Land Registration

LAND REGISTRATION & TRANSACTIONS
September 2021
MUGABI John Bosco
119-053011-20244
0705872009
LLB, Islamic University In Uganda
Covers dealings in Land Registration,
Servitudes over Land, Leases, Mortgages, Condominium
Properties and Expropriated Properties in Uganda.
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Land Transactions & Registration: Mugabi John Bosco - September 2021
TABLE CONTENTS
UNIT ONE: REGISTRATION OF LAND
1. Introduction…………………………………….
a. History of the Torrens Systems
b. Application of the system in Uganda
2. Essential features of Torrens System
a. Title by Registration & Effect of Unregistered Instruments
b. Indefeasibility of Title & its Exceptions
3. Protection by of Unregistered Interests (Caveat)
a. Definition of caveat
b. Lodging of caveat
c. Duration of caveat
d. Liability of wrongful lodgment of caveat
e. Termination of caveat
4. Remedies for Deprivation of Land
a. Ejectment
b. Damages
c. Compensation
UNIT TWO: SERVITUDES OVER LAND
1. Introduction
a. Definition of servitudes
b. Types of servitudes ( Easement, Profit aprendre, Restrictive Covenant,
License & Customary Rights)
2. Easements
a. Definition
b. Essential features of easement
c. Creation of easement
d. Termination/ discharge of easement
3. Profits A Prendre
a. Definition
b. Distinguish of Profit aprendre from Sale of Goods
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4. License
a. Definition
b. Types of License
5. Restrictive Covenant
a. Definition
b. Enforcement of Covenant at Common law and Equity
c. Scheme of development
d. Restrictive Covenant under RTA
e. Remedies for breach of Restrictive Covenant
f. Termination of Restrictive Covenant
6. Customary Rights
a. Definition
b. Enforceability of Customary rights

UNIT THREE: LEASES
1. General Introduction
a. Definition of lease and leasehold tenure
b. Distinction between lease and license
c. Classification of Leases
2. Essential features of a Lease
a. Duration
b. Exclusive possession
3. Creation of a Lease
a. By contract
b. Tenancy by estoppel
c. Registration and effect of unregistered Lease
4. Conditions & Covenants (Rights & Obligations of Landlord & Tenant)
a. Definition of Condition and Covenant
b. Express covenant
c. Covenant implied under general law against the landlord (quiet
possession, non-derogation from grant, fitness for human habitation).
d. Covenant implied against the tenant
e. Covenants implied under the RTA
5. Sublease & Assignment
a. Definition of sublease and assignment
b. Enforcement of covenant in a lease and sublease
c. Registration of transfer of a lease
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d. Assignment of a reversion
6. Remedies for breach of contract ( Landlord and tenant remedies)
a. Damages
b. Injunction
c. Termination of lease
d. Mesne profit
e. Distress for rent
f. Forfeiture
g. Relief from forfeiture
h. Waiver of forfeiture
7. Termination of a Lease
a. Forfeiture
b. Effluxion of time
c. Notice to quit
d. Surrender
e. Merger
UNIT FOUR: MORTGAGES
1. Introduction
a. Definition of Mortgage
b. Definition of Mortgage deed and Deed of Release
c. Laws governing Mortgage in Uganda
d. Distinction of Mortgagee and Mortgagor
2. Creation of a Mortgage
a. Equitable Mortgage
b. Registered Mortgage
c. Mortgage on customary land and tenancy by occupancy
3. Rights of Mortgagor
a. Right of redemption
b. Right to transfer to the third party
c. Right to inspection and production of documents
d. Right to redeem separately or simultaneously
e. Right to accession
f. Right to grant a lease

g. Right in case of a waste
4. Liabilities of Mortgagor
a. Covenant for the title
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b. Covenant for the defense of title
c. Covenant for payment of public charges
d. Covenant for payment of rents\covenant for the discharge or prior
mortgage
5. Rights of Mortgagee
a. Right to foreclosure of sale
b. Right to sue for mortgage money
c. Right to sell
d. Right to appoint Receiver
e. Right to accession
f. Right of renewal of mortgaged lease
g. Right of mortgagee to spend money
h. Right to proceeds of revenue sale or compensation on acquisition
6. Liabilities of Mortgagee
a. Mortgagee bound to bring one suit on several mortgages
b. Liability of mortgagee in possession
7. Equity protection of Mortgagor
a. Equity maxim
b. Collateral advantage
c. Judicial intervention
UNIT FIVE: CONDOMINIUM PROPERTY
1. Introduction
a. Definition of Condominium
b. Historical development of Condominium

c. Law governing condominium in Uganda
2. Division of Building into Units & their Registration
a. Condominium plan ( Section 2)
b. Division of building into units and their registration (Section 8)
c. Registration of condominium plans & units ( Section 3,10,11,16)
d. Change of use of units ( Section 8)
e. Requirement for Condominium plan
f. Forms of register of Condominium plan
3. Management & use of Condominium Property
a. Common Property & Corporation (S.21,22)
b. Establishment of Corporation ( Section 19)
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c. Easement in Condominium Property (Section 14,15,16 & 17)
d. Termination of a condominium status of property [S. 25,48,49]
4. Pros and Cons of Condominium Property
a. Pros
- Better land utilization
- No maintenance worry
- Condominiums are secure with security
- Luxury amenities
- They are affordable
- Promotes price competiveness
- Proximity to city life
- Cheaper insurance
- Great sense of community
b. Cons
- Low privacy factor
- Payment of homeowner association fee

- There are rules to follow in condos
- Potentially mismanaged funds
- Difficulty to sell
- No outdoor space
- Pet restrictions
- Limited parking
- Lack of storage facilities
UNIT SIX: EXPROPRIATED PROPERTY
1. Historical background of expropriated property
a. Asian economic dominance
b. Corrective measures
2. The Expropriation
a. Cancelation of entry permits
b. Prohibition of new liabilities
c. Declaration of assets
d. Agents of sale of properties to Ugandan citizen
e. Vesting the properties in the board and government
f. Constitutionality of the expropriation
g. Management of expropriated property
h. Compensation to departed Asians
3. Reversing the Expropriation
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a. The pressure for repossession
b. Purpose of expropriated properties Act 1982
c. Properties to which the Act applies
d. Re vesting of property in the government and nullification of dealings
e. Dealings by the minister
f. Dealing with encumbered properties

g. Compensation to departed Asians
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UNIT ONE: REGISTRATION OF LAND
THE TORRENS SYSTEM OF LAND REGISTRATION1
a. History of the Torrens Systems
Torrens title is a system of land title where a register of land holdings maintained
by the state guarantees indefeasible title to those included in the register. The
system was formulated to combat the problems of uncertainty, complexity and
cost associated with old system title, which depends on proof of an unbroken
chain of title back to a good root of title. The Torrens title system was introduced
in South Australia in 1858, formulated by then colonial Premier of South Australia
Sir Robert Torrens. Since then, it has become pervasive around the Commonwealth
of Nations and very common around the globe. In the United States, only Iowa has
all its land under the Torrens system; other states with a limited implementation
include Minnesota, Massachusetts, Colorado, Georgia, Hawaii, New York, North
Carolina, Ohio and Washington.
The Common law
At common law, land owners needed to prove their ownership of a particular piece
of land back to the earliest grant of land by the Crown to its first owner. The
documents relating to transactions with the land were collectively known as the
"title deeds" or the "chain of title". This event could have occurred hundreds of
years prior and could have been intervened by dozens of changes in the land's
ownership. A person's ownership over land could also be challenged, potentially
causing great legal expense to land owners and hindering development.
Even an exhaustive search of the chain of title would not give the purchaser
complete security, largely because of the principle nemo dat quod non habet ("no
one gives what he does not have") and the ever-present possibility of undetected
outstanding interests. For example, in Pilcher v Rawlins (1872) the vendor

conveyed the fee simple estate to P1, but retained the title deeds and fraudulently
purported to convey the fee simple estate to P2. The latter could receive only the
title retained by the vendor - in short, nothing. The case referred to here was
actually decided in favour of the subsequent purchaser of the legal title, over the
owners of the equitable title. The courts of equity could not bring themselves to
decide against a totally innocent (without notice) purchaser. (Pilcher v Rawlins
1 This Article was downloaded from www.wikipedia.com
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(1872) 7 Ch App 259, Court of Appeal, viewed in Bradbrook, MacCallum and Moore,
2007, Australian Property Law; Cases and Materials, Lawbook Co., NSW)
The common law position has been changed in minor respects by legislation
designed to minimise the searches that should be undertaken by a prospective
purchaser. In some jurisdictions, a limitation has been placed on the period of
commencement of title a purchaser may require.
Deeds registration
The effect of registration under the deeds registration system was to give the
instrument registered "priority" over all instruments that are either unregistered or
not registered until later. The basic difference between the deeds registration and
Torrens systems is that the former involves registration of instruments while the
latter involves registration of title.
Moreover, though a register of who owned what land was maintained, it was
unreliable and could be challenged in the courts at any time. The limits of the
deeds registration system meant that transfers of land were slow, expensive, and
often unable to create certainty of title.
Creation of the Torrens system
In order to resolve the deficiencies of the common law and deeds registration
system, Robert Torrens introduced the new title system in 1858, after a boom in
land speculation and a haphazard grant system resulted in the loss of over 75% of
the 40,000 land grants issued in the colony (now state) of South Australia. He
established a system based around a central registry of all the land in the
jurisdiction of South Australia, embodied in the Real Property Act 1886 (SA). All
transfers of land are recorded in the register. Most importantly, the owner of the
land is established by virtue of his name being recorded in the government's
register. The Torrens title also records easements and the creation and discharge
of mortgages.
The historical origins of the Torrens title are a matter of considerable controversy.
Torrens himself acknowledged adapting his proposals from earlier systems of
transfer and registration, particularly the system of registration of merchant ships
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in the United Kingdom. James E. Hogg, in Australian Torrens System with Statutes
(1905), has shown that Torrens derived ideas from many other sources and that he
received assistance from a number of persons within South Australia. Stanley
Robinson, in Transfer of Land in Victoria (1979) has argued that Ulrich Hübbe, a
German lawyer living in South Australia in the 1850s, made the most important
single contribution by adapting principles borrowed from the Hanseatic
registration system in Hamburg.
Nevertheless, it cannot be denied that Torrens' political activities were
substantially responsible for securing acceptance of the new system in South
Australia and eventually, in other Australian colonies and New Zealand. He oversaw
the introduction of the system in the face of often vicious attack from his
opponents, many of whom were lawyers, who feared loss of work in conveyancing
because of the introduction of a simple scheme. The Torrens system was also a
marked departure from the common law of real property and its further
development has been characterised by the reluctance of common law judges to
accept it.
Overview of the Torrens system

The Torrens title system operates on the principle of title by registration (i.e. the
indefeasibility of a registered interest) rather than registration of title. The system
does away with the need for a chain of title (i.e. tracing title through a series of
documents). Each parcel of land is given a separate folio in the register and is
identified by reference to a registered plan. The folio records the dimensions of
the land and its boundaries, the names of the registered proprietors, and any legal
interests that affect title to the land. The State guarantees title and is usually
supported by a compensation scheme for those who lose their title due to its
operation.
The Register
The land register is the central aspect of the Torrens system. Originally the register
was a bound paper record, but today the register consists of computer
information.
On the first registration of land under the system, the land is given a unique
number (called a folio) which identifies the land by reference to a registered plan.
The folio records the dimensions of the land and its boundaries, the name of the
registered owner, and any legal interests that affect title to the land. To change the
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boundaries of a parcel of land, a revised plan must be prepared and registered.
Once registered, the land cannot be withdrawn from the system.
A transfer of ownership of a parcel of land is effected by a change of the record on
the register. The registrar has a duty to ensure that only legally valid changes are
made to the register. To this end, the registrar will indicate what documentation he
or she will require to be satisfied that there has in fact been a change of ownership.
A change of ownership may come about because of a sale of the land, or the death
of the registered owner, or as a result of a court order, to name only the most
common ways that ownership may change. Similarly, any interest which effects or
limits the ownership rights of the registered owner, such as a mortgage, can also
be noted on the register. There are legal rules which regulate the rights and powers
of each of these interests in relation to each other and in relation to third parties.
The State guarantees the accuracy of the register and undertakes to compensate
those whose rights are adversely affected by an administrative error. Claims for
compensation are very rare.
Between 1908 and 1922, there were efforts to establish a comprehensive titling
system in Uganda. It culminated into the enactment of the Registration of titles
Ordinance no 2/22. It never came into force immediately. It was extensively
amended in 1923 by ordinance 12 and it came into force in 1924.
Initially, it was then said that our law would be based on the South Australian
statute but eventually our law was modeled on the transfer of land Act of the state
of Victoria.
It was then the most modern in Australia then. The statute operated for about 14
years and had some problems as seen by the administration. In 1937, a study was
commissioned by government headed by Shepherd and came up with a report on
survey and titling system in Uganda in 1938. He was quite critical on the Australian
law on which our statute was based. He thought that it was obtuse* and illegal
phraseology and the most complicated machinery of record to be found in
Australia. In his view, it was unfortunate that such legislation was chosen as a
model for Uganda. Shepherd reasoned that the different law was necessary for each
of the Australian states. It followed that no particular Australian Act would suit
another country and he added far less a primitive African country like Uganda. In
his view, there was no state of difference between Victoria and Uganda in terms of
laws, customs, size, so the law was inappropriate for Uganda.* He advocated for a
simple ordinance based as far as possible on local custom adopted to the
conditions of life in Uganda and readily understood by African land owners.
Unfortunately, these proposals of a simple ordinance tailored around local
customs were not embraced.
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Three principles of Torrens system
The Torrens system works on three principles:
Mirror principle - the register (Certificate of Title) reflects (mirrors) accurately and
completely the current facts about a person's title. This means if a person sells an
estate; the new title has to be identical to the old one in terms of description of
lands, except for the owner's name.
Curtain principle - one does not need to go behind the Certificate of Title as it
contains all the information about the title. This means that ownership need not be
proved by long complicated documents that are kept by the owner, as in Private
Conveyance system. All the necessary information regarding ownership is on the
Certificate of Title.
Insurance principle - provides for compensation of loss if there are errors made
by the Registrar of Titles. Note that this is not relevant to oil companies due to
maximum claims.
Application of then Torrens system in uganda
The first step was establishment of the office of titles. The system is administered
by the office of titles. S.3 of the RTA, Registrar of Titles is to be appointed hence
the charge and control of the office of titles. He is assisted by a deputy and other
registrar. S.3 (2) these officers are public officers like any other.
S.4 requires all courts, judges and persons acting as judicial officers to take
judicial notice of the signature of the registrar.
S.5 office of titles has to have a seal that fits the description set up in that section
and all certificates of title and other documents purporting to be sealed with such
seal and signed by the registrar. If a fact has to be proved and a certificate of title
is given without seal, it is taken to be proven unless the other party proves
otherwise i.e. contrary evidence is adduced by the other party.
The office of titles established branches – mailo office in Mukono, Mityana and
Masaka, Rukingiri, Kabale, Mbarara and Fort portal to register land granted under
the Toro and Ankole agreements- native freeholds.
Under the land Act, there would be distinct registries- s.60 (6) Land Act.
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2nd establish land register itself. S.37 (1) register is obliged to keep a register book
where he/she registers all titles and particulars of their dealings in priority; it may
not be practical to keep a real book. S.37 (2)(a) provides for the register to have a
loose leaf.
You can keep it in two parts, relating it to districts, counties or any geographical or
any geographical area. In practice a register is kept in loose leaf and each loose leaf
is given a number as a folio and 25 folios constitute a volume, for a seal, you’ll
meet freehold registration volume 1 folio 1.
The mailo register is also kept in loose leaf and is grouped in blocks and plots.
Each county e.g. Busiro, Kyagwe, Kyadondo would be broken into blocks e.g. block
1. The loose leaf certificate of titles end up as a registry book consequently.
Authenticity of this is from s.38(1) this is when the registrar endorsed it as a
volume and a folio number or plot and block number because this is the
identification of each piece of land.
s.38(1) prescribes the form of certificate of title to that as provided in the third
schedule of the Act, basically there are three variants whichever one chooses, a
certificate of tile has three parts.
Part 1 Description of the property i.e. volume and folio references/ the plot and
block numbers where the property is situated. It will also give the physical element
in terms of measurement. It also gives the tenure of the land, lease mailo etc.
Part2. This deals with proprietorship (ownership), here you will see the name and
address of the property (required by s.38 (3)). You will know the date on which
ownership was acquired and the number of the instrument under which the
proprietorship was acquired.
Part 3 This part deals with encumbrances i.e. interests and claims which burden
the rights of the proprietor things that reduce the value of the owners interests,
mortgages, caveat e.g. it shows details of the encumbrance and particulars, date
and instrument number of registered etc.
There must be a seal of the office of titles. The seal must be endorsed on the
certificate of title. S.53. Subsequent endorsement of certificate of titles discharges
must be endorsed on the title under the signature of the registrar. Under s.48 and
49, once an instrument is registered, you don’t only endorse the entry on the
certificate of title but the registrar must also endorse memoranda on the
instrument to show that it has been entered in the register. When an instrument is
presented for registration e.g. mortgage, it is given a number and time of
presentation e.g. 10.00 AM 26/03/02. It may not be signed immediately. It could
even be after a week for purposes of priority. S.42 says that the effective date of
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registration was when it was given a number so that if ¾ documents are brought
differently, they follow that priority.
Under S.55, the proprietor of land is entitled to be issued with a certificate of
title/COT and if he is a minor/ under a disability, the registrar should state the age
of the minor or the state of disability to protect them. If you want to subdivide
land you can surrender your certificate under s.67 and you are issued with others.
Sometimes, people lose their duplicate certificate. S.67 provides for insurance of
special certificates of tile after following procedure in s.67. It is also possible to
issue a COT under s.68 where the land has been sold pursuant to court order and
certificate has not been surrendered.
The legislature also envisaged misplacement or mismanagement of files by public
servants and thus loses of COT making the register useless.
S.71 RTA authorizes the replacement of the original title in case it goes missing.
This is called a substitute title. There are four types of title.
1. Original – Register book kept in office of titles.

