INDEFEASIBILITY OF TITLE: AN ERODED CONCEPT IN UGANDA

Peter Mukidi Walubiri1

RESTARTING THE OLD DEBATE

On 25th September, 2020, the Court of Appeal read its judgment in Mariam Nanteza & 3
others Vs. Nasari Rwamunono2 That judgment was followed by both excitement and
criticism in the legal fraternity. The facts of that case were briefly that the Appellants
claimed in their suit to be the administrators of the estate of their late father and that the
deceased was the owner of the suit property which they sought to recover from the
Respondents.

The Respondents had got registration upon purchase from a third party who had in
1994 been registered as administratrix of the deceased’s estate. These earlier letters of
administration had been obtained from a Grade II Magistrate’s Court in Nakasongola.

It was alleged that these letters of administration were forged and in any event that this
was a large estate and the Court had no jurisdiction to make this grant. The learned trial
judge held that there was no proof that the letters of administration were fraudulent and
in any case there was no claim made for cancellation of these letters of administration.
The Court of Appeal upheld this judgment.

The High Court was also faulted for holding that the Respondents purchased from a
person who had a grant of letters of administration and were in the same position as a
bonafide purchaser who acquired the interest from any registered proprietor. The Court
of Appeal while making reference to the Supreme Court decisions of Kampala Bottlers
Ltd Vs. Damanico (U) Ltd3 and J.W. Kazzora Vs. Rukuba4 and the High Court decision
of Katarikawe Vs. Katwiremu & Anor5 and Olinda De Sonza Vs. Kasamali Manji6 held
that the Respondents were bonafide purchasers. The Court reiterated the principle that
“once a person is registered as proprietor, his title is indefeasible except for fraud”.
Those in criticism of the Court of Appeal decision reaffirming the concept of
indefeasibility of title were quick to cite the Supreme Court decision of Silver
Byaruhanga Vs. Fr. Emmanuel Ruvungwaho & Anor7. In that case two sets of sales by
administrators were nullified by the Supreme Court. In the first, a joint administrator
transferred title to himself in his own personal names and then sold to the Respondent.

1
LLB (Makerere) LLB (London), Advocate
2
Civil Appeal No. 28 of 2013
3
Civil Appeal No. 22 of 1992
4
Civil Appeal No. 13 of 1992
5
[1977] HCB 187
6
[1962] EA. 756
7
Civil Appeal No. 09 of 2014

1
The issue that was argued in the Supreme Court was not one of bonafide purchase but
whether a co-administrator could in face of section 272 of the Succession Act, act alone
and sell. The second sale by the other set of administrators was nullified by the Court of
Appeal on grounds that the first sale was valid. This finding was not the subject of the
appeal to the Supreme Court.

Apparently, there was no focus at all the levels of this litigation, which started from the
Chief Magistrate’s Court, on whether the Purchaser from the single executor was a
bonafide purchaser.

The other recent set of cases involving issues of indefeasibility of title have involved
cases of under payment of stamp duty by purchasers or under declaration of
consideration and its effect on the transactions. In some judgments8, the Court of
Appeal has held that non-payment of stamp duty does not of itself constitute fraud and
remains a debt to Government. In Betty Kizito Vs. David Kizito9 the Supreme Court held
that the concealment of true consideration amounted to fraud. Other cases involve
powers of the Commissioner to cancel land titles and the extent of investigation of title
beyond the register.

What is apparent is that there is unease with the way the Courts are applying the
concept of indefeasibility of title and time is opportune to interrogate the concept under
our present circumstances.

ORIGIN OF THE CONCEPT OF INDEFEASIBILITY

The Torrens system

In Uganda we operate what is known as the Torrens system of registration. One of the
essential features of the Torrens system is that it is a system of title by registration as
opposed to the common law system of registration of title where interests in land are
created upon mere execution of the documents. “The Torrens system of registered title
of which the Act is a form, is not a system of registration of title. That which the
Certificate of Title describes is not what the registered proprietor had, or which but for
registration he would have had. The title it certifies is not historical or derivative. It is the
title which registration itself has vested in the proprietor”10. This is what is embodied in
S.54 of the Registration of Titles Act which provides that instruments are not effected
until registered.

8
Haji Numani Mubi Akulamusa Vs. Friends Estates Ltd, Civil Appeal No. 104 of 2018, David Kizito Kanonya & Others
Vs. Betty Kizito, Court of Appeal, Civil Appeal No. 187 of 2012.
9
Civil Appeal No. 8 of 2018
10
Breskavar & Anor. Vs- Wall & Ors [1971] 126 CLR 376 at 385 (Barwick CJ)

2
Other than the concept of title by registration, the other essential feature of the Torrens
systems is the principle of indefeasibility of Title. The word indefeasibility is not used in
the Registration of Titles Act (RTA) but the Privy Council on appeal from the Supreme
Court of New Zealand has defined the expression “as a convenient description of
immunity from attack by adverse claim to the land or interest in respect of which he is
registered, which a registered proprietor enjoys11”

This Torrens system is not the result of an accident or some coincidence. It was
conceived in Australia to replace the other existing systems of land recording like
private conveyancing, registration of deeds, registration of titles and title insurance.

