www.ugandaonlinelawlibrary.

com law teacher notes/LDC

Brief Facts
Peter Tindyebwa died testate and left land measuring 450 Hectares and
comprised in Busuju Block 170 Plot No. 25 Situate in Muduuma village. He gave
different bequests to his children, wife and the church. One of his children is still
a minor. He appointed his wife the trustee of the minor child. Now the children
want to take possession of their bequests.

Issues
(i) whether Bitu (the wife) can change the current ownership, and if so
what steps can be taken
(ii) whether the different children can take benefit of their bequests
(iii) Whether one of the children can protect their interests in the land
(iv) What documents would be necessary

Law Applicable

1. The Constitution of Uganda

2. Land Act Cap 227

3. Registration of Titles Act, Cap 230

4. Succession Act, Cap 162

Resolution of Issues
Issue 1
When a person dies testate or intestate, the relevant law on who assumes
ownership and/or rights to his property is governed by the Succession Act, Cap
162. The relevant Provisions under the Succession Act are the following:

Section 2(r), defines a personal representative to mean the person appointed by

law to administer the estate or any part of the estate of a deceased person.

Land Week 1: 1 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

Section 180 provides that the executor or administrator as the case may be, of a
deceased person is his or her legal representative for all purposes, and all the
property of the deceased person vests in him or her as such.

Section 188 states that no right as executor or legatee shall be established in

any court of justice, unless a court of competent jurisdiction within Uganda has
granted probate of the will under which the right is claimed, or has granted letters
of administration under section 181. The relevant authority is
Dharamsy Morarji & Sons Ltd V. Suman Naresh Kara S.C.C.A 41 of 1995
[1997] IV KALR 75 S.C.C.A. 41/95
The respondent was appointed as an executrix under the will of the deceased
who passed away in India. The respondent applied for probate in the High Court
in Uganda and probate was granted. On this basis she asked the appellant
company to rectify the register by having her registered as the shareholder.
Meanwhile in another action in the High Court the probate was being set aside
on grounds that the testator was domiciled in India and therefore the High Court
could not validly grant probate.

HELD: per Karokora

“There is no doubt in my mind that under section 3 (now section 2 (r)) of the
Succession Act, a personal representative is the person appointed by law to
administer the estate of the deceased person. Under Section 179 (now Section
180) of the Succession Act, the executor/executrix or administrator of a
deceased person is his legal representative for all purposes, and all the property
of the deceased person vests in him as such. Then under section 187 (now
section 188) of the Succession Act, no right as the executrix shall be established
in any court unless there is evidence that a court of competent jurisdiction within
Uganda granted probate of the will under the right claimed.”

Land Week 1: 2 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

In this case, it is clear that the wife was appointed as the trustee and executrix of
the will of her husband. Therefore, she should apply for the grant of probate so
that she can be recognized as the personal representative of her husband.

Sect. 134 of RTA provides for procedure of succession on death with regard to
registered property. It provides that upon the receipt of an office copy of the
probate of any will, the registrar shall, on an application of the executor to be
registered as proprietor in respect of any land, enter in the Register Book, a
memorandum notifying the appointment of the executor or administrator and the
day of the death of the proprietor when the day can be ascertained, and upon
that entry being made that executor or administrator shall become the transferee
and be deemed to be the proprietor of such land, lease or mortgage, or of such
part of it as then remains unadministered, and shall hold it subject to the equities
upon which the deceased held it, but for the purpose of any dealings therewith
the executor or administrator shall be deemed to be the absolute proprietor
thereof.

Therefore, the wife should apply by ordinary letter to the registrar of land to be
entered as the proprietor of the said land. This application should be
accompanied by a grant of probate from the High Court.

Issue 2
The different children have equitable interest in the land as beneficiaries under
the will. Under section 54 RTA, no instrument until registered is effectual to pass
any estate or interest in land. This position was confirmed in Zimbe Vs Kamanza
(1954) 7 ULR 89 where it was held that no man can become a legal owner of
land until a statutory transfer of land to him has been registered. In this case,
therefore, the will only made them equitable beneficiaries.

Section 92 of the RTA provides for transfer of Land. It provides that the
proprietor of land can transfer the same in one of the forms in the Seventh

Land Week 1: 3 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

Schedule. Upon the registration of the transfer, the estate and interest of the
proprietor as set forth in the instrument or which he or she is entitled or able to
transfer or dispose of under any power, with all rights, powers and privileges
belonging or appertaining thereto, shall pass to the transferee; and the transferee
shall thereupon become the proprietor thereof,

Since, there are different children, section 96 provides for transfer of different
portions of the lands comprised in certificate.

