INTERESTS IN LAND

 Legally , a person is said to have an interest in a thing when he has rights , tittles , advantages
benefits duties or liabilities connected with it , whether present or future ascertained or potential ,
provided they are not remote .

 Interests in land may either be legal or equitable. The difference between the two categories of
interest originates from the history of English law where separate counts applied common law
and equity respectively.

Before the judicature act of 1873 of England , rights in law were pursued in the common law
courts while rights in equity were pursued in the courts of equity.

Even in the matters of land , there were interests recognized by common law courts and others
recognized by common law courts and others recognized by the courts of equity , hence the two
categories of interests .

Legal interests in land are those which are specifically and expressly recognized by the law, such
as the interests of a registered proprietor’s f land. Once a person a person is registered proprietors
of land, the law guarantees that his of her title cannot be impeached or attached by any rival
claims except as specifically provided for by the law.

 Further more, legal interests are interests held as against the rest of the war and give rise to what
are referred to as rights in rights in rem .

The laws in “rem” refers to an act proceeding as right available against the world at large

The right in rem in land arising that the right or interest is in the land itself and whoever acquires
the land is bond to enjoy that right whether or not he is aware of it.

 
An equitable interest on the other hand is a right in personation. This refers to an act proceeding
on the right directed against or with reference to a specific person.

A right in personation is exercisable against a person or persons who in the eyes of equity right
to be bond.

 CREATION

 ENFORCEMENT

The enforcement of reputable interests takes the same trend as that of legal interests, where a
court law has determined that an equitable interest exists without the equities being defeated by
the person claiming that equitable interests, the court will enforce the equitable interests as if it
were a legal interest.

 In the case of (WALSH VS LONSDALE (1882 ) 21 CH 9) Lonsdale leased Walshis premises
for a period of seven years and took position . The lease was in writing but was not executed
under deed as was required by the law. The law entitled an owner of leased land where the lease
had been executed by deed to enforce the payment of act by distress on the property of the
lessee.

 Walsh distressed on Lonsdale for arrears of rent dispute the fact that the lease had no been
executed under deed. Lonsdale such claiming that Walsh was not extended to the legal remedy of
distress for rest since his rights were merely equitable.

Court dismissed this agreement and relying on the maximum of equity that equity looks on that
as done held that in the eyes of equity a tenant in possession under a specific enforceable
contract for a lease was in the same position as if the lease had been executed under deed.

 Similarly in the Ugandan case of (SERUNJOJI VS KATABIRA (1988-90) HCB 148), where
the defendant sold to the plaintiff it a piece of land.

A deed or instrument written or paper or parchment signed, sealed and delivered)

Land by a memorandum of sale and the plaintiff paid of the purchase price but the defendant
failed to transfer the title and give possession to the plaintiff, the court granted the remedy of
specific performance and ordered the defendant to surrender possession to the plaintiff.

In essence, where an equitable interest exists, court will enforce it as if it were a legal interest.

 An equitable interest will however not be enforced if the person claiming the equitable interest
has defeated any other equity.

For instance the maximum utter who comes into equity must come with clear lands demands that
one seeking to enforce equitable rights must not be in default himself.

 In the case of (SWAIN US ANYRES (1888) 21 Q D B 289) , court refused to enforce a tenants
interests in equity because he was himself in breach of several terms of the agreement .

 CREATION            

Both equitable and legal interests may be created either by agreement of the parties is by
operation of law.

For instance, where one sells land to another through a formal agent, the purchaser holds an
equitable interest in the land during the time before the contract is fully performed, that is, before
the purchase price is paid in full, before possession is handed over and before the registration of
the transfer. This is an example of creation of an equitable interest in law by

 agreement. Similarly a tenant in ones premises as equitable interest entitling the tenant to
possession of the law. On the other hand , where one is a dependent relative to a deceased person
who owned land , the law recognizes that dependant relative as beneficial owner of the land or
part therefore subject to the appointment of a legal representative ( holder of letter of
administration or probate ) In the case , the equitable interest in land is created by operation of
law .

 WALSH VS LONSDALE)
Priorities among interest

Ranking of different interests in land

 At times different interests in land may exist in respect of the same piece of land and may be in
contention with each other. One would then have to determine which interest takes priority over
the other.

For instance a legal interest may contend with an equitable interest or are equitable interest may
contend against another equitable interest.

The law has set principles to be followed in such circumstances.

a)     Where the interests are of the same nature, the rule is first in time first is right.

This means that the first interest to be created would as a general rule prevail over the subsequent
interests.

For instance, one legal interest competing against another, the first in the time will prevail.
Similarly where there are two equitable interests competing against one another the first in time
shall prevail over all subsequent ones.

The exception here is where there is fraud in the creation of the first interest, and the fraud is
directly attributable to the person using that interest.

b)     Where a legal interest is competing against an equitable interest, two rules applying.
       ( i) the first rule in that where the legal interest was created before the equitable interest , the
legal interest cannot be affected by the equitable interest at all .

        (ii ) the second rule is that where an equitable interest was created beyond the legal interest ,
and the claimed of the legal interest had notice , whether actual or constructive  of the prior
equitable interest , then the legal interest shall exist subject to the equitable interest .

 (see (UGANDA POSTS AND TELECOMMUNICATIONS VS LUSPYA civil Suit no.36 0f

1995 in this case are leaseble piece in land part of which was occupied by another person
altogether. court held that the said occupied could not be evicted as the creation of the lease was
made subsequent to the occupation of part of the land which was visible and therefore within the
notice of the lessee.

However, where a legal interest was created subsequent to the existence of an equitable interest
of which the claimant of the legal interest would prevail.

For instance if one bought land from an administration of an estate and transferred the land into
his names without being given notice of the interests of the beneficiaries of the estate , the
purchases interest should prevail over that of the beneficiaries .

ENFORCEMENT A

Conversion of equitable interests into legal interests

 
 

Under the registration of titles Act CAP 230, all in registered interests are regarded as equitable
interests. However, up coming registration in accordance with the provisions of that act, the
equitable interest becomes a legal interest underfessable or under featable by notice in otherwise
save by fraud in the part of the holder of the legal interest.

LAND TENURE SYSTEM AND LAND ADMINISTRATION IN UGANDA

Land tenure system

The word tenure in land refers to the nature or manner of ownership or holding of land.

It answers the question “How is the land held in as opposed to the  question for how long is it
held “? The latter being a reference to the term estate.

In England , since about 1066 with the inception of the reign of king William the conqueror, all
the land rested in the crown. This is the position ever today whoever holds land in England is
therefore considered to do so at the pleasure of the crown and as a reward for service rendered to
the crown which holds the ultimate / allodial / absolute title. This individual holds an absolute
title and all land is considered to be held under estate (at the pleasure of the crown and for a term
disclosed or undisclosed)

Hence with the colonization of Uganda by the British, all land in the protectorate was deemed to
become crown land. The crown lands ordinance of 1903 made under the Uganda under in
council of 1902 defined crown land to comprise “ any land acquired by the though

 
 

treaties with native rules and land under control of the crown by virtue of the protectorate .

In the same view, the crown land (federation) ordinance of 1922 (CAP 118 of the revised lands
of Uganda of 1951) provided that all the land in the protectorate of Uganda and any rights there
vested and were presumed to be the property of the crown of England unless recognized by
government by document to be the property of any person or until the contrary was proved.

This position changed with the attainment by Uganda of its independence.

Under the 1995 constitution which sets out the current position, Article 237 (1) provides that the
ultimate title in land in Uganda is vested in the cities of Uganda in accordance with the land
tenure system provided for under the constitution .

Article 237(3) of the constitution provides that land in Uganda shall be owned in accordance
with the following land tenure systems:-

a)     customary

b)     freehold

c)      mailo aid

d)     lesseehold

FREE HOLD TENURE

Background

Freehold tenure historically derives its origin in the ancient tenures of England . Service men
such as these serving in the military and Navy were entitled to land which they held by virtue of
and in return for their

service. It was a holding of land in reward for service “which a free man would not think it
derogatory to perform “hence the tem free hold with the inception of the no man conquest and
William the conqueror’s reign, free hold tenure ceased to constitute an ultimate title and became
subjected to the crowns absolute / allodial ownership of all land in England. Free hold tenure
therefore also came to fall into the category of estates namely:-

a)     Free trail, which comprised land granted in free hold to a man and his heirs. A general
trail in which case the land built be in title by ones heirs , whether male or female and
irrespective of the matters or a special trail which would restrict inheritance only to
specific heirs , say those born to a specific woman , ar tail female, meaning to be
inheritance by male heirs or female heirs , respectively .

b)     Free single , which comprised land granted in free hold to a man clear of any
condition , limitations , or restrictions and inheritable by any heir whether male or female
, lineal collateral or otherwise .

The closest the post – William the conqueror free hold came to pre-William the conqueror
freehold is the free ship absolute, which is perpetually continuous and not determinable.

 
 FREE HOLD TENURE IN UGANDA

The free hold tenure in Uganda is an absolute and perpetual ownership in character
unrestrained by estate.

It is provided for under Article 237 ( 3) (b) of the constitution of Uganda of 1995 and section
3 (2) of the land Act CAP 227 .

It derives its legality as a form of tenure from the constitution and has the following incidents
or features derived from written law:-

a)     It involves the holding of the registered land in perpetuity or for the period less than
perpetuity which may be fixed by a condition  S. 3 ( 2) a .

b)     Enables the holder to exercise and enjoy full powers of ownership including :-

(i)                 using and developing land for any lawful purpose

(ii)              taking and using any and all produce from the land

(iii)            disposing of the land to any person by testament ( w .11)

(iv)             Entering into any transaction with the land including selling, leasing,
mortgaging, subdividing, creating trusts and other rights in respect thereof.
 

The law however, provides that a title in free hold may also be issued subject to any conditions,
restrictions or limitations, positive or negative

Historically , the free hold tenure came with the colonization of Uganda by the British and
ideally developed and became operationalised from three isolated scenarios the crown lands
ordinance of 1903 , the native free hold created under the 1900 Toro agreement and 1901 Ankole
Agreement and the Adjudicated free holds of 1955 .

Under the crown hands ordinance of 1903, the governor had extensive powers to dispose of the
crown lands even in free hold. Early policy of the protectorate government was to grant free hold
titles to European settlers.

This practice and the incentives give to native Baganda chiefs to grant free holds to Europeans
and to the church led to the creator of a number of free hold ownerships.

In Toro and Ankole, the agreements signed between the British and the kings provided for the
grant to the kings of free holds out of crown lands.

Large chunks of land were curved out of already existence crown land converted into free hold
and given to the kings personally and others as a par of their official states. These agreements led
to the existence of the free hold lands in that area.

 
Other free land holding were created in 1995 under the protectorate government attempts to
encourage private ownership of the land especially in Kigezi, Bugishe and Ankole

All the above free holdings were abolished and converted into house holds of public land by the
law reform decree of 1975 but subsequently reconstitute by the 1995 constitution and the 1998
land act (cap 227 of the review laws of Uganda of 200)   

LEASEHOLD TENURE

A lease is tenure under which one party grants to another exclusive possession of land for a
period creating a relationship of law land and tenant or lesson and lesson.

Lease hold is provided for as a form of land tenure in Uganda under article 237 (3) (d) and
section 3(5) of the land act CAP 227.

A lease hold tenure in Uganda may be created in respect of any land hold under any other form
of tenure or which is hold by any controlling

authority such as the Uganda land commission, district law board or other land board

A lease to a Ugandan citizen may be for any term of years whether specified or not. However,
through article 237 (2)c permits grants of leases to non Uganda citizens, a non citizen may not be
growth a lease in excess of 99 years (section 40(3) of CAP 227).
 

Under section 3(5) of the land Act, a holder of a lease hold may exercise the powers of a free
hold owner as are appropriate, that is, in respect of developing the land, taking and using any and
all the produce from he and, entering with any transactions of sell, mortgage, sublease, creating
trust and other interest ad disposition by testament (will). a lease hold tenure Pursuant to the
provisions of articles 237 (5) of the court, helping a citizen may be in converted into a free and
tenure in accordance with sections 28 of the land Act.

Conversion of leases into free holds

The conversion of lease hold tenure into free holds constitutes an up grade of tenure. It is
provided for by article 237 (5) of the constitution of Uganda of 1995 and factors 28 of the land
Act CAP 227.

Convertible leases, however, are only those which satisfy certain statutory qualification namely;-

1. The lease must have been existing and in force at the time the land act CAP 227 came
into force and must have been a lease out of public land;
2. it must be a lease held by a Ugandan citizen.

3. the board must prior to granting conversion satisfy itself that:-

a)     The lease is authentic and genuine

 b)     There were no customary tenants or land at the time it was granted or it were
any, that there was a disclosure and that they were dully compensated.

c)      That all the developmental conditions attached to the lease have seen
compiled with.

d)     That all other conditions imposed by the law from time to time have bees
compiled with of payment of property rates etc.

e)     That the land which is the subject of the lease does not exceed i.e. hundred
(100) hectares and if it does that it is in the public interest to grant the conversion

4. In case where the proposed conversion affects land measuring over one hundred hectares,
the chief government values would determine the market values of the land as at the time
of the conversion and the owner world be required to pay the said amount for the new
interest before the conversion build come into force.

The conversion is completed upon registration of the same with the registration of titles and by
the endorsement of the conversion by the registrar on the original and duplicate titles.

Where on conversion there was a sub lease created by the lessee, the sub lease shell IPSO facts
be upgraded to a lease and shall thereby becoming registerarable as a lease by registration of
titles and shall endorse he conversion on the original and duplicate titles f any sub lease already
registered. Non endorsement of the conversion on up grade on the case

 
my be by registrar of titles does not affect the validity of the conversion or up grade.

Where a party is aggrieved by a decision of the board, his remedy lies in an appeal to the land
tribunal which has powers under section 28(11) of the land Act to confirm, reverse, and vary on
modify the decision of the board and to make appropriate orders.

MAILO TENURE

Under section 3(4) of the land Act, mailo tenure involves;-

a)     The holding of registered land in perpetuity

b)     Permits the separation of ownership of land from the ownership of developments on
the land by a lawful on bonafide occupant.

c)      Enables the holders to exercise all the powers of ownership of land subject to the
customary and statutory rights of any lawful or bonafide occupants on the land and their
succession in title. A mailo land owners may therefore use and develop the land for any
lawful purpose, take and use ant and all produce from the land, enter into any
transactions, mortgage, lease, sell, sub divide on create trusts on other interest in the land.

The mailo holders’ rights are also subject to any conditions, restrictions on limitations, positive
or negative applicable to any of the features of this from of tenure. Save for the fact that mailo
holding is subject to the rights of lawful and bonafide occupants, it is in all respects similar to
free hold and it self not convertible to free hold.

Mailo tenure as a form of district land tenure as a form district land tenure-Uganda has its origins
in the 1900 Buganda Agreement signed between Buganda and the British by which one of the
key tenures was not British recognized Buganda’s district land tenure system and agreed to leave
a big part of the land in the lands of the local chiefs who already held the land.  The rest of the
land was taken as crown land.

The medium of measure of the land used was square miles hence the terms mailo in description
of the resultant tenure system.

CUSTOMARY TENURE

  Customary tenure is defined under 8.2 of the Land act as a system of land tenure regulated by
customary rules which are limited in their operation to a particular description on clear of
persons, the incidents of which are descried in section 3 of the act.

The features of the customary tenure system are set out under section 3 and of the following:-

a)     It is applicable o a specific are of land and to a specific descriptions or class persons.

b)     Its governed by rues generally accepted as biding and  c……… to that class of
persons.

c)      Its applicable to any persons acquiring land in that area in accordance with wrong
rules.

d)     It applies local customary regulation and management to individual and house holds
ownerships, use and occupation of the land and all transaction in respect there of.

e)     Provides from communal ownership and use of lawful

f)       Parcels of land may be recognized as sub divisions belong to individuals, the family
on a traditional institution. 

g)     It is owned in perpetuity.

