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Name : Daka Daniel

Task. Land law coursework
Instructor. Mugisha.
Reg No. 117-053011-16563
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Content

•Torrens System
•Legal and equitable interests
•Easements and profits
•Leases and tenancies
•Licenses
•Privity of estate and contract
•Expropriated properties
•Mortgages
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TORRENS SYSTEM
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Introduction

•Originated from Australia

•System of registration of interests in land
introduced by Sir. Richard Robert Torrens
•Major purpose was to enable easy land
conveyancing and to save costs spent
in investigating titles
•Registration of Titles Act (RTA) is the principle
law on registered land (S.2 of the RTA).
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Basic elements

•The Office of titles

•The Register
•Indefeasibility of title except for fraud
•Unregistered interests
•Caveat
Office of registrar of titles

•Handles land registration, also known as the

land registry.
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•S.3(1) of the RTA provides for the appointment

of a registrar of titles
•Provides for appointment of a deputy registrar
of titles and other assistant registrars as
required
•All are public servants

The register
•S.37 of the RTA - Registrar to keep a register
book which will contain all titles and particulars
of land dealings in their priority
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•Book may be kept in loose leaf or parts relating

to district, county, sub county or convenient
area.
•S.54 of the RTA - An unregistered instrument is
incapable of transferring any interest or estate
in the land
•S.59 of the RTA - the certificate is to be
conclusive evidence of the title
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…the Register
•Souza V Moorings Hotel Co. Ltd (1960)
•Facts: The Respondent let premises to the
Appellant under a sub lease, however the
instruments weren’t registered.
Respondent then brought proceedings to
recover the outstanding rent.
•Issue: What is the effect of the unregistered
agreement between the parties.
•Held: No interest or estate in land can be
created or transferred by an unregistered
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instrument. However, it can be enforced as a

contract between the parties.
Indefeasibility of title except for fraud
•Fraud is the most important exceptional to the
indefeasibility of title.
•S.77 of the RTA - Certificate void for fraud
against parties to the fraud.
•S.64(1) of the RTA - the title of a registered
proprietor is paramount except for fraud …
other exceptions
•Other exceptions include:
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•encumbrances notified on the folium, land

included in the folium by mistake, easements
and public rights of way and adverse
possessions.
•Vital for purchasers to thoroughly survey the
land before concluding the transaction. …
indefeasibility of title except fraud

• Katarikawe V Katwiremu (1977)

• Facts: The Plaintiff bought land from the first

Defendant, later discovered that the land Had been
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transferred to the second Defendant after his sale

agreement with the 1st Defendant.

• Issue: Whether the transfer to the 2nd Defendant was

fraudulent

• Held: 2nd Defendant guilt of fraud, transfer to his names

void. Fraud involves dishonest dealings in land e.g.
depriving a purchaser for value in occupation of the
land of his unregistered interest.
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Caveats
•Lodged against one’s title to show interest and
to prevent further dealings without the
caveator’s consent.
•must be lodged with the registrar of titles.
•One must have a caveatable interest.
•Caveat must clearly identify the interest to be
protected
•Does not prove title only maintains the status
quo
•Meant to be temporary
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•Compensation to be paid to the caveatee

incase of wrongful lodging

…caveats
•David Acar v Alfred Acar

•Facts: Respondent applied for a lease of his

land, appellants claimed an interest in the land
and complained to the parish chief. Certificate
granted to the respondents, appellants refused
to vacate the land.
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•Held: Appellants should have lodged a caveat

with the registrar of titles instead of
complaining to the parish chief. Respondent's
title was conclusive evidence of ownership. …
Caveats
Byes V Gathure (1969)

•Facts: The Respondent lodged a caveat against

the Appellant’s title but didn’t sufficiently
define the interest claimed.
•Issue: Whether the caveat was correctly
lodged.
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•Held: The nature of the registrable interest

claimed was not disclosed by the caveat and it
should have been rejected by the Registrar.

Unregistered Interests
•Includes rights existing under any adverse
possession, arising out of a long, un
interrupted usage of land.
•Public rights of way over registered land. No
need for a registered interest on long
uninterrupted user.
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•Easements
•Government rights over registered land in
respect of unpaid rates.
•Tenants interests on the land.
•Environmental considerations under the
National Environment Management Authority
(NEMA).
Questions
•Discuss the relevance and applicability of the
Torren system of land registration in Uganda
today.
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•How are un registered interests in land

protected under the RTA?
LEGAL AND EQUITABLE INTERESTS IN LAND
Legal and equitable interests in land
•Premised on the doctrine of privity of a
contract
•Every person who acquires land will be bound
by the legal right regardless of whether or not
he has notice of the right
•Creates rights in rem which will be enforced
against the whole world

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Equitable rights

• Not automatically binding on a successor in

title to the affected land
•They confer rights in personam
•Bind all persons except a bona fide purchaser
for value without notice and those claiming
under such a purchaser
•Referred to as equity’s darling
…equitable interest
•Katarikawe V Katwiremu (1977)
•Facts: The Plaintiff bought land from the first
Defendant and later discovered that the land
had been transferred to the second Defendant.
•Held: The Plaintiff acquired rights in equity
which were good against all persons except a
bona fide purchaser of a registered estate for
value.
•Registered interests are known rights in rem
and bind the whole world.
•Rights in personam arise from contracts for sale
before transfer.
…statutory and common law
•The position under statute
•Ss.51, 61, 148-153A RTA
•Art. 278(8),(9)- Constitution (1996)
•Land Act, S.2, 30-39, 40.
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…common law
•Common law doctrine of bona fide purchaser
•Also known as equity’s darling
•A person who proves he is a bonafide
purchaser of value without notice of the
equitable interest can take the legal estate free
of the equitable interest.
…equitable interest - Pilcher v Rawlins
•Pilcher V Rawlins (1872)
• Facts: A legal owner of land was subjected to
an equitable mortgage, he created a legal
mortgage suppressed the relevant documents
which showed that the land had encumbrance.
Second Mortgagee was unaware and had no
means of discovering the first equitable
mortgage.
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•Issue: Whether the second mortgagee who had

a legal estate took subject to the first equitable
mortgagee.
Pilcher v Rawlins
•Held: It was void against him, his plea of
purchaser for consideration without notice was
an absolute plea to the court’s jurisdiction.