Section 54 of the Registration of Titles Act (hereinafter called the RTA) provides
that no instrument can pass any interest until it is registered in the manner
therein provided for under the RTA. In Ndigejjerawa v. Kizito & Anor. [1953]7
ULR 31, it was held that no document or instrument however perfectly it fulfils the
statutory provisions or requirements is effectual to transfer any interest in land
until it is registered.

Section 152 of the RTA, any proprietor subdividing any land deposits with the
registrar a plan of that land. The plan exhibit distinctly all allotments into which
the land is divided, and, unless prepared by a Government surveyor, shall be
declared to be accurate by a statutory declaration of the person preparing the
plan. If required by the registrar a certified as accurate by a Government
surveyor after verification by him or
her at the proprietor’s expense.

Section 153 of the RTA provides that after the subdivision of the land and the
deposit of the plan the numbers of the allotments marked upon the plan, together
with a reference to the plan by its deposited number, may be used as sufficient
description of the land for the purpose of dealings with any one or more of the
allotments on the sale of an allotment according to the plan of subdivision, and
on any subsequent dealings comprising the whole of one or more allotment or
allotments.

Land Week 1: 4 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

In summary, the procedure for sub division of land involves the following;

 Deed plan
 Survey
 mutation form

It should be noted that the sub division changes the plot numbers. In this case
the procedure is that after the wife Bitu has been registered as the proprietor in
her capacity as the executrix of the will, she will then be in position to subdivide
the land into the six parcels specified in the will. The wife will hand over the
duplicate certificate and new titles reflecting each entity’s interest will be issued.

Issue 3
Bosco is worried that the land may be disposed of before he gets his interest. In
the case of Kanyerenzi & Ors v. Reg. of titles and misc. cause 919/97, it was
held that the executor can only sell the land to a 3rd party subject to the equities
of the deceased/beneficiaries. Therefore, if any person tries to buy the land
without inquiring into the nature of the will, then he or she will be subject to the
interests of the beneficiaries.When searching, you establish that the proprietor
has been entered as execution of the Will of the late – entry of the capacity not
only the name. This puts everybody to notice and every person must investigate
what terms of the will are.

However, to reinforce his interest, Bosco can lodge a lodge a caveat under
section 139 RTA. A beneficiary or any person claiming interest can lodge a
caveat with the registrar. The caveat is specified in the Fifteenth Schedule of the
RTA. A caveat forbids the registration of any person as transferee or proprietor
until after notice of the intended registration or dealing is given to the caveator.

Land Week 1: 5 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

An application for a caveat under section 139 of the RTA should include the
following;
 The name and of the person by whom or on whose behalf the caveat is
lodged
 Supported by an affidavit, stating the nature of the title under which the
claim is made, and may withdraw any such caveat.
 The address or place in which a post office is situated as the place at
which notices and proceedings relating to the caveat may be served.

Issue 4
Bosco is in London and wants to sell his land and wants the documentation
perfected. The procedure is provided under Part Eight of the RTA. Section 146
(1) provides that the proprietor of any land may appoint any person to act for him
or her in transferring that land, lease or mortgage or otherwise dealing with it by
signing a power of attorney in the form in the Sixteenth Schedule to this Act.

The main authority on powers of attorney is

FREDRICK J.K. ZAABWE Vs ORIENT BANK LTD, SUPREME COURT CIVIL
APPEAL NO. 04/2006 which confirmed that powers of attorney must be
construed strictly. It quoted with approval that "In short the authority conferred
by a power of attorney is that which is "within the four corners of the
instrument either in express terms or by necessary implications.”
Therefore, the power of attorney has to clearly allow the lawyer to sale on behalf
of Bosco.

Under Section 146 (2), such a power of attorney should be registered with the
registrar of documents within four months. Section 147 provides for the
attestation of such a power of attorney. They should be attested by one witness
and since Bosco is in Germany, such a witness should be a notary public.

Land Week 1: 6 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

Section 148 of the RTA states that no instrument or power of attorney is deemed
to be duly executed unless either the signature of each party to it is in Latin
character; or a transliteration into Latin character of the signature of any party
whose signature is not in Latin character and the name of any party who has
affixed a mark instead of signing his or her name are added to the instrument or
power of attorney by or in the presence of the attesting witness at the time of
execution, and beneath the signature or mark there is inserted a certificate in the
form in the Eighteenth Schedule to this Act. The Authority is GENERAL PARTS
(U) LIMITED –Vs- NPART (CIVIL APPEAL NO 5 OF 1999) as authority that
where the signatures to a mortgage are not in Latin character, the mortgage is
not valid.

