Contents

Jx
Preface xi
Table of Cases xxii
Table of Stotutes xxv
Lis.t of Abbrevialions
I
1. Introduction and Historical Background I
Sources ofUgandan Land Law 2
Background to the tenure systems 1
Fountain Publishers Ltd
P.O.Box488
Mailo tenure !
Freehold tenure 3
Kampala
Native freeholds 3
E-mail:fountain@starcom.co.u g
Adjudicated frecholds 4
Website :rvww.fountainpublishers.com
Customary tenure 5
The Land Refornr Decree 6
Distributed in Europe, Norlh America and Aushalia by African Books Collective law
Constitutioial reform of land tenure
(ABC), The Jam Factory, 27 Park End St Oxford OXl lHU, United Kingdom. Tel: 44
7
(0) 1865-726686, Fax:1865-793298 2. Land OwnershlP 7
Government land 7
@ John Tamukedde Mugambwa 2002 Fr'eehold tenure 8
Firstpublished2002' Reprint 2006 Leasehold tenure 9
Conversion of leases into freehold 1d
AII rights reserved. Nopartofthispublicationmaybe reproduced, storedinaretrieval Mailo tenure I0
system or transmitted in any form or by any means electronic, mechanical, 'Lawful' and' bona fide' occupants l0
photocopying, recording or otherwise without the prior written permission of the 'Lawful' occuPant l2
publisher. Bona occupant
fide .14
Non-bonafide occupant 14
- ISBN 9970 0Z 287 3 Tenant bY occuPancy 2l
Termination of tenancy by occupancy 21
r234506'05040302 Customary land tenure 23
Certificatt of customary ownershiP 23
Catalo guing-in-P ub I ication Data Piocedure for aPPlication 25
Effect of a certificate )A
grant of freeholds
Mugambwa, J6hn Tamukedde, Conversioh of customary tenure and 30
Principles of land law in Uganda/John Tamukedde Mugambwa - Kampala: Fountain Communal Land Associations 32
Restrictions on ownership of land
by non-Ugandans
Publishers, 2002
_ p._ cm
Settlement
33
Includes index ISBN 9970-02-287-3 3. Land Adnrinistration Control and Disputb 33
L Property larv - Uganda I. title Land administration 33
343.02'096161 - dc 21 The Uganda Land Commission 5J
Land Futid 34
District Land Boards 34
Functions of the Board 35
Land Cornrnittees 36
Control over land 36
OwnershiP of land bY non-citizens 37
Protection of familY land 38
Control over land use 38
acquisition of land
.ComPulsory
lrl

L*
 86
Compulsory acquisition under the Land Act 40 Remedies for dePrivation of land 86
Compeusation'from the Land Fund 4l' Ejectment 87
Land Disputes Settlement 42 ComPensation
Land Tribunals 42 90
District Land tibunals 42 6. Leases 91
Sub-iounty, Urban District and City Division Tribunals 44 L.ur., und licences distinguished 9l
Alternative Dispute Resolution 45 ' Essential features of a lease 91'
Customary dispute settlement and mediation 45. Duration 92
Mediator 46 Exclusive Possession 94
Transitional jurisdiction 47 Creation of a lease 94
Contract 94
4. Ceneral Principles of Land Law 48 TenancY bY estoPPel 95
The doctrine of tenure and estates 48 Registration requirement 95
Doctrine of tenure 48 'l'r' Unregistered lease 9'1.
tenant
Doctrine of estates 48 nigf,[ ,l0 obligations of a landlord and 91
. Relevance of the doctrines of tenure and estates 49 Conditions and covenants 98
Meaning of land 50 ExPress covehants 98
Rights, above the. surface 50 { Covenants implied under
the general law against the landlord
99
Rights below ttle surface 51 imPlied against a tenant
Covenant -under 100
Fixtures 51 i"r."."o it"plied lhe Registration of Tiles Act l0l
Test for a fixture 52'*::$\-'" Sublease and assignment 102
Right to remove fixtures 54 Enforcemenf of covenants in
a lease
102
Equitable and legal interests in Land 55 Assignrnent 102
Origin of tlie dual system 55 Sublease 103
Fusion. of the courts of law and equity 56 .llegistration of transfer 103
Nature of equitable interest 56 Assignment of a reverston 104
Creation of equitable interests 57 Remedies for breach of covenant tQ4
Priorities 58 Tenant's remedies 104
Priorities over registered land 60 Landlord's remedies 110
Adverse possession and limitation 61 i.trninuti,in of leases other than by forfeiture
110
The concept of possession 6l Effluxion of time 111
'Notice
Powei to evict squatters 6I to quit 112
Lirnitation period 62 Strrender 113
Consequences of lapse of time 65 Merger I13
Adverst possession, prescription and acquiescence 67 Lessor's rights to fixtures
Prescription 67 lr4
Acquiescence 67 1. Mortgages 114
Introduction 115
5. Registration of Titles 69 Creation of a mortgage 115
Introduction 69 Registered mortgage 115
Scheme of the Act 69 Equitable mortgage 116
by occupancy
Essential features 70 Mtrtgug" of custonrary land and tenancy ll6
. Title by rcgistration 70 Remedies. of a mortgagee 117
Unregistered' instruments 71 Action on a Personal covenant ll'l'
Indefeasibility ol titlc 73 . Possession Il8
Exceptions to in(efcasibility 74 ApPointnrent of a receiver r19
Exceptions within the Act 74 Pbwer of sale ' 123
Overriding statutory exceptions to indefeasibitity 8r Foreclosure li5
Jodicial inroads - rights in personan, 82 Rcmedies of equitable mortgagecs : -^-^.,. .124
Pruection of unregistered interests by caveat 83 Remediesof.mortgageeofcustorirbrylandandtenancybyoccupancy
 i
contents la
Principles of Lond Law in Uganda
i

159
Discharge of a mortgage by payment 125 Agents for sale of properties to Ugardan citizens I
government 1s9
Equity's protection of a mortgagor 125 Vesting of the properties in the board and
160 L:
CollateraI advantage 127 Constitutionality of the expropriation
160
Other.grounds for judicial intervention 127 Management <if expropriated property
161
Compensation to deParted Asians
162
8. Servitudes over Land 129 Reversing the exProPriation 162
Introduction t29 Jhe pressr'rre for rePossession 162
Easements t29 if,. pu.po.t of the Expropriate() ProPerties Act' 1982' t62
' Essential features Properties to which the Act applies
Dominant and servient land
129
129 n.-'r".,ing of property in government and nutlification
of dealilrgs ,,164
165
Crmtion of easements 131 Dealings bY the minister
| 6'7
Easement by Statute 131 Dealing with incumbered properties' 167
Extinguishment of easements
Profits i prendre
136 Present tenants , t61
136 Compensation 168
Restrictive covenants 138 Appeal from the minister's decision I68
Enlorcement of covenants at common law 138 Conclusion
Enforcernent of covenants in equity 139 169
Scheme ol development 140 Index
Restriclive covenants and the R77 l4l
Remedies for branch of restrictive covenants 141
Extinguishment of restrictive covenants 142
Licence 142
lypes 0l llcences 142
Custorn:rry rights 144
t
9. Co-trvnership of Land 145
Introduction 145
' Joint tenancy t45
Thc four unities 145
The right of survivorship (jus accrescendi) r46
Tenancy in common 147
Creation of joint tenancy and tenancy in common t47
Common law .147
Equiiy 747
' Creation ol
co-ownership under the RTA 149
Right of enjoyment amongst co-owners ,150
No liabilities for trespass or'occupation rent 150
No compensation for improvements or repair 15t
No liability to account for profits 152
Termirration of co-ownership t52
Termination of joint tenancy 152
Termination of tenancy in common 154
Practical application of co-ownership 155

10. Expropriated Property 156

Historical background r s6
Asians' econonric dominancc 156
Corredtive measures 156
'I I

he expropnatron 158
Cancellation of entry permits 158
Prohibition of new liabilitiesl58
Dcclaration of assets 158
lents vu

r59
Preface
1s9_
1 60--
160 In 1998, the Ugandan Parliament enacted the Land lcr, which substantially changed the land
161 tenure iaws of the country. The Uganda Land Act Implementation Project, which was sponsored
t62 by the British DeparEnent for International Development ("DFID"), commissioned me to write a
162 land law "handbook" to bo used for the uaining of the members of land tribunals established under
162 the Act. (The Act gives l4nd tribunals exclusivejurisdiction over all land disputes.) The handbook
162 was supposed to be a fifty-pagc description of the Act to assist members of the trrbunal, most of
164 whom will not have legal qualifications, to understand the Act, It soon became obvious to me that
165 a handbook requires a textbook on Ugandan land law that readers can
refer to for more informatiop.
t67 Such a textbook I found wanting
t67
l6't It is tnre that there are several well-known English textbooks, used by the Iegal profession and law
168
students; however, I did not consider them suitable because they deal with land law in England..
168
Although Ugandan land law is based on English land law, it differs from English law. The social-
economic and political differences between the two countries, has in some instances, resulted in .
169
dissimilar legal principles. The fact that the land law of both countries is increasmgly statutory
based, will make the gap between their legal regimes even wider. The case in p oirti\ the Land Act,
which uuique to Uganda. Ctearly, English textbooks are no longer suitabie tools for the teaching
is
and the understanding ofUgandan land law. For this reason, with the blessing of Professor Patrick
McAuslan of the University of London, then DFID Uganda Land Act Implementation Project
administrator, I decided to write this textbook in lieu of a handbook.

In addition to the Land Act, the book deals with all major topics which traditionally are covered in
land law textbooks. As much as possible the book uses Ugandan cases and materiais to explain
and illustate the legal principles. Legal materials from otherjurisdictions are used where they are
particularly useful in explaining the law in Uganda or for comparative purpos5:s. Readers will notice
that the book refers to several Australian cases, which is unusual in.Ugandan courts. The refer-
ence to Australian cases is justified on the grounds that the Regtstation of Ttles Act (cap 205),
which is one of the major land legislations in Ugauda, is based on the Australian Tonens System
of land registratiotr. It makes more seuse for the Ugaridan courts to refer to the Australian case law
for assistancc in the interpretation of this Act thar to the English common law cases, as tends to
be the practice.

I make no pretence that this book is dehnitive of Ugandan land law. Rather, it is a platlorm formore
and, hopefully, better textbooks on Ugandan land law. In conjunction with this book, I'have
compiled a cases and materials book entitled Source Book of Uganda's Land Lav. The latter
contains extacts of mainly Ugandan cases and other extracts on land law in Uganda. The rwo
books are intended to complement each other.

Many people have assisted me in various ways to write this book. In partitular, I wish to express
my gratitude to the following: DrAlex Amankwah, Evarist Mwesigy'e, Professor McAuslan, Will-
iam Johnson, Rupert Johnson, An&ew McRobert, A K Lutaaya, Robina Lutaaya, Bpatrice Kavuma-
Kiwanuka, Peter Walubiri, Elijah Wante and Harriet Byenkya. In addition, I wish to express my
appreciation to the following law students for their untiring research assistance: Flavia Nabakooza,
Rashida Batanulwa and Joseph Isanga (Makerere University); Elvis Onyom, David Markovich-,
Darrel Chia, Elouise Dellit (Murdoch Universiry) and Sanyu Mugambwi (UTS). I am also grateful
to a number of institutioos for their suppor! in particular DFID, for its sponsorship of the original
project, ttre Uganda Law Developmeut Centre, for allowing me unlimited access to its library, and

1
x Principles of Land Law in lJganda
,!19.. "
s,
the School of Law, Murdoch Tlfuilr of Cases t
University, for material and morar support
I wish [o express my gratituare to Julieiand of my resemch- Finarly, ;t-
Needless to say, I am solely responsible
,r r"r\ p.rr, f"r their encouragiment aad patiencc. t.

for any irf.if..tlon, in the book. A-!t DlEx rd gm lrlvEulnil $gq EA t,f 98, 104 xT,
Admie v \[n|+.aE,.FIEqEE*.{E 83 *--
John T, Mugambwa AG Yagh $Str 3 lrEl r$l
Scarrl= ; iEL) 14s,146 +-

School ofLaw A.G v Jrobs SEilt [I48 : G }tI 59 a

Murdoch University Ahmed Fzrah ao& v Er=r* CS Io 6& d 1993 (unreported)

ad 87,1 09
Perth, Western Australi; Aldin v Latimer CId IftiH & Co- L, IIBryJ 2 Ch 437 99
2002 Alibhai and aaothcr v Krrt ad nortF CA )io 52 of 1995 72,7 5, 97
Alibhai and ottrers v The Chief Rcgirtrrr sfTidE+ !fisc Appo
No. 60 of 1992 108
Allen v Roughley (1955) 94 CLR 98 64
Amodu Tijani v Southern Nigeria [1921] 2 AC 399 48
Anderson V Bowles (195 1) 84 CLR 3 10 at 325 105
Appah v,Pamcliffe Investments [1964] 1 WLR 1064 92,93
Armour v Pcnrith Projects Pty Ltd [979] I NSWLR 98 108
Ashburn Anstalt v Arnold and another [1988] 2 All ER 147 91,742
Asher v Whitlock (1865) LR I QB I 61
Assets Company Ltd v Merc Roihi [905] AC 176 75,76,90,9
Attorney-General of Ontario v Mercer (1883) LR 8 App Cas 767 48
Austerberry v Oldham Corporation (1885) 29 Ch D 750 131,138
Australian Hi-Fi Publications Pty Ltd v Gehl 11979)2 NSWLR 619 78
Babiruga v Karegyesa and others D.R. CA No MKA 13 of 1993 (unreported) 11, 52, 61
Bahr and another v Nicolay and others (1988) 164 CLR 604 83
Balbir v Panesar ll9'72)F,A94 111
Barclays Bank (1, Ltd v Northcote and another C.S. No. 1467 of 1974
(unreported) 117, 123, t2
125
Barclays Bank D.C.O. v Gulu Millers Ltd [1959] EA 540 56,58,69,1i
116,123,11
Barclays Bank D.C.O. v Patel [970] EA 88 (CA) 133,134, l3
136
Barclays Bank of Uganda Ltd v Livingstone Katende Lutu CA 22 of 1993
(unreported) 119
Barry v Haseldine 11952) 2 All ER 317 133
-t
Barry v Heider (1914) 19 CLR 197 72
Baxter i,'Oaks Properties Ltd [1965] Ch 816 t4t
Bejoy Chundra v. Kally Prosonno (1878),4 Cal.327 64
Berkley v Poulctt (1976) 241 EG 9 1 I 54
Bernstein of Leigh @aron) v Skyviews and General Ltd [1978] QB 479 50, 51
Berry v Heider and another (1914) 19 CLR 197 7l
Bidandi Ssali v Attorney General, Civil Suit No. 834 of 1989 164
Biggs v Hoddinott (1898) 2 Ch 307 127
Billson and others v Residential Apartments Ltd [1992] 1 All ER 108
Bligh v Martin [1968] I WLR 804 63
Boyer v Warby U9531 I QB 234 104, 105
Boyes v Gathure [1969] EA 385 84, 85
Breskvar and another v Wall and others (1971) 126 CLR 376 87
British Anzani (Felixstone) Ltd v Intemational Marine Management
(uK) Ltd ue80l QB 137 73, r04
Brocklebank v Thompson p9031 2 Ch 344 144
 Table o{ Cases xiii
xii Principles of Land Law in Uganda

62
Browne v Flower [9] l] I Ch 219 13l E.R Ives Investnent Ltd v High [1967] 2 QB 379
and others
,04 -- BryaDt v Foot (1867) LR 2 QB l6l 134 East African General Insurance Co Ltd v Ntende
(1979) HCB 225 (uffePorted) 147
CS No 1387 of 1975;
_
Buckbyv Coles (1814) 5 Taunt.3ll 136
146 Buckingham City Couocil v Moran U969)2 All ER 225 63 Eastem Radio Service and another v R.J. Patel t/a Tiny
105, 107,110
Buganda Timber Co. Ltd v Mulji K Metha [961] EA 477 115 Tots and another [1962] EA 818
135
09 Bull v Bull [1955] I QB 234 145, 147, 151 Eaton v Swansea Waterworks Co (1851) 17 QB 267
Edigintou v Clark U9641 I QB 367
65
Burgess v Rawnsley [975] I Ch429 153
140, i41
75,97 Butagira v Namukasa CA No. 69 of 1989 108, 109 Elliston v Reacher [1908] Ch 374
54
Bweya Steel Works Ltd v National lnsurance Corporatiotr CS No 63 Elwes v Maw (1802) 3 East 38; 102 ER 510
302 114
of1985; [985] HCB 58 90,92, 110, English, Scottish & Ausftaliau Bank Ltd v Phillips (1937) 57 CLR
I KB 290 93,94
111, l12 Errington v Errington and another U9501
v Estoyo & another [1973] EA 388 (K) t44
Byaruhanga v Barclays Bank ofUganda Ltd CS 1327 of 1977 (rtnrspelr6l 115 Esiroyo-PeroleurnCo
Calverley v Green (1984) 155 CLR242 148, 149, 150 Esso Ltd v Harper's Garage (Stourport) Ltd U9681 AC 269 127
140
)3 Calvert v Tate Argus 8th August 1867 79 Ex Parte Leathes (1833) Ch 112
(PC) 126,127
Campbell v Holyland U877)7 Ch D 166 t23 Fairclough v Swan Brewery Company Limited [1912] AC 565
t42 Canas Property Co. Ltd v Television Service Ltd [1970] 2 QB 433 108 ( Fairweather v St Marylebone ProPerty Co. Ltd [1963] AC 510 65

Fcderated Homes Ltd v Mill Lodge Propcrties Ltd [1980] I WLR 594
140
Capelinha v Marchese Holdings (1995) 3 SR (WA) 261 t07
84
/6, 80, 8', I
Caunce v Caunce [969] ALLER722 59 Femandes v Houstein (1963) 4 FLR 355
Chan and another v Cresdon Properties Limited [1989] 168 CLR242 72,97 Francis v ibitoye (1936) NLR I
5i
lll Fraser v Walker 569 81,83,86
138 Chhagan v Manani [1964] EA 71 [1967]/'C
Bun (1874) LR 9 CP 208 104
Citamong v Olinga [1988] HCB 86 36 Freeth v
'G 126
t2,61 Citamong v Olinga CA No 104 of 1982; (1985) HCB 86 (r'nreported) 29,62,67,68 A Investnents Pfy Ltd v Standard Insurance Co Ltd [1964] WAR 264
G and C Kreglinger v New Patagonia Meat Storage Co Ltd [1914] AC 25
127
City & Metopolitan Properties v Groycroft [937] I WLR 1085 103
City Council of Kampala v Mukibi U9671 EA 368 ll,17,72,92, G Colegrave v Dias Santos 107 ER 3 1 I 54

96,101, 102 Gabriel Michel and another v Khoury (1944) l0 WALR 286 154,155
123, t2' City Council of Kampala v Mukubira and another [1968] EA 497 (U) 92,107, ll0 Gaskin v Balls (1879) 13 Ch D 324 142
City Council of Kampala v Odido CS No 232 of 1969 6l Gatare v Parkash Kaur and others HCCS 106 of 1995 (unreported) 81

58, 69, I l Cleaver v Mutual Reserve Fund Life Association [892] I QB 147 154 Genrich v Maitland Holding Pty Ltd [1982] Qd R 58 84
,'123, t2, Clifton Securities v Huntley [948] 2 All ER 283 lll Getobed v Pridmore (1970) I l5 Sol Jo 78 2t
,134, 13 Cobb & another v Lane [952] I All E R 1 199 62 Giella v Cassman Brown and Co' Ltd [1973] EA 358 t22,121
Colchester Borough Council v Smith [991] Ch 448 62,65 Gill v Lewis (1956) 1 AU ER 844 109
Corin v Patton (1990) 169 CLR 313 153 Gokaldas Laximidas Tanna v SR Rosemary Munyinza Civil Appeal
Crabb v Arun DC il9761 Ch 179 52 No. 12 of 1992, Supreme Court [1994-5]; HCB 53 82,164
Craue v Monis [965] I WLR 1104 93 Goldsack v Shore [1950] KB 708 9l
Crow v Wood [1970] 3 All ER 425 131 Gomba Marines & Contractors (Ltd) v Kiwana Misc. Appn' No' 1318/93 108, 109
Cruse v Mount (1932) All ER 781 99 Grangeside Properties Ltd v Collingwood Securities Ltd et al 11964l
Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] Ch 948 t2t 1 VrLR 139 r25
Custodian of Expropriated Property v Tedep (1964) CLR 3 I 8 144 GreenwoodvBennett [1973] I QB 195 52
51 Dalton v Angus (1881) 6 App. Cas 740 67, 134, 135 Grigsby v Melville U9731 3 All ER 455 131
Davies v Davies [1983] WAR 305 154 Grindlays Bank (U) Ltd v Edward Boazi CA No 23 of 1992 (Supreme Court) 118
De Souza Figueiredo v Talbot and arotber [1961] EA 167 (CA) 116 Grymes v Boweren 130 ER 1349 54
Dennis v McDonald [981] 2 AU ER 633 t5l Guaranty Discount Co. Ltd v Credit Finance Corporation Ltd &
Desai v Cooper (1950) KLR 32 92,93,94 another [1963] EA 345 115
Di Masi v Piromalli [980] WAR 57 78 Haji Musa Magala v Ondowa HCCC 360 of l97l 108, 109
, 105 Dickson v McWhinnie [958] SR (NSW) 179 84 Hanak v Green [1958] 2 QB 9 104
85 Dolphin's Conveyance, Re, Birmingham Corporatioa v Bodea [1970] Hansraj Thakkar v The Vanik Mahajau [1960] EA 208 131
l ch 654 t4l Harding v Crethorn 170 ER 278 100
Donoghue Y Stevenson [1932] AC 562 t?l Harmer v Jumbi (Nigeria) Tin Areas Ltd [192U I Ch 200 64
104 Dr Nur Illahi Vo Nur Mohamed v Patel and others 1956 IEACAI E0 110 Hasaoali Mamuji v Dar & Sons (1935) 32 EACA lll 79
Driscoll v Church Comrnission for England [957] I QB 330 108 Hatim y Mobsin Bin Saleh [95?] EA 486 94
Duke of Sutherland v Heathcote [ 892] I Ch 475 t16 l1? Hayward v Chaloner [1968] I QB 107 z6
xiv Principles ofLand Law in Uganda ldole o) vases x\

Haywood v Brunswick Permanent Benefit Building Society (1881) Kamanyirc v Shndard Baok (Ll Ld f gfi EG 8: 100,104, 105,
8QBD403 111
139
Hemming v Stone Poges Golf Club [920] lY,B720 (ti) I-tt Cl' No U of lW2 (unieported) 73,7 5
106 Kampala Bottles Ltd v D*nanico j{r-
iianjee Naranie: Ltd v Tolsidas Dharmsti ffiry
Henderson v Eason (1851) 17 QB 701 [1965] EA 94, 95
150, 152
Henderson v Squires (1869) LR4 QB 170 Corpary (f949) 16 EACA 15 92
100 ianmat Ali v Champion Shoe
160, 108
Hill v Tupper (1863) 2H & C l2l;159 ER 5l 9t ,129,130 irrru;o v Rcgistrar of Titles Misc' AFF'n' No' 5l of 1993
HcB 18737 29, 61,72,17,
Hodgson v Marks U9711 Ch 892 53 ru,u,lt"*" v Katwirernu anrl anothcr CS No 2 of 1973; u977] 83,84,97
Holland v Hodgson (1872) LR 7 CP 328 65 ,66
2
Hooke v Holland [1984] WAR l6 Kawalya-Kagwa v Registrar of Titles [1974] EA
86 481
of (unreported) 60, 70,75, 83,
Hotel International Ltd v The Administrator of thc Estate of the Late Kazzorav Rukrba CA No 13 1992
85
Robert Kawma CA No 37 of 1995 70,75,77
101
Hudda & Ors v Nyanza Saw Mills (1947) Ltd & Ors High Court Keeves v Dean [1924] I KB 685
Miscellaneous Application No, 46 of 1987, unreported 160 iriton , ImpeJal Tolacco Co. of Great Britair and Ireland [1957]
50
Hulme v Brigham U9431 KB 152 54 2 QB 334
98
In Re: (An Application by) Bukoba Gymkhana Club (1963) EA 478 39,66 Kenny v Preen [1963] I QB 499
(1988-90)
In Re: Foley (Deceased); Public Trustee v Foley [1952] NZLR 702 150 ff,uJi. lutno et al v Abdui Juma Martin CS No 951 of 1990; 85
In Re: Gibbs & Holder Brothers & Co. Ltd U9251 Ch 198 102 HCB 154 (unrePorted)
6 ULR 47 106
In re Ivan Mutaka Misc C No 81 of 1976 (unreported); U9801 HCB 27 87 Khoja Shia Jarnat v Norman Godhino (1936-51)
(19 6) 23 EACA I 92 172
In Re: Refund of Dues under Timber Regulations [ 1935] AC 1 84 165 fititf,oi N Mistry v Abdulla Mohamed 5
143
AC 54
In the Matter of Ruzhwengyibwa and In the Matter of Ruzigana Misc. fing u Out i,l A[Ln & Sons, Billposting Ltd [1916] 2
C No 48 of 1976 (unreported) 29 firJ" pru*ru and others v Kiu Ranching and Co-operative Society (1982-8 8)
67,78
Indushial Properties (Barton Hill) and others v Associated Electrical 1KAR 746
148
Industries Ltd [1977] 1 QB 580 94,95 Kitiiza v Registrar of Titles Misc. Appn' No 82 of 1977 106, 108, 109
Intemational Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd Kiwanuka-Musisi v Seggane U9731 EA 561
D 441 126,127
[1986] 1 Ar1 ER 3210 t02 iiigt otriag. Estate Trust Limitedv Byrne and others [1939] Ch
Court'
Inwards v Baker [1965] I All ER 446 t43 ioflni u Saiwant Kaur Civil Appeal No' 22 of 1995' Supreme
163
Ismail Jaffer Alibhai and others v Nandala Harjivan Karia and another unreported
37
CA No 53 of1995 (unreported) 83 Kulubya v Singh [1963] EA 408
94, 86
Ittappan v. Manavikrama (1897) 21 Mad. 153, p. 159 64 fop.ia rupei vkey*est Construction Pry Ltd U9901 3 WAR 419
iuisctt v Tiraber Oplrators and Contactors Ltd [1927] 1 KB 298
136
Jacobs v Seward (1872) LR 5 HL 464 150
76
Jaffer Alibhai and 2 others v Nandala H. Kaira and anothcr Civil Appeal Kyurr"v Eunice Busingye CA No 13 of 1990 (unreported)
84
No. 53 of 1995, Supreme Court, unrepoded t64 La Martina v PennY U9681 SASR 4l
91,92
Jafler Brothers Ltd v Bagalaliwo, Civil Appral No.43 of 1997, unreported 165,166 Lace v Chantler t194al 1 All ER 305
148
Jafler Brothers Ltd v Bagalaliwo, High Court Civil Suit No. 3 1 of 1995, Lake v Craddock (1733) 3 P Wms 158; 24 ER 1011
66
unreported Lake v Jones (1889) 15 VLR 728
165
Jakana v Senkaali CS No 491 of 1984 (unreported); U988-901 HCB 167 n6,124 Lavery v Purscll (1888) 39 Ch 508
150,151
Jama Noor Shakiya v Hassanali Ahmed Jusub (1965) EA 241 G.f) 94
(1???)-1^0-6 ALR 595 85
James lones & Sons Ltd v Earl of Tankerville [1909] 2 Ch 440 765, 137, 143 Ler"os Pty Ltd v Teiara Pty Ltd & another
tiverpool Corporation v Coghill & Sons Ild ll?M-t Ch 307
135
James v Stevenson [1893] AC 162 96,64,78,136 75
Loke Yew v Port Swettenham Rubber Co' Ltd U9131 AC
491
Jandu v Kirpal and another U9751 EA 225 (K) 64
51,61, 107,
Jani Mohammed Jaffer Ltd v Khemisa Senya, High Court Civil Suit No. 829 Lomolo v Kilembe Mines Ltd cS No 395 of 1976; (1978) HCB 157
67,68
of 1992, unreported 166
139, 140
Jennings v Ward (1705) 2 Vern S20 127 London City Council v Allen [1914-15] All ER Rep 1008
Lugogo Coifee Co (tD Ltd v Slngo Combined Coffee Growers
Lrrl CS
Jones (AE) v Jones (FW) U9771 l WLR 438 150
97, 106, 107,
Jones v Carter (1846) 15 M&W 718; 153 ER 1040 t07 No. 554 of 1973; U9761 HCB 92
108, 109
Jones v Pritchard [1908] 1 Ch 730 131
2,20
Jones v Smith (18a1) I Hare 43; 66 ER 943 59 Lukwago v Bawa-Singh and another U9591 EA 282
t49
Jones; Farrington v Forrester [1893] 2 Ch 461 129, l5l Lumu v Sood CS Nb 1541 of 1972, unreported
15
Juma v Habibu U9751 EA 108 (T) 113 LusweswevKasuleandCouliballyCSNol0l0oflgE3(um?oi1trd)
57
Kalani v Kaur CA No, 22 of 1995 tt2 Lutakome v Sentongo (1988-90) HCB 95
Kalsi v Comrnlssioner of Lands U9581 EA 367 110

t
 'lable oJ Lases xYrr
s
L
l Lutaya v H.G. Gandesha & Anor High Court Civil Suit No. 860 84
lr CS No 887 of 1988
15, of 1982; [986] HCB 46 163, 165 Namusisi aud others v Ntabazi - 83
1 another CA No 53 of 1995 (unreported)
Lwanga v The Registrar of Titles Misc. Cause No 7A of 1977; (1980) i.iira.f. n*j*an Karia and
ffi;;;darioat.v'' g;
EA 648 (K) 100,104
$
i HCB 24 (unreported) 73,87 trl Ltd v P'T' Punater [1e65]
Ac 104
}l i Lysaght v Edwards (18?6) 2 Ch D 499
1996
57, 58 i#il a;;;. Lti v Panelpina (Nor*re1)-rld.Uesll
Manure io v Donald (1859) 4 H & N 8
675
131
i Makerere Properties Ltd v Attorney General CA No 36 of 82 ffiIIi G,.arantee Sayani v Edward Mperese Nsubuga CS
Makerere University v St Mark Education Ceotre and another CS li.rr"ilHassanali 73,86, 166
7, No 378 of 1996 77 No 364 of 1993 (uurePorted)
ULR 31 61,70
Makumbi (Mrs E) & another v Puran Singh Ghana & another [1962] EA 331 78, 129 Ndiseiierawa v f'*u fi'iio and Sabane Kubulwamwana (1953) 7
/6
Malayan credit Ltd v Jack chia-MPH Ltd u9861 AC 549 (PC) 148 N.fion t Hughes [1947] VLR 227 144
83 Malzy v Eicholz [1916] 2 QB 308 98 iir* *mot", Corporation v Mellor [1975] ch 380- & s Ltd [1982] I QB 1145 54
corp-v
Management Committee of Rushasha Primary School v Nkorenta C.A. New Zealand Gore**entProperty {^N-{ 83, 85
MKA ll/1993 (unreported) 77 nii,rti, vr*iri Nyanzi HCCS No 0434 of 1996 (unreported)
t27
Mancatter Dcvelopmcnts Ltd V Garmansa Ltd [1986] QB 1212 55
90,110
Marshall v Green (1875) I CPD 35 138 i.i;;;;;.", Mukiibi cANo' 103 of le?7; [1e78] HCB
162
No' 40 of 1995'
Martin v Martin (1959) 110 CLR 297 149 ilorai"Ct r""la Walji v Drake Semakula Civil Appeal
r64
Matambulire v Kimera CA No 37 of L972 (urueported); U9751 HCB 150 3, 114, l16, Supreme Court, uffePorted
tr7,t23, t25 . N;;", Godhino v viruni cc224 of 1g38, High
court Digest P. 256 105
141
Matovu and others v Sseviri and another CA No 7 of 1978 (unreported); 47
Norton V Kilduff (1974) QDR
174 v Whipp (1884) 26
[979] HCB 30,7s NoJ.ro Counties of Engiand Fire lnsurance Co 58,59, i14
Matthews v Smallwood [1910] I Ch7'17 ll0 ch D 482
lULR37 lll, Co v Whipp Co (188a) 26
Mayanja-NkangivNational Housing Corporation U972) 94, 153 Northern Counties of England Fire Insurauce 199
Mayfair Property Co. Ltd v Johnson U8941 I Ch 508 154 Ch D 482 SuPreme Coult, uuePorted 106
Mbazira v Abasagi Nansubuga CA No l4B of 1992; (1992-93) HCB 2.ll 62 NtoUugo and another Mutawe
(19?4) EA 487 (CA)
144
109 Mclemon v Connor [1907] 9 WALR l4l 133 Obicro V OPiYo et al [1905] Ch 538
2
l5
McManus v Cooke (1887) 35 Ch D 681 58 Oiioau o. douza V Kassamali Namji U9621 EA 756
85
Mercer v Denne [905] 2 Ch 538 144 Olojo V Rajab CS No 1241186 (unreported)
Mercier v Mercier [903] 2 Ch 98 149 Oiipu V ttir,t u-*.a Rashid Punjani Civil Appeal No' 5 of 1995'
Midland Rly Co v Miles [886] 33 Ch D 632 133 Supreme Court, unrePorted
163
98,104
Miller v Encer Products Ltd [956] Ch 304 131 Ortr", Mukasa Ci lto tOz of 1964, High Court
Digest' p 514
Miller v Minister of Mines and another [963] I All ER 109 82 P&A Swift Investments (a frm) v Combined English Stores Group
102
i Mills and another v Stokman and another (1967) 116 CLR 61 138 PLC [1988] 3 WLR 313
94,95
{ Mills v Stockman (1967) 116 CLR 61 136, 137 Pardhan Jivraj v Dudley-Whelpadale (1920-29)
3 ULR 193
't5
i Milmo v Carreras [947] KB 306 at 310 l0l Patel v Lalji Makanji U9541 EA 314
{
!
Milroy v Lord (1862) 4 De GF & J 264;45 ER 1185 153 Patzak v Lyuon u9s4l wAR 532
187
61,65
f.
Mobamed Mohamedi v Athman Shante [1960] EA 1062 127 Perry v Clissold [1907] AC 73
5'1,59
I Moore v Ullcoats Mining Co Ltd [1908] 1 Ch 575 107 Pilcher v Rawlins (18'12)7 Ch App 259
I Morley v Bnd (1798) 3 Ves. 628; 30 ER 1192 147, 148 Plimmer v Mayor of Wellington (1884) 9 AC 699
143