Private conveyancing

Under the system of private conveyancing, land is simply transferred by documents

(deeds) executed by the parties and kept privately. The Vendor has to produce for the
purchaser’s inspection a series of documents which record the previous
transactions affecting the land and demonstrate to the purchaser the ability of the
Vendor to lawfully transfer what he or she has agreed to transfer or convey. The
Vendors title to the land is deduced from the evidence of all past deeds. This title has to
be proved afresh each time a disposition of land is made12.

This system of private conveyancing produces that Sir Robert Torrens called
13 14
“dependent titles” . In his leading work , Torrens explains that under this system,
title has to be traced back through successive proprietors, each instrument examined
and each transaction scrutinized, to ascertain that all necessary formalities have
been observed, and that no equitable interest or claim remains outstanding. This
sort of inquiry must be gone over abinitio each time the property is dealt with. Each
transaction adds a fresh link to the chain thereby increasing the complexity of
investigation and risk of loss. Because of the complexity of this investigation,
purchasers had to hire the services of skilled conveyances at great cost15.

Registration of Deeds

The first attempt to deal with the problems of private conveyancing was the
introduction of the system of registration of deeds. In the United Kingdom the earliest

11
Frazer –vs- Walker & Others [1967] 1 AC 569 at 580 (Lord Wilberforce)
12
Burn(ed) op. cit. p. 98-9.
13
Kerr Donald, Titles (Torrens) The Principles of the Australian System (1927), the Law Book Company of Australia,
Sydney, p. 6-7.
14
Registration of Title, cited by Kerr Donald, op cit, Ibid
15
Morlin Fox, The Transfer of Land Act (1964) (1958), The Law Book Company of Australia, Melbourne at p. xxii-v
explains how this system led to uncertainty of title complexity in conveyancing and costliness.

3
of this system was established by the Yorkshire Registry Act, 1704 16. This was
followed by the Irish Registry Act, 1708 and the Middlesex Registry Act, 1708 17 ; and
several Australian and New Zealand Registration of Deeds Statutes modeled on the
English Act18.

These statutes enabled the recording of deeds evidencing title to land 19. Their object
was to prevent secret and fraudulent conveyances and to compel registration by
conferring on a registered transaction priority over an unregistered one20. Permissive
and not mandatory provisions in these statues enabled deeds, wills, conveyances and
devises affecting land to be lodged with a public officer normally referred to as a
Registrar who retains, sorts and indexes either abstracts (called memorials) of their
most important parts or full copies21.

The purchaser by searching the register is enabled to ascertain independently of the

vendor, all the deeds affecting the land. The fraud of suppressing deeds is minimized 22.
Failure to register a deed renders it liable to be defeated by a subsequent purchaser
who registers his or her instrument notwithstanding that the purchaser had prior notice
of the unregistered deed23.

However, this system does not shorten or cheapen the conyeyancing process since the
purchaser has to laboriously search the Register of Deeds to identify and scrutinize
all deeds relating to the land he or she is interested in. Without a proper index showing
the name of the landowner and the description of the land (say by plot references),
searching the deeds register can be a nightmare24.

Moreover registration of a deed does not cure any defect in such deed or give it
additional validity25. Non- registration of a deed under the Registration of Deeds Statute
is not an imperfection of Title. The registration of a deed is imperative, in the sense that
it does not add to the efficacy of the instrument in absence of value or where there is
no competing instrument26. Registration is inoperative where the instrument is void as

16
2 & 3 Anne, C. 4. Other enactments for Yorkshire included 5 Anne. C. 18; 6 Anne, C. 20; 6 Anne, C. 35 & 62;
Geo ll, C. 6 all repealed by the Yorkshire Registries Act, 1884.
17
6 Anne, C. 2
18
Hogg E. James, The Australian Torrens System (1905), William Clowe & Sons Ltd, London p. xxxv-xxiv.
19
Kerr Donald, op cit p. 13.
20
Ibid
21
Harvey Eustace, Land Law and Registration of Title, (1910), Longmans Green & Co; London, p. 185.
22
It can be preserved, if registration is compulsory as Harvey E op. cit at p. 185 suggests.
23
However, such purchaser can be defeated if he is not bonafide or if he is privy to fraud.
24
Harvey E. op cit. p. 186.
25
This compares unfavourably with the Torrens System under which registration extinguishes all flaws in the deed
(instrument) as far subsequent purchasers are concerned.
26
Kerr Donald op. cit. pp. 15-16.

4
being fraudulent27. It should also be noted that unlike in the Torrens system,
registration under the Deeds Statute does not give notice of the registered instrument to
the whole world. Several jurisdictions still practice the system of registration of deeds.
These include England, Hong Kong, some Australian provinces, New Zealand and
Zambia.

