Who is a bona fide occupant of land?
NOW that the land amendment bill has finally been tabled before parliament, it is time to move away from politics and focus our attention on its legal aspects which must be considered by our parliamentarians if we are to get a good law governing our land relations.
By Peter Mulira
NOW that the land amendment bill has finally been tabled before parliament, it is time to move away from politics and focus our attention on its legal aspects which must be considered by our parliamentarians if we are to get a good law governing our land relations.
Such a law must not be lopsided and should satisfy the criteria of equitability and compliance with existing laws if we are to avoid a multiplicity of litigation and prevent unnecessary social discontent. It is against this backdrop that the bill must be considered.
Article 237 (9) of the constitution directed parliament to enact a law (a) regulating the relationship between the lawful or bona fide occupants of land and the registered owners of that land and providing for registrable interests in the land by lawful occupants. Earlier in subsection 8, the constitution ordained that “the lawful or bona fide occupants of mailo land, freehold or leasehold land shall enjoy security of occupancy of the land.â€
This provision resulted in the Land Act, 1998, which defined a “lawful occupant†of land as one who came on it by virtue of the Busuulu and Envujjo Law, 1928, or other similar laws or one who came on the land with the consent of the registered owner or a customary tenant whose identity was not disclosed at the time a lease was granted.
This definition is legally above board but the definition of a bona fide occupant in the Act as a person who occupied any land for 12 or more years before the coming into force of the constitution unchallenged by the owner has caused problems. In simple language “bona fide†means innocent and in good faith but the Act overlooks this and tends to give succour to trespassers and wrongdoers.
Under this definition, a minor whose elders failed to look after his inheritance in land will lose out although he was under a disability to act on his own to challenge a trespasser during the prescribed period. Similarly, the definition protects a village bully who sequestered one’s land by force and through ignorance and fear the rightful owner failed to challenge him. This kind of protection could not have been intended by parliament and it offends a number of existing laws. Under our civil law, an owner of land has the right to evict a trespasser by using minimum force. Additionally, section 78 of the Penal Code provides that “A person who, being in actual possession of land without any colour of right, holds possession of it in a manner likely to cause a breach of the peace, or reasonable apprehension of a breach of peace, against a person entitled by law to the possession of the land commits a misdemeanor termed forcible detainer.â€
The definition of “bona fide occupant†in the Land Act contradicts this provision. The Land Act also creates two competing interests in the same piece of land, one granted through the 12 year period of adverse possession provided for in the Act on the one hand and the interest covered in the mother title under the Registration of Titles Act on the other. Although this Act has been amended to provide for title by possession of land to give effect to the Land Act, the same Act still provides under section 176 that no action of ejectment or recovery of any land shall lie against the person registered as proprietor except in four cases none of which includes title by possession.
The Registration of Titles Act which governs our land registration system was inherited from the Australian system known as the “Torrens system†which is different from the English system under which land can be acquired through prescription or possession of it for 12 or more years unchallenged by the owner. The main difference between our system and the British system a portion of which the Land Act has tried to introduce is that ownership of land is evidenced by possession of a certificate of title whereas in Britain physical possession suffices. This distinction is important because it means that here one cannot acquire land by adverse possession of 12 years as in Britain. In fact section 59 of the Registration of Titles Act emphasises this point by providing that “……. every certificate of title issued under this Act shall be received in all courts as evidence of particulars set forth in the certificate…… and shall be conclusive evidence that the person named in the certificate is the proprietor of the land or interest described in the certificate.â€
Another serious flaw in the Land Act is that it reckons the period of 12 years of adverse possession backwards which offends the principle that legislation cannot confer a right or impose an obligation retrospectively. During the twelve-year period before the constitution came into force there was no law requiring a land owner to challenge a trespasser and as such the Land Act cannot impose this obligation retrospectively.
But even if this was possible there would still remain the problem of what to do with the registered proprietor’s title deed which under our law can only be cancelled for fraud. Indeed the Registration of Titles Act being a special Act takes precedence over the Land Act which means that any inconsistency in the latter Act is rendered null and void meaning that a court of law cannot enforce it.
The constitution required parliament to provide for the acquisition of registrable interests in the land by the occupants and parliament did this by providing in section 39 of the Land Act that a tenant by occupancy could get registrable interests in the land he occupies by way of freehold, mailo, lease or sub-lease. However, to get any of these registrable interests, the land must be surveyed first and stamp duty and registration fees are payable to the government. The law is silent as to who has to meet these costs. In any case what an ordinary person needs is security of tenure and not title deeds.
Again this section overlooks Article 26 of the constitution which provides that no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the taking over is in the interests of defence,public safety, public order, and public health or the law providing for the taking over makes provision for prompt payment of compensation prior to the taking of possession and a right of access to court of law by any person who has an interest or right over the property. This means that a certificate of occupancy cannot be given over the objections of an unwilling owner.
Those of us who are involved in land matters will agree that there is a need for a law to prevent illegal evictions of occupants of land and to regulate the general relationship between land owners and their lawful occupants. Similarly, the idea of giving legal recognition to customary tenancies should be supported.
Unfortunately the animosity we have witnessed in the debate over the bill before parliament has something to do with the failure by parliament to properly interpret the constitutional provisions when passing the Land Act especially as regards the definition of a bona fide occupant of land.
Parliament should take the opportunity offered by the new bill to correct all the mistakes in the Land Act. In particular the definition of a bona fide occupant of land should be revisited and the provisions of the Land Act should be brought in consonance with the other existing laws.