2. Duplicate – owner/ issued to proprietor.
3. Substitute- given when original is lost s.71
4. Special – given when duplicate is lost s.67
COT is important in terms of the law because once issued, it is conclusive evidence
of title. S.56
Title by registration
Under the Torrens system, interests in land are created or transferred not be
execution of documents as under the Common law but by registration in the
manner prescribed by RTA. Section 54 stipulates that an instrument purporting to
confer an interest in land is not effective to pass any estate or interests in land or
bind the land by way of mortgage until the instrument is registered as provided
by the Act. Read: Ndigejjerawa vs. Isaka Kizito and Sabane Kubulwamwana
(1953)7 ULR 31; where the Court of Appeal observed that no document or
instrument can be registered unless it fulfills the statutory requirements is
effective to transfer and interest in land until it is registered.
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It is only upon the registration of the instrument that the state or interest in the
land passes and the land becomes liable and subject to the covenants and
conditions set forth in the instrument.
The RTA provides that a registered proprietor of any estate or interest in land
wishing to transfer, create an easement, lease or mortgage may do so by
completion of relevant prescribed forms as per the Act. Any instrument for
transfer or registration of interest must first be signed by the proprietor and
witnessed and presented to the Registrar together with the duplicate certificate of
title, plus such other documents or consents as may be required by law. It is only
after proper documentation has been submitted and payments made that the
instruments can be registered in the centralized register book and on the
duplicate title certificate.

THE EFFECT OF Unregistered instruments
The RTA states the no estate or interest can be created or transferred until the
instrument is registered in the manner provided for by the Act. Read: Section 54.
However, the RTA does not deny registered instruments/ transactions legal
efficacy. Read: Berry vs. Heider & Another (1914)19 CLR 197: Souza Figueiredo
& Co. Ltd vs. Mooring Hotel Co. (1960) E.A 926. It discusses the nature and
effect of unregistered instruments under the RTA. The appellant refused to pay
rent claiming that the tenancy was not effective in law because the landlord did
not register.
The Court in this case observed an unregistered instruments executed by the
parties constitutes a contract inter parte and they are bound by its terms.
It is now commonly taken from the position of the above case that an unregistered
lease constitutes a contract inter parte as observed in the following cases and not
an equitable lease. City Council of Kampala vs. Mukibi (1967) E.A 368 &Somalia
Democratic Republic vs. Anoop Syndirial Treon CA No. 4 of 1988
On the contrast however, there are several cases where the courts have held that
an equitable interest is created by virtue of the contract between the parties. In
Katarikawe vs. Katwiremu and Another [1977] HCB 187, Sekandi J held that
though in a contract of sale of land an unregistered instrument of transfer is not
effective to transfer title, the purchaser acquires an equitable interest in the land
which is enforceable against the vendor. Read: Alibhai & Another. vs. Karia &
Another CA No. 53 of 1995 where the Supreme Court observed that;
“After the contract of sale, property in the suit property passed to the first
respondent, who obtained the equitable estate thereto and retained it after
the appellants left Uganda. The appellants in whom the legal estate remained
become trustees of the first respondent and where under a duty as such to
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transfer the legal estate in the suit property to the respondents on

completion of the contract. It is that legal estate, in my view which vested in
the (Board).”
It is therefore very important to note that whereas the RTA does not recognize an
unregistered instrument, case law treats it as a contract between parties and
enforceable. The provisions of the RTA do not avoid the contract behind the
instruments or render it in operative. It is that contract and not the instrument
which is rendered as effective in accordance with the principles of the equity so
as to bring into existence an interest in land as intended by the parties in the
agreement.
INDEFEASIBILITY OF TITLE
Indefeasibility of title applies to the registered proprietor or joint-proprietors of
land. Different States have different laws and provisions.
It is the second most essential feature of the tenure system. It means that once a
person is registered as a proprietor of an estate or interest in land, the
government guarantees his/her title cannot be diverted or attacked by rival claims
to the land except as prescribed under the Registration of Titles Act.
The word indefeasibility of title is not used in the RTA but it is derived from the
various sections which protect the titles from impeachment once registered.
Upon registration of his interest and subsequent recording on Title of his interest,
the registered owner's claim to his interest in that land is superior to all other
interests in the land other than the circumstances summarized below.
The registered interest holder will be free from all encumbrances other than inter
alia:
 THOSE listed on the title;
 THOSE claiming the land on a prior folio;
 WHERE the land is included by wrong description on the part of the Registrar and
the proprietor is not or has not derived title from a purchaser ‘for value’;
 PARAMOUNT interests - these interests, although even possibly unregistered, are
'superior' to interests that are registered.

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Additionally, there exist exceptions or circumstances that can 'penetrate' the
indefeasibility. Common factors that, when evidenced by a party may penetrate and
defeat the registered holder's claim include:
 FRAUD - where fraud is committed by the registered interest holder [principle of
immediate indefeasibility];
 IN PERSONAM - where it can be shown that there was some contractual promise
or undertaking by the registered party vis-a-vis the unregistered party.
 INCONSISTENT LEGISLATION - where legislation is enacted after the Torrens
legislation is inconsistent with the Torrens legislation, the later piece of
legislation will prevail;
 VOLUNTEER - where the registering party acquires the interest for no
consideration (e.g. bequeathed in a will). Note, contrast with Victorian law, in
NSW volunteers will become indefeasible.
Indefeasibility of title in details
Section 59 on Certificate of titles as conclusive evidence of ownership, Section 64
on the fact that the estate and the interest of a registered proprietor is paramount
and prevails over all other unregistered interests or estate except as stated in the
Act.
Sections 181 & 176 of the RTA on the protection of a registered proprietor
against any action for the ejectment or damages. Except as stated in the RTA,
production by a person of a certificate of title in his/her name is deemed to be an
absolute bar and estoppel against any legal action. Read: Kampala Bottlers Ltd Vs
Damanico (U) Ltd C.A No. 22 of 1992. Also in Breskvar & another V Wall [1971]
126 CLR 376
There are two main objectives of the principle of indefeasibility:-
a. To protect the title of the registered proprietor from unregistered interests.
b. To save the persons dealing with the registered land from the trouble and
expense of going behind the register book in order to investigate the validity
of the title or possible invalidate claims to the land and thus simplify and
expedite the process of transfer.
Read: Lwanga Vs the Registrar of Titles (1980) HCB 24; it was observed that one
of the paradoxes of registered conveyance is that through registration obtained by
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fraud is void, it is capable of becoming of good root of title to a bona fide
purchaser for value.
Read:
 Olinda De Souza Vs Kassamali Namji (1962) E.A 756
 Nazarali Hasanali Sayani Vs Edward Mperese Nsubuga C.S No. 364 of 1993
Exceptions to the principle of indefeasibility of title
It is worth noting that the principle of defeasibility under the Torrens system is
not absolute and is subject to several exceptions both within the RTA, other
statutes and by the exercise of the inherent jurisdiction of courts. Section 64 of
the RTA provides for several exceptions to the indefeasibility principle among
others as stated below:-
a. Encumbrances notified on the folium: a registered proprietor takes his/her
title on subject to estate or interests which are endorsed on the register book
and certificate of title at the time of the purchase. If the land is subject to a
mortgage, he/she shall ascertain the amount that is outstanding for obviously
it would affect the value of the land.
b. Fraud: the title of a registered proprietor is indefeasible except In the case of
fraud. Such fraud must be proved to as orchestrated by the registered
proprietor and it should be attributable to him/her. The fact that a registered
proprietor bought land from a rogue or a person who acted fraudulently in
transferring the land does not mean the transferee’s title was acquired
through fraud.
Read:
 Lusweswe Vs Kasule and Conlibally
 Hotel international ltd Vs the administrator of the Estate of the Late Robert
Kavuma
Read: Musisi Vs Grindlays Bank (U) ltd & Ors in which Court observed that a
person registered through fraud is one who becomes registered proprietor through
fraudulent act by him or to which he is a party or with full knowledge of fraud.
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All courts agree that the transferee must be guilty of the same fraudulent act or
must have known of such act by somebody else and taken advantage of such act.
The proprietor must have gained registration through participation in fraud.
Read:
 Kampala Bottlers Ltd Vs Damanico (U) ltd
 Rurangaranga Vs Mbarara municipal council.
What is fraud then?
Note that the Act does not provide definition. Fraud in the Torrens system means
actual fraud. It means dishonesty of some sort or desire to cheat on the part of the
proprietor whose title is being challenged.
Fraud has been defined in numerous legal authorities. Kerr on the Law of Fraud
and Mistake 5th edition part 1 page 1: states that civil courts of justice have
always avoided hampering themselves by defining or laying down as a general
proposition what constitutes fraud.
Fraud is infinite in variety with the ever dynamic operations of mankind. Thus Kerr
defined fraud in the contemplation of a civil court of justice to include all acts,
omissions, and concealments which involve a breach of legal or equitable duty, trust
or confidence, justly reposed, and are injurious to another, or by which an undue or
unconscientiously advantage is taken of another. All surprise, trick, cunning,
dissembling and other unfair way that is used to cheat anyone. Fraud in all cases
implies a willful act on the part of anyone, whereby another is sought to be
deprived, by illegal or inequitable means, of what he is entitled to.
In the American authority of Husky International Electronics, Inc vs. Ritz No. 15–
145of 2016 the Supreme Court of United States of America expanded the meaning
of actual fraud as encompassing fraudulent conveyance schemes that can be
affected without a false representation. Such fraudulent conveyances typically
involve a transfer to a close relative, a secret transfer, a transfer of title without
transfer of possession or grossly inadequate consideration
Supreme Court decision of Frederick J. K. Zaabwe versus Orient Bank & 5 Others;
SCCA NO. 4/2006; for the definition of fraud thus;
Page 20 of 98
“Fraud, according to Black’s Law Dictionary 6th Ed. at page 660, means an
intentional perversion of truth for the purpose of inducing another in reliance
upon it to part with some valuable thing belonging to him/her or to surrender
a legal right and fraudulent means acting wilfully and with specific intent to
deceive or cheat, ordinarily for purposes of either causing some financial loss
to another or bringing about some financial gain to oneself”.
This case further defined fraud to mean;
“Anything calculated to deceive, whether by a single act culmination, or by
suppression of truth, or suggestion of what is false, whether it is by a single,
direct falsehood or the innuendo by speech or silence, word of mouth, or look
or gesture …….. a generic term embracing all multifarious means which
human ingenuity can devise and which are resorted to by one individual to
get advantage over another by false suggestions or by suppression of truth
and includes all surprise, trick, cunning, dissembling an any unfair way by
which another is cheated. . “Bad faith” and “fraud” are synonymous, and
also synonymous of dishonesty, infidelity, faithfulness, perfidy, unfairness,
etc.
As distinguished from negligence, it is always positive, intention. It comprises
all acts, omissions and concealments involving a breach of a legal or
equitable duty and resulting in damage to another. And includes anything
calculated to deceive, whether it be a single act or combination of
circumstances, whether the suppression of truth or the suggestion or what is
false whether it be by direct falsehood or by innuendo, by speech or by
silence, by work or mouth, or by look or gesture……” ”
Further in Kampala Bottlers Ltd vs. Damanico (U) Ltd, SCCA No.22 of 1992, it was
also held that fraud must be strictly proved, the burden being heavier than one on
balance of probabilities generally applied in civil matters. It was held further held
that;
“The party must prove that the fraud was attributed to the transferee. It must
be attributable either directly or by necessary implication, that is; the
transferee must be guilty of some fraudulent act or must have known of such
act by somebody else and taken advantage of such act.”
This court will be guided by principles enunciated in these decisions in the
evaluation of the evidence in this case. Section 59 of the Registration of Titles Act,
Cap 230, provides to the effect that a certificate of title is conclusive evidence of
ownership. Also under Section 64 (1) RTA the estate of a registered proprietor is
Page 21 of 98
paramount and is indefeasible except in case of fraud. Further, Section 176 (c) RTA
accords protection to a registered proprietor on registered land from ejectment
except on grounds of the fraud attributable to the registered proprietor.
Section 141 RTA also provides that;
“So long as any caveat remains in force prohibiting any registration or
dealing, the registrar shall not, except in accordance with some provision of
the caveat, or with the consent in writing of the caveator, enter in the Register
Book any change in the proprietorship of or any transfer or other instrument