Features of the doctrine

•Good faith Bonafide

•Separate test which has to be passed even after
proof of absence of notice.
•Purchaser must show that his absence of notice
is genuine and honest.
•

…good faith
•Midland Bank Trust V Green
•Facts: The Father granted his tenant son a 10
year option to buy a farm, option unregistered,
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father conveyed option to the mother, son

sought to register the option.
•Issue: Whether the son’s claim would succeed.
•Held: Option was void against the mother who
was a purchaser for money. The words in good
faith related to the notice, absence of notice
had to be genuine and honest

Value
• Includes any consideration in money,
money's worth and marriage consideration
• Adequacy of consideration not material.
Midland Bank (Supra)
• Value is an expression denoting an
advantage conferred or detriment
suffered.

Purchaser
• The case of Midland defines a purchaser as a person who for
valuable consideration takes any interest in land.
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Notice

•Refers to knowledge of an existing fact

•Rationale is to prevent a buyer of a superior
title from setting it against earlier owners of
inferior interests which affect the property.
•Buyer of the legal estate with notice of prior
equitable interests affecting the estate takes it
subject to prior equitable interests
…notice
•Actual Notice.
•Buyer has actual/express notice at the time of
the purchase
•Ss.4 RTA - buyer to hold land subject to the
encumbrances notified to the Registrar …
notice
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•Zimbe V Kamanza (1954)

• Facts: Appellant and respondent both
purchased the same piece of land, the latter
never registered his title while the former did.
Registrar didn’t show the Appellant that land
belonged to the Respondent who sued.
•Held: Appellant was entitled to rely on the
registrar’s revelation and was not entitled to
make any further inquiry.
Constructive notice

•Where the purchaser is aware of a fact which

should put him on inquiry as to the existence
of a right /title in conflict with that he is about
to purchase.
•He’s presumed to have either made the inquiry
and ascertained the extent of the prior right or
have been guilty of a degree of negligence
equally fatal to his claim
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•Prior interest in land should always be

considered
Imputed notice
•May be imputed to the buyer through actual
notice to his agent
•Agency law - Notice to the agent is notice to
the principal
…imputed notice

•Sejjaka V Rebecca Musoke (1985)

•Facts: Respondent’s husband died leaving
behind property which a third party acquired
 through fraud and sold to the Appellant.
Appellant argued that he was a bona fide
purchaser of value without notice.
•Issue: Whether the Respondent had notice.
•Held: Musoke and Co. Advocates who were
acting as her agents were aware of the
alleged fraud concerning the disputed
property.

…bona fide purchaser

• Modification of common law doctrine
• By statute
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• Ss.44, 46,51,56,57,61,76,146,189,184

…bona fide purchaser

• Lwanga V Registrar of Titles (1980)
•Facts: Galiwango bought land but died before
registering it. Katemba forged a transfer into
his names and sold the land to Ssalongo.
Galiwango’s heir sought the land. Ssalongo
claimed to be a bonafide purchaser for value.
Issue: Whether he was a bonafide purchaser
for value.
•Held: He was a bonafide purchaser for value,
his title couldn’t be impeached, although it was
got through fraud unless he was a privy to the
fraud.
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Questions

1. Distinguish between legal and equitable

rights.
2. Discuss the concept of equity’s darling.
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EASEMENTS AND PROFITS

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Easements
• Is the right to use or restrict the use of another
person’s land in some way. Examples include:
1. Right of way
2. Right of light
3. Right of water
Essentials of an easement
1. Existence of a dominant and servient tenement
2. The easement must accommodate the dominant
tenement
3. Ownership of the dominant and servient
tenement by different people
4. Easement must be able to form the subject
matter of a grant
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…easements
Re Ellenborough Park (1958)
Facts:
A developer subdivided land and sold it to different
persons leaving an inner portion known as
Ellenborough park to be enjoyed by all as a pleasure
ground. The government requisitioned the park and
paid yearly compensation, which
the plot owners sought, claiming an easement over the
park.
Issue:
Whether the right accommodated and served the
property in question.
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Held: There was a sufficient connection as a garden

improves residential property, however the finding
was only limited to houses close to the park.
The case also stated the above listed essentials of an
easement

Dominant and servient tenement

•Servient tenement serves the dominant
tenement which benefits from the easement.
•Change in ownership of servient tenement does
not extinguish the easement.
Hawkins V Rutter (1892)
Facts: The Plaintiff had been in possession of the
system layings worth 100litres in York riven for
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14 years, the Defendant ‘s barge grounded and

destroyed
them.
Issue: Whether an easement existed.
Held: No dominant or servient tenement
Easement must accommodate the dominant
tenement
•Must confer a benefit on the dominant
tenement
•Test is whether the easement makes the
dominant tenement a better and convenient
place
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•Proximity of the property is important

Hill V Tupper (1863) Facts:
Canal owner leased land on the bank of the
canal to Hill, gave him the sole and exclusive
right to place pleasure boats on the canal.
Tupper then put rival pleasure boats without
any authority.
Ownership by different people

•Cant have an easement over your own land, it’s

a hereditament and not an easement.
•Rationale is that a man can’t have rights against
himself.
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Capable of forming the subject matter of a grant

•Grantor and the grantee must exist

•Right being granted must be definite
•Must sale within one of the definite
•Easements like right to water, light, support.
Creation of easements

•By statute
•Express grant or reservation
•Implied grant or reservation
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•Prescription
By statute
•S.59 of the Electricity Act, Cap. 144 -
Recognizes an easement in favour of electricity
lines
•S.60, 64, 65 of the RTA - When the certificate
contains a statement that the person named is
entitled to an easement in the title, that
statement is conclusive evidence of that
statement.
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•S.72 National Environment Act Cap 153 - deals

with environmental easements, for purposes of
environmental conservation and enhancement.