In Uganda, the system of registration of deeds dates back to 1904 when the
Registration of Documents Ordinance28 was enacted. Under this ordinance, a registry of
documents headed by a Registrar of Documents was set up. This ordinance was
amended the same year29 and eventually consolidated in 192230. Under this law,
provision is made for the registration of copies of documents by way of filing and
consecutively numbering such copies and recording on the same the date of
31
registration and the name of the person presenting it . The Registrar of documents
keeps an abstract book in which he or she enters the registered number, name of the
parties, the date and nature of document and the date of registration32.

The register is open for search by the public who may take copies of any registered
document33. However, the registration does not cure any defect in the document or
confor upon it any effect or validity which it would not otherwise have had34.

Registration of Titles

As discussed above, registration of deeds did not significantly solve the problems of
expense and time spent in investigating title to land nor did it confor a title free of
defects. Accordingly, the search for a better system continued. This led to the new
system of registration of title. Under this system, a public office is established to
exclusively register land and land transactions in accordance with established
formalities. Land conveyancing is made earlier and cheaper by the existence of a
central titles registry where searches and investigations of title can be made.

Titles Insurance

This system was developed in and is largely used in the United States of America.
Except in a few states such as Minneapolis, Minnesota, Boston and Massachusetts,

27
In re Cooper (1882) 20 Ch. D. 611.
28
No. 3 of 1904.
29
Ordinance No. 8 of 1904.
30
Ordinance No. 13 of 1922, now Cap. 81 (2000 Revision).
31
Ss. 5 & 6.
32
S. 8. The Registrar of Documents now operates as part of the Uganda Registration Services Bureau set up by the
Uganda Registration Services Bureau Act, Cap. 210 operationalized by S. 1 No 48 of 2004 (see Ss. 2(b), 4(1) (a) and
first schedule to the Act).
33
S. 15.
34
S. 14.

5
there is no system of registration of title or title by registration in the United States.
There is no state guarantee of title. In most states land transactions are simply
recorded by a recorder usually of the county where the land is situate in a system
akin to registration of deeds. The grantee of an interest in land will take his or her
instrument to the recorder who indexes the same by names of the grantor and grantee
and keeps a photographed copy that the public can search.

Under this system, investigation of title requires examination of indexes and

instruments in the recorder’s office. The procedure is cumbersome, inefficient and
prone to substantial errors in the indexes and opinions of attorneys who carry out the
searches. To mitigate against loss resulting from reliance on the recorder’s indexes
and instruments, a system developed to produce an insurance policy for any
purchaser of land or interest therein. The insurers, instead of the state, guarantee title
to land and pay compensation in case of loss owing to the defect in title35.

The Australian Origin of the Torrens System

When Australia became part of the English colonies in the 18 th century, the British
introduced their law of real property and conveyencing to the colony. In particular, they
introduced the system of private conveyancing and registration of deeds. These
systems that evolved in feudal land tenure were totally unsuitable to Australia which
was a vast, sparsely populated territory, still largely unexplored by new settlers and
which had no substantial landed class36. The colonies also lacked a skilled legal
profession so essential to the English conveyancing system. The complexity and
costliness of conveyancing discussed above proved a real problem to the settlers and
inhabitants of Australia. Robert Torrens was among the many who advocates for a new
and simpler system of land registration.

Torrens envisaged a new system of title by registration to do away with the old system
of dependent titles that required a retrospective investigation of title each time land was
conveyed or otherwise dealt with37. He proposed a new system of independent titles
where upon each conveyance the land would in essence be surrendered to the crown
which would then re-grant it to the purchaser38. The object of the new system was to
create a new statutory estate resting on the act of registering an instrument, rather
than on the act of the party who executes it39. This would abolish the need for
retrospective investigation of title and would overturn the concept that a person’s title

35
See generally D. B. Burke Jr. Law of Title Insurance (1986) Little Brown & Company.
36 rd
Butt Peter, Land Law (3 Ed, 1996), the Law Book Company of Australia, Sydney p. 686.
37
Ibid p. 688
38
Torrens: Registration of Title p. 8 cited by Butt Peter op. cit p. 688.
39
Baalman John, The Torrens System in New South Wales (1951). The Law Book Company of Australia Pty Ltd,
Sydney, 123.

6
could be no better than his or her predecessor’s title40. Torrens proposed a single
document evidencing title to each identified parcel of land to be kept by a state
official, the Register General. On this document, known as the “Certificate of Title”
would be recorded all transactions affecting the land41. The document would be
guaranteed by the state and supported by an assurance fund out of which
compensation would be paid to people who would suffer loss by relying on the register.
It would replace the numerous documents which under the existing system, a purchaser
had to investigate to ascertain whether the title was sound. The system so conceived
would render each purchaser’s title to be “indefeasible”42 in the sense that it could not
be defeated or set aside on the ground of a defect existing in the title before the
interest was registered43.

Robert Torrens’ private members bill was eventually passed into law by the South
Australian Parliament as the Real Property Act, 1858. The preamble to the Act
outlined the loses, heavy costs and perplexity to which the inhabitants of South
Australia were subjected to by the complex, cumbersome and unsuitable laws relating
to the transfer and encumbrance of freehold and other interests in land 44. The
features of the new system were to be security, simplicity, using easy standard forms,
accuracy, cheapness, expedition and suitability to local circumstances45. Similar
Torrens legislation were subsequently enacted in other territories of Australian46 and
spread to New Zealand, Malaysia, Hong Kong, Israel, several Canadian provinces and
several British colonies47.