purporting to transfer or otherwise deal with or affect the estate or interest in
respect to which that caveat is lodged.”
In the case of Nabanoba Desiranta & Another vs. Kayiwa Joseph & Another, HCCS
No. 496 of 2005 quoting the case of UP&TC vs. Abraham Katumba [1997] IV
KALR 103, it was held that as the law now stands, a person who purchases an
estate which he knows to be in occupation and use of another other than the
vendor without carrying out the due inquiries from the persons in occupation and
use commits fraud.
Further citing Taylor vs. Stibbert [1803 – 13] ALL ER 432, the court held that the
failure to make reasonable inquiries of the persons in possession and use of land
or the purchaser’s ignorance or negligence to do so formed particulars of fraud.
Similarly, in the case of Hajji Nasser Katende vs. Vithalidas Halidas & Co. Ltd.,
CACA No.84 of 2003 citing the case of Sir John Bageire vs. Ausi Matovu, CACA
No.07 of 1996, at page 26, Kikonyogo, DCJ, quoting Okello JA. (as he then was)
emphasized the value of land property and the need for thorough investigations
before purchase, and held inter alia that;
“Lands are not vegetables that are bought from unknown sellers. Lands are
valuable properties and buyers are expected to make thorough investigations;
not only of the land but of the sellers before purchase.”
Waimiha Saw Milling Co. Ltd v. Waione Timber Co. Ltd (1926) A.C 101 at page
106, quoting Lord Buchmaster that fraud implies some act of dishonesty. I believe
these authoritative definitions exhaustively encapsulate all aspects of what
constitutes fraud.
Secondly, in David Sejjaaka v. Rebecca Musoke, Civil Appeal No. 12 of 1985, it
was held that fraud must be attributable to the transferee, either directly or by
necessary implication. The transferee must be guilty of some fraudulent act or
must have known of such act by somebody else and participated in it or taken
advantage of it.
Page 22 of 98
Thirdly, in J.W.R Kazzora v. M.L.S Rukuba, S.C.C.A No. 13 of 1992, it was held
that fraud must be specifically pleaded and strictly proved and cannot be left to be
inferred from the facts.
In Matovu & 2 others vs Ssenviri and another [1979] HCB 187, it was held that
when a person Procures Registration to defeat unregistered interest of others,
then such person is guilty of fraud. It therefore follows that once such fraudulent
registration is found out, then the Certificate in respect thereof is null and void
and has to be cancelled under Section 177 of the R.T.A.
What remedies are available to the parties?
Section 177 RTA provides that;
“Upon the recovery of any land, estate or interest by any proceeding from the
person registered as proprietor thereof, the High Court may in any case in
which the proceeding is not herein expressly barred, direct the registrar to
cancel any certificate of title or instrument, or any entry or memorial in the
Register Book relating to that land, estate or interest, and to substitute such
certificate of title or entry as the circumstances of the case require; and the
registrar shall give effect to that order.”
Section 27(2) of the Civil Procedure Act Cap 71 provides to the effect that costs
shall be in the discretion of the court and shall follow the event unless for good
reasons court directs otherwise.
Section 59 of the RTA to argue that possession of a Certificate of title by a
registered person is conclusive evidence of ownership of land described therein.
He also referred to Section 176 (c) of the RTA to argue that a registered proprietor
of land is protected, save for fraud ‘fraud’. He referred to cases of John
Katwiremu & Anor (1977) HCB 187, and Mudiima Issa & 8 Others versus Elly
Kayanja & 2 Others; Civil Suit No. 232/2009 for emphasis of the holding that
under Section 61 (now 59) of the Registration of Titles Act, once a person is
registered as proprietor of land, his title is indefeasible except for fraud.

Counsel argued that no evidence implicating the Defendant in forgery of the
documents was led in Court. He referred to case law including Mayanja J. B
versus Lawrence Maggato Guta; HCT CS NO. 727/2006, to argue that fraud must
be proved by evidence, not by submissions based on pleadings. The Plaintiff’s
Counsel argued for the dismissal of the counterclaim on grounds above.
In reply, Counsel for the Defendant/Counter claimant referred to Section 101(1) of
the Evidence Act to argue the law applicable on the standard of proof. He argued
that it is provided therein that whoever desires any Court to give Judgment as to
any legal right or liability dependent on the existence of facts which he or she
asserts must prove that those facts exists. He also referred to the authority of
Page 23 of 98
Frederick J. K. Zaabwe versus Orient Bank and 5 Others SCCA No. 4/2006 for the
definition of fraud. He then referred to the evidence of Kiwanuka Joseph (DW2, as
evidence which proved that the suit land still belongs to the estate of the late
Stanley Kitaka Kisingiri and the transfer of the same into the Plaintiff’s names was
done fraudulently and illegally.
He referred to the authority of Edward Gatsinzi & Mukasanga Ritah versus
Lwanga Steven; Civil Suit No. 690/2004, which inferred fraud from an illegality.
Edward Gatsinzi& Mukasanga Ritah versus Lwanga Steven (supra) to re-echo the
Hon. Judges’ Ruling that;
“Where sale of land is involved, the purchase cannot be by mere presumption,
there must be actual purchase with written memorandum or not duly signed
by the parties, and the failure to prove the same would render the said claim
baseless”.
Finally, on the illegalities above, Counsel referred to the authorities of Konde
Mathias Zimula versus Byarugaba Moses and Grace Nampijja HCCS NO.
66/2007, that;
“Courts of Justice will not allow a person to keep an advantage which he

obtained in bad faith……..”
National Social Security Fund & Anor versus Alcon International Ltd. SCCS
No.15/2009 when Odoki CJ (as he then was) held that;
“One of the principles of law is that as long as there is an illegality, it can be
raised at any time as a Court of law cannot sanction that which is illegal”.
In Uganda Railways Corporation vs Ekwaru & others [2008] HCB 61, it was held
that a trial Judge has a duty to use a judicial microscope to see all those
illegalities that may not be seen by ordinary eyes of parties, including those of
their counsel who may not have seen it. So even if some irregularities were not
pleaded, it is the duty of this court to use its judicial microscope to point out those
irregularities in the interests of justice.
The burden to prove the alleged fraud however falls on he who alleged it (Per
Section 103 of the Evidence Act). Any person who puts up a defence of being a
bona fide purchaser has the burden of proof to adduce evidence that establishes
that he or she is actually a bona fide purchaser for value without Notice of any
fraud. He must prove the following elements of this defence:-
(a) That he has a valid Title from a person registered as a proprietor.
Page 24 of 98
(b) Must have paid valuable consideration.
(c) Must have acted in good faith without Notice of fraud whether actual or
implied.
See David Sejjaka vs. Rebecca Musoke Supreme Court, Civil Appeal No. 12 of 1985.
The learned Author, L. VOUMARD Q.C. in SALE OF LAND IN VICTORIA, 2nd Edition
page 402 stated:
“The duty of a purchaser or a mortgagee to investigate the Title is not a duty
owing to the holder or the possible holder of a latent Title or security. It is a
merely the course which a man dealing bona fide is proper and usual manner
for his own interest ought by himself or his solicitor to follow that course the
omission of it may be a thing requiring to account for or explained. It may be
evidence of a design inconsistent with what a bona fide dealing to avoid
knowledge of the true state of Title... a purchaser who knows that the property
purchased is in occupation of some person other than the Vendor is affected
with constructive notice of the right of the occupier but if he registers a
conveyance without making further inquiries he will lose the benefit of
registration only if in the circumstances of the case abstention from inquiry
evidences a want of good faith.”
The law has not been static and the duty to do due diligence in the designs of
fraud requires the intending purchaser to do more than merely looking at the
Certificate of Title but to investigate the validity of the Title. The mischief of
fraud and elements of fraud have overtime mutated to involve the Registrars of
Titles.
Sir John Bageire vs. Ausi Matovu C.A. NO. 7 OF 1996 (C.A.U.)
The Court of Appeal considered what was expected, in that case, to discharge the
burden of proving the plea of being a bona fide purchaser for value without Notice
and His Lordship G. M. OKELLO, J. A, (as he then was) stated:-
“It must be noted that Lands are not vegetables which are bought from
unknown sellers. Lands are very valuable properties and buyers are expected
to make thorough investigations not only of the land but also of the owner
before purchase.”
In order for one to seek the protection of Section 181 (supra), he/she must
prove that he/she is a bonafide purchaser. The purchaser must act in good
faith, ought to have given due consideration and purchased the land without
notice of the fraud. Such notice covers both actual knowledge and
constructive notice of the fraud. In Jones vs. Smith (1841) 1 Hore the
Page 25 of 98
Chancery Court held that: a purchaser has constructive notice of a fraud if he

had actual notice that there was some encumbrance and a proper inquiry
would have revealed what it was, has abstained either deliberately carelessly
from making those inquiries which a prudent purchaser would have made.
The law as per the case of Makula International Ltd. versus His Eminence Cardinal
Nsubuga & Anor (1982) HCB 11, is that Courts of Law cannot sanction what is illegal
and an illegality once brought to the attention of the Court, overrides all questions
of pleadings including admissions made thereon. This same position was re-
emphasised by the Supreme Court in the case of National Social Security Fund and
Another versus Alcon International Ltd SCCA No. 15/2009, when CJ Odoki (as he
then was) observed inter-alia that;
“One of the principles of law is that as long as there is an illegality, it can be
raised at any time as a Court of Law cannot sanction that which is illegal.
Counsel for the Appellant maintains that the Arbitral award was procured by
fraudulent means which is an illegality, which this Court must act upon!
Basing myself on the above authority, I find that the evidence raises issues
which boarder on fraudulent acquisition of the title by the Plaintiff, using
illegal or unexplained irregular methods and this Court must act upon this
evidence and deal with the said illegality.
Honourable G. Okello J. A. (as he then was) stated in the case of John Bagaire Vs
Ausi Matovu C.A. 7 of 1996 (C.A.) where his Lordship stated:
“Lands are not vegetables that are bought from unknown sellers.
Lands are very valuable properties and buyers are expected to make
thorough investigations not only the land but also of the seller before
purchase.”
Uganda Posts & Telecommunications vs. A.K.P.M Lutaaya SCCA NO. 36 of 1995
wherein Court inter alia held that: if a person purchases an estate which he knows
to be in occupation of another other than the vendor, he is bound by all the equities
which the parties in such occupation may have in the land.
According to the Civil Procedure Rules: O.6: R. 2; fraud is a very serious allegation
to make and it is required all such allegations must be specifically pleaded with the
particulars stated and must be strictly proved by the party alleging it. The
standard of proving fraud is not beyond reasonable doubt but merely proving on
the balance of probabilities.
Read: Alibhai & Anor. Vs Karia & Anor
Page 26 of 98
The effect of notice of unregistered interest and fraud
In equity, a purchaser of a legal estate is bound by any prior equitable interest over
the land which he/she had notice prior to purchase.
Notice is in two forms:-
 Actual notice.
 Constructive notice.
Actual notice is where the purchaser was actually aware of the existence of the
equitable interest before purchase. Constructive notice is knowledge the purchaser
would have acquired if he/she had take reasonable steps to investigate the title.
E.g. if someone {a third party} is in possession of the land at the time of purchase
Read: Uganda Post and Telecommunication Vs AKM Lutaya
In equity, notice of the unregistered interest on the purchaser’s side is deemed to
constitute fraud. In the contrary, under the Torrens system, notice by itself is not
fraud. Section 136 of the RTA provides that except in the case of fraud, a dealer is
not required to inquire or investigate the antecedents of the title he/she sought to
purchase or be concerned with unregistered interests. It further states that mere
notice of unregistered interests, whether actual or constructive, notwithstanding
any rule of law or equity to the contrary does not impute fraud.
Read:
 Shah Vs Modern Sweet mart ltd (1956-57)8 ULR 99
 Kyazze Vs Eunice Busigye CA No. 13 of 1990 compare with the Uganda post &
telecommunication Vs AKM Lutaya.

In applying this section, the courts have held that this section specifically
prohibits the application of the rules of equity, even where the purchaser was
aware of the unregistered interests of a third, the purchaser will not be bound by
it.
It is however important to note that where knowledge of the existence of the
unregistered interest is accompanied amount to fraud. Read: Katarikawe Vs
Katwirimu & Anor. (1977) HCB 187 where there was conspiracy to defeat interests
known to the parties.
i. The estate of a proprietor claiming under prior instruments of title.
Page 27 of 98
The title of a registered proprietor is not indefeasible as against the interest of
another proprietor claiming the same land under a prior registered title as per
Section 64 of the RTA. The provision envisages a situation where the same land is
erroneously included in two or more certificates of title.
Cases:
 Sewanyana Vs Martin Aliker CA No. 48 of 1976
 Makerere university Vs St. Mark Education Centre & Anor CS No. 378 of 1996
ii. Land included by wrong description.
Section 64 of the RTA further states that the title of a registered proprietor is not
absolute as regards any portion of land that may have been included in his or her
certificate of title by wrong description of the parcel or boundaries.
Read: Awamntatiri Vs Kimono
iii. Public right of way and easements.
The public right of way and easements acquired by enjoyment or user or
subsisting over or upon or affecting registered land constitutes an exception to
indefeasibility under section 64 of the RTA.
A public right of way is a dedication to the public of the occupation of the surface
land for the purpose of passing and re-passing. Makumbi (Mrs. K) & Anor Vs
Puran, Singh Ghana & Anor (1962) EA 331
An easement on the other hand is a right over another’s land for the benefit of
some other land. An easement may be acquired by express or implied grant or by
prescription.
Read: section65 on easements existing under deed or writing to be noticed as an
incumbrance.
iv. Adverse possession.
Under the Limitation Act, if a land owner does not eject or commence proceedings
against an intruder in adverse possession within a period of twelve years, the land
owner effectively losses his/her land to the intruder.
Read:
 Nambalu Kintu Vs Effulaimn Kamira CA No. 26 of 1973 [1975] HCB 221
 Kenyan case of Kisee Maweu & ors Vs Kitu Ranching & co-operative society
Ltd (1982)1 KLR 746
Page 28 of 98
v. Interest of any tenant of land.
Section 64 states that the interests of any tenant whose possession is not adverse
prevails over the title registered proprietor even though his/her interest is not
entered as an encumbrance on the register book. The effect of the exception is that
the possessor’s claim under the tenancy agreement prevails over whosoever is the
registered proprietor even though the tenancy is not registered.
Read: Uganda Post and Telecommunication Vs AKM where it was held that the
respondent’s registered leasehold was subject to the appellant’s title acquired by
possession with the consent of the landlord prior to the leasehold.
It is therefore important that a person who deals in land must conduct a physical
inspection of the land to ascertain whether person is in possession or not.
vi. Lease, Licence or other authority granted by the Minister.
They override registered interests, ministers’ powers under the road act to declare
any land a road reserve.
vii. Unpaid rates, taxes and charges.
Section 64 of the RTA states that a registered proprietor takes land subject to any
outstanding rates or charges which without reference to the provisions of the RTA
are declared under a written law to be chargeable on the land in favor of the
government or public body.
viii. Registrar’s powers as exception to indefeasibility.
The law gives the Registrar certain powers that may constitute an exception to the
indefeasibility and includes the powers to correct errors and omissions in the
register book and the certificate of title. Powers of the Registrar to recall a
certificate of title and cancel them {Section 91 of the Land Act}
It should be noted that the Registrar’s powers should be exercised with caution to
avoid an open gate to litigation against the registrar.
Read: Rurangaranga Vs Mbarara Municipal Council & Ors.
ix. Overriding statutory exceptions to indefeasibility.
The exception applies here there exists another statute that may create rights that
are enforceable against a registered proprietor or by destruction of existing
Page 29 of 98
registered interests. E.g. Access to Roads Act that creates right of way over
another’s land.
Provisions of the Land Act on the prohibition of transactions affecting family land
are neither statutory overriding the indefeasibility of title. A transaction can be
avoided in the absence of the spousal consent for family land.
Also statutes that provide for the conservation and protection of certain sensitive
lands for public interest also override the principle of the indefeasibility of title.
Such statutes include the national forestry and tree planting act, the national
environment act, mining act, Uganda wildlife act among others. These statutes may
require cancellation of the titles or impose an obligation on the registered

