ARE SERVITUDES OVER LAND ENTIRELY SERVITUDES ONLY OR MEREY

MORE PRESCRIPTIONS OF EQUITABLE INTERESTS IN LAND?

Presented by Group Four

“Paper Presented at Faculty of Law, Internal Seminar on the theme: Of

Easements and Profits ἀ prendre Rights in Property Law in Contemporary
Uganda: Interrogating the Recurring Contestations.”

I. ABSTRACT
In contemporary Uganda, the interplay between statutory property law and
customary practices1 creates a complex landscape for governing public
rights of way, easements, and profits ἀ prendre. This seminar paper explores
the controversies and community practices surrounding these property
rights, focusing on the tensions between formal legal frameworks such as
the 1995 Constitution, the Land Act Cap. 236, and the Land Acquisition Act
Cap. 235 and traditional community practices that often dictate land use
and access. Public rights of way are essential for community mobility and
economic activity though frequently the clash with private land ownership
claims while easements and profits ἀ prendre raise questions of equitable
access and resource exploitation amid rapid urbanization and large-scale
land acquisitions. In Uganda, these servitudes of land are majorly
accustomed to fit the customs of the area as most of the land in Uganda is
undergoing agriculture that is attributed to the customs and practices of an
area.
NAME REG NO INPUT
CALVIN AUMUZA 223-053011-25583 Public rights of way
KAVUMBA
SSENTUME ISAAC 223-053011-25745 easements
KABISWA SHAFIK 223-053011-25641 Controversies and
community practices
PATRICIA PRAISE 223-053011-27228 Community practices
MUGASHO AZZARD 223-053011-25567 Public rights of way
BESTON NUWATAHO 223-053011-25744 easements
ANKUNDA BENWIN 223-053011-25484 profit a prendre
MULETERWA VINOD 223-053011-25653 controversies
MWANDHA

II. SERVITUDES OVER LAND

 What are servitudes over land?

1
Mwebaza, R. (1999). How to Integrate Statutory and Customary Tenure: The Uganda Case. . Available at
https://www.iied.org/7401iied
Servitudes over land in Uganda, are commonly referred to as easements,
legal rights that allow one person to use another's land for specific
purposes, such as access routes, water rights, or utility installations. A
“servitude” in Roman law refers to rights of use of land of another in a
particular manner.
III (a) EASEMENTS
 What are easements?
An easement is a right to use another person's land for a specific purpose 2,
without possessing it, such as rights of way, rights to lay utility lines. An
easement is essentially the legal right of a second party to cross or make
limited use of another person’s property. It does not grant that person
possession of someone else’s land, but it does allow them to use it 3. The
duration of an easement may be perpetual4. A perpetual easement will
continue in operation and effect until terminated by an act of the parties or
by operation of law5.
 What are the different types of easements?
There are two types of easements, a) In gross and b) Appurtenant.
a) In gross is an easement that applies to only a particular person you
are dealing with at a particular moment, to whom you have given
permission or the right to access the property. When that person sells
the property, the future owner is not included in the easement
particulars.
b) Appurtenant is an easement that is attached to the land and therefore
is part of any sale and therefore is part of any sale and thus
transferred to the new owner.
 What are the requirements for establishment of an easement?
In the case of Makumbi & anor v Puran Singh Ghana & anor 6 for an
easement to exist onto a piece of land, there are requirements that must
first be satisfied;

i. There must be in existence a dominant and a servient land

ii. An easement must ‘accommodate’ the dominant land

2
Makumbi & anor v Puran Singh Ghana & anor [1962] EA 331
3
Section 22 of the Land Act
4
Section 23 of the Land Act
5
Section 24 of the Land Act
6
[1962] EA 331
 iii. The dominant and servient owners must be different persons
iv. The right claimed must be capable of forming the subject
matter of a grant.
i. There must be a dominant and servient tenement; The two
portions of land, though separate, must (for easements) be
adjacent and neighboring to each other, and must be two
distinct parcels of land. An easement cannot exist in “gross” this
means that a right cannot be an easement unless it is connected
with a dominant land that belongs to the person to whom the
right is given. The object of granting the right is to benefit
another and not the owner of the land.
ii. The easement must ‘accommodate’ the dominant land; In order
for the easement to be valid the right must confer a benefit on
the dominant land, not simply the person who owns the
dominant land. The servient land must be close to the dominant
land so as to confer a practical benefit on it. In Re: Ellenborough
Park7 where court held that an easement is to exist serving the
interests of the dominant owners.
iii. The dominant and servient owners must be different persons;
Easements are rights that one person has over land owned by
another person; therefore, it is nonsensical to suggest a person
has a right of an easement to the benefit and detriment of their
own land as held in the case of Peckham v Ellison 8. Therefore,
tenants can acquire an easement over the land to which they
have a right of possession yet which is ultimately owned by their
landlord
iv. The right claimed must be capable of forming the subject matter
of a grant; for a right to be able to be put into a grant by deed
there are several sub-requirements to comply with in order to
satisfy this condition9.
 How are easements created?