The essence of the customary tenure system is that it is in all ways similar to the mailo and free
hold tenure systems in term of perpental ownership of the land. The key differences are not
customary tenure is fundamentally governed by tenants of customary law, and it is basically not
registered land

The statutory tenures of the customary land tenure system set out under S.3 of the land Act
reflect the nature of customary holdings historically forward in Uganda namely;-

i)       The communal on tribal tenure prevalent mostly in Buganda , Ankole, Bunyoro, and
Toro in which the land was presumed to be rested in the traditional rules as owner on
trustee or that community desired them titles to the land. This system of customary tenure
is characterized by the payments by the land owner of periodical nominal dues to the
traditional rules in recognition of his allodial title. In Buganda the nominal dues were
referred to as Obusulu.

ii) Clan tenure prevalent mostly in Acholi and Kigezi, where clans (other than the      tribe)
took trust of the land with specific individual on family rights being         recognize over
cultivated fields on homesteads.

iii) nominal tenure

This is prevalent in Karamoja where there are no individual claims to land as all land is
recognized to be communal for common use by the entire tribe, but usually only for the tribe
and no other person.

Customary tenure may be up graded to tow levels.

1. Acquisition of a certificate of customary ownership

 2. Conversion into a free hold holding.

Acquisition of a certificate of customary ownership

Section 4(1) of the land act CAP 227 entitles an individual, family on community, holding land
under customary tenure on former public land acquire a certificate of customary ownership on
application to one district land boards

The application is made in a presented from and submitted by with a prescribed fee to the (parish
and committee) of the area where the land is situated.

Upon receipt of the application, the parish land committee issues a not of applicant to the general
public which is posted in a prominent place in the parish and at the subject land it self. The
notice specifies he location and approximate areas of the lad affected and calls upon any
pensions claiming on interest in that land or in any adjacent land which is affected by the
application, where in respect of the surroundings or in any other way, to attend meeting of the
committee at a specified must not be less than two weeks from the date of issue of notice.

The meeting of the committee pn the specified date addressed the claims raised. The committee
has powers drive or an officer of the district land office on any other person recognized to have
knowledge about the land to conduct further investigation about the claims.

 
The committee they make and submit a report with its recommendation to the boards with a copy
therefore the applicant and another mode available written the parish inspection by the interested
parties.

The board on receipt of the report and recommendation of the committee may;-

i)       confirm the recommendation, and where it is recommend to issue the certificate, go a
head to do so with on with conditions, restriction on limitations as it sees fit, on where it
is recommend to refuse issue of a certificate confirm the refusal.

ii)   Return the report to the committee for further actions including requiring further     
investigation on hearings.

iii)              Reject the report of the committee and other issue on refuse to issue the
certificate country to the recommendation of the committee.

 
Where the board rejects or savvies the recommendation of the committee it is subject to give
reasons for its decision all cases however the…. must communicate its decision in writing to the
recorder who under S.68(2) is responsible for keeping records relating to certificate of custody
ownership and certificate of occupancy.

Where boards’ decision is to issue the certificate of customary ownership, the records shall issue
the certificate in the terms of the decision of the board.

Any person aggrieve by a decision of the board my appeal to the law tribunal which has powers
to confirm, vary, revenue or modify the decision of the board and to make such other order or
orders as are permitted by the act.

A certificate of customary ownership confirming and in conducive evidence of the customary

rights and interest specified n it and once issued, all the land to which it refers shall continue to
be used, transaction in and regulated in accordance with customary laws.

 Transactions in customary land in respect of which a certificate of customary ownership has

been issued must be registered with the records and accept cases of transaction kept with him.
Under section S(4) of the land  no transaction in respect of such land can have the effect of
passing an interest in the land unless so registered.

Conversion of Customary Tenure into Freeholds Tenure

S.9 (1) of the Land Act entitles any individual, family community or association holding land
under customary tenure on former public land to convert the customary tenure into a freeze hold
on application to the land board.
The application is made in prescribed form and submitted along with requisite fee to the parish
land committee of the area where the land situate.

Section 12 of the act provides the committee or receiving the application under takes the same
certification as in the case where it is entering an application for a certificate of customary
ownership, that is advertises a notice of application for conversion and posts in on the land and in
a prominent place in the parish. The notice invites person with claims to the land and those with
adjacent lands affected by the application and a date for a meeting to address claims.

The meeting is held not later than two weeks from the date of the notice. After the court the
agreement made the necessary were …, it then makes and submits a deposit to the Board with its
recommendation.

However, for one to apply for conversion of customary tenure to free hold tenure, he need not be
a holder of a certificate of customary ownership and may apply directly for conversion. Where
one is already in possession of the certificate of customary tenure, the advertisement of a notice
and necessary certification under section of 12 of the act would already have been under taken
and need not be repeated. The committee would in the circumstances take who account its
finding in hearing certification that had to the issue of a certificate of customary ownership and
make its report and recommendation. The committee must have also take into account any new
or additional matters not addressed its last report.

The Board in considering the applicants for conversion is also obliged by section 11(2) to
determine whatever the customary law applicable to the land in issue recognizes on provides for
individual ownership of land. Further before approving the report and recommendation in the
past land committee, the board is ……case survey of the land in issue under section 13 of the
Act, the Board has powers to:-

i)                   Confirm and effect the recommendation of the parish land committee by
among the application if so recommended until or without conditions or limitations
and refer the approval to the registration of titles to issue the applicant with a
certificate or where the recommendation is to refuse the application confirm the
refuels

ii)                 Return the report to the committee for further action including further     
investigation and having.

iii)              Reject the report of the committee all together and either issue or refuse to
issue an approval of the application country to the recommendation of the committee.

On essence the final decision lies with the board which is not bund by the decision
recommendations of the parish law/committee.

Where the board has approved an application for conversion of a customary tenure with a free
hold tenure, it must send copy it decision to the registrar of titles who then issues a certificate of
free hold tittles to the applicant in the terms the Boards decision, including ending on the title
any encumbrance, restrictors, condition on limitation as the boars would have determined.

A person aggrieved with a decision of the board may appeal to the land tribunal which may
confirm, vary reverse or modify the session of the Board and make any other on recommendation
as by the Act.

Section 10 of the Act prescribes the same procedure sets out above for virgin applicants for free
holds out of un owned former public land. However, in such insistences, the Board in obliged to
look into any third party rights and to determine their nature, and as well as to charge at fair
market value to be determined by the chief government values and paid by the applicant whether
lamp sum  of installments as may be determined by the Board     

Interests

Other interests in land under the land act cap 227

Other interests in land crested by and unique to the Land Act Cap 227 include interests held by

a)     Lawful occupants

b)     Bonafide occupants

c)      communal land association

  

The purpose of creating these interests in land was to enhance security of ownership of the land,
to increase the number of people engaged in developing the land and to avoid or avert social
strife.

a)     Lawful occupant

A lawful occupant is defined under section 29 (1) of the Land Act Cap 227.  Three categories
of persons fall under this definition

i) Persons occupying land pursuant to Busuulu Envujo law of 1928, the Toro landlord and
tenant law of 1937 and the Ankole Landlord and tenant law of 1937 this category of persons
constitutes ideally customary tenants.

ii) Persons who entered upon any land with the consent of the owner, and includes purchaser.

iii) Any person who was in occupation of land as a customary tenant but whose tenancy was
not disclosed in compensated for by the registered owner of the time he acquired the
leasehold certificate of title.

Bonafide occupant

Section 29 (2) on the other hand defines a bonafide occupant.  Two categories of persons fall
under this definition.

a)     A person who before the coming into force of the 1995 constitution occupied and
utilized or developed any land undistributed by the

registered owner of his agent for a period of twelve (12) years or more, including the
successors in title of such a person.
  

b)     A person who before the coming into force of the 1995 constitution had been settled
on any land by the government or its agent or a local authority inclding the successions in
title of such a person.

c)      where a person was settled by the government on any land, the Act obliges the
government to compensate the registered proprietor of the land on which any person or
persons have been resettled and to give such compensation with five years of the coming
into force of the Land Act Cap 227.

The Act expressly excludes a license on land being on continuity a lawful bonafide occupant.

the law prescribes that where on does not qualify to be a bonafide occupant of land because
of the fact that unchallenged occupation has been for a period shorter than 12 years, a
mediator may conduct negotiations between the registered proprietor and the occupier of
prior negotiation between them were unsuccessful.

A mediator is invited by either of the parties in a prescribed form and his role is merely to
render assistance to the parties to reach an agreement on the occupation.

Lawful and bonafide occupants on registered land are considered to comprise tenants of the
registered proprietors as tenants by occupancy. Tenants by occupancy enjoy security of
occupancy on land for under section 31 of the Act subject to

 
 1. The payment of an annual nominal ground rent, whose value is prescribed by the law and
which is subject to revision every five years by the minister through the land regulation.

In any event, ground rent payable is fixed by the board subject to the maximum amount
prescribed by the law and any party aggrieved may appeal to the land tribunal which may
reverse, vary or modify the decision of the land board.

Under S. 31 of the land Act,

Where the tenant fails to pay ground rent for a period in excess of two years, the registered
owner shall take the following stages,

a)     Serve a notice in the prescribed form upon the tenant to show cause why tenancy
should not be terminated.

b)     send a copy of that notice to the area land committee

c)      after the lapse of one year upon issue of the notice without the tenant by occupancy
having paid the ground rent if the tenant has not within six months challenged the notice
by referring it to the land tribunal, the registered owner may apply to the land tribunal for
an order terminating the tenancy for non payment of rent.

This section appears to imply that upon service of a notice on the tenant, he has a period of six
months within which to challenge the notice before the land tribunal.

the registered proprietor may, however, lose his right to have the tenancy by occupancy
terminated for non payment of rent if he has during the period in respect of which the tenant is in
default intended with the quit enjoyment by the tenant of his or her occupation of the land;

The tribunal also has powers to order the tenant to pay the ground rent arrears in lump sum or in
installments in lieu of granting an order for termination of the tenancy.
 

The tribunal may also grant a termination order subject to conditions including compensation of
the tenant by the registered owner.

2. Prior consent by the registered proprietor to any transaction in the occupancy.  Under S.34 (1)
a tenant by occupany has the right to undertake any lawful transaction in respect of the
occupancy including assigning, subletting, pledging, subdividing, creating third party rights
therein or disposing of by tenant.

However, apart from disposition by will any other transaction can only be undertaken subject to
the consent of the owner.

The consent is sought by an application in a prescribed form.

The owner is obliged to give a response within six weeks of his or her receipt of the application
and such as response may be to consent, with or without conditions or to refuse consent.

Failure by the owner to respond within the prescribed six weeks is considered a refusal.

However, where the registered owner has declined to give the consent or has given consent with
conditions which the tenant fails to fulfill within the time prescribed by the owner, the tenant
may appeal to the land tribunal against the refusal.

The tribunal has powers to grant the consent, with or without conditions, to refuse the consent or
to adjourn its proceedings to allow the owner and tenant to reach agreement; any transaction in
any occupancy undertaken without the registered owner or tribunal’s consent is invalid and is not
capable of passing any interest in the occupancy

A copy of every consent duly signed by the register owner or by the registrar land tribunal must
be registered with the recorder.

Rights of occupancy

1.           Security of occupancy

The tenant by occupancy enjoys security of occupancy guaranteed by section 31 (1) of

the land Act. interference by the registered owner with the occupancy deprive the
registered proprietor of his right to recover any arrears of ground rent and may be relied
upon by the land tribunal under section 32 (1) (b) in rejecting an application for an order
to terminate the occupancy for non payment of ground rent.

2.           Right to undertake any transaction in the occupancy with the consent of the consent
of the land tribunal including the right to sublease, pledge, subdivide or create third party
rights.

3.           A tenancy by occupancy may be disposed of by testament will.

4.           Conversion of the tenancy by occupancy into a registerable interest i.e. a freehold,
mailo, lease or sublease. Where a tenant by occupancy is interested in acquiring a
registerable interest, he or she may apply to the registered owner who is obliged to respond
within a period of three months after receipt of the application.

Where the owner is agreeable to the application, he may cause the registerable interest to be
granted to the tenant by occupying upon any agreed terms and conditions.

The registered owner is also entitled to refuse or to make any offer to the tenant.
Where registrations between the owner and the tenant have gone or for a period of three months,
any party may invite a mediator to assist the parties with registrations, who may within some
from the negotiations you the copies of the months, the parties being failed to agree.

The right to obtain a certificate of occupancy.  Under section 33 of the land Act, a tenant by
occupancy may acquire a certificate of occupancy by application to the registered owner.  The
registered owner is however, only a medium of the application and cannot present the grant of
that certificate save by total denial of the existence of that tenancy by occupancy.

Ordinarily, however, upon receipt of the application, the owner is obliged to forthwith notify the
committee of the application.

on receipt of the notification, the committee appoints a day on which it would visit the land and
determine, verify and adjudicate on the boundaries, and informs both the tenant and the
registered owner of that date.  The date must not be lowe than the three weeks nor more that
three months from the date of receipt of the notification.

The committee would then after due verification and investigations communication its
determination on the boundaries to the registered owner.

Upon receipt of the committee’s determination, the owner is obliged to give the tenant consent in
a prescribed form.  There is no provision for a right of appeal against the committee’s
determination or boundaries.

Upon receipt of the consent, the tenant presents the same to the recorder who then issues a
certificate of occupancy to the tenant and notifies the registrar of titles in turn registers the
certificate of occupancy as an encumbrance on the registered owner’s certificate of title.

Where the registered owner on receipt of the committee’s determination on the boundaries
reforms to give the consent, a period of six months after receipt of that determination has not
granted the consent to the tenant by occupancy, the tenant may apply to the land tribunal or
receipt of that graul, the land tribunal is obliged to give the consent to the tenant which would
operate in place of the registered owner’s consent.

Tenant by occupancy’s first option to purchase registered owner’s reversionary interest

under section 35 (2) of the land Act, an owner who wishes to seek his or her reversionary interest
is obliged to give the first option to the tenant by occupancy and upon failure of negotiations and
a mediator’s declaration to that effect may then sell to any other party.

Termination of a tenancy by occupancy

A tenancy by occupancy may be terminated in the following circumstances;

1. By an order of termination issued by the land tribunal for reason of non-payment of ground
rent by the tenant by occupancy or upon failure to pay any arrears where the order for
termination was suspended for any period of time to give the tenant an opportunity to pay and
such time has lapsed.

2. Upon voluntary abandonment by the tenant by occupancy of the occupation.  The tenant may
in such a situation remove any structure, buildings or other development placed on the land by
him except dams and trees.  However the tenant is not entitled to any compensation for loss of
the occupancy.

A tenant by occupancy is deemed to have abandoned the occupancy where he or she gives notice
to the owner of the interest to abandon the occupancy or he or she leaves the land unattended to
by himself, a family member, agent or authorized authority for a period of three years.
Disability constitutes an exception to the three year rule and the three years would only run with
effect from the time the tenant ceased to be under the disability.

However, tenancy by occupancy is an urban area is not extinguished by reason of the demolition
of condemnation of the tenant’s building by any authority authorized by law to do so, and the
tenant may assign the occupancy, subject to the registered owner’s right of first option, for
valuable consideration.

3. Acquisition of the occupancy by the registered owner in respect of cconsed developments

section 37 (4) (c) of the land Act empowers a registered owner, with the approval of the board, to
acquire the right of occupancy on his land in an urban area by compensating the tenant by
occupancy for any developments by government. This option is applicable only where the
tenant’s rights are affected by demolition or consideration of his developments by an authorized
authority.

4. Assignment of the tenancy of occupancy to the registered owner by mutual consent.

5. Purchase of the registered owner’s reversing interest by the tenant.

6. By an order of court.

DEVELOPMENT FEATURES UNDER THE LAND ACT CAP 227

 The enactment of the land Act Cap 227 was basically motivated by what was considered as
development gaps in the land law that was in place at the time.  The legal regime there were
complaints that development was inhibited by
 -         inaccessibility to land by the large majority of the population

-         lack of security of tenure for certain types of land holding

-         inaccessibility to land by women and other monitories – land fragmentation

-         Inability to use certain land as security for loan.

The land Act was therefore meant to address and cure some of these mischiefs.  The
development features in the land Act are both specific in request of the respective types of
tenure, and also general common to all tenures in other respects.

Customary Land Tenure

Customary tenure is defined under section 2 of the land Act as a system of land tenure regulated
by customary rules which are limited in their operation to a particular description or class of
persons, the incident of which are described under the Act.  The incident of customary tenure are
set out under section 3 of the Act..

Previously, customary tenure was not a registerable tenure and holders of customary tenure were
considered tenants at sufferance on the land.

The evidence of this was that customary tenants could be evicted from the land upon receipt of
compensation for developments.

On proof that compensation had been furnished, whether accepted by the customary tenure
holder or not, the registered owner of the land could evict the customary tenure holders.

 
Under the land Act Cap 227, security of tenure of the holder of a customary tenure is reinforced
by certificates of customary ownership

A holder of customary tenure is entitled to apply for and hold a certificate of ownership in
respect of his or her land.