Establishment of the Torrens System in Uganda

In Uganda, the Torrens system was introduced in 192448 after initial attempts with a
voluntary system of registration of documents49 and registration of title50. The
Registration of Titles Ordinance, 1924 was modeled on the Land Transfer Act, 1915 of
the state of Victoria, then the latest of the Torrens legislation in Australia. Originally

40
Butt Peter, op. cit. p. 688.
41
Ibid
42
Ibid
43
Butt Peter, op. cit. p. 694.
44
Moerlin Fox, op. cit. p. xxxi.
45
Kerr Donald, op. cit. p. 6.
46
Real Property Act 1861 (Queens Land); Real Property Act, 1962 (New South Wales); Real Property Act, 1862
(Tasmania); Real Property Act, 1886 (South Australia); Real Property Act, 1962 (Victoria) Transfer of Land Act, 1874
(Western Australia).
47
Hogg James E. op. cit p. 1, Kerr Donald, op. cit p. 1-2, Butt Peter, op, cit. p. 689.
48
The process started with the Registration of Titles Ordinance, No. 22 of 1922, amended by ordinance no. 12 of
1923 and brought in force in 1924 (now cap. 230 Laws of Uganda), 2000 Edition.
49
Under the Registration of Documents, Ordinance No. 3 of 1904 now Cap. 81 Laws of Uganda, 2000 Edition.
50
Under the Registration of Titles Ordinance, No. 11 of 1908.

7
the draft was modeled on the South Australian Act but this was considered too
elaborate.

INDEFEASIBILITY OF TITLE IN THE RTA

Aspects of statutory provisions of the principle of indefeasibility of title are comprised in

several sections of the Registration of Titles Act. The aggregate of these sections
constitute the principle of indefeasibility.

Certificate of Title conclusive evidence

Under section 59 of the RTA, a certificate of title is conclusive evidence that the
person named in the certificate as the proprietor of or having an estate or interest in
or power to dispose of the land described in the certificate is seized or possessed of
that estate or interest or has that power. The certificate is also conclusive as to title to
easements specified therein51. In actions for specific performance of a contract by a
purchaser52 or for damages by a proprietor, a certificate of title shall be conclusive
evidence of title and entitle the purchaser to specific performance or the proprietor
to dames in respect of the land53. The certificate of title duly issued is conclusive and
cannot be impeached or be defeasible by reason or on account of my infirmity or
irregularity in the proceedings provisions to the registration of the certificate54. For
example a lease which is granted with no proper minute of the lessor, which is an
internal administrative arrangement, is not void55

Estate of registered proprietor paramount

Under section 64(1) of the RTA, the estate of a registered proprietor is paramount
over all other estates or interests. It is paramount in the sense that it enjoys priority
over all other estates or interests which would, have had priority if there was no
registered estate or interest. Accordingly, equitable claims and interests existing before
this registration lose their priority.

Purchaser not affected by notice

51
S. 60 RTA
52
S. 63 RTA, the purchaser must not be affected by notice of any fraud or other circumstance which would affect
the right of the vendor under the Act.
53
Ibid
54
S. 59, RTA
55
Kampala bottlers Ltd Vs. Damanico Uganda Ltd, C.A.No. 22of 1992, Supreme court, unreported

8
The extent of the search or inquiry that a purchaser56 from a registered proprietor has
to do is limited by section 136 of the RTA. The purchaser has no obligation to
inquire into the circumstances under which the proprietor or any previous proprietor
was registered. Secondly, the purchaser is not required to investigate into the
consideration for which such proprietor was registered or how such consideration was
applied. The purchaser’s search is restricted to ensuring that according to the entries on
the register, the vendor is the registered proprietor of the interest intended to be
conveyed. Lastly the purchaser is not affected by any notice actual or constructive of
any trust or unregistered interest. This overrides any rule of law or equity to the
contrary57. The only circumstance that would vitiate the purchaser’s title is fraud58.
However, mere knowledge of the trust or unregistered interest does not constitute
fraud59.

Registered proprietor protected from ejectment

Production of a certificate of title is an absolute bar and estoppel to any action against
a registered proprietor in any suit for ejectment or recovery of land60. The only
exceptions are in the following cases61:

a) The case of a mortgage as against a mortgagor in default;

b) the case of a lessor as against a lessee in default;
c) The case of a person deprived of any land by fraud as against the person
registered as proprietor of that land through fraud or as against a person
deriving otherwise than as a transferee bonafide for value from or through
a person so registered through fraud;

Under section 77 of the RTA, any certificate of title, entry, removal of

incumbrance, or cancellation in the Register Book procured or made by fraud
is void as against all parties or privies to the fraud. However a person who is
not party to the fraud and is who is a transferee for value is protected from
ejectment or recovery of the land from him or her.