Express grant/ Reservations

•Given in writing, no particular words to be
used.
•Easements aren’t future rights S.61,62,98,99
•Reservation is a negative action land owner,
reserves certain rights to access his land.
•Express reservation must also be in writing
Implied grants
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•These are implied by law Borman

vs Griffith (1930)
Facts: Lessor demised a dwelling house and
premises to the lessee for purposes of a rabbit
and poultry farm, however no right of way was
removed to him. The Plaintiff used the drive to
access his premises leading to conflict. Issue:
Whether a right of way could be implied.
Held: The right of way would be implied for the
reasonable enjoyment of the property.
•easements of necessity are also implied when
the plot is landlocked
…implied grants
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Barclays Bank V Patel

Facts: Land was subdivided, sold to different
owners. Respondent had no access to any
public road, no access road existed on the
Appellant’s land, respondents use of the
Appellant’s land was interfered with and he
sued.
Issue: Whether an easement of necessity would
be implied.
Held: A way of necessity arose by operation
of law on the subdivision of the property.
Prescriptions
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•Acquisition of a right because of long

uninterrupted use or enjoyment of that right.
•Creates an easement; but can be a defence as
well.
•Limitation Act Ss. 29,32 Ss 6, 7, 8

Public rights of way

•Long uninterrupted use by the public is vital.
Ngambo Estate and Saw Mills Ltd V Singh saw
Mills (1957)
Facts: The Appellant used the road across the
respondent’s estate, the latter then put a barrier
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on the road. There was cogent evidence by long

uninterrupted use by the public.
Issue: Whether a public right of way existed.
Held: Public right of way existed due to the long
uninterrupted use by the public.
Profits A’Prendre
•Means ‘right of taking’.
•Allow the grantee to take away from the
neighbour’s land other than using it
•Person taking profits has a license to come on
the land
•Can exist without ownership of the land
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•Can be legal and equitable

•Capable of being enjoyed by several persons at
the same time
•Examples: Right to graze, right to mine , right
to fish, right to hunt wild animals.

…profits a’ prendre
Duke of Sutherland V Heathcote (1892)
Facts: The Plaintiff brought an action to restrain
the Defendant
from working minerals which had been reserved
to him by an earlier agreement.
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Held: Aright to work mines was not a license but

rather a profit
a’prendre

Extinguishment of easement
•Release by the owner of the dominant tenement
•Abandonment of the easement
Swan V Sinclair (1924)
Facts: The Plaintiff abandoned the use of the
right of way for 38
years, challenged the Defendant’s action of
erecting a wall
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across the road way.

Held: Easement had been extinguished by the 38
year abandonment
Questions

1. Differentiate between easement and Profits

2. How are easements created
3. Discuss the relevance of easements

LEASES AND TENANCIES Leases and

tenancies
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•Leasehold tenure is one where a party grants to

another exclusive possession of land in return
for rent.
•Freeholder gives another the right to use and
occupy his land.
•Lessor grants the lease while the lessee enjoys the
lease.
•Full unencumbered title returns to the lessor upon
expiry of the lease.

Classification
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•Fixed leases, fixed duration lease comes to an end

upon expiry of the period.
•Periodic leases renewed continuously from term
to term.
•Terminated by notice served by the other party.
Nature of leases

•Street v Mountford (1985)

•Facts: Landlord gave tenant license to occupy a
furnished room at a fixed rate with exclusive
possession, tenant applied for a fair rent,
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landlord averred that it was a license and not a

tenancy.
•Issue: Whether the arrangement was a license or
a tenancy.
•Held: Tenancy due to the presence of essential
elements of: exclusive possession, for a fixed
period of time subject to payment of rent.
… nature of leases

•Harvey v Pratt (1965)

•Facts: Plaintiff and defendant entered an
agreement for the lease of garage premises for
21 years, however, no commencement date
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was stated, defendant never went into

occupation
•Issue: Whether the lease agreement was valid.
•Held: Invalid due to the absence of a
commencement date.
Essential elements

•Exclusive possession •For

a certain period
•Payment of rent.
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Exclusive possession

•S.3(5) of the Land Act. Tenant with exclusive

possession able to exercise land owners rights.
•Licensee without exclusive possession can’t call
the land his own.

…exclusive possession

•City Council of Kampala v Mukibi (1967)

•Facts: Plaintiff leased premises to the defendant
on condition that they wouldn’t be subleased.
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Defendant allowed hairdressers to use the

premises, plaintiff sought to terminate the
lease.
•Issue: Whether the lease agreement had been
breached.
•Held: No breach, defendant had exclusive
possession, had retained the key and would
open and close the premises.
Certain period

•S.3(5) of the Land Act - Refers to commencement

and ending dates.
•Lease is invalid due to uncertainty in duration.
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•Lace v Chantler (1994)

•Facts: Plaintiffs sublet a house to the
defendants for the duration of the second
world war.
•Issue: Whether the lease was valid.
•Held: Lease was void for uncertainty of duration
as it was impossible to tell when the war would
end.

Payment of rent

•S.3(5)(d) of the Land Act provides for the

payment of rent.
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•Leases enable the land owner to benefit from land

he won’t use himself.
•Rent is the consideration paid in exchange for the
tenancy.
•Doesn’t include the money the tenant will have to
spend to repair the property.
Creation of leases

•S. 3(5) of the Land Act, created either by contract

or by operation of law.
•Terms and conditions may be regulated by law to
the exclusion of any other contractual
agreement.
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•S.54 of the R.T.A, instrument not effectual to

create a lease until its registered.
•Land becomes subject to the covenants of the
lease upon registration.
•Ss. 108, 113(1), 114 R.T.A

…creation of a lease
•Souza v Moorings Hotel (1969).
•Facts: Respondent sublet premises to the
appellant under a sub sub lease, but the
instrument wasn't registered. Respondent sued
for rent arrears, appellant denied liability on
grounds of non registration.
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•Issue: Whether the instrument was valid

•Held: Wasn't void though unregistered, could
operate as a contract interpartes and give rise
to a claim for damages.

…creation of leases

•A lease can be legal or equitable

•Walsh v Lonsdale (1882)
•Facts: Defendant granted the plaintiff a 7 year
lease, the rent to be payable in advance,
however the plaintiff paid in arrears forcing the
defendant to distress for rent by seizing the
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plaintiff’s goods. Plaintiff sued for trespass and

specific performance.
•Issue: Whether the lease was legal or equitable.
•Held: It was an equitable lease, rent payable in
Duration of leases

•S.101 of the R.T.A, provides for a minimum

period of 3 years.
•Also states the form in which the lease should be
(8th Schedule).
•Lease can be for any duration.
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•Must have an ascertainable beginning and ending

before it takes effect.
Termination of leases

•Surrender
•Merger
•Effluxion of time
•Notice
•Forfeiture
•Re-entry
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Surrender

•S. 108 R.T.A provides for surrender of leases.