Under section 4 (1) of the land Act, an individual, family or community holding land under
customary tenure in former public land may apply for and acquire a certificate of customary
ownership from the district land board.

b) The creation of lawful occupancy over land

Section 29 (1) of the land Act creates a lawful occupancy, comprised in a holder’s of land
formerly under the busulu and Envujo law of 1928, the Toro land lord and tenant law of 1937
and the Ankole landlord tenant law of 1937; persons who entered upon land with the consent of
the land owner including purchaser and holders of the land a customary tenant but whose
tenancies were not disclosed or compensated for by the registered proprietor at the time of
acquiring title.

Section 29 (2) on the other hand creates bonafide occupancy comprised of persons who by 1995
had occupied, utilized or developed land for a period of twelve (12) years or more undisturbed
by the registered owners and persons who, before the coming into force of the 1995 constitution
had been settled on land by government of its agent or by a local authority.

Lawful occupants ideally comprise of holders of land under customary tenure.  The two
categories of occupancy entitle the holder to certain rights which ensure security of tenure. The
holder is entitled to a certificate of occupancy guaranteed by section 31 (1) of the land Act.

The holder may also apply for and acquire a certificate of occupancy under section 33 of the
Act.  That certificate once issued becomes a permanent encumbrance on land of the registered
proprietor of the land.  Further more, the holder of an occupancy comprises a tenant of the
registered proprietor, paying a statutory rent not subject to linking holder of rights of occupancy
also love 1st priority to purchase the registered proprietors of land under section 35 (2)  of the
land Act

c) A customary tenure can also be converted into a superior form of tenure, such as freehold
under section 9 (1) of the land Act, a fairly, individual, community or association holding land
under customary tenure on former public land may convert the customary tenure into a freehold
or application to the land board.

Similarly, a right of occupancy may be converted into any of the other tenures, namely mailo,
leasehold or freehold by applying to the registered proprietor of the land on which the occupancy
is held.

The conversion into any of the other tenants enables the holder of former customary land to
enjoy the rights enjoyed by the superior tenures such as easier access to credit facilities by using
the land as security for the facilities.

Security of tenure re-enforces the land owner’s commitment to effect development on the land,
without fear that such development would be lost once the land was taken away, irrespective of
whether or not compensation of such development is duly available.

The issue of certificates of title to a holder of land enables the holder thereof to access credit
facilities such as loans, overdrafts, and bank and insurance guarantees.  The security or collateral
traditionally tendered for by the grantors of such facilities is land, reflected in land certificates. 
Previously, the absence of certificates of title in respect of customary land inhibit the holders of
customary tenure accessing credit despite their vast holdings.

FREE HOLD TENURE

Freehold tenure is provided for under section 3 (2) of the land.

It is an absolute and perpetual ownership of land unrestrained by a tribute and involves the
holding of registered land with full powers of ownership.

prior to the enactment of the land Act Cap 227 and the coming into force of the 1995
constitution, freehold tenure had been abolished and converted into 99 year leases subject to
development conditions. This was in accordance wit the section 2 of land reform decree of 1975. 
the 1995 constitution reinstated freehold tenure and did away with the development conditions.
The rationale behind the removal of development conditions for freehold tenure was that self
motivated and planned development was more desirable and probable, than officially coerced
development.  Further, it was hoped that the absence of development conditions, which affected
the land owner’s right to freely deal wit the land, would encourage a free and more vibrant land
market had been converted into leaseholds of ninety nine (99) years for individual and 199 years
for institutions.  The land Act Cap 227 reversed the position created by the 1975 land reform
decree and reinstated the perpetuity of tenure of mailo holdings. This was intended to guarantee
security of tenure of mailo land holdings in the hope that this would in turn increase the level and
quality of the development on the land.

Leasehold tenure

The land Act Cap 227provide for leasehold tenure under section
The land Act cap 227 did not substantially affect the nature of a lease.  However, it abolished the
statutory leases, did away with the statutory requirement that leases generally were subject to
development conditions.

Instead, it gave way for contractual leases, such as those between customary, mailo or freehold
land owners and their leases or

In addition to the removal of development conditions in respect to freehold tenure, the land Act
also made it possible for other tenures to be converted into freehold, which would enhance the
land owner’s security of tenure and easier access to credit through the mortgaging of such land.

A freehold characterized by absolute ownership unhindered by development conditions has been

criticized as vesting the owner of the land with extreme powers of use and abuse of the land.

However with the development of new fields of jurisprudence such as environmental law and its
provisions on noise, and in pollution among others, abuse of ones land has been delimited to less
extreme extents.

Mailo tenure

Mailo tenure is provided for under section 3 (4) of the land Act cap 227.  It is registered bund
held in perpetuity but subject to customary and statutory rights of lawful and bonafide occupants
on the land.

Under the 1975 land reform Decree,  also mailo tenure as previously existed had been abolished,
and holdings, under that tenure  and the leases between the Uganda land commission or district
land board on the bid and their leases
Contractual leases, however, are not purchased from having development conditions embedded
in them, and in practice often have such conditions.

GENERAL DEVELOPMENT FEATURES UNDER THE LAND ACT CAP 227

1. Communal land associations

The land Act Cap 227 provides for the creation of communal land associations
registerable under the Land Act by a district registrar of titles.

The Act provides that any group or persons may form a communal land association by
applying to the district registrar of titles.  On receipt of the application, the district land
register shall convene a meeting of the group and where 60% of more of the group is
agreeable to the formation of the association, an executive committee, at least one third of
whom must be women shall be elected. The execution committee would then prepare a
constitution whose terms must be in accordance with the Act.

Where the registrar’s is satisfied that all the legal requirements have been duly copped
with, he or she must register the association. Communal land associations are bodies
corporate may hold her under any term, namely customary, mailo, freehold and leasehold
may sue or be sued as such.

The intended purpose of communal land associations was to enable traditional joint views of
land to take ownership of the land and control its management.

The managing committee of the communal land association is prohibited from entering into any
dealings with the land except where a meeting of the association has approved the dealing by
majority vote.

 
Under the communal land association, individual or family ownership of portions of land is
recognized, and dealings in this land are permissible where all the parties involved are members
of the association. 

It was also hoped that this kind of arrangement would bring an end to land fragmentation and
give rise to more sound management of land.

2. Creation of a dispute resolution mechanism

The Land Act 227 established a mechanism for the expedient resolution of land disputes.  the
land dispute resolution mechanism starts at the parish or local council 2 level, to the sub county
or local council iii level, to the district level tribunals and ultimately to the Land division of the
high court.

There was recognition that development is largely hinged on property rights and disputes
pertaining to these rights necessarily inhibit development.  The expedient resolution of land
disputes through a specialized system would therefore facilitate development by avoiding delays
caused by overstaying injunctions and inaccessibility to the ordinary courts of law by the
majority of the population.

3. Protection of family interests

The Land Act cap 227 makes provision for the protection of the interests of a land owner’s
family.

The protection is accorded to the fairly irrespective of the term under which the land is held, and
is held, and is accordingly applicable to all forms of land holding.

 
The Act provides that no owner of land shall sell, mortgage or denote any land on which his or
her family resides or from which their livelihood is derived, without the consent of his or her
spouse.

The consent must be communicated by the spouse in person to the parish committee of the area
where the land is situated.

Previously, the Act had also required the consent of the adult children of the land owner, and of
the parish committee where the children were minors.  This latter position was however removed
by amendment

The essence of this protection is that development through a free and vibrant land manner, access
to credit and free dealing in land should not be at the expense of the social harmony.

Rather, it should be wholesome, involving all the persons whom it is entitled to benefit.

LEASE.

A lease is an interest in land by which one party grants to another excusive possession of land for
a period.
This creates a relationship of landlord and Tenant on lesson and Lease. The landlord of lesson is
the grantor of the interest which the tenant on lessee in the recipient of the interest. The right to
exclusive possession softens given for a monetary Consideration called rent the lease is often for
a period and later land take possession. The types of lease may be classified variously depending
on the circumstances and nature of the parties’ relationship.

a) Fixed Term lease

This is a lease given for a specific period of time .the extent time of its commercial and
termination are ascertainable right from the start and even before the lease takes effect examples
are leases for 49yrs of 99yrs.

A Lease for the life of “X” would therefore not fall under the category.

b) Periodic leases

These are leases for a specific Intermittent periods such as week , moth of year often in the
absence of an agreements sequence in which  rent is period to the land lord on lesson determines
the period for which the leave is durable.

If rent is paid monthly, then a monthly lease is consulted.

c) Tenancy at will.

A tenancy at will is created where an owner of Land allows another to eaten into possession of
the land another any specification as to the terms of the tenancy.
 

For instance where an intending tenants is allowed to take possession pending negotiation of the
terms of the tenancy.

Or where a purchase of Land who has not fully completed payments is allowed to enter another
land and take possession a tenancy at will  may be terminated by another party another notice to
the often.

A tenancy at will any however be convent into a periodic lease if the tenant’s effects and the land
lord accepts payment of rent over a period of time.

d) Tenancy at sufferance

A tenancy at sufferance is created where the tenant remains in the Leased permits after the expiry
of the fixed term tenancy, without the consent or objection of the landlord. No rent is payable
under such a tenancy, and it is may be terminate another notice. However, when the landlord
seeks Compensation form the tenant for the period during which the tenant has remained is
premises, that compensation does not cost the rent and is referred to as mesne profits.

Essential features a lease.

(see Omar Bin M…………………………sale to (1957) EA 486

A lease has several essentially features fundamental another which are Duration
Exclusion

Possession

Duration

A lease is considered to have a specific period of time and where the paint of termination cannot
be a ascertained, the giving of notice of termination sets the sate of termination ( see ASHBUM
ANSHALT VS ANOLD 4 Anon 1988 2 Au Es 147)

At common law, a lease must have a ascertained beginning and end. Where the beginning and
end cannot be specifically a ascertained, the lease is void another cable.

In the case of (LACE VS. CHARTER (1944) a All ER 305), a house was leased to a lease
during the second world war for the duration of the war. The court held that the lease was void
since it ends, like the end of the war was not ascertainable.

Hence at common law, the landlord and tenant have not power to create a lease whose term is
not certain.

In Uganda , section 3 (5) c) of land Act Cap 27 departs from  this common law position and a
lease world nor be unenforceable mainly because its term was un specified

Exclusive Possession

 
Exclusive possession refers to the right to use the land to the exclusion of every one else
including the land owner for that duration of the grant.

(STREET Vs MOUNT for (1985( 2 ALLER 289 +292)

 The lease need not contain express terms as to the right to exclusive possession. The right is
inherent in a lease

The land lord cannot derogate from the grant through he may repair aright to access the premises
for certain purposes.

For instance the law allows a landlord to accent the premises for purposes of injuction.

The case of street .Munford held that the grant of exclusive possession to another was the
determinant factors  in ruling out the existence of a Exclusive of possession raises the
presumption that one is a tenant However, there can be exceptional circumstance in the case
where a License may enjoy exclusive possession e.g. service occupiers and family arrangements.

But the burden of proof would tie on that who claims that the occupation is a Licensee

Creation of Leases

 
Leases maybe created either my Agreement the parties on by Es topped, a rising but of the
conduct of the paints that stops either of then from denying the existence of  a Landlord tenant by
stopped is referred to as a Tenancy by estopped.

For instance in the case of (Pardhan Jivry vs. Dudley welpadale (1920-29)3 v LRVIR 193 was
held that the payment of rent and it’s acceptance by another wound be evidence of a landlord and
tenant relationship between the defendant and plaintiff.

Under Tenancy by estopped, either party is also estopped from denying the other’ title. Hence
where a tenant later discovers that the landlord only has an equitable and not legal title, the
tenant cannot deny or challenge the lard lord’s right to receive further rent so as long as he after
pension with a supervision title has interested the tenants possession . This was the position
established by the case of industrial properties (Barton Hill) and other US . Associated electrical
industries LTd. (1977) 1 QB 580.

At common law, a lease for a period in exceeding three years must be by deed under seed. Where
the lease is into deed under steal but is in some other matter form, Equity will recognize the
agreement as one to creates a lease under the maxim in Equity treats as done that which ought to
have been done “The case of (WALSH US. LONSDALE (1882) 21 CH. D 9) held that the
same remedies as those of a common law lease world be accorded to a lease recognized by
equity.

In Uganda section 101 of the RTA requires that a lease for a period over 3years ( which include,
a yearly lease venerable annually as held in the case of (POPAT LAL HIRJI VS LH. LAKHAI
$ CO. (EA) LTD (1960) EA 437) must be executed with sector 51 of the Act.
An un registered lease does not pass an interest in the and to the lease.

Rights and obligation under lease.

Lease gives the landlord and tenant / lesson and lease certain rights and obligations respectively.
These are set out as terms of the lease of tenancy. The terms may either be conditions of
covenants. Conditions entitle the innocent part to terminate the lease of tenancy while covenants
do not unless the agreement expressly says do.

The lease f tenancy agreement after set out the express term agreed upon by the parts.

The lease or tenancy agreement after set out the express terms agreed upon by the parts

Where terms are not expressly set out, or are omitted from the agreement, the law implies certain
terms to the paints which they enjoy on suffer virtue of the existence of a lease.

                                   

The landlord lesson is obliged to the lessee to ensure quiet enjoyment by the tenant of the
demised premises, which means that the landlord ….shall not interfere with tenant lessee’s
possession,

 b) to provide premises fit for human habitation , that is , that the premises do not pose a risk of
personal injury on hygiene; and c) not to derogate from the grant , that is , not to frustrate the
tenant / lessee’s use of the land for the purposes counteracted by the parties.

On the other land, the tenant / licensee is obliged to the would / lesson
a)  He pay the rent reserved on agreed

b) to hand over vacant possession at the end on expiry of the lease

c) To keeps the premises in tenantable repair, i.e. not to commit voluntary of permissive waste
this obligation recognizes that reasonable change of premise wear another inevitable.

(d) To allow the landlord to after the premises inaction at reasonable ….for specific purposes
such as inspection.

Remedies for breach of Covenants

Leases are governed by the; laws of Contract and a breach of a term in the lease constitutes a
beech of contract entitling the other party to general damages.

The aggrieved party may also apply to court for an injunction, which is an order directing to the
other party to desist form continuing with a carrying out the activity or conduct constituting the
breach.

The  tenant and  landlord has several other remedies in addition to damages and an injunction.

These include

a)     Manse profits

b)     Distance for rent

c)      For….of the lease.

 

Manse profits

A landlord would be a entitled to manse profits in case where the tenant remains in the premises
after the expiry of the lessee, instead of handing over vacant possession. It covers the landlord’s
losses full being kept out the premises.

Distend or Distain for rent

This is self help remedy derived from ancient common ten by which the landlord enters upon the
leased premises and attaches the tenant’s chattels of the value of any rent in arrears.

It is a remedy specifically for a breach in rent payment and not for breach of any after term. The
right to distress or distain for rent in Uganda is exercisable only during the currency of the
landlord / Tenant relationship and any not be exercised where that relationship has been
extinguished in the case of (EASTERN RADIO SERVICE $ AWOR  VRJ. PATEL TINY
TOTS $ ANON (1962 EA 818 ANON) it as held that where the landlord has terminated the
lease, he can not there after levy desten.

Similarly in the case of (SOUZE FIGUEIRED VS ,. PANOGO……….( 1959) EA 756), the

landlord sold the leased lard to another person to whom the tenant failed to pay the reserved rent.
Before that purchase could register himself as promoter of the leased land, he sent bailiffs to levy
distren for rent by attachment of the tenant’s chattels.

 
The tenant suit and it was held that in the absence of privities of estate, which world have been
created by the registration of purchases as owen , he could not levy distren for rent and was
liable in trespass and conversion.

Forfeiture of the lease

The term fortitude to the termination of a lease by the landlord before the expiry of the term it is
a remedy exercisable upon the tenants breach term which is the lease. At common law payment
of rent doesn’t constitute a condition, but alienation of possession by the tenant to a third Party
constitutes breach of a condition, As such, the lease itself often expressly gives powers to the
landlord to exercise the remedy even for after breaches such as non payment of rent However in
Uganda , non payment of rent entitles. The landlord to the remedy of forfeiture.