proprietor to use the land in accordance with the requirements of such laws.
x. Judicial in roads – rights in personam
Section 64 provides for several exceptions but does not deter the courts from
making additional in roads to the principle of indefeasibility on the basis of their
inherent equitable jurisdiction as per the judicature act.
Read the case of Fraser Vs Walker where the judicial powers to intervene without
statutory sanction was espoused. Courts will apply the doctrines of equity where
the registered proprietor enters into a contract for sell of his land and later
transfers to another, the courts will enforce the contract as against him.
Read:
 Adonia Vs Mutekanga [1970] EA 429
 Katarikawe vs Katwirimu & Anor
RIGHTS OF A REGISTERED PROPRIETOR OF LAND
 No action of ejectment or other action for recovery of land shall lie against a
registered proprietor under Section 176 RTA
 The production of a certificate of title shall be held in any court to be an
absolute bar and estoppel to any action against such person named in the
title as proprietor,
 No certificate of title issued under this Act shall be impeached or defensible
by reason of any informality or irregularity in the proceedings previous to
the registration.
Page 30 of 98
 The certificate shall be conclusive evidence that the person named is seized
or possessed of that estate or interest under section 59 RTA
In Anderea Lwanga V Registrar of Titles [1980] HCB 24Odoki Ag.J held that a title
of a bonafide purchaser for value cannot be impeached. A person registered
through fraud can pass good title to a bonafide purchaser, unless the purchaser
was not bonafide. And in Kampala Bottlers Ltd V Damanico (U) Ltd SC CA
22/1992Platt JSC explained that the registered title cannot be set aside for mere
irregularity in the preliminary stages. Fraud must reside in the transferee. The
learned judge found fraud in the officials of KCC and the land office and not on the
transferee. This was not sufficient to impeach the title bonafide obtained.
PROTECTION OF UNREGISTERED INTERESTS BY CAVEAT.
The registration of an interest provides that the best security against a principle of
indefeasibility. Any person claiming interest over land may protect it by
registration of a caveat.
A Caveat Definition
A caveat is a statutory injunction to the registrar to prevent registration
of any dealings which may not affect the interest, the subject of the caveat. A
caveat serves as an interim measure, usually pending judicial determination of the
caveator’s claim over the land as was in the caee of Kazzora vs Rukuba. It serves
as a notice to the caveator and the public of the nature of the claim the caveator
has over the land.
LODGING A CAVEAT.
Section 20 of the RTA provides that any person claiming any estate or interest in
the land described in any notice issued by the registrar under this Act may, before
the registration of the certificate, lodge a caveat with the registrar forbidding the
bringing of that land under this Act. Every caveat lodged shall be signed by the
caveator or by his or her agent, and shall particularise the estate or interest
claimed; and the person lodging the caveat shall, if required by the registrar,
support the caveat by a statutory declaration stating the nature of the title under
which the claim is made, and also deliver a perfect abstract of the title to that
estate or interest. And no caveat under this section shall be received unless some
address or place in which a post office is situated shall be appointed in it as the
place at which notices and proceedings relating to the caveat may be served.
Page 31 of 98

Section 139 deals with caveats when land is already registered under the RTA. Thus
any beneficiary or other person claiming any estate or interest in land under the
operation of this Act or in any lease or mortgage under any unregistered
instrument or by devolution in law or otherwise may lodge a caveat with the
registrar forbidding the registration of any person as transferee or proprietor of
and of any instrument affecting that estate or interest until after notice of the
intended registration or dealing is given to the caveator, or unless the instrument
is expressed to be subject to the claim of the caveator as is required in the caveat,
or unless the caveator consents in writing to the registration.
Sections 21 and 140 RTA provide that upon receipt of a caveat the registrar shall
notify the receipt to the person against whose application to be registered as
proprietor or to the proprietor against whose title to deal with the estate or
interest the caveat has been lodged; and that applicant or proprietor or any person
claiming under any transfer or other instrument signed by the proprietor may, if
he or she thinks fit, summon the caveator to attend before the court to show cause
why the caveat should not be removed; and the court may, upon proof that the
caveator has been summoned, make such order in the premises either ex parte or
otherwise, and as to costs as to it seems fit.
Kazzora VS Rukuba it was pointed out that in Uganda, a pending suit affecting
land does not bar continuation of dealings with such land. That therefore the best
way to protect one’s interest would best be achieved through a caveat or an
injunction.
A caveat may be lodged by not only the private party but by the registrar as
well, on behalf of government or a disable person. Section l7O (a)
It must be noted that lodging a caveat does not serve to prove title but rather
maintains the status quo, until the ultimate title ids determined. lt follows from
the foregoing that the duration of a caveat envisaged by the Act is only for a
limited period.
Nature of caveats [WHO LODGES, DURATION, TERMINATION] (sections 20, 21,

22, 139-145 RTA)
 can be lodged by anybody claiming an interest in land
 can be lodged before, during or after land is registered
 it must contain the names and address of the caveator
 it should be supported by an affidavit of the caveator
 it should specify reasons for its lodgement
 once a caveat is filed, the caveator must file a suit in High Court and ask for
its extension (interim injunction)
 a caveat under section 20 lapses after 30 days, if no case is filed in the High
Court
Page 32 of 98
 a caveat under section 139 lapses 60 days after notice of application to
remove caveat is served upon the caveator
 a caveat lodged by or on behalf of a beneficiary claiming under any will or
settlement or by the registrar does not lapse except as ordered by court
 a registrar can also lodge a caveat on his own motion
 the Registrar has to inform the proprietor of land about the lodged caveat
 a caveator can write to the Registrar to withdraw or remove a caveat
 caveat can’t be renewed except by order of court& for good cause & after
furnishing security for costs
 No entry can be made in Register Book while caveat continues in force.
 A person who lodges a caveat unnecessarily may be compelled to pay
compensation to the land owner
 In case of a caveat by a beneficiary under a will or settlement, a change
of proprietorship may be registered in spite of a caveat if the Registrar
finds that it is authorised by the will and the beneficiary has not
protested the registration within 14 days after receiving the notice from
the Registrar.
 A Registrar can remove a caveat which has been withdrawn or has
lapsed or has otherwise ceased to affect the lands or any interest in the
lands in respect of which it was originally lodged
 A spouse, not being the owner of the land may lodge a caveat on the
certificate of title, certificate of occupancy or certificate of customary
ownership of the person who is the owner of the land to indicate that the
property is subject to the requirement of consent.Such a caveat shall not
lapse while the caveator’s right to security of occupancy subsists. (Section
39 A (7) of the Land Act.)
CASES ON CAVEATS
IMPORTANCE OF A CAVEAT
In John Katarikawe V William Katwiremu [1977] HCB 187where the plaintiff
bought land and agreed that transfer would be effected upon payment of the last
instrument. The purchaser did not handover the duplicate certificate claiming that
it had been lost and that he was processing a special certificate for this purpose.
The plaintiff occupied the land but later discovered that the 2nd defendant had
already been registered in respect of the same land. The second defendant claims
that he had bought the land earlier in 1968 on an oral contract and had had no
transfer effected due to lack of funds. That no agreement of sale was made but
took the title deeds. The transfer was effected on 4th May 1972 while the plaintiff
had taken possession immediately after the sale on 24th April 1971and had been
occupying the land ever since.
Page 33 of 98
Ssekandi J observed and held that a purchaser of land would ordinarily protect his
interest by filing a caveat or a charge. Mere taking possession of title deeds is
useless unless a caveat is lodged on the title. In case of default however, the
purchaser can sue on the contract and is entitled to damages. He could also obtain
the equitable remedy of specific performance in certain cases.

WHO LODGES CAVEAT AND IMPACT OF LODGING S CAVEAT WRONGFULLY
In Sentongo Produce &Coffee Farmers Ltd V Rose Nakafuma Muyiisa HC MSC
690/1999Arach Amoko J that for a caveat to be valid, the caveator must have
a protectable interest, legal or equitable to be protected by the
caveat;otherwise the caveat would be invalid.
EFFECT OF THE CAVEAT AND HOW A CAVEAT CAN BE REMOVED
In Edward Musisi V Grindlays Bank (U) Ltd SC CA 5/1986the court held that
nothing should be done on land while a caveat is in force prohibiting the same. The
trial judge’s finding that the sale was proper without first having proceedings for
the removal of a caveat was in breach of principles of natural justice as it sought to
condemn unheard the caveators.
In Mohamed & Ors V Haidara [1972] EA 166Lutta JA held that an application for
the exclusion of a caveat must be treated in the same way as an application for an
interlocutory injunction. That applicants must therefore show a prima-facie case
with a probability of success.
LIABILITY FOR WRONGFUL LODGMENT OF CAVEAT
In Haji Zubairi Musoke V Betty Nagayi Civil Suit No. 389/2010, Tuhaise J held
that a person who lodges a caveat without reasonable cause is liable under section
142 RTA to pay compensation to the person who has sustained loss or damage
because of the caveat. Evidence was accepted that the plaintiff was unable to sell
his land due to the presence of a caveat and was therefore entitled to 5,000,000 as
compensation and costs of the suit.
Section140 (1) of the Act empowers courts at any time revoke caveat at the
instance or the caveatee where the caveator fails to show reasonable cause why the
caveat should not be removed.
Wrongful lodgment of a caveat may occasion loss the owner and court may order
compensation to such owner by any person who enters a caveat without reasonable
cause.
DURATION AND TERMINATION OF CAVEAT

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 once a caveat is filed, the caveator must file a suit in High Court and ask for
its extension (interim injunction)
 a caveat under section 20 lapses after 30 days, if no case is filed in the High
Court
 a caveat under section 139 lapses 60 days after notice of application to
remove caveat is served upon the caveator
 a caveat lodged by or on behalf of a beneficiary claiming under any will or
settlement or by the registrar does not lapse except as ordered by court
In Olojo V Rajah, where a caveat was for twenty years, court observed that a
caveat was only meant to be a temporary measure and was not intended to give an
everlasting protection in the sense that the caveator should be hulled sleeping over
his caveated interest perpetually.
Unfortunately the Act does not stipulate a time limit within which a caveat should
expire. It merely provides that it shall lapse automatically; when withdrawn by the
caveator, and where the proprietor applies for its removal and the caveator does
not commence legal proceedings or apply for extension of the caveat within sixty
days of notification of such application.
 In Kazzora V Rukuba SC CA 13/1992 the Supreme Court held that a caveat
which has lapsed is of no effect and cannot be relied upon to imply fraud on
the part of a purchaser with notice of a lapsed caveat. The registrar has
power to remove a lapsed caveat without being moved by either court or
anybody else. The court further stated that a transfer effected while a caveat
is in force is void and ineffectual to pass title. That a caveat which has
lapsed cannot be renewed (to protect the same interest); except where the
court is so convinced and has received security for costs that may arise from
the extension of the caveat and so Orders that registration of a new interest
be delayed for a specified period.