d) The case of a person deprived of or claiming any land included in any

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

56
Includes a purchaser of a lease or mortgage and indeed any registered interest
57
This overrules the common law rule regarding notices of unregistered dealings.
58
S. 136 RTA
59
Ibid
60
S. 176 RTA
61
Ibid

9
 This exception is applicable where land which should have been included in
the complainant’s certificate of title is by misdescriptions of boundaries of
such similar error included in a certificate of title of adjoining land. On the
ground the complainant occupies land which is included in another person’s
certificate of title. The complainant can sue to recover the land wrongly
included in another person’s certificate of title.62 Such other person must not
be a bonafide transferee for value.

e) The case of a registered proprietor claiming under a certificate of title prior

in date of registration under this Act in any case in which two or more
certificates of title may be registered under this Act in respect of the same
land.
Under this exception, there is an error where by two certificates of title are
issued in respect of the same piece of land. Example include a situation
where the same land is leased to two different people or where because of
errors in plot references, the same plot of land is registered in favour of two or
more people. In such a situation, the first certificate of title to be lawfully
issued prevails and the other certificate(s) is cancelled.

Purchasers protected

Persons who purchase bonafide and for valuable consideration from a registered
proprietor are protected even if the vendor was registered through fraud or error 63. The
purchaser’s title can only be vitiated under the circumstances set out in section 176 of
the RTA. This legal position radically differs from the law of chattels where a person
cannot pass a better title that he or she has (nemodat quod non habeat)

Courts earlier interpretation

The courts in Uganda and East Africa have consistently interpreted these sections to
uphold the principle of indefeasibility of title. In Olinde De Souza Figuerido –vs-
Kassamali Nanji64 a mortgagor who had signed a mortgage which was not signed by
the mortgagee although duly registered, sued for a declaration that the mortgage was
void as against her and therefore a nullity under Sections 114 65 and 15666 of the
RTA. Sheridan J. construed Ss. 114 and 156 of the RTA and the specific mortgage in
issue and held that the absence of the mortgagee’s signature on this particular
mortgage, which had no clause on which the mortgagee could be sued was not a

62
The first option would be to apply for rectification of tile under part x of the RTA
63
S. 181 RTA
64
[1962] EA. 756.
65
Now S. 115. The section permits a registered proprietor to mortgage land by signing a mortgage in the
eleventh schedule. The schedule provides for the signatures of the mortgagor and mortgagee.
66
Now S. 149 RTA. The section requires signatures to be in Latin characters.

10
matter of substance67. He further held that the requirement for Latin characters in the
then S. 156 should only apply to signatures of “necessary” parties to an instrument.
He therefore concluded that since the mortgage was duly registered it was
indefeasible68.

In re An Application by G. N. M. Mallo69, the transfer of the suit land was forged. The
land was subsequently transferred by the forger to the present proprietor who
mortgaged the same. The applicant then lodged a caveat to protect the interests of the
beneficiaries of the original proprietor. When the mortgagee sold the land upon default
by the mortgagor, notice was issued to the applicant to obtain a court order to delay the
removal of the caveat, the applicant made an application to Court 70. There was no
allegation of fraud against the present registered proprietor and mortgagee. Sheridan
J. relied on Ss. 145 (now 136) and 184 (now 176) of the RTA to protect the mortgagee
and accordingly reject the application.

In Lwanga –vs- Registrar of Titles71, Odoki Ag. (as he then was) invoked Section 136
(then 145) and 181 (then 189) to protect a bonafide purchaser who has purchased
from a Vendor who got registered through his own fraud for which he was even
subsequently prosecuted and convicted. Citing Gibbs -vs- Messers72, Odoki Ag. J.
stated that it was one of the paradoxes of registered conveyancing that the registration
obtained by fraud was void and yet capable of becoming a good root of title to a
bonafide purchaser for value73.

Similarly, in Okello Okello –vs- UNEB74 the Supreme Court protected the title to a
lease which the Appellant had obtained after the previous lease held by the East
African Examinations Board, the predecessor in title to the Respondent, had been
terminated by the lessor’s forfeiture. Since there was no evidence of fraud on part of
the Appellant, it was held that his title was protected by section 56 (now 59) of the
RTA75.

EXCEPTIONS TO INDEFEASIBILITY

67
He also made reference to the present S. 200 (then S. 209) which allows modification of forms.
68
His Lordship made reference to Wamiha Saw Miling Co. Ltd -vs- Waine Timber Co. Ltd, Supra and Gibbs –vs-
Messer, Supra.
69
[1964] EA. 731.
70
Under what is now S. 140 (3) RTA.
71
[1980] HCB. 24.
72
Op. cit
73
Odoki J. came to same conclusions in Robert Lusweswe –vs- Kasule & Another H.C.C.S NO. 1010 of 1983.
74
Civil Appeal No. 12 of 1987, Supreme Court.
75
See also Sarah Karim –vs- Registrar of Titles.

11
Although indefeasibility of title is one of the corner stones of the Torrens system, both
the RTA itself and other legislation provide for exceptions to the principle or strictly
speaking qualifications to the principle.