Moule v Garrett (1872) LR 7 Ex 101 103 Poole's Case (1703) I Salk 368; 91 ER 320
54
72,95
' MpalikamanyavSempiiraCSNo5Tl of 7976(unreported) 154,155 Popatlal Hirji v L.H. Lakhai & Co (EA) Ltd [1960] EA
437 (II)
Mubiru v Uganda Credit & Savings Bank (1978) HCB 109 ll7,l2l,l22 Powell v McFarlane (1977) 38,P& CR 452
62
[07, Municipal District of Concord v Coles (1906) 3 CLR 96 84, 85 Progressive Mailing House fry Ltd v Tabali Pty Ltd
(1985) 157 CLR 17 104
100
Musisi v Grindlays Bank (U) Ltd and others CA No 37 of 1995 (unreported) 75 Proudfoot v Hart'(i890) 25 QBD 42
Musoke Bafirawala v Jogga CS No 33 of 1973; (1976) HCB 26 (unreported) 52,64,65 prudential Assurance co. rtd,London Residuary t19921 3 All ER 504 90, 91
ULR
Musumba v Haji Kasaka and Mbarara Auction Mart (1971) I 105, I I I Public Trustee v Evans [1985] NSWLR 188
2
154
107, Muwereza v Mbusye CA No I 18 of 1975 (unreported) 66 PyraliAbdulResulEsmailvAdrianSibo,ConstitutionalPetitionNo.
9 Naluswa v Luswabi Misc. C No..5 of 1974 107,108 9 of 1997, Constitutional Court, unreported
t61
Nambalu Kintu v Efulaimu Kamira CA No 26 of 1973 (unreported); I KB 117 111,112
Queen's CIub Gardens Estate Ltd.v Bignell U9241 92,93,142
[1975] HCB 221 t2,r3,62,64,, Radaich v Snith (1959) 101 CLR 209
65,66,67,.79,.- 63,64
. Rains v Buxton (1880) 14 Ch D 537
t12
11,1
RajanNanji v Jadowji Dewji I EALR 9l e4
Ramji v Rettensi fl9691 E.{ -109

,,1
Imt xviii Principles ofLand Law in
, Uganda

Ramsden v Dyson (1g66)

LR l,HL 12g
TableolCases xa
& g-
ffi
-Irf
51, 52, 69,
Sedeant y Nrsh Field & Co tl903j 2 XB -qn 65 :,
Randall v Stevens 143
1
Rashad Moledina Co (Mombasa)
1g ER 907
65
Semnjogi v Kaabira CS No 5a7 Gf !9t" ts+crte il93g90l HCB 148 26, 56, 57, 59, *
Ltd and others v Hoima 97, t42
Ginners Ltd [1967] EA 645 CA (K)
Settlement Fund Trustees v Nw-aci [970] EA 562 136, 137, 143
Rasmanis v Jurewitsch (1968)
Re: a caveati Ex p rhe caaowie
8ti #N p, l) (Nsw)
prrt";;ic;i; 59
104
154
Sewanyana v Martin Al&er CA No 4 of t99O (mreporullcf) 77 I
Re: Beavan [t912] 1 Ch
vv L'!u irrr
t rJ ,oro ,0, Shah Champshi Tejshi and others v The Attoroe),-Geccral of Kenya [1959] *
196 84
98,132
Re: Caines [1987J I WLR 546 65
EA 630
Shah Karamshi Panachand & Co. Ltd v Velji and another [1969] EA 194 112, 113 I
Re: De Falbe; Ward v Taylor
[1901] I A1 523
152
shah v Modern Sweet Mart Ltd (1956-57) 8 ULR 99 76 fI
Re: Errenborough park giesojr
ad
Ke: I.orrest Trust Trustee,s Executors
e[iii" 54
130,131
Shah v Shah Vershi Devshi & Co. 17 KLR 20 53 ,
& Agency Co Shell and BP Uganda Ltd v Sikander Husain Esmail and others CS
Ltd v Anson [1953] VLR 246
No 1038 of1975 106
Re: 114
.Habib Lubwama (1991) HCB 74 (unreported)
, -----l \ Shevil v Builders Licensing Board (1982) 149 CLR 620 104
Re: Munam Murtor lg KIR 87
65 Shiloh Spinners Ltd v Harding U973) AC 691 109
Re:Refund under Timber Regulations 147
[1935] AC lg4 Shokatali Abdulla Dhalla v Sadrudin Meralli CA No 32 of 1994
Re Stone [1989] I 136, 137
ed R 251 (unreported) 75,86,87
Reeves v Lisle 154
[1902] AC 461 Singh v Godley (1942) 20 KLR 57 110
Registered Trustees of Kampala.Institute 126
v Departed Asians property Singh v Kaur (1936) 17 (l) KLR 1 155
Custodian Board Civil Appeal
No. 2l of 199j. Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board
Registrar of Tittes v Franzon
(tg7i) t32Cin Of 162,163
--- - "f 97, gg [1949)2 AU ER 17e 138
[1904] iC qe
Reynol-ds v Ashby & Sons
Smith v Seghill Overseas (1875) 10 QB 422 94
Rice v Rice (1854) Z Drew 73; 54
Oi fn OaO Somali Democratic Republic v Anoop Syndirial Treon CA No 4
Robertson v Fraser (lg7l) 6 60
Ch App 696 of 1988 (unreported) 72,96
Robinson v Kilvert (18g9) 4l 147
Ch D'8g South-Eastern Drainage Board v Savings Bank of South Australia
Kobrnson v preston (lg5g) 4 99
K & J 505; 70 ER2ll (1939) 62 CLR 603 80, 82
Roe v Siddons ( I 888') 22 148, 149
eB D 224 Southern Nigeria v John Holt & Co. Ltd U9151 AC 599 158
Rogers v Rice [1892] 2 Ch l7O 130
Souza Figueiredo & Co. Ltd v George Panagopoulos and others
Rosenberg v Cook (lg8l) g 108
'Cp eBD [1959] EA 756 72, 102,103,
Rudge v Richens (1873) 61
8 LR 358 105, 106
Rukandema-Kamuru v Kabale 117, t23
Town Council CA No MKA t0 of l9g5 Souza Figueiredo & Co. Ltd v Moorings Hotel Co. Ltd [1960] EA 926 73, 83, 84, 91
Runda Coffee Estates Ltd v
Ujager slrgi
90,111,112 96,97, 100
iiioq'S;S6a 52, 97, 142,
Squirc v Rogers [1979] 39 FLR 106 151,152
Rundo Coffee v Singh (1966)
EA 573
t43 Staffordshire & Worcestershire Canal Navigation v Bradley [1912] 1 Ch 9l 136
Kurangaranga v Mbarara
Municipal Council and others CA Standard Chartered Bank (U) Ltd v Grand Hotcl (I-D Ltd Civil Appeal
No 10 of 1996 (unreported) No. 13 of 1999, Court ofAppeal, urueported 167
75,91
lyi:l]rtltiri v Kamono (1678) HCB 300 (unreported) Stanley and Sons Ltd v Alibhai [1963] EA 594 (T) 110
Mbarak v Kapacee tO KLR tOO Street v lUountford [1985] 2 All ER 289 92,93,94
Irid.!i,
ra;abr v 112
Amreliwalla and Wamala Summers v Salford Corporation [1943] AC 283 99
LlgillIZEACA
Samuel v Janah Timber *.y:g1-nlvriu'C"**", 7l 120,121, 122 Swain v Ayres (1888) 21 QB D 289 57
Sanders v Sanders (lggl) l9 Ch D 373 f :Do4l AC 323 125, 126 Swift ani Neale v Roberts (1764) 3 Burr 1488, 97 ER 941 178
sandhurst Mutual permanent
Investment Building Society v
64,65 Taylor Fashions Ltd v Liverpool Victoria Trustees Co. Ltd U 98 1l I
Gissing (1889) t5 vLR 329 All ER 817 52
Sands,r'Murual Benefits Ltd 79
Taylor v Stibbert (1803) All E Rep R 432 59
[1971] EA I56 (K)
92
!a1on v Roberts tl8951 2 eB 395 Taylorv Twinberrow [1930] 2 KB 16 65
Sebuliba vAttorney-General 99 Tchidy lr{inerals Ltd v Norman U9711 I QB 528 2t
CA No l3 of l99l
cA No 12 of 1985 (Supreme court of 99, 100 Telex (Australasia) Pty Ltd v Thomas Cook & Sons (Austalasia) Ltd
ir* r #l',lutout Uganda);
(1970) 2 NSWLR 257 99
Sentamu v Nalirya CA No g4
of 69,92 The Administrator General of Zanzibar v Khalfan and ottrers [1963] EA 230 t46
1959; High Court Digest 53g, unreported
Senrongo v Shell (U) Ltd CS r53
N. ,r;i.ilij, ,*.r.'"=.0 72
The Executrix of the Estate of the late Tebajukira ald anotber v Shalita
CA No 02 of 1988 (unreported) 87, 109
 laote oJ OaSeS xxl

tx rnncryles oJ Land Law in Uganda

xlx 118
2 Ch 567
The Kampala Cottou Co Ltd v Privinlal Madhvani CC No. 485 of.1952' White v Metcalf [1903] 136
ch 160
High Court Digest, p 511 98 *i'it i"vr"t $o 2) t19691 1 136
" 136
/, 58r The Management Committee of Rushasha Primary School v Francis
1.46

, 143
Morcuta C.A. MKA ll/93 (unreported)
The Progressive Mailing House Pty Ltd U Tabali Propetary Ltd (1954)
73,75
Hi##ffi:fllxfl/,Ei,iiiti::"
iil**iraoi) I&H 546; ?o ER 862
152,154
157 CLRIT 104 il,Iil.,i,.'; P & CR 235
63
45
The Proprietor of Cente Building Units Plan v Boume [1984] Qd R 13 150 ;ri'ilil , uti,"'*ooa [19831
QB r73
134
142,143
The Trustee, Executors, And Agency Company Ltd and Templertan v
Short [888] 13 AC 793 63 $Hfiil:tffi* l;lir;r;w1l;u"' 146, 1 53
Thomas v Sonell (1673) Vaugh 330;124 ER 1098 11,91 gllllX,*."X',,,1,?;i?.t.;l' 131
115
Thursby aud others v Plant (1 670) 85 ER 254 102
lu'irftotot v Recchi U9781 SASR 5
Toohey and others, Ex Parte Meneling Station Pty Ltd and others
(1982) 158 CLR327 136
Travinto Nominees v Vlaffas (1973) 129 CLR 1 82
Tulk v Moxhay (1848) 2Ph774;41 ER 1143 56, 139, 140,
142
87 Turubai v Venkatrao (1902) 21 Bom. 43 64
Uganda Credit and Savings Bank v Eriyazi Senkuba [1966] EA 500 ll8
Uganda Motors Ltd v Wavah Holdings Ltd CA No 19 of 1991 105, 106, 155
Uganda Post aud Telecommunications v AKM Lutaaya CA
No 36 of 1995 (unreported) 59,76,79,80
Uganda Spirning Mills Ltd v Placid Weli Iga CS No 547 of 1987;
(1988-90) HCB 66
Ugauda Tbrift Co. Ltd v J.M. Nnambale CS No 550 of 1970 (uueported);
[1971] HCB 326 r50
United Assurance Co Ltd v Attorney General Civil Appeal No. 1 of
1986, unreported 160
UTC Ltd (in Liquidation) v NZI Securities Australia Ltd and another
l, 103,
[19e1] 4 WAR34e 115
)6 Vadety Timber Ltd v Musa [971] EA 398 (K) 106,110
84,95 Victoria Tea Estates Ltd v James Bemba & Anor, Civil Appeal
100
No. 49 of 1996, Supreme Court, unrepoded 265
52 \riscount Tredefar v Harwood U9291 AC72 l0l
Waimitrl Sawmilling Co. Ltd (in liq) v Waione Timber Co. Ltd
[r%6] AC 101 75
*'elker v Linom (1907) 2 Ch 59
*'allis's Cayon Bay Holiday Camp Ltd v Shell-Mex & BP Ltd
94
lr'y75l QB % 63
B?.&ir v Lonsdale (1882) 2l Ch 9 56, 58,95, 97
3
Btsdln v Okeya CA No 209 of 1969; (1970) HCB 67,68
ScEEarKffo [1954] I QB 15 100
ffirnxnr ri!-r'ngw-e (1952-56) 7 ULR I 116
f;siaerB{nl (1866) LR 2Eq5l4 136
Wimrurun {mcq}ir Fresh Food & Ice Co v Freecorn [1904] MAR 22 96
ha,ft' Prodrcts Ltd v Penwith Distict Council t19811 2 All ER 204 11
iliuufuCt rnzl Chadfy Board v East London Waterworks Co [1900] I
@r&* 100
ffi@tor" Bm*r [1874-80] All ER Rep 669
n
'ffindmu.,n r&*-
132, 133
r09 [19{I AC 416 ll
. iltrry dLm.t.ro Brewery Company (18S9) 42 ChD 237 ll8

tI
 TableolCases xxiii

Table of Statutes 44
Magistrates .\ct
38,51
Mioing Act (caP 248) 116,117,118,119,
Uganda tvlortgage Decree 1974 120, 121,122, 123,
Access to Roads Act, 1969 82,135 124,125,728
Acquisition of Ginneries Ordinance, Ordinance 7 of 1952 157 t16, r24
Mortgage Decrce No l7 of 1974
Adminishator Act (cap 140) 155 38, 82
Ankole and Toro Landlord and Tenant l-aw,1937 3 Notion"t Environmental Statute, 1995 157
Ankole Landlord and Tenant Law,1937 Trading Corporation Act, No 18 of 1966
i.i"ii"i.r
3 t62
Assets of the Departed Asians (Amendment) Decree No, 12 of 1975 159,161 National Tnrst Decree' 1971 148
Assets of the Departed Asians Decree, No. 27 of 1973 159, 161,162,164 PartnershiP Act (caP 86)
^pr"p.il.t -1972 194,196,198, 204
Business (Acquisition) Decree'
Buganda Land Law, 1908 160 "ra ^ of 159, 161, 162,767
and Business (Acquisition) Decree' No'
12 1975
Busuulu and Envujjo Law 1928 2,10, t4 ;;;;t Act 5
Civil Procedure Rules 66,75,111
priii. I-una (Compensation for Resumption) 4
201)
Companies Act 36 Public Lands Act,1962 (caP 1,4, 9, 80, 88, 103'
Registration of Titles Act
Contract Act cap 75 153 118,123,125,744,
Cooperative Societies Ordinance No. 5 of 1946 156 150,152,153
Crown Lands (Declaration) Ordinancc, 1922 (Revised Laws of 69,70,95
Uganda 1951, cap 118) 49 Registration of Titles Ordinance 1908 80
Crorvn Lands Ordinance of 1903 3,4,9, l0 Road Act (caP 345) 137 I
Crown Lands Ordinance, 1903 4 Sale of Goods Act (caP 79) 159
Declaration of Assets (Non-Citizen Asians) (Amendment) iii*,o"y Instruments Nos. 169 and 174 of 1972 155
I

Decree, 1972 159 Succession Act (caP 139) 157

(cap 164)
Declaration of Assets (Non-Citizen Asians) Decree 29 of 1972 159 The African Loans Fund Act,
Properties (Management & Disposal)
order S'1
Declaration of Assets (Non-Citizen Asians) Decree, No. 27 of 1972; il.;;;;"e.t.,ed 203
Re-enacted as S.1 ofDecree2T of1973 72,132,158,159 No.32 of 1996 203
of 1996
Elechicity Act, 1999 40,132 fn f-pr"i.i.tetl Properties (Reversion) Order S'1 No' 33
ifii f.i"ii"ti"n (Cancellation of Enty Permits and Certificate of
Electricity Statute, 1999 159 158
Equitable Mortgages Ordinance 1912 69 nrriaen.ei (Amendment) Decree No' 30 of 1972
'Ifir"ttil of
t"n (Canceilation of Entry Permits and Certificates
Expropriated Properties (Management) Order S.1 No. 78 of 1998 166 158
Rcsidence) Decree No. 1'l of 1912
Expropriated Properties (Management) Order S.1 No.57 of 1995 166 157
Expropriated Properties (Repossession and Disposal) Refulations, fU. N"tionot Uousing Corporation Act, (cap 321)^. - 157
(cap 319)
No. 6 of1983 I65 ft. Uguna" Development Corporation Act' l5'l
Trade (Licensing) Act, Act 14 of 1969
Expropriated Properties Act, No. 9 of 1982 82, 160, t6t,162,1f.3, l12
165 Trustei and Bankruptcy Act (cap 7l) 155
Finance Act 1982
Act (caP 142)
Trustees
36
71
Ug"ia" ii,irittttip .na Immigration Control Act'
1999
Forest Act (cap 246) 38, 82 of 1950 156
Immigration Act, 1969 158
;;il; ct.ait *d Savings Bank ordinance 20
82
Uganda Order in Council of 1902
Interpretation Act (cap 16) 50 38
Uganda Wildlife Statute, 1 996
Judicature Act, 1967 106,108 38,40,80, 130, 131,
water statute 1995 11,
Judicature Statute, 1996 (Statute No. 13 of 1996) 1, 56,83, 108, 109,
155
Land Acquisition Act 1965 (cap 14) 39,40,41,42 Austrslia 1n
Land Act, 1998 1,6,12,25,26,27,32, Real Property Act 1900 (New South Wales) '74 t'
44, 69,80, 116, t52 Stamp Act, 1894 (Queensland)
,.
88, 136, 141 1
Land Transfer Act (cap 202) 2 Transfpr of Land Ac! 1893 (Western Australia)
69
Legal Notice No. I of 1971 160 Transfer of Land Act, 191 5 (Victoria) '72
Limitation Act (cap 70) 10, 12, 13, 61,62,63, Transfcr of Land Act, 1954 (Victoria)
64,65,66,67,68,'18 ;
Lint Marketing Board Ordinance No. 33 of 1949; and subsequently !.i
E,
Ordinance 16 of 1959 (cap234,Laws ofUganda,1964) 156
#
xxii ,f

E
 xxry rrtnctples oJ Land Low itt [Jganda
xxDL
Kenya
fi Registered Land A* (cap 300) List of Abbreviations
Registration of Titles Aci (cap 281) 137,144

.9,
, 79,79,112,133
AC Appeal Cases @nglish Law Reports)
23, Papur New Guinee AIIER All Englaud Law Reports
Simultaneous Deaths Act (cap ALR Australian Law Reports
332) Law Reports, Chancery Division [891]-
t46 Ch
chD Law Reports, Chancery Division (1875-90)
United Kingdorn CLR Commonwealth Law Repors (Australia)
Convcyance aud Law of property EA East African Law Repoft
Act, t gg I
Distress Act, I6gg 106
EACA Law Reports of the Court of Appeal for East Africa
Distress Amendment Act, l8gg 105
04 ER English Reports
Grantees of Reversion Acg 1540 105
67 FLR Federal Law Reports (Australia)
Judicature Act of IgZ3 103 High Court of Uganda Bulletin (Digest)
HCB
Law ofProperty Act, 1925 56 Kampala Law Reports
KALR
Limitation Act 1939 136,146,154 KLR Kenya Law Reports
03,
Partition Acts 1539 and 1540 61 Land Act, 1998 (U)
44, LA
Partition Acts of lg6g and tE76 153 MD Mortgage Decree 1974 (U)
Statute of Anue of 1705
ts4 NLR Nigeria Law Reports
152 NSWLR New South Wales Reports (Australia)
NZLR New Zealand Law Reports
PNCLR Papua New Cuinea Law Reports
QB (KB) Law Reports, Queen's Bench Division
QdR Queensland Reports (Australia)
RTA Registration of Titles Act (cap 205) (U)
SASR South Australian State Reports
sR (wA) State Reports of Westem Australia
ULR Uganda Law Reports
VR Victorian Reports (Australia)
WLR Weekly Law Reports (UK) Statutes

,131,

I
:-t
xxY
).
.F,
&
r

1
Introduction and Historical Background

Souncrs oF UcANDAN IAxD t.ew

The sources of Ugandan land law are tte Constitution of the Republic of Uganda, 1995,
stahrtes, customary law, the comnon la.w and principles of equity. The Constitution lays
certain fundamental principles with rcgard to land ownership.t Since the Constitution
supremc law of the country any other law or custom which is inconsistent with its
void to the extent of the inconsistency,2 Witt respect to statutory sources of land law the
important are the Land Act, 1998 ald the Regzstration of Titles lct (cap 205). The Land A
deals with land ownership, land administration, and resolution of land disputes.s The
of Titles Act, as its title suggcsts, deals with the registration and kansfer of titles to land.a
Customary law constihrtes an important soulcc ofland law. Customary land law mainly
to land o',vned under customary law. Section 28 of lhe Land lct provides that decisions in
of tand held under customary land tenure shall be determined in accordance with the
law of the community concerned. However, the section precludcs thc application of any
practices that discriminate against children, women, andpeople with disabilities contrary to
33, 34 rtd 35 of the Constitution. The Judicature Statute, 1996 (Statute No. 13 of 1996),
empowers the courts to apply and enforce the observance ofcustomary practice for as long
not rcpugnant to natural justice, equity and good conscience and provided it is not
with any'written or applied law.t For example, tn Babiruga v Karegtesa and others,6 the
Court declined to enforce an alleged Kikiga custom, which said that land formerly cultivatedi
child's mother upon her death automatically passes to the children and does not revert to
husband. Karokora J, as he then was, said that such custom was repugnant to natural jus
equity and good conscience because it dcprived the man, as head ofthe family, ofhis povt
control the family property. Moreover, in his Honour's view, it was tantamount to depriving hi
his property without compensation conhary to the Constitution.
Customary law is also not applicable where the parties expressly or by implication fron
nature of thcir transaction agreed that other law should regulate the transaction.? For exampl
the case of Waswa v Kikungwe,t the court applied the general law of mortgages to a hadsa(
'resembling' a mortgage of land owned under customary tenure.
The common law is the residue source of land law. T\e Judicature S/aure provides
subject to any lvritten law and in so far as wriften law does not apply or extend to the mattc
courts shall app)y the common law and the doctrines of cguity. The expression 'common laf
the dockines of equity' refers to the unwritten law of Uganda, other than customary'
administeredby the High Court of Uganda' Uganda's cormon law and equity is essentia$
common law and the doctrines of equity as applied by tLe Eoglish courts prior to 1902. Ho*
the common law applies in so far as the cirq:mstracts of Uganda and of its people permi

tThese principles are dismsscd betow- i

t Article 2 (2) of Sre Constitstb{r !
t The Land t
lct is discussed in daliD Cte4+E Z
Provisions of tie Acr rrc discsssrd b (5s@ 5"
a

' Section 17 (1), Judidur *tub $,

'D.R. CA No MKA 13 (u+or=C!
of t99J [:
?
Section t 7 {2),..frdica.r.$c"
| (19s2-56) ? Ur-R.
I
tScctim t{Sl-fu.trm

ff
 *i
-q
hl
Jr
I Pnnctples ofLandLaw n Uganda
r Introduc!rcn atrd Ilistorical Backg'owtd 3

tn pledge, or even rnortgage it at will subject only

to the conditio[ tlut ite
lr'
sbject to such qualifications as the circurnstances lnay render necessary.ro Both the common law tenure. He or she could sell, whour or she orved a duty to pay
ir*i.nunt to tt . n.,iilo ooun.t to
rrvl principles ofequity are still a very irnportant source ofugandan land law. or she had to inuoauc, aoy 'e
t- :
busuul*t5

BecxcRouxp ro rHE TINURE sYsrEMs Freeboldtenure

of 1903' the 'native'freeholds of
AtthetirueUgandaattaineditsstatehood,tlrreegpesoffreelroldsoperatedintliecountry.These
Ar the tirne Uganda becarne an independent statc. on 9 October 1962, there were four land tenure were: freeholdscreateo ti-aeittrl irorrn Landi-orclinance
t995, qsems operating in the country. These lvere tnailo, freehold. leasehold, and custornary tenue. iotofu unO fo.o. and the 'adjudicated'-frt:h:t$t' ..
)n lays t\e tJgancla order tn co.uncil of 1902. and the
wth respect to trr. r,rslfientioned freeholds.
titution is I[ailo tcnurc gavethe Governor e$;nsive polvers to dispose of crorvn land in
Crown Lands Orainorre'-ittW. Protectorate wiur a vie\v to
-Ifarlo tenure lvas a quasi-freehold tenure system, rvhich rvas unique to the kingdonr ofBuganda. eriactea amrost at the inception of the
freehold.,6 The legistatioin oas policy to graut crowu
law the The tenure lrad its origins in the 1900 Uganda Agreenent@twenthe British colonial administration
paving way for
g*op"*r.t;*ent. until 1915, itrvas tlrc adrninistration's
dispose of their
a-od tire chiefs of Buganda. Under the agreemenl about lulf of the land in the kingdom of Buganda
#;;ld;;ilthe nasanoa cliers were acrively lobbied to
nd Act
hnd to Europeans ,, int'ondou il$tructed the
*as allocated to chiefs and notables as their private property in perpetuity and the rest ofthe land
nrailo landto Europears i^
i;L;ia. io*#r, in r9l5 the Colonial Oflice
land.' became crown land. The allocations were eryressed in ruultiples or fractions of square rniles. *;;**;,ror* fo"O in,freeholds to non-natives and instead grant
govemor to suspend made a pennanent
Hence, the term 'mailo', which is a Luganda language corruption ofthe English rvord 'mile'. lvas
nainly
adopted to describe this new system of land holding. Although initially only a few privileged
leaseholds subject to d.;.i;il; conditions. . The ban was subseque[tly
Therefore' though under thc Ciotrn
ions in
people owned mailo land" gradually, tluough sale. donation and inheritance flre land lvas zubdivided
- feature ofttre cofoniaf aArniniltratiou
tand poliry in Uganda'r?
grants ofland in freelold in practice the
the ladthe porver to rnike
Lands Ordinance, the Governor
lny aldAagmented" Asaresult.by1962therervereseveralthousandmailolandownersrnainly owning
<mrU parcels. The parcels rvere registered and certificates oftitle issued to tle owners under the polver was very rarely used'
rary to
of Registrati ott offi tl es Act (ap 205).
1996), Nativefreeholds -
the kingdorns ofToro
The Uganda Agreenrcnt didnot deflne the nature of rnailo land In practice, mailo land rvas to freehold tenure lvhich lvas peculiar to
as long The tenn 'native' freeholds referred pursuant to the
regarded as an absolute grant in perpetuity akin to the common law freehold estate in fee sirnple. tr British colonial administration
)t and Ankole. r.."rriO, o.t. gianted by the
L.r, Under tire agreerlents'
ers,6 the ( The land was granted without any conditions of tenure. Holvever, by subsequent legislation rnailo
lgOO Toro Agreemeil ;i.gre l90i Ankote Agree'xen' lvith the British'
cultivated \ laad owners were prohibited frorn transferring or leasiug tlteir land o a non-indrgenous Ugandan or
approxinrately2sssquaremitesineaclrkingdoruwereallocatedtotlrekingandafervofthernost
to them as oflicial estates'
to a religious organisation without prior authority of tbe Lukiiko (Buganda Council) and the 122 square nriles lvere allocated
rtrevert to[ senior chiefs in private ownership and
ratural just governor.r2 Moreover, nrailo land was rnade subject to the traditional and customary rights of Unlikernailo,tlrefreelroldgrantswererrradeaomcrownland,.sandwerelreldsubjecttotlieCrorln
land rvas gradually subdivided and fragruented
into
rf his powc bib anj a (plot) holders.
Lads ordinattce, 1g03I1; i;;uganda the the riglrts of customary
tit . n ailo land, was subjectto
:priving hit Kibanja holders were peasants who lud settled on the land as customary tenants with the sruallholdings.In aaaiti*, *ti".irltroto.
consent of tlre mailo owner. Tlrc Busuulu and Envryjo krw 1928 regulated the rights and obligations the ;;;iii;
Ankole and Toro Lancllord and Tenant Lay, 1931, customaty
tenants. Under
ofakibanjaownerormailoholder. Underthislawifanrailoownerallolvedapersontosettleonhis peima'ent rights ofoccupancy subject to payment
lation from rcnants on nativ. rr.rrriJ.nioyed inheritable rvrthout a
on nrailo land, tliey could not be evicted
of a fixed nominal rent. Like$ir counterparts
ror exampl, or her land as a kibanja holder, the latter was deenred to enjoy an inheritable pennanent right of
:o a hansac occupancy subject to payment of a fixed annual rent. lrr Lubwago v Bawa Stngh and anothen\3 courtorder.
Bennett J said that 'it rilas the essence of the relationship betrveen a mailo owner and the holder of
e provides a kibanja that the latter's right of occupancy inures for an indetenninate period and is heritable by Adjurlicated freeholds pilot
the Kigezi, Bugisu and Arlkoie land reglstration
r the matte hislreirandsuccessor'. Arnailoolvnercouldnotcvicta kibanjaholderexceptwheretlrelandwas The adjudicatedfreeholds were created under indrvidual
proposals to encourage
lmmonlartt required for a public purpose or for other good and suffrcient cause. or ifthe holder Ieft the land schemes. In 1955 the protectorate government onooun.ii
:ustomarY ) nnaftgads{ for rnore than six months, but in all cases the eviction had to be sanctioned by a ownershipoflandamongst;;;;igtlnl*ptoprt' Theseproposalswereoverwlrclminglyrejected
motives Ho wever'
courtr' Forallpurposes, akibanjaowner'stitlewasasgoodastlutofanolynerundercustolnary ln lnost districts. as tire inOgenous ptple rr ere iuspicious of the adruinistration's
; essentialb
902. Hov,l
lple permitr
tt v Kittrcra CA No 37 of 1912'
r ll/analavMusoke(lg2}-29) 3 ULR 120' Scc also ]ulatan$ulire
Scction 16 (2) (b) (i) and 16 (4) & (5). r' Scc Adcle 7 (3). 'Crown Iarrd' included auy iuna
u"quir"a by ilrc crown ttrrough treattes lvith. native
rr ln thc final cortificatcs issuod to the original grantecs thcy u,crc doscribcd as 'absolute owners'. In oflicial ofttr" protectorats. Thc Crown Lands Ordinance'
rulcrs and land undcr control ofthe crown by virtue
circlcs tho tonurc was conrnronly rcforred to as a'frcohold'. Sec Thomas and Spenccq A llistory of dcaling with crou'n land'
1903 prcsoribcd rulcs for
Ugonda Land and Sun'q, Deparbn errl (Entcbbc, Govenunent Printsr 1938), p. 68. Krishna Maini .Lald i f , Sec Tlromas ana Sp.n""r, e fl,r?o i- "tis""d. Lrnd and S-urveys and of tlte lJgordo Lod and Swey
I-aw tu East A.frica (Nairobi, OUP. 1967). pp.73-74. argucs that nrailo terrure was an actual frechold. I Morris and Read' Ugarrdo
r I Deparorcnt @atsb*, Aovcmntcuipii"tJ', tg3g)' pp' 52-SS' and 63' Sec also
BugandaLatdLaw,lgOs.AlsothepondlransJerAu(cap202)barrednon-Africarrsfromacquiringany t li D*elopnrcnt of is La:r',s and Constitution P' 46' to be
irtcrcst iu land owncd by an African .without conscnl ol thc Ministcr. For discuss,on of this tegislation rT It Undcr Articlo a oithe two aerr:";;;;iil;i" urcultivated land in the tcrrrtory was declared
ssc thc case of Ka*alya-fagyta v Registrar ofTitlas 11974) EA 481. l' "ud
crown laud.
": [1959]EA282at?84. II l'ScaMonisandRcad'Ugoldalll-Developnrcttto!iuLawsandCoilslltuliot,.supra,p.34l.
* Clausc ll,Bnsuuht and Bnttjjo Law. Sec alsolrhrngo t, Bawa Stryh attd ouotlnr [1959] EA 282.
I

I
 fnd.udion and Historical Background 5
4 Principles of Land La* in Uganda

person
no longer be alienated withoulthe consent ofthe occupants' Any
the proposals were eventually accepted in the district ofKigezi aad subsequently in Ankole and customary tenants could
Bugisu. The people in these districts accepted registration of individual titles mainly because of '"r'f,.io!'foi grant of public lanl had to state in the application whcther or not the land was partly
population pressure and tlte multiplicity of boundary disputes.?o Pilot schemes were set up in the o"i"opi.a by customary tenants and if so wtrether they had freely consented to the t
";t"i;;fi, a right to apply for a
three districts to adjudicate individual title under customary iarv. Once the land was adjudicated the Ilo.r.i "ii"r.iion. In addition, the Act gave customary occupants of land ,1
1
holders n,cre issued rvith registerable freeltold titles under lhe Registration oflltles Act.2tT'lte i*r. ot.t tbe land theY occuPied'3'
adjudicated freeholds were subject to the same legal regime as other ordinary freeholds. lt