The relationship of land owners and the lawful occupants of their land especially in relation to the size of holdings should be addressed.
The writer is a lawyer
NOW that the land amendment bill has finally been tabled before parliament, it is time to move away from politics and focus our attention on its legal aspects which must be considered by our parliamentarians if we are to get a good law governing our land relations.
Such a law must not be lopsided and should satisfy the criteria of equitability and compliance with existing laws if we are to avoid a multiplicity of litigation and prevent unnecessary social discontent. It is against this backdrop that the bill must be considered.
Article 237 (9) of the constitution directed parliament to enact a law (a) regulating the relationship between the lawful or bona fide occupants of land and the registered owners of that land and providing for registrable interests in the land by lawful occupants. Earlier in subsection 8, the constitution ordained that “the lawful or bona fide occupants of mailo land, freehold or leasehold land shall enjoy security of occupancy of the land.â€
This provision resulted in the Land Act, 1998, which defined a “lawful occupant†of land as one who came on it by virtue of the Busuulu and Envujjo Law, 1928, or other similar laws or one who came on the land with the consent of the registered owner or a customary tenant whose identity was not disclosed at the time a lease was granted.
This definition is legally above board but the definition of a bona fide occupant in the Act as a person who occupied any land for 12 or more years before the coming into force of the constitution unchallenged by the owner has caused problems. In simple language “bona fide†means innocent and in good faith but the Act overlooks this and tends to give succour to trespassers and wrongdoers.
Under this definition, a minor whose elders failed to look after his inheritance in land will lose out although he was under a disability to act on his own to challenge a trespasser during the prescribed period. Similarly, the definition protects a village bully who sequestered one’s land by force and through ignorance and fear the rightful owner failed to challenge him. This kind of protection could not have been intended by parliament and it offends a number of existing laws. Under our civil law, an owner of land has the right to evict a trespasser by using minimum force. Additionally, section 78 of the Penal Code provides that “A person who, being in actual possession of land without any colour of right, holds possession of it in a manner likely to cause a breach of the peace, or reasonable apprehension of a breach of peace, against a person entitled by law to the possession of the land commits a misdemeanor termed forcible detainer.â€
The definition of “bona fide occupant†in the Land Act contradicts this provision. The Land Act also creates two competing interests in the same piece of land, one granted through the 12 year period of adverse possession provided for in the Act on the one hand and the interest covered in the mother title under the Registration of Titles Act on the other. Although this Act has been amended to provide for title by possession of land to give effect to the Land Act, the same Act still provides under section 176 that no action of ejectment or recovery of any land shall lie against the person registered as proprietor except in four cases none of which includes title by possession.
The Registration of Titles Act which governs our land registration system was inherited from the Australian system known as the “Torrens system†which is different from the English system under which land can be acquired through prescription or possession of it for 12 or more years unchallenged by the owner. The main difference between our system and the British system a portion of which the Land Act has tried to introduce is that ownership of land is evidenced by possession of a certificate of title whereas in Britain physical possession suffices. This distinction is important because it means that here one cannot acquire land by adverse possession of 12 years as in Britain. In fact section 59 of the Registration of Titles Act emphasises this point by providing that “……. every certificate of title issued under this Act shall be received in all courts as evidence of particulars set forth in the certificate…… and shall be conclusive evidence that the person named in the certificate is the proprietor of the land or interest described in the certificate.â€
Another serious flaw in the Land Act is that it reckons the period of 12 years of adverse possession backwards which offends the principle that legislation cannot confer a right or impose an obligation retrospectively. During the twelve-year period before the constitution came into force there was no law requiring a land owner to challenge a trespasser and as such the Land Act cannot impose this obligation retrospectively.
But even if this was possible there would still remain the problem of what to do with the registered proprietor’s title deed which under our law can only be cancelled for fraud. Indeed the Registration of Titles Act being a special Act takes precedence over the Land Act which means that any inconsistency in the latter Act is rendered null and void meaning that a court of law cannot enforce it.
The constitution required parliament to provide for the acquisition of registrable interests in the land by the occupants and parliament did this by providing in section 39 of the Land Act that a tenant by occupancy could get registrable interests in the land he occupies by way of freehold, mailo, lease or sub-lease. However, to get any of these registrable interests, the land must be surveyed first and stamp duty and registration fees are payable to the government. The law is silent as to who has to meet these costs. In any case what an ordinary person needs is security of tenure and not title deeds.
Again this section overlooks Article 26 of the constitution which provides that no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the taking over is in the interests of defence,public safety, public order, and public health or the law providing for the taking over makes provision for prompt payment of compensation prior to the taking of possession and a right of access to court of law by any person who has an interest or right over the property. This means that a certificate of occupancy cannot be given over the objections of an unwilling owner.
Those of us who are involved in land matters will agree that there is a need for a law to prevent illegal evictions of occupants of land and to regulate the general relationship between land owners and their lawful occupants. Similarly, the idea of giving legal recognition to customary tenancies should be supported.
Unfortunately the animosity we have witnessed in the debate over the bill before parliament has something to do with the failure by parliament to properly interpret the constitutional provisions when passing the Land Act especially as regards the definition of a bona fide occupant of land.
Parliament should take the opportunity offered by the new bill to correct all the mistakes in the Land Act. In particular the definition of a bona fide occupant of land should be revisited and the provisions of the Land Act should be brought in consonance with the other existing laws.
The relationship of land owners and the lawful occupants of their land especially in relation to the size of holdings should be addressed.
The writer is a lawyer