•Occurs when the lessee gives up possession of the
land to the lessor before the lease expires.
•Upon the lessor’s acceptance, the lease merges
with the reversion and is terminated.
•Can be done through the parties’ express
agreement, a statutory provision or by
operation of law.
•No time limit within which to register the
surrender of the lease.
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Merger

•It’s the opposite of surrender.

•Lease is terminated when the lessee acquires
the reversion, which then merges with the
lease.
•This is because the tenant can’t be his own
landlord.
•Merger has to be entered into the registry book.
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Effluxion of time

•Lease for a fixed term automatically lapses on the

expiry of that period.
•No need to serve notice unless its expressly
stated in the agreement.
•Neither side has a right to prematurely end the
lease unless the lease confers that right.

Notice

•Parties agree to an original period in a periodic

tenancy.
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•Period ceases when parties serve a notice to quit.

•Notice need not take any form subject to the
parties’ agreement.
•Must be made to expire at the end of a complete
period of the tenancy.
•Must be clear and reasonable, no ambiguity.
..notice
•Rajan Nanji v Dewjii
• Facts: Landlord’s notice stated that the
tenant’s rent would be increased if he didn’t
vacate the premises by a certain date.

•Issue: Whether the notice was effective.

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•Held: Notice was ineffective to terminate the

lease, tenant didn’t agree to the terms albeit
he was still in possession.

… notice

•Rodseth v Shaw (1967).

•Facts. Plaintiff served a notice to quit on the
defendant who objected on grounds that the
notice was signed by the plaintiff’s husband
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and that it didn’t expire at the end of the

tenancy.
•Issue: Whether the notice was valid.
•Held: Notice was valid though it was signed by
the husband, besides it expired at the end of
each month.
Forfeiture
•Lease contains covenants which bind the lessee.
•Lease contains a forfeiture clause which
empowers the landlord to terminate the lease
incase of the tenant’s breach of covenant.
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•S.102 of the RTA provides for implied covenants

of payment of rent, good maintenance of
leased property.
•S.113 of the RTA provides for covenants to be
implied in a sublease.

…forfeiture

•Scala House and District Company Ltd v Forbes

(1973).
•Facts: Tenant broke a covenant against
subletting and the landlord gave notice
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forfeiting the lease. The tenant applied for

relief from the forfeiture.
•Issue: Whether the breach could be remedied.
•Held: Breach by unlawful sub-letting is incapable
of being remedied.
Re-Entry

•S.103(b) of the RTA provides for the lessor’s right

to re-enter and take possession of leased
property incase of non payment of rent and
breach of covenants.
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•S.114 of the RTA determination of a lease or

sub-lease by re-entry has to be entered in
the register book.
…re-entry
•Lugogo Coffee Co. v Singo Combined Coffee
Growers (1976).
•Facts: Lessor leased land to the defendant for
49 years but he defaulted in payment for 20
years, she re-entered the land but the registrar
refused to make an entry. Sold the land to the
plaintiff who sued the defendant for trespass.
•Issue: Whether the lease was terminated.
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•Held: The lessors lawful re- entry had

determined the lease, albeit the law hadn’t
yet recognized it.

…re- entry

•Charles Kassajja Stokes v Registrar of Titles

(1992)
•Facts: Applicant’s lessees defaulted in rent for
20 years and didn’t keep the premises in a
tenantable condition, he served termination
and re-entry notices in newspapers and by
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display on the premises. Defendant refused to

make the entry hence the suit.
•Issue: Whether the notices amounted to reentry.
•Held: There was no re-entry within S.103, 114
RTA. Re- entry can’t exist without undisturbed
occupation.
Remedy

•Kiwanuka Musisi v Seggane (1973)

• Facts: Applicant in breach of certain covenants,
respondent re-entered the property, registered
the re-entry and leased the land to a third
party all to the applicant’s knowledge. He
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applied for a cancellation of the re-entry 6

months later.
•Issue: Whether the cancellation order would be
granted.
•Held: Order would be refused due to the injustice
which would be caused to the third party.
Waiver of forfeiture

•Landlord loses his right to forfeit the lease when

he waives the breach of covenant complained
of.
•Waiver may be express or implied.
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•Implied when the landlord is aware of the breach

but nevertheless acknowledges the continuance
of the lease.
•For example, a demand or acceptance of rent
even after notice of the breach.
…waiver
•Blackstone Ltd v Burnetts (1973)
•Facts. Plaintiff granted the defendant a lease
with a qualified condition against subletting.
Defendant got the plaintiff’s permission to
sub- let to 2 people but instead sublet to a
different person. Plaintiff's clerk sent a
demand note for rent despite the breach.
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•Issue: Whether the breach of covenant had

been waived.
•Held: Rent demand had waived the breach of
covenant against subletting.

Terms in leases

•Implied covenants at common law •A

covenant is a term of a lease agreement.
•Covenants implied against the landlord.
•Quiet enjoyment
•Means that the landlord mustn’t interfere with
the tenant’s possession.
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•Landlord not liable where the breach of quiet

enjoyment is due to a third party’s fault. …quiet
enjoyment
•Opinya v Mukasa (1964)
•Facts: Landlord forcefully evicted the tenant by
uprooting the roof from his premises.
•Issue: Whether the covenant of quiet
enjoyment had been breached.
•Held: Landlord was liable for the breach, court
awarded punitive damages.

Non-derogation from the grant

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•Means that the landlord shouldn’t frustrate the

use of land for the purposes for which it was
let.
•Telex (Pty) Ltd v Thomas Cook and Sons (1970)
•Facts: Plaintiffs leased their premises to the
defendants who used highly sensitive
equipment. They installed a cooling system
which interfered with the defendant’s
equipment forcing them to vacate and
terminate the lease.
•Issue: Whether the landlord had derogated from
the grant.
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•Held: The interference was substantial, and the

defendants were entitled to terminate the
lease.
Premises fit for human habitation

•Means that the premises must be habitable.