Exceptions within the RTA

Within the RTA, there are several provisions that qualify the title of a registered
proprietor. The registered title will be vitiated by or is subject to:

a) Title obtained by fraud76;

b) Estate of a proprietor claiming under a prior instrument77;
c) Encumbrances notified on the register78;
d) Recovery of land included in title by wrong description79;
e) Reservations and covenants in the grant or instrument80;
f) Adverse possession of the land81;
g) Public Rights of Way and Easements82;
h) Unpaid rates and taxes83
i) Leases, licenses and other authority granted by the Governor or
84
Government .
j) Interests of tenants on the land85

Commissioner’s powers to cancel or rectify Titles.

Under S.91 of the Land Act, Cap. 227, the Commissioner Land Registration is
empowered to correct and sometimes cancel Certificates of Title86.

Overriding Statutory Exceptions outside the RTA

76
Ss. 64 (1), 77, 136, 176 (c) and 181 RTA.
77
S. 64 (1) RTA; Ssewanyana–vs. - Aliker Martin, C. A. No. 4 of 1990, Supreme Court, unreported
78
S. 64 (1) RTA
79
S. 64(1) & 176 (d) RTA, Rwamutatiri –vs. - Kamono [1978] HCB. 300.
80
S. 64 (2) RTA
81
S. 64(2) RTA. There is even a procedure to apply for and obtain a title by possession - Ss. 78-90 RTA; Nambalu
Kintu –vs- Efulaimu Kamira (1975) HCB. 221.
82
S. 64(2) RTA and S. 71 Land Act, Cap. 227.
83
S. 64 (2) RTA; S. 100 Income Tax Act Cap. 340; Ss. 75-77 and 83-84 Water Act, Cap. 152; Ss. 30, 32 & 33 Local
Government (Rating Act), Cap. 242.
84
S. 64(2) RTA
85
S. 64(2), RTA; Uganda Posts and Telecommunications Corporation -vs- Lutaaya, Civil Appeal No. 36 of 1995,
Supreme Court
86
This section was amended by Act No.1 of 2004.

12
There are a number of statutes that impact on a registered proprietors rights to
own, use and enjoy his or her land or interest therein by curtailing or controlling
such ownership, user and enjoyment. These include:

a) Rights accorded to tenants by occupancy on the land87

b) Rights of spouses to family land88.
c) Controls and restrictions under the National Environment Act89.
d) Restrictions under the Forests Act90.
e) Restrictions under the Uganda Wildlife Act91.
f) Easements and restrictions under the Electricity Act92.
g) Planning Controls93.
h) Restrictions and easements under the Roads Act94

ERODING THE CONCEPT OF INDEFEASIBILITY

There have been several disturbing judicial pronouncements that have had profound
effect on the sanctity and indefeasibility of Titles. We shall highlight a few.

Broadening the Commissioner’s Powers to cancel or Rectify Titles

In Hilda Wilson Namusoke & 3 Others Vs. Owalla’s Home Investment Trust (EA) Ltd &
Another95 the Supreme Court considered the powers of the Commissioner Land
Registration to cancel a Certificate of Title under S.91 of the Land Act in view of the
indefeasibility provisions of the RTA. In that case, the suit property originally belonged
to the 1st Respondent. It was transferred to Magdalen Scott Nambi by virtue of a power
of attorney and on the basis of a Special Certificate of Title. The Appellants were
subsequently registered as proprietors of the suit property as administrators of the
estate of Magdalene Scott Nambi. The original Certificate of Title was still with the 1 st
Respondent.

The 1st Respondent filed a suit to recover the suit land from the Respondents on
grounds of fraud but it was dismissed for want of prosecution. Thereafter the 1st
Respondent successfully moved the 2nd Respondent (Commissioner Land Registration)
to cancel the Special Certificate of Title and the registration of the Appellants under
S.91 of the Land Act. It is this cancellation that was challenged in the High Court. The

87
Article 237 (8) & (9), Constitution of the Republic of Uganda, 1995; Ss. 29-37, Land Act, Cap. 227.
88
Ss. 38A and 29, Land Act, Cap. 227.
89
Cap. 153, Ss, 33-56 and 72-76.
90
Cap. 146, Ss. 3-10.
91
Cap. 200. Ss.
92
Cap. 145, Ss. 67-71.
93
Under the Physical Planning Act, 2010
94
Cap. 358, Ss. 2-6
95
Civil Appeal No. 15 of 2017 (Supreme Court)

13
High Court held that the Commissioner had powers to cancel a Certificate of Title on
grounds of fraud embodied in S.91(2) of the Land Act. This was confirmed by the Court
of Appeal. On a further appeal, the Supreme Court rightly held that the Commissioner
could not cancel a Certificate of Title on grounds of fraud.