Customarytenurc TEE r-{ND REFoRM DEcP'EE

In pre<olonial Uganda, tltere uere three broad orstomary land tenure systems.22 These q'ere
communal or tribal tenure, clan tenure, and nomadic tenrue.a In communal or tribal tenure s]stems,
ownership of tlre land rvas vested in the mler as owner or trustee of the land for members of the
tribe. This tenure Systelr was prwalent in Buganda. Bunyoro. Toro, and Ankole. Under clan
tenure, orvnership oflandlvas organised according to clans as opposed to tribes. The clan tenure
slstem was common, for examplg in Acholi and I(gezi. Within the clan and tribal umbrefla, specific
individual or family rights rvere recognised to fields, agricultural products and homesteads.2' The
nomadic land tenure system was prevalent in Karamoja. In this system of tenure, grazing rights
rvere vested in the entire members ofthe tribe lvith no specific rights vested in individuals,
UndertheBritish protectorate administration all Iand inUganda except mailo landrvas crown
landeitherbyvirtueoftheprolectorateorbyteaty2rwiththelocalrulers.26 Customarylandtentue
rvasrecognisedbutwithinlimits. UndertheCrownLandsOrdinanca, l903,indigenousUgandans
had a right to occupy any unalienated crown lands2'outside Buganda and urban areas without
prior licence or consent of the govermnent in accordance u,ith their q$tomary law.2t Nevertheless,
Iegally the land ocorpied under customary tenure rvas regarded as unalienated crown Iand. Hence,
under s. 33 ofthe Crown Lands Ordinance, the governor had the power to sell or lease such land
to any other person. The only right the customary occupants had was to remain in occupation of
tlre land until arrangen'lents were made to re-allocate them some other land. These provisions were
re-enacted in tlr e 1962 Public Lands Act (ap20l),2' which replaced the 1903 ordinance.
Therefore, at the time Uganda became an independent state, customary tenants on public land
were tenants at will of the government with no legal protection against eviction. Where the
government resumed the land, it had no legal obligation to compensate them for the land except for
the loss of imprwements made on the land such as buildings and crops.3o The legal status of
customary land tenure remained the sarne even alter Uganda became independent until, in 1969,
parliament enactedt\e Public Lands Acl, 1969. Under s. 24 of this Act land lanfi:lly occupied by

by up to two years imPrisonment.al

20 Obol-Ochola,cd,LandLawRe/orminEastAlrica(l9Tl,LarvDwclopmcntCcntrc),p.270.
?rSceMorrisandRead,UgandathcDcvelopmenlofitsLavsandConstitunbr,$pra,p.339;Okcc,'Pilot
3t Section 25, Pu blic Lands Act,1969'
Sclrenres for the Registration of l,and titlcs in Uganda' in ObolOchola cd, Land Law Rcform in East
Africa (Kampala, Milton Obotc Foundation, 1969) pp.25544. "I Section I (l), trand Reform Detee
22 For a detailed analysis of customary tcnurc irr Uganda, sec Obol-Ochola, Cuslomdry land Law and the Section2, LandRelorm Decree.
Economic Developntent in Uganda (LL.M Dissertation, Univcrsity of Dar cs Salaam, 1971). Thc
r' Sectron 8(l), trand Rehnn Decree.
information bclow is nrainly dcrivcd from his study.
$ Section lO, Land Reform Decree'
23 Obol-Oclrola, Cuslonnry Land Law and the Economic Dcvelopment in Uganda, supra, pp.18 -79, ; r. Section3(I),lonan"yor^i"rrrr.Atcorffnonlaw,theterm'tcnantatsufferance'referstoapersonwho'i
person could be:
a
2' Ibid, p. 80. i
remains on thc land without *ir.n, -a without objection of the landowner' Such
i
'r Trcatyreferstothe1900BugandaAgrcemcnt.1900ToroAgrecmentand1900AnkolcAgrccmcnt. i '!
evictedatanytimewithout"",ii.i..fr4.g.r.y and&ade,LawofRealProperly,supra,pn'42-43'
26 Articlc 7 (3) Uganda Order in Council,1903. Sec also thc Cronn lands (Daclaration) Ordinance 1922.
I
i
3? Section3 (l),LandReformDecree i
17'Alienatcd'landwaslandgrantedinfrecholdorlcaschold,secs22,PublicLandsAc(cap20l). rf Section 3 (2) I'and Reform Decree.
t 3t
2t Section20and2{,CrovnLandsOrdinance1903.SeealsoPublicLandsAct(cap207),s.22. r Section 5 (l) Land Refom Decree.
2e SccScction 22. i Sections 5 and 6, Land Rcform Decree'
'0
t0 Public Land (Cmpmsationfor Resumplion) Acl. t 'r Section 4, /.irn d Reforn Decree.
 5 6 Principles oJLand Law in Uganda r
2
The object ofthe Land Reform Decree was to give the govertrment greaterconEol over land use
rson
artly and rnanagenrent. The government of the day, in its wisdonr- felt that by m2king security of land Land OwnershiP
) thdd - tenure dependent upon land use il would promote agricultural developrneot.tz The irnmediate
for a consequence of the Decree was coDfusion and apprehension in the general public.a' For several
reasons such as apathy, lack offunds, tnanpower and other logistical supporl most ofthe Decree's
provisions were never irnplemented." Though technically for more than t'wenty years the Decree
was the rnain source ofUgandan land larv. in practice the Decree remained a dead letter in the
uttil Aa, 1998. fonually repealed it.r5
tifi lf*'Ti}#,.l[#:'{i.q#f:r-?rgi,iifl1,i}
througboutthecountryulatthegovernmentatonetimewasfearfuItlratitmightleadtocivilwar.
statute books the Land
no, ,".-r.irr?rr.- ifre controversy, wlich
still lingers on, is hardiy surprisrng
Forturately, that dtd countries, land is a very sersitive issue'
Added
rhaul
siven that in ug-ou,
o, ,n *oiiother developing
of speech' and
land, CoNsrrrutroNAL REFoRM oF I,AND TENURE LAlv out at ; ti;e when Ugandans rvere enjoying relative freedorn
io this the Bill came land tenure reform'
: sole
The 1995 Ugandan Corstitution prescribes tlre under$ing land larv and tenure poliry of the country. many took advantage
ot rt;;;ak ouiqtltt ftttry about the proposed
6thcr ii,t . Aciare discussed under the following subheadiDgs:
Article 237 ofthe Constitution declares that land in Uganda is vested in the citizens ofUganda. as In this clupter prouo,on,
,idual
opposed to the goverunent, to be owned in freehold, nrailo, leaselrcld and customary tenure. Non- (D Govemmentland
itions Freehold
)ment citizens of Uganda rnay own land but only in leasehold. The Constituuon reinstates mailo and G)
ient'}"'' freehold tenures. rvhich rvere abolislrcd by the Land Refortrt Decree. With respect to customary (o Leasehold
tenurq Article 237(4) provides tlut all Uganda citizens owningfornrerpublic land under customary 3rv) Mailoland
of the Customarytenure
tenure have a riglrt to acquire a certificate ofownership oftheir land and to convert Ureir title to (v)
native ,
freelroldinaruannerprescribedbyparliarnent. TheConstitutionalsogave'laudrl'and,'bonaJide' (vt) OwnershiP of land bY non-citizens
:e-on-
pment occupants ofrnailo land, freehold and leasehold a rnoratoriurn against eviction until parliarnent
enacted an appropriate law to regulate their relationship rvith the registered owners of such land.6 Govnnxunrrlexo
: legal Parlianrent was required to enact the appropriate legislation within a period oftlvo years of its first conrn.rission'2
session. The legislative provisions are contained in the LandAct,1998, which is considered in the previously, all landinUgandawas publicland cenuallyvestedwiththeUgandaLand
enants LandAct'n,ost
Iganda following chapter. AsaresultOfthelandtenure-lawrlfonnUroughtaUoutbytheConstitutronandthe Governrnentland
landinUgandaisnowprivately-;;;;i,i;i",freehokia^dcustomarytenure'
gou.tnn .n, *. at the time the Constitution cane into
omary effect on 22
is limited to the rana lrat wali'n
to pay include land on which there are goveflrment
renated
i.pi.r:G, rsgs. Land in gou.lnlo.n, use would quarters' If the governrnent \vants ary
rnilitary
by the Ini.rituilOitgs, schools, iospitals' police and
willing sellers or by compulsory acquisition.inaccordance
otherland it has to p*.r,ur" tt .iand froru
ity was
withthe Constitution., Since it was not . *o practice to lnark the land that was in govemrnent
*n
dtheir land is likely to generate disputes with adjoining landowners
use. the demarcation ofgovernment
,

: in the
aud with district land boards.
rting to I

dshable i
Fru,nnorotpnunr
section4(2)ofthe LandActdefines'freeholdtenure'asatenuethatderivesitslegalityfromthe
states Ulat
Constitution and ie inciden;iiro*',u.itt.o law.
As already seen, the Constitution
t"rd;;;
;;t"ros under which citizens of uganda rnay own 1and.5 The
freehold is otre of the
perpetual existence and full orvnership'6
incidentsoffreeholO tenu"e mentloneO ii ttrezanar4crare

irr 1983 as Part ofthe countly's overall studY

' Tho proposal to rcform thc land tenurc system conunenced
of thc Agriculturc policy undcrtakcn bY thc Makqrerc
Institute ol Social Rcsearsh, in collaboration rvith
rson of Wiscorsin. Scc Hansard, 20 June 1998, P.4042. AIso the RePo(
thc I:nd Ccntro of tho Univcrsity
could ': Parlrarncnt of Uganda Parlianrcntary Debatcs (hcrcatler "Hansarf),20 Junc 1998, p.404E. chaired by Justico Odoki, 1992. was pivotal oflhe debatc and
of tho Uganda Constitutional Commission,
43. 6 Stc gcncrally tho lvlalicrcre Institutc of SociBl Research and tl'ro f.and Centro of thc University ofWisconsiu outsomc.
Rcport: Laud Tenurc and Agricultural Devclopmcnt irr Uganda (1989). 2 LondRelorm Decree 1915,sl(7).
* Frnal Rcport of tho Tcchnical Conurittec on thc Recomnrendations Relating to land Tenure Refonn.
'a S"c articlo 239 of tho Constitution and s'43 of lhc Land Act'
.incidcnts, rcfcrs to rights that accruo to a holdcr oftiechold land'
Thc cxprcssion
s Sc,;tion gg,Lozdrlcr t
':.... Articlo23? (3). Ser also s.3,IandAct.
- frticlc 237 (8) ar{ (9). Tlre terrns 'lawt'ul' and'bouafide' occupants rvcrc [c& to bc dcfinod by ParliamcnL
*c Clrapter 2,
' Sc.ton 4(2Xa).
7
 land
8 Principles olLandLaw tu Uganda rI
Section 4(2)(a) stipulates that freehold tenurc may involve either a gmnt ofland in perpetuity or for
a lesser period, which may be subject to a stipulated condition. A freehold estate granted in
perpetuity at common law is known as a fee simple absolute. It is the largest estate in terms of
duration known to the comrnon larv. The tenn 'absolute' is used to distinguish it from modifiedfees
such as a conditional fee sinple.T Tlte latter is a fee sirnple estate granted subject to a condition,
rvhich may or may not happen. Althouglt such an estate has a potential for perpetual duration it
maybeterminatediftheconditionuponrvhichitwasgrantedisbreached. Forexarnple,agrantof
Iand to X on condition that he or she dwelops tlte Iand is a conditional freehold. If X fails to
develop the land the grantor may tenninate the estate.E The section also envisages grant of a
freehold estate for life. A life estate is a freehold that terminates upon the death ofthe grantee.'
At common law, a holderof land in fee simple absolute hadahnost unlimitedrights of orvnership.
To a certain extent this is also reflected in thel and Act. Section 4(2)@) stipulates tlut subject to the
lau,. a holder ofland in freehold has full power oforvnership. This includes the power to use and Conversion ofleases intofreehold whereby any lease tlmt
errporT ered parliament to enact a law
dwelop the lard forany lau&rl purpose. to sell, dispose ofby will, lease, mortgage and create riglrts Article237(5) ofthe Constitution into a freehold'
lands" might be converted
and interests for other people in the land as he or she sees fit.ro The provision expressly states that granted to aUganda citizen out offonner Public ofthe Act
for the conversion of such leases. Section 29
this list is not exhaustive of the rights of an orvner of land in freehold. Unlike the Zan d Reform Land Act makes Provision to freehold' First' the
be satisfied before a lease is converted
Decree,1975, the Act does not impose any development conditions upon a lrolder of land in number ofconditions that must when the land Act came
freehold.rrTlrisisadeliberategovemrnentpolicy. Experiencewiththe.LandReformDecreelnd must havebeen granted to a
Uganda citizen22 and lrad been current
that the lease rvas validiY
effect. SecondlY, the aPPlicant
must satisry the district board'?r
shonn that developrnent conditions rvere difficult if not impossible to enforce and invariably Ifthere lvere
tenants at the time the lease was granted'
ineffective in promoting agricultrral development of land.r? The framers of the Act envisaged that and that there were no customary as required bY the law.
tenants, the board must be satisfied
that they were duIY colnPensated
the psl,chological sense ofresponsibility arising from or"nership offreehold land rvould be strong all develoPment
that the lessee has complied rvith
enough incentive for landorvncrs to dwelop their land uithout ofiicial coercion. They also expected addition, the board must be satisfled a board
the lease was granted. Thirdly, s. 29(1)(ft Prohibits
that landorvners who rvere unable or unwilling to use their land lvould freely dispose ofit rn an open and other conditions uPon which lease is held
ifthe size ofthe land overwhichthe
market. Tirne will tell rvhether or not all this rvill eventrmte. converti1rg any lease to freehold tenure, public interest that such
tlte board is satis'fied that it is in the
Tlre apparent underlying policy of tlte Land Act is for citizens ofUganda to orvn their land as one hundred hectares, unless
freehold or mailo tenure. As is discussed below, the Act rnakes provision for the conversion of should be so converted.
approves the conversion of a lease held over
leases of former prrblic land held by Ugandan citizens to freehold tenue strbject to compliance lvith Section 29(2) Provides that where a board
shall not be effective until the applicant
certain prescribed conditions. rr The Act also provides for customary land tenure to be converted which exceeds a hundred hectares' the conversion
the Chief Goverrunent Valuer forthe new interest'
the market value as determined bY
to freehold.rr
not exceed one hundred hectares, the board should not charge the lessee for
ifthe land does
bY appropriate registration under the
new interest. The conversion is comPleted
LrlsrsoLnrrm;ru Titles Act. UPon conversion, any sublease over the subject land it is automatically npgraded

Leasehold tenure is a form oftenure whereby one pafty grants to another a right to-exclusive lease.2'
possession of land for a specifred period, usually thonglt not necessarily, in return for a periodic
paymentofmoneycalledrent.r5 Aleasecanbegrantedforalrydurationexceptiulds€ofalease
to a non-Uganda citizen. Section 4l(3) of tlrc Land Actlintts the maxirnum period for which a lease
can be granted to a person rvho is not a citizen ofUganda to ninety-nine years. t' Sec s.9,2(t), Land Act.
D Scess. 54 (c),61 (2Xc) and 7},Land Act'
1 Crown Lands ordinancc' 7903'
I
Gray, Elemcnts of Land Lav (2'd cd. Londou, Brtttenvorths, 1993), p.85. "le i." fo. "**plc, ss.- i5-16,
For cxample, under thc Crow Lands Ordinance,1903, frcclrolds wcrc grantcd subjcct to dcvelopnrcnt Sec abovc.
conditions, scc s 9 ofthc Ordinancc. Scc also s 20, Prrblic Lands Act,1969.
20Section5(c),LandAct.Thcgencrallawapplicablcto..all|cascsisdiscusscdbclowinclraptcr6.
e ,r Thcsc are lcases which *"rc ginicd cont oili"g
by a formcr l"itt,., tt u-gunaa Land commis$
"
Sec Chapter 3. ".,ri-rlty Act,l969 or its prcdeccssor' sa.
0 U;;;'C;;;tl) undcr thc Fublic Lands
|
Howcver, sec restrictions imposcd on dcalings affccting family land, Chaptcr 3. Scc also Articlc 242 ol or a statutory body suoh as
"';
thc Constitution. 2land Act. ,:r-.-.:^-..,L-?,
whcrc thc lcasc *
r1 22 It is not very clear wheth* .granted, refcrs to thc originrt grant or includcs a situation
Howevcr, thc Act does not preclude thc imposition of conditions on futurc grants of frccholds. Sce i! ;;;il;;' Thc usc of thc' tcnn 'qrantcdt
originally sranted to q.
r2
s. 4(2)(a) and 4(3).
See Makerere hrstitute of Social Research and thc land Tcnurc Centrc, University of Wisconsin-Madison. instead of
""'-"ffi;"diil#;ffi;;
.held by, a"Ugandan suggcsh that parliomcnt intiiJJti" former i,tcrprctation rathir than

USA.Report on Land Tenure and Agriculnral Da,clopncnt in Uganda (Jnnc. 1989). pp. I08-1 I 1 crseg.
Sec also thc.Reporl of the Technical Comnittea on Land Tgnurc Re/omr (Jrrnc. 1993).
,, ll$:;r.60(1[c)ofthc.Landlcr,thedistrictlandboardinwrrichtholandissituatcdisdccmcdtobef
r 3 Section 29,.Land.dct. Scc bclorv. lcssor,
r' Section 10.
2r Section 29(3)
J
li
rr r
Sections 2 and 4(5), Land Act. The features of a lcasc are discussed in detail iu Chaptcr 6.
i
*
i
 l0 Principles of Land. Law in Uganda
r Land Ownership l1
rshir
'& 9
:
Mur,orenunr oossession with the consent of the registered owner of the land. This obviously excludes a
out ofhisi
,quutt.r. Alicensee is also excluded by s.30(4) oftbe Land Ac1 whicli expressly staLes that a
)r to &rant;
Section 4(4) of the Land Act, describes 'mailo tenure' as a form oftenure u'hich derives its legality' pirson who is on the land on the basis of a licence frorn the owner shall not be taken to be a lawful
;ubjeho' from the Corstitution and its incidents from written law. As we have'seen, the Constitution oggupant.3l
to use the
declares rnailo as one ofthe four land tenure systems in Uganda. From a legal perspective, mailo Aliteral interpretationofs.30(1Xb) couldincludeanytenant. Forexarnple, supposetlutin 1990
mailo and
tenure is virtually freehold tenure. Mailo tenurq like Aeehold tenure, entails holding registered land Mukasa leased his tand to Okello for a period often years at an annual rent oftrventy thousand
ot imposc
reir lease..
in perpetuity.25 Section 4(4)(c) provides that subject to the customary and statutory rights of shillings. It is arguable that since Okello entered the land with Mukasa's consent, he is a lauftl
'lawfirl' or 'bona fide' occupants of the land, a mailo owner is entitled to enjoy all powers of occupant within meaning of s. 30(txb). Similarly, it could be argued that all nionthly tenants are
or district.
ownership of a freehold owner. Mailo land rnay also be subject to conditions, restrictions and tanfrrl occupants under the Act. Holvever, in our view it rvould be preposterous to suggest that
r land usc
Iimitatiors,whichmayaffectitsincidentsoftenurejustlikefteeholdtenure. Itissuggestedthatthe parliament could have intended that all tenants on regislered land were larvful occupants and,
rers of the
only legally significant difference between freehold aud mailo tenure is that mailo is subject to accordingly,weretenantsbyoccupanryundert\eLand-4ct.32 Althoughtheprovisionisnotvery
customary and statutory righs of lawftrl or bonafde occupants of the land.26 clear it is submitted that in the context ofthe Act and the apparent underiying policy oblectives the
ternx la$trl occupa[ts was rneant to apply only 10 pers0ns wlto were in occupation ofregistered
;e that $2I 'Lawful' and'6 onaJide' occupants land with the consetrt of the otyner lvithout grant of any specific tenancy but in expectation t}.at
As we have seerL the Land Reform Decree,1975, ernpowered mailo owners to evict customary
hold. Tltt they would remain on the land for an indefinite period. A possible example is a licensee protected
tenants from their land ifthe landowners required the land for economic development. Also, under
tscribes t by the principle ofproprietary estoppel.rs This may arise in a situatron, for exarnple. rvhere a
the general law oftorts, subject to the I imitation Act (cap 70), a landowner was entitled to evict at
l. the leas( landowner knowingly allows or encourages another person to build on the land thereby creating an
anytime apersonwho occupied his or herland without0re landowner's consent. Hence, potentially
cameintr e)eectation in tle rnind of that person that he or slie will grant hinl or her an interest in tlte land. A
thousands of ordinary people who were in occupation of mailo land as customary tenants or
ily grante(
squatters were at a risk ofpossible eviction by landowners. During the deliberations that led to the
cou( ofequity rnay order the landorvngr to nrake good the developer's expectatrons, for exaurple,
rvere sucl by granting liim or her an interest in tire land as the court deetus appropriate.r' It is subnlitted tltat
promulgation of the 1995 Constitution, rnany representatives in the Constituent Assembly were
the law. Il. under the Act the person in our example would be a larldrl occupant and protected by the provisions
apprehensive that landolvners miglrt evict tlrese people e/, masse, atd this might lead to social
conditiori of the Act discussed below.
uarest. To forestall the problem article 237(8) ofthe Constitution provides that all persons in
board fro4 Section 30(1Xb) expressly states that the expression lauf.rl occupant includes a purciuser.35
'laqf,!' or 'bonajide' x*upation of mailo, freehold or leasehold land shall enjoy security of tenure
:ld excee6
rntil parliament enacted an appropriate-legislation regulating the relaionship betweeu such Presurnably, this refers to a person lvho lmd purchased or agreed to purchase certarn land from the
such leaq registered orvner but by the tinre the Act carne iuto effect title had not been lransferred to hirn or her.
occupants and the registered proprietors. The provision was intended to be a temporary measure
At common law, if a seller of land allorved a purchaser to enter into possession prior to settlement,
peoding the enactment of the appropriate legislation within a period of two years of the first
I over in the absence ofany agreement to the contrary the purchaser was presuned to be a tenant at lvill
licant sessiea 9f ps1iament.27 Because the debate of, this matter was contenticus, and threatened the
m:king of the Constitution, the Constituent Assembly left it to parliamcnt to ddrne the terms of the seller,36Underthe LandAct, sucil a puchaser is deenred a tenarlt by occupanq'.r7 Section
ollolrs 30(lXb) is silent on whether to quali$ as a tenant by occupancy the purchaser rnust luve paid the
ssee for 'lawful' urd' b ona Ji de' occupant.2t
agreed.purchase price. The probable inference is that payment is not a requisite.
istration I-rrtrl'occupant The third meaning of 'lau&rl occupant' is a pe6on lvho was in occupation of certain laad under
graded
Uodersection 30 (1)of thelardAct,tlvterm'laradrloccupant'hasthreemeanings. First, itrreans customary tenure but whose tenansy was not disclosed or compensated for by the registered
ownerwhenheorsheappliedforapublicleaseovertheland.rS Asrvehaveseen,unders.24ofthe
"*.rnns occupying landbyvinueof.the Busuulu and Envufio Law of 1928, orthe respectiveToro
ryl :51o1. landlord and tenant laws of 1937. Effectively thq5e'4re custouraryliDanTa @lou) Public Lands Act, 1969, an applicant for a lease rvas required to disclose whet-her or not tlie land
rt:c on m?ilo landandnative freehold land.D rvas occupied by customary tenants, and ifit were so. whether they had consented to the alierntion
s€cnrulty, the term 'la*fiil occupant' means a person who entered the land with the consent of
1fu6 rgisrered owner and includes a purrluuer. A registered owner is a person who is registered as
g,qfir oftbe landundertheRegistrationofTitlesAct.Y T\effierActprovidesforttreregistration ll Under tho generel law, a 'liccnce' is pcrrnission giv6n to a person to cnler another's land for some specified
qufmpilrL fteghold and leasehold Land, butdoes
notmakeprovisionforthe registration oforsomary purposc which othorwisc would be a trespass (Thonus v Sorrell (1673) Vaugh 330; I24 ER 1098 at
,hd.r rerv{ vested io the government. Therefore, the second limb of ths definition refers to a 1109). Unliko a lcssee, a licensec has uo right to cxclusive posscssion, sec Cqt Coutrcil of Kanryala v
ter 6. r@rbo eotered into occupation of mailo, freehold or leasebold land with the consent of the !2
Mukibi 11967) EA 368.
fr+litryM The key requirement of the prwision is that the person nrust have entered into 3'
Thc mcaning of-tenancy by ocoupanoy is disoussed bclow
Unlikc a barc licencc, a liccnce protectcd by the doctrinc ofpropnetary cstoppel crsatcs an entitlelnent to
propertyrights inoroverland, see }/astemFtshPrducts Ltdv PenwilhDtstrict Cowrcil11981] 2All ER
thc 2U.
il* trlqe.El(4X+ lt is noteworthy that this provision, unliko s.4 (2) (a), does not includc tho possibility of 3' D.RCA No MI(A l3 of 1993 (unreported).
Sce c.g., BaD iruga v Karegrcsa and otlrcrs
atbrr
ur*l wr bciog for a pcriod lcss than pcrpctuity. l' Thorcasonforioclusionofapuichaserinthodcfuritionofalawtuloccupantisnotveryclear. Ifaperson
,ffi' lflroing{b) end (c). had purchascd thc land why should hc or she be a tcmnt by occupancy and not the actual orvncr of thc
o.d '"_,ffi' ,Sffi87(9I uiar :
r.iffit trsrrd,3 lonc 1998, p.4106.
1)
tt l{ieelq v L{*cer [1957] AC 416 at 425A35.
rMh1rrt - l; But it sccms tbat,thc dcfinition of lawful occupant could include a purchaser who was not in occupation.
ffiruun3*,Lcd/cr rr Scction 30(lXc)!.and Act
12 Principles of Land Law in Ugmda Lad Ownership t3
a
ofthe land. In addition, undertherrrnd Reform Decree, 1975. where public land occupiedby As we shall presentty see,{ mder fu limitdiq Ad (cap 70) where a squatter remains ia
customary tenants was leased to another person, the customary tenants were entitled to
adverse possession of any lald fw a period d d least trclve -yefs the owner is precluded from
compensation for their improvements on the land.3e Under the Land Act, such occupants are ae There
wicting him or her. By operation allaq the squrtter becomes the owner of the land. are
deemed tenants of the registered owner by ocorpancy, and accordingly, are protected by the Act.
wttplt {.;i
some similarities betweenthe requiremcm fot abonafde andfor acquisitionoftitleby
Bonafideoccupant adverse possession. In both instam€s, the pesoo in occupation must have entered the land
Theterm'bonafidex,clpant'hast$omeanings. Firstitreferstoapersonwhobeforethecoming withogtthe authority ofthe ow:rerand rermi-ned inoccnpetionulcballenged foratleastaperiodof
into effect ofthe 1995 Constitr:tion had oco:pied or improved certain land q,ithout being challenged twelve years. Howeveq they differ in other respects. First, mder the Limitation Act the twelve-
by the registered orvner of the land or by the agent of the ou'ner.ao Unlike a 'la1vful occupant', a year limitation period may be extended for up to thirty years qhere the landowner was under
bonafideocctspantenteredtheland\yithouttheconsentofthelandowner. disability.e Thereisnoprovisioninthelandlctforercensionofthetevelve-yearperiod. Secondly,
Soessentially,aDona
abonaJide occupant is deemed under the Act to be a tenant -by occupancy ofthe registered
frleoccupierisatrespasserorasquatter. Althoughthelvords'bona/ide'areusedtodescribethe
occupier there is no requirement in the provision that he or she must have entered the land in good owner.rr In contrast, Drrdet l\e Limitation Act after expiration of the requisite period not only is
faith." The motive of the personwhen he or sheentered the land is not material. title ofthe landownerextinguishedbutalso the intruderbecomes the absolute owner ofthe landby
The period of twelve years of occupation corresponds with the twelve-year limitation period operationoflas:52 Thirdly, thetermbonafideoccupieronlyappliestoapersonwhohadbeenin
prescribed by the Limitation Act (cap 70) for recovery ofland.r2 It should be stressed that the occupatton for at least twelve years before the coming into effect ofthe 1995 Constitution. There
provision requires that the person (or his or her predecessor in title)ar must have been on the land, is no time limit with respect to adverse possession. For example, suipose that Zake is the owner of

unchallenged by the registered owner, for a complete period of twelve years. Accordingly, if the the subject land. In 1985, Kasoma settled on the land without Zake's consent aad has remained
theresinceunclnllengedbyZake. KasomawouldnotquafiryasabonaJideocatpantbecause in
landorvner establishes that at any time before expiration ofthe twelve-year pedodll he or she
1995 he had notbeen in ocorpation of the land for twelveyears.s3 However, Kasoma could claim
clu-llengedtlrepersonclaiminglobeabonafideoccupier,theprovisionwouldnotapply.ar What
ownership ofthe land by adverse possession under the Limitation Act, tfby 1997 he were still in
constitutes the requisite challenge for this purpose is not very clear. The term'challenge' is not
occupation ofthe land.
defined anyvhere in the Act. According to both legal and English language dictionaries, the word
It is possible for a person to sati$ the requirements for a bona fide occupier under the Land
has various meanings. They include the following: 'to object or take exception to' 'lay claim to',
'demand as a right', and 'formally question the legality of some act'.r6 It is submitted that if at any
lc, and adversc possessor under the Limitation Acf . lt.is submitted'that in that went the person
has a choice to assert his or her claim to the land either under the Land Act or the Limitation Act.
time during the twelve-yearperiod the registered orvner sued the occupier for trespass that would
Fot example, in our illustration if Kasoma had settled on the land in 1982 he would be entitled to
constitute suflicient challenge for the ptrposes.oftlte provision. The same would be the case
claim the land a sabonafile oc,arpier. Altematively, he would be equally entitled to claim absolute
rvhere the landorvner physically evicted or attempted to evict tie inkuder from the land- Howevet
ownership of tle land in fee simple on the basis of adverse possession and the operation of the
the legal position is less certain in several other situations. For example, suppose the landowner
LimitattonAct.5a Inouropinion, theLandActdwsnotprecludethedoctdneofadversepossession.
had reported the intruder to the authorities, such as the local council, or warned the intruder
It is further submitted that the prwisions of the Land Act carurotbe construed so as to override a
verbally or in writing to stay off his or her land, rvould the courts treat such acts as sufficient
title acquired bv adverse possession, because that would be iantamount to deprivation ofprope4y
assertion of ownersltp for this purpose?" In our vierv, they should, but it remains to be seen how
without compensation contrary to article 26 (2) ofthe Constitution.
t-he courts will interpret the provision. A narrow interpretation rvould favour the squatters and a
The second meaning of a 'bona fide occupant is a person (or a successor in title of such a
u,ide interpretation would favour the landorvners.
person)rr who had been settled on land by the govenrment or its agent including a local authority.56
Unlike the first definition of a bonafide ocupant, inthis instance there is no requirementthatthe
3e Section 3(3XbXiv). person must have settled on the land for a particular minimum period. The main object of this
I
ro prwision was to protect from eviction hundreds oflandless people, including asylum seekers who i
Section 30 (2),Land Act. i
had been settled on certain land by the govemment under the Ranch Restructuring Scheme.5?
'r f
In the original bill, a bona de occupier included a person who occupied or devcloped land genuinely
public land owned in by larious indMdual ranchers.
,1

believing that thc registcrcd owner was not availablc. Tlrat provision was omittcd from thc final Bill, sec Most of the land was foilner leasehold
Hansard,20 Jnne 1 998, pp . 40524053,4058. Section 30(3)(a) prescribes that where the government settled people on land belonging to any
a2 Section 6 oflhe Limitationlcr, provides that no action to recover land can bc institutcd aftcr cxpiration of pcnonitmustpaycompensationtotheregisteredowneroftheland" Thereasonforthisrequirement I
twelve y,ears from the date the action accrued. This provision is discussed in Chapter 4.
{' The right of a bona fde occupant is transforablc. Sec s.30(5),Land Act. (
" It is subrnitted that a challcngc made after twclvc ycars would bc ineffective.
t! Mr Mutyaba MP, chairpcrson, Scssional Comnrittec on Lands, Watcr and Environmcn! said that cvidencc ar Scc bclow Chaptct 4.
ofeven a single challenge was cnouglr to rc-establish thc owner's rights on thc land, see l/ansard,2O lunc a' Sec eg Namb atu Kintu v Efulaimu Kamira CA No 26 of 1973 (unreportcdl U9751 HCB 221
1 998.
a6 'o Section 22(t Xd),Limitation Act.
tr See bclow Chapter
Blackb Law Dictionary (56 ed, Ncw York, Wcst Publishiug Co. 1979); The Oxford English Dictionary,, 4.
vol.Il (2d cd. Oxford, Clarcndon Prcss, 1989). !' Sections 6 and 77, Limitdtion Act. Scc furthcr discussion bclow, Cbagtcr 4.
a7 Under thc Lrzitation Act ,lhe pnly way an owncr can stop the running of thc limitation timc is by eithcr '!3a See also below discussion ofpcrsons who do not quali$ as bonafdc occupants.
suing for rccovery of the land or by physically rctaking possession. Constant protcsts not amounting to Sec Chapter 4.
physical rcposscssion ofthc land do not suflicc to stop thc linritation timc running against thc landowner 5i Section 30(5).
(Nambalu Knru v Efulaimu Kamira CA No 26 of 1973 (unreportcd); [1975] HCB 221). Sce belorv r' Section 30(2Xb), Land AcL
Chapter,4. It is thought that thc exprcssion 'challenge' entails a less stringeut requirement. 31 Hansard,2o
June 1998, p.4054. {

o
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91 d14st
 -17 '4 18 Principles o/Land Law in Uganda Land Ownership 19

after three months they have not reached an agreement, then either party is free to refer the matter It is submitted tlr,at where a plot is subdivided and each party is issued a certificate of title for its
tion
to the mediator o assist with the rEgouations.D If , after three months of negotiations, the mediator portionoftheland,theeffectistoextinguishpriorexistingrightsandtocreatefteshrights. Thus,
i nolr
is unable to assist the parties to reach an agreement, he or she must make a declamtio[ to that irc fomrer tenant by occupancy becomes an absolute owner in freehold or mailo of the portion of
1ate
'not effect. Thereafrer, the party that is seeking to sell is free to dispose ofthe interest as he or she tlielandheorsheretained. Likewise.theportionoftheplotallottedtothelandownerbecomeshis
,orts
thinksfit.to or hers absolutely freed from any claim by the previous tenant by occupanry. Where the parties
It is noteworthy that the above section does not expressly provide for the situatioowhere the has a rigltt ofoccupancy the nature
'her agree to become co-owners ofthe land over which the tenant
party to whom the offer is made ignores it or fails to respond within the prescribed three-month oitheir iot rert depends on their agreement. For example, they may decide to co-own the tenant's
sse!
period.tot The question is whether in zuch a case the personwho makes the ofer would be entitled olot as a 'plot'. On the other hand, they ruy agree to co-own the plot in freehold or mailo tenure.
)the
the to treat the other's silence as a rejection of his or her offer, and if so, whether he or she would be it is suggested that in order to ayoid future disputes, when the parties submit their documents for
ision entitled to dispose ofthe land to any other person. It is suggested that ifthe landowner is the registratron the registar strould ensure that the documents not only state the nature of co-ownership
ct to offeror he or she would be entitled to treat the tenant's silence as a rejection of the offer and, but also the tenure under which the land is co-owned. Where the agreement is to co-own the plot
ancy therefore, he or she could sell the land to any other person. The reason is that, apart frotn this as a plot, appropriate changes will be made to the certificate of occupanq'. If the agreemclt is to oo-
provision, there is no requirement under the Act for the landowner to seek the tenant's consetrt to own the plot in freehold, lhey will be registered as such and the certificate ofoccupanry cancelled
rybe
ee, it dispose of his or her land. The legal position is less clear on whether a terunt by occupancy could accordingly.
_

