Land Division Practice, Trends, Challenges and Recommendations under the theme trends, barriers and aspirations for the role of the law

Land Division Practices, Trends, Challenges and Recommendations

Land disputes in Uganda form the core of the subject matter of litigation in the Courts of law. The Land Division of the High Court in Kampala attracts massive litigation of such disputes ranging from fraudulent acquisition of titles, action to prevent the Commissioner Land Registration from cancelling titles, sale and transfer of land without spousal consent among others.  
The Land division essentially deals with land disputes, save for those that stem from mortgages and administration of estates, which should ordinarily be filed and adjudicated in the Commercial Division and Family Division respectively.  
Despite the being number of suits filed in the said Court, the court is currently staffed with 6 Judges and 3 Deputy Registrars. These bear the responsibility of adjudicating and disposing of the several matters before them inclusive of interlocutory applications.

The Scope of Subject Matter that Ought to be Adjudicated by the Land  Division.
The Land Division is ordinarily supposed to adjudicate land Disputes save for mortgages and disputes relating to administration of estates. However, quite often, litigants and counsel have filed in that court disputes that relate to or emanate from mortgage transactions and administration of estates. At the end of the day, the court is flocked with disputes that ought to be determined by the other relevant divisions.
Sometimes, the disputes are too intertwined that it is difficult for counsel to determine with precession whether to file in family division or the commercial division. In that context, the court will not be resolving purely land disputes but will be bogged down by for example matters relating to lawful administration of estates before venturing into the legality of subsequent acquisitions of land. 
The Land Division will thus be burdened with consideration of a mixture of land related disputes and other issues like spousal consent to Mortgage. double filings in other divisions/courts and the land division e.g., husband in commercial court on a mortgage and wife in land division challenging the transaction.
Sometimes, in the course of the trial, albeit after a number of years dealing with preliminary matters, the court on its own motion or on the application of counsel for one of the parties may be inclined to refer the matter to Commercial or Family Division. Not uncommon that when the file is taken to family and commercial division, those courts may equally decline indicating that it is substantively a land dispute.
The problem could be curtailed at two levels; at the registry at the time of filing. If it could be detected by the registry staff that the matter is not one that should be filed in the Land Division, whoever is filing could be guided to file in an appropriate court. However, the experience with the clerks at the registry is that they appear to be limited to merely receiving and stamping documents. They may not have the capacity to ascertain and determine whether the dispute falls within those that should be before the court or not.
The second stage is at the level of a Registrar who issues summons. This could be another stage at which court can ascertain and discern which matters are for the Land Division. The registrar should be able to decline to issue summons and advise parties to file the suits in the appropriate division. Part of the backlog in the court are not land disputes but commercial and family disputes.

Multiple Suits 
The Challenge of two or more suits pending in the land Division and any other division arising out of the same subject matter. Litigants to a mixed dispute like administration of estates, where the administrator has apparently illegally sold land to third parties sometimes opt to sue the administrators in Family Division and the 3rd Party purchasers in the Land Division. 
The challenge here then becomes; which file should be transferred to which court to avoid conflicting decisions. Again, by the time, the decision is taken on that, time and resources have been wasted.

The Question of Allocation of Files 

The division has set in place a mechanism of allocation of files to various judges which seems to be working. There are still challenges; If one judge is transferred and not readily replaced, transfer of such files to the existing judges appears like loading them with some else uncompleted assignments. There is a growing trend of counsel scrambling to have their matters re-allocated to particulars judges for varying reasons.
Secondly, there is the challenge of allocation of suits arising out of the same subject to varying judges of the division. Challenge is that counsel filing the suits do not notify the Registrars in advance of a pending suit over the same subject in the same court. This would ordinarily enable the Registrars avoid allocating two suits touching the same subject matter to different judicial officers.

The Issue Interlocutory Applications and ambiguous orders
Interlocutory Applications
There is a practice/trend that almost everyone who files a suit feels the need to file interlocutory applications instead of focusing on the suit. This includes applications to change the status quo.

Submissions with lengthy schedules:
Interlocutory temporary injunctions by Registrars and filing of written submissions with length schedules. For example, principles for the grant of temporary injunctions and interim orders are now settled. In some applications, the question of whether or not there is a prima facie case is not debatable. The court should then ask counsel to address them on irreparable injury and balance of convenience only.