•Or fit for the purpose. If residential, then the
facilities must favour residential use.
•Where the premises are for commercial
purpose, they should be fit for carrying out
business.
Covenants implied against the
tenant
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•Prompt payment of rent, rates and taxes except

those for which the landlord is responsible.
•Delivery of vacant possession upon expiry of the
lease.
•Use of premises in a tenant like manner (good
maintenance).
Covenants implied at
law
•Ss. 102, 103, 104, 105, 112(1), 113 R.T.A
•S.3(5) of the Land Act.
 84

Questions

•What are the essential features of a lease?

•How is a lease terminated?
•Discuss the covenants implied in lease
agreements?
•“An equitable lease is as good as a legal lease.”
Discuss.
LICENSES
Introduction
•Position is that every invasion of land, however
minute is trespass
•A license is a purely personal permission given
by the a land owner/occupier to a person to do
something which would otherwise be a
trespass
•Different from a lease or an easement
•Passes no interest, does not transfer any
property.
•Doesn’t bind a purchaser who can require the
licensee to leave
 87

Types of licenses
•Bare licenses
•Licenses coupled with an interest
•License for value
•Licenses by estoppels

Bare licenses

•Licenses provides consideration in return for

his entitlement to be present on the land
•License not a trespasser unless he exceeds the
geographical limits of the permission granted
•Licensee becomes a trespasser if he pursues
an unauthorized purpose; Revocation at will
without notice
•May be granted either expressly or implied
•Implied for police officers to knock on the door
…bare license
•Lambert V Robert
• Facts: Defendant exceeded the speed limit,
policeman followed him and asked for a breath
 89

test while in his drive way. Police informed that

he was on the private property.
•Issue: Whether the policeman was a trespasser.
Held: The Defendant revoked the policeman’s
implied license to enter the property thus
making him a trespasser.

…bare license
•Wood V Leadbitter
•Facts: The Plaintiff bought a ticket to watch
races but was forcefully rejected by the
 Defendant without his guinea being returned
to him.
•Held: Although he was a bare licensee, the
license could still be revoked.

Licenses coupled with an interest

•May be granted with a grant of an interest

•Occurs when the land owner grants a person
an interest or right which can only be enjoyed
by entry upon the land
 91

•Is known as a profit a’prendre e.g the right to

hunt, fish.

100

…license coupled with interest

•James Jones and Sons Limited V Earl of
Tankerville (1909)
• Facts: Land owner contracted to sell the timber
growing on his land to the third party. Issue:
Whether the license had been granted. Held:
The land owner had conferred a license on the
purchaser to enter his land and take timber.
License for value

•Hurst V Picture Threatre Ltd (1915)

•Facts: The Plaintiff paid for a seat in the cinema
but was forcefully ejected by the Defendant on
grounds of non payments, sued for assault and
false imprisonment.
•Held: Plaintiff had the license to enter the
defendant’s premises to watch the spectacle
was wrongfully ejected.
102
License by estoppel

•Estoppels arises when one person A acts in

expectation that he has rights over another’s
land (B)
•If he relies on that expectation to his
detriment, A is estopped from denying him the
right.
…estoppel

•Inwards V Baker (1965)

•Facts: The Defendant’s father let him build a
house on his land, this became the
Defendant’s permanent home, however it was
left to the Plaintiff upon the father’s death.
Plaintiff brought proceedings to recover the
bungalow. Issue: Whether he could recover.
•Held: Plaintiff was estopped as the Defendant
had a license in his favour.
Contractual tenancies
•Errington V Errington (1952)
•Facts: Father got a loan and bought a house for
his son and daughter in law who had to pay
the installments so as to be in possession,
widow sought possession from the daughter
upon the father’s death.
•Issue: Whether her action could succeed.
•Held: Widow not entitled to an order as the
husband and daughter in law were licensees
with a contractual right to remain in
 possession subject to payment of the
installments
Deserted wife’s matrimonial home

•Deserted wife’s right to stay in the matrimonial

home arises from an irrevocable personal
license the husband is presumed to have
conferred on her.
•Same as a contractual licensee, has a valid
interest.
•Can only be revoked by a court order
Personal license
•Bendall V Mcwhirter (1952)
•Facts: Defendant’s husband deserted her, he
was later adjudged bankrupt - The Plaintiff as
the trustee in bankruptcy sought possession
of the matrimonial home.
•Issue: Whether the Plaintiff could possess the
house.
 100

•Held: She had a right to stay due to the

irrevocable personal license her husband gave
her.

Questions

1. Distinguish between a lease and a license

2. What are the different types of licenses
3. Distinguish between equitable and legal
rights vital
4. Determine the extent to which a
right/interest is enforceable
PRIVITY OF ESTATE AND CONTRACT
 102

Privity of estate and contract

•Landowners are free to enter contractual

relationships in regard to their properties.
•A covenant is a promise under seal and is
enforceable under the ordinary laws of
contract.

Privity of contract
•Exists when the parties are in direct contractual
relations.
•Contractual liability is enforceable by or against
the estate of the dead party.
 103

•The benefit but not the burden of the contract

is assignable.
•Can be enforced at law by an action for
damages or equity by specific performance or
an injunction.
Privity of estate

•Exists when there is tenure between the parties,

i.e., a landlord tenant relationship.
•Mainly confined to leases and tenancies.
•Covenants which don't touch or concern land are
unenforceable.
 104

•No covenants are enforceable if there is neither

privity of estate or contract. 2 exceptions exist.
1. Equity allows for the transmission of both the
benefit and burden of restrictive covenants.
2. Common law allowed the assignment of a
covenant for the benefit for which it was
…privity of estate and contract

•Stuart and ors v Joy (1904)

•Facts: Defendants leased an oil mill to the
defendants who then assigned their reversion.
Covenant that the defendant would execute all
repairs but he declined.
 105

•Held: A lessor who has assigned his reversion

remains liable upon his express covenants
running with the reversion in a lease for the
years under seal.

… privity of estate and contract •The burden

1. Contract law rule that only a party to a
contract can be sued upon it.
2. Privity of estate is an exception and the
assignees of either the lease or the reversion
can be sued.
 106

•The benefit
1. common law allows for the transmission of
contractual benefits, e.g. the assignment of
debts.
2. Benefit of a covenant relating to land can pass
to a successor in title without express
agreement.
Requirements for the burden to pass

•The covenant must touch or concern the land.