)ther do the same. This is because under s. 35, as we have seen, a tenant by occupanry needs the
ethe f coruent ofthe landowner or ofthe tribunal prior to undertaking any transaction affecting his or her Application for a cerirtcatu of occupancy
,here I right of occupancy. Indeed, a traruaction entered into without the pquisite consent in the prescribed g, tenant by occupancy may apply for a certificate of occupancy in respect of his or her plot The
lhas: fonn is not effective to create any interest. It would seem that even if the landowngr iguores or certificate ofoccupancy is a registerable interest under therRegrstration ofTitles Act (cap205).tu
rd ori rejects the offer, the tenant must obtain the requisite consent prior to selling to another person Sction 34 ofthe LandAct provides that where a tenant wishes to acquire a certificate of occupancy
$
otherwise the transaction would not be effective to transfer the interest. he or she must make an ai2plication to lhe registered orvner oftlle land for corsent for the certificate
,
to be issued. Upon receipt ofthe application, the landowner is required to forward it to the land
n
$ Subdivision and/or co-ownership between tenant and registered owner
i A registered owner and a tenant by occupancy may by ruutual agreement subdivide the land over
.o*o111eer$ iu thejurisdiction where the land is located. The cornmittee's functron is to determine,
sal to{ ver$, and. adjudicate any boundary disputes between the parties.I6 Section 34(2) states that the
res to which the teunt has a right ofoccupansy so that each acquires exclusive occupancy or ownership cominittee must nominate a day when it !vi[ meetboth parties at tlie site of tlie land in question. The
o&e ofa portion or portions ofthat land.r@ The provision probably envisages a situation, for example, date appointed must not be earlier than three weeks and not more than tfuee weeks from the date
where a tenant may wish to relinquish part of his or her plot to the landorvner in exchange for the landowner received the application. In adjudicating disputes, the land committee must observe
sis. exclusive ownership over the part retained. Another possible example is where the landowner the rules of natural justice.ro That is to say it must not make a determination without fust giving an
wishes to build on part of the land occupied by a tenant. He or she may negotiate with the tenart opportunity to both parties to be heard. Secondly, the comnittee nust oot be biased or even
to surrender to him or her that part ofthe land in exchange for exclusive ownership over the appear to be biased in favour of or against either party. There is appearance of bias rvhere, for
remaiuder ofthe plol. The object ofthe above provisiors is to facilitate the parties to negotiate a
example, a member of the comrnittee is a relative or close friend of one of the parties. To avoid
nutually convenient land settlement. appearance of bias such member should uot sit on ilre committee. Simiiarly, if a commrttee member
m Instead of subdivision, the tenant and the landowner nuy agree to become co-owners of lhe
has been involved in serious personal disputes with one of the parties, he or she should excuse
hrvt either in joint tenatrcy or tenancy in common.ror Where they decrde to become tenants in himsefor herself from the committee's deliberations.
of com-uon ttrey should stipulate in their agreement the shares of each party and any othet teff}s of . Other than observance of the rules of natural justice, the commrttee is free to set its own
tieir agreement. Coownerslr-ip would be the best option for the parties $,here the plot is too small procedure and is not bound by the ordinary rules of evidence. Thus, it could hear evidence that is
lns" ix s.tbdivision or where the parties wish to conduct ajoiut venture sucir as building a house for
o&erwise inadmissible in court proceedings, call ryitnesses on its own motion and use evidence
mr 6r sgsmlercial farming.
contained in ofrcial records or adduced in other proceedings. ta
Where the parties subdivide the land or agree to become co-owners they rnust inform the
Afler tlre land coffnittee makes its detemiution, it must inform both parties of the outcorne.
f,:gisrilofTittesaccordingly. Section3T(2)oflheLandActprovidesthatthepartiesmustsubmit There is no provision for appeal against the cornrnittee 's boundary determination. Howeveq it is
u the regisrar documentary evidence of their agreement and. where applicablg the certified survey submitted thatthe land tribunal lus thejurisdiction o review the committee's decision in accordance
ro(
dm<. Upon satifaction that the parties have complied with all statutorl, requirements, the Registrar with the principles of administrative law'@
mr< rnake 1[s sppropriate entries on the certificate of title and issue to each party a fresh certificate.
Ibe regisrar mus also i:rform the recorder ofthe changes that have to be rnade on the certificate of
e.-T4nry or have it cancelled.
r0' Sec s. 2,1^andAcC definition of'rcgistraplo intercst'. Sco also s.34 (9).
c ro' I,atrd commiuecs
arc cstablished undcr s. 65 oflhc Land Act.
I S.Eim 3qO. r0' It would
sccm fiom thc provision that thc Committco's powcr is only to adjudicate disputes over
r Sr*t- 36(Z). . boundarics. It has nojurisdiction to dctcrminc other disputes, such as whcther thc applicant qualifies as
r rs-farc with s. 35 (5) and (6), with rcspcct to tho rcquircrnent for the landowner to givc consenl roi- .tbonafide occupicr.
m-tioa. Failurgto givo conscnt witlrin thc prcscribcd period is regardcd ss a rcfusal. to' Scction
3463).
E$r;'i,-37,LandAct. Iot Section
34.
rd t0' Scc thc leud tribumls' powcrs, s 11(2)(d).
20 Principles ofLand Lav m Uganda Land Owtership

Consen! of the landowner of a cerhfcate cf ocrycrt is tl+r bha*kir= esidenceihat the holder is a b ona fi de
Section 34(5) provides tlmt an applicant for a certificate ofoccupancy shall not be entitled to be la*ftI occupant ofthe plotirqxirrtEfufuEqEisi$r cs$ent was properly obtained.
issued rvith a certificate of occupanry if his or her rent is in anears. Subject to this provision" s. notefiorthy tht s. 9{l) ef,tte Ldntbar"*'rsrifr r4*== b a certificate oforstomary
34(6) states that upon receipt of the committee's detennination the landowner must immediately that it is conclusive widence of &e c!,l*ila"y dgiis @d iat re$s specified in it. "T If
givehisorherconsenttotheapplication. Theconsentmustbegivenintheprescribedform.rr0 If ifltendedthe gant ofacertificae of@Fylobesimilatr crncfusive, one would think it
the landorvner refuses or neglects to give his or her consent within a period of six months from the have expresslv stated so. Accordirytr, in fu drw ddr prorision it is thought that
date he or she received the committee's determination. the tenant has a right to appeal to the land did not intend the grart of a certificde of ocrryc5 to be conclusive evidence of title. It
tribunal.rrrUnders.34(7)thelandtribunalhaspo*ertogiveconsentforthegrantofacertificate submitted, ho',vever, that as betweeo the furdiarc Iadwm ard tendt the cedficate of
ofoccupanc.y.rr2 Itseemsthatparliarnentintendsthatthelandownershallnotrejectanapplication is conclusive. In the absence of frau4 both parti* will be ctopped from re-opening matters
for a certificate of occupancy except on reasonable grounds. Certainly, this was the view of should have been raised and determined by the tribuml before the certificate was issued.
Mutyaba MP, chairperson of the Sessional Committee on Land. In his speech he said that: 'This
consent should come as a matter of course. where the landlord withholds consent, he must give Termination of tenancy by occupancy
very good reasons and tlte tenant has a right ofappeal to the land tribunal."t3 Once a tenant As we have seen, a tenancy by occupancy may be terminated wlrere the tenant defaults in
obtains tlte requisite consent ofthe landos,ner or the land tribunal, as the case maybe, he or she is of rent.tlt In addition, section 38 provides that a tenancy by occupancy may be terminated wherd-
entitled to obtain a certificate ofoccupanq'. the tenant voluntarily abandons his or her occupancy oiis ordercd to vacale the land by statutoql'
autlrority. There is no other provision in the Land Act for termination of a tenanry by occupanq"
In ourview, this means that a tenancy by occlrpancy cannot be terminated except on the ground d
Effect ofa certificate non-payment ofrent, voluntary abandonrnent ofthe land and forced abandonment by a statutory
Section 34(8) provides that the recorder mtrst isstre a certificate ofoccupanry to the tenant upon authoritY.
presentation of the requisite consent. Thereafter, the recorder is required to notiff the Registrar of
Titles of the issue of the certificate. The registrar is required to record the certificate as an Voluntary abandonment
encumbrance on tlte certificate oftitle ofthe landowner.rra The effect ofendorsing the certificate A tenant by occupancy voluntarily abandons or is deerned to have abandoned his or lter right d
ofoccupancy on the lando*ner's certificate oftitle is that the tenant's interest in the land will bind occupancy in the following circumstances. First, a tenant abandons the land where he or sh
makes his or her intention known to tlre registered landowner.rre In la1v. to abandon land rneans tt
any person rvho purchases or deals in tlmt land. In other words, the land rights of the holder of a
giveup all claim in relation to itwith no intention ofever again asserting, claiming right. or intere$
certificate ofoccupanry s,ouldconstitutean exception to indefeasibilityoftitle undert\eRegistration
ofTitles Act.t13 over it.r20 Because abandonment entails l,oluntary relinquishment of one's property, tlte courts dri

Horvever, it is submitted that evenrvithout endorsement a tenancy by occupancy constitutes notlightlyinfertheintentiontoabandon.r?rTheremustbeevidencethatcliarlyindicatesthattht

owner freely intended to give up his or her property and never again to assert claim over it.!22 It ir
an exception to indefeasibility of title. In the case of Lul*vago v Bawa Singh and another,tt6 itwas
held that title ofa registered proprietor ofmailo land rvas subject to the interest ofany 'tenant' and
thought that rn construin; the provision the courts would apply an equally strict test. The fact th{
a tenint by occupancy informed the landowner that he or she intended to abandon the land will no{
that a kibanja holder rvas a tenant 'q,ithin meaning of s. 61 of the Registration of Titles Act.
necessarily be treated as conclusive where evidence indicates. for example, that tlte tenant tvd,
Moreover, s. 32(9) of the Land,4 cf erpresslv declares that the security of tenure of a lawful or Dona
acting under some extraneous pressure or mistake. The courts may also investigate any possib{
fde occupant is not to be prejudiced by reason only that he or she does not possess a certjjicate motive for the alleged abandonment ofthe land to ennrre that the tenant freely intended to abandoil
ofoccupancy. The latter provision rnakes it absolutely clearthat except as providedby the Act the
securityoftenureoflaufirl andbonafide occupantsisguaranteednotonlyagainstth+registeied
orvner but also against subsequent dealers in the land.
Possession ofa certificate ofoccupancy provides documentary widence thatthe namedperson
has a right ofoccupancy over the subject land. This undoubtedly will facilitate land transactions
q,ith respect to rights of occupancy. Moreover. since the certificate of occupanry is granted after
verification and determination of the boundaries. it is likely to reduce future disputes over
landownership and/or boundari*. Tlrc LandAcr, however, does not say whetler or not possession

Itl
!ro Section 34 (6).
til
-'
Scctions 32 and 33, see abovc.
Section 34 (7). "'
t10
s.rtioi isizX"l. i

rr2 There is no particular procedure provided in lhe Act lor the lribunal when dealing rvitlr a tcnant's appeal TehidyMncralsLtdvNorman QB 528 at553 pcrBucktcylJ.
tl97ll I l
tzt Gctobzd v Pridmore (1970) I 15 So1 Jo 78 (casc ofan eascment). I
iu this regard. Cornparc with thc proccdurc lor appeal against a landowner's decision to givc conscnt to t21
a transaction, s. 35(5)-(7). Tchidy Minerals Ltd v Nonan [971] I QB 528 at 553.
ttt r!! Theopeningsentcnccofs.3S(1)stltcsthatthesectionissubjecttoscction28 (whichdcalswithrigtrt
Sec Hansard.20 Junc 1998, p. 4055.
I Ir Section 35 (9). of womcn and children rcgarding custonary land). It is thought that this is a typographic&l crror, r
II r Sec s. 61, Registralion of Tiiles Act. See Chapter 5.
rcction 38 and s.28 have nothing to do witlr cach otlrcr. Thc provision should bc subjcct to scction 4{ I
which deals with restrictions on trsnslt! of family land. l:
rr6 oftitlc in i
[1959] EA 282 at 285. Thc principlc ofindefcasibility is discusscd Chaptcr 5. r2{ Section
3S(2Xb).
F
E-
 rt 22 Principles of htnd Law m Uganda r
I
Land Ovnership 23

'rership }ti
t}e mediator shall make a report to that effect and he or she may withdraw from
the negotiations.
leaves the rest derelict is not deemed to luve abandoned the land. Whero a tenant was unable to
onart,de t- attend to the land due to a disability and had no other family mernber or irr:Iy other person to look
r25
However, the parties, if they so agree, may continue
to negot'iate'
rined. It is, after the land he or she could apply to the tribunal for an extension ofthe three-year period" What
'o*nentrrp; constitutes disability in this regard is not defined. It is suggested that it would include serious CusrouenY TaNDTENURE
parliametr illness and bereavement. It may perhaps also include a situation where a tenant was in exile or
nk itwoul( prison. In all such cases, the tenant would be entitled to an exlension oftime, which is equivalent Cus6mary land tenure is a qystem of land ownership
govemed and regulated by customary
parliamefi. to the period he or she was under disability. It is thought that the extended period of grace would principlei and usually sanctionedby customary authority.Da As we have seen, customary land
titte. It id run from the date ofthe tribunal'sjudgernent rather than the date the person ceased to be under ienurjis one ofthe four systems ofland ownership in Uganda recognised by the Constitution
and
'occupanc,. r$ With the e*ception of land in Bugarlda and urbatr areas, most land in Uganda is
disability. ih" L*dA"r.
utters that, to the etluric group and
The effect ofvoluntary abandonment is tlrat the tenant's riglrt ofoccupancy ceases to be an ow[ed under customary land tenue. The specific tenure varies according
regionof the countryrs In sorue parts ofthe country ownership of land is nrainly communal, based
ed. encumbran@ on0re land andthe registered ownerisfreeto dealwiththe landformerlyoccupiedby
the tenant as he or she pleases. The Act allows the fonner tenant to remove any structures, orirt-r, with individual usufructuary rights over specific plos. But generally there is a steady
pronounced in tlte densely
lnpaymen
buildings, and other things he or she placed on the land, except darns and trees.r26 The landowner evolutionary change towards individual owuership. This trend is more
ated when
has no obligation to compensato the outgoing tenant for loss of his or her rigltt of occupanry.r2? populated districts in the southern and eastern parts ofthe country and less so in the northern and
ry s&ltutorl north-eastern Parts'137 .
Involuntary ternination ofoccupancy in urban areas
)ccupancy., From a tegal perspebdve cusomary land tenurg rnailo, and fteehold are sirnilar in tirat ownership
Seaion 38(4) deals rvitha siurationwlrere apersonor abody actingunder statutory powercondenrns I
rground of -t - oflandunderalltlueetenuresisinperpetuity.rr Themainlegaldi.fferencebetweencustomaryland
a tenant by occupancy's building or orders the building to bd demolished, The section provides I

a statutory,' tenue and the other tenures is that custouBry law regulates customary land tenure. Section 4(l)@)
that rvhere the land on which the buildhg is situated is an urbrin area, the tenant's right ofoccupancy genera]ly accepted
of:llte LandActprovides thatcustomary landte[ure slull be governedby rules
shallnotbedeemedtohavebeenextinguishedbysuchorder.rr However,ifbecauseofplanning Any person acquiring land in that conununity shall equally
as biuding by Ore particular community.
or building restrictions imposed under any legislation the tenant is unable to develop the land, he
beboundbythoserules.rse However,theapplicationofanycustomaryruteissubjecttotherule
or she may assign his or herright of occupancy providedthatthe landowrer has the first option to
rer right d, notbeing repugnant to naturaljustice, equity, and good conscience, or beirig incompatible either
purchase.r2e Section 38(4xiii) empowers the landowner, subject to the approval of the disuict
, he or slr, directlyorindirectlywithanywritteulal.r{o Alsos.28oftlieLandActexpresslyrendersvoidany
board, to acquire the rightofoccupancy upon payiuent to the tenantforthe right ofoccupanry and
C rneans kj customary rule or practice that denies wonen, children and disabled persons access to ownership,
for t}e improvements on the land as detennined by a valuer appointed b'y the govertrment.
or intere(. use or occuPation of land.rar
: courts Conversion oftenancy by occapancy to a registrable interest
es that Certificate of customary ownership
Section 39 oftheLandAct empowers a tenantby occupancy to corvert his or her rightofoccupancy
rit.r22 It Article 237(4Xa) ofthe Constitution empowerc all Ugandan citizens owning land under customary
to any one ofthe following registrable interests: nrailo, freehold, leasehold or sublease.tro The
te fact telge to acquire certilicates of ownership in a marurer prescribed by pariiamenL On the basjs of
power to convert the tenancy is subject to the approval ofthe registered owner ofthe land. Section
ndwill thisarticle, s.5(1) ofthetrard,4crprovided that individuals, families orcornmunities orldlg land
3 9 (2) provides that a tenant by occupancy nlay apply to the registered lan Jowner for penuission to
enant uuder customary tenure or former public landt'2 nray acquire a certificate ofcustomary olnership
cotrvert his or her tenancy. The landowner may grant his or her consent with or without any
r.Y in respect ofthe land they occupy. The power to issue a certificate ofcustolnary otvnership is
conditions,rrror reject the application outright or invite the tenart to enter into negotialions.D2
o vested with the relevant district land board following an elaborate prescribed pfoc€dtue.
Unlike the application for a certificate ofoccupancy, where the tenant could appeal to the tribunal
it againstthe landowner's refusal to give consent, in this case, there is no such riglrt. It would seem Procedure for application
it is up to the parties to reach an agreeluent. r3r Section 3 9(5) provides that where the parties have Essentially the procedure for application of a certificate of occupanry is as follows. The applicant
she
agreed to negotiate either ofthem could invoke the assistance of the mediator to bring them to a must submit an application in the prescribed form together with the requisite fee to the land
of tluee
setflenent. Butifafteraperiodoftfueenrontlsofnegotiationsthepartieslailtoreachanagreement, committee in the parish where the land is situated. Upon receipt of the application, the committee
lnt
is required to advertise rhe application by posting a notice in a prescribed form in a pronrinent place
r land r:5 Scction 38(3).
rl5 Thc provision does not proscribc a timc linrit within which a formor tcnant lnust renrovc fixtures.
r!7 Scction 38 (lXc).
er that t3f Section 4 oftho Land Act
r:'Scction38(4Xi). Thoprovisiondoesnotsaywhathapponswhorothelandrs:ural. Prcsumably,thecffcct
would be thc s&mc.
I$ Article 237(3) of thc constitution, and s 3, Land Act
r, rrt SccMorrisandkcad,tJganda:heD*elopmentofitsLawsandCotlslitulion,supra,pp.353-359.
Sccdoo 38(4Xi0.
u Thc expression 'registrablc interest' refcrs to an intercst for which provision rs madc for registration under
r37
SccgcncrallyObolOchola,Cuslonarylandl-awandtheEconomicDevelopntentinUganda,supta,pp.
ti.c Regrslration o/Titles r4cr: nailo. frcchold, losEchold and sub-leaseh<,1d, ccrtificatc of cuslornary 67-1 16.
Irr 4(1[h); a(2Xa) and 4(4Xa).
ownership and cortificato of occupancy, *o s.2 ol thc lind Act Sections
Dr trt section 4(1{c).
with Scction 39(3).
u: Section 39(4). Tho scction says that thc registcred owner must rcspond wilrin a pcriod of threc prQnuis
rao Section
l7 (l), JudicaureStatute (No 13 ol 1996).
al errq, l'r Sec bclow for dscussron ol this provision.
scctioo hoor the datclfrecciving thc application. Thc provision does not saywhat :appcns ifthc owncr fails to
rf2 FormcrpubliclandmoanslandprcviouslyadministeredtndctPrblicLandsAcl,lg6g,piortolhaLand
rcspond within thc prcscribcd pcriod.
r; Scc also l/aruard,20 Junc 1998, pp.4055. aud 27 June 1998, pp. 4269!'210. Reform Dccee,l975.
 ry 24 Principles olLand Law in Uganda Land Ownuship

in the parish and on the subject land. The notice should specig the location ofthe land and its aoDlication. The report shfild srrre wHta it recoomends that the application be
I

approueA unconditionall-Y, or apPrurcd sdlca to conditionqor

1
approximate area. In addition, the notice should contain an invitation to any person with an interest restrictionsrsr to be
i
or clarm in the subject land, including owners ofadjacent land, to attend a meeting ofthe committee the ctrtificate.r$
at a specified time to lnake his or her claim. The meeting should notbe scheduled earlier than two The corn mittee must submit ib rEport to the relerrant land board with a copy to the
weeks frorn the date ofpublication ofthe notice.r'l persons who made claims
must also make a copy of iS report arailable for irspection by all
The land committee lnust meet to hear.and detennine the application on the day advertised in were heardby the committee.t'
the notice. Section 6(l)(a) states tlut the committee shall determine, veri$ and mark the boundaries The deqsion whether or not to grant a certificate of customary ownership rests with the
of all interests to which the land is subject.r( Claims of other persons over the subject land must given wide powers in dealing with
board after considering the committee's re.port The board is
also be heard and determined. These may include rights of u,ay or any other easementsrrr and recommendations. It may accept the committee's recomtnendation to isstte or
conmittee's
'third party' riglrts over the land."5 If in the course of its proceedings the committee deems it issue a certi5cate ofcustomary ownership or it may reject it outright. It may reject the
necessary it may adjourn its hearing and invite an offrcer from the district land office or any other
recommeniatioo to grant a certificate or vary tlle conditions or restrictions proposed by
person rvith recognised knowledge of local matters to conduct further investigation of a claim.r17 s Com'erselY, the board may order a certificate tobe issred contrary to the
@mrdttee.'
In making its determination, the committee is obliged to safeguard interests and rights in the land of recoftmeniations.rse It is also within the board's powers to retum a report t0 the committee
lvomen. minors, persons lvith disability and absentees.rrt The committee is also required to take instructions for further action that it requires to be taken. Seclion 8(2) states that where the
account ofany interest in the land in respect ofrvhich no claim is made.rre rejects orvaries a committee's recommendations it must give leasons for its decision.
In the event of any disputed claitns. the comrnittee must use its best endeavours to mediate The board is required to communicate its decision in writing to the Recorder.r60 Whers
behveen the rival parties in order to arrive at an agreed settlement.r50 However, the committee is board decides that a certificate ofcustomary ownership shouldbe issued, the Recorder shall
required to adjudicate in accordance with orstornary law any dispute referred to itby a person with the certificate to the applicant with endorsements of conditions, restrictions, or
limitations
interestinthesubjectlandorreferrcdloitbyanownerofadjoiningland.rfl Forexample,aperson bythe board.r5r There is no prwision in the Act for afiy person to be heard or to make
rnay challenge an application on the ground that the customary law of the particular community to the board. Howwer, under s. 8(6) any person aggrieved by a decision of the board
has a
does not recognise individual orvnership or that the applicrnt's rights over the land do not constitute to tle land tribunal. The tribunal may confilm, vary reveEe or modiry the board's
appeal
ownership. When adjudicating over disprites the con'rmittee must observe the rules of natural and may make such other order as it is empowered to make under the Act.
justice.r52 Itshouldbenotedthat,thecomrnitteeisnotboundbyrulesofevidenceorprocedureof
an ordinary court. Hence, for example. it can admit evidence, which is other,wise inadmissible in Efrect ofa certificate
ordinary courts and call witnesses on its olvn rnotion.rs! If it so wishes, it may seek advice on any A certificate of c'ustomary ownership'is deemed by the Act to be conclusive evidence of I
matter before it of a customary institution within the parish which is reputed to deal with land customary rights and intirests endorsed on the certificate.ro However, a certificate does f
matters. Generally, the committee is free to determine its own procedural nrles, including, but not change the tenure systemunder which the land in question is owned. Section 9 (1) states that*
necessarily adopting customary procedures for resolving land disputes.r" land to which the certiflcate refers continues to be owned, ocorpied, and used in accordance nf
On the conclusion of its hearing and determinatio[ tle committee is required to write its report. cllstomary law. Land transactions and third party rights affecting the land also continue tf
The report should include a record of all claims made in relation to theland andwhether or not, in regulatedbycustomarylaw SubjecttotheprovisionsoftheAct,r6randthirdpartyrightsendod
its vieq,, any claims have been established and it should give the reasons for its view. In addition, orith....tih.rte, a certificate entitles the holder to deal with the land as any other landcwner n(
the report must set out the committee's findings and recomrnendations, with reasons, on the He or she may lease the land, allow others to exercise usuftuchrary rights over the land '{
dispose of the land by will.t65 Except where restricted by endorsements on the certifica&
certificate holder may mortgage, pledgi, subdivide, or sell the land as he or she wishes.r6 i
rt

t'r Section 7(2)(b).

rat Notc that tltcre is no requiremcnt for the land to be surveyed (conpare with the requiremcnts for
155
Rcstrictions may incltrdc cxclusion of a right o scll or morErgs thc land, sce s. 9(2).
application for frechold title, s. 14(3)). rr' pcrtaining
145 Secs.6(1)(b).AtCommonlarvaneaseulcntrnusthavcccrtainessentinlfcatures.seeChaptcr8. Section 7(6)(a). Undcr s.6(c), thc comnrittcc b reCuircd to record any third party rights
Probably,
land. Clearty, such righb must be included in b repcqt fcr qdorsncnt on thc cotificate. Scc also s.
iu thc context of the provision thc tcrnr rvould includc rights which arc not cascments at Common law. r,
ra6 Third party rights includc leases. rights of usc. pledgcs and othcr cncunrbrances whethcr by virtuc of Section 7(6XbXd).
[r Thc Board cannot alter third party riSht rEcocEEd.d I thc committcc, s' 8(3)'
customary law or otlrcrwise. rs'
It? Section 7(4). Section 8.
t'o Scctior 8(4).
r'rr Scction 6(1)(g). Also undcr s. 4(l)(d) sny cnstomary practice that tcnds to discriminatc against womcn
r.r Sectior AiSj. Noft tur *.txc Gc cr-rn- serH tH p6rty riglts, thc ccrtificatc cannot bc
aud childrcn is rcndcrcd void.
r'e unless thor righu lte cad.r-d o Ge caGcal' r- {3}
Scction 6(1)(h). t'r Scction 9 (1).
tro Section 7(5). r'!
t5r Section 6(1)(c). E!+ hl a'= did b r 4 d b Lqd Act. Scc Chaptcr 3
Dealings atrcdfug
r52 Section 6(2). Sce abovc for mcarting. "' ThescL rigtt I r* cr dai.- pr'o6 EEr et bad, r XO For examplc' a right givcn to a
r5r Section 6(2Xa)-(c). cuhiv-xh Frt dGE'' lrolrcm L r urda*:cry' ftttl
r'r Seutn 96;qe;,(tld
rr' Sectiorr 6(2Xd) and (e). r55 scd'o9(/)(cL(OdG
OU

h,.
v:
H,TT

ffi
*'n:*
't 26 Principles ofLandLaw in Uganda r
I
l
Land Ownershrp 27

customary law applicable

Where a certificate holder enters into any transaction aflecting the land, he or shq must provide couuruttee, in
considering any application, to Uke.into account whether
.TJ:l'J* As with an application for
recognisei or provides for individual ownership.
the recorder with a copy or record of the uansaction. The recorder is reqrired to keep records of ir rrr,,rUfu, hnd
such transactions in the prescribed marurer.16T Section 9(4) provides that a transaction involving a of custol*ary ownership, the com,rittee is required to submit its report and
applicant.
;laimsorwf,
t lease, mortgage or sale of the land shall not be effective to pass any interest in the land unless the
"riiirr",l,
iiliffiia""*s to the iand board, which is responsibte for the final decision.rTs
recorderregisters itte This provision is mainly intended to protect third partres dealing in custonury
tnnlicant with a certificate of caston'ary ownership
land. For example, a person wishing to purchase such landjust needs to search the recorder's conversion he or she rnust
iid"i" a certificate of custolury ownership seeks a tenure
register for recorded encumbrances. He or she need will notbe concertred by uruecorded claims ^nild"rof relevant land corunittee for assessment
,ri*li * uppfUtion with the prescribed fee to the
il*Iirffil over the land. The requirement to record transactious rvill also help to nrir rimise disputes between
together
i?Oruppri.iri"nandrecornmendation.
Sincebyvirtueoftlecertificateofoccupancytheapplicant
ecornmitt{ the landowner and persons claiming to luve acquired interests in the land. It is submitted, howwer,
described in the ce(ificate of occupancy, the comrnittee is
that the fact that a transaction is not recorded does not mean it is devoid of legal efficacy. An ;;;i;;;rfrr*.d owner of the land fresh scrutiny'r76 However, in making its
rposed by
commrtteil*
fi unrecorded trauaction would be effective as a contract betrveen the parties to the agreenent, ,""-rirra to ua."pt the content of the certificate without
account wliethercustomarylalv
e
rmmitteew$ though not binding on third parties.r6e For example, where a landolvner mortgages the land the
::ffiil;;mendation, thecolruuitteeis required totakeinto
orvnership of land''?? The
rerethebof mortgage willbind the land even though itis not recorded, though if the landowner mortgagedthe ,ffi;i; ; G subject land recognises or provides for individual
were not dealt with in
land to another person and the transaction thereofis recorded the iatter u ould prevail. i|ffifi;; ;rt . into uctorot
aio rut net"or additional uratters,
-y rvirich

iir.[gir.l *iort onthe application for a certilicate of custotrary ownership.r?8

,oo 1y1rara 1$ The governrnent anticipates that &e provision of certificates of custcrnary ownership would
is#" facilitate dealings in customary land. In particular, it is expected that possession ofa certificate of
-+ .ADplication
der shall grant offreehold
custonaryownership would enable holders to obtain crediton $ecurity oftheir land Aornfinancial
for
rtionsirnpod
rrepresenta$ irstitutions. Section 9(2) ofthe Act requires financial institgtions to accept the certificates as ifi;;; ,rf.rrio uppti.ution by custornary owners to convert their tenure to freehold' The Act
person applying for a freehold o'er unowned
oi.scriu.s u siruilar procedure to be followed by a
t has a rightt evideoceoftide.r'o Ontleotherhand.s.9(5)nukesitclearthatwherea;rrortgagorofcustornary
land defaults in repayment ofthe loan, the lender has a right to sell and to execute a transfer ofthe
i.*"priU.f*a.r?e'UnderAfiicle24l(lXa)oftheConstitution,oneofthefunctionsofadistrict
rard'sdecis$
ionO U6urO is to hold and allocate any land
in the district that is not orvned by any person or
lan( just like any other mortgaged land. envisaged would include land in the district which no iudividual
group or
uori,*ity.,* The land -In
r nrost districts it is unlikely that there is suclr an unowned land''8'
Conversion ofcustomary tenure and grant offreeholds otfier iOentif,eO entity olvns.
land it hotds ater expiratiou of a lease granted by a
T\e l"andAct nakesprovisionforowners oflandunder custonury.tenure ro change theirtenureto it e UoarO lray also allocate in freehold auy
,iAence of
icate does +
{ freeholdandforthegrantoflandinfreeholdoutoffonnerpublicland- Sectionl0(1)providesthat former controlling authority.
tt?