The remedy of forfeiture may be exercised by means of a suit in court on by;

a) re entry which in Uganda is provided for under s.103b) of registration of fifteen Act in lesson
to make a re-entry in the event of non payment of rent by lessee for a period of 30 days , whether
or not a formal demand has been made.

i)                   The retaking of physical possession by the lesson. The use of reasonable
force is permitted the and could not cause civil or criminal liability against the
landlord for assault. (KASSAJA Vs RYISTAN OF TITLE MISC APPLY .0.51
OF 1993)

 
Upon successfully retaking possession by the lesson, the lease is terminated for all interests and
purposes. Where the tenant successfully resists eviction , by filing the suit the lease is terminated
upon serving the tenant with the charge  (Eastern Radio service case).

ii)                 Registration of the remedy

       Upon retaking possession, the lesson of landlord applies to the Registrar of tittles is notes
the reentry in the Register Book. Where the Registrar of the re-entry the lesson / landlord
may seek for a court of order of madams ( NULUSWA VS LUSWAHI  NO S / 74)

(See LUGOGO COFFEE CO (U) LTD VS SINGS COMBINED COFFEE GOWAY

LTD (1976) HRS 92,

(DRISCOLL VS. CHURCH COMMISSION OF ENGLAND (1957) 1QB 330)

It should be noted that the retaking of physical possession above terminates the lease and
refund by the registrar to not the re entry the registrar book does not keep the lease subsisting
However where the landlord demands for and breaches the contract is deemed to have wailed
his right to re -entry.

Relief against Forfeiture

Equity accords defaulting tenant an opportunity to redeem the lease form being frightened,
through an action for relief from forfeiture.
  

A tenant may seek for relief form forfeiture in two air a stances

1. Where the landlord brings an action for forfeiture as is the case where retaking physical
premium form the tenant may be stipulated, the tenant may in same suit apply for relief
from forfeiture.

2.  Where the landlord is in the process of re-entry and is attempting to take physical
phenomenon the tenant may apply to court for relief against forfeiture.

In order to succeed, the re-entry must not be completed. If the landlord has already re-entered
and the re-entry noted in that Register book by registration then the tenant’s entitlement to
relief is estate of Tebajukira $ ……..Vs …………..CA No.2 1988, the …….. …..of Uganda
held that once a re-entry is registered the courts have no ……to grant relief against forfeiture.

Relief against forfeiture is only in circumstances where the is non and where an action for
relief against forfeiture …..Payment of rent property before the court, the deposit in court by
the tenant of all the rent due and the expenses incurred by the landlord would often incline
court to grant the relief.

Courts however book or all the prevailing circumstances and are nor likely to grant the relief
where the lesson has already leased the premises to a third party

( KIWANUKA MUSISI VS. ……….(1973) EA 56)

  

In Uganda an action for relief form forfeiture is brought under the …….of the judicator Act.

Termination of leases.

Leases may be terminated in five ways

1.   Expiry / Efflux ion of time.

Where a lease is for a given period of time, the expiry of that period of time automatically
anguishes the lease.

2.   Forfeiture

Where a tenant is in breach of certain terms of a lease, the landlord may lease. That rights to
termination the lease. That right may either be implied by law, as in the case of 103 (b) of the
registration of titles act in respect of default in payment of rent or maybe written in the lease
tenancy agreement. Forfeiture by recently automatically terminates the lease by the land lord
successfully retaking physical possession of the premises.

3.    Notice

 
Periodic leases are usually terminable by either party giving notice to the other party. period of
notice is usually agreed upon by the parties and act out as one of the terms of the lease or tenancy
agreement, in the absence of agreement a monthly tenancy is terminated by a month’s notice, a
weekly tenancy by a weeks notice, annual tenancy by 3 months notice, and a yearly tenancy .a
six months NOTICE ( MUSUMBA VS, HAJI  (1971) 222) The notice must be un  equinox and
un ambiguous in order for it to be effective and must be served upon the tenant on his agent.

4.    Surrender

Surrender refers to the situation where the lease relinquishes possession of the landlord to the
lesson before the expiry of the term. Once the lessee accepts the surrender the lease is
automatically terminated.

Surrender may be by an express agreement of the two parties or the statutory by operation of law
where the surrender is by express agreement, extension of the agreement terminates the lease as
between terminates the lease as between lessor and lessee. The agreement of surrender must
therefore be registered with the Registrar of titles in order for it to be recognized by both parties.

A surrender by operation of law occurs where the tenant abandons premises and landlord re-
enters, or where the tenant lessee on and landlord if lesson enter into anew lease with different
terms over the same premises before the expiry of the lease.

The law provides that the subsist lease is surrendered and a new one created. Section 108 of the
RTA provides forte surrender of registered leases.

5. Merger
 

Where the tenant of lease purchases the reversion (landlord on lesson’s title) the lease and
reversions are merged in the same owner and the lease cases to exist A merger is the opposite of
a surrender of the lease.

Subleases

Where the terms of the lease of tenancy agreement authorize or empower the lessee or tenant to
sublease the premises, an under leaseor sublease may be created. The sublease must be for a
period shorter than that held by the lessee if the lessee purports .to sublease the premises for the
same period of time as he himself holds, that is a conveyance and not a sublease. The principle of
law governing the lessor, landlord and lessee tenant relationship also the relationship apply to the
lessee and the person to whom the land is subleased

Differences between licensee and leases

Essential term of a lease / Tenancy Agreement.

FIXTURES

A fixture is a thing attached to the land in such a away that in law it becomes part of the land.

 
In further elaboration of the definition of land, the Latin maxim QUIC QUID PLANTATUD
SOL SOLO CEDIT establishes yet another principle.

This maxim means that “THAT WHICH ATTACHES TO THE LAND GOES WITH IT”

The import of this maxim and the principle it establishes it that where one fixes a thing that in
law it is a fixture, that thing on building becomes a property of the land, owner without imposing
on him an objection to compensate the person who attached the thing built on the land. (See
LOMOLO VS KILEMBE MINES LTD (1978) HCB 157)

What constitutes a fixture is a matter both law and fact as a matter of fact where a thing or
structure is fixed to the land in concrete or mortar so as to become an integrated part of the land,
that thing or structure is obviously a fixture and no further proof need to be added. Moreso, if
removal of the thing from the land is likely to cause substantial damage or destruction to the
building or the thing itself, then it is a fixture.

Similarly, where the thing or structure is put on the land by the owner himself with view of
improving the quality of the land and with intention that it be permanently on the land that they
would be presumed to constitute a fixture.

On the other hand, where the intention of the person who places a thing on the land is not clear
or where a thing is only loosely affixed to the land, resort is made to the law. The law provides
two basic tests used to determine whether or not a thing can be a fixture.

             I.      The degree of annexation.

           II.      The object of annexation.

 

I.  Degree of Annexation.

As a general rule, an item attached to the land by any means other than its own weight is
presumed or deemed to be a fixture. In this respect anything attached to the land by use of
concrete, mortar, nails, bolts, screws etc constitutes a fixture.

Accordingly, windows, notice board, electricity, wires, water tank, water heaters are all fixtures.

Conversely, anything on the land attached there by its own weight is not a fixture. Chairs, tables,
a stock of bricks or sand or stones are all not fixtures and are not deemed to be part of the land.

The above principle was enunciated by the……………………….

In the case of (OLLAND VS HODGSON [1872] LR 7 CP 328) the owner of a piece of land on
which he was carrying on a business of textile manufacturing mortgaged the land to Holland . 
The factory buildings on the land had looms fixed into the ground with nails which could be
removed without causing substantial damage to the building. The land owner was eventually
declared bankrupt and Hodgson was appointed his trustee for the benefit of the land owners’
creditors. Hodgson as a trustee removed the nails that held looms to the factory floor and sold the
looms.

Holland challenged the sale claiming that the looms were part of the land and had therefore been
mortgaged with it and could not be removed and sold separately by Hodgson.  Court Held that
the looms constitute fixture and were part of the land mortgaged to Holland . Court also Held
that the slightest fixing to the land is sufficient to raise the presumption that an item is a fixture.
Where an item is so fixed, the burden of proof lies on the person who claims that such an item is
not a fixture.

 
On the other hand, where an item is attached to the land by its own weight, the burden of proof
lies on that who claims that it is a fixture.

II.   The object of Annexation.

Besides the degree of annexation, the object of annexation is used as a basic test to determine
whether or not an item constitutes a fixture. Under this test, the criteria used to determine the
intention of the party is as follow as:

a)     The firmnen of the item on the land.

If its removal is likely to cause substantial destruction to the building on land and to the
item closed there is a stronger presumption that it is a fixture or

 vise –versa.

b)     The capacity of the person placing the item.

If the owner of the land likely places a thing on the item, there is a presumption that it
was intended to be permanently on the land and is more likely to be deemed a fixture.

An item fixed by a tenant on a short term lease is more likely to be deemed not to be a
fixture.

 
      c)    The relationship between the thing / item on the land or building of the
machinery    installed in a factory building constitute part of the land i.e it goes with the
building and land. (See HOLLAND Vs HODGSON [1872] LR 7 CP 328).

Third party rights in fixtures:

In certain circumstances, things or items which are otherwise fixture may be removable by a
person who attached or fixed or entitled him to compensation. These situations constitute
exceptions to the general rule set out in the maxim QUIC QUID PLANTATUD SOL SOLO
CEDIT, these exceptions are the following;

a. Mutual agreement.

This is where the land owner and the person who has fixed the thing/ or item          agree
that it shall be removable.

b. Tenants’  fixtures.

Items fixed by the tenant for the effective and necessary us of premises are removable by
him or her. These include trade fixtures which are fixed by the tenant for purposes of
transacting the business for which the premises are rented such as production machines,
 gas pumps, shelves, counters, cookers and ovens, over head fans, generators, water
pumps etc.

Ornament fixtures such as statutes and picturesque used for decorations and fixtures for
house hold purposes such as domestic cookers and water pumps, curtain blinding etc.

The case of NEWZEALAND GOVERNMENT PROPERTY CORP Vs HM & S

LTD[1982] 1 QB 1145. is good authority in respect of tenants’ fixtures. However, a
tenant must remove his fixtures during the substance of the tenancy and when it expires,
the fixtures are deemed to have been forfeited to the land lord. More over, the tenant is
obliged to repair any damage caused by his removal of the fixtures as his obligation to
leave the premises in tenantable repair remains unabated.

c. Acquiescence / Estopped by acquiescence / Property estopped.

This arises out of the situation where the land owner, aware that someone is placing a
thing or building on his land out of error, that person believing the land to be his and the
land owner refrains from stopping that person. The land owner would not be entitled to
claim the thing or building to the defilement to that person.

Estopped by acquiescence is an equitable remedy to a person whose mistake is being

taken advantage of by a ludicrous land owner and this exception to the general rule of
QUIC QUID PLANTATUD SOL SOLO CEDIT was indicated in the case of
RAMSDEN Vs DYSON [1866] LR 1 HL 129: 140- 141 and further followed and
espoused in the case of TAYLOR FASHION LTD Vs VICTORIA TRUSTEES CO.
LTD [1981] 1 ALL ER 897.

For this exception to apply, the following of them must exist:

 
 i)                   The person placing the thing or building must be mistaken as
being owner or having the owner’s consent.

ii)                 The owner of the land must be aware that the land belongs to him
and the other person is actually mistaken.

iii)              The land owner’s behaviour must be un questionable.

 The word estopped refers to the rule of evidence or doctrine of law which records a person from
denying the truth of some statements made by him, or the existence of facts which he / she
commit or conduct led others to believe.

If a person by a representation forces another to change report on the fact of it, he can not after
wards deny the truth of his representation. Estopped may be by record, deed, conduct or
equitable.

Equitable estopped is where a person stands by and keeps silence when he observes another
person acting under a misapprehension or mistake which by speaking he could have prevented
by showing the true status of affairs.

If a stranger begins to build on land supposing it to be his own, and the real owner observes the
mistake but abstains from setting him right and leaves him to persevere in his error, equity will
not after wards allow the real owner  to assert his title to the land.

Estopped provides a shield not a sword and can not create a cause of action.

 
Difference between Chattel and Fixture.

A chattel is an article of personal property which may be movable, animate or inanimate. 

Tangible and movable chattels are referred to as personal chattel and do not have any connection
whatsoever with real property i.e land.

Chattels on the other hand have a being on land and may include leasehold estates and in interest
arising out of or annexed to the land. Under common law, an interest in land which is less than
fee held or fee constitutes a chattel.

In addressing the difference between fixtures and chattels reference is being made to chattels
personal which tangible, movable chattels, and whether they in anyway relate to the land on
which they are situated.

The basic difference between fixture and chattels therefore is that whereas fixtures are part and
parcel of the land and the interest therein run in with the land and are considered to be the
property of the land owner, chattels are not part of the land and interest in that will not
necessarily run with the land. The property in the fixture will always lie in the land owner
whereas property in the chattel may rest in a third party, whether or not they are on the land
owner’s land.

For instance a vehicle parked in a parking yard doesnot vest any interests or rights therein the
owner of the land on which the yard situated. Neither does the owner of the vehicle need to have
any interests whatsoever in the land.

 
Similarly, a dispute concerning the land used as a parking yard would not in any way concern or
affect the individual who park their vehicles in that yard.

The principle embedded in QUIC QUID PLANTATUD SOL SOLO CEDIT sets out the basic
tests for determining whether an item is a fixture or not, and whether it is not a fixture than it
constitutes a chattel.

INTERESTS IN LAND

What are interests in land?  -legal   , Equitable.

Servitude

Mortgages

Lease

Tenance

Co- ownership

DOCTRINES OF REGISTRATION
 

Registered property

Bonifide purchaser

Squatters

Adverse possession & limitations

DOCTRINES OF OWNERSHIP

Freehold

Mailo

Leasehold

Bonifide occupant

…………. tenure

CONVERSION OF TENANCY

 
 o dispute resolution mechanism
o community Association

MORTGAGE

To mortgage land is to pledge one’s land as security for a loan. The borrower who is the owner
of the land, called the mortgager gets an interest in the land to the lender called the mortgagee to
hold that land as security for the repayment of the debt, called the mortgage debt.

Before 1962 in England , a mortgage was effected through and absolute conveyance of transfer
of the land to the lender on condition that upon repayment of the debt, the lender would re
convey or transfer back the land to the borrower. If the borrower failed to pay, the ownership of
the land would vest in the lender. The law of property Act 1925 brought a few changes to this, by
which a mortgage of freehold constitute a lease of 3000 years subject to redemption by payment
of the loan and the reserved interest, while a mortgage of lease hold constitutes a sublease in
terms of the lease less ten days.

In Uganda , a mortgage transaction does not divert the owner of his land or his ownership
interests. The mortgager remains the owner but the mortgagee acquires interest of which he’s the
proprietor of mortgage interest in that land, entitled only to affect that land for purposes of
recovering the bans .II.6 of the RTA categorically states that a mortgage would not be debt
operating as a transfer.
 

Mortgages are governed by the Mortgage Act Cap 229 and the registration of Titles Act Cap 230
and the Land Act Cap 227.

Legal mortgage

A legal mortgage is created where the owner of land signs a mortgage instrument in the form set
out under the element schedule to the registration of |Titles’ Act and registers the same in
accordance with the Act. A legal mortgage therefore has three key qualities:

Must be in writing

Signed by the mortgager

Registered with the register of titles.

Equitable mortgage.

An equitable mortgage arises where :

i)                   One with an equitable interest in land mortgages that interest. For instance
one with a fee simple for life can only create an equitable mortgage. Simply, a
 mortgage of kibanja on customary tenure operate as a mortgage of an equitable
interest there by creating an equitable mortgage

ii)                 Deposit of one’s title with or without a memorandum with the objective of
securing a loan. The title deed must be deposited by the owner. Deposit of others’
title with or without due authorization through the powers of attorney doesn’t create a
mortgage. The purpose of a deposit should be specifically to borrow money with the
title as security. Deposit for safe custody or processing lien does not create a
mortgage.

iii)              Again where there is a binding agreement to create a legal mortgage but the
formalities necessary to do so are not fulfilled. An equitable mortgage is presumed to
be created under the rule of WALSH Vs LANSDALE [1882] 21 CHD 9 which set
out the principle that equity considers as done that ought to be done. The agreement is
enforceable by specific performance so that the borrower can be compelled grant to
the lender a legal mortgage.

Equitable mortgages are remittable as such or as caveats signifying that the caveat claims an
interest in the land in the form of an equitable mortgage. Though the law does not require the
existence of a memorandum for an equitable mortgage to be caveat, providence dictates that the
mortgagee acquires some concrete evidence of this borrowing to collaborate with the deposit of
title deeds as security for the loan and defeat any other presumptions to the purpose of the
deposit.