Easements are created through the following ways,

7
[1956] 3 All ER 667
8
(2000) 79 P & CR 276, CA
9
National Guarantee Manure Co V Donald (1859) 4 H&N 8
 1) An express grant; this an easement by a property owner allowing
another person access to their property. In proving an express grant
of an easement, here a clear, written document, such as a deed or
contract, stating the easement's purpose, location, and parties
involved is to surface. This is thus followed by its registration or
recording with the land registry, as implied by the Registration of
Titles Act10.
2) Implied Grant; Implied easements arise from the circumstances of
land division, without an express agreement. There are two main
types, easement by necessity and easement by prior use.
a) Easement by necessity, this is an easement created by operation of
law because the easement is indispensable to the reasonable use of
nearby property11. In proving an easement of necessity, historical
land records, maps, or witness statements showing the land was
once unified and the current need for access.
b) Easement by Prior Use, this is when two properties were once
under common ownership and the owner used one part for the
benefit of another12, which continues to be necessary for the
enjoyment of the severed property after it's been divided, based on
the expectation of both parties such as access to a garage. In
proving easements by prior use historical photographs, witness
testimonies, or land surveys showing the prior use, like a shared
path used before division of the land.
3) Prescription, Prescriptive easements are acquired through long-term,
open, continuous, and adverse use without the owner's permission,
similar to adverse possession but for non-possessory rights. As per
Nambalu Kintu v Efulaimu Kamira 13 it is suggesting a 20 year period
for prescriptive easements basing on the lost modern grant doctrine.
This easement is proven by witness statements, photographs, or
historical records showing the use over 12 years, like a neighbor
using a path for access without objection.

10
Section 54 of the RTA
11
Shah Champshi Tejshi & ors V Attorney General of Kenya [1959] EA 630 at 638
12
Wheeldon v Burrows [1874-80] All ER Rep 669
13
CA No. 26 of 1973; (1975) HCB 221 (unreported)
N.B. Therefore the grant of a privilege over land by an owner to a person to
be enjoyed independently of any land they own will be a mere license and
not an easement14.

A license, only gives permission to do a particular act or series of acts on

another’s property. It can be express or implied, written or oral, with or
without consideration. As a permissive use, a license can never ripen into a
prescriptive easement, no matter how long the use. Additionally, a license is
a personal right that is revocable and non-transferable. Termination at the
will of the licensor is an important characteristic used to distinguish an
easement from a license. A license does not run with the land. A conveyance
of land will ordinarily revoke a license but may not revoke an easement.
Although a license generally does not carry any enforceable rights, an
easement confers definite property rights, which are enforceable against
the servient tenant.

III (b) PUBLIC RIGHTS OF WAY

 What is a public right of way?

A Public Right of Way is a legal right allowing the public to pass over land,
typically designated as a highway a term encompassing roads, paths, or
routes for communal use. Unlike proprietary interests in land, a public right
of way does not require ownership of property; it is enjoyed by any member
of the public. In Uganda, public rights of way are essential for access to
public amenities, markets, water sources, and communal spaces,
particularly in rural areas governed by customary tenure and urban zones
shaped by statutory law15.

 How is a public right of way created?

Public rights of way in Uganda can be established through three primary

mechanisms:

1) By Statute; The government, through the Roads Act cap 346 ,

gazettes roads as public highways thus formalizing public rights of

14
Hill v Tupper (1866) 2 H&C 121
15
The Road Act Cap. 346
 way. This process is common in urban planning and infrastructure
development For example The Kampala-Entebbe Expressway,
gazetted in 2018, created a public right of way that overrides
private land claims16 along its route, ensuring public access to a
key transportation corridor.
2) By Dedication and Acceptance ;A public right of way also arises
when a landowner dedicates land for public use, and the public
accepts it .Dedication happens in two ways;
a) Formal Dedication: Explicitly granted by the owner, often via a
legal agreement or deed.
b) Implied Dedication: Inferred from long, uninterrupted public
use, suggesting the owner’s intent to dedicate. Mostly over
20years

Acceptance: May be formal (e.g., acknowledgment by local

authorities) or informal (e.g., consistent public use over time).
For example In Buganda, villagers have used paths across mailo
land for decades to reach markets or water sources. Courts may
recognize these as public rights of way based on implied
dedication, as seen in historical England such as in the case of
Cubbit v. Lady Caroline Maxse17 where long usage established a
public right.