However, on the facts of this case, the Court, relying on the affidavit of a Senior
Registrar of Titles, held that the cancellation was on the basis of an error. With respect,
issuing a Special Certificate of Title, when there is an application for it (even when
based on a false power of attorney) is not an error. It is a lawful action under S.70 of the
RTA. Similarly to transfer such a Special Certificate of Title once lawfully issued, is not
an error in itself but a lawful action under S.92 of the RTA. What were alleged to be
errors were actually the alleged frauds with the 1st Respondent had actually raised in
HCCS. 7 of 2013 which was dismissed for want of prosecution. The 1 st Respondent
having failed to pursue and prove the allegations of fraud against the Appellants turned
to the office of the Commissioner to cancel a registered proprietor’s title under pretext of
correcting an error. If this remains the law, then floodgates have been opened to
circumrant the indefeasibility of title principle and the strict requirements to particularize
and prove fraud beyond a mere balance of probabilities96.

Under payment of Stamp duty/Under declaration of consideration

In Betty Kizito Vs. David Kizito Kanonya & 7 Others97, the Appellant and 1st Respondent
were registered as joint proprietors of a property in Muyenga. The 1st Respondent was
the proprietor of some property in Katwe and Kisugu. The Appellant and 1 st Respondent
entered into an oral contract for cross transfer of interests in these lands. The Appellant
had to transfer her interest of the land in Muyenga to the 1st Respondent. She signed a
blank transfer and handed it over to the 1st Respondent. The 1st Respondent was
obliged under this contract to sub-divide the Katwe and Kisugu properties and transfer
some of it to the Appellant. The 1st Respondent breached this obligation but transferred
the Muyenga property to his children, the 2nd to 8th Respondents. The consideration
stated in the transfer was “gift”. In the process of transfer, the 1st Respondent declared
that the property was undeveloped yet it was developed.

On top of finding for the Appellant that there was a breach of contract, the Supreme
Court also held that by not concisely stating the consideration for the transfer, being an
exchange for the Katwe and Kisugu properties, and by declaring that there were no
developments on the land in order to evade payment of taxes and therefore defrauding
Government of revenue, the 1st Respondent committed fraud and the transfer was
accordingly void for fraud.

96
The Supreme Court should when occasion avails itself be prepared to look favorably to highly persuasive
dissenting judgment of Mwonda JSC.
97
Supra

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The Court cited Samuel Kizito & Anor Vs. G.W. Byensiba & Anor98 which held that a
buyer is not a bonafide purchaser where he inserts a lesser figure on a transfer form as
consideration when he actually paid more in order to defraud Government of revenue as
good law.

On the facts of the present case it can rightly be argued that the 1 st Respondent by
transferring the Muyenga property to his children and refusing to transfer part of his own
Katwe and Kisugu properties to the Appellant as agreed, committed a dishonest act
which constituted fraud since the Appellant was cheated of her interest in the Muyenga
property. However, the failure to state the consideration truthfully or the evasion of
payment of taxes cannot constitute fraud in terms of the RTA. Section 176 (c) of the
RTA protects a registered proprietor except if the person challenging the registered
proprietor “is a person deprived of land by fraud” as against a “person registered as
proprietor through fraud” or a person “deriving” from such proprietor (other than “a
person bonafide for value”).

In this appeal, if the 1st Respondent had transferred the Katwe and Kisugu properties to
the Appellant, but understated the consideration and cheated the Government of
revenue in respect of the Muyenga property, the Appellant would not have been
deprived of any property to fall in the category protected under S.176 (c) of the RTA. It
would have been a case of Government claiming its lost revenue.

There are several instances where loss of Government revenue does not of itself
constitute deprivation of property from a registered proprietor. For example if a
registered proprietor’s Certificate of Title is stolen and his signature on a transfer is
forged and the property transferred to a forger, that is a clear case of fraud. If however,
the forger sells to an innocent purchaser who, to avoid payment of taxes, understates
the consideration, such understatement of consideration is not the reason the original
proprietor was deprived of property. The original proprietor should not be able to
recover the property since the subsequent purchaser is protected by S.181 of the RTA.
That section protects a person who purchases bonafide for valuable consideration from
a person registered through fraud.

Indeed, if the nonpayment of taxes to Government is of itself a ground for nullification of

transfers and return of properties to the Vendor, then even Vendors who sold willingly
and for valuable consideration can, if they discover that the purchaser did not disclose
the full purchase price claim back the property!

Accordingly, the open ended “principle” that “by public policy, any transaction designed
to defraud the Government of its revenue is illegal and therefore a title deed acquired in
such circumstances would be void because of fraud” should be revisited and qualified if
98
HCCS. No. 513 of 1982 (Karokora J)

15
title is to remain indefeasible in Uganda. For defrauding of revenue to amount to fraud, it
must be an integral part of other actions which directly lead to the deprivation of land,
and the Defendant must be privy to such deprivation.

Investigations outside the Register

The very essence of the Torrens system is that the register which is state guaranteed is
everything and that there is no need to make searches and inquiries out of the
register99. Unfortunately, there is now growing judicial dicta to the effect that a
purchaser must make inquiries with neighbours, local council officials and other
persons before the purchase. In Sir John Bagaire Vs. Ausi Matovu100, J.M Okello JA.
made the often quoted statement that “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”.