Documents

THE REPUBLIC OF UGANDA

THE REGISTRATION OF TITLES ACT (CAP. 230)

Mailo Register
Busujju Block 170
Plot No.25
Land Situate At
Muduuma Village

CAVEAT FORBIDDING THE REGISTRATION OF ANY CHANGE IN

PROPRIETORSHIP OR ANY DEALING INTO THE ESTATE OR INTEREST.
(under section 139 of R.T.A.)

To: The Registrar of Titles

TAKE NOTICE that I Bosco Tindyeebwa of c/o Firm … & Co. Advocates P.O.
Box 7117 Kampala claim an equitable interest in the land comprised in the above

Land Week 1: 7 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

block at Muduuma Village and I forbid registration of any person as transferee or

proprietor of the land in any instrument affecting the said land until after notice of
such registration is given to me at address herein after mentioned or unless such
instrument be expressed to be subject to any claim or unless I consent in writing
thereto.

I appoint Firm …..& Co. Advocates of the above address as place at which
notices and proceedings relating to this caveat may be served.

DATED this 23rd Day of December, 2007 at Kampala

Signed by the said

Bosco Tindyeebwa …………………………..

CAVEATOR

In the presence of ………………………….

ADVOCATE

Drawn & Filed by;

Firm ……& Co. Advocates,
P.O. Box 7117,
KAMPALA.

REPUBLIC OF UGANDA
IN THE MATTER OF REGISTRATION OF TITLES ACT (CAP 230)

AFFIDAVIT IN SUPPORT OF CAVEAT

(Under section 139 RTA)

Land Week 1: 8 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

I Bosco Tindyeebwa of c/o Firm … & Co. Advocates P.O. Box 7117, Kampala do
hereby make oath and state as hereunder.

1. That I am a male adult Ugandan of sound mind and the applicant in the
above matter
2. That I am a son of Peter Tindyeebwa the originally registered owner of
land comprised in Busujju Block 170, Plot No.25 situate at Muduuma
Village
3. That my father died testate and in his will appointed Bitu Tindyeebwa as
his executrix and she is now in possession of the title.
4. That my father in his will dated 15th October 2007 bequethed to me 100
Acres of the land abovementioned.
5. That I Bitu Tindyeebwa to be highly indebted and is continuing to enter
into more debts which is endangering my share of the property.
6. That this affidavit is sworn in support of a caveat to forbid the registration
of any transaction in connection with the said land.
7. That what is stated herein above is true to the best of my knowledge and
belief.

SWORN at Kampala, this 23 rd Day of October 2007.

Signed

Bosco Tindyeebwa ………………………………..

DEPONENT

Before me ……………………………….
COMMISSIONER FOR OATHS

Drawn & filed by;

Land Week 1: 9 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

Firm ….& Co. Advocates

P.O. Box 7117,
KAMPALA.

(Simplified Power of Attorney)

THE REPUBLIC OF UGANDA

THE REGISTRATION OF TITLES ACT (CAP 230)
Mailo Register
Busujju Block 170
Plot No…..
Land Situate At
Muduuma Village

====================

POWER OF ATTORNEY

THIS POWER OF ATTORNEY is made this 23rd of October 2007 by

Bosco Tindyeebwa of Germany C/o P.O. Box ….Germany being the registered
proprietor of the land comprised in the above title HEREBY NOMINATE AND
APPOINT john of C/o P. O. Box 7117 Kampala, (hereinafter called my
Attorney) to be my lawful and true Attorney on my behalf and in my name to do
and execute all or any of the following acts and deeds as follows:-
1. To receive my title, keep it in safe custody and sell my land

Land Week 1: 10 Problem Question 2

www.ugandaonlinelawlibrary.com law teacher notes/LDC

2. To sign and execute all documents that may be necessary

for the purpose of achieving any of my objects herein before
mentioned or performing any of the duties or benefits.
3. For me and in my name to sign or execute all such
documents and instruments and do all such things as may
be necessary or expedient for carrying out the power hereby
given.
4. This Power of Attorney shall remain in effect until otherwise
revoked by myself.
I HEREBY UNDERTAKE to ratify everything which my Attorney
shall do in the right of this Deed.
IN WITNESS whereof, I have hereunto set my hand this
day of 2007.
SIGNED, SEALED and DELIVERED )
by the said Bosco Tindyeebwa )
In the presence of:- )

Land Week 1: 11 Problem Question 2