3) By Prescription
In common law, prescription allows a public right of way to
emerge from long, uninterrupted public use. In Mukasa & anor v
Kabuye, long usage raised a presumption of ancient enjoyment,
thus allowing the surging for a public right of way.

Lost Modern Grant Doctrine: the doctrine presumes a grant after 20 years
of open, peaceful, and uninterrupted use, even without formal
documentation18. However, Use must be “as of right” (not by permission),
open (not secretive), and unopposed by the landowner.

III (c) Profit ἀ prendre

16
James Baliruno v Kampala City Council Authority
17
(1873) LR. 8 C.P. 704
18
Makumbi & anor v Puran Singh Ghana & anor [1962] EA 331
  What is a profit ἀ prendre?

Profits ἀ prendre are rights19 to take something from another's land, such
as fishing, grazing, or gathering wood. The grant may be for an
indefinite or fixed period20.

 What are the types of profit ἀ prendre in Uganda?

According to Megarry and Wade21 types of profits are according to the

several profits that are derived from the different profits as known.
Generally to contemporary Uganda due to our reliance to our customs
two types of profit ἀ prendre that exist as stated below.

a) Profit appurtenant: Attached to a specific land (the "dominant

tenement") and benefiting its owner. For example, the right to cut wood
on neighboring land for heating one's own property.

b) Profit in gross: Exists independently of land ownership, can be bought,

sold, or transferred separately, such as the right to extract minerals
without connection to a specific land.

 How is a profit ἀ prendre created?

A profit ἀ prendre can be created by:

1) Express agreement: By a contract or written concession between the

land owner and the beneficiary. This is the most direct method, where
the landowner explicitly grants the right to another person through a
written agreement. For example, a landowner might grant a neighbor the
right to graze livestock on their pasture land

2) Prescription: By continuous use over a long period, often 20 years or

more, according to common law or case law in Uganda, Nambalu Kintu v
Efulaimu Kamira22 Through long-term, continuous use without the
landowner's permission, a person can acquire a profit a prendre. The use
must be open, notorious, and without force to establish the right, such as
fishing in a river for decades openly. This method reflects historical use

19
Duke of sutherland v Heathcote [1892] 1 C 475
20
Wickham v Hawker (1840) 7 M&W 63; 151 ER 671
21
Megarry & Wade: The Law of Real Property 8th ed Charles Harpum, Stuart Bridge, Martin Dixon, ISBN13:
9780414045965, February 2012, Sweet & Maxwell Ltd, UK
22
ibid
 and can be a point of contention, especially if the landowner disputes the
claim.

3) Implied Grant: This is inferred from the existence of a profit a prendre

based on the circumstances, even if there is no explicit agreement. This
often occurs when the right is necessary for the reasonable use of
adjacent land or when it has been continuously exercised in a way that
suggests mutual agreement. For example, if a neighboring farm has
historically taken timber from the neighbour. This is seen in Karamoja
where one fetch firewood from anothers’ land as it is practiced.

4) Statute: By specific laws or by the doctrine of lost modern grant. For

example, certain laws might grant specific groups or industries the right to
take resources from particular lands, such as mining regulations giving
companies rights to extract minerals. This method is less common but can
be significant in sectors like mining or agriculture, where statutory rights
are necessary for economic development. The evidence leans toward this
being less frequent but crucial in regulated industries. As per the 1995
constitution of Uganda23 provides that the government of Uganda reserves
the right to mine minerals thus being given right to extract minerals from
land of individual owners.

III. CONTROVERSIES
 What are the different points of contention over how servitudes over
land are practiced in Uganda?

Servitudes over land are rights that one has in using another’s land in a
specified way, in Uganda are to enable one to constitute interests in land
and subject to the principle of indefeasibility and are enforceable against
whoever the landowner is.

1) Ambiguity in Terms

Many easements in Uganda are poorly defined, leading to confusion about

their scope and usage. In Uganda over 70 languages are spoken, due to the

23
Article 244 of the constitution
variety of languages24 that are in the country, there is no national language.
English is used as the official language and this thus creates a vacuum as
the local languagues most times are used to provide for the terms of
establishing servitudes over land as they are mainly considered for the rural
to ensure more access and enjoyment of land. Obima v Yunes & 2 Ors 25
explains that although terms of a contract may be made in oral language,
they are translated to best fit into English. The appellant here was relying
on an agreement between him and the respondents’ father who agreed to
let him profit from the land but was to eventually leave which he did but
later claimed to have been sold the land.

2) Insufficient Documentation or Failure to Register

In Uganda, easements must be legally documented and registered to be

enforceable against third parties. Many landowners rely on informal or oral
agreements, which are not recognized under the Registration of Titles Act 26.
Although entirely agreements over land are accepted to be effected over
land without registration. Some agreements are not effected due to the fact
that they are lacking in form as they miss some requirements. The RTA 27,
provides that although one becomes the registered prioprietor of a land,
they are supposed to take one the responsibilities of the former and thus
protect the eqittable interests already in the land. This is however butted by
some individuals who use overriding authority to take over the land entirely.