Istates thatt arry person, family, conrmunity or associationrTt holding land under customary tenure on former
Pover ofthe board
:cordance ufi priblic lan{may convert the tenure into freehold in accordance with the provisions of the Act. It tenure to freehold or
Tleboaid is requiredto consider the applicationforconversion ofcustornary
continue toi is Dot ueressary for a landowner to apply for a certificate oftitle prior to applying for conversion of
'ights endonf
forgrantofafreeholdinligirtofthecororittee'sreportandrecomneudation.ra Butintheendthe
his or her custonary tenure to freehold.rT2 In other words, an owner cf custornary land could lvitll 0r without cotrditions
decftion rests lvith the board. Thus, it rnay accept the recourmendation
andcwner ri directly apply to convert his or her tenure to freehold instead of applying for a certificate of
or restrictions proposed by the conunittee or subject it to additional conditions, restrictions or tliird
the land re$ <asomary ownership. investigation
party rights.tt'It inay return the report to the cornnittee with instructious for further
re certificatq othu lnnd, application for conversion that the committee
anO or blring.t" It may, on the approve an
ishes.r6 : "lpplicant without a certirtcale of customary ownersltip rs6 The board is not required to give any reasons for its decision
Tbe procedure for tenure conversion where the applicant has no certificate ofcustomary ownership, recommended should be rdjected.
or restrictions it
t
v ls sisilar to that followed for application ofa certificate ofcustomary ownership discussed above. exceptwhere it rejects the iomrnittee's recomrnendation orvaries any conditions
I reconrmended.lsT
1
a
The application must be urade to tire land board in the prescribed format. The form together with
* &e prescribed fee must be submitted to the committee of tlrc parish in uhich the subject land is
; pcrtaining b{ Situals4ta Upon receipt of the application, the committee shall exercise with respect to the
. Scc also s.* qplication all its flrnctions specified in s 6 and follow the same proced,ue as it follolvs for the r7t Scction 10 (4)and 14 (1).
l' r7' Scction 12(4) aud 13(2).
t rylication of a certificate of customary ownership.rTa Section 12(2) specifically requires the
! t?? Scction l2(2).
;i r7s Additionsl matters may includc third
Party rights, see s' l4(2)'
l$

tl1 Scction 9(3).

rt' Section l1(1)
.un"ot * { rro Sec also s.60(1)(a) ofthe LandAcL
This pmvision has somc sinrilaritics with s. 51, Regr'suation of Titles Acr (cap 205). ttt
t, Sinilar principlcs will apply as with unrcgistered trarrsactions under the Regsb alion of Titles Acl. Se* for
*tmplc,Serunjogiv Kaubira CSNo 547 ofl987 (unreportcd); [1988-90] fiCB 148. Scc Chaptcr 5.
rs2
Scc Hansard, supra, pp.4183
Scc dchr.rition
- 4185.
ol'formcr contolling authority': s.2. The district land boards lrold reverstonary interests

". *#
iil Tbc provision was in such leascholds, sce s. 60(1(c).
*" addcd, according to ono nrembcr of parliamcn! to re-assur,j banks flrat thc ccrtificatos rB Scctron l4(l)
*rll be rocognised by the courts, sea Honsard, supra, p. 4169:10. r"
'^ 'Association' means a Commrnal Land Association cstablishcd under s. 16 v) thc la il Act. Sectiou 1a (lXa) & (b); Also s. 10(2).
tr5 Section
Tlis is implicd in s. 12(4) and l3(2). -j;:' la(lXc
J
fr Scc{ioa I0 (3)and ll (2). r!' Section l4(lXd).).
# rU Scction
ttl{ So*ioo 14(1Xd).
& l2 (l)and 13 (1).
#.
$
1i
t
 lh-
28 Principles oJ Land Law in Uganda t and Ownersh| 29f;E+',
,lr,_.
Section l0(4) stipulates that upon receipt ofthe committee's report and recoinmendation, the Section l5(2) empsw seatEgi$zadiEm th a&ice of the Commisioner for Suweys anr! fi ry, -.

r.. ,

board shall cause the land, in respect of which the application is made, to be suweyed.tB This Mapping, to issoe to m appli:adr e certiEcare cf titte eodorsed\rith the words 'Limited as ro ft
provision seems to suggest that the land must be surveyed before the board considers the application parcels'. Under s. 39A oftbefiqgfsfiditrrqffidaJa- slctr a certiftcate is issucd in respect of land fi t,

rvltereas s. 14(3) says that the board shall cause the land to be suweyed before approval of the for which no certificate lte< becn peticndf issocd ad no mrrry plan has been deposited. Thel
report and recommendation. The implication of the latter prwision is that the survry should only registrar may remove the limitatioo as to pdcd #
to certain ctnditions being firlfiUed. First,
I
be required rvhere the application is to be approved. In other words, there must be a provisional the Regstrar mr:stbe satisfiedby d€positda mra-rplan that there is no person in possession ofl
decision to approve, rvhich is pivotal upon the land being surveyed. So if, for example, the board thelandadverselytothetitleofihcrylim- Secca&,ttpregistrarmusthavegivennoticetothel
decides that it would not approve a recommendation for tenure conversion, the applicant should intedion to remove the limitation and the notice
not incur unnecessary expenses in survey fees. It is submitted that this interpretation reflects the
apparent owners of adjoining la-nd of his or h€f, I
legislative intention. In any event, it is suggested that in practice a board should not require an "'+HilflJ:fi:" in a limited certificate is msect to all prwisions of the Regrstra tio, ,A
applicant to have his/her land surveyed except aier a preliminary examination ofthe application Titles Act jtt*.like any other land registered rmder the Actrn It seems that the only purpose of I
reveals that the application is likely to be approved. issuingalimitedcertilicateistoprotectclaimsofpersonsinadversepossessionoftheland.ree Ifl
The decision of the board approving the conversion to freehold must be in the prescribed that is so, in our view it is unnecessary because an afuene possessor is already protected under I
form.re The board is required to communicate its decision to the Registrar of Titles with instructions s.6loflTteRegislrationofTitlesAct'* Moreover,consideringthefactthatapprovalofanI
to issue the applicants \yith the appropriate certificate of title. 'e0 Where the board has determined application for tenure conversion or grant ofland in freehold is given after the cotnmittee and the I
under s. l4 (2) that other persons are entitled to the benefit of'third partyrights' in respect of the board haye exarninedthe application, s.15(2) seems to be unnecessary. Furthermore, s. 15(l) states I E

land, it may direct that the converted freehold shall be subject to such conditions or restrictions as tlat the registrar shall issue a certificate where the board's approval is accompanied with a certifred I t
the board considers desirable for the effrcient and equitable land management or to give full survey plan. Since a limited certificate is issued only rvhere there is no certified survey plan,2o' I t
protection to those rights.rer Third party rights may include, for example, public right of way, right s.15(2) seems to be suPerfluous. I
of access to a well on the land, a right to graze animals, to hunt and other customary rights
commonly exercisable over other people's land in the area. I

There is no provision in the Zand,4cl empowering the board or the registrar to impose fees or ls the certificate conclusive? I
any other charges on successful applicants for bonversion of their customary land tenure to Under the Regi stration of Titles Act, once a certificate of title is issued it cannot be impugned" !

freehold or for the registration of converted titles. Presumably this means that the legislature except as pro;ded by s. 61. Tlut section guarantees the registered owner an indefeasible title apart i

intended lhat no fees should be charged for the service. With respect to an application for a ftomtheexceptionsmentionedtherein.42 However,asisdiscussedbolow,thereareotherexceptions i

freehold over land owned by the board, the Act expressly provides that the board shall charge a to the principle of indefeasibility, which operate outside the Act.203 An issue that is likely to arise I

prescribed fee for the freehold title. Section 14(5) requires the board to set a fee at a fair market in thiJregard is whether title of a registered proprietor can be ilnpugned on the ground that the land J

valuation as approved by the Chief Government Valuer.r' committeeorboarddidnotfollowtheprescribedprocedureforthegrantofacertificateoffreehold, i

and as a result, certain claims or interests were not endorsed on the certificate. It is submitted that I

Isning a cerlificate iftheregisteredornerhadknowledgeofotherpeople'sclainuoverthelandorofimproperprocedurg l

Once the board approves an application for conversion ofcustomary tenure or grant ofa freehold then his or her title could be impugned on ground offraud.2ol
title, it must send a copy of its decision in a prescribed form to the Registrar of Tilles with instmctions Thecase is more complexwhere the rcgistercdowner had no such knowledgepriorto registration l

toissueacertificateoffteeholdtitletotheapplicantrs Theboard'sdecisionmustbeaccogpanied orisabonafiilepurchaserfromaregisteredproprietor. Section56oftheRegrsrrationofTitlesAct'

by a certilied survey plan of the land to which it relates. Upon receipt of the documents, the provides that:
registrar is obliged to register the land and issue a certificate oftitle as instnrcted byilre board.tgt
No cerlificatc oltitlc issued upon application to bring land under this Ac1 shall be impcachcd or
Where the board's decision contains a request to the registrar to endorse on the certificate certain
dcfeasiblc by rcason or on account of any informality or inegularity in thc application or in thc
restrictions or conditions as encumbrancesre5 against the freehold, the registrar must endorse the proceedings previous to thc registration ofthe certificatc, and every ccrtificatc oftitlc issued ttndcr
same on the certificate of title.r* any ofthc provisions hercin contaiucd shall bc rcceived in all courts as cvidcncc ofparticulars

r" Section 3gB,Regist/ation olniles Act.

Itt Thc applicant is responsiblc for thc costs involved in the survry, see Hansard, supn, p.4182' ttf Section 3gD,Registration ofTitles Act.
rre Section 10(2). Itt Section 6 of the Limitation lc, prohibits a landowner from cvicting or bringing an ac'ron for recovery of ,
reo Section 14(i)(a) and s. 14(6).
land against a pcrson who has bcar in advcrsc possession of the land lor more than twclvc ycars. This larv t:
'et Section 14(4). applics to all land, including land owr:ed urldcr customsry tenurc,wCitamongv Olinga tl988] HCB 36.
re2 Section 14(5). F
/te3
lor further discussion see Chaptcr 4.
Section 14(6). 200
Advcrsc posscssion ponstitutcs an cxccption to indefcasibiliqv ol titlc. Scc Chapter 5. Also scc Chaptcr 4.
20r See
'ea Section 15(1) s. 39A of lhe Registation ofTitles Act.
rei See s. 14 (6Xb). ro2
See Chapter 5.
re6 Scction 15(3). For cxample, the board may impose a rcstriction against salc or subdivision of thc land. Thc :or Sec Chaptcr 5.
rcason for tlre cndorsemcnt is to prcscrvc thc rcstrictions against the principle of indefeasibility of titlc' 20' Scc.In thc),{anoofRlzhwengtibwaandlntheMattqofRuigual,\so.CNo48of1976(unrcported);
Sec discussion of this principle in Chapter 5. Kataikawe v Katwlremu and anolrer CS No 2 of 1913; [yf\ HCB 187.

E
 30 Principles o/Land Law in Uganda 3\
rhip ;29 ; Land Ownershry

therein sct forth and oftho entry thcreolin the Rcgister Book. aud shall be conclusivo evidcncc that
veys and Aay number of people rnay form a communal land association. There is no prescribed minirnum
tho pcrson narncd ut sr'rch ccrtit-rcatc as thc propnctor ofor having any cstatc or intcrcst in or powcr
ted qS ro orrnaxmumnumberofmembers. SectionlT(1)stipulatesthatwhereagroupofpersonsu,ishesto
to appoint or disposc ofthc land thcrcin descnbod is sezed or possesscd ofsuch cstate or interest
form a land association they may apply to the District
)r of laid Registrar ofTitles to become an association
or has such power.
ted. The underthe Act The Act stipulates that upon receipt of an application, the District Registrar of Titles
d. First, On the surfacg this provision seems to preclude impeaclurcnt of a certificate of title on any ground shall convene a rneeting of the persons seeking to form an association. The Registrar or nominee
ession of of irregular procedure.2o5 However, in the case of Ma tovu and othersv Sseviri and anothe*6 must chair the meeting. If at that meeting at least 60
per cent of the members vote for the association
the
ice to the Colrt of Appeal held that the provision did not apply where land was granted in violation of the tobeincorporatedundertheZarrdAct,theywlldelectoffrcebearersoflheirassociation. Atleast
le notice principles of natural justice. In that case, the appellants applied to the Uganda Land one third of those elected must'be wornen.'ro The officials shall be responsible for drafting tire
Cornmission
for a lease over certain public land. which they claimed tooccupy undci custornary terure. association's Constitution with the assistanc€ of the District Registrar of Titles. Before the
The
,ation of I local land committee inspected the land and recornnrended that the iease be granted
to the appellant. association applies for incorporation tle Registrar must certi$ that its Constitution complies with
[pose of On going to survey the land, thsy found tlnt the first respondent haO atreaAy surveyed tlre provisions of tJte Land Act.
tlte land
nd.ree If and had obtained a certificate oftitle. The respondent clairned &at the commission gave
him an Once satisfied that all the statutory requirements are complied with, the District Registrar of
ed under offer ofa lease over the disputed land which he accepted" had the land surveyed and Tilles must incorporate the assbciation. An incorporated association is a body corporate.2rr Its
obtained a
/al ofan certificateoftitle. (Underthe.[andRe/orntDeuee.l975,(repealedbysggoftieLandAcr, ofrcerscan sue orbe sued in itslname, and rnaye[ter into contractsbinding the association and all
l99g),
3 and the the Uganda Land Commission had the power to grant land in leasehold including land its members.2t2 The nranaging comrnittee of the association is charged with the responsibility to
oicupled
(l) states under customary tenure.) The appellants sought an order for cancellation of tlie
certifrcati on hold and rnanage the land on \halfof all nrernbers. Holvever, the power ofthe committee to enter
ertified Srounds, interalia. that the commission did notgivo Urern a.hearingprior rograntingthe lease to the 4 into land transactions is.limitedi Section 20(3) prohibits the management committee from entering
'Plan,zot respondent. Thetrialjudgeheldthats56oftheRegr.strationofities,.tcrpiectuaiimpeachment into any binding land Uansactibns on-belulfofthe association unless and until the rnembers, by
{ of a certificate of title on the ground of iregularity in tlrc procedure prior majority vote (at a rneeting convened for the purpose), approve the traruaction. Any trarxaction
to registration. in allowing
tt the appeal, the court observed that: that is not approved by the rnerirbers ii deemed to be void and shall not give rise to any interest or
right in the association's land.2t!
Siucc thc courts lvill assumc that Parliament intcnded an adnrinistrativc agcnoy
to makc dccisions
pugned, in accodancc with naturaljusticc, it follows that in intcrpreting s 56 REGi'y1'R|TION
OF TITLES Individual member holdings
itle apart lCI, which provides that a ccrtificate oftitle shall not-be irupcached or deleasible on eccount of
Althouglr land held by the association is cornmunally owned, members may own part or all of the
any iutbmrality or ircgularity, this court lvould attach such meauiug op
iceptions thc words .infonnality or
incgularity' as would not include a brcach ofnatural justicc. land in their individual capacity. Section 23 (1) stipulates that rvhere custornary law ofthe area
/ to arise provides for individual or family ownership, the association must recognise and give effect to sucli
the land Accordingly, Ule court ordered the respondent's certificate cancelled.2oT orvnership. Unders.23(3),membersaregivenpowertoapplytotheassociationforaceruficateof
ireehold, customaryownership orfreelioldtitle ofthe portionof tlreland they ownindividually oras afarnily.
ittedthat On the basis of the above decision. it is arguabie that a certificato issued in Ifthe association approves the application. a certificate or freehold trtle shall be graated following
ocedurg breach of the
statutory Procedure ruight be cancelled. at any rate ifas a result ofthe brcach the prescribed procedure. There is a rigltt ofappeal to the land tribunal by any person aggrieved by
other clairnants were
denied naturaljustice, notwiuutanding the principle ofindefeasibility the association's decision.2rr The Act is silent as to rvhether or not the land of a member who is
oftitle. In our view, the
istration district Iand tribunals should trade rvitl cauti.on when dealing witli sucir cases othenvise granted a certificate ofcustomary ownership orteehold title rvould still be subject to tire associatiotr's
"itlesAct the main
obJective ofregistration oftitles, certainty oftitle, lvouldbe undenuined. rules. It is suggested that the association could give its approval to grant a certrficate of customary
ownership or freehold title to a member subject to any restrictions, for exarnple as regards use ofthe
Communal land associations land, in its constitution. These could be endorsed on the applicant's certificate.zr5 It is submitted
dor
Section 16 ofthe Land Act provides for the formation of comrnunal land that where a certificate is issued without restrictions the owner would be entitled to deal rvith the
thc associations for the
purpose of ownership and managernent of land under custornary
rder lalv or otl rer law. A cornmuoal lartd land as he or she pleases. Certainly this would be the case where a freehold title is granted.
association rnay orvn the land under a certificate ofcustorury ownership,
rlars or leasehold or freelrold.u
The principle objective ofsuch.an association is to protect and regulate Areas ofcomnton land use
the rights ofjoint land
users.2a The goverrunent envisages ttiat for[ration of land assoJiations is The rnanagement of the association rnay, and rnust where members demand it, set aside land for
tiiely to appeal to
traditional joint users of land for pastoral fanuing such as the Karinrojong. conrmon use. Forexamplg it ruy set aside land for graziag orwatering of livestock. The association
Horvever, there is
nothingintheActtopreventanyotherlaudusersfrornfonninga.on rioal-l*dassociation"for is required by law to set up a scherne, approved by the urenrbers, for the management of suclr
covcry of tY*ql:, to protect family or clan land from outside pressure or to provide for sound
rnanagement
land.2r5 Members of the association have a right to use the conunon land in accordance with the
This larv ofsuch land.
HCB 86
zro Section
,'haptcr {- rJ Sec also ss.6l,184, and 186,R72. See.lldefeasibility
1?(4Xb).
oflitle, in Chapror 5. "t Scction i9(3).
Iv7 CA No 7 of 1978 (rnrcporred); [1979J ]ICU 174. ?r2 Section
20(t).
Thc court also found that titlc was obtaiued through liaud. 2t, Ibid
u' Scction 23. 2r'Section23(4).
u Scc Hunt and Etunr, 'Land Act Lnplcrncntation Study Ecouornic zl'
Itissuggcstcdthattheexpresion'alypcrson'wouldincludsnrembersofthsassociation.
Appraisal Dratl Rcport,,6 August 1999 Scc s.9-
2r' Scction
25. For thc conteut of the managerncnt schenrc, seo s.26.
 managementscheme. Membersofthecommunitywhoarenotmembersoftheasociationmayuse 3
ntch land only with the apprwal of the association. However, the association
must not unreasonably
rvithhold its consent.2r? Land Administration Control and Dispute Settlement
atory cu stomary pr a cti ce s
D i scri min
The Ugandan CcmtiMiotr inco,rporates t}c FElicT ddecentralisation of governanc'e. One
Section 28 of the Act renders-void any cttstomary practices atrecting customary
land that deny main aims of th's policy is to icyotw tocal pcople in the decision-making procesi in
$'omen, children or persons with disabilities access to ownership, occipation
or use of customa;
Iaad' Forexample,ao:stomarynrledratprohibitsamarriedqomanfromintrerltingherfather'sland affectingthem. This obje{ti\E b clcaly refld mfre Land Actwith regard to land
is likely tobevoid underthe Act. This provision was enacted in response and dispute settl.merl This chapter deals Eith the mchinery for land administration,
to comf,laints
especlally
byrvomen parliamentarians and women's organisations that historically some imposed on landcwners and prwisioa for resolving lald disputes under the Act.
orstomarypraaices
havebeenresponsibleforthemarginalisationofwomen.zts Itisrathersurprisingthatthjscopeof
the provision is limited to decisionsaffecting customary land and
not across the"board to all land. LetoaounrsmATloN
In any case, it is thought that Article 33 ofthe Constiiution which prohibits
laws, cultures ana
customs that are discriminatory, rendersvoid such practices irrespective Thc main bodies responsible for land management are the Uganda Land Commission.
ofthe tenure under which
the land is held. boards, and land committees.

Restrictions on ownership of land by non-Uganrlans fieUganda Land Commission

Non<itizens of Uganda are prohibited from owning land in freehold Previously, all land in Uganda was public land centrally vested in the Uganda Land
or mailo tenure.2re They can
only Iease lard for a period that must not exceed 99 ye1rs.220 The statutory which had the sole power of management and allocation ofthe land on behalf of the state.r
restriaions imposed on
non-citizens are discussed in more details in Chapter 3. UgandaLand Commission's powers are now limited to managing landvested inor acquiredby
government in accordance with the Constitution.2 The commission is also charged with
I -.ris ' responsibility oI'managing land acquired abroad by the government. However. it may delegate
powen of management of government land in a foreign country to a Uganda mission.3 I
I
L
t Forexercisingis powersunderthe Constituti onandtheLandAct theUgandaland Cornrnission{
is glen extensire auiliary powers. For esample, it has power to purchase land or other intercsts i[]
.,.
!.'r. ,',ui,.' land, erect or demolish buildings, sell or lease land held by it, cause suwey ofgovernrnent land and:
I
L
lr,r' dootherthings,asmaybenecessaryorincidentaltotheexerciseofthoseporvers.'Intheexercise,
I
(, \'"" * l-
y'1-21 t ofits powers, the commission is rcquired to abide by government policy. Section 56(2)
Ii- ('.'"-' cmpowers the rLinister responsible for land to give the commision policy directives as are
^,,,-A ]\ t, li to ensure compliance with government poliry.

,1
l,K1 (
LandFhnd
In addition to nranagement of government land. thc Uganda Land Comrnission is vested with
r\ t '-i \ duty to administer the Land Fund established under tlre Zandlcr.5The Fund's financial

l' \- t
1

F1
C
include rnonies appropriated by parliament for (his purpose, loans, grants from donors,
,d ct'lr into the fund under the Act and from any other source approved by the minister.6

l,^L t,"rl
_l
..t r- 0 i''\ The original object ofsetting up a Land Fund nas to provide a source ofrevenue to be used

Nu'
It
\l

\ r'
t c\
r,"
2_ L
*t \ o rt'
I
:,1
r! -'t-c -' '
k

iif'
buy out'absentee' maito landorvners in the former 'lost' counties ofBuyaga and Bugangaizi
Kibaale district. This rvas to resolr'e a longstanding hisorical political dispute betrveen the
of Buganda and Bunvoro.? However. the issue rrzrs so contoversial that in the end
decidedthat the Iand Fund should not be restidedto a partiqrlarareabut ratherbe used
\ L:.\ ,
- ..,6|u
/\.+' rill-
I r-l Land Reforn Decma 1975, s, l(I)"
See article 239 olthc Corffifir d dO dlbc Inllcl. Scc also Chaptcr 2.
Section 50 (b)-Ind.1d.
Section 54, I-ard.{ct
Section 42(t) & €I
Scction 42(i),
2r7
section 25 (4) sec s. 27 for rights and obligations of community menrbers using common land. Scc ,ek TftG ei, tr -hiulcd in lhc I 890s whcn thc British colonial
.Farsr4 :nrr- +
?tr See
2te
llansard, supra, pp. 4114, 4Og7 and 4201. mnfsctt:d trocrrdb dBqrw rd anc<cd them to Bugnnda as r punishment for
Section 41(1), Land Act. insnFa-!.g'1"{&tsdg*- ?bd bod rvas subsequently allocatcd to Baganda notables as
210
Section 41(2).Land Act. LEd * + I9:ts gqlFd +!m!il!.d-
-tJ
 34 Priltciples o/LandLaw in Uganda LandAdntinistanon Control and Dtspute Selllentent 35

t
to assist disadvantaged people to acquire land.8 Accordingly, s. 42(4) prescribes that monies from granted by a forner designated authority. 2
rcversiooary hterest in any leasehold land in the district
the fund shall be utilised for the following purposes: to give loans 10 tenants by occupancy to Accordingly, the board takes over the role and powers of the lessor under the lease agreement and
oeqt enable them to acquire registrable interests.e to re-settle persons render ed landless by government the Public Lands Act.B
action or other activities and to assist other persons to acquire titles.to In addition, the money As already seen" the district land board is charged with a duty to facilitate the regisuation and
One of the could be used by the government to purchase or acquire registered land to enable tenants by uansferof iuterests inland, approve applicationsforthe
grantofcertificatesofcustomaryownership
in matters oc.cupancy to acquire registrable interests prusuant to the Constitution.tt The comrnission is of land and for conversion of customary tenure to freehold.2a Other functions of the board include
causing maps and surveys to be made, compiled and rnaintained; reviewing the list of rates of
tanagement required to submit a written report to the minister every six rnonths on its operation and lnanagemen!
on, control ofthe Fund giving such infonnation as the rninister may speciry. The nrinister in turn must submit compensation payable in respect of improvements on the land and; dealing wi0r any other matter
an annual report to parliament on the perfonnance ofthe fund.'2 that is incidental or connected to its functions.s In carrying out its powe$ and functions, the
Disrict land boards -/ districtlandboard is required to take into accourt national and district council land policies, as well
as circumstatrces of diferent customary land tenure systems in the district. Otherwise, it rnust
The Constitution provides for the establisluneut of a district landboard for each district.rr Section
57(1)oftheLardlctputsintooperationthisprovisiou. TheActprovrdesthattnembershipofthe exercise its powers irdependently ofany otherbody including the district council and the Uganda
ton, district IandCommission.26
district landboard shall consist ofa chairperson, one rnember representing urban councils and oue
p member fronr each county in the district. To ensure gender balance in land administration, s. 58(3)
Landcommittes
prescribes that at least one third of the board menrbers must bewomen. The Act also requires tlat
The Land Act provides for the appointment at each parish level of a land committee. The district
at least one ofthe rnernbers ofthe board rnust have qualifications and exirrience in matters relating
ommlsslon.
4 coutrcil, on the recommendation of a'sub-county council, appoints the committee consisting of
)state.r The to land.t' The Act disqualifies from nomination as a board-member a person who is less than- four mernbers.' Provision is also rnade for the appointment of a similar conrnrittee for each gazetted
piredbythe eighteen years old, ofunsound nrind. bankrupt, a neurber ofpgrliameni, or a persotr convicted ofa urban area and city division. The district council appoints the latter committees on the
1ed with the
criminal offence tlut involves moral turpitude.'r Menrbers ofa district land board hold office for a recommendation ofthe relevant urban or city division council.'z8 Section 66(2) prescribes that at
r delegate its r period of five years and they are eligible for re-appointrnent for a furt}er one term.r6 A member uuy least one of the land cornmittee members must be a woman. As we luve seen, the object of this
be renroved from offrce by the district council but only ifhe or she is unable to conduct fuis or hei requitement is to maintain a gender balance in land administration. The Act also requires that at
Cornrnission duties, for misconduct, incompetence or failure to attend board me€trnl;s for six consecutive times least ons of the members must be conversant with land matters. The object is to guard against
:r interests in without reasonable cause.r7 appohting a comrnittee where none of the rnembers has any knowledge of matters pertinent to
Lent land and landownership. As we shall presently see, the committee has very important functioru under the
Functions ofthe board
the exercise
The Constitution states that the district land board shall own land witl:in the district which is not
Act ftat require sound knowledge of local land matters. If at least one of the members is
) specifically knowledgeable, he or she may guide the others in their deliberation.
ownedbyanypersonorautlrority.r8 Thisprovisionisre-enactedins60(lXa) oft\eLandAct.The
lre necessary The main function of the committee is to determine, veri$, and mark boundaries of customary
land envisaged is llut which does not belong to an individual, family, clan, or other identiflrable
land situated in the parish which is the subject ofan application for a certificate of custornary
eutity. Apossibleexarnpleofsuchlandiscomnrunalgrazinglandoverwldchnoparticularpenon
ounenhip and to recommend to the board whether to grant the certificate.2e The committee exercises
or body claims ownership. During the parlianrentary debate of the provision, several rnembers
a similar function with respect to application for conversion of customary tenure to freehold.x
sted with the claimed that there was no land in their constituencies that was not ownal by a person or authority.re
Another function of the land committee is to advise the district land board on matterc of custornary
ncial sources Nevertheless, the provision was incorporated in the Act as a residue rn the event that there was
land law applicablein its parish.3t The land committee also functions as guardian of the interests of
;, moneypaid suchlandinaparticulardistrict.2o TheActgivesthedistrialandboardrhesolepowertosell, lease,
minor children with respect to transactions affecting family land.r2 In carrying out its functiors, the
or otherwise deal with this land, if any. within the district.2r The Act also vests with the board the
to be used tq
cornmittee is expected to act in collaboration with traditional institutions. _l
iugangaizi ial t sec Hansard,20 Junc 1998, p.4056,23 Juue 1998, pp 4099y'101,41 12,21 June 1998, p.4127-28 Junc t .'{
thekingdonri
d parliamed; t
l0
1998, pp. 4291-98.
See also s.42(5). Gi; z\ tr-'6..r #'-t"11-'
dnationwids For cxamplc, a loan could be given to a landowner to assist hun or her with the costs of survcying his or r-.
hcr land for the purposc ofacquiring a ccrlificatc oftitlc, see s. a2(5)(c)
t-
rI Scction 42(4)(b). Sec atso Alrticlc 237(9xb) of the consriturron a,d s. 32 of thc Land Act. 2r Thesc arc lcases grantcd by urban authoritics ovcr formcr public land, see S 2, de{inrtion 'fonner designatcd
I2 Section 42(14) & (15). authority'.
'3 Articlc 240(l). rr Saction 60(8), Land Acr
1' Scction58(4). Itshouldbonoledthatthisdocsnotnecessarilycntaillegalqtntifiqatisn5(compares.75(2) " Scction 60(1). Sec also sections 8 and 10.
with rospcot to qualifications of thc chairperson of thc distdct tand tribunal). '5 Scction 60 (1).
l5 Sectron 58(2),Land Act. 2' Scction 6l(1).
I5 Section 59(l),Land Act. 27 Section 65(l).
ti Scction 59(2). :t Scction65 (2).
rr Articlc 2al(1Xa). 2t Sections 6J and 8.
Sec also Chapter 2.
i for t' Hansard.25 Junc 1998, pp.4183-85
ro Section 1G.18. Sco also Chaptcr 2.
Lotablcs as
'*f 1o Hansard,25 Junc 1998, p.
2'
4185, per Minister of lands.
3r
rr
Secrion 6 (l) (0.
i. Section 60(l). Section 40(l[iii). See bclow.
!
*
s
 t d ld,qlrircdtion Control and Dispute S eulemenl

