Act, which extinguishes the tenancy if this requirement is not met, is a legitimate limitation.
This provision is part of a larger legislative scheme aimed at regulating the relationship between landowners and tenants, as contemplated by the Constitution. The 2010 amendment to the Land Act aimed to enhance the security of occupancy for lawful and bona fide occupants on registered land, in line with the Constitution.
The insertion of section 35 (1) (a) in the 2010 amendment of the Land Act does not stand on its own. The Amendment also introduced a new section 32A, and subsection (1) thereof whose heading is "Lawful or bona fide occupants to be evicted only for non payment of ground rent"
Subsection (1) then goes on to provide that such eviction shall only be upon an order issued by court and only for non-payment of the annual nominal ground rent. The parameters for consideration by the court provided for in section 32 (t) were rendered mandatory by section 32A (2) of the Act.
Moreover, because tenants by occupancy are tenants like any other tenants on registered land, such as lessees and sub lessees, the powers of the lessor that are stipulated in section 103 (b) of the Registration of Titles Act had to be brought to bear upon them as well. section 103 (b) of the RTA
Justice Irene Mulyagonja ruled in favor of the government, stating that the tenant by occupancy's rights are not absolute and can be limited by the need to obtain the landlord's consent before assigning the tenancy.
She dismissed the petition, declaring that Section 35(1)(a) of the Land Act is constitutional and does not violate various articles of the Constitution, including the right to life, property, and security of tenure.
The ruling reaffirms the balance between the rights of tenants by occupancy and those of registered landowners, ensuring that tenants cannot assign their interests without the landlord's consent.
Find full decision https://ulii.org/akn/ug/judgment/ugcc/2024/20/eng@2024-07-04
.jpg)
Comments