In Katarikawe VS Katwiremu; it was said by SSENKANDI J that taking possession of
deeds is insufficient to protect an unregistered interest, unless a caveat is lodged
thereafter. According to Namususi VS Ntabazi (1988), to lodge a caveat one must
have a caveatable interest.
Municipal District of Concord, Vs Coles,acaveatable interest is defined as a claim
of a proprietary or quasi proprietary nature of interest in a particular piece of land.
Examples of caveats include; claims under wills, leases, mortgages etc.
Boyes VS Gathure; Court rejected a caveat because it did not properly identify the
interest claimed as prescribed by the relevant statutory provisions.
Mutual Benefits Vs Patel a caveat prohibiting all dealings in land was held to go
beyond what was necessary to protect a leasehold interest.
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In Desouza V Talbot, the appellant entered into a sublease agreement with the
respondents, and on entering into possession, he expended some money on
repairing house. He then lodged a caveat purporting to be an equitable mortgagee
in the sublease agreement. It was held however that the agreement referred only to
a sublease and did not refer to the appellant as an equitable mortgagee hence his
caveat as a mortgagee was un founded.
REMEDIES FOR DEPRIVATION OF LAND
1. EJECTMENT and EVICTION . Under the RTA, a person wrongfully deprived of
his/her land may bring an action of ejectment and /or for damages against the
person responsible.
NATIONAL HOUSING & CONSTRUCTION LIMITED V T.N BUKENYA Civil Appeal
No 02 of 2009 HC
Eldad Mwangusya J
I would not fault the Landlord for evicting ‘strangers’ from the flat and the tenant
who is supposed to defend them from their eviction if indeed they are her family
members does not explain their presence in the trial of her alleged breach of
tenancy agreement. I do not believe that the occupants of the flat were family
members of the tenant given the evidence adduced by the appellant that occupants
were paying for their stay. The occupation of this flat by persons other than the
tenant with whom the appellant has a tenancy agreement were in the
circumstances of this case in breach of the tenancy agreement and in view of the
breach the respondent cannot seek protection of the same agreement.
This is irrespective of whether the agreement in force is the one of 1988 or that of
2006. So to answer the 1st and 3rd grounds of appeal this Court finds that the
learned trial magistrate erred in law in holding that the appellant unlawfully
terminated the tenancy agreement entered into with the Respondents. The
appellant was entitled to terminate the tenancy agreement with the respondent
following investigations and finding that the respondent was no longer occupying
the flat and had not informed the appellant of the persons whom she had left in
the flat.
After a careful evaluation of the evidence adduced on record and order of
injunction granted by the trial magistrate the finding of this court is that there was
no basis for the Respondent to be given a right to purchase the suit property under
the Condominium Law as the respondent was in breach of the tenancy agreement.
Secondly even if there was no breach of the tenancy agreement the Landlord
remains with the prerogative to negotiate with the occupant of the flat as to the
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terms of sale under the condominium Law and this court would not interfere with a
Landlord’s right over his or her property especially when the relationships are
governed by a tenancy agreement.
Eviction orders
OSOTRACO LIMITED V ATTORNEY GENERAL HC CS No. 380/1986 [2003] 2 EA
654the plaintiff is the registered proprietor of plot 69 Mbuya Hill. The employees
of the ministry of Information and Broadcasting were in occupation and refused to

vacate when the plaintiff bought the land from Uganda Times News Paper Ltd.
He instituted proceedings against government seeking the orders of Eviction,
Permanent injunction, Special damages, General damages, Mesne profits, Interest,
and Costs of the suit. The defendant argued that an injunction and eviction could
not issue against government against in view of section 15 of the Government
Proceedings Act.
Frederick Egonda Ntende J held that it was much the duty of the state to render
justice against itself in favour of citizens, as it is to administer the same between
private individuals. A declaration order was not appropriate in this case. Section 15
is contrary to the constitutional rights to property and the section would be
construed and qualified accordingly.
That:
“No legal or political system today would place the state above law as it is unjust
and unfair for a citizen to be deprived of his property illegally by the negligent
acts of officers of the state
2. DAMEGES. A person who suffers loss as a result of the registration of another
as proprietor may bring an action for damages against the registrar if the
person is barred by the a court from suing for ejectment.
FREDRICK ZAABWE V ORIENT BANK LTD& 5 Others Civil Appeal No. 04/2006
SC[2007] HCB 24 (Katureebe JSC)
With regard to exemplary damages, the appellant seems to equate them with
aggravated damages. SPRY, V.P. explained the difference succinctly inObongo V
Kisumu Council[1971] EA 91, at 96;“The distinction is not always easy to see and is
to some extent an unreal one. It is well established that when damages are at large
and a court is making a general award, it may take into account factors such as
malice or arrogance on the part of the defendant and this injury suffered by the
plaintiff, as, for example, by causing him humiliation or distress. Damages
enhanced on account of such aggravation are regarded as still being essentially
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compensatory in nature. On the other hand,exemplary damages are completely
outside the field of compensation and, although the benefit goes to the person who
was wronged, their object is entirely punitive.”
In the circumstances of this case, as discussed in this judgment, I do not think this
is a case that qualifies for an award of exemplary damages as envisaged in Rooks -
Vs- Barnard and Others[1964] A.C. 1129, which is very well considered by SPRY –
VP in his judgment in the Obongo Case at page 94. The gist of that decision is
that exemplary damages may be awarded in this class of case. In the words of
SPRY, V.P. at P. 94 these are:“first, where there is oppressive, arbitrary or
unconstitutional action by the servants of the government and, secondly, where the
defendant’s conduct was calculated to procure him some benefit, not necessarily
financial, at the expense of the plaintiff. As regards the actual award, the plaintiff
must have suffered as a result of the punishable behaviour; the punishment imposed
must not exceed what would be likely to have been imposed in criminal proceedings
if the conduct were criminal; and the means of the parties and everything which
aggravates or mitigates the defendant’s conduct is to be taken into account. It will
be seen that the House took the firm view that exemplary damages are penal, not
consolatory as had sometimes been suggested.”
It has to be borne in mind that the respondent were private persons and not acting
on behalf of any government or authority.
I think this is a case where the appellant should receive enhanced compensatory
damages not only for the unwarranted and wrongful deprivation of his property,
but also because of the conduct and apparent arrogance of the respondents. In my
view, this is not the type of case where the respondents are likely to repeat their
wrongs on the appellant.
In considering an award of enhanced or substantial general damages, I must take
into account the station in life of the appellant. He is a senior lawyer and a
respected member of society. He has a family who all lived on the property from
which they were wrongfully evicted. Part of the property was used as offices for
his law chambers. The appellant testified that as a result of this eviction, he had to
find alternative accommodation for his family. He lost not only some of his books
and files but also his clients. His livelihood as a lawyer was compromised. He
suffered much humiliation and distress.
He has since been denied use of his property for the period of about 10 years.
The appellant had made a total claim for shs.307,000,000=. I am of the view that
this a case where substantial damages should be awarded. Given the
circumstances of this case, I would award to the appellant Shs.200,000,000/= (two
hundred million) as aggravated damages.
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3. COMPENSATION. They may also bring an action for compensation in an
appropriate case where they are entitled to it from government or a public
body.
In EDWARD FREDERICK SSEMPEBWA V ATTORNEY GENERAL Const. Case. No.
1/1986, 27/03/86 the main issue was whether Legal Notice No 1 of 1986 as
amended by LN 8/1986 is inconsistent with the provisions of Article 8(2) (c) of the
1966 Constitution. The LN as amended provided that:
“Any suit, motion or proceedings against the government or Local
Administration arising out of the acts or omission referred to in para.
2(i) of this paragraph, pending before any court before the 23rd day of
August 1986, shall forthwith lapse and any judgment, decree, or order
arising out of such suit, action or proceedings which is not fully
executed or satisfied immediately before that date is hereby nullified.”
Kityo P, Oder JA, Kato JA
Statutes interfering with individual property rights must be strictly
interpreted against the party or authority taking away the rights and liberty
of the individual whose right is being taken.

I cannot see why judgment decree already validly in possession of Mr.
Ssempebwa or by anyone else similarly situated should not be treated as
property which cannot be taken away unless reasonable compensation has
been given to him. I cannot find any justification for departing from the
decision in Shah V AG
While I agree that the legislative power of the NRC is unlimited to effect any
new changes for the good government of this country, from the time it took
over sovereign power, but my view is that it should not resurrect the dead to
come back and answer the new created charges, which were not in existence,
at the time when they lived or take away the rights of those who are now
living which were accrued in the lawful or legal manner, at the time when
they were acquired. Therefore the retrospective nullification effect should not
be extended to apply to the already completed cases, like that of Mr.
Ssempebwa or any others who may similarly be situated, but in such cases the
living successful litigants should be allowed to enforce their judgments.
4. COSTS OF THE SUIT
Section 21 of the Civil Procedure Act provides that subject to such conditions and
limitations as may be prescribed, and to the provisions of any law for the time
being in force, the costs of incident to all suits shall be in the discretion of the
court or judge, and the court or judge shall have full power to determine by whom
and out of what property and to what extent those costs are to be paid, and to give
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all necessary directions for the purposes aforesaid. The fact that the court or judge
has no jurisdiction to try the suit shall be no bar to grant costs but the costs of any
action, cause or other matter or issue shall follow the event unless the court or
judge shall for good reason otherwise order. The court or judge may give interest
on costs at any rate not exceeding 6 percent per year, and the interest shall be
added
In Mungecha V AG [1981] HCB 55 Manyindo J held that under section 26 (1) CPA
costs should follow the event unless court orders otherwise. This provision gave
the judge discretion, but that discretion must be exercised judicially. That a
successful party can only be denied costs if it is proved that for his conduct the
action would not have been brought. The costs should follow the event even where
the party succeeds only in the main purpose of the suit.
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UNIT TWO: SERVITUDES OVER LAND
Servitudes defined; refers to rights of use of another's land in a specified way. It
is important to note that the thnese rights constitute interests on land and
enforceable against whoever is the land owner except for the licence.
Types of servitudes include the following:
1. easements,
2. profit a prendre,
3. restrictive covenants,
4. customary rights and
5. licence.
1. Easements defined
An easement is the right to do something or the right to prevent someone
else from doing something over the real property of another. The right is
often described as the right to use the land of another for a special purpose.
Unlike a lease, an easement does not give the holder a right of "possession"
of the property, only a right of use. It is distinguished from a licence that
only gives one a personal privilege to do something even more limited on
the land of another. It is a right attached to a particular piece of land that
entitles the owner of land either to use the land of another person in a
particular manner or to restrict that other person's use of his/her land to a
certain extent.
The land to which the right is attached is called the "dominant" land and
that over which the right is exercised is the "servient" land.
Essential features of easements [four features]
An easement is an interest in land and is enforceable against any proprietor of the
servient land.
An easement must have the following four essential features
1. Existence of a dominant and servient land:
An easement is a right granted for the benefit of a dominant land as against the
servient land. The object of granting the right is to benefit the use of land and not
the owner independently. Makumbi (Mrs. E) & Puran Singh Ghana & Another
{1962] E.A 331 in which Bennet J said that:
"A plea that a certain road used by members of the public was a customary
easement was unfortunate since an easement enjoyed by the public at large was
unknown to law.
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However, it is important to note that the requirement of the existence of a
dominant land may be waived by statute like the Water Act which may create a
statutory easement for the whole public without a specific dominant land.
2. Easement must accommodate the dominant land:
An easement must confer a benefit on the dominant land as against the servient
land. The right created should reasonably and necessarily better the enjoyment of
that dominant land. It is therefore important that the dominant and servient land
should be close enough to each other so as to confer a practical benefit but need
not necessarily be adjoining.
In Ellen borough Park [1956]3 ALLER 667, the right must be connected to the
normal enjoyment of the dominant and not just enhancing its value.
3. The dominant and servient land must not be owned or occupied by the same
person:
It is a requirement that the dominant and servient land must be owned by different
persons for the easement to exist. This is because an easement is a right
exercisable over another person's land. Case: Re: Ellen borough Park (1956)3
ALLER 667: Roe Vs Siddons (1888)22 QBD 224.
However, an easement may be created in respect of land owned by the same
person where different persons occupy the 'dominant' and 'servient' land.
4. The right must be capable of forming the subject matter of a grant:
This requirement embraces several things:-
i. It means that there must be a grantor and grantee.
ii. It means that the right must be capable of reasonable definition.
iii. The right granted must be within the general nature of rights capable of
existing as easements which include rights of way, right to light, support
and the right to water among others. Re: Ellen borough park; Miller Vs
Encer Products ltd (1956) Ch. 304
In contrast, the courts have refused to recognise as an easement, a right of privacy
as was in the case of Hansraj Thakkar Vs the Vanik Mahajan [1960] EA 208.
Examples of easements
Easements include:
 Right to light. The right to receive a minimum quantity of light in favour of
a window or other aperture in a building which is primarily designed to
admit light.
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 Aviation easement. The right to use the airspace above a specified altitude
for aviation purposes. Also known as aviation easement, where needed for
low-altitude spraying of adjacent agricultural property.
 Railroad easement.
 Utility easements including:
o Storm drain easements. These carry rainwater to a river or other body

of water.
o Sanitary sewer easements. These carry used water to a sewage
treatment plant.
o Electrical power line easements.
o Telephone line easements.
o Fuel gas pipe easements.
 Sidewalk easements. Usually sidewalks are in the public right-of-way, but
sometimes they are on the lot.
 Solar easements. Prevents someone from blocking the sunlight.
 View easements. Prevents someone from blocking the view of the easement
owner, or permits the owner to cut the blocking vegetation on the land of
another.
 Driveway easements, also known as easement of access. Some lots do not
border a road, so an easement through another lot must be provided for
access. Sometimes adjacent lots have "mutual" driveways that both lot
owners share to access garages in the backyard. The houses are so close
together that there can only be a single driveway to both backyards. The
same can also be the case for walkways to the backyard: the houses are so
close together that there is only a single walkway between the houses and
the walkway is shared. Even when the walkway is wide enough, easements
may exist to allow for access to the roof and other parts of the house close
to a lot boundary. To avoid disputes, such easements should be recorded in
each property deed.
 Beach access. Some jurisdictions permit residents to access a public lake or
beach by crossing adjacent private property. Similarly, there may be a
private easement to cross a private lake to reach a remote private property,
or an easement to cross private property during high tide to reach remote
beach property on foot.
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 Dead end easement. Sets aside a path for pedestrians on a dead-end street
to access the next public way. Could be contained in covenants of a
homeowner association, notes in a subdivision plan, or directly in the deeds
of the affected properties.
 Recreational easements. Some U.S. states offer tax incentives to larger
landowners if they grant permission to the public to use their undeveloped
land for recreational use (not including motorized vehicles). If the
landowner posts the land (i.e., "No Trespassing") or prevents the public from
using the easement, the tax abatement is revoked and a penalty may be
assessed. Recreational easements also include such easements as equestrian,
fishing, hunting, hiking, biking (e.g., Indiana's Calumet Trail) and other such
uses.
 Conservation easements. Grants rights to a land trust to limit development
in order to protect the environment.
 Historic Preservation Easement. Similar to the conservation easement,
typically grants rights to a historic preservation organization to enforce
restrictions on alteration of a historic building's exterior.
 Easement of lateral and subjacent support. Prohibits an adjoining land owner
from digging too deep on his lot or in any manner depriving his neighbor of
vertical or horizontal support on the latter's structures e.g. buildings,
fences, etc.
Creation of easement
Easements can be created under the following circumstances
1. Creation of easement by statute
2. Creation of easements by express grant or reservation
3. Creation of easement by implied grant or implied reservation
4. Creation of easement of way of necessity
5. Creation of an easement by intention or implication