•Successor in title must have a legal estate in the
land.
 107

•Land to be benefited must be reasonably

identifiable from the covenant land.
•Parties must intend that the covenant benefit
runs with the land.
•Covenantee must own the land to be benefited
by the covenant but its immaterial for the
covenantor to own the land.

Restrictive covenants

•Negative in nature, made for the benefit of the

covenantee’s land.
•They are a creation of equity.
 108

•Essentials of restrictive covenants

1. The covenant must be negative in substance.
2. Must be made with an intention to burden
the servient land.
3. Must be made to protect the dominant land
retained by the covenantee.
… restrictive covenants - Negative in nature

•Only a negative covenant will be enforced by

equity.
•Must be negative regardless of whether the
document is positive or negatively worded.
 109

•Examples include covenants against building on

land, carrying on a particular trade or business. …
restrictive covenant
•Tulk v Moxhay (1848)
•Facts: Land was sold to Elms in a conveyance in
which he covenanted to maintain it uncovered
by buildings and in a neat and ornamental
order. Elms sold to the defendant who
intended to build, was aware of the covenant
albeit it was absent in the conveyance.
•Issue: Whether the defendant could use the
land in a manner contrary to the covenant.
 110

•Held: An injunction was granted against the

defendant to restrain a breach of the covenant.

…Restrictive covenants – burden on the servient

land

•A covenant is intended to burden the servient

land
•For a covenant made by the covenantor for
himself, his heirs and assigns, the burden will
run with the land.
 111

…restrictive covenants – protection of the dominant

land

•Vital that 2 plots of land exist as with easements.

•Proximity of the plots is crucial.
•Covenantee loses the right t enforce the
covenant when it becomes reasonably
impossible to regard the covenant as benefiting
the land.
•Exceptions to the requirement of the covenantee
holding adjacent land include lease and
mortgages, statutory exceptions and remedies in
tort and contract.
 112

…restrictive covenants
•London County Council v Allen (1914)
•Facts: Plaintiff sold land to the defendant who
covenanted not to build on a small piece of the
land of the land, plaintiff had no other land in
the vicinity, plaintiff sold the land to his wife
who commenced building. The plaintiff sought
an injunction.
•Issue: Whether the injunction would be
granted.
•Held: Injunction was refused as the plaintiff had
no dominant land to be protected by the
restrictive covenant.
 113

Building schemes
•Also known as schemes of development.
•Have peculiar characteristics due to the
principle that benefits of covenants in equity
run according to the intention and interest of
the original parties.
•Restrictions placed on purchasers of plots when
land is bought according to plan.
•For example, covenants restricting trade or the
erection of cheap buildings.
 114

… building schemes – conditions for validity

•The plaintiffs and defendants must derive their
title from a common vendor.
•The vendor laid out his estate for sale in lots
subject to restrictions to be imposed.
•The vendor intended the restrictions to benefit
all the lots to be sold.
•Plaintiffs and defendants purchased their plots
from a common vendor.
 115

…building schemes
•Elliston v Reacher (1908)
•Facts: Building scheme created in 1861, plots
sold from an office in Ipswich, scheme covered
10 acres at Felixstowe. Office had a large wall
plan with dominant restrictive covenants which
were intended to preserve the area’s exclusive
nature.
•Issue: Whether the plaintiffs could enforce the
covenants.
•Held: Natural inference from the advertising
that the scheme creator intended them to
be mutually enforceable.
 116

Questions

•Distinguish between privity of estate and privity

of contract?
•Discuss the law relating to restrictive
covenants?
•What are the essentials of building schemes?
 117

EXPROPRIATED PROPERTIES
Expropriated properties -
Introduction
•Asians came to Uganda as casual laborers
during the construction of the Uganda railway.
•Stayed behind after completion of construction
and dominated the economy while Africans
were involved in peasant farming, laborers in
mines and plantations.
•Africans complained, colonial government made
reforms like the formation of the Lint
Marketing Board , Uganda Development
Corporation.
 118

•President Idi Amin ordered for the expulsion of

the Asians in 1972.
… expropriated properties - Constitution
•The right to property is guaranteed under
Article 26, 1995 Constitution.
• Article 13, 1967 constitution provided for the
right to property as well.
•Exceptions to the right are compulsory
acquisition by the state subject to adequate
compensation.
•Acquisition must be made in public interest,
health, safety and morality.
 119

Expropriation - meaning

•Refers to the state’s action in enforcing

compulsory surrender of private
property without compensation.
•Different from compulsory acquisition which
entails compensation.

How the expropriation was done

•Cancellation of entry permits
 120

•Declaration of assets
•Appointment of agents
•Vesting of properties
•Management of expropriated property
•Compensation

… expropriated properties – cancellation of entry

permits

•The Immigration (Cancellation of Entry Permits

and Certificates of Residence) Decree No. 17 of
1972 provided that all persons of Asian origin
 121

who were citizens of India, U.K, Pakistan,

Bangladesh had their permits withdrawn and
were given 90 days to leave.
•The Immigration (Cancellation Of Entry Permits
and Certificates Of Residence) (Amendment )
Decree no. 30 of 1972, amended the above
decree and extended the cancellation of
permits to all persons of Asian origin regardless
of their citizenship.
 122

… expropriated properties – declaration of

assets

•They had to declare their assets and liabilities

and any other particulars about their
businesses.
•Declaration forms to be submitted to the
minister with title deeds, debentures, contracts
and loan agreements.
•Minister would then list these in the register of
declared properties and businesses.
 123

…Expropriated properties - Appointment of agents

•Agents were appointed for the sale of property

to Ugandan citizens.
•Had to ensure the safety and protection of the
property until it was sold to a Ugandan.
• The approval of the Abandoned Property
Custodian Board which was formed under
decree no 29 of 1972 was necessary.
• Decree provided for all unsold property to vest
in the Ugandan government and then be
transferred to the departed Asians panel.
 124

…expropriated properties - Vesting of properties

•These were vested in the government and the

board.
•Included properties which the Asians never
declared.
•Those whose management wasn’t arranged for
by the Asians.
•Those appropriated by the Properties and
Business (Acquisition) Decree. No. 32 of 1972
 125