CoNrnol ovER I-A,ND withom compensatiotr co@b,kfr}rf (ll dtbc Constitution. If that is true, s. 41(6)
LandActmi1jor-becbllagtdocs'l<toridtd grtmdst *
There is very little control over landowners wfier lhe Land Act. Generally, landowners are free to
deal with their land as they so wish. In this part we shall consider statutory control under the Protection of fa mitv lard
follorving subheadings: restriaion on orvnership ofland by non-citizens; protection offamily Iandi The Uganda Constitutionat Commbslm rqrrA th*t tfomghout the country many people
control over land use and compulsory acquisition ofland. exprcssed conccrn about the dgtt offumry @s to crm land and have a say in its
The commissicn obsewed that there sae dercm cf injusices in this regard, which could
Orvnership of land by non<itizens
I eliminated onll'by clearly delircd righa."
As already seen, article 237(l) ofthe Constitution declares that land in Uganda belongs to its The recommendations of the constinrtional commission report are reflected ir,lhe Land
citizens and shall be vested in them in freehold, mailo. leasehold and customary tenure. Article
Section40 ofthe Aaprohibits a landownerfrom selling mortgagi.ng, leasing, donating (except
237(2)(c) states that a non'citizenmayacquire alease in land in accordancewith the lawsprescribed
a will), or entering into any other transaction in respect oflaad tie family resides on and earns
byparliament. Likewise,theZandActprwid*tlntanoncitizenofUgandamayacquirealeasefor
Iivelihood from (herein referred to as 'family land') withou prior written consent ofthe
a maximurnperiod of 99years.r3
spouse.12 This provision applies to any land irrespective of ttre system of tenure under which
The Land Act expressly prohibits a non+itizen of Uganda from acquiring or owning mailo or
laad is owned. The section stipulates that the landowner's spouse must personally
freehold land." The ban on non*itizens ouning freehold and mailo land is not new in Uganda. It his or her consent to the parish committee in the area where the land is situated.'3 This is to
goes back to 1916, when the Secretary of State forthe British C.olonies prohibited the gwemor from
that the consent is freely given without coercion or intimidation by the landowner. Where
alienating fteehold land to non-Africans.ir The ban was reinforced in 1921 by a Buga nda Lukiiko landowner resides on tlre land with dependent children who have attained the age ofmajority,
resolution, which prohibited the Baganda from selling outright their maito to non-natives. The theytoo must give their consent prior to the transaction taking effect. If the children are minors,
policy against the granting offreeholds to non-Africans was maintained throughout the colonial parish committee must give consent to the transaction.t' In all cases. the Act requires that
period and ater Uganda became an independent state. The diference between the previous and consent should not be unreasonably withheld. A person aggrieved by a denial of consent
current ban is that the former applied to 'non-Africans' who included Uganda citizens ofnon- appeal to the Lald Tribunal. In an appropriate case, the tribunal may diqpense u'ith the
African origin. Neither the Constitution nor the Land Act makes any reference to the race of for consent.r6
citizens or non-citizens. Hencg ownership of land in fteehold or mailo land is open to all citizens of Underthe general principles ofthe law ofcontract, where the making ofa contract is
Uganda regardless of race. by statute, not only is the purported contract void but also any consideration transferred
For purposes ofland ownership, a person is deemed not tobe a citizen ofUganda ifthe person to such contract normally is not recoverable.rT It is thought that this is the intended
is not a citizen of Uganda as defined by the Constitution and the Uganda Citizenship and consequence under the Act. This view is partlybased on s. 40(4) ofthe Act. The section
InunigrationControlAct,l999.36 witllrespecttoacorporatebody,acompanylimitedbyshares that if a purchlserrE is a bona lde purchaser for value and had no notice tlut consent was
is deemed not to be a citizen of Uganda ifthe majority of its shareholders are non<itizens. If the given, that purchaser shall be entitled to recover from the landowner any consideration paid
company has no shares, it is deemed not tobe a citizen ofUganda where non-citizens hold the though the transaction is void. The conver6e is that where the purchaser is not a Dora
majority vote. Where a company is incorporated in Uganda it is deemed to be a non<itizen unless puchaser or had notice ofthe absence ofconsent the money is not recoverable. Thus, for
its articles ofassociation contain aprovisionthat restrict tmnfer or issue ofshares to persons who where a bank lends money to a landowner on security of family land without his or her
are not citizens of Uganda.3? If for any reason al owner of freehold or rnailo land loses his or her c!nse[t, the firortgage would be void. The bank would not be entitled to recover the
Uganda citizenship, the tenure automatically converts to leasehold for a period of ninety-nine advanced unless it satisfied the requirements of a bona fide purchaser for value without notice.at
iears from the date ofloss ofcitizenship.rE In that case. the district land board in which the land is
situated becomes the lessor.ie The Act does not expressly imply any terms in the conveied lease
nor does it include a requirementto paygroundrent. The absence ofarry such a pro&ion sirggests {0 For dctailed discussion sce John Muganrbwa, 'Examining Land Law and Tcnure issues arising under
that parliament had no intention to impose any covenants in the leasehold. It should atso be noted new Uganda Constitution', in Pal Ahluwalin and Paul Nursey-Bray (cd).), The Post-Colonial Condition
tlut the Act does not make provision forpayment ofcompensation to the landowners for conversion Contemporary Politics in Africa (Nora Sciencc Publishers, New Yotk, 1997) p. 67.
of their freehold or mailo tenure to leasehold. Since a tease is a smaller estate than mailo and ar Thc Uganda Constitutional Commission (chaircd by Justicc Odoki), Govemmcnt Printcr, 1992.
freehold, it is arguable that the conversion to leasehold constitutes deprivation of property 42 Thc usc ofthc conjunction 'and' suggests that thc consent provision docs not apply whcrt both or onc
the elements is missing. For cxamplc, ifthe landowner has an invcstment house lrc or shc does not
his or her spousc's consent to disposc ol it.
a3 Section 40 (3)
!r Seclion 4r(1) & (2). l{
rr Section 4l(4). Intcrcstirrgly, tlrc provision does not nrention ou,nership or acquisition of land under
The provision envisages mature agc clrildrerr rvho for somc reason. such as physical disability arc
on thc landowner for sustcnancc. Scc Hansard pp.4114 and 4097.
custonrtrry tcntlrc. This may raisc the issuc wlrcther, lor examplc, a Muganda rvho becomcs an Austrslian 45 -scction
40(lXii) and (iii).
citizcn nray inhcrit customary land.
r5 " Scction 4O(5) & (6).
H.F. Monis and Janrcs S. Rcad, Uganda, Thc Dewlopment of its l,aws ond Corlstihttio,r,supra,337. a1 Kulubya v Srngft 9631 EA 408. In lhat casc it was held that whcrc prohibition was intendcd to
36 Scction4l(7)(a)of theLandAct Forthcdcfinition of a'Uganda citizcn'secgencrallyarticlcsg- of
U
13 a particular class ofpcoplc, any membcr ofthat class is cntilled to rccovcr considcration hc or shc
tlrc Constittilion and lhc Uganda Citizarship rmd Imnigration Control Act,1999, Part Itr.
17 undcr thc illegal contract
Section 7(e) of the Companies Act. tt Thc term 'purchaser' includes a buycr, mortgagec, lesscc and grantcc, s. 40 (4).
rt Section 4l(6) oflhc Land AcL. at An example would bc wherc thc bank in good faith was not awarc that thc nlortgagcd land is family
" Thcrc is no provision in thc Act that oipressly says so. but this power may be implied in s.60(lXa).
,mc{lr 37
i ,t Principles ofLand Law in (Jganda Latd Adnrilisuation Control and Dispute Seulement 3 9

l(6) ofthe The spouse and or dependent children ofthe landorvner have a right to lodge a caveat on the Droperty must b€ necessary for
public use, interest ofdefence, public safety, public order, public
Theobjectofa
certificatioftitleorthecertilicateofcustomaryownershipofthelandiuquestion. morality, or public health. Secondly, it rnust be made under a law rvltich provides for prornpt
t gve requirement
oavment of fair and adequate compensation. Thirdly, the lal. rnust provide for a riglrt of access to
caveat is to notice to any potential dealer in the land that the land is subject to the
of consent.si However. it is zubmitted that in view of s. 40(4), whether or not a caveat is lodged a 'UiJ
*u*t to interested p€rsons aggrieved by the decision.
eople had
tmnsaction affecting the land would still be void without the requisite consent. The significance of The power of the govemment to acquire private property conpulsorily is not unique. All
ugement.
a caveat is that where it is lodged a person who enters into a transaction affecting the land without eovernments irespective oftheir political persuasion reserve to thenrselves this power. It is based
r could be
the prescribed consent, when he or she attempts to recover the considcration will have a heavy in the philosopby that in certain circurstances individual rights rnay be sacrificed for the general
onns to prove that he or she was a bona fide purchaser without notice. sood.sr Provided the individual is adequately colnpeusated and the polver otherwise used fairly.
LandAct
It should be noted that when a landorvner nrortgages the land with the appropriate @nsent, and tmpulsory acquisition of property is not objectionable on liulnan rights grounds. For exarnple,
(exceptin
he or she defaults in payment ofthe mortgage debt, the mortgagee does not require consent ofthe unders. 2(l)ofl\eLandAcquisitionAct 1965 (cap 14),theurinisterrcernporvered to acquireany
rd earns a
Iandowner's family to sell the land"'r The reason for this is obvious. By coruenting to the transaction hnd if [e or she is satisfied tlut the land is required for a 'public purpose'. The Act rnakes
rdowner's
which the the family members are deemed to accept the risk involved in the event of default. Indeed, that is provisiOn for payurent of compensation to any person rvhose estate or interest in the land is
why the section requires consent of the family. It would be unfair to require a mortgagee to seek .Any interested person aggrieved by the nrinister's decision or by the
ununicate ixtinguished as a result.5e
to ensure
i
familycons€ntagainbeforeexercisingthepowerofsell. Interestingly,itwouldseenrthats.40does compensation paid firay appeal to the High Court.@
Mhere the not apply where it is sought to sell family land in e.xecution of a judgement debt against the Prima facie, the minister decides whether acquisition of particular land is 'required' (or
najority,r{ landowner, including, ironically, to recover consideratio[ paid by a bona fide purchaser under a .necessary')5r for a public purpose or onc ofthe several purposes lnentioned rn article 26(2) ofthe

ilnors, the void transaction. In ourview. s. 40 needs arnendment tg strengther the protection of fanrily land. 3 Constitution. Howeve( ifan aggrieved interested person appeals, the court determines rvhether
:s that the the acquisition is indeed necessary for the pa(icular purpose. It is subnritted that the expression
Control over land use
rsent may 'necessary for public use' entails trvo separate requireurents. First, acquisitron ofthe land must be
Whilst the Constitution vests ownership of land in the citi2ens of Ugand4 it gives the govemment
luirernent justified as necessary not absolutely, but in a sense that it is reasonably requisite for or conducive
power to regulate land use under laws rnade by parliament and policies rnade from time to time.r2
to achieving a specified purpose.62 Secondly, the purpose urust be for public use or other purpose
Examples of such larvs include: the Fore st Act (cap 246),'r the Narr onal Environmental Statute,
specified in article 26(2) of tlrc Constitution. Both of these requirements must be satisfied for the
>rohibited 1995,5r the Water Statute 1995 and the lulining Act Section 44 of the Land Act provides that a
Ipursuant hndswng191 gccupier of land must use and rnanage the land in accordance with the aforementioned acquisitionofaparticularparceloflandtobelarvfi.rl. Forexarnple,acquisitionofcertainlandmay
ded legal be necessary in order to achieve a particular objectivc. Neve(heless, ifthat objective ryere not a
statutes and any other 1aw.5r
ion states publicpurpose the acquisition lvould be unlawful.
Uuder articte 237(2) ofthe Corstitution, the govemnrent lus power to take over the managernent
was not
Lt Conversely, if land is ostensibly acquired for public use but its acqursrtron is not actually
ofenyironnrentally sensitive areas for the beneflt ofsociety as a whole. Such land iacludes forests,
paid even trecessary to accoruplish that purpose the acquisition lvould be contrary to the Constitution and
$atersystems,swamps,nationalpark,andgazettedareas. Section45(l)oflheLandActeractsa
bona fide therdore void. Whether or not 0re acquisition of a particular picce of laud is required for public r:.se
srmilu plsyl5ion. The Act provides that the goverrunent shall be the trustee of such land or, if
example, would depend on the circurnstances ofeaqll individual case. lt is suggested tlut the couns are oot
requested, it ulay allow a local governlnent to be the trustee ofthe land for the benefit ofsociety as
r family's likely to interfere rvith the minister's decision to acquire particular land upn allegation that aquisitioo
a rv'hole.56 Section45(4) prohibits the govemrnent, central or local, frorn leasing or alienating any
re money ofthe land is not necessary because. for example. the government has soure other land, rvhicb it
land it holds in trust. Holvever, subject to other specific legislation, which deals witlt the subject
I notice.re could use. The reason is that the decision whether acquisition ofparticular land is necessarl,for
laad, it may grant concessions, licences and pennits in respect of such land.'7 Parliarnent may
public use. is rnainly one ofpoliry rvhich the n"rinister is in the best position to rnake. Hor+'ever,
rwiew any land held in trust by the goverrunent or a local governrnent. if the people who reside in
lvhere there is evidence ofimpropriety or ulterior rnotive against tlie urinister the courts could
the area where the land is situated request it.
question his or her decision under the usual rules of adrninistrative lar'.6r Ulterior motrve and
I under tfu
'ondilion Compulsory acquisition of land impropriety are serious allegations, lvhich rnust be strictll,proved.
The Constitution ofUgandaprotects individual rights to property. Anicte 26(2) ofthe Constiirtion Tlte issue tlut is rnore likely to cause legal controversy is rvhether tite purpose forrvhich the
)2. prohibits the govemrnent from compulsorily depriving auyperson of his orherproperty orrightto tninister purponed to acquire particular land is a public purpose or one of tire several purposes
'I Or OnC urentioned in article 26(2) of the Constitutiofl. Certain situations are straightfonvard. For exarnple,
possession unless three conditions are satisfied. First, the taking of pcssession or acquisition of
not where land is acquired by the govemlnent for its own or local authority use. in the absence ofproof
ofan ulterior rnotive it u,ould be scarcely arguable that the land is not required for public purpose
l' Section 40(7). rvlutever actual use it puts it to. This is because the public interest is directly concerned lvrth the
'r Scction 40(2).
government action and undertaking. Sornetimes a statute rnay expressly state that land acquired
'2 Arttclc 242.
'r Scc s l4(2) otthe Foresllct. for cxanrplc, prohibits clcaranc€, use or oocutatior ofland iu a forest rcscrvc
for grazing, camping ctc without licence. ,, For detailcd discussion sec John Mugambwa'Articlc 26(2) of the 1995 Constitution olUganda aprd the
ito v For cxarnplo, thc Statute (ss.35 and 37) inrposcs rcstrictions on tho use of lalics, rivcrs and wctlands. ProtectionofPrivatcProperty,'(1998)vol4.l EastAfricanJournalolPeaceandHtmunRights(70).
rr shc t5 For cxamplc, s26(a) of tkc Uganda tYildli/e Statute, 1996, provides that historicsl land use rightf of ,t Sections 5 and 6, Land Acqttisition.4ct.
individuals may bc limitod within a wildlife conscrvation arca.. 'j:.,r., to
., Sections 12-13.
$ Section 45(2). al
Thc tems 'requircd' and 'nccossary' urean thc sanre thing.
unily to Scction 45(5) Sceforcxamplc,thelJgandallildtifestntule,lgg6,Nationc!EnvironnentatStaute,lgg5, a2
Sco dcfiuition ol'neccssary' in Black s Low Dictionary (6b, cdn).
and thc Forest Act (cap 246). at
Scc for oxamplc,,lz re (An Application by) Bukoba Cryn*hana C/rrD (1963) EA 478.
 Land Adminisoation Control and Disputc Settlemmt
for a particular purpose is apublicpurpose. For example, s. ga(2)(b) oftl,rc llater Statute,1995,
provides that acquisition ofland for purposes ofthe statute shall be deemed to be for a public
The Act also rcquires the gorcrment to pay a 'disturbancc allowance' to the persons
purposewithinlneaningofadcle26oftheConstitution. Anotherexample,s.T2(4)ofthe geimcity
land it acquires under s. 43. This is an additiqoal corrp€[satien over and above the
Act, 1999,ptwides that where the minister is satisfied that certain land is required for prwiding or
assessd. Theallowanceisfifteenpercentuur(ortiirtypercentumiflessthansixmonth's
ntaintaining electricity service to the public, the land nray be acquired undei the Lani Acquisiion
is gtven for vacant possession) of the crverall assessment of the land.?l This allowance is for
Act andlhe Lattd Act. The section declares that the acquisition of such land shall be deemed to be insvitable inconveniencea person sders bocause of being forced to leave his or her home.
in the public interest whether the beneficiary is a public entity or a private persdh. It is submitted
that' unless there is proofofulterior motive, the minister's decision to acquire land compglsorily
for Compensation fitm the Lald ftmd
any purpose mentioned in lhe Water Stahte or the Electricity Act, cannot be overturned by
the The Act provides that the land Fund shall be utilised. inter alia, by the government to
land tribunal on an allegation that it is not a public purpose. registered land to enable tenants by ocffpancy to acguire registrable interests pursuant to
The legal position is less clear where. for example, in the absence ofa statutory provision such Constitution and to resettle persons rendered landless by gwemment action or natural disaster.
as above, the rninister seeks to acquire land in order to re-grant it to a private perion
or body. It is The landowners may of course voluntarily sell or make their land available for this purpose.
submifted that expropriation of land for private use may legitimately quilify as
iublic rue within the section does not expressly give the government power to acquire the land compulsorily if
meaning of article 26(2) of the Constitution where there appears to be substantial public gain. For landowner refuses to sell or give up land required for this purpose. However, it would seem
instance. where the goverrunent expropriates custornary land fora private developir to
construct a s. 42(7) that parliament intended that the minister, ifnec€ssary, could acquire the land
factory this would constitute a public purpose notwithstanding that the developer also stands provisions ofthe,Lan d Acquisition Acl.?3 Section 42(7) prescribes special
to Process under the
benefits It would be different if, for example, the minister expropriates land to seli to another for his (which override inconsistentprovisionsofthe LandAcquisition Act)for compensation ofpersons
or her private use. whose land is compulsorily acquted. First, it states that compensation must be paid to the landorvners
at'afairmarketvaluationassessedonawillingsellerwillingbuyerbasis'. Thisprobablyrneans
Compulsory acquisition under the Lond Act that compensation must be assessed at the market value. If this is right then it is suggestod that the
In addition to its potvers under the Land AcEtisition Act, the government may acqlire land by provision is unnecessary because essentially that is what article 26(2)(6)(b) of the Constitution
compulsory process under the Land Act. Section 43 ofthe Act provides that the government or says and there is nothing inlhe Land Acquisition Act to suggest otherwise. The provision most
local government may acquire land in ac,cordance with the provisions of articles 26 urd237(Z) of the likely was inserted in order to re-assure landowners, especially mailo landowners, that adequate
Constitution.6t The Act gives the district land tribunal jurisdiction to determine any disputes compensation would be paid in the event ofcompulsory acquisition oftheir land to enable tenants
relating to the amount of compensation to be paid for land acquired under this provision.tr In by ocarpancy to obtain registrable interests.
detennining the amount ofcompensation, the tribunal must take into account certain prescribed Secondly, s. a2(7)@) ptovides that a person whose land is acquired shall not be evicted until he
factors.6T For example, if the land acquired is customary land its value is determined by reference orshe receives the compensation awarded or agreed upon. This provision overrides s 6 ofthe
to the open market valne of the land, without taking into acctunt the improvements.o In the case LandAcqaisitionAct.'IlTlattersectionprovidesthat,iftheministercertifiesthatitisinthepublic
ofabuilding,thernethodofassessmentvariesdependingonwhetherthelandisurbanorrural. If interest, the assessment ofrcermay take possession of any land acquired under the Act at any time
it is urban land, the value ofthe building is its open lnarket value and ifrural, it is the depreciated afterpublication ofthe declaration ofacquisition. Thirdly, s. 42(7)(c) prwides that tlle assessnrent
replacement cost of the building. Wrere there are standing crops on the land, their value mlst be of compensation must include losses caused by severance or injurious affection. It is noteworthy
included except annual crops that could be harvested during the period ofnotice given to the that under theZandAcquisltionlcf, there is no provision for compensation for injurious affection.
landowner.6e TIte value ofthe crops must be assessed in accordance with a list ofrates compiled Nor does the general law normally take into account injurious affection when assessing
and kept by the district land board.7o compensation.
Fourthly, s. 42(7Xd) provides that compensation must include all reasonable costs ofdisturbance
6' For detailed discussion sec Mugambwz 'Article 26(2) and the protection olprivatc pqopc(yl ofthe person from whom the land is acquired.T{ Such costs would most likely include expenses
&pra pp.
88-89. k incurred to transport the landowner and his or her family and personal efects to the new place of
6r This provision sppears to be redundant in view ofthe ministcr's powcrs under the Land Acquisitiol Act, abode. Presumably, it could also incltlde any increase in bansport costs incunedby the landowner
1965. Intcrcstingly, thcrc is tto provision inlhc land Act that cxpressly rcquires thc govcmincnt to makc totraveltoandfromhisorherplaceofwo*. Finally.s.a2f)(e)providesthatwherecustornaryland
prompt and adequatc paymcnt to pctsons whosc land is conrpulsorily acquired. (Section 42(?)(b), which
is acquired, a person wl:o was using the lard as his or her home shall be paid an additional
providcs for fair conrpensation and a right to remain on the land until paid, npplies only wherc land is
'disturbance' allo*ance. The allowance must Dot exeed fiAeen per centum of the total sum
acquired undcr s. 42(4)(b) utilising the Land Fund). However, it is arguablc that the constitutional
requirement is implied in section 43 by tlre cxpression 'in accordance with the provisions ofadclc 26 and awarded. Presumably, the Uganda I ^nd Commission (or, in case of dispute, the district land
clarrsc (2) of articlc 237(2) of the Constitution'. tribunal) shall determine the ,mourt of compensation to be paid in accordance with the
66 Section 77(1Xb). The inrplication is that the district land tribunal has nojurisdiction to determinc disputes circumstances of each case, if the arncmt shall m( cxceed ffieen p€r centum of the total sum
relating to, for example, u'hether the purpose for whiclr the land is purportedly acquired is necessary for awarded.
a public purposc.
67 Section 78(l),Land Act..
6! Section 78 (1)(a).
?t Scction 7812).
5t Section 78 (l) (c ).
72 Section42 (aXb)rrd (c)
70 7r It is irrplied in tr prvriqix
- - i.
Section 78(3). Undcr s. 60(1)(c), thc district land borrds must compilc rnd maintain a list of rates of =?dtrnn dsch hd b in thc public intcrcst within thc mcaning
compensation payablc in respcct of crops and buildings of r non-pcrmancut naturc. (:lr) d?5?Q*l{&ffi-
of articlc 26 h ft c:rd it rdll bc for the courts to decidc whcthcr
6 notffd L thc e--
?' Sealm 42O(dI
I

I
t
t
 142 Prirciples ofLand Law in Uganda Senitudes over Land 143
tr 4)

lvhose
ofat the tirne ofpurcluse.el Injunctions, ofcourse. are a &scretionary remedy,
he or she had notice Licence coupledwith an interest
satiin which may or may not be granted by the district land tribunal or the court.es A licence coupled with a gftut or an iuterest is a licence to enter upon a licensor's land for the
notic6 specilic purpose of taking something that forms pan of the land or is upon the land.ro. Such a
Ertinguishment of restrictive covenants licence is irrevocable whilst the grant remai$ in existence and may be assigned, provided it is
for &e
There is no statutory provision that gives the land tribunals or the courts power to order disposed of with the interest to which it is annexed.td Where a lic€nce iovolves a right to enter and
extinguishment of a restrictive covenant, which. for example, is obsolete.s However, they may take away sornething that forms part ofthe land or of tlle soil. for example minerals, gravel. timber or
i"directly extinguish such a covenant by declining to grant an injunction against an owner ofthe
clay. the grant isaprofitA prendre.t$ Aprofftd prendre constitutes an interest in land. Subject
rcqulre servient land in breach ofthe restrictive covenant. ' to the principle ofindefeasibility. it binds subsequent purchasers ofthe land to which it applies.'07
to the In contrast, a licence to take away goods on the licensor's land does not constitute an interest in
aster.'2 I,lcoNcr land. The licensee has a right in the chattel which is on the land, and a licence to enter the land to
e. The take away the chattel.ro
r if the A licence is pennission givgn to a licensee to enter the licensor's land for some specified purpose
tunder or purposes which otherwise would be a trespass.er For example, permission given by Makerere Contractual licence
pulsory University to the students of Makerere College School to train on the university sports grounds is A contractual licence is a licence granted for a valuable consideration At common law, a contractual
il rules a licence, without which they would be trespassers. A licence differs from a lease in that it does not licence, like any other contract, does not bind third parties and its burden does not run lvith the
)ersons creal.e an interest in land.s Ttus was stated more than th,ree centuries ago irThomasv Sorrell.ts land. A contractual licence may be revoked. though. if revoked in breach of contract, the licensor
owners h that case, \y'aughan CJ said that: ,pould be held liable in damages.r0e At corunon larv, a contractual licence does not bind third
"parties even ifthey bouglrt
means -t|rc land rvith notice ofthe licence.rro
A dispcnsation ofliccncc propcrly passcth no intcrcst. ttor alrcrs or'transfcrs propcrty in
:hat the
aoything, but only nrakos an .ction lawful, which without it would-havc beeu unlaMul. Licence protected by estgppel
litution
In most Because a licence does not constitute an interest in land, it cannot be disposed ofby wrLlor inter
A licensor may be estopped from revoking a licence in certain circuustances. Where Ouma, a
lequate landowner, by his conduct leads Teki to believe tlut Le would obtain an interest in land, and on the
rniros or devolve by operation of law.tot For lhe surme reason, under the general law. a licence ordy
tenants trrvlq 3 p6qr 19 the agreement but not a stranger, even ifhe or she purchases the land with noticc basis of this belief Teki alters lrcr position to her detrirnent, an equity uray arise in Teki's favour.lrr
The court rnay force Ouma to adhere to his representation by nraking such order as is appropriate
ofrhe licence.ro2
until he to satisS the equity.tt2 On ths basis ofthis principle, a court may order that a licence that is
i of the Types oflicences revocableatitsinceptionhasbecomeirrevocablebecause oftheparties'@nducl Forexample,ia
epublic There are four ffis
of licences: a bare licence; a licence coupled with an interest; a contractual lhecaxof Inwardsv Bakertu tlrc plaintitrwanted tobuy land on whichto build his house, bur he
nytime ,;.qcel and a licence protected by estoppel. could not aford to buy land. Encouraged by his father, the plaintiffconstrucred a house on the
)ssment father's land and for sweral years, while his father rvas alive, he lived iu that house. The father, ia
:worthy
&se Licence his will, devised the subject land to his widow. The plaintitr hstituted thase procerdrngs tbr
fection. .Ahe licence is a licence granted without valuable consideratiou It is the simplest fonn of licence. possession. It was held that the plaintif's father allowed an expecktion to be created in rhe
sessing
Fr example, an invitation to a friend to come over to your house for drmrer is a bare licence. plaintiffs mind tlut the house he built was to be his lrome, at least for his life. In light of that equity,
Eccause a bare licence is without consideration, it may be withdrawn at an1, time by the licensor the father could not have revoked the licence nor could his successor in title.rla
urbance trea in the middle of the dinner.to3 An action of trespass would lie against a licensee if he or she
xpenses
rcins s11fus landafterthe licence is revoked.
place of
.downer to' Wad v Leedbttter,Ibid. sce also.Rurda Co[ee Es tates Ltd v Ulager Sn gh [l 966] EA 564.
tos Wadvlxedbitur,\bid.ScaalsoJamesJotrcs&SonsLtdvEar!ofTankemille(1909)2Ch440.
ary land
\ TdttMoxhay to' Settlement Fund Tntstees v Nurani |970)EA 562.
ditional [1M3.60] All ER Rep 9.
tal suu
m fulsrhgi v KataDrio CS No 547 of 1987 (unrcported): (1988-90) HCB 148.
Lo1 Setlanent Fund Trusues v Nurani, Ibid.
I tot Seltlcnrcnt Fund Truslees v Nurani,lbid. As this casc illustratcs somstinres
it is very diliicult to distinguish
ict lad Xlc sa.orc as with tho cxtinguishntcut ofcascnrettts, discusscd abovc.
tr 6o.rba vBal/s (1879) 13 Ch D 324. a profil d prendre and a liccncc couplcd with an intcrcst in goods.
rith the L0'll/oodvLeedbitter(1845)13I4&W83S.AlsoKngvDavidAtten&Sons,BllpostingLtd[1916]2AC54.
rtal sum ' R&ichvSzfi(1959)l0l CLR209 at222, Fot anexcellcntdiscussionollicenc.es,secR.W.Jantcs tto Kingv David Allen & Sons, Billposritg Ltd, tbid.
*S problcms conceming lcascs and liccucos' (196?) 3 EastA/ricon Latr Journal, pp. 218-51'
r ttl RamsdenyDron (1866)LR l HL 129.
Scc rlso cas€mont and profit d prendre, abovc. tt? Plimmer v Mayor of Welltugton (1384) 9 AC 699.
e {t573) vaugh 330 at 351: 124 ER 1098, at 1 109.
L fuda C-ofee Estates Ltd v Ujager Singh [966] EA 564. "3 [1965] I AltER446.
* rr{ Lord Dcnning lvlR, at 3?, stzted, obiter dictun,lhat any purchascr of tho land with noticc of a liconce
fol,rilrrrz Anstail v Amold and another [988] 2 All ER 147, thc Housc of Lords roitontcd this
ppitioo foltowing sovcral ycars of coutrovcrsy ill English courts. Scc also &rda Cofee Estaus Ltd protectod by cstoppcl would bc cqually bound by tho cquity. It is subminod that in Uganda, becausc of
t l-\zgq Singh [966] EA 564. thc prinoiplo ofindofcasibility oftitlc, cxccpt in caso offraud, a rcgistcred proprietor would not bc bound
* W v l*edbitter Q845) 13 M & W 838. Howcvcr. a barc liccncc rnay bccon:c irrcvocablc undcr thc by such a ilaim, cvcn if hc or shc acquircd thc land witir noticc. Scc also.Rundo C ofee Estates Lrd v Jager
Srngfi [1966]EA564.
ent"i{. of proprictary cstoppcl. See below.
CusropraRv RIcHTS
9
Local customary rights are ancient rights enjoyed by rnernbers of a local community over private
Co+wnership of Lafid
land. They do not have.the characteristics of an easement in that they are flot necessarilv
appurtenant to any dominant land but any urember of the cornmuniqv enjoys thern. In Englan(
localcustomaryrightshavebeenupheldasenforceableatcornmonlaw. Forexatnple,inMercerv frqnonugnox
Denne,tt5 it rvas claitred that fishennen rvho rvere inlabitants ofa parish, had a orstornary right.
u'hich u'ent back to tilne imrnemorial. to spread their nets to dry on private land. The court upheld Co-ou,nership rfland is rvhere two or more persons conorrrenlly own an interest in land.
the clairn to be a valid Iegal custom. Other activities that have been upheld as Iegal customarv interest may be a leasehold. freehold or mailo. Each c+omer is entitled to the
riglttsincludetheplavingofsporlsandpastimesonapieceoflandrr6 andtheuseofafootpathto enjoyment or use of the land- claiming not a separate portion but a mutual right in tlte
the local church.rr Coownership :nay be injoint tenancy or tenanc] in common.2
In Uganda, tltere is no doubt that cnstornarv rights are enforceable rvith respect to land o\lned
undercustomarytenure.rrr AsregardslandregisteredundertheRegistrationofTittesAct.slbject Jorrtrtrxaxcv
tolbeLandAct,l998. itis thoughtthat the principleof indefeasibilityoftitleexcludes theenforcement
ofcustomaryrightsagainstregisteredproprietors. Thisvielvispartll'basedontheHighCourtof There is ajoint tenancy where two or more persons together as a group own the entire interest
KenyacaseofobierovOpivoela/.rreThefactsofthecaservereasfollou,s. Inlg63,theplaintiff the property. Co-orvners in joint tenanc.v. unlike tenants in common. do not have disllncf shares
rvas registered under the Kenya Registered Land Act (cap 300) as proprietor ofthe suit property. theland. Intheqesofthelawtheyholdthervholejointlyandnothingseparatel)'.3 Ajointtenanq
Slte bror.rglrt these proceedings for eviction ofthe defendant ryho claitned to be entitled to the suit has two essentral features rvhich distinguish it frorn a tenancy in common: presence of the fod
property under customary lalv and to have cultivated the sarne from time irnmemorial. The issue unities and the right ofsurvivorship. Unlcss these hvo features exist there cannot bejoint
I'as tvhether the defendant's claim constituted an overriding interest against tlre plaintiff's title.
Bennett J observed that s. 28 of tlre Act confers upon a registered proprietor an indefeasible title The four unitics
snbject to charges and encumbrances shown on the register book and to such other overriding The four unities are unity ofpossession: trnitv of interest: unity oftime; and unity of title.
rights listed in s. 30 rvhich are not required to be entered on the register. Having found tlut there
Unitv of posse::sion
lvere no enculnbrances noted on the certilicate oftitle and tlmt rights derived from custom lvere not
Unity of possession is a common feahrre of all forms of co-ownership. It means that eaclt
among overriding interests listed in s. 30. His Honour concluded that customary rights rvere not
is entitled to an rrndivided possession ofthe whole ofthe co-orvned land and none holds any
intended to constitute an exception to indefeasibilitv oftitle. Bennel J said:
separately to tlte eNclusion of the otlter co-owners.s For example, if a husband and u'ife own
Had thc legislahrre intended that riglrts ola registered proprictor werc lo be subject to the rights of matrimonial h,:use in joint tenancy. one cannot say that the kitchen belongs to the rvife and
any person under custonary law, notlring rvould havc been easicr than for it to say so.l20 sitting room tc tlte husband. The house as a rvhole nnit belongs to both of thern.

Thouglr sections 28 and 30 ofthe Kenya Act are not identical with s. 6l ofthe /?egistrotion of Unity of interest
Titles Act. it is subrnitted that the reasoning of Bennett J would be of perzuasive authority in its Unity of interest uleans that the interest of each joint tenant must be identical in nature
interpretation. For exalnple, according to a Baganda custom a mailo orvner cannot deny access to duration. For examplc. tltere cannot be a joint tenancy lvhere one co-owner has a leasehold
a person who wishes to attend.his or her relatives' tornbs on the land.r2r Jt is very rnuch doubted in the land and another a freehold. Sirnilarlyi. there cannot be a joint tenancy where one co-owner
that this customary 'licence' to enter conslitutes an weniding riglrt to tle principle of indefeasibifity. cntitled to a grcaler sharc of the rent frotu the land than the other. In tltcse exarnples. the
Horvever, as ue have seen, the provisions oftlte LandAcl,1998, override the pr[giple of- rvould be tenants in comrnon and not joint tenants.6
indefeasibility in some respects. Relevantly, for the present purposes s. 4(4)(c) ofthe Act prcvides
that the rights ofa rnailo orvner are subject to the 'customary and statutory rights' oftenants by Unityof time
occupan.cy. It is thought that the custolnary riglrts of such tenants constitute an exception to the
Unity of time means that the interest of eachjoint ol.!'ner must vest at the salne tinre. For
principle of indefeasibility of title. ifA and B together purchase land and the land is conveyed to them, there is unity oftime
thetitlevestsinthematthesametime. SupposeClaterbecomesaco-ownerwiththemin
shares, C cannot be ajoint tenant rvith A and B because he acquired his interest after the
of A and B had vested.'