MORTGAGEE / LENDERS’ POWERS & REMEDIES

A mortgagee is primarily an interest in land granted to the lender. This interest conveys of the
later/ mortgagee certain powers and remedies in the event of the borrower’s default.
The holder of a legal mortgage enjoys the follows concurrent powers:

1.       The right to sue

2.       Possession

3.       Foreclosure

4.       Right to appoint a receiver

5.       Right to sell

1)     The right to sue for the money owing.

The agreement to borrow constitutes an enforceable contract and the mortgager

makes a personal undertaking to pay. This remedy is useful in case the mortgaged
property is destroyed or losses value. When the repayment date has passed
without the mortgager paying the debt, the mortgagee can sue for the money due.

Again where the mortgaged property is sold to recover the debt but what is
recovered is not enough to cover the debt, the mortgagee may make a resort to its
remedy.

2)     Possession.

A mortgagee may take possession of the mortgaged property with a view of either
intercepting rent, facilitating sale while the premises are vacant or where the
insurance policy covering the mortgaged premises has been allowed to lapse by
the mortgager or borrower. Under the mortgage Act, where a mortgage is in
breach of a covenant, the mortgagee may take possession to realize the security.
A mortgagee who takes possession becomes strictly accountable to the mortgager
for any income or benefits received and even for what he ought to have received
with the exercise with due diligence and proper management.

(See SEMBULE STEEL MILLS Vs PTA ……………………)

the mortgagee would also be responsible for unreasonable damage.

The mortgagee’s right to possession is as against both the mortgager and anyone
denying title from him such as the mortgager’s tenants and lessees. A notice by
the mortgagee to the tenants or lessee to pay rent directly to him constitutes taking
possession by the mortgagee (MULIN Vs UGANDA CREDIT AND
SAVINGS BANK)[1978] HCB 109. However, prior to the exercise of the
remedy, the mortgagee must serve upon the mortgager a notice of sixty clear
days. The mortgagee in possession is not entitled to any remuneration for
management of the property. A mortgagee in possession is however allowed to
incur costs in repairs and improvement of the value of the mortgaged property
which, if they are in excess of the income derived from property recoverable and
become part of the mortgage debt at the same interest rate as the original
mortgage debt itself.

3)     Foreclosure.

Foreclosure is a remedy involving court action in the event a mortgager has failed
to pay for an unreasonable of time.

The mortgage applies to court for closure and court would first grant a fore
closure order Nisi, which gives the mortgage /debtors a specific period of time
usually six months within which to pay. Once the mortgage fails to pay within
that period, court then grants or fore closure order absolute.
The foreclosure order absolute closes the mortgagee/ debtors’ right to recover the
mortgaged property both in law and equity and entitles the mortgage to take
possession and to sell it off to recover the debt [MUTAMBULINE VS KIMERA
[1975] HCB 150.]

4)     Appointment of a Receiver.

A mortgagee may appoint a receiver to receive the rents and profits for the
mortgaged property in situations where the mortgager is in default of payment in
breach of other covenants.

The powers to appoint a receiver are derived either from the express form s of the
mortgage deed entitling the mortgagee to appoint the receiver or from the order of
court authorizing such appointment.

A receiver, though appointed by the mortgagee or by court is an agent of the

mortgagor. The mortgagee is therefore not liable for the receiver’s willful or
negligent acts.

The receiver is appointed to collect rent or profits and any other income from the
mortgaged property but may also manage the property if so authorised by the
mortgagee with the consent of the mortgager (in the mortgagee deed or otherwise)
or by court.

A receiver is entitled to remuneration from his work and deducts from the income
derived from the mortgaged property his remuneration, taxes, rates and other
outgoings related to the mortgaged property, then gives whatever remains to the
mortgagee to give the mortgage debt and whatever balance to the mortgager.

 
A receiver must be appointed in writing and the appointment also published prior
to the appointment written notice must be given to the mortgager and the formal
demand for payment constitutes good notice.

5)     Right to sell.

A mortgagee may sell the mortgaged property to recover the mortgaged debt in
two situations.

a.     Where the mortgage deed / agreement grants the mortgagee express
powers to sale without agreement then the mortgaged property may be
sold without recourse to court and as of right. The sale must be by public
auction unless the mortgager consents or consented, through the mortgage
deed to a sale by first treaty.

The sale must be subsequent to a formal demand for repayment in

accordance with the terms of the mortgage deed. Where the debt is
repayable on demand, any demand that is returned unsatisfied entitles the
mortgagee to sell off the mortgaged property. In the case of (BARCLAYS
BANK OF UGANDA LTD Vs LIVINGSTONE KATENDE LUTU).
Civil Appeal no. 22 of 1993, it was held that where a debt was repayable
on demand and the demand had been made, the mortgagee could sell the
land without recourse to court.

 
It was further held that where the parties through their deed agreed that the
mortgagee could sell without recourse to court, then the court had the
power to order for any other remedy.

b.     In the absence of the covenant in the mortgage deed / agreement

entitling the mortgagee to sell without recourse to court, the mortgagee
must obtain a court order through the remedy of the foreclosure. The court
would in the first instance grant a foreclosure order which permit the
mortgager to pay the mortgagee’s debt within a specified period, usually
six months or less and upon failure, grant a foreclosure order absolutely
entitling the mortgagee to take possession and sell the property.

Where court has granted a foreclosure order absolute, the sale must be by
public auction and after the property has been properly advertised for a
period of not less than 30 days. The mortgagee has a duty to sell to sell in
good faith and to take reasonable care in order to obtain a true market
value of the mortgaged land. The mortgagee should not fraudulently,
willfully or recklessly sacrifice the property of the mortgager. For instance
where mortgagee’s advertisement is is not accurate, liability for the
negligence may befall the mortgagee. In the case of (MULIN Vs
UGANDA CREDIT SAVINGS BANK [1978] HCB 109), where the
mortgagee advertised the land as a “ parcel of land being 4.26 acres” and
failed to mention that the land was actually fully developed with a
residential house therein, it was held that the mortgagee had been
negligent and had neglected his duty of good faith and care and was liable
to the mortgager for the difference between the true market value and the
value obtained on the irregular sale of the mortgaged property
 (KENNEDY Vs De TRAFFORD[1897] Ac 180: (CUCKMERE BRICK
Vs MUTUAL FINANCE[1971] 2 ALL ER 633)

As a general rule, the mortgagee cannot sell to himself or to his nominees save by leave of court;
or where the mortgager does not object at the part of sale and there is no other purchaser with
better terms; or though an action without collusion.

The duty of good faith and care does not however make the mortgagee a trustee of the mortgager
and where all due diligence and regard is exercised by the mortgagee in the advertisement of the
mortgaged land, he has no obligation to await the best price or reject a badly attended auction.
(see (CUCKMERE BRICK Vs MUTUAL FINANCE LTD[1971] CH 948).

Accordingly, where the sale is by public auction, property conducting as the mortgaged property
was duly advertised, the presumptions that the mortgagee’s duty of good faith and care was
fulfilled and the mortgagee is under no obligation to workout for the mortgager’s interests.

However, where the sale is by private treaty, the mortgagee has to ensure that the mortgager’s
interests are protected. Hence in SAJABI Vs AMRELUWA & WAMALA [1956] 22 EACA 71
where the mortgagee sold the mortgaged property by private treaty without serving a notice of
the mortgage and got an unreasonable low price the mortgagee was held liable in general
damages, being the difference between the true market value and the amount actually recovered
from the sale.

Upon sale of the mortgaged property, the proceeds are applied in accordance with section 11 of
the mortgage Act, namely first towards the expenses and costs of the sale then towards the
mortgage debt and all other obligations at the same ranks as the mortgage debt, thirdly to any
other encumbrances in the land subsequent to the mortgage and lastly the balance is refunded to
the mortgager. Where the sale is one subsequent to a foreclosure order, the proceeds may be
deposited in court for distribution if so ordered by court.

The purchaser of the mortgaged property takes the property free from all interests created
subsequently to the mortgagee, but subject to interests created and registered prior to the
mortgage.

Remedies to an Equitable Mortgage.

An Equitable mortgage by deposit of title deeds enjoys the same remedies as those of a legal
mortgagee only that they can only be exercised with leave of court. The Equitable mortgagee
must sue the mortgager for the mortgage debt and in that suit seek for a declaration that the
mortgage has a charge on the subject property and also for either an order to sell the property or
to appoint a receiver to manage or sell the same.

Other rights of the mortgagee.

 A mortgagee may also reserve other rights for himself aimed at facilitating or expediting the
recovery of the debt. These rights must be expressly set out in the mortgage deed otherwise the
mortgagee would not be able to exercise them. These are:

 
a.     Consolidation.

This is where one holds two or more mortgages from the same mortgager in order to
ensure protection in respect of all the mortgages and to protect himself against the
mortgagor redeeming only that property that is of good value, the mortgagee demands
that none of the mortgages is redeemed without and unless all others are redeemed.
Hence even where one mortgage debt is paid up, the title can not be released without
all the debts are paid up.

b.     Tracking.

This is where there are various mortgages by one mortgagor in favour of different
mortgagees i.e with a 1st , 2nd , 3rd and possibly the fourth mortgagee. The first in time
ranks first in priority in terms of repayment and exercise of other rights.

However, if the 1st mortgagee wishes to make another advance to the mortgagor after
the 2nd, 3rd  and 4th mortgagees have already been created, which advance would then
be 5th advance and accordingly rank last, he may attach that last advance to the first
mortgage so that it too takes priority over the 2nd , 3rd and 4th mortgagees.

Tacking may either be made with the consent of the intermediate mortgagees i.e 2nd ,
3rd  and 4th or by putting a clause in the 1st mortgage by which the mortgagee is
obliged to make further advances to the mortgagor, the same to comprise of the 1st
mortgagee.

c.      Attornment clause.

 
This is a clause in the mortgage deed by which the mortgagee agrees to be the tenant
at a will to the mortgagee for a nominal consideration. Hence when the mortgagor
defaults on payment, possession can be got by the mortgagee easily through eviction
without notice. This renders the remedy of possession easily and expeditiously
attainable.

Remedies to an Equitable Mortgage.

EQUITY OF REDEMPTION.

The mortgagor / borrower also enjoys certain rights under the mortgage and the main
one is the right to redeem or recover the land by repayment of the debt.

The essence of the rights is in the historical nature that originally at common law,
once the date for repayment had passed without the mortgagor/ borrower having
repaid the debt, the property vested in the mortgagee/ lender fully and without
recourse to the borrower.

However, Equity did not allow this and regarded a mortgage simply as a security for
the debt, which could be recovered at any time upon repayment of the mortgage debt,
even after the agreed date of repayment, had long passed. This right to recover the
mortgaged property by repaying the amount owed even after the lapse of the agreed
date of repayment is what is referred to as the Equity of redemption.

This right has 2 facets.

  

1.       That once a mortgage always a mortgage.

2.       There must be no clog in the Equity of registration.

 Once a mortgage always a mortgage.

This implies that Equity would not be misled or deceived by the form that the parties’
agreement takes. Equity will always look at the real purpose of the transaction, the
substance of the deed and whether the essence of the transaction is a mortgage, shall
enforce it as such and enforce the mortgagor’s right to redeem the land by repayment of
the debt. Hence where a borrowing is couched in terms of a sale agreement, the court will
re-open the bargain and allow the mortgagor to recover his land by repaying the loan.

Similarly, the court will always reject a clause in a mortgage which purports to close off
or disentitle the mortgagor from the right to redeem the property.

2. There must be no clog on the Equity of redemption.

This means that court will not permit or enforce any restriction or exclusion of the
mortgagor’s right to redeem the mortgaged property by repayment of the mortgage debt.
Any attempt or clause tending to frustrate redemption is void. Hence in the case of
(SAMUEL Vs JARRAH TIMBER & WOOD PAVIN CORPORATION [1904] AC
323), court rejected a clause in the mortgage by giving the mortgagee, as one of his rights
under the mortgage, an option to purchase the mortgaged property.
 

Similarly, in the Ugandan case of (MATAMBULIRE Vs YOSEFU KIMERA) Court of

Appeal Civil Appeal No. 37 of 1972 where the plaintiff mortgaged his land on the
condition that if he failed to repay the loan within the specified period of time, the
defendant would become the absolute owner of the land and upon default the defendant
took ownership thereof. Court allowed the plaintiff to redeem the land by repayment of
the debt.

The rule against clogging the Equity of redemption also means that the mortgagor’s
property if entered by the mortgagee must be returned to the borrower in the same
condition as when it was pledged upon his repayment of loan (NOAKES Vs RICE
[1902] AC 24)

Similarly, it means that court would not allow postponement of the repayment period for
an unreasonable period of time as to render redemption illusory. (FAIR CLOGH Vs
SWAN BREWERY CO. LTD [1912] AC 565) cf with (KNIGHTBRIDGE ESTATES
TRUST LTD Vs BYRNE & SONS 1939]CHD 441) – a mortgage was only repayable
in 80 half yearly installment over 40 years.

Court may also intervene in a mortgage where:

a)     There is collateral advantage which constitutes a clog on the Equity of

redemption (See NOAKES Vs RICE [1902] AC 24) i.e the plaintiff thought to
buy a public house owned by the defendant, a brewery. He borrowed from the
defendant the money for purchase on the condition that he would allow only
 the defendant to supply the public house for the duration of the mortgage and
after wards. The plaintiff sought to pay off the mortgage earlier so as to get
released from the collateral contract and the defendant refused. Court held that
the collateral was void as it was a clog on the Equity of redemption.

b)     Where there is restraint of  trade attached to the mortgage.  (See GIELLEE
Vs GASSMAN BROWN & CO LTD [1973] EA 358) and (ESSO
PETROLEUM CO LTD Vs HAMPERS’ GARAGE LTD [1968] AC 269)

c)      Where the transaction is oppressive or un conscionable of where the

interest rate is too high. (see MOHAMED MOHAMEDI Vs ATTMAN
SHANTE [1960] EA 1062) where court held that any interest above 48% P/a
was prima facie excessive. And (JUMA Vs HABIBU [1975] Ea 108) where it
was held that an interest rate of 60% was clearly un conscionable and any rate
above 20% would bound to raise a presumption of unreasonable and shift the
burden of the mortgage to prove that it was reasonable.

Mortgage of customary land and rights of occupying it.

It should be noted that under S. 9(2) (c) of the Land Act and S. 35 (1) of Land Act, a holder of a
customary certificate of occupancy and a tenant by occupancy respectively, may mortgage their
interests. No statutory law is avowable on the rule and remedies applicable in this category of
mortgage and resort may be made to the case of (MUTAMBULIRE Vs KIMERA) CA NO. 37
of 1972 and (WANWA CO. KIKUNGWE [1952-6] 7 ULR 1) which were in respect of
mortgages of customary land and it was held that the resort would be made to the English Law of
Equity.
The remedies under the English Law of Equity are the same as those under the mortgage Act but
the details under the mortgages’ Act would not be applicable to such mortgages (e.g period of
notice of foreclosure, application of proceeds of sale etc).

CONTENTS OF A MORTGAGE DEED.

OTHER INTERESTS IN LAND

SERVITUDES
 

 The word servitude derives from Roman Law and refers to rights of use of another’s land in a
specified way. A Servitude constitutes a charge of burden resting upon one’s land for the benefit
or advantage of another.

A Servitude may be rural or urban. A servitude is said to be rural if it pertains to the use of
another’s land for facilities of access such as passage, natural wells, or for pasture. On the other
hand the servitude is said to be an urban servitude if it relates to buildings, for instance where a
building relies on another for support of a shade. This is irrespective of the location of the
building and the destination has nothing to do with the city or village setting.

A Servitude may also be personal (otherwise called several) or real (otherwise called common).
If it is personal then it is for the benefit for a specific person and may last only for that person’s
life time. A servitude real is for the common good and does not attach to any specific
individuals.

Examples of Servitudes include profits, a prendre, assessment, restrictive covenants, customary

rights and licences.

EASEMANTS

An easement is an interest in land. It may be defined as a right attached to land which entitles the
owner of that land to use or restrict the use of anther’s land in a particular way.
Where the easement entitles one to a right to use, then it is called a positive easement. On the
other hand, an easement constitutes a negative easement if it restricts the other from use of his
land in any particular way.

The land whose owner is entitled to use or to restriction of use of another’s land in a particular
way is called the dominant tenant while the land which is used or whose use is restricted is called
the serviette tenement.

Examples of easements include rights of way, rights to light, rights to abstract water and rights to
the support of buildings.