…Expropriated properties - Management of

expropriated property

•Consolidated in the Assets Of Departed Asians

Decree 1973.
•All assets and liabilities vested in the
government were transferred to the Departed
Asians Property Custodian Board, established
under S.5 of the decree.
•Board was a body corporate, had to manage all
properties, pay all debts and discharge all
mortgages.
 126

•Had to collect all debts and monies due to the

departed Asians.
…expropriated properties - Compensation

•Uganda was under immense international

pressure from countries like Britain.
•Made compensation a condition for the grant of
donor funds.
•Led to the enactment of Decree No. 12 of 1975
which amended Decree No. 27 of 1973.
•It provided procedures for the assessment,
determination and payment of compensation
to all departed land owners.
 127

•Also allowed for the belated declaration for

Asians who hadn’t declared their properties.
…Expropriated properties – reversing the
expropriation

•The Obote government was forced to return the

properties due to continued pressure from
Britain.
•Africans were unhappy due to the loss of
lucrative business opportunities.
•Led to the enactment of the Expropriated
Properties Act (E.P.A)
 128

EPA – Purpose of the Act

•The EPA was a remedial statute which had to
be given a broad interpretation so as to
address the mischief of expropriation.
•Its long title stated that it was to provide for the
transfer of businesses and properties
expropriated during the military regime to the
Ministry of finance and for their return to the
former owners.

Properties to which the act applied

 129

•Properties to remain vested in the government

and to be managed by the Minister of Finance.
•Properties vested in the government and
transferred to the Departed Asians Property
Custodian Board (DAPCB) under the Assets of
Departed Asians Decree , 1973.
•Property acquired by government under the
properties and business (Acquisition Decree.)
•Property in any other way taken over by the
military regime other than those to which the
repealed National Trust Decree applied.
 130

… expropriated properties – ministers powers

•Was empowered to return the properties to the
former owners (re-possession).
•The application had to be made within 90 days
of the commencement of the Act.
•The minister would then issue a certificate of re-
possession if satisfied with the application.
•This was sufficient authority for the transfer by
the registrar of titles.
•However, the deadline was later extended to
13th May 1993.
 131

… expropriated properties – joint ventures

•Joint ventures were entered into when the

government was interested in property which a
former owner sought to re-possess.
•If the parties came to an agreement, the
minister would then issue a certificate
transferring the property.
•They were entered into in respect of facilities
like schools, hospitals.
 132

… expropriated properties - sale

•This was only possible where:
1. The former owner failed to apply for
repossession within the prescribed time.
2. The minister was dissatisfied with the merits
of the application.
3. Failure of the joint venture effort.
4. The owner’s failure to return and settle in
Uganda within 120 days after issuance of the
certificate of re-possession.
… expropriated properties - Appeals
•Appeals from the minister’s decisions
 133

•An aggrieved party had the right t apply to the

high court within 30 days from the date on
which the decision was communicated to him.
•Tenants were entitled to occupy the premises
until the minister dealt with them.
•Mortgages, liens and other third party claims
created by former owners before expropriation
were to be dealt with in the normal way.
•Leases which expired in the interim period were
to be revived.
•Re- entries which followed these leases were
nullified.
 134

•Re: An Award filed by the Collector (1959)

•Facts: The Ugandan government declared that
it required land for a public purpose, took
possession of mailo land. The collector made
an award to both the government and the
mailo owner who objected on grounds that the
railway tracks were fixtures which belonged to
him.
•Issue: Whether the compensation should be
appropriated.
•Held: the collector was right in appropriating the
compensation as a railway line on mailo land
didn’t belong to the mailo owner and
accordingly, the government could remove it.
 135

Questions

•“The Expropriated Properties Act is a total

contradiction of the legal principles relating to
land under the laws of Uganda.” Discuss.
•Discuss the law relating to expropriated
properties in Uganda?
MORTGAGES
 136

Introduction
•Are governed by the Mortgage Act.
•A mortgage is one of the forms of security one
can use to secure his indebtedness.
•Other forms include liens, pledges, guarantees.
•Could be in form of land or chattels, land is the
best form of security as its immovable, doesn’t
perish although its character may change.
•The debtor is called the mortgagor while the
creditor is the mortgagee.
•In case the debtor defaults in payment, the
creditor can sell the land to discharge the debt.
…mortgages - definitions
 137

•S.2 Mortgage Act

•In Santley Vs White, Lindley MR, defined a
mortgage as a conveyence of a legal or
equitable interest in property with a provision
for redemption
…mortgages - definitions
•Mutambulire Vs Yozefu Kimera (1975)
•Facts: Appellant lent money to the Respondent
who offered his house and kibanja as security.
Respondent failed to pay, Appellant took
possession, Respondent brought proceedings
to recover his property.
 138

•Issue: Whether the arrangement was a

mortgage or a contract of sale.
•Held: Transaction was a mortgage governed by
the law relating to mortgages. Respondent
would redeem his land on the due date offer
repayment of the debt.

Consideration for the Mortgage

•Mortgagor/ Mortgagees relationship is
contractual, usual essentials of a valid contract
must exist.
•Consideration is a debt, whether present, future
or contingent.
 139

S.115 RTA provides for mortgages

•Ss.5,6,7,10 Mortgage Act
…considerations
•Pregji Vs Lubega Nasanil (1964)
•Facts: The Plaintiff lent money to the
Defendant. The Defendant defaulted in
payment, property was put up for sale by public
auction but there was no buyer, The Plaintiff
claimed the balance.
•Held: Parole evidence was admissible to show
that the money was advanced.
 140

Creation of Mortgages
•Searches and Inquiries - S.210 RTA provides for
searches i.e
•inspection of the Register book Ss. 145,184 (c)
,189; Land Act S.32(1), 5-6,34, 35(1)
•Legal Mortgages
•Created by executing a mortgage deed in the
prescribed form.
•S.3 M.A- A person holding land under any
tenure may mortgage his/her instrument
•Mortgage to be effective after registration
 141

•However, its still enforcement interpartes even

though not registered
… Creation of Mortgages

•De Souka V Kassamal, Nanji (1963)

•Facts: The Appellant mortgaged his land to the
Respondent , Mortgage deed signed by the
Appellant but not the Respondent, Appellant
sued for declaration that the deed was void.
•Issue: Whether absence of the mortgagee’s
signature is a matter of substance.
 142