'rs [1905] 2 Ch 538. Megarry and Wadc.'fhe Lo* ofReol Propern supra. p' 417.
tt6 Nev ll'hdsor Corporttiort v ]vlellor [1975] Clt 380. Thc tcnn 'tenancy' nrenns oumcrship and has nothing to do with lcases
tt' Brocklebankt,Tlpnpsott [1903J 2 Ch 3a4. Cheslrirc and lJrrnr,,{lodenr Law of Real Ptopcro- supra- p' 209.
rrr See ss. 4(1) and 9(i)l,ard Act, 1998.Sce nbor.c Chapter 1.
AG Secrrities v trhughon [ 988] 3 All ER I0i8 (IiL)
tre
u9721 EA 227 (K) Billt, Bull [955] 1 QB 234.
tlu lbid. at 228. See also Esirovo v Esirot'o & another |9731EA 388 (K). Also in thc Pnpua Ncw Guincan
AG Securities x, Ihlghan [988] 3 All ER lO58 (IIL),
'casc ol Custodian of Espropriared Properi, t, 1'edelt (1964) CLR 318. it rvas hcld tlral unrcgistcrcd
This rule docs not apptv to dispositiors in e still aod curvel'rnccs to ttlstccs Sec Mendcs Da
customary rights canttot stand against a registercd title. 'Co-owncrship Urrdcr vrstorian l.oad Ix*' (1961) 3 'lJsrSam c [Jtriveriry' Lott ]?eyrop 137' al 1 52.
r2f Haydon. lorv nnd Jusrica in Brgondo (London, Brtttcnrorths. 1960). p. 164.
I!J
 l
*. Prurciples of Land Law in Uganda LanA AanrtubL..tttvtt vv,.u v. -..- e

It should be pointed out that the provisions for compulsory acquisition of land are confusing in the district. Its mernbership shall consist of a chairperson and two other members all appoinred
roA i-u our view, need re-drafting. For exarnple. as we have poiuted out above, it is not clear what by the ChiefJustice, acting on &e advice ofthe Judicial Service Comrnission.?s
FPos€ s.43 serves in view of t}te powers already possessed by the minister under tJre Land SectionT5(2) stipulates thatthechairpersonoftlrc district land tribunal mustbe a lariyerwho
-$quisition Act.15 The two provisions need to be reconciled or one of them should be deleted. is gualified to be a Magistrate Grade l. There are no fonnal educational requirements for tribunal
Sondly, if the minister acquires land under the Land Acquisition Act. it is not clear whether the members.?e However, s.75(3) prescribes that only persons with lsrowledge and experience in land
tohual in assessing the compensation must take i[to account the requirernents of s. ?8 of thetrand matters shall be eligible for appointrnent as members of the tribunal. The Act does not give any
t in land. .{cr. A strict interpretation of this sectiou suggests that it only applies where the govemment gurdance as to what constitutes the requisite knowledge and experience for tliis purpose. Most
rquireslandunders.43ofthel,and.4cl.76 Yet,inourview,thereisnologicalreasonwhyitshould Iauryers because of their training would qualifl for appointment as tribuml tnernbers. Nevenheless,
In Ule nake a difference lvhether the land is acquired wtder tbe Land Act or the Land Acquisition Act, in our view. knowledge and erperience in land nratters does not necessarily rnean tliat rnernbers
EttaJ}I. wehave assurnedthatparliament intended that s. 42(7), whichoverrides contraryprovisions have to be lawyers, because, ifthat rvere the legislative intention, it would have said so, as it did
ccthe Land Acquisition Act, applies only lvhere the government uses the Land Fund io acquire with respect to the qualifications of the chairperson. It will bo up to the Chief Justice to detennine
i2'Y{ for the pu{pose ofenabling tenants by occupancy to obtain in each case whether a particular candidate sati$ies the stafutory requirements. Potential candidates
; Fgistrable interests or to resettling
:- people rendered landless. Tlte reason for the assurnption is that s. 42 deals exclusively with tG would include fomer civil servants. chiefs, fonner local council officials, and any o0rer person *'ho
tire interest i{ I -nrt Fund. Again, there appears to be no logical reason rvlry the same rule should not apply in worked in an enyironment that enabled hiru or lrer to accluire knorvledge and experience in relation
/tncrsharesd o&er cases ofcompulsory land acquisition. to land matters. Besides knowledge and experience in land matters, the pe(son to be appointed
tjoint tenar{ must be at least thirty years old, ofsound urind, cluracter and proven integrity, have no criminal
rce of the foa I*rroonpurrssETTLEMENT l 4ecord involving nroral turpitude and have never been declared bankrupt. Unlike membership of
,olnt tenanqd the land boards and committees, which must aonsist of at least one-rvoman rnernber, there is no
Lhder the landlcr, all courts below the High Court ceased to have jurisdiction to deal with land statutory requirernent for gender balance on a district land tribunal.& Houever. in tliis era of
dsPutes.T The powers originally exercised by rnagistratd's courts are now vested with land 'political correaness' it is thought dral when making appoinunenh the Chief Jusice will be mindlul
oftitle.
mtuaals created under the Act. As rve shall presently see, under the tribunal qystem for the first ofthe need for genderbalance wherever possible.
t;* in Uganda's legal history non-lawyen will play a greater role in fonnal land disputes settlements
r}an hithcrto. Indeed, potentially the urajority ofthe people involved in land dispute settlernents Tenns ofservice
:ach co-owril
sill be non'la*yers. The involvement ofnon-lawyers. tvith diverse backgrounds and knowledge, Article 243(4) of the Constitution provides tlnt a member of a land uibunal shall hold oflice on
iolds any pan'
b likeiy to have substantial impact on the dweloprnent of land tenure Iaw in this country. The terns and corditioru determined by a Iaw made by parlianrent. Section 76 of the Land Acr strp,rlates
,vifeown thei
: wife aud th6,
rn"e and extent of tlte non-lawyer inlluence on land law remains to be seen. Nevertheless, tlut a member ofa district land uibunal slull hold ofEce for a period of fir,e years and nrai, be eligfole
trrlers will undoubtedly continue to play a very irnpo(ant role representing their clients before for re-appointrnent. To foster their independence the Act protects nembers frorn arbitraq' temillanon
:
tbe tribunalsand, ofcourse, in the event ofan appeal against a tribunal's decision the High oftheirappointrnent. SectionT6(2)empowerstheChiefJusticetoreuroveametnberfromofrcebut
i' Court
; rrill cbeck and balance the tribunals' interpretation of the lalv. We shall consider each of t1e only on the grounds stated therein. The grounds are: inability to perfonn his or her funcrions due
Ntutions established under the Act and theirjurisdiction. to infinnity of mind or body, misconduct, incornpetence, absence frorr at least five consecutive
sittings without lawful excuse, conviction of a crimiual offence involving rnoral turprtude, or if
I rnd fi.i[utral5 declaredbaokrupt. Members of the tribunal shall receive a salary and allowances as determrned by
Tbe establishment ofland Triburnls is a corstitutional requirement. Article 243 of the the Public Service Commision on the recommendation ofthe Judicial Service Corrunission Their
Constitution
rcguires parliament to enact a law for the establisluneut of land tribunals. u,h.ich slull be vested salary and allowances shall be charged on fie Consolidated Fund.tr
with
tte power, intet alia, to detennine disputes relating to laudownerslilp. transactions and the
:sE<tmsa19f sornpensation for compulsory acquisition of land. That law is Jurisdiction of district land tribmals
theZanrl Act.1998.
For Th Act provides for the creation ofland tribunals at district. sub-county,, city division and urban District Land Tribunals havejurisdiction to deal with, virtually, any disputes over iand rvithin their
'time geographicaljurisdiction Section 77(l)(a) provides that a district land uibunal sha.ll determine land
ereas lwels.
.lrem in disputes relating to Ure grant, lease, repossessioq transfer or acquisition of land lvhether arisrng
)r the trIrrictland tribunals under the Act or otherwise and whether between individuals or involving the Uganda Land
Sectioa 75(1) ofthe Act provides that a tribunal, known as the district land uibunal. shall be
tsdblished in eaclt and every district in the country. A district tand tribulal is the highest tribunal

E " Scction 75(5). Articlc 243(3) of thc Constitution, rcquires that thc chairperson ol a land tribunal shall be
irbasbcensuggcslcdthatlheLandAcqtisitio,tAct.lg65.violatcsartrcles26aud42olthcConstitr,rtiou. appointcd on thc advice of thc Judicial Scrvicc Conrnrission.
& coafliots with articlc 26 becausc it allorvs thc takil€ of posscssion bclore conipcnsation Inviewofthcrcquircncntsthatnrcnrbersofthslowertribunalslnusthavccortrpletedanrurinrunrfonual
is paid and docs "
mt provide for proutpt paylncltt of t'air and adcquatc courpcnsation. It conflrcts with articlc 42 (which education ofOrdinary Lcvcl or its equiralent for sub-counq'tribuuals, s. 81(3Xb), and a Drplonra level for
providcs for a fair hearing betbrc an adnrinistrative body and
right to apply to court sgainst an administrativc
a tho urban laud tnbunals, s. S2(3Xb), high cduoation qualilications will be expccted ol menibcrs of the
dccision) in that it lus no provisiou for any hcaring or challcugc to the rninistcri dccision that land.is district land tibunals.
les Da r0
mquircd for a public purposc. sec McAuslan and Mrvcbaza, 'Lcgal Appra.sal', fuinex 6, vol.2.
n l4,' ,A proposal to insert a similar rcquircnrent as for land boards and committees rvas rejected by parliament
\7. at l5Z bccausc it mayin somc irutzurccs cornplicatcrocruihnentof tribunal menibers rvith therequisite qualifications.
.CngnmcnttfUgandaRcportonthoLandActInrplenterrtationst"ay,rSeptcmbcrl999:
\ Scc also s. 77(l[b). Scc Harcail
* Soxbn 98(7). Scc provision for transitional jurrsdiction below.
!t Section 75(6)
44 Principles ofland Lav u Uganda i.ad -,l*ztult;a;ation Control dnd Dispute Seillenent

Cornmissionorothgrauthoritieswithresponsibilityoverland.a Thedistrictlandtribunalhasalso Uftas ard citl&risiu h-trrihrr qorcist da ctairperson and trvo membersel
jurisdiction to deteirnine disputes over the amount ofcompensation payable for land acquired by by the Judicial S:rricr emfuiur.i ht5|rin6llrr thffe is no5tatutory requirement for at
compulsory process.rr As rrc shall presently see, lolver tribunals have a financial jurisdiction one ofthe rnedqsbbee m' 8w rs cali= srggested" most likely the Judicial
limitation, Section 77( tXc) eryressly gires the distria land tibunal theiurisdiction to deal \yith CommissiqnlrilL stcraqposuitlc.te.Fe.riebFrdsrbias when making appointrnents.
land disputes beyond the financialjurisdiction oflower tribunals. Moreover. it has the powerto person tobe eligible forapiv*mef barft msbeat least thirtyyears old.eshave
make consequential orders relating to cancellation ofentries and or vesting oftitle in respect of a minimum formal edmirxrcfa la @oma lael from a recognised instihrtion, and have
cases handled by the lorver tribunals.E' been declared banlrnp nor comicted cf,a crimiml offence involving moral turpitude.$
Section 77(2) provides that in exercising itsjurisdiction under the Act, the district land tribunal
shall have all the powers of a Magistrate Grade I under the.ly'agistrates Act. Additionally, the Tbrnrs of sertice
tribunal has the power to grant orders ofspecific perfonnance. injunctions, declarations, and such Mernbers of the land tribunals shall hold office for a period of five years and are eligible for
other reliefand orden as the cirormstances ofthe case nray require. Specific porvers ofthe tribunal appointment. A member maybe remorcd from office only on grounds specified under the
include the follorving: power to cancel. vary. or postpone the operation ofany action, notice, order. lcl. Section 84(2) prwides that a member may be removed from office for inability to
due to irdirmity of mindorbody, misbehavicn:r. incompetence orabandonment of duties.
decree, or declaration. Moreover, it rnay nrbstitute a different decision for the one detennined by
of the land tribunal shall be paid such salaries and allorvances as specified in their letters
any of{icial, board, comrnittee, association, or the comrnission. Furtltennore, the tribunal may
appointment, and the money drawn from the Consolidated Fund.,t
confirm a decision or order made by any official. board. association. or the cornmission.
nohvithstanding any procedural error. if it is satisfied that no injustice rvill be caused by such Jurisdiction o/ land tribunals
confirmation. Land tribunals have the power to detennine any land disputes within thcir respective
Howwer, therc is afinancial limit to theirjurisdiaion. A sub-county land tribunal's jurisdiction
Rules of procedure
Iimited to determining land disputes rvhose ralue does not exceed two thousand frve
It is envisaged under the Act that thc mles of procedure of the district land tribunal rvill not
curencypoints (fiftv million shillings).s The pecuniary jurisdiction ofurban district land
necessarily be the same as those followed by the ordinary courts. Section 79(1) provides that the
and city division tribunals is lirnited to five thouand currency points (one lundred million
land tribunals shall follolv rules of procedure made by the Chief Justice. In forrnulating the rules.
and twelve thousand five hundred curency points (two hundred and frfty million
the Chief Justice is enioined to make such necessary rnodifications to the rules of evidence as
respectively. Besicles the financial lirnitation. sub-county. urban and city division tribunals have
rvould facilitate the expeditious disposal of land disputes. Moreover. since the sarne nrles will
powerto order for the cancellation ofentries on a certificate oftitle. cancel a certificate oftitle
apply in the lou,er tribunals. they must be rnade in such a rvay that lorver tribunals constituted by
non-lawyers can apply them. t' rnake a vesting order. The uibunals have to refer such cases to the relevant district land tribunal.

Rules o/proce&tre
Appeal
The rules of procedure made by the Chief Justiceunder s. 79(l) for the district land tribunals,
The district land tribunal shall hear appeals ftom lo\€r land tribunals within itsjurisdiction established
equally apply in the lower tribunals.rm
under sections 8l and 82 of the Act,85 An appeal against a decision of the District Land Tribunal
in exercise ofits original or appellatejurisdiction lies to the High Court.r ,4ppeals
Anappeal shall liefrornsub+ounty, urban andcity division tribunalsto the district landtribunal.
Sub-count1,, u rb an district nnd city division tribun nls
The Land Act provides for the establishment ofa land tribunal in each sub-county, gazetted urban Alternative dispute resolution
area and dMsion in a cit)'.rs A subcounty ribunal shall consist of a chailpersol 44d,hYo-other In addition to the tribunals. thc Land Act provides two alternative mechanisrns for resolr.ing
nrentbers. At least one of the members must be a woman.$ The ludicial ServifrJ Commission disputes. Firsl there is the custornary dispnte settlement and mediatiorl and secondly. the
appointsmembersofthetribunal.eo Section8l(3)providesthatapersonshallnotbeappointedto We shall consider each of these instihrtions separately.
t1re tribunal unless he or thirtv )ears old,et has completed a rninimum formal education
she is at least
ofOrdinary Level or its equivalent. has not been declared bankrupt or convicted ofa crirninal Curtomnry dispute settlcment and mediation
offence involving moral turpitude.e All societies in Uganda have had and continue to have their own traditional rvays ol .il
disputes, including land disputes, outside the formal court lystem. In some comrnunities.

tl See also Chapter 2.

!r Section 77(1Xb). Sec also 'Compulsory acquisition of land'- above. t! Scctions 82(3) and (5).
r' Section 77(1Xd). "tt Section 83.
!s Section 79(2). This rcquircment does not apply to a pcrson who holds a Llnivcrsity dcgrec in 'land matters', s

r6 Section 88(2). Tltcrc is no definition in thc Act ofthc expression 'land matters'.
r7 Section 88(1) and (3). Section 82(3).
sr Sections 8l(1) 82(1) and (4). t'" Section 87-
re Section 81(2). ft seems tlrat this requircmcnt rnust bc sntisfied cven ifthc chairperson is a rvoman. tr 'A cuncncy point' represents tventy thousand Uganda shillings- sec Schcdulc,.Land.4ct
to Section 83. tt Scction 85(2). Sec also s. 77(2). 4
roo
er Thc age rcqrrircnrent does not apply wherc a person holds a diploma or higher dcgrec, s. 81(4). Section 86.
rot Section
88(2).
'2 Section 81(3).
 tenteryt 16 Prilrcrples ofLand Law fu Uganda Land Adnurustrulron Control <tnd Dtspltc Seulerrrcnt 4't
4

i.nstitutions still play a very irnportant role in settling disputes even though their role has not
Mediation as opposed to litigation is ercouraged in other situations under the land Act. For
hitherto been offrcially recognised. The landlcl for the first time gives a legal recognition to the
for at example, in the case ofan application for a certificate ofoccupancy, the land cornmittee rs required
role oftmditional institutions as a possible aveuue for resolving land drsputes. This is an avenue rnediation.roT Sirnilarly, under section
ial to usg its best endeavous to resolve cordlicting claims by
gnts. For which ought to be encouraged Section 89( I ) expressly declares that the provision for land tribunals ifdisputes arise betweenmembers ofa land association, the DistrictRegistrar of Titles is
Zl(lXb),
rhnll ne1!s ee11strued as intended to undenuine or limit the functions of traditional authorities in
required to refer the matter to the land board or sorue other person to act as a mediator. It is
deten[ining disputes over customary land or acting as mediators over disputes involving such
rd have important to note Urat a mediator in this instance need not be a person fomrally appointed as a
te nd. The provision gives parties to a dispute over customary land an opportunity, if tlrey feel more
medrator by the land tribunal under s. 90 ofthe Act.
corrfortable,toreferthemattertoacusto[raryinstitutionthatismorefanriliartothem. Section89(2)
provides that at the comnencement of a case or at any time during the hearing, if 0re land tribunal Transitional jurisdictiou
ible for is of the view that becawe of the nature of the dispute, it ought to be dealt rvith by traditional Sectiong8(5) oftheLandAct,providesthattlieEighCourtshallcontinuetolrearanylanddispute
r the mediation rather tlun by litigation, the tribunal may advise the plardes to rcfer ureir dispute to such casespendingbeforeitpriortothscolnmencementoftheAct:2July1998.'08 Section98(6)gives
orm ilstitution. For example, in a land dispute bchveen rnenrbers of the same family, if the lribunal similar powers to magistrates' courts and local council courts to complete any such cases pending
thought that the parties' elders should resolve the dispute through mediation it rnight advise them before them priorto the corrunencernent of the Act. The magisrates' and local council courts rnust
letters accordingly. In that case, the tribunal should adjourn the proceedings for a period ofup to three complete all pending cases within a period oftlvo years from the date the Act came into effect.
months to allow the traditional dispute process to proceed. However, ifat the end ofthe period When that period expired on 2 July 2000, the rnagistrates' courts and local council courts
gecified by the tribunal the matter is still unresolved. the parties are frec to resume proceedings ceased to have the jurisdiction to continue hearing land cases they were yet to dispose of.roe
before the land tribunal.'o2 It is important to note that this provision only applies to disputes amendment of s 98, [,and (Arnendment) Act 2000, authorises these courts to complete
{subsequent
iavolving customary tenure. 'such cases.
sdiction is just a temporary measure to enable these courts to finish
It should be emphasised that this
trIediator
tlre cases filedbeforetbe LandActcalne into effecl. but it does not othen4,ise restore therrlurisdiction
d \\e LandAct nakes provision for tlte appointrnent and use of a rnediator to resolve land disputes.
over land disPutes.
Tlre use of mediation to settle disputes is, of course, not new As lve have stated above, mediation
shill bas always been the most common way of resolving disputes in all comrnunities in Uganda. The
rls have Aasimplygivesitofficialrecognition. Section90(l)providesthatthelandtribunalshallappoint
: oftitle a mediator on an ad hoc basis. There are no required forrnal qualifications 1br a mediator. Howwer,
tribunal. s- 90(2) prescribes certain qualities tlut a person must have to be eligible for appoinunent as a
I mediator. These include a requirement tlut the person rnust be of high rnoral character and proved
Eregnty; and, by virtue of his or her knowledge, work. reputation or standing in society, must be
nals. capable ofassisting or likely to assist parties to a land dispute to reach an auricable settlement,
T\e Land Actspecifies two situations where a mediator appoioted under s. 90 should be used.
Ftrs, a mediator may be used in negotiations to regularise the relationship between a registered
ribunal.
oenerandpersonsonhisorherlandwhodonotqualifftobebonafdeoccupants.ros Secondly,
a oediator nuy be used to help a tenant by occupancy and the registered landowner enter into a
oegotiated sedement where either wishes to assign his or her interest.ro( It should be stressed that
tving e mediator has no power to coerce the parties into agreernent. The rnediator's role, as described by
tie minister of Lands during tlte parliarnentary debate of the Land Bill, is 'to narrow down any
dsageementbelween the parties'.'os To do this a mediator needs to dernonstrate skills of persuasion
,xl coaciliation. But in the end it is up to the parties to make up their milds. For exarnple, in the
aegotiations between a landowner and a non-D ona/ide occupant to regularise their relationship, if,
a ryite of the mediator 's efforts, the parties fail to agee it would seem that the laodowner may wict
r}e occupant.r6 With respect to negotiations between a tenant by occupancy and a registered
maer, if after three months of negotiations the mediator is unable to assist the parties to reach an
lgreement, the party wishirg to assign may proceed to dispose of his or her interest as he or she
*ishes.
,', s

e The right to tcsunrc proceedings whcre nrcdiation fails is inrplied. See Hansard,2g Jurlc 1998, p.4352.
G Scction 31(2) and (3). See also Chaptcr 2. 'o' Section 7(5). Sec also Chapbr2.
e Sccrion36(6ionoizj. . :-:
ror
This provision is probably urnecessary in view of the fact that the Hrgh Court has r.rnhmited original
e Eaasard,28 June 1998, p 4299. Scc also p.4300. -? tt) ' jurisdiction in all mattcrs, sec articlo 139(l) ofthc Constitutiou.
* Se Chaptor 2. rot
By tho tirnc tho two.ycar period cxpired many of such cases had not yet been disposed ot.
 4 Gmeral Principles of Land La*

General Principles of Land Law in fee simple is equivalent to fuI ornership of the land itself. Nwertheless. the basic
English land larris thatthe radical titleto all land remains witfithe crorvn.
This chapter deals rvith some of the most important general principles of land larv. Thq, are
Afee tail was a &eehold estatelhaL urilike a fee simple estate. was inheritableby a limited
considered under the following subheadings: ofrelatives. Normally.itsinheritancenaslimitedtolinealdescendantsoftheodginalgrantor.
1. The doctrine oftenure and estates example a grant 'to A and heirs male of his body' meant that the estate 'rvas inheritable only
2. Meaning of land male descendants. If there $ere no male descendants. tire land reverted to the original
3. Equitableandlegalinterestsinland his zuccessor in title.' The object of entailing rvas to ensure that the land remained to
.t Adverse possession closed family. Fee tail estate is obsolete.
A life estate is an estate that endures for the life ofthe grantee or some other person's life.
example, where in a rvill a testator grants his house to 'A for life' it means that A has a
THr ooc"rRlNE oF TENLIRE AND [srATES
estate for as long as he or she is alive. Aftcr A s death lhe house lvill pass on to solne other

Thcre are trvo basic tenets of the English larv of real property. They are the doctrine of tenure and namedby the testator. A life estate is a freehold estate because its duration is uncertain. as it is
the doctrine of estates.
knorvnwhentlreholderu,illdieandtheestateterminate. However,alifeestatecannotbe
as it determines upon the death ofthe holder.
Doctrine oftenure The expression 'estate less than freehold' refers to an estate whose date of
The doctrine oftenure states that the cro$t, $,ho is theLordParamount. orvns all land in England.r certainorfixed. Theonlysuchestateisalease. Aleaseisagrantoflandforadefiniteperiod-
There is no land u'hich is allodial or owned by a sub.lect and not held either directly or indirectly of lease, even ifit is for 1000 years is not a freehold estate because the date ofits
thecrorvn. Thecrorvn'stitleisvarioush,dcscribedasthe'radical'or'absolute'or'ultirnate'title.? certain.lo
The origin ofthe doctrinc oftenure is founded in the traditional beliefthat some time after the
Relevance ofthe doch'ines oftenure nnd estfltes
Nornran conquest ofEngland in 1066. Wlliam I declared all lands in England to be lts by conqucst
According to .Sa lnrond's Jurispnrdence.tt upon the introduction of the comrnon law in a
and sunender.s The king rervarded his follorers rvith grants ofland. not absolutely but conditional\'
protectorate (as Uganda rvas). all land in the territory was vested in the crolvn. In other words,
on performance of various services. TIle term 'tenure' signifies holding land from a superior lord in
radical or allorlial title wasvested in the crorvn in the sarne way as it did when William I
return for senices,a
Englandin 1066.t'? WithrespecttoUganda.byvirtueofthe Crcv'nLands (Declaration)
Doctrine ofestntes 1 922.rr it was afinned that all land and any rights therein in Ure protectorate' shall be

The doctrinc of estates refers to the interest that the subjects orrm in land. According to English be the property ofthe cros,n unless they lrave been or are thereafler recognised by the
land laui a subject does not orvn land but holds an cstate of the crorvn. An estate is an abstract by document 1o be the property of a person or until the contrary thereof be proved'. The effect
that untilthelerminationoftheprotectoratealllandinUgandanotheldundertitle(apartfrom i,1
entity rvhich authorises a person 1o remain in possession ofthe land for a period. subject to the ,{q
performance oftenurial duties.r The estirte itselfis propcrtl', lvhiclr is the subjcct oforvnership very little was so held), rvas deemed crorur land, which legally was at the absolute disposal
both at larv and in equity. crown.ra Arpuably, rnailo was allodial land or vested in individual holders and not held by
Estates are classified into tu,o broad groups: estates offreehold and estates less than freehold. crown.ls
The tenn 'estate offreehold' refers to estates that are ofuncertain duration: fee simple. fee tail, and Whether the doctrines of tenure and estates rvere introduced in Uganda by virtue of
lifeestates. Afeesirnpleestateisthelargestestateintennsofdurationthatcanexisti[comnlon protectorateand/orlegislationispurelyofacademicinterest. Underarticle23T(l)ofthe
lal,. The tcnn 'fec' desigrratcs that it is inheritable and 'simple' indicates thal it is inheritabl_e by thc the ultirnate trtle to the land in Uganda is vested in the citizens of Uganda in accordance with
gencralheirs6 oftheholderforthetimebeing.T Afeesirnplecstateonlydetermind',rvhcnthetrolder land tenure systerns provided by the Constitution.15
of the estate dies inlestate and lvithoul anv relatives l,hatsoever capable of inheriting it under
intestate succession.! Since it is virtually irnpossible that a person could die intestate and lvithout
anv relatives. a fee simple is capablc ofenduring indefinitely. For all practical purposes. an estate

' Bum, Cheshire and Burn b Modertt Lav o/ ReaI propcny. supra, p. 149.
t to lbid,p.34.
.Attonret-Garrcrol of Oiltdriovl[arcer(1883) LR 8 App Cas 767.
1 rr 10n cd, Appcndix Y pp. 520 - 2l(citcd Robcrts-Wra1,, Comntonwcalth and Colonial Law
Antodu Tijarri v Soilhenr Nigcria 11921] 2 AC 399.
r Mcgarry nnd Wadc. The lnv'of Reol l|roperi,. sttpra. I2. Stevens & sons, 1966, pp. 625-26). Sec also Morris artd Read, Uganda: The Developntent ofits Laws
I lbid. Constitution (London, Stevens, 1966): p.44.
r2 For criticism of Salmond's thcsis, scc Roberts-Wray,Commonwealth and Colonial l,aw (London,
' Ibid. p. 38 et seq.
6 The expressiou 'gcncral lteirs' nreans rclatlves o[ [ny so(. & sons, 1966), pp. 626-27.
I t' Reviscd Lows oflJganda 1951, cap 1 18.
Brrnr. Cheshire and Burnb 14odern Lay' of Reol propern. (14{' ed. London. Buttcnvorths. 1988).
ra MonisantlRead,lJganda:TheDevelopnrcntofitsLa*sandConstitttlion(I-ondon,stevens. 1966),p
ip.1ae-so. ti
I lbid. Obol-Ochola, Customory, [,nn/ Law and the Economic Derelopment in lJgando, supra, pp. 24 - 26.
r' Sec Chaptcr 2.
48

rJ
IL
 dLfu 49 50 Pinciples o/Lond Lav m Uganda
General Pnnctples ofLand Law 5l

ic thesis court did not quantiry the height which is necessary for ordinary use. Clearly, each case depends
Mrarnc oF LAND
on its own facts. It is important to note &at the test is not whether the incusion rnterferes with the
To lay people land is the solid portron of the earth's surface. But in law the tenn 'land' means lnore landormer's actual use of the airqpace. Rather, it is whether the incursion is of such a nature and at
rantor fi^n that. The comrnon law conception of land is surnmed up in the Latin rnairr: cuius est solunr such a height as may interfere with the ordinary use ofthe land by the orvner.
only bv A cirl,s est usque ad coeolum et ad lnferos. Translated literally, the nraxirn rneans that the person to There is no Ugandan case law to date which deals with this issue. It is thought tliat the test in
I grantor vhom the soil belongs also owns the heavens above and everything belorv it.r7 The statutory Bernstein of Leigh @aron) v Slcyviews and General Ltd is of general application and likely ro be
to benefrt definition of land also indicates that the concept of land covers much more tlun the pltysical followed.
prr'tionoftheearth'ssurface. Forexample.s.2ofthenegistationofTitles.{cr(cap205)defines
t's life. Rights belorv the sur{ace
bnd inctuding 'messuages,rE resources, tenements and hereditanrcnts corporeal or incorporeal'.re
as
At common law, the landowner is entitled to everghing below the surface. On the analogy of
fther statutory definitions rnay be rvider or narrolver depending on the object ofthe particular
ther Berstein of Leigh (Baron) v Slcyvie*s and General Ltd. the surface owner's rights are probably
bgislation. The definition of land is irnportant because it determines the nature and extent of the
.asitis lirnited to such depth as is necessary for lfs or her ordinary use and enjoyruent ofthe structures
{qht( oll a landowner against the rest of the commurity. We shall exarnine sorne of these rights and
thereon. Below that depth the landowner has no greater rights tlun nrernbers of the pubiic.
&eirlimitations.
The landowner's rights do not include rniuerals. Section 3 of t\e lduting Act (cap 2il8), states
mination I$lts above the surface that the entire property in and control ofall rninerals and ruineral oils in under or upon any lands or
eperiod. The airqpace above the surface belongs to the owner of the surface land. Any intnsion in the waters in Uganda are and shall be vested in the government.
mination *irTac€ by another is trespass. The fact that the intrusion is insignificant or that it causes no
f Firtur.,
{tza bitain and lrelandb , the ddendants fr,red an advertising sign on their building projecting The common law definition of land includes everlthing tlut attaches to it. Tliis proposition is
agk i.oches over the plaintiffs' building. It was held that the intrusion in the plaintifls's airspace surnmed up in yet auotherlatin maxim'. quic quid plaiatur solo, solo cedit. Literally uanslatedit
{".rx*itrted uespass to land. The defendants lvere ordered to remove the offending object. means that \,vhich attaches to the land goes rvith it. The nraxim is priniarily used to determine the
r words, Tbe question is, to what height does ownership of airspace extend? Is it to the 'beavens above' riglts of a landowner over things attached to or embedded in the land, The classical rule is that
,r$e above rnaxim states? Some of the older cases suggest a positive response.?r But rnodern where a person flxes a thing (or chattel) on another's land or buildiug ori the land in such a way that

rruss have adopted a cornmon seose approach and irnposed a limit on tire airspace above the in lalv it is a firlure, it becomes the property ofthe landowner.2' The landorvner has no legal
>resumed obligation to compensate the person lvho attached the thing to the land.:s
mr&v. The authority cornmonly cited in this regard is the case of Bernstein of Leigh @aron) v
Sbsrrgrls and G eneral Ltd.n In that case, the defendants witlrout prior authority of the plaintiff Tlre rule is illusEated by a Nigerian case of Francis v lbitoye.T6 lnthat case, the plaintiflwas
e eflect negotiuing with the ddendant to purchase the laner's land. Before tlie iregotiations *ere concluded
unta singie aerial photograph of the plaintiff's house frorn a height of one hundred metres. The
:from &e plaintiffwithout the knowledge or coment of the defendant proceeded to construct a house on
silrffffi:rstituted proceedings alleging tlrat the defendants had wrongfully errtered the airspace
posal the land. Unfornrnately, the negotiations for &e sale of tlre land fell tluough" The plaintiff sued the
druE his house to take the photograph. He claimed damages for trespass. Gritflths J whilst
held bv tmmi:ring tbe maxim that a surface owner was entitled to the airspace above his or her land rejected defendant for conrpensation for the building he had erected on the land. It tvas held that the
$-Fqsition that the landowner's rights extend to an unlirnited height. His Honour emphasised defendant was not under any legal obligation to cornpensate him. The judge said:
irtue of
fu:ng,ruace ofbalancingtbe rights of a landownerto enjoytheuse of his orher land agairstthe I kuow of no authority for such a clainr... lt is trite law that a buildurg erected rn [such]
rqgrm of$e general public to uke advantage of technology in the use ofairspace, such as flying
rcewith circumstanccs... bccomcs the propcrly oltltc landowner without any obligation to re-compcnsats
nuiuuc- In his Honour's judgement the appropriate balance is b€st struck by restricting the ths buildcr.2T
fudmmr's rigbt to such height as is necessary for the ordinary use and enjopnent of his or her
lhdildthestrucMes on it. Abovetlut heigh! in his Honour'sviewthe landolvnerhadno greater Howwer, io equity, the court may iatewene in a case rvhere the landowner's assertion of his or her
uury0oiutheainpacethananyotherrnenrberofthepublic.23 Lltheinstantcase.GriffithsJfound sEict legal rights is unconscionable. Lord Cranworth in the famous case of Ranrsden v Dyson
il[G$r dele was flying one hundred metres above the ground and that there was no evidence to espoused the circumstance whiclr lvould give rise to equitable jurisdiction to intervene.B His
m da. ts mere presence in the plaintiff's airspace caused any interference with any us€ to Lordship said that:
drfleeE daintifput or might put his land. He held that there was no infnngerretrt of the plaintiff's Ifa stangcr bcgins to build on nty land supposing it to bc his owu, and I, perpeiving hrs mistake,
mmusq 1ry1 rhus Eo Uespass was committed. abstain front setting him right, aud leave him to porsevere in his error, a court of equity will not
Tlrrre ofBemsle in of Leigh (Baron) v Slcyviews and General Ltd stands for the proposition aUow mc aftcrwards to asscrt my titlc to tho land on which hc had cxpcnded moncy on thc
fulsd irch de< the airspace above the surface to a height the owner uught conceivably use. The supposition that tho land is his oun. It considcrs that, whcn I saw the mistake... it was my duty
to bc activc and to stato my adverso titlc; and it would bc dishoncst in mc ...ailenvards to profit
tdorl M €q fi ffarcnrs oJ land Law (2d ed, London, Butterworths, 1993), p. 6. by thc mistakc which I might havc proventcd.
ro a$c*r€s' mcars a house or similar structurc and gardcn.
il 'ltrnrymrl' rcf,cn to thE physical soll and struoturos thereon, and 'incorporeal' are lcgal rights ovcr land 2a
Francis v lbioyv (1936) NLR l.
_
z5
*i.r -q'ncab. Sec also delinition of land in s.3 lr.terprelation Act (cap l5). .1.,
Lomolo v Kilenbe Mines Ltd CSNo 395 ol 19?6; (1978) HCB 157; Francts v lbr'roye (1936) NLR 1.
24-:6", . la (1936)NLR l.
o' flulsffii!@334.
aru ,,..,:'
l,
rc,ru&uiics dtl n Benuuin of Leigh @aron) v Slyviews and General LIC [1978] QB 4?9 JDrd, 12. Sc,c also l-omolov Kilenbe Milrcs LrdCSNo 395 of 1976; (1978) HCB 157 (trespasscr carrying
* JWqB479. out Lnproycrtrcnts on thc land).
2r (1860IR t'I& 129:l4o4t,
m .td p.{St.
 Generol Principles of Land Law

Equity's intervention is based on the principle variously known as the doctrine of'proprietary chattelandbecomcafiffi- Ttqrreftdagreofamexationandtheobjectofannexation.
estoppel' or 'estoppel by acquiescence' or'estoppel by encoutagement'.2e Lord Cranrvorth in his The degrec ofanoerafubdaarirdgthelneansbl'whidh the thing is attached tothe
judgement stressed that for the equity to arise the person must expend money or do some act for exarnplg tn' tt2it<, bolt\ mtar s its ora seiStt- As a general proposition, an item thd
mistakenly beliwing that the subject land belongs to him or her. or that he or she is authorised by aftached to the tand by ary m fu rtrn trr its own weight prima facie is deemed to
the landowner. Secondly, that the true owner rnust be aware at the rnaterial time tltat the lard frurc.5 For errrple. atnildng a u-e bwd scr*ed snto the lvall. electricity cables, a
belongs to him or her and that the other person is mistaken.3o Once the equity is established, the tankstandingonaplimhhldbymortrfrcemr.aaeallpnmafaciefixlures. Theslightest
court has a wide discretion to determine the most appropriate remedy to satisry the equity. For to the land is srfficient to raise tbc p=urytion thar an item is a fixture.t7 Where this is the
example, the court may order the landowner to compensate the other person for the the person who asserts that it is nct a &xtre has tbe om.rs of prwing it.3E Conversely. if a thing
irnprovements.r' or grant the improver a right to remain on the land subject to any terms determined resting on the ground by its cmm vei gh\ prima facie it is not a fixture and the onus ofproofis
by the court.r2 the person who says that it is a fixhre.' Examples of such items include chairs in a
The High Cowt, in Babiruga v Karegrcsa and otherlt , applied the principle of Ramsden v without any attacllment, a carpet and a pile of bricks lying on the ground without any mortar
Dyson. ln that case, the respondents constructed a number ofhouses on the appellant's (their The burden ofproofis discharged by employing the second testt the object ofannexation.
father's) land without his consent. The court found that the appellant was aware and acquiesced in object of annexation refers to the intention of the person rvho affixed the thing to the land. If his
the respondents' building on his land. Accordingly, it held that the respondents had an equitable her intention was to lnake a permanent and substantial irnprovement to the land or building then
right to be on the land. Their right was subjed to termination on the appellant paying them item is part of the land. If. on the other hand, his or her objective was for a tetrporary purpose.
compensation for the buildings they had constructed on the land. ( more complete enjoyment of the thing as a chattel, then it remains a chattel.{0
Similarly, in the caseof Musoke Bafirau,ala v Jogga,ra the High Court ordered the landowner to The classical illustration of the two tests is the case of Holland v fy'odg.son.rr In that
pay compensation to the defendant for improvements he had made on the land. The facts of the t Masonwas the cn'nerofcertain land onrvhich hecarried on the business ofatextile
case were as follows. In 1960, the plaintiffwent abroad leaving the defendant as caretaker ofhis Hemortgagedthelandandallfirluresthereontotheplaintif. Strbsequently,Mason.inbanknrptcy,
land with authority to collect rent and send the money over to the plaintiff For some years the assigned all his properly to the defendants in trust for the benefit ofMason's unsecured creditors-
defendant managed the land on the ptaintif's belmlf. Subsequently, he abandoned his caretaker The defendants seized 436 looms in the factory and sold them. The looms were anached to the
role and instead assumed ownership ofthe land. He carried out improvements on the land including of the factory by means of nails driven throtrgh holes in the feet of the looms. or into
construction of other buildings. Ten years later, when the plaintitr returned, he instituted these specially built for the purpose. In some cases, they were attached to the floor by plugs of wood
proceedings for vacant possession. The court granted the order but ordered the plaintiff to driven into holes drilled in the floor. It nas impossible to remove the looms without drarving out the
compensate the defendant for the improvernents on the land. Interestingly, in this case the court nails, but this could easily be done without causing any serious damage to the floor. The
ordered the plaintiffto pay cornpensation even though frorn the facts ofthe case, the plaintifflvas claimed that the looms were fixtures and, therefore, they rvere part oftheir mortgage. The issue was
notawareofthedefendant'sactivitiesuntilheretumedtoUganda. Thecasedoesnotdisclosethe whether the looms had become fixtures and tllerefore part of the plaintiff's mortgage. The court
legal basis upon which the order for compensation was made. If it was made simply on the ground forndthat primc/acie the looms were firtures since they lrere not resting on the landby their own
that the plaintiffbenefited then it does not accord with established legal authorities.sr ueight alone but were attached I nails and bolts. The court also found that the object of annexation
r?s to carry out a permanent improvement to the land. The court rejected the defendant's argument
Test for a fixhrre that the looms rvere attached to the floor merely to rnake thern steadier and more capable for their
A fixture is a thing attached to the land in such a rvay that in law it becomes part of the land. convenient use as chattels but not to make a permanent improvement to the land. The court held
Generally, two broad tests are employed to determine s,hether an item has lost its character as a that though the looms were slightly attached and could easily be removed, the object ofthe owner
in setting them up was to enhance the value ofthe factory premises to rvhich they were attached.