3) Over stepping authority of servitudes over rights of owners

Although on paper the fact is that a registred proprietor is free to do as he

pleases with their land, sale, mortgage or gift. This is all done subect to the
rights of servient owners as their interests in the land are not registered
and therefore cannot easily be told apart from most. In the case of Venansio
Babweyaka & ors v Kampala District Land Board & anor 28 Justice Okumu
Wengi, relying of the case of Ronald Kayara v Hassan Ali Ahmed 29 stated
that eqittable rights over land such as occupation and easemets are
24
Uganda Bureau of Statistics (UBOS), 2021. Uganda National Household Survey 2019/2020. Kampala, Uganda;
UBOS
25
Civil Appeal No. 0001 of 2012) [2016] UGHCLD 60
26
Section 54 of the RTA
27
Section 177 of the RTA
28
CS no. 511 of 2001
29
CA no. 1 of 1990 V. KALR 63
protected by equity and therefore the registred proprietor is not subjected
to do as they please but in conformity with equity and the interests of
others. This therefore poses the question of whether the land of a registered
proprietor is theirs to enjoy alone or the enjoyment is limited to the wishes
of others using his land.

IV. COMMUNITY PRACTICES

 How does contemporary Uganda practice servitudes over land?

In Uganda, easements legal rights allowing one party to use another’s land
for a specific purpose are influenced by both statutory law and customary
community practices. Community practices of servitudes in Uganda,
particularly in areas with customary land tenure, involve traditional ways
communities manage rights over land, such as access paths or water usage.
These practices are rooted in local norms and are essential for communal
living. Below are some key community based practices related to
easements.

1. Access to Water and Communal Land

Many communities recognize the right of access to water sources, such

as rivers, wells, and communal boreholes. Even if located on private land,
customary practices often require landowners to allow neighbors access.
Grazing easements are also common, where pastoralist communities share
access to land for livestock movement. Hon. (Rtd.) Justice Galdino Okello
Omoro & 4 Others v. Attorney General & 8 Others 30, The petition challenged
the authority of District Land Boards in the Acholi sub-region to lease
customary land, treating it as former public land.

2. Footpaths and Right of Way

In villages, people use traditional pathways across private land to access

markets, schools, and health centers. Over time, these paths become
recognized easements, even without formal registration. In some cases,
disputes arise when landowners attempt to block them, leading to
community mediation. Stewart Gawaya Tegule v. Kampala Capital City
Authority (KCCA) & Mulindwa31 where court held that where a road has
30
Constitutional Petition No. 28 of 2019
31
CS no. 214 of 2011
been existing for long a registered proprietor has to ensure it stays that
way.

3. Burial Grounds and Cultural Sites

Certain lands are preserved for communal burial grounds or cultural

rituals. Even if privately owned, families and communities often claim
traditional easement rights to access these areas. Acholi Parliamentary
Group (APG) & Acholi Cultural Institution v. Attorney General & Others 32
The plaintiffs sued the government over the alleged illegal extension of
Aswa Ranch boundaries, which encroached upon customary land in the
Acholi sub-region.

V. CONCLUSION

In Uganda, the principles that gorvern servitudes over land aren’t put into
practice due to the fact that there is too much beaucracy and government
intervention in land ownership. This is alluded to the fact that the 1975 land
reform decree had put up a system to erase away the existence of private
ownership of land and this has just been reorganised. The reliance of most
communities on cultural ethics and practices puts in place situations of
servitudes over land but due to the rules of evidence placed up for those
presumptions to be held these practices over land tend to be disregarded
and replaced with more conveneint ways that arent known to many.

32
CS no. 0232 of 2023
VI. REFERENCES
 1995 constitution of the republic of Uganda
 land act
 Registration of Titles Act
 Roads act
 Case law
 Principles of land law in uganda by John Mugambwa
 Megarry & Wade: The Law of Real Property 8th ed Charles
Harpum, Stuart Bridge, Martin Dixon, ISBN13:
9780414045965, February 2012, Sweet & Maxwell Ltd, UK
 Mwebaza, R. (1999). How to Integrate Statutory and
Customary Tenure: The Uganda Case. . Available at
https://www.iied.org/7401iied
 Noel, Kishaija & Fadlalmwlla Adam, Abdelbagi & Heil,
Bálint. (2024). Land-use land cover changes and their
relationship with population and climate in Western Uganda.
Journal of Degraded and Mining Lands Management. 11.
6201-6212. 10.15243/jdmlm.2024.114.6201.