( Customary Law ) ( Course Materials ) ( Transitional Justice ) ( Human Rights ) ( Constitutionalism ) ( Land Rights ) ( e-Source Links )   ( Contact Us )   

 

Cases

  1. INTERNATIONAL JURISDICTION
  2. NATIONAL JURISDICTION
    • A. Land Tenure
      • a. Saku v. Seventh Day Adventist Association
      • This case demonstrates the precarious state of Customary Law in Uganda. In a very unprecedented interpretation of the convoluted Land Decree, 1975 by which the military government had by a stroke of the pen nationalised land rights in Uganda, the Supreme Court ignored land rights in existence for centuries and upheld the Decree provisions which rendered void all customary land rights. The Appellant had acquired a fully recognised customary right to land through a voluntary purchase from a rightful holder of customary tenure, albeit subsumed under the Mailo land tenure which the Decree abolished. Having converted the Mailo Land Tenure to a leasehold while preserving all existing customary tenure rights, it is astonishing that the court found that the Appellant was occupying public land. Obviously the leaseholder acquired rights such as were tolerated under the Decree subject to the customary rights of those in occupation. The Appellant bought the land following and fulfilling all the requirements prescribed under customary law and his title was valid, to hold otherwise is a total disregard of customary law which under the Judicature Act is recognised and which courts are bound to apply.

      • b. Mkungu v. Mbui [2000]LLR 4317 (CAK).
        This was a case of the Court of Appeal of Kenya dealing with the effect of the Registered Land Act on customary tenure. In an effort to replace traditional land ownership under customary law by registered titles under the Registered Land Act, the colonial Government had embarked on massive registration of land which had disastrous results in rural areas. Traditionally land passes by inheritance from one generation to another under well established rules whereby the designated "heir" in effect acquires mere stewardship over the land for the benefit of the family. With the registration of land, these "heirs" came forward to register as "owners" resulting in total obliteration of any rights in the land by other family members. The Courts in a stroke of genius constructed the notion of a "trust" to rectify an obvious injustice resulting from the wholesale adoption of a totally alien system of tenure whereby individual land ownership supersedes communal ownership that prevailed for generations. The effort by the Court in this case is in marked contrast with the total disregard of customary land rights by the Supreme Court in Uganda, in Saku's.
    • B. Inheritance
      • a. Ephrahim Pastory - Rights of women to inherit and sell clan land in Tanzania.

    • C. Customary Law
      • a. Kimoto v. Werema - Customary law is like any other law in Tanzania.
      • b. Otieno v. Ougo - Subject of Customary Law - Right to Burial under Customary Rites.
      • c. McCabe v. McCabe - Customary union between Irish man and Ghanaian Woman - whether valid and enforceable in an English court.
    • D. Registration and Enforcement of Foreign Judgments
      • a. Sales v. Uganda, High Court Civil Suit No.91 of 2011 - In a ground breaking judgment by Judge Eldad Mwangusya, the High Court of Uganda ruled that a valid judgment of the Supreme Court of the State of New York, one of the States of the United States of America (Common Law) shall be recognized and enforced in Uganda, applying the International Law doctrine of comity among nations, long a corner stone for the enforcement of foreign judgments at Common Law by English courts. The Common Law is applicable in Uganda as part of the Reception of English Law, preserved in Section 14 of the 1966 Judicature Act...Read more of the summary

        Original Judgement

 

 

African Law Reporter 2002 Design, Maintenance, and Hosting by Netuniq, Inc. All rights reserved