6. Easement acquired by long user or prescription
7. Creation of an easement by access to public road
8. Easement under the Registration of titles Act
Easements may be created by statute, express grant, or reservation and by implied
reservation or grant. They also be created by way of necessity, implication from
the parties' agreement and by prescription.
1) Creation of easement by statute:
A statute may authorise a public authority to create easement for carrying out their
activities e.g. Water Act allowing the Director of Water Development to create ways
on other lands to pass water for the benefit of others.
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Easements created by statutes need not to have all the essential characteristics of
easements and it is wholly dependent on the statute provisions even if it may fulfil
the common law requirements for easements.
2) Creation of easements by express grant or reservation:
An easement may be created by express grant which involves an open offer of the
use of the servient land by the dominant land as provided in the agreements/
documentation.
An easement by express reservation is created where the instrument or agreement
specifically reserves a right of use of land which has been transferred to the third
party as the transfer retains easement in the agreement.
3) Creation of easement by implied grant or implied reservation:
The court of law will imply an easement where the owner of the land grants part of
his land to another person without expressly providing for an easement and this is
usually referred to as quasi-easement.
A quasi-easement is a continuous and apparent easement which is necessary for
the reasonable enjoyment of the land. Read: Shah Champsi Tejshi Vs Attorney
General of Kenya (1959) EA 630: Wheeldon vs. Burrow [1874-80] ALLER Rep 669
Where the instrument of transfer does not reserve an easement in favour of land
retained by the vendor, subject to two exceptions which we shall presently discuss.
Courts are reluctant to imply for reservation of an easement in favour of such land.
This is because of a well established maxim that “a grantor shall, not derogate
from his/her grant” Read Wheeldon Vs Burrows above.
Courts have observed that with the exceptions of easement of necessity and an
intended easement, a reservation of an easement could not be implied in favour of
the land retained by the grantor. It is stated that if a grantor grants to reserve an
easement in favour of the land retained, he/she must do so expressly.
4) Creation of easement of way of necessity:
Where a land owner sells part of his/her land and the part he/she retains is left
without any legally enforceable means of access to the public road, an easement of
way of necessity will be implied over the land sold. An easement arises by
operation of the law because it is a matter of necessity and vital to the effective
ownership of that part of the land that the owner should have access to. Otherwise
the land would not be much use to him/her. Read: Barry Vs Haseldine [1952]2
ALLER 317: Barclays Bank D.C.O Vs Patel [1970] E.A 88.
It is important to note that an easement of way of necessity does not arise if there
is an alternative means of way of access that is practicably available to the
claimant as a matter of right. The necessity for access must exist at the time of the
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grant and not merely arises later. Read: Mclerrnon Vs Connor [1907] 9 WLR 141:
MIDLAND PLY CO VS MILES [1886] 33 Ch. D 632
5) Creation of an easement by intention or implication.
An easement that is required to carry out the common intention on the grantor and
grantee will be implied even though it is not expressly reserved or granted in the
conveyance. Such easement is known as an intended easement. Read Wong Vs
Beaumont Property Trust ltd (1965)1 QB 173

The law readily implies the grant or reservation of an easement that is necessary to
give effect to the common intention of the parties to a grant.
6) Easement acquired by long user or prescription:
At common law, an easement may be acquired by prescription or by long user even
though there may not be any actual evidence of the grant of the easement. The fact
of long user is regarded as sufficient evidence that the easement was once upon a
time properly granted.
In common law, a prescriptive right was established by proof of continued use
from time immemorial which in England was arbitrarily set at 1189 (Statute of
Westminster 1, 1275 C39). Common law courts now allow a prescriptive claim by
proof of continuous use during living memory, which is arbitrarily set as twenty
years. It is assumed that the right would have been granted properly but
documentation may be misplaced following long period of time passed. Read:
Nambalu Kintu Vs Ejulaimu Kamira CA No. 26 of 1973: Nalton Vs Angus (1881)6
App. Cas 740.
7) Creation of an easement by access to public road:
The right of access over another’s land to the public road may be granted under
the Access to Roads Act, otherwise there is no such right except as discussed
earlier. The landowner may apply to the land tribunal or court for permission to
construct an access road to the public road through another’s land.
The courts reserve the right to grant or dismiss such applications and
compensation to the land owner is provided accordingly. Such access roads once
created must be registered on the registrar book by the Registrar of titles.
8) Easement under the Registration of titles Act:
Whereas the RTA does not provide specifically on how an easement is created. It
states that a certificate of title which mentions that an easement is provided is
conclusive evidence that the registered proprietor is entitled to such as an
easement. The easement constitutes an exception to the principle of indefeasibility
of titles and is protected by the RTA accordingly. (Read RTA).

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TERMINATION/DISCHARGE OF EASEMENTS
Generally, mere non-use does not end an easement. One or more of the following
factors may also have to be present:
ii Agreement to terminate by grantor and the grantee of the easement
iii Expiration of the time allowed for the easement
iiii Merger where one person buys both dominant and servient tenement or where
they both come into common ownership and occupation of the land.
iiv End of necessity which gave rise to easement by necessity
iv Estoppel, where a holder of the easement stops making use of the easement and
a third party detrimentally relied on the stopped use
ivi Prescription where a holder of the easement uses someone else to use the
easement for a period of statute of limitations
ivii Condemnation where the government terminates easement through eminent
domain
iviii By abandonment by the dominant landowner which can be express or implied
from the actions or omissions of the beneficiary. Once an easement is
abandoned, the dominant landowner cannot reclaim it again.
iix Extinguishment by order of court. Any interested party may apply to court to
have an easement modified or extinguished and court may order accordingly as
in Waterloo Vs Bacon (1866) LR 2 Eq 514: Settlement Fund Trustees Vs
Nurani (1970) EA 562
PROFIT À PRENDRE
A profit (or profit à prendre) is a right to take something off another person's land.
At common law it was treated differently from an easement, something that is still
the case in English law. In other jurisdictions a profit is treated as a special type of
easement.
Examples of profits include the right to come onto the property of another and
remove fruits, vegetables, and "fugacious minerals" (minerals that tend to be
movable) such as gas or oil; by comparison, coal, which does not move, would not
be considered a fugacious mineral. The rights of the profit-holder depend on the
nature of the profit.
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It is a non-possessory interest in land similar to easement which gives the holder
the right to take the natural resources such as petroleum, minerals, timber and
wild game from the land. Every profit contains an implied easement for the owner
of the profit to enter the other party’s land for the purpose of collecting the
resource permitted by the profits, where a right to enter and take something that
forms part of the land e.g. soil, minerals, gravel e.t.c
Creation of Profit à Prendre
Profits are created expressly by an agreement between the property owner and the
owner of the profit.
Also created by prescription where the owner of the profit has made open and
notorious use of the land for continuous and uninterrupted statutory period.
Types of Profits à Prendre
a)Appurtenant, this is used by the owner of the adjacent property. the ownership
of the land upon which the profit exists changes hands.
b) In gross, this can be assigned or otherwise transferred by its owner. Courts will
construe a profit as being in gross unless the profit is expressly designated as
being appurtenant. Profits by prescription will be profits in gross.
A profit in gross is completely alienable. It can also be exclusive that is to say
guaranteeing the owner of the profit that no other person will be given the right to
collect the specified resources on the land.
Termination of Profit à Prendre
i) Merger, if the owner of the profit acquires the land to which it applies, there is
no longer need for a separate right to take resources off it.

ii) Release, the owner of the profit can execute a contract to surrender the profit
to the owner of the land.
iii) Abandonment, the owner of the profit ceases to make use of it for a sufficient
length of time to lead a reasonable owner to believe that it will no longer be used.
iv) Misuse, if a profit is used in a way that it places a burden on the servient estate
then it will be terminated.
DIFFERENCE BETWEEN PROFIT À PRENDRE AND SALE OF GOODS.
A contract of sale of goods is defined in Section 2(1) of the Sale of Goods Act as a
contract whereby a seller transfers or agrees to transfer the property in the goods to
the buyer for a money consideration called the price. So, where property in the
goods is transferred from the seller to the buyer, the contract constitutes a
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sale.Where the transfer of property in the goods is to take place at a future time or
subject to some condition thereafter to be fulfilled, the contract is called an
agreement to sell. The term contract of sale includes both “a sale” and “an
agreement to sell”.
While Profit à Prendre
It is a non-possessory interest in land similar to easement which gives the holder
the right to take the natural resources such as petroleum, minerals, timber and
wild game from the land. Every profit contains an implied easement for the owner
of the profit to enter the other party’s land for the purpose of collecting the
resource permitted by the profits, where a right to enter and take something that
forms part of the land
Difference between sale of goods and Profit à Prendre using their essential
features.
1. There must be two distinct parties to a contract of sale; i.e a buyer and a seller.
While in Profit à Prendre the two parties are grantor and grantee and there is no
transfer of any property to another but usage.

2. There must be a transfer of property. Property here means ownership of the
goods. The seller must own the property in the goods, i.e he must have title to the
goods. The seller must either transfer or agree to transfer the property in the
goods to the buyer. But there is no transfer in Profit à Prendre but rather mere
permission.
3. The subject matter of the contract of sale must be goods. Goods include all
chattels other than choses in action and money, industrial growing crops and
things attached to or forming part of the land which are agreed to be severed
before sale or under a contract of sale. It means every kind of moveable and
immoveable property. In Profit à Prendre they are not goods but natural resources
like oil, gas etc.
5. The consideration for a contract of sale must be money consideration called the
price. If the goods are sold or exchanged for other goods, the transaction is
barter trade and not a contract of sale of goods. In Profit à Prendre the
consideration may be anything or there may be no consideration at all but
rather a statutory permission. Look at the creation of Profit à Prendre
discussed above.
License
In Thomas V Sorrell 124 ER 1098, a”licence” was defined as permission, express
or implied given by the land owner to another to enter his land for a specified
purpose, which would otherwise have constituted a trespass. It need not be
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formally executed and its termination may also be informally done. The essence of
a license is permission. In Kampala District Land Board & George Mitala V
Venansio Bamweyaka & 4 Others CA 2/2007SC Odoki CJ explained that the
plaintiffs were described variously in the lower courts as squatters, tenants of a
tentative nature, licensees with possessory interest, or bonafide occupiers
protected from administrative injustice, the occupiers were bonafide occupants;

they were not licensees because no licence was given to them by the controlling
authority.
In Colchester Borough Council v Smith All.ER 1991 vol.2 page 28, it was held
that a defendant who was permitted by the council to occupy land but did not
renew the licence for a period of twelve years implied that the defendant became a
trespasser and his possession of the land was adverse to the council. That by
1st January 1980, he had established both the necessary intention to possess the
land to the exclusion of all and the statutory twelve-year period of adverse
possession.
In Rajwani v Degamwala [1950] EACA 37, the court explained that in establishing
whether the relationship amounted to a lease or a licence regard must be had to
the substance of the agreement. If the effect of the instrument is to give to the
holder an exclusive right, then it is a lease. And if it is merely for the use of the
property in a certain way and in certain terms while it remains in the possession
and control of the owner, it is a licence.
The following are the common types of licences:
 Bare licence
 Licence coupled with interest
 Contractual licence
 Licence by estoppel
Bare license
This is the one granted without valuable consideration. E.g. an invitation of a
friend to come over to your house for dinner is a bare license. it may be withdrawn
at any time by the licensor even in the middle of the dinner. An action of trespass
would lie against a licensee if he/she remains on the land after the license is
revoked.
License coupled with an interest
This is a license to enter upon a licensor’s land for the specific purpose of taking
something that forms part of the land or is upon the land. It is irrevocable while
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the grant remains in existence and may be assigned provided it is disposed of with
the interest to which it is annexed.
A license to take away goods on the licensors land does not constitute an interest
in land. The licensee has a right in the chattel which is on the land and a license to
enter the land to take away the chattel.
Contractual license
This is a license granted for a valuable consideration. At common law, a
contractual license does not bind third parties and its burden does not run with
the land. A contractual license may be revoked, though, if revoked in breach of the
contract, the licensor would be held liable in damages. At common law, it does not
bind third parties even if they bought the land with notice of the license. This
principle was illustrated in the King V Devid Allen & Sons billposting ltd (1916)2
AC 54.
License protected by estoppel.
The licensor may be estopped from revoking a license in certain circumstances.
In Inwards V Baker [1965] 1 ALL ER 446the plaintiff wanted to buy land to build a
house to live in, but he could not afford. Encouraged by his father, he constructed
on his father’s land a house and lived therein for several years. The father devised
the whole land to his widow. The son sued for possession.It was held that the
plaintiff’s father allowed an expectation to be created in the plaintiff’s mind that
the house he built was to be his home, at least for his life. In light of that equity
the father could not have revoked that licence nor could his successor in
title.Denning MR observed that any purchaser of land with notice of a licence
protected by estoppel would be equally bound by the equity.
Termination of licence
Pius Okello Umoni & 5 Others V Obbo Christopher Civil suit No. 86/1999 HC
Mbale
The plaintiffs claimed to be bonafide customary occupants of land who occupied
land unchallenged from about 1959 or 1960 by the registered owner until he died
in 1984. The defendant was son to the registered owner who took up letters of
administration and defended the suit.
Muhanguzi J. found that the 1st plaintiff had been allowed to occupy the land by
the defendant’s father during his life time. For this matter the plaintiff was on the
suit land on the basis of a licence from the defendant’s father who was the
registered owner of the suit land. According to section 29(4) of the Land Act
plaintiff No. 1 is therefore neither a lawful nor a bonafide occupant of the land. A
person who occupies land on the basis of a licence from the registered owner shall
not be taken to be a lawful or bonafide occupant.
The defendant was therefore entitled to evict the plaintiffs as trespassers because
they have failed to prove any interest they claim and the defendant’s notice to
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them to quit the suit land issued on 31st January 1998 terminated the licence
earlier given to plaintiff No. 1 by the defendant’s father around 1959 or 1960. As
such from the date of the notice to quit the suit land the plaintiffs became
trespassers and the defendant in law became entitled to evict them from the suit
land. The plaintiffs had not proved the custom under which they derived their
alleged customary tenure. By virtue of a grant of letters of administration from the
high court, the defendant has every right of a registered owner of the land in
relation to the land registered in the names of his late father.
In The Registered Trustees of the Diocese of Kasese v John Baptist Kiiza & 51
Others [2011]1 HCB 74, Owiny-Dolo J found that the contractual arrangement
between the Sisters and the cultivators was neither a lease nor a tenancy which
would have accorded the cultivators proprietary interest over the land. It was a
mere licence and this was akin to easement which is alternative to and distinct
from a lease or tenancy. This created a mere personal obligation on the licensor
without conferring any interest in the land for the benefit of the licensee.
Contractual licenses which may come in all sorts of varieties can be elevated into
property interests by legislation which can then provide for registration of certain
types of contractual licence. However, section 29(4) of the Land Act expressly bars
any licensee from making any adverse claim to the land he or she is in possession
of so as to be considered a bonafide or lawful occupant. In this case those who
took possession other than by license were squatters on the land. None of the
occupants proved to be a lawful or bonafide occupant.
Because the defendants wrongfully benefited from the suit land for many years to
the detriment of Banyatereza Sisters, and this coupled with the mental torture, fear
of the very probable physical harm the Sisters suffered, and being denied the right
to use the land, the plaintiffs were entitled to an award of general damages. An
eviction order and a permanent injunction order were issued against the 52
defendants.
RESTRICTIVE COVENANT
This is a promise included in a legal agreement that prevents one party to the
contract from taking a specific action. When one enters a restrictive covenant, one
agrees to refrain from doing something or from using property in a certain way
that is restricted by the contract e.g. when purchasing real estate, the buyer may
agree to use the property for the designated purpose only and not for other
purposes. If the contract specifies that the property can only be used for
residential purposes, then the buyer cannot the convert the property to business
use. More so it prohibits the use of property in a certain way by tenants, home
owners or other occupants.
Enforcement Of Covenants At Common Law And Equity
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A covenant is a solemn promise to engage in or refrain from a specified action. At
common law, a covenant is distinguished by the presence of a seal that indicated