While it is prudent to identify the prospective Vendor, and this can now be done by way
of a National Identity Card or other official document like a passport, it is farfetched to
expect any further thorough investigation of the owner. Other than the owner’s identity
and basic information like address, what other investigation is the purchaser supposed
to carry out and where and how? Is this not the very evil Torrens tried to solve?

Beyond a search of the register and an inspection (or sometimes a survey) of the land
which may entail talking to occupants and tenants thereon, it is inconceivable what
other thorough investigation of the land has to be done. Certainly it cannot involve
investigations of how the Vendor acquired the property as this would defeat the very
essence of indefeasibility of title.

A review of some of the judgments shows the pitfalls of insisting on thorough

investigations beyond the register. In Ranchhobhai Shivabhai Patel Ltd & Another Vs.
Henry Wambuga & Anor101, the 1st Respondent was a liquidator of a Company in a
voluntary liquidation. The 1st Respondent sold the Company’s suit property to the 2nd
Respondent. The Appellants who were shareholders of the Company sued to recover
the property on grounds of fraud. While bribery allegations against the 1 st Respondent
were not proved, Court found that the 1st Respondent had breached his fiduciary and
statutory dates as liquidator.

He had failed to establish the market and forced sell value of the property, had not
conducted a valuation, had sold the property below its forced sale value and had

99
It should be emphasized that in terms of Ss. 37 and 38 of the RTA, the Register Book is constituted by the original
Certificates of Title and no other document corresponds on titles files are not part of the register.
100
Civil Appeal No. 7 of 1996, Court of Appeal.
101
Civil Appeal No. 6 of 2017

16
conducted the sale without a Special Resolution under S. 301 of the Companies Act to
approve an apparent arrangement with a mortgagee of the property done under
S.244(1) (e) of the Companies Act. The issue as regards the 2nd Respondent was
whether the 2nd Respondent was a bonafide purchaser for value.

The 2nd Respondent argued that he was not privy to or aware of the 1st Respondent’s
breach of duty and they were protected by the indoor management rule. The Court held
that the indoor management rule (the rule in Turquand’s case) does not apply if a third
party dealing with a Company has been put on notice or on inquiry as to the apparent
lack of authority. With respect, on the evidence before Court, there was no notice of or
indeed apparent lack of authority.

The 1st Respondent as liquidator certainly had authority to sell. The lack of a Special
Resolution to approve a compromise with the mortgagee was not a matter to which the
2nd Respondent was put on notice. It was a clearly internal matter. To require, as the
Court did, that a purchaser had to investigate and ensure that the liquidator carried out
all his statutory and fiduciary duties in strict conformity with the law is putting too much
of a burden on the purchaser. That would require a legal audit of the Liquidator’s
actions.

Taken to its logical conclusion, even transactions by directors of Companies,

administrators of estates, Liquidators in compulsory winding up and trustees in
bankruptcy would then first require a legal audit of the exercise of apparent authority by
these officials. This would increase the cost of investigation of title and conveyencing.

It is such investigations outside of the register like inquiring with neighbours and local
council officials, who may ask for a fee that will delay and make purchases more
complicated and expensive. That will definitely mean that a Certificate of Title is no
longer conclusive evidence of title.

WHAT IS THE REAL PROBLEM – SOME CONCLUDING THOUGHTS

There is no doubt that there has been an increase in fraud generally and land fraud in
particular. The problem is not because of the protection given to a registered title or the
principle of indefeasibility. Rather, it is a more generalized problem of increased
criminality and its sophiscation on one hand and the laxity with which it is tackled on the
other. Fraud and forgery of all sorts of documents is so pervasive in this Country.

Indefeasibility of title is underpinned by the integrity of the office of titles. It is the

Registrar of Titles who investigates, certifies and registers instruments and titles. One
area that should be strengthened is that of ensuring that in the recruitment, training,
facilitation and protection of the Commissioner Land Registration, his or her Assistant
and Registrars of Title, extreme care and caution is exercised to ensure merit and

17
integrity and the strict observance of the law. In some jurisdictions, the Commissioner or
Registrar General is at the rank of a High Court Judge. It is critical that instruments
presented for registration are meticulously scrutinized and that the officers in charge are
above reproach. They should not be part of the corruption and fraud.

In this day and age, there should be no serious challenge to identity of registered
proprietors. Indeed, they can be required, if there is doubt, to physically appear before
registration is done. This will reduce or eliminate imposters.

The protection accorded to persons who sustain loss because of the misfeasance of
Registrars of Title or fraud by persons who cannot be traced or are dead under Ss. 183,
184, 185 and 186 of the Registration of Titles Act should be strengthened by the
activation of the assurance fund under which assurance of title fees provided for under
S.34 and 35 of the RTA should be collected. In other jurisdictions, monies in this fund
are invested to earn interest so that the fund grows and is capable of paying
compensation to persons who incur loss because of the operations of the indefeasible
register.

While there may be some problems with the operationalization of the Torrens system, of
which an indefeasible title is the hall mark, there has not evolved any better system of
title registration. Any retrogression from the concept of an indefeasible title will reignite
the challenges of costly and lengthy investigation of title and hinder the growth of a land
market (including using land as security) so crucial for economic development.

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