For an easement to validly exist, it must satisfy four (4) conditions, which may be said to be
futures of a valid or a true easement;

1.       Existence of both a dominant and serviette tenant.

2.       The easement must accommodate the dominant tenant.

3.       The dominant tenant and serviette tenant must be owned and occupied by different
persons.

4.       The easement must be capable of forcing the subject matter of a grant.

1.        Existence of both a dominant and serviette tenement.

 An easement recognized by law is only that which is attached to ownership of
land. The person who benefits from use of the easement must be an owner of
land and he or she exercises his entitlement to the easement because his or her
ownership of some adjoining land or land in the near neighbourhood. If A
enjoys an easement on B’s land, A must be the owner of the adjoining land
called the dominant tenant. B’s land is the serviette tenant.

 Therefore, one who uses a footpath on another’s land without that user owning
any land himself uses the footpath not as an easement but merely as a licence.   

         An easement therefore can not exist in gross, i.e for the common benefit of
the public. An easement to the public is unknown by the Law (See the case of
HILL Vs TOPPER [1863], 2H & C.12) and ( MAKUMBI AND AMOS Vs
PURAN SINGH AND ANOTHER [1962] EA 331)

2.           The easement must accommodate the dominant

tenant.                                                                                                                       
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;&nb
sp;                                                                                                                             
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bsp;                                                                                                &nb
sp;                                                                                                                             
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bsp;                                                                                                &nb
sp;                                                                                                             

                      The easement must confer some benefit to the land itself so as to

                      better or render more convenient the property. It should not be

merely that the owner of that land enjoys personal; advantage. It is not
necessary the serviette tenant should be adjacent to the dominant tenant but
should be close enough to render the benefit to the dominant tenant material.

                     (See the case of RE: ELTENBOROUGH PANK [1956] 3 ALL

ER 667)

3..           A dominant tenant and serviette tenant must be owned and

occupied       

               by different persons.

               An easement only exists if one is entitled to use or restrict the use of
another’s land. The interest does not exist where ownership and occupation of
adjoining land vests in the same person even if that same person uses an access
on one’s piece of land reach the other. The dominant tenant and serviette tenant
can not vest in the same person.

               However, where ownership and occupation are divested, an easement

may exist. For instance if A owns 2 pieces of land but leased one of them to B,
an easement may exist in favour of the land retained by A over the land
occupied under lease by B and vice- versa.

   The easement must be capable of forming the subject matter of a grant.

  This feature derives from the character of interests in land which must be
capable of particularity and not in definable or ambiguous.  Hence the land law
maxim that all easement lie in grant. This implies that for an easement to exist it
must have all those features which a grant or an interest in land would have.
 There must be parties capable of being grantor and grantee. For instance an
entity such as an association without legal capacity to hold property can not
claim a right to easement.

   The right claimed to constitute an easement must be capable of reasonable

definition. Hence a right to silence or privacy over land may be too wide to
constitute an easement. (See the case of HANSRAJ THAKKAR Vs THE
VANIK MAHAJAR [1960] Ea 208)

   Again the claimed right must be capable of falling within the general nature of
rights exercisable as easements. The traditional categories of easement are rights
of passage, right to light, right to water and right to support of buildings.

   Though other categories of easements may be recognized by court e.g the

right to storage or parking in a specific area, the right must be a kin to the
existing categories.

CREATION OF EASEMENTS.

 Easements are basically created in five (5) ways;

 1.       By legislation.

2.       By express or implied grant or reservation.

3.       By prescription.

4.       By Necessity.

5.       By implication of the parties intentions.

1. Legislation.

 An act of parliament may empower local authorities or other institutions with powers to create
easement over land. These statutory easements, however, may not have all the features of
easement at common law. Examples of such legislation may be seen under S. 36 of the Water
Act which empowers the director of water development to create an easement over a person’s
land for purposes of channeling water and drainage of wastes.

Similarly the access to roads’ act provides for one having failed to negotiate for access to a
public way with the owner of the land applies to a land tribunal for such access.

2.   Express of implied grant on reservation.

An easement may be created expressly i.e by agreement. An owner of land may by agreement
grant to another a right of way over the former’s land, on some other easement. Similarly one
may reserve for himself an easement over another’s land by agreement. For instance one may
sell his land to another but reserve the rights to use the access on the sold land. The easement
comprised in the access would constitute an easement created by express reservation. The strict
rule however is that if the seller does not expressly reserve the right to some easement, then it
can not be implied.

In the case of (WHEELDON Vs BURROW [1874- 80] ALL ER 669) an owner of land sold part
of his land which was vacant to one party. The seller retained another part of the land on which
he had a workshop. The windows of the workshop faced the vacant part sold off. The seller did
not expressly reserve the right to light. Subsequently he sold off the land with the workshop to
yet another person.  When a dispute subsequently arose between the two purchasers, the
purchaser of the vacant plot built structures blocking the windows. The second purchaser
challenged this action. Court held that the initial owner of the land who had sold the vacant plot
should have expressly reserved the right to the easement of light. On failing to do so, the
purchaser of the vacant plot bought without a burden to his land and the second purchaser was
therefore like the one who sold to him, not entitled to that easement. If the grantor wants to
reserve an easement in favour of the land retained, he must do so expressly. However this only
applies where the seller of land retains the dominant tenant & fails to reserve an easement for
himself. In a situation

where the owner of adjoining pieces of land has been using an access on one of them to reach the
other, and sells off the land which would otherwise constitute the dominant tenant, the law
recognizes an implied grant of an easement that the purchaser shall also be entitled to use the
access on the land now retained by the seller. A quasi easement is created so that the seller can
now not close off that access.

3.  Prescription.

 
Prescription is a common law doctrine and refers to the assumption of a right by reason of lapse
of time. It is a mode of acquiring land by un disturbed possession of the same for a certain length
of time. Under common law, a prescription right was established once one could prove long user
from time in memorial. The bench maker in length of time was initially since 1189.

 However, the courts eventually adopted a presumption that long user of up to 20 years for rights
of way and fourty years for rights to water was good evidence of a lost modern grant. However a
person claiming un easement by prescription had to

prove NEC VI, NEC CLAM, NEC PRECERIO. (Uninterrupted use without force, stealth or
permission)

The claimant should not have use   force to over come resistance by the owner of the serviette
tenant. Neither should he have used the easement secretly. It should have been used openly. He
should also not have got permission from the land owner which should imply licence or defeat
prescription. These conditions were set out in the case of (DALTON Vs ANGUS [1881] 6 AC
740)

4.  Easement by necessity.

 
An easement by necessity is created by operation of law and exists where one acquires land
which does not have any access to a public passage, he may apply to court for an easement over
another’s land on the basis of necessity.

He must be able to prove, however that;

a. There is completely no other available alternative.

A longer, inconvenient or narrow alternative would distinct the one from boundary
another’s land with un easement based on necessity.

b. That the necessity existed at the time of acquisition of the dominant tenant and not that
the necessity only arose at the late time.

5.    Implication of the parties’ intentions.

An easement not expressly granted or reserved but which confers a benefit both to the dominant
and serviette tenant may be recognized by law. In the case of WORRY Vs BEAUNOUT
PROPERTY TRUST LTD [1965] 1 QB 173)

An owner of a building leased the basement of the building to another to operate a restaurant.
The owner of the building sold it, and the person running the restaurant assigned his interest. The
assignee of the restaurant sought to build a ventilation dust leading to outside the basement, and
the new owner of the building refused. Court held that the ventilation duct was within the
intention of the original parties in

 
leasing the basement as a restaurant which requires complacence with health regulations. The
implied intention of the parties’ treaty gave one party an easement over the property of another.

Termination or Extinguishment of Easement

Easements are extinguishable and may b terminated by;

a)     Legislation.

b)     Agreement ie where the owner of the dominant tenant expressly    releases the
serviette tenant from easement.

c)      Merger.  i.e where ownership and occupation of the dominant tenant and serviette
tenant are emerged or vested upon one person. The easements are distinguished.

d)     Abandonment: i.e where the owner of the dominant tenant abandon the use of the
easement. The easement then ceases to exist. None user alone does not constitute
abandonment and the burden of proof lies on that who alleges the abandonment under the
common law, 20 years non user may in the absence of proof of contrary intensions
constitute abandonment. In East Africa, the case of (BARCLAYS BANK DCO Vs
PATEL [1970] Ea 88 ). It was held that 20 years non user was indicative but not
conclusive, further proof would have to be adduced. Under the limitation Act of Uganda
however, one may not claim interest on land after 12 years save upon proof of some
disability on exception. 

 
 

Other servitudes

PROFITS A’ PRENDRE

A profit a prendre is the right to take something of a legal from the land of another.

Examples are fixing, grazing rights, shooting rights, the right to cut turf or wood for fuel, soil,
sand or gravel. The thing is considered to be of legal value if it is capable of being privately
owned.

Hence water from a stream is considered to comprise an easement and not profit a prendre
because it is not capable of being privately owned.

A profit a’ prendre necessarily involves a serviette land, the land from which the thing is
removed but may or may not have a dominant land as a profit a’ prendre may exist in gross i.e
for the common good, such as grazing rights and removal of wood for fuel (fire wood).

A profit a’ prendre may be to an individual in which case it is called several profit.

A profit a’ prendre is an interest in land and where it can be proved that it was validly created, it
binds everyone dealing in that land. An exceptional exists in respect in land registered under the
registration of Titles’ Act Cap 230, where the proprietor takes the land free of any profits a’
prendre not endorsed on the certificate of title or created by him (See SETTLEMENT FUND
TRUSTEES Vs NURAIN [1970] EA 56)

Restrictive covenants.

A restrictive covenant is a contract between two owners of land by which one agrees to restrict
the use of his land for the benefit another. Which restrictive covenants are governed by the law
of contract, because of the structures of the doctrine of priority of contract, the common law
enforces restrictive covenants even in the absence of priority, on the principle that a burden of a
covenant does not run with the land but the benefit of the covenant does.

For instance, if A and B, both owners of adjacent pieces of land covenant to the effect that A
shall not build more that one house on his land, the covenant binds both of them. If B sells off his
land to C, the law of covenant does not recognize C because he was not privy (party) to the
contract. But common law recognizes C and will allow C to stop A from building two houses on
his land if he attempted to.

However if A sells of his land to D, even if D had notice of the covenant between A and B, at
common law he is not bound by that covenant and may build two houses on the land. This is
because the common law rule on restrictive covenant is that the burden of a covenant does not
run with the land but the benefit does.
The position of Equity is different. Equity would enable C to enforce the covenant against D if
the covenant satisfies the following 3 qualities;

a)     The covenant must be substantially negative. It must restrict one from doing some
thing not impose an obligation. For instance where it involves spending money then it is
considered positive. In (HAYWOOD Vs BURNSWICK PERMANENT BENEFIT
BUILDING SOCIETY [1881] 8 QBD 403). A covenant to effect repairs on a building
was said to be positive and un enforceable.

b)     The person claiming the benefit must retain led which can benefit from the covenant
taken. This implies the existence of a serviette land and a dominant land which benefits
from the covenant if one of the parties to the covenant has no land of which is he owner
or in possession to be benefited at the time of the covenant then it is not enforceable (See
LONDON CITY COUNCIL Vs ALLEN [1914-15] ALL ER Rep 1008) in this case the
council granted Allen permission to subdivide his land on the condition that he did not
build on the certain part of that land. Allen later transferred the land to his wife. Mrs
Allen knew of the covenant but went ahead to build on the restricted part. The Council’s
suit to stop her faulted since council did not have a dominant land to be benefited by the
covenant.                                                      .

c)      The covenant must torch and concern the land i.e must benefit the land itself and not
merely give the claimant some personal benefit. Only covenants that torch and concern
the land run with the land i.e bind successions in title

Exception: building schemes / schemes of development.

 
Examples of schemes are housing estates where there are several owners of houses in a common
area. In such circumstances the second condition of the existence of a serviette land and
dominant land at the time the covenant is made is not practicable.

Courts therefore enforce restrictive covenants in respect of building schemes on the basis of the
following guidelines;

a)     The two pieces of land must derive from a common vendor.

b)     The common vendor must have subdivided the land into plots with the intention of
imposing restriction on each of them i.e the

c)      Restrictions should be consistent with the general scheme of development.

d)     The common vendor must have intended that the restrictions benefit land retained by
him.

e)     The plots must have been purchased on the understanding that they were subject to
the restrictions for the benefit of all the other plots in the general scheme.

Restrictive covenants are interests enforceable mainly to Equity and are therefore not register
able under the registration of titles Act. Being Equitable, however, the remedy where there is a
breach is to seek for the equitable remedy of an injunction, which is also discretionary remedy
which may or may not be granted.

 
Customary rights.

Customary rights are unsatisfactory interests in land acquired from possession or use by virtue of
a recognized custom. Examples of customary rights over land include the right of fishermen to
having and dry their nets over private land and ownership of land by virtue of operation of a
local custom.

Customary interests are not registrable under the registration of titles’ Act Cap 230 but are
recognized under S. 4 (4)  (C) of the Land Act as interests to which a registered proprietor of
land in subject.

LICENCE

A Licence is the authority or permission given to a Licencee to enter licensor’s land for some
specific purpose which otherwise would be a trespass. Licence does not create interest in the
land, and can therefore not be inherited or disposed off  by testament (will) and does not bind
third parties since it does not run with the land. (THOMAS Vs SORELL [1673] Vaugh 330,
124 ER 1098)

There are four types of licences;

1.       Bare or mere licence.

2.       Licence coupled with an interest.

3.       Contractual licence

4.       Licence protected by estopped.

1. Bare / Mere Licence.

This is the simplest form of licence and is granted ex gratia that is out of the    licensor
pleasure without an exchange of valuable consideration. It may be revoked at any time and
without notice.

2. Licence coupled with an interest.

A licence may be granted with an interest in land so as to enable due and reasonable
enjoyment of the interest for instance in order to enjoy a profit a’ prendre, one may also enjoy
an advance to enter upon the land to remove the profit. A licence coupled with an interest is
not revocable until the interest is extinguished or reversed. The licence itself becomes an
interest in land but will run with the interest to which it is attached and would bind all
subsequent purchases of the land.

 
 3.     Contractual licence. A contractual licence is one granted to a licencee who has
furnished valuable consideration for it. It does not bind third parties and therefore does not
run the land. It may be revoked in accordance with the express terms of the contract and
entitle the licencee to damages if wrongfully revoked.

4.  Licence protected by estopped.

     A licencor’s right to revoke the licence may be estopped due to the licencor’s conduct
which causes the licencee to alter his position to his detriment. For example where one
allowed another to build a permanent house on his land, and allow the licencee to stay in the
house, the licencor on his succession may be estopped from evicting the licencee if the
circumstances indicate that an expectation was created in the licencee’s mind, at his cost, that
he would remain on the land permanently at least for his life time (see the case of
INWARDS Vs BALLEN [1965] 1 ALL ER 446)

It must be noted that in all circumstances where alicence is revoked, the licencee becomes a
trespasser on the land without entitlement to compensation or refund of consideration. Where
the licence was a contractual licence, wrongful revocation entitles the licence only to
damages.

 
 

CO – OWNERSHIP OF LAND

Co- ownership of land involves the holding of a parcel of land by more than one person over the
same period of time. This may arise for instance where two or more people buy land jointly, or
where land is donated to two or more people jointly.

Co- ownership may exist in any type of tenure. The co- owners of land enjoy certain rights and
owe obligations as against each other.

The law recognizes two types of co- ownership of land, namely;

Joint tenancy

Tenancy in common.

These two types of co-ownership are distinctly different and mutually exclusive.

JOINT TENANCY
This involves the holding of land by two or more people jointly and without any distinct
proportions or shares of ownership between them. The interest of each of the co-owners is in the
whole of the land and can not be distinctly isolated from that of the other. The interest of each of
the joint co- owners can not be separated or held separately and the exercise of the right to the
land must be exercised jointly.

A joint tenancy is characterized by two features:

The right of survivorship (jus accrescendi which in direct translation means right of
accrual)

The four unities.

THE RIGHT OF SURVIVORSHIP

Since joint owners hold their interest in land as a whole without distinct or separable proportions,
neither of the joint owners is entitled to individually donate or in any way dispose of any
proportion of that land.

Accordingly, none of the joint owners can pass on his land to his estate upon death, whether by
will or otherwise.

 
The effect of the doctrine of survivorship therefore is that upon the death of any one of the joint
owners, the land fully and wholly revolves upon the surviving joint owners. The interest remains
for the heir or estate of the deceased joint owner.

