Makerere University Again Loses Bid to Reclaim Katanga Land

Makerere University has once again lost a legal battle to reclaim its land in the Katanga informal settlement, Kampala. The High Court, Land Division, dismissed the university's suit (HCCS No. 1051 of 2021) against Daniel Walugembe and Abdu Ssekajja, ruling it an abuse of court process and *res judicata*. Justice Samuel Emokor held that Makerere was attempting to re-litigate issues already determined in a 2015 High Court judgment, which recognized bibanja holders as bona fide occupants, while simultaneously pursuing an appeal against that very decision in the Court of Appeal. This ruling reinforces the legal protections afforded to lawful and bona fide occupants under Uganda's land tenure system and cautions against repetitive litigation aimed at circumventing established judicial pronouncements.

The protracted land dispute between Makerere University and thousands of bibanja holders in the Katanga informal settlement has seen another significant legal development. The Land Division of the High Court in Kampala recently dismissed a suit filed by Makerere University, seeking to evict occupants and declare the absence of kibanja interests on the contested land. This decision marks a critical moment in a long-running saga, underscoring the judiciary's stance on the principles of *res judicata* and abuse of court process.

The High Court, presided over by Justice Samuel Emokor, found that Makerere University's action amounted to an attempt to "fish on two fronts" by pursuing a fresh case in the High Court while an appeal concerning the same subject matter was pending before the Court of Appeal. The ruling not only dismissed the university's suit but also ordered it to pay legal costs to the defendants, Daniel Walugembe and Abdu Ssekajja. This judgment has profound implications for institutional landowners and bibanja holders across Uganda, particularly concerning the enforceability of occupancy rights and the finality of judicial decisions.

Uganda's land tenure system is complex, recognizing four main types: customary, freehold, mailo, and leasehold, as enshrined in Article 237 of the 1995 Constitution. The Katanga dispute primarily involves the mailo land system, prevalent in the Buganda region, where a registered owner holds the title, but the land may be occupied by "lawful or bona fide" tenants, commonly known as bibanja holders. These bibanja holders possess recognized user rights and are protected by law from arbitrary eviction, provided they pay a nominal annual ground rent (busuulu).

The legal protection for bibanja holders has historical roots, notably the Busuulu and Envujjo Law of 1928, which conferred legal status and hereditary security of tenure to peasants, preventing their eviction without a court order. The Land Act, Cap 227, further elaborates on these rights, defining "lawful occupants" as those who settled on land with the owner's permission or by virtue of repealed laws, and "bona fide occupants" as those who occupied land for a specified period without challenge. The 1995 Constitution and the Land Act Cap 227 aim to restore and secure the tenure of bibanja holders, granting them security of occupancy.

The specific land in Katanga Valley has been the subject of litigation for over two decades. A landmark High Court judgment in 2015, delivered by then-Justice Bart Katureebe Owiny-Dollo, recognized Jonathan Yosamu Masembe, Bulasio Buyisi, George Kalimu, and Samalie Nambogga, along with their licensees, as bona fide occupants of the Katanga Valley land. Makerere University, as the registered proprietor, has consistently challenged these occupancy rights, leading to multiple legal proceedings, including the current appeal pending in the Court of Appeal.

The recent High Court decision in *Makerere University v. Daniel Walugembe and Abdu Ssekajja* (HCCS No. 1051 of 2021) hinged on two critical legal doctrines: abuse of court process and *res judicata*. Justice Samuel Emokor found that Makerere University's filing of a new suit in the High Court, seeking declarations that no kibanja interest existed on the land, while simultaneously appealing the 2015 judgment that affirmed such interests, constituted an abuse of court process. The judge emphasized that allowing such parallel litigation would lead to an "absurdity" and the risk of contradictory orders, thereby bringing the judiciary into disrepute.

The doctrine of *res judicata* prevents the re-litigation of issues that have already been conclusively determined by a competent court. The High Court noted that the core question of whether kibanja interests existed on the Katanga Valley land had been settled by the 2015 judgment. Makerere's argument that the current applicants (Walugembe and Ssekajja) were not part of the original 2000 case was dismissed, with Justice Emokor observing that despite changes in applicant names or plot registration numbers over time, the fundamental contention remained over the same piece of land in Katanga Valley. This highlights the court's focus on the substantive issues and the underlying property, rather than procedural technicalities.

This ruling reinforces the robust protection afforded to lawful and bona fide occupants under the Land Act, Cap 227, and the 1995 Constitution. Section 29(1) of the Land Act defines lawful occupants, including those under the Busuulu and Envujjo Law of 1928, and bona fide occupants as those who occupied land for twelve years or more before the 1995 Constitution. The court's consistent recognition of these rights, even against a prominent institution like Makerere University, signals a strong judicial commitment to preventing illegal evictions and upholding security of tenure for bibanja holders.

The principle of abuse of court process, as applied here, serves as a crucial safeguard against vexatious and oppressive litigation. It prevents parties from using the court system to harass opponents or to gain an unfair advantage by pursuing multiple actions on the same subject matter. The court's decision to award costs against Makerere University further underscores the seriousness with which such abuses are viewed, aiming to deter similar conduct in the future.

While the 2015 judgment recognized specific individuals, the current ruling extends protection to their successors in title, such as Walugembe, whose interests emanated from those previously declared bona fide occupants. This continuity of rights is vital for the stability of land tenure under the mailo system, where equitable interests are often transferred through inheritance or assignment. The ongoing appeal by Makerere University in the Court of Appeal means the ultimate legal position on the 2015 judgment is yet to be finalized, but the High Court's dismissal of the new suit prevents any immediate undermining of the bibanja holders' established rights.

The High Court's dismissal of Makerere University's latest attempt to reclaim the Katanga land serves as a powerful reminder of the enduring legal protections for bibanja holders in Uganda. For legal practitioners, this case highlights the critical importance of adhering to the doctrines of *res judicata* and preventing abuse of court process. Litigants, especially institutional ones, must carefully assess the status of ongoing appeals and previous judgments before initiating new proceedings, as courts are increasingly vigilant against attempts to re-litigate settled matters or to "fish on two fronts."

Practitioners advising landowners and occupants in Uganda's complex land tenure system should emphasize thorough due diligence regarding historical occupancy and prior litigation. The ruling reinforces that bona fide and lawful occupants have significant, constitutionally protected rights that cannot be easily extinguished, even by registered proprietors. While Makerere University's appeal at the Court of Appeal remains pending, the current High Court decision solidifies the position of the Katanga residents for the foreseeable future. All eyes will now be on the Court of Appeal for the final determination of the 2015 judgment, which will undoubtedly shape the landscape of land rights for bibanja holders and institutional landowners across Uganda.