an unusual solemnity in the promises made in a covenant. Common law would
enforce a covenant even in the absence of consideration. Real property means
conditions tied to the owners or use of land.
At common law, the benefit of a restrictive covenant runs with the land if three
conditions are met with;
1. The covenant must touch and concern the land.
2. It must affect how the land is used or the value of land.
3. The benefited land must be identifiable.
Restrictive covenant does not run except where strict privity of estate (a
landlord\tenant relationship). The burden can be enforced at law in limited
circumstances under the benefit burden test that is whoever takes the benefit
must also shoulder the burden in Halsall V Brizell, a covenant requiring the
upkeep of roads was found to bind the successor in title to the original covenantor
because he had elected to take the benefit.
In equity the restrictive covenant will run in equity if;
1. -The burden cannot be a positive burden (that it requires expenditure to
meet it)
2. -The purchaser must have notice of the covenant.
3. -The covenant must benefit the covenantee’s land.
4. -The covenant must be intended to run with the covenantors land.
In Tulk V Moxhay, it was determined that the burden could run in equity subject to
the qualifications listed above.
Scheme of Development
This comes into existence where defined land is laid out in parcels and intended to
be sold to different purchasers or leased or subleased to different lessees each
whom enters into a restrictive covenant with the common vendor that his\her
parcel is subject to certain restriction as to use.
The restrictive covenant constitutes a special local law applicable to the defined
land and the burden and benefit of the covenants pass to the purchaser, lease or
sublease of the parcel and he\she is successor in title. This means asset of
restrictions or requirements that are imposed on the owner of property usually to
enhance the value of property.
Scheme might involve landscaping standards e.g.sizes, styles, finishes or color. it
may have restrictions on how the property is to be used. Scheme of development
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are agreements that are put in place to benefit the property owners in a particular
development. The agreement is private and only affects the properties within the
area identified in the building scheme.
Restrictive Covenant Under Registration Of Titles Act
Remedies For Breach Of Restrictive Covenants.
Damages and or injunctions.
This is to restrain the breach; however courts have jurisdiction to award damages
instead of an injunction. The court’s jurisdiction is equitable except in cases of a
breach by an original coventor. Courts consider conduct e.g. delays or inactivity by
the beneficiency as evidence that an award of damages in line to an injuction will
be appropriate. In Sheifer V City of London Electric Lighting, court confirmed the
working rule for awarding damages instead of an injunction was if;
i. -Injury to the claimant legal right is small.
ii. -The injury is capable of being valued in money term
iii. -It can be compensated by a small money payment.
iv. -It would be oppressive to the defendant to grant an injunction.
Extinguishment Of Restrictive Covenants.
There is no statutory provision that gives the land tribunals or the courts power to
order extinguishment of a restrictive covenant, which for example is absolute.
However they may indirectly extinguish such a covenant by declining to grant an
injunction against an owner of the servient land in breach of the restrictive
covenant.
Customary rights
These are ancient rights enjoyed by members of a local community over private
land. They do not have the characteristics of an easement in that they are not
necessarily appurtenant to any dominant land but any member of the community
enjoys them. Subject to the land Act 1998, it is thought that the principle on
indefeasibility of title excludes the enforcement of customary rights against
registered proprietors.
Enforceability of Customary Rights
The survival of customary rights on registered land has been a recurring problem
even in the face of various legislations. There was nothing written to determine
what customary tenure looked like instead the courts, in an effort to protect the
tenants, courts had to find a working criteria for each case.
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This is in favor of a limited section of the public like the inhabitants of a village, a
member of community. This view is partly based on the high court of Kenya case
of Obiero V Opiyo Etal, the issue was whether the defendant’s claim constituted an
overriding interest against the plaintiffs Title It was held that customary rights
were not intended to constitute an exception to indefeasibility of title. Customary
rights constitute an exception to the principle of indefeasibility of title.
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UNIT THREE: LEASES
Definition of a lease
A lease is a legal document, but can be a verbal arrangement, which confers a right
on one person, called a tenant or lessee, to possess property belonging to another
person, called a landlord or lessor, to the exclusion of the owner landlord. The
relationship between the tenant and the landlord is called a tenancy, and can be
for a fixed or an indefinite period of time, called the term of the lease. The
consideration for the lease is called rent or the rental.
Definition of leasehold
Section 3(5) of the Land Act defines leasehold as a form of tenure created either by
contract or by operation of law; the terms and conditions of which may be
regulated by law to the exclusion of any contractual agreement reached between
the parties; under which one person, namely the landlord or lessor, grants or is
deemed to have granted another person, namely the tenant or lessee, exclusive
possession of land usually but not necessarily for a period defined, directly or
indirectly, by reference to a specific date of commencement and a specific date of
ending; usually but not necessarily in return for a rent which may be for a capital
sum known as a premium or for both a rent and a premium but may be in return
for services or may be free of any required return; under which both the landlord
and the tenant may, subject to the terms and conditions of the lease and having
due regard for the interests of the other party, exercise such of the powers of a
freehold owner as are appropriate and possible given the specific nature of a
leasehold tenure.
Distinction between a lease and a license
A lease A license
A contract by which one party conveys
property to another for a specified time
in return for a periodic payment.
Permission given by the occupier of the
land to a license to do an act which
would otherwise be a trespass.
Creates a right to exclusive possession. Gives permission to utilize the
premises.
A tenant is granted exclusive possession
of the land.
The land can still be jointly utilized or

used.
Classification of Leases
Leases have two classes: the fixed term and periodic leases.
Periodic leases are further subdivided into two
 The tenancy at will and
 Tenancy at sufferance.
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1. Fixed Term Leases. This is one whose duration is fixed by the parties at
commencement of the lease i.e. It may be a lease for 12 years, 49 years, 100
years etc. such that upon the expiry of the agreed period, the lease comes to
an end.
2. Periodic Leases. This is one which continuously renews from one term to
another. it may run on a weekly basis, monthly basis or a yearly basis
depending on the Agreement between the parties. It terminates by proper
notice being served by either party as was stated in the case of Prudential
Assurance company Ltd V London Residuary (1992) 3 All ER 504
Sub divisions under periodic leases.
a. A tenancy at Will was defined to mean a person who enters
into possession of the Landlord’s premises as a tenant
without specification of the terms of the tenancy as it was
in the case of Bweya Steel Works Ltd V National Insurance
Corporation (1985) HCB 58.
A periodic tenant becomes the tenant at the mercy of the landowner. The land
owner can terminate the tenancy without giving notice. Where the tenant begins
payment of rent on a regular basis, the tenancy becomes a periodic tenancy.
b. A tenancy at sufferance was defined as implied where a
former tenant remains in possession of the rented premises
after the expiry of the period fixed by the owner as in

Hassan V Mukiibi (1978) HCB 162. It can be terminated at
any time without Notice.
Essential features of a lease
Features of a Lease
 Consideration – rent
 Reversionary right Creation – by contract or operation of law
 Exclusive possession
 Certainty of duration – commencement & ending
The las two are the most essential features of a lease
Certainty of duration – commencement & ending
Term of a lease
The term of the lease may be fixed, periodic or of indefinite duration. If it is for a
specified period of time, the term ends automatically when the period expires, and
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no notice needs to be given, in the absence of legal requirements.The term's
duration may be conditional, in which case it last until some specified event
occurs, such as the death of a specified individual.
 A periodic tenancy is one which is renewed automatically, usually on a
monthly or weekly basis.
 A tenancy at will last only as long as the parties wish it to, and may be
terminated without penalty by either party.
 It is common for a lease to be extended on a "holding over" basis, which
normally converts the tenancy to a periodic tenancy on a month by month
basis.
 Rent is a requirement of leases in common law jurisdiction, but not in civil
law jurisdiction. There is no requirement for the rent to be a commercial
amount. "Pepper corn" rent or rent of some nominal amount is adequate for
this requirement.
At common law a lease must be for a defined duration i.e. having a specified date
of commencement and agreed upon date of ending.
section 3(5)(c) of the land Act provides that a lease is usually but not necessarily
for a period defined directly or indirectly by reference to a specific date of
commencement and a specific date of ending. As such per this provision a lease
may be created even if for a non defined duration. In the case of Lace V Chantler
(1944) 1 All ER 305 the plaintiff, during the 2nd World war Sub-let a house to the
defendant for the duration of the War. It was held that the lease was void for
uncertainty of duration because at the time the purported lease agreement took
effect, it was not certain for what period it will be in effect.
Certainty of duration is not one of the essential requirements for the validity of a
lease. Duration is only provided for non-citizens who can hold a lease for a period
of 99 years.
Exclusive possession
Section 3(5) of the Land Act provides for exclusive possession in
leasehold……tenure as a form of tenure created either by contract or by operation
of law under which one person, namely the landlord or lessor, grants or is deemed
to have granted another person, namely the tenant or lessee, exclusive possession of
land…
Exclusive possession includes non interference from anybody including the land
lord. While a lessee enjoys a right to exclusive possession of a land, a lesser enjoys
only a reversionary interest.
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A leaseholder cannot deny the landlord a right to obtain a mortgage on the same
piece of land. The leaseholder can be paid off and a mortgage can be created or a
mortgage can be created subject to the expiration of the leasehold interest. The
leaseholder can be paid off if the landlord attaches the property, on execution, the
property can be sold off and the Lessee can be paid off while the bank becomes the
new landlord.
There is no law that obliges a landlord to renew the lease, he can refuse to renew it
and no cause of action can accrue.
Section 3(5) of the Land Act defines a Leasehold tenure as a form of tenure under
which the landlord grants or is deemed to have granted a tenant or lessee exclusive
possession of land.
This is the most essential feature of a lease and this is what distinguishes a License
from a lease.
A grant of exclusive possession is the right to enjoy the rented premises to the
exclusion of anyone else; the landlord inclusive. Where the landlord interferes
either directly or indirectly, with the enjoyment of the land or rented premises,
then no lease can be talked about because of the violation of the right to exclusive
possession which is mandatory under a leasehold tenure.
To establish whether or not an occupier enjoys the right to exclusive possession
depends on the intention of the parties. Hence circumstances of a particular case
come into play.
The intention of the parties can objectively be determined from the terms of the
agreement between the parties and the surrounding circumstances.
An express statement purporting to grant the right to exclusive possession is
neither necessary nor conclusive of the occupier’s legal state. The extent of control
over land retained by the landlord determines whether the occupier has exclusive
possession or not.
If the landlord retains general control over the rented premises it is strongly
believed that there is an interference with the right to exclusive possession and to
that extent the occupier is a mere licensee as opposed to being a lessee, this was
decided In the case of Desai V Cooper (1950) KLR 32
Creation of a lease
1. BY CONTACT UNDER LAND ACT SECTION 3(5)
Leasehold tenure is a form of tenure—

(a) created either by contract or by operation of law;
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(b) the terms and conditions of which may be regulated by law to the exclusion
of any contractual agreement reached between the parties;
(c) under which one person, namely the landlord or lessor, grants or is deemed to
have granted another person, namely the tenant or lessee, exclusive possession
of land usually but not necessarily for a period defined, directly or indirectly, by
reference to a specific date of commencement and a specific date of ending;
(d) usually but not necessarily in return for a rent which may be for a capital sum
known as a premium or for both a rent and a premium but may be in return for
goods or services or both or may be free of any required return;
(e) under which both the landlord and the tenant may, subject to the terms and
conditions of the lease and having due regard for the interests of the other party,
exercise such of the powers of a freehold owner as are appropriate and possible
given the specific nature of a leasehold tenure.
The parties usually agree to create a lease and agree to the terms of the lease. It is
either created by operation of law or by agreement between the parties. The
contract may be oral or written.
2. TENANCY ESTOPPEL
One consequence of this rule is that if the landlord in fact has no estate in
the land, then
although the lease or tenancy can confer no actual estate on the tenant, and
cannot beeffective against third parties, it is good between the parties to is
and their successors in title. Both landlord and tenant will be stopped from
denying the validity of the lease or tenancy; they cannot “blow hot and cold”
by claiming that the transaction was valid when entered into, and yet
asserting subsequently that is was a nullity.
No tenancy by estoppel arises, however, if the lessor had a legal interest (as
distinct from an equitable interest) in the land when he granted the lease. If
his interest was greater than the tenancy, the lease takes effect in the
ordinary way; if it was equal to or smaller than the tenancy, the grant of the
lease operates as an assignment of the lessor’s interest. Thus if L grants T a
lease for 99 years T will take a lease for 99 years by estoppel if L had no
interest in the land when the lease was granted. But if L had a lease for 10
years at that time, the lease for 99 years will operate as an assignment to T
of L’s lease for 10 years.
There is a well-established common law principle that where a person enters onto
land as a tenant of another person, both parties are estopped from denying that a
lease exists. In Pardhan Jivraj V Dudley-Whelpadle, it was Held that payment and
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acceptance of rent provided the requisite evidence that the defendant and the
plaintiff regarded each other as landlord and tenant.
An estoppel certificate is assigned statement by a party certifying for another
benefit that certain fact are correct as that a lease exists , that there are no defaults
and that rent is paid to a certain date.
A Party’s delivery of this statement estops that party from later claiming a
different state of facts. A tenant estoppel is a certified statement by a tenant that
verifies the terms, conditions and current status of their leases. it provides proof
of cash flow which is ultimately what a potential investor or lender in a property is
concerned with.
Estoppel means to prohibit therefore, a tenant estoppel is a certificate that
prohibits the tenant from taking opposition contrary to what is stated in their
certificate. Estoppel is a legal principle that prevents someone from arguing
something or asserting a right that contradicts what they said or agreed to by law.
It prevents people from being unjustly wronged by the inconsistencies of another
person’s words or actions.