For instance if A,B and C own land as joint tenants, upon the death of A, the land revolves upon
and becomes property of B and C. A’s children have no right of claim to any portion of the land.

Similarly, if B dies subsequently then C becomes the owner of the whole of the land without
sharing any portion of it with the estate of B. the joint owner who survives the others eventually
owns all the land and can pass it to his estate by will or otherwise.

Where however the joint owners by some coincidence die in the same incident, it is

important as to who actually passes away before the other or others. If the respective times of
death of each of the joint owners can be determined then the doctrine of survivorship will apply.

Where the times of death of each of the joint owners can be determined then the land can be
inherited by the heirs of the deceased joint owners jointly or be taken over by their respective
estates jointly (See WILLCOX Vs MCHEROH [1933] klr 82: drowned in the lake together,
(ADMINSTATOR GENERAL OF ZANZIBAR Vs KHALFAN& OTHERS [1963] EA 230)

In England however, due to statutory amendments of the common law, where joint owners die in
such a manner that the fact as who died first can not be determined, the younger of the joint
owners will be presumed to have survived the older. This application is however not applicable
in Uganda .

 
 THE FOUR UNITIES.

Joint tenancy is also characterized by the unities of possession, interest, time and title (PITT)

Unity of Possession

Unity of possession means that the joint owners are each entitled to an undivided possession of
the whole of the land. None of the joint owners can distinctily point to any specific or particular
portion as being his part or share of land. Each joint tenants holds the land by every part and by
every whole (per my et per tout)

Unity of Interest.

Unity of Interest means that the interest and estate of each of the joint owners is exactly the same
as that of the other. Accordingly, the tenure in which the land is held by each of the joint owners
must be the same. All of them must hold the land either as customary tenants, in leasehold, mailo
or freehold. It is not possible for one joint owner to hold the land in mailo while the other holds it
as a customary tenant.

Similarly, entitlements to the benefits or profit on the land must be exactly equal. If the land is
rented or leased out, the entitlement to rent by each of the joint owners must be equal in share to
that of the other. Again if the holding is for a period of time, such as a lease hold, the estate or
term of years must be exactly the same.
 

Unity of Time.

The essence of the unity of time is that the interest of all the joint owners must have accrued at
the same time. Joint owners acquire their interest at exactly the same time.

For instance if joint owners acquire land through purchase, then they must have purchased the
land at exactly the same time. Where one purchased or acquired an interest before or after the
other, a joint tenancy is not created.

Unity of Title

This means that the interest of each of the joint owners was acquired through the same process
whether by purchase, succession, donation, statute or otherwise.

The four unities must all exist in order for a joint tenancy to exist. The absence of any one of
these unities defeats the presumption that a joint tenancy exists.

The land mark case in the four unities is the case of (AG SECURITIES Vs XAUGHAN [1988]3
ALL ER 1058). In this case, the Company AG Securities owned a four bed roomed flat. They got
four individuals to rent the flat. Each of the individuals acquired a specific room and paid a
different rent. The four tenants had come to the flat at different times and had signed tenancy
agreements with AG Securities. The four tenants however enjoyed common services in the flat.

It was held that the four tenants were not joint tenants because of the absence of the four unities.
The unity of possession had not been satisfied since each of them was entitled to occupy a
specific room in the flat, whereas the possession should be of the whole without distinction.

The unity of time had not been satisfied since each of the four tenants had come into the flat at
different times. The unity of title had not satisfied since they had each signed separate tenancy
agreements and the unity of interest had not been satisfied because they all paid different rent
and the tenancy period was different.

TENANCY IN COMMON.

This involves the holding of land by two or more people together, but with each being entitled to
a distinct and fixed share in the property.

The presumption is that the land has only not been physically divided amongst them but each has
a separate share in the piece of land held together.

 
The doctrine of survivorship does not apply to a tenancy in common and each of the co- owners
may donate or dispose of his or her share of the land by will or otherwise. The unity of
possession is the only relevant unity amongst tenants in common. They may however acquire
their interests at different times and through separate procedures or deeds. The estate or term or
years of their interest also need not be the same.

However, the tenancy in common must be held in respect of the same tenure.

As in joint tenancy, ach of the tenants in common is entitled to occupy the whole of the land in
common with others. Inspite of the distinct proportions or shares in the land, there is undivided
possession. However, tenants in common may individually use the land for different enterprises,
which could not entitle one co- owner to the benefit or profit obtained by the enterprise of the
other co- owner.

It should be noted that while the common law gives priority to joint tenancy, equity give priority
to tenancy in common and in equity any holding of land by more than one person is presumed to
constitute a tenancy in common and unless the presumption is rebutted, any holding of land by
persons carrying out different undertakings on the land is deemed to comprise a tenancy in
common.

Strictly squeaky, under the common law, where land is held by two or more people or divided by
will or gift.

CREATION AND TERMINATION OF CO- OWNERSHIP

 
 CREATION OF CO-OWNERSHIP.

Co-ownership is created where land is vested into two or more people whether by way of a gift,
testament, will, sale or other wise.

As general rule, where grant of transfer of land is made to two or more people, there   is a
presumption in that the granter intended to create a joint tenancy. This is the position both at
common law and in equity and under the negotiation of Titles’ Acts Cap 230 of the Laws of
Uganda.

At common law the cases of (RE MURRAM MURTOR 18 KRL 65 AND MORLEY VS
BIRD [798] 30 ER 1192) held that where landed property is given to several persons
concurrently, they are presumed to take as joint tenants.

Similarly section 56 of the RTA provides in part that

“Two or more persons who are registered as joint proprietors of land

shell be deemed to be entitled to the land as joint tenants………….”

The general rule therefore, is that in the absence of evidence to the contrary, persons holding
land as co-owners are joint tenants’ subjects to doctrine of survivorship.

Exceptions
 

This general rule, however, is subjects to three categories of exceptions.

(i)                  The absence of the four unities.

(ii)                Use of wards of severance in the grant.

(iii)               The operation of the law of equity.

(i)Absence of the four unities.

A joint tenancy is typically characterized by four unities of possession, interest, time and title.
The absence of any one of these unities defects the general perception that the co owners hold
the land as joint tenants. [See the case of AG SECURITIES VS VAUGHAN (1988) 3 ALL ER
1058]

(ii) Use of wards of severance in the Grant.

Where grants or transfer of land is made to two or more people jointly, use of wards of severance
in thee grant, however slight will defeat the presumption that the granter intended a joint tenancy
in such situation, the co owners will compromise the tenants in common.

Wards of severance are such wards used in the grant or transfer indicating that the co owners are
to hold distinct shares, parts or proportions o f the land or that the land is cap ash of being
divided amongst them.
The court in the case of (ROBERTSON VS FRASER (1871) 6 CL APP 696 held that any
wards which in the slightest degree indicate an intention to divide the property must be construed
to create a tenancy in common.

Under section 5 of the RTA, the word “to survivorship” are deemed to comprise words of
severance and two or more joint proprietors may in unity direct the registrar to enter those  words
upon the conflict of title or instrument affecting the land.

(iii) Equity

The laws of equity are bent towards equity of rights and doses not take favour with the doctrine
of survivorship.

There fore even where words of severance do not exist or are not implied, equity with in certain
situation presumes that persons holding land as co-owners holding it as tenants in common and
not joint tenants.

The situations where equity will apply that presumption are the following.

(a)    partnership property

(b)   property purchased with finds unequally contribution                              

(c)    Joint mortgages

(d)   Land held for separate business enterprises

 

(a)   Partnership property

A partnership is the relation which subsists between persons carrying on business in common
with a view of profit. It may be implied or express i.e. by agreement.

Equity deems it inappropriate to apply the rule of survivorship to a business undertaking, and as
such, landed property a acquired by the partnership business as a part of the partnership assets is
held by the partners as tenants in common..

(b) Property purchased with finds unequally contributions.

Equity presumes that in all cases where two or more people purchase  land, for which their 
contributions to the purchase price is  unequal, then they hold that lead as tenants in common,
and in shares proportionate to their respective contributions to the purchase price.

For instance, if A, B and C purchase land, and A contributed 60% of the purchase price, B
contributed 10% of the purchase price and C contributed 30% of the purchase price, equity will
presume that the hold the land as tenant in common with A holding 60% of the shares in the
land, B holding 10% and C holding 30%.

Similarly, where A purchases land and pays all the purchase price but asks that  the grant of
transfer   bee made in both A and B ‘s name, equity  with presume that B dose not hold his legal
interest for A .
 

The determinant and basis of the presumption in equity create by unequal contribution to the
purchase price is the evidence of the co-owner’s respective contributions to the purchase price.
In the absence of evidence of proof of disparity in the contributions, this presumption does not
apply.             

a)      Joint Mortgagees

In a situation where two people together lend money to a third party and that third party
mortgages his land to them jointly, equity presumes that the joint lenders intends that they each
lend the specified amounts and the same is paid back to them specifically, and not that upon the
death of one of them, the deceased’s interest in land as mortgage is lost.

The presumption applies only to equity since at law, joint mortgages held as joint tenants of their
interest in the land.

b)      Land held for separate business enterprises.

It has been suggested that where guarantees of land hold the same for their separate individual
business purposes, equity will presume that they hold the land as tenants in common as than as
joint tenants. This is in line with the rationale that the doctrine of survivorship should not apply
to business undertakings. This position was adopted in the case of (MALAYAN CREDIT LTD
Vs JACK CHIA MPH LTD [1986] AC 549).

 
It should be noted that the above situations are in respect of joint tenancies presumed and
interpreted by equity and comprise tenancies in common because of specific considerations
which must be proved to exist. They are therefore usually exceptions to the general rule.

TERMINATION OF THE CO- OWNERSHIP. 

Termination of the ownership refers to the determination or cessation of joint interests in land,
the result of which is that each individual co- owners would become a sole owner of a specific
share or piece of land.

For tenancies in common, the co- owners hold distinct, certain and fixed but un divided shares in
the land. Co- ownership amongst them is therefore brought about merely by the lack of division
of the land so that each one’s share becomes a separate and distinct piece of land on its own; the
tenancy in common is irreversibly terminated.

However, with joint tenancies, partition of the land is merely one of the several ways that a joint
tenancy can be terminated. Where joint tenants agree to partition the land amongst themselves,
they take in equal shares, since previously the land had been held in no specific or distinct shares
amongst the joint tenants.

Other modes of termination of joint tenancies are the following:

 
1)      Operation of the doctrine of jus accrescendi (survivorship). On the death of the
second last surviving joint tenant.

Where the second last surviving joint tenant dies, the land rests in the last surviving joint
tenant who then becomes a sole proprietor. The joint tenancy is terminated by the other
joint tenant’s death. The last surviving last tenant, now sole proprietor may then apply to
the registrar of Titles, with proof of the death of other joint tenant for cancellation of the
deceased’s name from the land registrar leaving the surviving joint tenant’s name only.

2)      Severance.

Conversion of a joint tenancy into a tenancy in common also constitutes termination of

the joint tenancy. Severance in this context refers to the conversion of a joint tenancy into
a tenancy in common. This may occur in several instances.

a)      Mutual agreement.

The joint tenants may agree and reduce their agreement into writing to the effect
that they severe the joint tenancy and each takes an equal share of the land. If the
joint tenants go on to sub divide the land amongst themselves, then the respective
sole proprietorship will be created. However, if the land is not subdivided and the
co- owners’ shares are held in the abstract but undivided, physically the joint
tenancy would have been converted into a tenancy in common. (See S.S 7 RTA)

b)      Unilateral action.

Equity recognizes that one joint tenant may unilaterally sever the joint tenancy by
(see WILLAIM Vs HENSON [1861] 70 ER 862) destroying any one of the four
unities. The act or conduct of severance must be done during the lifetime of the
joint tenant. Such act or conduct need not be with the prior consent of or
information to other joint tenants.

For instance where a husband and a wife are registered as joint tenants of land,
and upon divorce anyone of them seeks settlement of the land, the joint tenancy
forthwith converts into a tenancy in common.

In the case of (RE DRAPER’S CONVEYANCE [1967] 3 1LL ER 853)

Husband and wife had been co- owners of a house of joint tenants for a period of
14 years. The wife applied for and was granted divorce. She applied for an order
that the house be sold and the proceeds of sale be distributed equally between
them. The Court granted the order but before it could be enforced the husband
died. The issue was whether the wife was now a sole proprietor as sole surviving
joint tenant or would hold the proceeds of the sale for her self and the estate of the
deceased divorced husband.

Court held that the wife’s application for an order of sale and division of the
proceeds was a sufficient unilateral act to sever the joint tenancy and

render it a tenancy in common. The wife therefore held the property as a tenant in
common with the deceased husband and proceeds of sale would be shared with
the husband’s estate.

c)      Course of dealing.

Where the conduct of the joint tenants gives rise to a presumption that there is a
mutual understanding that the joint tenancy be severed and each co- owner
acquire a distinct share in the land, the joint tenancy shall be deemed to have been
terminated.

For instance negotiators to sever the joint tenancy which do not eventually lead to
an agreement may be considered a course of dealing sufficient to terminate the
joint tenancy (see the case of BURGESS Vs RAWNSLEY [1975] CH 429)

d)      By Court order.

The principal of Bonafide purchaser for value.

The principal of Bonafide purchaser for value is enshrined under the    

negotiation of the Titles’ Act Cap 230 and derives from the system of land
registration applied under the act.

The Torrens system of Land registration founded by Sir Robert Torrens in the
1850s in Australia in a system by which title to land is acquired through the
registration of a transfer deed and once duly registered, the title becomes
impeachable or indefeasible.

Accordingly, the principals of bonafide purchaser bears two features or

implications:

a.       Priority of legal over equitable interests.

b.      Indefeasibility of title.

 

a. Priority of legal over equitable interest.

Under the registration of titles’ act, all unregistered interests are equitable interests, while
registration would ordinarily render the interest a legal interest.

For instance, the case of mortgages, the signing of a mortgage deed and deposit of the
certificate of titles with the mortgage automatically creates an equitable mortgage.The
equitable mortgage is operative as between the mortgagor and the mortgagee but would
not affect third party interest.

 For instance if the mortgages subsequently sold the land, and the purchaser registered a
transfer of the land into his names, that transfer would not be subject to the unregistered
mortgage.

Similarly, a lease of land for a period in excess of three years is required to be registered
under the registration of titles act. Where the parties fail or neglect to register the lease,
both the leaser and the lessee would still be able to enforce its provisions against each
other but would not do so as against a third party.

For instance if the leaser eventually sold the land and the purchaser registered the transfer
into his names, he would not be bound by the unregistered lease.

 
 Further still, if A sold his land to B, and afterwards sold the same land to C, title and
therefore ownership of the land would vest not as a matter of course in B who purchased
first, but in the person who first presents his transfer deed in the prescribed format to the
registrar of titles for registration. He who registers his interest first takes priority and title
to the land.

The importance of this is that title to an interest in land is created not by execution of
documents but by registration of the appropriate instrument.

Section 59 of the registration of Titles’ Act reads in part as follows:

“No certificate of Title shall be impeached or de feasible by reason or on account of any

informality or irregularity in the application or in the proceedings prior to the
registration of the certificate and every certificate of Title issued under the act shall be
received in all the courts as evidence of the particulars set forth in the certificates
……………..and shall be conclusive evidence that the person named in the certificate is
the proprietor of the estate or interest…………”

Ownership of the land registered under the registration of the titles Act vests in the
person who is registered on the title and such person takes priority over any and all third
parties whatever the nature of their claims.

b. Indefeasibility of Titles.
 Under the registration of titles’ act cap 230, a purchaser of land for value who has had
himself or herself duly registered can not lose the land, save in accordance with the
provisions of the act.

The purchaser’s ownership is guaranteed and cannot be defeated by rival claims.

Section 176 of the Act provides as follows:-

“No action of ejectment or other action for the recoxory of any land  shall lie or be
sustained against the person registered as proprietor under this act except in any of the
following cases:

                                 i.            The case of a mortgagee as against a mortgagor in default.

                               ii.            The case of a leaser as against a lease in default.

                              iii.            The case of a person deprived of any land by fraud as against
the person deriving otherwise as a transferee bonafide for value from or through a
person so registered through fraud.

                             iv.             The case of a person deprived of or claiming any land by

misdescription of the other land or of its boundaries as against the registered
proprietor of that other land not being a transferee of the land bonafide for value.

                               v.            The case of a registered proprietor claiming under a certificate

of title prior in date of registration under this act in any case in which two or more
certificates of title may be registered under this act in respect of the same land.