•Held: Law doesn't require the mortgagee’s

signature so as to make the instrument
effective and neither does it require both
… Creation of Mortgages •Equitable Mortgages
•Created with depositing a mortgage deed
•Mortgagor deposits a certificate of title with the
mortgagee with the intention to create a
security
•Equitable mortgage notified to the public
through the lodging of a caveat on the land RTA
S. 138
 143

… equitable mortgages
•Barclays Bank & C.O V Gulu Millers Ltd (1998)
•Facts: The Respondent deposited documents of
title with the bank with the intention of
creating an equitable mortgage, agreed to
create a legal mortgage as well. Defaulted on
payment. Bank sought to sell the land.
•Issue: Whether court has power to order a sale
or a foreclosure.
•Held: Court had the power to order a sale or a
foreclosure where an equitable mortgage
existed along side an agreement to create a
legal mortgage.
 144

The equity of redemption

•Equity intervened since the 17th Century to stop
the exploitation of the mortgagor by the
mortgagee.
•Allows redemption although the legal date of
redemption has passed.
•Redemption is the process by which the
property is freed from the mortgage following
the discharge of the loan or obligation secured
against the property.
 145

•Unregistered land, receipt is annexed to the

mortgage deed while an application is made to
the land registry in the case of registered land.
•Right to redeem must be included in every
… the equity of redemption

•Kreglinger V New Petagonia Meat and Cold

Storage (1914)
•Facts: The Appellant agreed to lend the
Respondents the money, security was a floating
charger on their property. The Respondent
agreed not to sell goods to any other person
except the Appellant.
 146

•Issue: Whether there was a clog on the equity

of redemption.
•Held: Agreement with the reference to goods
was a collateral agreement which was
independent of the mortgage, not a clog on the
equity of redemption.
No clog on the equity of redemption
•Any provision which fetters the equity of
redemption is void
•Lewis V Frank Love Ltd (1961)
•Facts: The Plaintiff already indebted to the
mortgagees, Defendant agreed to lend him
more money on a condition that they had
 147

opted to purchase part of the property

comprised in the mortgage, purported to
exercise this option without advancing the
money.
•Issue: Whether there was a clog on the equity
of redemption.
•Held: Defendant’s option to purchase a clog on
the equity of redemption, as if exercised the
Plaintiff would get back his property
The Right to redeem must not be excluded
 148

•Lewis V Franklove (Supra)

•The right to redeem was excluded by the option
to purchase in the Defendant’s favour thus
there was a clog on the equity of redemption.

The right to redeem may be postponed

•Esso Petroleum Co. V Harper’s Garage (1966)

•Facts: A mortgage petroleum filling station
included a term postponing redemption for 21
years and another term requiring the
mortgagor to buy the mortgagee’s petrol.
•Issue: Whether the postponement was valid.
 149

•Held: It was valid.

Collateral advantage
•Mortgage will seek more than loan security
•Folus agreements in the case of breweries,
garages which tie the mortgager to buying his
product
•Such a clause will be struck out if its unfair or
unreasonable, or is a clog on the equity of
redemption
•The test is one of unconscionability. …collateral
advantage
 150

•Biggs V Hoddinott (1898)

•Facts: A covenant contained in a mortgage of a
hotel to a brewer provided that during the
continuation of the mortgage, which was
irredeemable for 5 years, the mortgagors would
only sell the mortgagee’s beer.
•Issue: Whether it was unconscionable bargain.
•Held: No rule that a mortgage cant stipulate for
collateral was enforceable by the Mortgagee.
 151

Enforcement of the equity of redemption

Enforcement of the equity of redemption is
provided for under:
1. Ss. 134, 135,148 RTA
2. Ss.11(1), 11(3), 11(4)(a),12 M.A

Rights of a mortgagee

•Suit
•Appointment of a receiver
•Taking possession of mortgaged property
 152

Suit by the Mortgagee

•S.3(9) M.A may bring a summary suit, seeking

for the sum due, interest, costs, an order to sell
the land.
•The mortgage deed usually has a provision
allowing enforcement without resort to court.
• Govindj Popatla Vs Visandji (1962)
Appointment of a receiver
 153

• Receiver appointed to take charge of the

mortgaged property
• To cause it to settle the mortgagee’s claims
against the mortgagor. S.22 M.A
Mortgagee’s power to appoint receiver
implied in every mortgage
• 15 working days notice to mortgagor, must
be in writing
• S.22(9) provides for priority of receivership
Taking possession of the mortgaged property

• S.24 M.A
•Mortgagor to be given 5 working days notice
•Could be directed physical possession or
indirect by asserting the right of
management over land
…termination of interest
•Kehar Singh V Bhatt (1962)
•Facts: Appellants took out originating
summons for an order of possession of
property mortgaged to them by the
Respondent. Sold the property by auction
without court’s authority before the
summons were issued.
•Issue: Whether the sale terminated the
mortgagee’s interest in the property.
•Held: Sale had terminated their interests in the
property, had no right to possession.
 168

Receiver
•Downsview Ltd V First City Corporation (1993)
•Facts: The Mortgagor brought a suit against the
mortgagee and the receiver claiming that the
receiver was reckless, fraudulent and in breach
of his duties.
•Held: Mortgagee must appoint his receivers in
good faith but he owes the mortgagor no duty
to carefully select the receiver.
Foreclosure and sale

•Foreclosure is the judicial process through

which the equity of redemption is finally
extinguished.
•Remedy of last resort - S.26 M.A
•Notice of 21 working days, sale by public
auction
•Advertisement, coloured picture of mortgaged
property
•Mortgagee can’t sell property to himself except
with court’s permission. RTA S.184
Sale otherwise than by foreclosure
•RTA Ss.115,116,210 A
•Uganda Credit and Savings Bank V Senkuba
(1966)
•Facts: The Respondent mortgaged land to the
bank to secure a loan, defaulted on payment,
Bank sent him the statutory notice which
never reached him, Land was sold at a public
•auction. Respondent sued for the unlawful
sale.
•Issue: Whether the sale was unlawful. Held;
Sale unlawful, no notice was served on the
Respondent
Priority of mortgages
• The first in time takes priority for equitable
mortgages
• Two mortgages, first to be registered but not
created takes priority
• Legal mortgages take precedence over
equitable mortgages
• RTA Ss.114, 115,61
 172

173

END