Pictures of status quo 
It’s a trend that parties submit pictures of the subject land in dispute. Sometimes, that the pictures should be agreed upon. But these times they will prefer pictures agreed upon by the parties, agreeing on the pictures of the part of the land to submit becomes an issue. People bring varying pictures.
In practice, more time is spent on arguing interlocutory applications than pursing the head suit on its merits. Most time is spent on interlocutory applications – the schedules themselves go beyond the time lines of the suit.

Issuance of ambiguous orders
There is also a challenge of issuance of orders which are ambiguous and are exploited by parties to evict rather than maintain status quo- status quo which isn’t defined. Applicants file applications without pleading and identifying the status quo in their pleadings and affidavits.

Contempt of court orders
Because of these ambiguous orders, e.g. there is a fight/conflict on land, and that, at the time, is the status quo. A judicial officer issues an order maintaining status quo- or because the orders are so vague and ambiguous, any further action taken on the land leads to applications for contempt. 

Sometimes it is prudent for court to visit the locus- which they have done before and ascertain the status before issuing the injunction if upon perusal of the pleadings, there appears to be a dispute on the status quo.
Appeals from interlocutory applications
Relatedly, is a trend of appeals from interlocutory orders and stay of the suit and this has become a bad practice. A party who loses the application always feels the need to appeal it to the Judge to whom the matter is allocated, or a higher court. This and mostly when it is to a higher court, it is coupled with applications to stay proceedings in the suit. Sometimes, the appeal may be genuine but most times, it is the party who doesn’t want the suit to be here or egos of parties and lawyers. In the process, parties tend to lose focus on the main suit and focus on such applications. Most people ride on orders from interlocutory applications and don’t pursue the merits of the suits – now which brings me to summons for directions.

Summons for directions
These I believe were introduced to curtail the practice of parties riding on interlocutory orders and they don’t pursue their cases. The question is, has this trend helped improve the practice at the land division?
Yes, the practice calls for speedy hearings. However, the summons has curtailed mediation and almost rendered it redundant. Normally when parties file the summons for directions, they are given directions to file their JSM, Trial Bundles and Witness statements. If they don’t, the suits are then abated.  
Abatement of suits has proved futile in so far as case backlog is concerned. It only leads to same suit being re-filed, especially where the rule is silent on costs after abatement. When the parties’ matters are abated, they have already read the defence, maybe sometimes the applications weren’t in their favour, they become wiser, file other pleadings, e.t.c 

Joint Scheduling Memorandum:
Where there are no pending applications, summons for directions have introduced a trend of filing the JSM, Trial Bundles and witness statements all at once, then the file is forwarded to the trial judge for hearing. The case management is then left to the lawyers and the parties which has been abused.  

Once the JSM is signed both counsel for the parties, it is adopted on court record. The practice of filing and adopting a Joint Scheduling Memorandum without court interrogating the dispute and narrowing down issues leads to unnecessary length trials, calling of numerous unnecessary witnesses who add no value to the matter at all. Sometimes, the dispute is technical like a survey problem which could be resolved by only technical persons
The practice of casual handling of conferencing by the bar and the bench needs to be reconsidered. Scheduling conference can be used to narrow down disputed.

Time Management by the Bar and the Bench
The practice of judges and registrars fixing several matters at the same time all for hearing is rendering counsel redundant at the court premises. At the end of the day, court conducts one hearing and other matters are adjourned. The practice by some judges to allocate applications like 30 minutes and a hearing one hour all apart or fix matters at different hours is commendable. Another challenge is non-compliance with schedules and directions of the Court, unnecessary adjournments which is one of the causes of increase in case backlog.  

The Locus in quo
The need for locus visitations is now more pertinent in land disputes. The notion of virtual locus hearings is quite problematic, identification of subject matter before issuance of court orders, actual hearings, virtual hearings with numerous documents, it appears preference of a manual system and irregular recording systems – missing records.  

Written by;

Jackline NatukundaAssociate Partner
World's leading management consulting firms, where bold thinking, inspired people and a passion for results come together for extraordinary impact.