 
In any case other than the aforementioned the production of the registered certificate of title or
lease shall be held in every court to be an absolute bar and stopped to any such action against the
person named in that lease of the land described in it, any rule of law or equity to the contrary
not withstanding.

The essence of this provision in the registration of titles act is to cast a distinction between the
passing of property in a contract of sale of chattels and in a conveyance of land registered under
the RTA.

While in a contract of sale of chattels, a person without title or with bad title can not pass good
title to anybody, not even an innocent purchaser with registered land. An innocent purchaser may
get good title from one with a faulty or improper title. This is the essence of the principle of
bonafide purchaser for value. For instance, in the case of (LWANGAVS THE REGISTRAR
OF TITLES [1980] HCB 2V), the plaintiff’s father bought land which he did not immediately
transfer into his names. Upon his death, one katamba without any claim of right transferred the
land into his names and sold it to an innocent third party.

The plaintiff reported the matter to the police and katamba was prosecuted and convicted for
fraud. The plaintiff then also sought to reverse the transfer of the land from the names of an
innocent third party. The registrar relying on sections 59 and 176 of the registration of titles act
refused to oblige and the matter was taken to court seeking for an order that the registrar of titles
reverse the transfer.

The high court agreed with the registrar of titles, holding that the innocent purchaser was a
bonafide purchaser for value without notice of the fraud and could not be ejected from the land.
(see also OLINDE DE SOUZA Vs KASSAMALI NAMJI[ 1962] EA 756)

 
To qualify as a bonafide purchaser for value, a proprietor of land must exhibit or prove the
following:

a)      That he or she purchased the land for valuable consideration.

The consideration need not be in terms of money and exchange of pieces of land or a
chattel such as a vehicle is good consideration. The principles of the contract in regard to
consideration apply to this element. It should be noted that all the considerations must
have the quality of value. The value need not be consummate with the actual value of the
land since the law of contract recognizes that consideration need not be adequate. It must
however be something of value.

b)      The purchaser’s interest is registered. The protection accident to a bonafide purchaser
for value by the registration of titles act is especially and exclusively in respect of
interests registered with the registrar of titles in accordance with the Act . An
unregistered purchaser is not recognized as a bonafide purchase for value under the
R.T.A.

As such this principle does not apply to land held under customary tenure.

c)      The purchaser was not personally or by agent indulgence in any fraud and is not
fettered by any of the exceptions under the act.

Exceptions to the principle of bonafide purchaser for value.

The main exceptions to the principal of bonafied purchase for value   are set out under S 176
paragraph a-e of the R T A.
They include the following,

i.  Fraud.

Section  169 (c) of the R T A provides that  no action for ejectment or after action may be
brought against a person registered as proprietor sale in the case of  a person deprived of
any land  by fraud.

 A qualification is carried in the some provision to the effect that the fraud complained of
must be of the registered proprietor him self whose title is being challenged and sought to
be impeached. The proprietor must have obtained registration through participation or
indulgency in the fraud.

If some distance can be cast between the fraud and the registered proprietors or the
actions or conduct of the registered proprietor can not qualify to be  

 Considered part of the fraudulent transaction of the series of fraudulent transaction, then
such fraud is not what is envisaged by S. 176 and can not be used to impeach a registered
proprietor’s title.

The cases of MUSISI V GRIDLAYS BANK (U) LTD & OB DAMANICO (U) LTD.,
civil appeal N0. 22/ 92 both established that the registered proprietor whose title is sought
to be impeached   must have been part of the fraud or with full knowledge of it and must
have title advantage of the fraud. Dishonesty and an intention to cheat on the part of the
registered proprietor must be proved.

 
 Proof of fraud must be to standard beyond the balance of probability usually applied to
Civil matters and must have been specially pleaded with particulars there of set out in the
pleading. The court of appeal in the case of KAPALE BROTHERS LTD VS
DAMANICO (U) LTD; CA N0. 22/1992 held that fraud should not merely be inferred
from the facts pleaded but must be specifically pleaded given its seriousness.

Mere notice of some unregistered interest, whether a civil or constructive, does not
constitute fraud and would not defeat the purchaser’s title.

However, where such notes are companied   by are wrongful intention to defeat an
expectable interest may be deemed to protifote fraud. [See the case of KATARIKAWE
VS KATWIREMU AND AMON (1977) HCB 187.

However, in the absence of any among doing on the part of purchaser, he or she takes an
absolute and unfeasible title.

ii. A  purchaser takes title subject  to any interest  of estate registered on the title such as
mortgages  and leases., [ s.176 (a) & ((b) ]  and unpaid rate taxes and charges declared
under with  i.e. to be chargeable on the land in fraud  of government of public body and
registered with title.

iii. Earlier title to land legitimately grant and protected by sect 176 (e) and the role of fist in
time first in right in respect of compete legal interest of applies.
 

iv. Where land is included by wide assumption in the title of another sector 176 (d)

Public rights of passage and easement

v. Public right of way was defined by the case of  Makumbbi and Amino Vs pura sigh
Ghana and Amon (1962) EA 331 as a dedication to the public of the occupation of
surface land for the pupas of passing and repassing.

It may not be endorsed as an encumbrance on the land but takes precedence over a
purchaser’s right over the land and may not be prejudicially affected by the proprietor.

Easements are rights of use over another’s land for the benefit of some other land. It may
or may not be registered on the title but a purchase for value takes subjects to those
interests.

vi. Tenants rights on land

A tenant as opposed to a lease holds an estate in land for a period less than three years.
His interest may therefore not be registered or is protected against ejectment until the
expiry of the tenancy

[See Uganda post and telecommunications Vs A K M Lubaga CA 36/95]

 This exception may also be deemed to include bonafide occupants whose possetion of the
land constitutes to indivisibility, under S.32 (2) of the land act.

vii. Limitation.

 Under the limitation act C A P 70, a suit for recovery of land must be judged until a
person o f 12 years.

DISPUTE RESOLUTON MECHANISMS

 Article 243 of the constitution obliged parliament to enable a law for the establishment of
land tribunal to be vest with prove to determine disputes relating to land.

 Parliament approval;  is that provision  enact the land act OP 227 ,  and under its part five
(v)  provided for the establishment  constitution and inaction of land tribunals  stretchy
for  the district to the sub county level  and eventually to the L C II levels.

 The district land or land s are established under section 74 (1) of the act as the higher land
for land in the district.

 
 

 Each district tribunal is composed of a chir3 person and two other members, all of whom
are appointed by the CJ on the reconciliation of the judicial service commission pursuit to
section 74 (5) of the land act.

 The chair person must be a lawyer qualified and be a magistrate grad 1.

 The two other members of the tribunal are not required to be of any given profession
qualification but must be persons with knowledge and experience in land matters.
However such person must be at least thirty years old of some mind and of a high moral
character and proved with no criminal records focal offence involving moral turpitude
and should not be bankrupt or have been declared bankrupt.

 A member of a district tribunal may hold office for a period of five years and shall be
eligible for reappointment.

The sub county and urban land tribunal were however abolished an replaced with the L C
III county, so that the hierarchy of land tribunals staples for L C II , though LC III to the
district land tribunal. And must be a person qualified or knowledgeable in land matters of
tenants 

  

 The member of the district land  tribunal have security  of tenants ensured by:

 
 (i)                  Protection  from arbitrary terminator.

A member of a district land tribunal may be dismissed by chief justice on the

ground o f inability to perform his or her functions due to infirmity of and on
body, miss behavior or misconduct, convict or for an offence involving moral
turpitude, incompetence, bankruptcy and absence for at least five consecutive
meetings of the tribunal. It is apparent that a

member of the tribunal may not be dismissed on any other ground other than the
above.

             (ii)       Payment from the consolidated fund.

Under S.74 (6) of land act, members of the tribunal are paid salaries and
allowances on terms set by the public services commission on the advice of the
judicial service commission and are paid directly from the consolidated fund.

JURISDICTION OF DISTRICT LAND TRIBUNALS.

The jurisdiction of district land tribunal is provided for under section 76 of the land act.

A district land tribunal exercise jurisdiction with the geographical confines of its districts.
The jurisdiction of district land tribunal is, however virtually unlimited in terms of the subject
matter and they enjoy both original and appellate.

i. Section 76 (1) (a)empowers the district land tribunal to determine disputes relating to the
grant, lease, repossession ,transfer of acquisition of land by individuals  the commission
or other authority with responsibility relating to land.

ii. The land act in respect of which the land tribunal may entertain and determine the
dispute.

S. (1) ( c ) provides that the District land tribunal shall determine dispute in respect in
respect of land and the value of which exceeds that stipulated in respect of sub county
and under land tribunal. The value stipulated for Sub County and under land tribunal is
provided for under S 84 and the schedule to the land act to be UGX 50 million in respect
of rural areas, UGX 100million in respect of gazetted urban areas and 250 million in a
division in a city. The district land tribunal therefore hears dispute in excess of the
amounts but has no upper limit on the value of the dispute.

iii. Hear and determine.

            Under  section 76 (1) (b) and 77 of the land act, district land tribunal are who
specifically give jurisdiction to  hear and determine disputes relating to  the amount of 
compensation paid to owner in case of acquisitions of land by government  and local
authority and to grant orders for the payment of a disturbance allowance to the displaced
land owners .

 
 iv. District land tribunal also have appellate jurisdiction over the lower tribunals and
receiving and hears appeals for the sub county land tribunal and urban land tribunal.

v. The district land tribunal in a court of first instance in all land matters where the subject
matter does not exceed two thousand five hundred currency points. Under the schedule to
the land act it is translates into Shs 50 millions.

vi. The district land tribunal also exercise powers asking to judicial review of decisions of
the administrative authorities dealing with land matters. Under section 76 (2) of the land
act, a district land tribunal has power to cancel any action, under decree or declaration,
vary the operation of any action, notice under, decree of declaration, substitutle a
different decision for the one determined by any official, board, committee, association or
the commission or to confirm any actor, notice, order, decree, or declaration made,
inspite of any procedural error committed during the making of that actor, order, decree,
declaration or notice.

The district land tribunal may get remedies of specific performance, injunctions and any
other relief as the circumstances of the case may require.

 All the land tribunal apply rules of procedure made by the chief justice pursuort to S78
of the land act .The civil procedure rule and advocates act have been made applicable in
the land tribunals.

 
vii.  The district land tribunal , however , dose not have power to make orders for the
cancellation  of certificate of title or of  entice on a certificate of title or for the resting of
title.

      Where such cases arrive before the district land tribunal, they are referred to the high
court for consequential order in accordance with section 31 of the land (amendment) act
N0.1. of 31004.

OFFICAL OF THE DISTRICT LAND TRIBUNAL

Sections 79 of the land act provides for a registrar of district tribunal to co-odinate and monitor
the activities of the district land tribunal. Such a person shall be qualified to be appointed as a
registrar of the high court.

The land act also provides for the office of assistant registrar of a land tribunal. Such a person
shall be qualified to be an adjudicate of the court of judicature.

This office replaced the position of secretary to the district land tribunal. The assistant Registrar
of the land tribunal receives and registers application notices and decisions and all documents
relating to the applications, issues and servers another and sermons of the tribunal.

The assistant registrar may issue interim order in the absence of the chairperson. The custody of
records of the proceedings of the tribunal and the taxation of casts are under taken by the
assistant Registrar.

 
SUPERVISION OF LAND TRIBUNAL.

Under section 79 D of the land act, the chief registrar of the high court is rested with super
visionary powers over all land tribunal and that office of the registrar of land tribunals.

This provision applies that land tribunals are part and parcel of the court of judicature of
Uganda . To that extent, all assets, liabilities and money for the operation of land tribunal and the
office of the registrar of land tribunal is appropriate through the secretary to the judiciary.

The parent Department in charge of land tribunal is also no longer ministry of lands and is now
the office of secretary is the judiciary.

ROLE OF THE EXECUTIVE COMMITTEE COURTS.

Section 76A of the land act empowers executive committee court at the level of parish or ward
and divisions of Sub County to hear and determine disputes pertaining to land.

Under section 76A (i) parish or ward executive committee court on L C (II) court are courts of
first instance in respect of land disputes.

 
Appeals from these court lie with the division or sub county executive committee court or LC
111court and then to the district land tribunal. from the district  land tribunal, appeals lie to the
high court.

Accordingly the position of the LC  court act in respect of land  matters, form Executive 
committee [judicial power] act)cap8 if which provides for appeals from  LC III  courts to the
chief magistrate’s court dose not apply in land matters.

The land act dose not prescribe the jurisdiction to be exercised  by the  L C II court as court of
first instance, yet the district land tribunal is also a court of first  instance in all matters pertaining
land.

It is presumed that the LC 11 court and the district have concurrent jurisdiction in matters in
respect of which the executive committee courts ordinarily have jurisdiction i.e land held under
customary tenure.

ALTERNATIVE LAND DISPUTES RESOLUTION MECHANISMS

 
Section 88 of land act saves the exercise by traditional authorities of functions of determining
disputes over land held under customary tenure or acting as medication in such disputes.

The district land tribunal is empowered at any time during the proceedings of a dispute before it
to refer the dispute to a mediator under section 88(2).

Where the land tribunal makes an order referring a dispute to a mediator, it will appoint the
mediator who shall be a  person of high moral  character and proven integrity likely and capable
of bringing the parties to a mutually satisfactory agreement on the matter.

The mediate is independent and not subject to the control or direction of any person.

The mediator must however be agreed to by the parties to the dispute and be paid by his or her
justly.   

-A holder of full powers of use and develop ie mortgage, lease, sub divide, divide
by testament (will), sell or other wise.

-Subject to condition, limitations or restrictions applicable to the tenant.

-Originated from the 1900 Buganda Agreement agreed between British colonial and
Buganda . Land was given to chiefs in square miles, hence the name mailo.

 
 

CUSTOMARY TENANCY

-Provided for under Article 237(3) of the constitution and section 2 of the land act. it is a system
of tenure regulated by customary rules.

-         S.3 of the land act sets out its features.

LAND ADMINISTRATION AND CONTROL IN UGANDA

Land Administration refers to the principle, institutions or bodies and the law pertaining to the
management of land, control of the interests in the land and the procedures of dispute resolution.

Before the coming in to force of the contribution of Uganda of 1995, all land was public land,
rested in government and administered on its behalf by the Uganda land commission.

 
Under section 1 (i) of the land reform decree of 1975 the Uganda land commission had sole
powers of managing and allocating land on behalf of government.

With the coming into the 1995 constitution however, its position changed. Under article 237 of
the constitution, land in Uganda is vested in the citizens of Uganda .

Accordingly, the guiding principles in matters of land administration in that the people must
exercise a central role in determining the manner in which land is acquired, utilized and
allocated.

As such, in addition to the Uganda land commission, article 240(i) of the constitution provides
for the establishment of district.

Land boarders in every district to act as controlling authorities so that at every district, the
management and control of land would be exercised by the people of that district. In order to
take this even closer to the majority of the population, land committees were provided for or
organized for the control and administration of land.

The administration of land is the therefore vested in the Uganda land commission, district land
board and the land committees.

THE UGANDA LAND COMISSION

 

The U L C was established under article 238(i) of the constitution of Uganda of 1995 and section
46 of the land act.

It consists of a chairperson and other members not being less than four all of whom are
appointed by the president and approved by the parliament. They hold office for a period of five
years, but are eligible for reappointing.

At least one of the members of the commission must be a woman while at list two members shall
be persons with qualifications and experience in matters related to land.

A member of the commission must be above twenty one years old, of sound and, of high moral
character and proves integrity, must not have been convicted of an offence involving moral
turpitude or declared bankrupt.

The commission is a body corporate and it has power to acquire by purchase exchange or
otherwise any land right, easement or other interests in land, or to sell, lease or other wise deal
with the land.

The commission may also erect, alter, enlarge of demolish any building and may caver any
surveys, plans, maps, drawings of estimates of any land under its charge.

 
The function ot the U L C are provided for under section 49 of the land act Cg 227 as follows;

(i)                  To hold and manage land vested in or acquired by government.

(ii)                To hold and manage land acquired by the government of Uganda and roads
with power to delegate the management of such land to Uganda‘s missions abroad.

(iii)               To procure certificate of title for any land rested in or acquired by

government.

(iv)              Perform such other functions as may be prescribed by the land.

(v)                Administer the land fund.

In the exercise of its powers and performance of its functions, the U L C is obliged to conform to
government policy and may receive policy direction from the minister.