3. BY REGISTRATION
Leases over land registered under the Registration of Titles Act are created
subject to the provisions of that Act. A lease deed in a written agreement
that governs the terms between a land lord and a tenant. It only applies
where a lease deed exceeds 12 months. Lease agreement registration helps
in protecting the rights of the parties for a lease agreement , the following
should be;
 The period the lease agreement is to last.
 The amount of rent.
 Security deposit.
 Notice period.
 The property must be maintained in good condition.
Unregistered lease and its effects
Thomas Clarke V Sondhi Ltd [1963] EA 107
The tenant occupied the premises but refused to pay rent. The lease was
unregistered and the issue was whether evidence was admissibleto prove that a
lease exists which was never registered.Crawshaw JA stated that a breach of a
condition or a covenant for which the respondent was guilty is a matter between
him and the land lord. And as the crown had not sought to forfeit the grant, the
breach did not affect the relationship of land lord and tenant existing. That an
unregistered lease could operate as a contract inter parties and confer a right to
enforce a lease. The tenant must pay the rent in arrears.
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At common law, a purported lease that does not comply with formalities merely
operates as a contract whereby the proposed lessor promises to lease and the
proposed lessee to take the land subject to the terms of their agreement. Failure by
either party to comply with the agreement could result in action for damages.
In equity, failure to follow legal formalities to create a lease does not necessarily
render the lease void because equity treats as done what ought to be done. An
agreement for a lease capable of enforcement by specific performance creates a
lease referred to as an equitable or informal lease, this principle was laid down in
the case of Walsh V Lonsdale, where the appellant and respondent entered into a
written lease agreement for a term of 7 years subject to a periodic payment of rent
in advance,though the agreement was not by deed as required by law, the appellant
entered into possession. When the appellant defaulted in payment of rent, the
respondent distrained on his goods.
It was Held that though the agreement was ineffective to create a legal lease, it was
effective to bring into existence an equitable lease for a term of 7 years. Therefore,
in the eyes of equity the parties were already landlord and tenant subject to the
same terms and remedies they would have had if their lease had been created by
deed.
Effects of unregistered lease
Unregistered lease does not create the legal relationship between the lessor and
lessee. The position of the law is that in the absence of a registered instrument, the
courts are not precluded from determining the factum of tenancy from the other
evidence on record as well as the conduct of the parties as per the case of Anthony
V Kc Ittp & Sons MANU ISC 10443 2000.
Where the transfer of right to enjoy a property in consideration of a price paid or
promised to be rendered periodically or on specified occasions is a basic fabric for
a valid lease. In the absence of registration of a document, what is deemed to be
created amounts to tenancy.
Conditions and covenants, tenant-landlord rights and obligations
The terms of a lease maybe expressed as conditions or covenants.
A condition is a term which is essence of a lease agreement and its breach entitles
the innocent party to terminate the lease. It is an event or occurrence that will
trigger one or more obligations under the contract until the event takes place,
there is no obligation to power form under the contract.

Express covenants.
These are expressly stated in a contract .it must be in writing and must give
meaning as read in the contract. It is one expressly agreed between the parties and
inserted in the deed.
Covenants implied under general law against the landlord
An implied covenant is an agreement that is not specifically stated in the contract
terms but in implied against a tenant this include;
a.) Quiet possession, this is the right to own or use property or goods without
anyone causing you any difficulties. The covenant of quite enjoyment
implies that the landlord and those claiming through him or her will not
interfere with the tenant’s possession. The breach of covenants for quite
enjoyment takes various forms for example in Opinya V Mukasa, the
landlord sought to forcibly evict his tenant by removing the roof from the
premises. The court found that the landlord was liable for the breach of
covenant of quiet possession.
The landlord is not liable for the breach of covenant of quiet enjoyment where the
interference with the tenant’s possession is due to unlawful activities of other
person e.g., in Shah Champshi Tejshi & Others V The Attorney General of Kenya,
the government granted a lease to the plaintiffs. The plaintiffs claimed that under
the lease, they had an implied right of access to a certain road. Later, the
government leased the adjoining land to another person and latter blocked the
plaintiff’s alleged access road. The plaintiffs sued the government for breach of
the covenant of quite enjoyment. It was Held that the government was not
responsible because it had not been established that the interference was lawful or
that if unlawful it had permitted it.
b). Non-derogation from grant. This is a doctrine that a party should not derogate
from its grant embodies a general legal principle that if A agrees to confer benefit
on B, Then A should not do anything substantially deprives B of the enjoyment of
that benefit. This is implied only where the tenant uses the land for a purpose that
was within the contemplation of both parties at the time the lease was entered
into. The reason is that the tenant cannot extend the landlords obligation beyond
what was contemplated by both parties for example in Robinson V Kilvert, the
landlord leased the upper floor of his building into the plaintiff for business
purpose. The landlord employed a heater in the ground floor which caused the
temperature to raise in the premises leased to the plaintiff. It was Held that the
landlord was not liable for breach of covenant to derogate from the grant because
the plaintiff was using the premises for a special purpose that was not
contemplated by both parties.
c). Fitness for human habitation. On 20th march 2019, a new law came into force
to make sure that rented houses and flats are fit for human habitation which
means that they are safe, healthy and free from things that could serious harm as
it was decided in the case of Sarson V Roberts [1894]2 QB 395.
Landlords make sure that houses and flats they rent out are safe, secure, warm and
dry. In the case of Smith V Marrable, it was Held that the tenant quits the
premises without giving notice under the lease.
Covenants implied against the tenants
At common law, every tenant has the benefit of a covenant implied into their lease
that the landlord will not breach the tenants quite enjoyment of the premises. The
tenant will be allowed by the landlord to occupy the premises undisturbed, to pay
rates and taxes on the property, to use the property in a tenant like manner. This is
an obligation to look after the property in general this was in the case of Warren V
Keen.
To allow the landlord to enter and view this is an implied obligation to allow the
landlord to access the premises, to inspect them and to carry out necessary repairs
this was decided in the case of Mint V Good.
Covenants implied under the Registration Of Titles Act
The Land Act implies against the lessee that he or she will pay rent reserved by the
lesser and all other dues that are payable under the demised property. The Act
implies that the lesser should keep yield up the demised property in good and
tenantable repair reasonable wear and tear excepted. The obligation of a tenant is
not only to maintain the premises in tenantable repair during the term, but also to
deliver them up in that order at the end of the lease. Therefore, unless otherwise
agreed, where at the commencement of the lease the premises are in disrepair, it
is the lessor obligation to out and keep them in tenantable repair at his or her
expense.
The Act further implies that the lessor has power to enter the premises at all
reasonable times for specific purposes such as inspection of the premises and
repair
SUBLEASES AND ASSIGNMENTS
A sub-lease is a transfer of the rights to use the land leased to the lessee or part of
it to some other person on agreed terms which must include observance of the
covenants in the head lease and a right of reversion to the sub-lessor before the
expiry of the main lease.
Enforcement of the sublease
The sub-lease must be on the terms set out and must be registered
The sublease, like a lease must equally be in writing, executed, attested and
registered. S.109 RTA
The registrar shall endorse the sub-lease on the certificate of title as an
encumbrance. S.110
The registrar shall then issue a fresh lease/sub-lease certificate s.111the terms of the lease shall apply
to the sub-lease, s.112,113
In Garry Denning Ltd Vickers [1985] 1 NRLR 527 court found that the essence of
a sublease is the fact that a sub-lessor retains a reversionary interest in the land,
bringing into existence a new tenurial relationship between sub-lessor and sub-
lessee.
In Kampala City Council V Mukubira [1968] EA 497 it was held that on subletting
and parting with possession without consent of the lessor, the lessee was in breach
of the lease agreement.
In City Council of Kampala V Mukiibi [1967] EA 368 Sir Udo Udoma CJ stated that
a tenancy agreement, although not in statutory form and bearing no endorsement
with a certificate of registration was enforceable against the defendant as an
agreement to grant a lease. The persons working on the premises were licensees,
not tenants and were not in exclusive possession of the premises, so that the
defendant had not sub-let, assigned or parted with possession of the premises and
was not in breach of the covenant. Where there is no exclusive possession, the
parties are licensees and not lessees.
Section 35(1) of the land act introduces a criminal sanction against a tenant by
occupancy who assigns his tenancy without giving priority to the landlord, in
addition he/she has to lose the tenancy and the purported assignee would acquire
no rights at all. The transaction would actually be void ab initio. This therefore
makes it strict that no sell, lease, transfer or assignment is effectual where the
landlord is by-passed.
Assignment of a reversion
An assignee of a reversion acquires the right to sue for breach of covenants
committed before the assignor losses that right.
Section 35(2) of the land actptovides that The owner of land who wishes to sell the
reversionary interest in the land shall, subject to this section, give the first option of
buying that interest to the tenant by occupancy.
Remedies For Breach Of A Contract (Landlord And Tenant)
i) Damages
An amount of money a warded by a court in order to compensate a claimant who
has suffered loss as a result of a wrong committed by the defendant.
ii) Injunction.
A discretionary remedy that takes the form of a court order requiring a party to
either refrain from doing something (prohibitory injunction) or to specifically do
something (mandatory injunction).

) Termination of a lease.
A land lord may legally terminate a lease if the tenant is in violation of the term of
the lease or has broken the law. The tenant may be provided time to remedy the
violation by paying outstanding rent or a notice may stat that the tenant must
vacate that premises or risk eviction. It may also be terminated by the tenant if the
conditions of the premises are not fit for habitation.
iv) Mesne profits.
This is a profit of an estate received by the tenant in wrongful possession and
recoverable by the land lord.
V) Distress for rent (bailiffs).
This remedy is so limited; the general rule is that a land lord can distain only upon
goods that are located on the tenant’s premises. The rule that all goods on the
tenanted premises are distrainable is subject to a multitude of exceptions.
Page 66 of 98
vi). Forfeiture.
This is the loss or giving up of something as a penalty for wrong doing.
vii) Relief from forfeiture.
This is where a land lord seeks to end a lease by re-entering the property following
a breach of covenant by the tenant.
viii) Waiver of forfeiture.
Waiver is the voluntary relinquishment, surrender or abandonment of some known
right or privilege. A forfeiture is waived by acceptance of rent which has become
due since the forfeiture or by distress for such rent this is provided under Section
111(g) of the transfer of properties Act 1882.
Termination of a lease
1) Forfeiture
This is a situation where the landlord is entitled to re-enter the ranted premises
and put an end to the lease, where there has been breach by the tenant of
conditions of the lease even if the lease does not contain an express clause for
forfeiture.
However before the landlord re-enters the land, he must make a formal demand
unless if the leasehold agreement provides to the contrary. It has to be reasonable
notice and it will largely depend on circumstances of the case. E.g. parties may
agree on the type and mode of notice.For example a clause in a leasehold
agreement may provide that a lease may be forfeited if the rent is in arrears for
specified period i.e. Default for 6 months the lesser has a right to re-enter the
premises.
The landlord may re-enter the premises either peacefully or by getting a court
order for possession. It is not advisable to re-enter dwelling premises without
proceeding to Court.
Section 25 of the Judicature Act provides for relief from re-entry or forfeiture for
nonpayment of rent. It provides that where a Lessor is proceeding by action or
otherwise to enforce a right of re-entry or forfeiture for nonpayment of rent, the
Lessee may apply to court for relief.
2) Effluxion of time
A lease for a fixed period of time can expire upon the lapse of the agreed period.
3) Notice of quit
Page 67 of 98
For a fixed term lease, there may be a provision for termination of the lease upon
giving notice and such provisions must be complied with. The notice must be
given by the lesser his or her recognized agent and it must be sent to the proper
address, as it was In Lenon V Ladoem, the property belonged to the wife and the
jealous husband gave notice of termination to the lessee. The lessee contested and
the Court Held that the notice was illegitimate since the husband had no authority
to give notice on behalf of his wife.
In Balhir V Peneser [1972] EA 94, a lawyer gave notice on behalf of his client to
vacate and deliver possession of the front portion of the estate. The tenant
contended that this was not a termination due to uncertainty. Court Held that a
liberal interpretation must be given to the notice so that even if it is inaccurate,
effect is given to it as if it were clear to the recipient
4) Surrender
This is where before the expiration of the lease, the lessee surrenders his lease to
the landlord who if accepts the surrender, the lease merges with reversion and it is
extinguished this is provided for under Section 108 of the R.T.A. For example if x is
the owner of Mailo land at Kibuli, creates a leasehold interest in favor of Y, if Y
writes to x showing an intention to give up the leasehold interest and x accepts,
the leasehold interest is merged with x ‘s reversion.
Surrender may be by express agreement, operation of the law or statutory
provision. A lease is surrendered by operation of the law if a lesser grants and the
lessee accepts a fresh lease commencing before the current lease expires. A lease is
also surrendered by operation of the law where the tenant abandons the premises
and the lessee re-enters
5) Merger
This occurs where the tenant in addition to holding his leasehold interest acquires
a reversionary interest as well e.g. where x, the registered proprietor of Mailo land
at Kibuli leases his land to Y for a period of 45 years and Before the Lapse of Y’s
Lease, X agrees to sell his reversionary interest to Y. in this case, Y’s leasehold
interest is terminated by the merger.
For a merger to be effective, the lease and the reversion must be vested in the
same person in the same right.
Page 68 of 98
ntitled to compensation from Government. The buyer was also entitled to

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LAND REGISTRATION & TRANSACTIONS

MUGABI John Bosco

LLB, Islamic University In Uganda

Covers dealings in Land Registration,

Servitudes over Land, Leases, Mortgages, Condominium

Properties and Expropriated Properties in Uganda.

Land Transactions & Registration: Mugabi John Bosco - September 2021

UNIT ONE: REGISTRATION OF LAND

a. History of the Torrens Systems

b. Application of the system in Uganda

2. Essential features of Torrens System

a. Title by Registration & Effect of Unregistered Instruments

b. Indefeasibility of Title & its Exceptions

3. Protection by of Unregistered Interests (Caveat)

d. Liability of wrongful lodgment of caveat

4. Remedies for Deprivation of Land

UNIT TWO: SERVITUDES OVER LAND

b. Types of servitudes ( Easement, Profit aprendre, Restrictive Covenant,

License & Customary Rights)

b. Essential features of easement

d. Termination/ discharge of easement

b. Distinguish of Profit aprendre from Sale of Goods

Land Transactions & Registration: Mugabi John Bosco - September 2021

b. Enforcement of Covenant at Common law and Equity

d. Restrictive Covenant under RTA

e. Remedies for breach of Restrictive Covenant

f. Termination of Restrictive Covenant

b. Enforceability of Customary rights

a. Definition of lease and leasehold tenure

b. Distinction between lease and license

2. Essential features of a Lease

c. Registration and effect of unregistered Lease

4. Conditions & Covenants (Rights & Obligations of Landlord & Tenant)

a. Definition of Condition and Covenant

c. Covenant implied under general law against the landlord (quiet

possession, non-derogation from grant, fitness for human habitation).

d. Covenant implied against the tenant

e. Covenants implied under the RTA

5. Sublease & Assignment

a. Definition of sublease and assignment

b. Enforcement of covenant in a lease and sublease

c. Registration of transfer of a lease

Land Transactions & Registration: Mugabi John Bosco - September 2021

6. Remedies for breach of contract ( Landlord and tenant remedies)

e. Distress for rent

g. Relief from forfeiture

UNIT FOUR: MORTGAGES

b. Definition of Mortgage deed and Deed of Release

c. Laws governing Mortgage in Uganda

d. Distinction of Mortgagee and Mortgagor

c. Mortgage on customary land and tenancy by occupancy

b. Right to transfer to the third party

c. Right to inspection and production of documents

d. Right to redeem separately or simultaneously

f. Right to grant a lease

a. Covenant for the title

Land Transactions & Registration: Mugabi John Bosco - September 2021

b. Covenant for the defense of title

c. Covenant for payment of public charges

d. Covenant for payment of rents\covenant for the discharge or prior

a. Right to foreclosure of sale

b. Right to sue for mortgage money