;-;;;;;;;;;ions Lttt Liverpool YictoriaTrustees Co. Ltdl1981l All ER 89?, 9l s,

".
ofivti rl tuia tnat
Accordingly, it rvas held that the looms were fixtures and part of the plaintiff's mortgaged land.
t, 1 The principle espoused in Hollond v Hodgson is more easily stated than applied to concrete
rvhatcver one calls it is rcally immatcrial. factual situations. The most difficult task is to detemine the intention of the person who fixed the
ro (I866) LR t,l4- 129, pp.14O4l. Morc recent English cases havc stated that the principlc ofpropricttry thing. The courts have laid down cedain guidelines for determining the intention of the parties. For
estoppel cntails a broader approach dirccted at ascc(aining rvhether in a particular case it wotrld bc example, wherc a thing is firmly held and its removal would cntail destruction or serious damage to
unconscionable for a party to dcny that which he or shc allowed or cncouraged another to assumc to his
or hcr detrimcnt. Sce Taylor Fashions Lld v Liveipool l4ctoria Trustees Co Ltd U981] I All ER 897.
pp.911-12,915-16.
,' 3t" c.g. lvtusoke Bafrawala vJogga CS No 33 of 1973: (1976) HCB 26 (unreponcd);Crabb v Arun DC
[1976] Ch 179.
t2 babiruga v Karegtesa antl othtsDRCA No MKA 13 ol 1993 (trnrcported), In*'ards v Bakcr 1196512
l( Holland
QB 29. v Hodgson (18?2) LR 7 CP 328.
,! CANoMKA13of1993(unrcportcd).SecalsoRundaCot??EstatcLtdvJagerSingh(7966)EA564' ,7
Ibid.
CS No 33 ol 19'13; (1976) HCB 26 (unreported). ,t Ibid.
'(
,r ,t Ibid.
Writcrs, Goff and Joncs, The Law of Restiution (4e cd: 1993), pp.I6657, statc that English law lias not
yct quitc accepted a general principli that a pcrson who improvcs anolher's land is cntitled to compcnsation
{0
Shah v Shah I'ersht D evshi & Co. 17 I(LR 20; Hollan d v Hod gson, Ibid.
al
cven il it is pioved that it has bcrrefited the landowner. Curiousll,, in thc case of mistakcn improvcmcnt (1872) LR 7 CP 328.
of n clrattel the courts may award compcnsation. sec c g.. Greentvood v Bennclt [1973] I QB 195.
 General Prnaplcs ofLand Lav 55
54 Pnnciples of Lortd Lav ut Ugattda
,ate *3
lf it could easily be condition for the removal of terumt's fixtures, the persou who removes the fixtures must rnake
thing itself or to the buildiug. urosl likely it was intended to be a ftxture'
a
rhe
for }vhich tile subject lnatter is used in good any damage aused itr the cou6e of removal.5s
lon! ,.n oreli, then it is ullikely ro bi a fixturc.$ Thc purpose
there is a suong linkage
he la4.{, relation to the main use of the land is anothcr iruportant guideline. Where
r that is it is ruore likely to be held to be a fixture.{3 The capacity in which the fixer attaclied the tliing EQUNABLE AND LEGALIMERESTS IN I"AND
then
landowner
tobea *utO ,. aro provide a grxdeline as to thc intention olthe person. If the person rvas the
rinwater at the time. inost likely he oI she iuteudcd the thing to be pennaneutly on the land' The converse An interest in land can be legal or equitable. A legal interest is ar interest in land that'rvas
;tfixing I Uf..fy ,o U" tir. cor. if tl,. p"rson rvho attached the thing to the land rvas a tenanl.
especially on . recogrisedandprotectedbythecornnronlawcourts. lncontrastanequitableinterestwasrecogrised
he case.
ashort'tenn lease. lt should-be stressed. however. that none of these guitlelines is conclusive. All and protected by the Court ofEquity even though at law the interest was not recognised.56 This is
thing is facts and circunrstances of the case have to be taken into account. and eaclt case
depends on its what is known as 'duality of ownerslip'.'7 The legal equitablb dichotorny is rooted in English
,of is on history.
own facts.
,uilding
tar. Right to rcmove firtures Origin ofthe dual system
)n. The In lertain circumstances. the person rviro attached a fi]iturc is enutled to renrovc
it. First. the fixer Until thenineteenth century, theEnglish legal systenlwas dividedinto trvo separatejurisdictions:
Ifhis or ruay ofcourse rernove his or hir firlures rvhere both parties cxpressly agrce. Secondly.
cven in the courts of the cornmon law and the Court of Equity or Chancery. The Crut of Equity evolved niainly
absence of a1 agreernelt at colnlnon larv it is iruplied that certain firtures installed by a tenant because of dissatisfaaion with the comnron law. In the beginning, the courts of tl're couunon law
hen the
ose, for belong to thc teiairt who attached theur aud tlut he or she lus a riglrt to relllove thern from thel- wereveryfonnalisticandoperatedonthervritsystem,lvhichuasveryrigid. Thechoiceofawrong
land.ui The fixtures a tenant cal] rernovc froru lhe land are trade fixturcs. ornatnental fixtures audl *writ resulted in loss of a case irrespective of its merits. If no writ provided a forrnula to flt a litigant's
'tcnant's fixtures'.uu t*case, there was no rernedy.s A classical illustration ofthe rigidity of tlre conrmon law courts. rvas
It case. fuitures for household purposes. These fistures are collectivcly knolln :ts
acturer. Trade fixtures are fi\1ures attached to the landby a tenantfor purposes oftrade or in connection tfue claim ofa beneficiary under a trust. The institution ofa trust (or uses) was eurployed to transfer
'.ruptcy, rvitjr the busigess he or s[e conducts on the land. Esaurples of trade fistures include tlrachines, properly to a trusted person (hence, 'trustee') who lvas to hold the property not for his or her own
5e For
editors. petrol pumps, shelves in a shop and shop countcrs. Olna[lental fixtures are those fixturcs ]vldch a benefit but for the purposes ofcarrying out instructioru giveu to him or her by the traruferor.
he floor i.n*t uUacj1et to the land for decoratlon. These include tapestries.l? statues ard Pictures. Fixtures example, where A, owner of Blackacre in fee simple, wished to benefit his minor children (X and Y)
beams used for dolrestic purposes include cookers, water puups.4t curtains and blinds.ae
It is important after his death, he would convey his estate to B for the use of X ald Y. Tlie effect was that B becarne
,f wood and rvindows installcd by a tenant are not 'terlant's fxtures'. Hence in tlte the orvner of Blackacre but held in trust for the benefit of the children. By the fourteenth century
to note that doors
outthe absence of e,\press agreement the teuant who attached theln carulot rellrove thetu
rvhcn the lease fraud uas rampant amongst trustees, who, in breach of trust tailed to honour tlreir promises to hold
rlaintiff anpires.so ALo. fixtures attached by thc tenant for use in connectiou rvith agriculture are not the land for the benefit olthe beneficiarios. The cornmon Iaw courts provided no redress to the
iue was treated as trade fixtures. Therefore. a tenant rvho attached such fixtures is not entitied to renrove beneficiaries because the common law only recognised the trustee's legal title. hey had no
e court them.sr Exaurples of agricultural fixtnres include a fence or shed erected by a fanner to enclose appropriateform ofactionto protect a beneficiary divorcedfrorn the legai title.
]irown anirn6!5. Ironically, fritures erected in connoction'rvitlt rnarket gardenitrg'2 are not treated as Litigans who could not find the current lvrits began to address their grievances to the krng 'the
3xation agricultural fixtures. but as uade fixtures. consequentl)'. thc tenant'rvlio atlached thcm may remove fountain ofjustice' to gant thenr a remedy. The king cane to refer such peutions to the Lord
lument lhern.i Chancellor, who might order the trustees to carry out their trust. Later petrtions llere directJ-'-
)r their As a general rule, unless othenvise agreed a tenant must relnove lire fixtures fronr the land referrei to the King's Council presided overby the Cluncellor, Keeper of the King's conscience.
,rt held before ilrJ lease expires and whilst he or she is in possession. Fixtures that are not removed in ti[le Gradually, the Chancellor developedacourt systemparallelto that ofthe courts ofthe conunon larv.
owner b).the tenant are deenred forfeited to thc landlord and bccon're his or her property absolutely.sr As This court came to be known as the Chancery or Court ofEquity.
ached- The Chancellor mainly applied the principles of reason and conscience as appeared appropriate
and. to him@ and not black-letter rules of law.5r But by the nineteenth century the rules of equity had
)ncrete
n' Berkley t, Pouteu (197 6) 24 I EG 9l l. Cornparc wr.lt I lollat d v Hodgson settled into a consisteot and systematic body of lalv. These rules run srde by srde with the common
(ed the 'r For cxarnplc ,in Hollatd v Hodgsott llie loorns wcre part ol the lhctory'
:s. For ' Reynolds'.t,)s&6y&Son.rIt904lAc466.il,,tn,"vBrighuntl943]KB l52.BerkleyvPoulett(1976)241 tt
EG 91i Mancelter Developmens Ltd v Gatntanson Ltd U9S6l QB 1212. The obligation not to conlnrit wastc
lage to applics not only to tho tclunt but also to whomsocvcr hc or shc assigned 1he right to removc a tixture
" Mcgarry and Wade. Tlrc Law of Real Properq', supra. p. 736
I (1219 pcr Dillon CJ,).
" Nav Zealand Govmnent Properq' Corp v Hl'l & S I'td [1982] QB 1145' t' Mcgarry and Wado,The La* of Real Property, supra, p. 1i0.
" Re: De Falbe: Ilhrd v Taytor ll90ll I Ch 523.
J? E.H. Bum, Clr eshire
"t GrynrcsvBowercn 130 ER1349. and Burn's Modent Law oJRaal Property (l4b ed, Lor:don Bufierworlhs, 1988), p.
G Colegrave v Dias Santos 107 ER 3l I 4J-
"t rr
e Ncw Zealantl Govenzneil ProPerry Corp t HtvI & S Lrd [1982] t QB i 145.p' I I 57' Mcgarry and Wade, The Law of Real Prolierty, supra. p, 110.
!'
't Efives vrl./aw (1802) 3 East 3E; 102 EIt 510. Thc couuron larv rulc is rllogicsl and unfair. In somc For cxamplc, a trustcc could bc ilstructed to usc thc procccds ol thc tand for tho wellare ol the grantor's
by statutory provision rvhich young childrcn 8frcr thc grarrlor's dcath. Such Bn anaugcnrcnt had a t-urther advantago ofavoidancc of
lurisdictious, for cxanrplc. Engiand and Australia, it has bccn rcplaccd
cntltlo tenants to rclnove agriculturc lixturcs. fcudal duos on inhcritancc. Scc gcncrally E.HB um, Cheslire & Burn b N[odenr Lav of Real Properq,,
n Thcsc arc small holding tarnrs whcrc vcgetables and l'rttits are gros'tt tbr sa'c. *i,,
supra, pp. 3842.
tr Scc Mcgarry and Wadc. The Law o/Rcal ProperS'. supra. p. 736 :.-:-ti -., '0 ThuS, $c adagc that cquity vadcs as thc Chancellor's lbot, scc Mcgarry and Wadc, The Lav o/ Real
u poole's Caie tl?03) I Salk 368:91 ER 320. For exception to the rule sce gencrally thc Privy Couttctt Prop*ty, supr4 pp. 11i-12.
judgcrncnt in New zcaland Got ertunuil ProperN Corp t Ht{ & S Lrd []9821 l QB 1 145. " Megarry aad Wadc, The Law oJReal Property, supra. p. 112.
r 56 Principles ofLand Law in Uganda Generdl rrtnctpte,\ o,l Lu\a LUP

Ia'rv. Thus. in our example above where A conveyed Blackacre in fee simple to B to the use ofX and undera sp€cifcaltY elfrrct*Ieceratra leasewas in the sameposition as if a lease had
Y.atlawAwasrecognisedasthelegalorrnerofBlackacre. EquitydidnotdenythatBwasthelegal executed- Acc0dinglY,
owner ofBlackacre, but prevailed upon B to carry out the trust in accordance with A s instructions. vears and mbjeato aI1
Hence, there was a dualityof ownership with B owning a legal fee simple estate inBlackacre, and X €ffi'tlcd to erraie his common law rernedy of disress as if a
Hence, the defendant was
and Y an equitable estate in fee simple.5z grarted
for seven years had been
zA holder of an equitable intqEst is oot il eucrly the same position as a holder of a
Fusion ofthe courts oflarv and equity t'thilst an equitable
interest at law The reason is tiat a legal iutere$ is a ight i n renr
PriortotheJadlcaturcActoflST3 (JK),alitigantseekingalegalremedy,forexampledamages,had
ightin personam. A right in renr is a rigltt vhich is good against the whole rvorld. The right
to go to the common law courts. One seeking an equitable remedy, such as an order for specific right rvhether or not he or
the land itselfard whoever acquires that land isbound by that
performance, had to go to the Chancery. The Judicahre Act of 1813 rendered forum hunting right in pernnam is a right against a person or persons
of it.73 On the other hand, a
unnecessary. The Act fused the administration of larv and equity t' by giving the Supreme Court
aware
the eyes ofequitY ought to be bound. For examPle. aigltt
in personarr binds a trttstee. a
thejurisdiction to administerbothprinciples oflaw and equilv as is appropriate in thecirqrmstances
(or someone rvho acquires propertY bY trzv of gi-ft) and a purchaser rvith notice. But it does
of each case. Where the two principles were in conllict, equity prevailed.5a without notice ofan earlier equitable
bind a b on a fi de Purchaser forvalue ofthe legal estate
In Uganda, the High Court has ftilljurisdiction to apply larv and equity as appropriate. Section For example. suPPose A com'e-v-s Blackacre to X to hold in trust for Y.
overthe subjectlandr|
16(4)oftheJudicatureStotute,/996,providesthat.'...ineverycauseormatterbeforetheHigh X will have a legal estate in Blackacre and Y an equitable interest. In
addition
we have seen,
Court. the nrles of equity and the nles of the common law shall be administered concurently'. The person rvho acquires the land
the trustee, Y's equitable interest is enforceable against anv
subsection goeb on to say that if there is any variance between these rules with reference to the gift inheritance or purclmse rvith knorvledge ofY 's equitable interest.ls But
byway ofa or
same subject rnattet the rules ofequity shall prevail. purchaser for value rvitltout
X conveys the legal estate in Blackacre to Z. \f Zis a hona fi de
he or u,ill not be bound bv Y's beneficial clairn over the land.76
Nature of equitable interest of Y's equitable interest, she
more pronounced under
Most interests in land exist both at larv and in equity. Thus, a fee simple,6s lease6 and rnortgage6? distinction between legal and equitable interests in this regard is
205). of the Act provides that a registered
could be an equitable or a Iegal interest. One exception to this general proposition is a restrictive Registration ofTitles Act (caP Section 6 1
the land free from any unregistered interest eNcept as provided in tlre Act.7?
covenant, r.vhich only exists in equiry,.6E holds
tlte
In the eyes of equitli an equitable interest in lnany respects is as good as a legal interest. An Another major distinction betrveen legal and equitable interests is that
on the willingness ofthe court to grant sPecific perfonnance
equitable interests depends
equitable interest is as much a proprietary interest as a legal interest. It can be disposed of inter rvould arise rvhere for anY
contract according to its terms.?r Thus, no equitable inlerest
vivos or by will or intestate succession, just like a legal interest.6e Remedies that accrue to a holder ?e for example.
court would not grantthe remedy ofspecific perfonnance. A court tnay.
ofalegalinterestareavailabletoaholderofasimilarinterestinequity. Indeed,thecourtstreata plainti{I"s clairn could be adequatelY
holder ofan equitable interest as ifhis or her interest were a legal interest. This is because equity arvard specific perfonnance rvhere in its vierv the
Eo Likewise. the court ma1' refuse to grant specific performance
regardsasdonethatrvhichoughttobedone.To Theclassicalillustrationofthisprincipleisthecase the payment of damages.
'clean hands'. For exarnPle. in
person seeking the order does not come to court rvith
of ll/alsh v Lonsdale.Tt In that case. the defendant entered into a contract to lease certain premises performance in favour ofa tenant
to the plaintifffor a period of seven years. Although the lease was in writing it was not executed by
lvreSr the court refused to grant an order ofspecific
was inbreach of sweral tenns ofhis agreetnent lvith the landouner
deed as required by law. Nevertheless, the plaintif rvent into possession. Undcr the tcrms of the
lease agreement rent was supposed to be paid in advance. Wren the plaintiffdefaulted in payment
Creation of equitable interests
of rent in advance the defendant distrained his goods as he rvas entitled to do at common law.u of the parties. But tnore
An equitable interest may be formallY created by rvritten agrecment
The plaintiff sued the defendant for trespass to goods. He argued that the defeod-aryt bad no right interest is created bY oPeration of law rvhere the Parties enter into a
an equitable
to le\ry a distress for rent because distrcss is a legal remedy, which is only availatfe where there was a legal interest in land. This is because of the
enforceable contract to convey or create
a legal lease. In this case. there was no legal lease, as the purported lease was not created by deed. looks on that as done rvhich ought to be done' In other rYords, equity
masim:'equitY
,The court dismissed the plaintiff's argument holding that in the cyes ofequity a tenant in possession of this nrle is tlte
legal interest as ifit were already conveyed. The classical exposition
s2 In that case. E cntered into a rvritten contract to sell certain land
Lysaght v Ethpards.
62 Effcctively B was a managcr whilst X and Y cnjoyed the benefits.
6r Notethatthisdocsnotneanthatthcprinciplcsofcomrnoltlawandcquitywcrcfuscd.itjustfuscdtheir
administration. Megarry and Wade, Tlrc Lav of Reol Propcrt.v, supra' p' I l3'
6t "
1'
Judicaturc Ac1 s.25(1 l). Pililrcr v Rawlins (1812) 7 Ch App 259'
65 Sec e.g.,,Sarunjogi v Katabira CS No 547 of 1987 (unreported); [1988-90] HCB 148. 15 lbid.
55 Secc.g., lValshvLonsdale (1882)21 Ch 9. 1' Ibid. Scc furthcr discussiorr bclow'prioritics''
67 See c.g., Earcloys Bank D.C.O. v Guh Millers Limtred (1959) EA 540. I ,, fn pirri., a rcgistcrcd intercst is eq,nted to a legal intcrest and ari unregistcred intcrest to
6s Ttlk:,lt4oxhay (1848)2 Ph774;41 ER 1143 intircst For furthcr discrrssion scc ChaPtcr 5'
6e Sec Megarry and Wade, The Law of Real Properq,. sttpra. p. 1 14. (1988-90) HCB 148'
"?t Sentnjog l Katnbira CS $o.547 o11987 (unrcported):
7o Seeeg ll'alshvLonsdale (1882)21 Ch9. Srvor)r ,,,4y'es (1888) 21 QB D 289'
?' (1882)21 Ch9. tn Ltdakome r Senlongo (1988-90) HCB 95'
'2 Distress is a selfJrclp rcmedy involving the right of a landlord to scizc and detsin a tennnt's chattels to r' (r888)21 QBD289.
forcc tlrc lattcr to pay outstanding rcnt. '2 (1876) 2 ch D 499.
 nd Law 5'l

58 Principles of Land Law m Uganda Gencral Pruraples of Land Latv 59

se had
ee for
pJaintiff. On sigmng the conract, the plaintiffrnade a down payment ard promised to pay the hterestpresails.e Equitiesareequalwlrcretheclaimantofalegalinterestisabonafidepuctaser
lablcat
balance upon execution of a de€d of conveyauce . Unfortunately, E died before he sigrcd the de€d. of a legal estate for value without notice of the earlier equitable interest.m The ter4r 'purchaser'
a legai
The plaintiff sued the executor of E's estate for an order of specific performance, and the court
technically denotes a person to whom land is expressly transferred by action ofthe parties rather
obliged. It ordered the executors to convey the legal ti0e to the plaintiff as promised by E upon thao by operation of law.er Tlius, a buyer, donee (by will or inter vtvos), rnortgagee or lessee is a
interest is
pyment of thepurchase price. Sir George Jessel \4R" in delivering hisjudgement, said: a purchaser.e2 But a person rvho acquires land by intestate succession is not a purchaser because he
he right is The...nromont you havc a valid contract for sale thp vondor beoomes in cqrity e trustco for thc or she acquires title by operation of law. The expression 'value' means that the pychaser must
e or she purchasor of tho estato sold, and thc bcneficral owncrship passcs to tho pLrrchasor, tho vendor have given sufrcient consideration in mouey or money's worth such as sorne other larid or provision
rsons rvho having a right to thc purchaso-monoy. a chargc or licn on thc cstate for the sccr:rity ofthc purchrsc- of service.e3 Promise of marriage is also coruidered as valuable consideration.e' Bonaf de implies
monoy, and a right to retain possesslon oi thc cstBtc until tho purchasc-nronoy is paid, in tho that the purchaser must be acting in good faith or honestly.
rt it does abscncc ofcxpress contract as to tho timo oldelivoring posscssion. The purchaser must not have had notice of a rival equitable clairn to the land at the trme of
ritable purchase, Notice need not be actual notice; it may be constructive or iuputed notice. Constructive
The principle of Lysaght v Edwards was followed in the case of Serunjogi v Katabira.u Inthlult
ust for Y. notice is knowledge of facts rvhich, if tlrc purchaser had acted prudently, he or she rvould have
case, by a memorandurnofagreementwhich was duly signedby bothparties, the defendant soldto
ddition to known. For example, in Uganda Post and Teleconmunicahons v AKM Lutaaya,es therespondent
the plaintiffa piece of land and a house situated thereon. The plaiutiffpaid the firll purchase price,
land leasedalargepieceoflandfromthemailoowne(secondrespondent. Unknolvntohimpartofthe
bur the defendant failed or neglected to transfer.title and deliver up possession to the plaintiff. The ,-
land was occupied by the first appellant with the conseot of the mailo orvner. The respondent
,itllout plaintiff sued for specihc performance of the agreelnent. Byamugisha J, afler citing the above[
mErtiouedprinap\ehLysaghtv Edvards, heldthat.'l am satisfiedonthe factsandcircumstances *l- successfully sued the first appellant in the Higlt Court for trespass. On appeal, the decision was
: land.76 reversed. In delivering thejudgement ofthe court, Karokora JSC, with the concurrence ofthe other
before me that this is a case, in which the court rvill exercise is.discretionary powers and grant tho
ed under members of the Court. saidthat:
rcmedyofspecificperfonnance'. HerHonourorderedthedefendanttodeliverupyacantpossession
plaintiffwithin thirty days fron tlre date of the judgement.
of the suit property to the [T]hc law is vcry clcar that ife person purchascs an cstats which he knows to be in tlre occupation
The principle of Lysaght v Edwarrls is equally applicable to contracts to create other interes8 ofanothcr othcr than thc vcndor, hc is bound by all 1hc cquities which thc parties in such occupation
forcemenl
is land such as a lease,$ mortgage,r5 and easement.r? nray havc in thc land,...
nrance of
ny reason Priorities Karokor4 JSC, cited several English cases to support the proposition that occupation of land by a
h may so happen that two or rnore people assert rival claims over the same land. For example, third parly constitutes constructive notice to the purchaser of any equitable rights that the occupier
suppose that Nabakooza sells her land to Nansubuga. Latel Nabakooza purports to sell the same might have in the land.s Ifa purchaser employs an agent, such as a lalyye! to act oq his or her
rmance
hnd to Nalumaga. Both Narsubuga and Nalunuga claim title over the land. The question is: which behalf, any actual or constructive notice that the agent receives is imputed to the puchrser.e
.e. 1n
of,these interests should take precedence over the other? The aruwer to this question will depend
oo how their interests are ranked against each other in accordance with c€rtain prescribed nrles. Legal interest created prior to equitable interest
The rules for ranking competing interests over the sarne land envisage four possible situations: As a general rule, where a legal interest is created first it will not be affected by subsequeu
equitrble claims. As we have seen in our example, where Nabakooza sells and conye)'s the legal
O claim to legal right followed by claim to legal riglrt;
title to Nansubuga and later she purports to sell the same house to }Ialumag4 Nalsubuga's legal
ut tnore O claim to equitable right followed by claim to legal rigtrt;
ti0e will not be affected by the subsequent sale. However, in certarn 6ilsumsren6e5 a pnor legal
@) claim to legal right folowed by claim to squitable right; and
claim may be displaced by a subsequent equitable clairn under the principle ofequitable estoppel.
r of the fw) claim to equitableright.
Under this principle, a holder of a prior Iegal interest may be estopped from denyug that the verdor
Conpeting legal interests had title to convey to a subsequent purchaser. For example, the priociple would be invoked rvhere
r is the
As a general rule an earlier created legal interest prevails over any subsequently ueated legal Nansubuga conspired with Nabakooza in order to defraud Nalurnaga or where she was guilty of
rin land i-tereslu Thus, in our example above if Nabakooza conveyed the legal title to Nansubuga her goss negligence that enabled Nabakooza to enter into the transaction with Naluuraga to the latter's
intelpsl 1il9u16 pler/ail overNalumaga's claim. detriment. A good illustration is the case of Walker v Linont et In that case, a puchaser of a legal
estate left the title deeds with the vendor after he had paid the purchase price. The vendor
Equitable interest/ollowed by legal interest
As a general rule, a legal claim prevails over an earlier created equitable interest unless there are
eguitable grounds for its postponement. The rule is where equities are equal one with a legal $ Bum,Counties of Engtand Fie In*rance Cov l[/hipp (18U)26 Ch D 482.
Pilcher v Rawlins (1872) 7 Ch 250.
'est to
In Re: Ivan ]ulutala Misc C No EI of 1976 (unreported); [9S0] HCB 27.
Cauncev Caunce [1969] I NLER722.
E Ibid, p. 506,
In Re: Ivon Mital<a Misc C No 8l of 19?6 (unrcpo(ed); U9801 HCB 27.
q CS No.547 of 1987 (unreported); (1988-90) HCB 148.
A4vJacobs sm,rl1 [1895] 2 QB 341.
s Scc o.g., Walshv Lonsdale (1882) 21 Ch D 9. .':t
CANo 36 of 1996 (unreportcd).
u Barclays Bnk D.C.O. v Gulu Millers [1959] EA 540.
i.' Sccfor cxamplc, Jozes v Szrrrl (1841) I Haro 43; 55 ER 943; Taylor v Stibbert (1803) All E Rep R 432;
t1 Hodgson vMar,ts [971] Ch 892.
Mcl"lanusvCoolce (1887) 35 Ch D 681. t'
u Norhern Countes olEngland Firc Inswance Co v ll/hipp (l8M) 26 Ch D 482.
Pilcher v Rswl.i7r (1871) 7 Ch25O.
'r ltsolyz ch toa.
60 Principles o/LandLav in Ugandd General Prhrciples ofLond l,av

which enabled the vendor to defraud the defendant. In the circumstances, it rvas held that the Hcnrwer. whereneithercorpetirgfutere$is rcgistered thenpriority is determined by
purchaser's legal estate must be postponed to the defendant's equitable mortgage though it was to the general law prirciples wbi$ aptr to competing equitable"interests. The case of
created later.e y Kizito and Kubul*armrrmato ilhrstrates this point. In that case. Kizito rvas the
proprietor ofthe subject land- By a written contract Kizito agreed to sell the subject
Compe ti ng e qui tab Ie c I aims
Kubulwamwana- Fourdayslater$'anotherrrritteoagreementhepurportedlysoldthesarne
In a situation rvhere all rival claims are equitable interests, the nrle, variously stated. is that rvhere
to Ndigejjeraw:r The latter lodged rrith the Registrar ofTitles certain documents for thc
equitiesareequalinallrespectspriorityoftimegivesabetterequity.Is Inotherrvords,itisfirstin transfer ofhis title. But the transfer nzs not registered because the docurnents l,ere not in
time first in right. Equities are unequal lvhere a holder of a subsequent equitable interc$ lvas guilty
Consequently. at the time oftrial neither Ndigejlerarva nor Kubulwarnrvana had a registered
offraud or negligent conduct that enabled the vendor to deceive the Iatter that there were no other Under the.Registration ofTitles Act, an unregistered inlerest constilutes an equitable
equitable claims to the land. A good illustration of the rule is the case of Rice v Rice.r0r The The issue rvas rvho betwecn Ndigejjera\ya and Kubulrvamrvana had a bctter equitable clairn
plaintiff sold land to P and he signed a document indicating that P had paid him the full purchase land. Ndigejjeras,a argned that since hc lodged his docurnents for registration his clairn
price. As it turned out there uas still outstanding monc'i'. Later, P created an equitable mortgage in
have priority over Kubuhvamrvana's clairn. It rvas held that Kubuhvarnrvana's equitable
favour ofTP. When P defaulted in paving the mortgage debt. the land rvas sold but the proceeds had prioritybecause it was created earlier than Ndigejierarva's interesl. The court said that a
were not enough to pay the modgage debt and the balance ofthe purchase price to the plaintiff.
lodgmant for regislration ofan instrumcnt oflransfer. rvhich rvas not in a registrablc forrn.
The plaintiff claimed that he had priority over the proceeds since his equitable lienro2 was earlier 7 giveNdigejjeral,aabetterclaimtothelandthanKubuhvamrvana. Itmighthavebeen
than tlre equitable mortgage. The court held that the first in tirne rule applies only where eqrdties are/
Ndigejjerawa's document $,cre in a registrablefonn.
equal. In determining the merits ofeach case, the court will look at all circurnstances and the
conduct ofthe partres. In this case, bv signing the receipt acknowledging full payment the plaintiff
armed the purchaser rvith false colours. which enabled him to present himself as orvner of an
Aovrnse PosSEssIoN AND LIN{u'A].IoN

unencumbered fee simple. Therefore. the plaintiff's first in time equity hadto be displaced.
It should be noted thit in determining priorities betrveen competing equitable interests the The concept of posscssion
doctrine of notice does not apply. Hence. the fact that the snbsequent claimant had no notice ofan Atcommonla$,,possessionoflandisthcrootoftitle.r" Apersonrvhoisinpossessionhasa
earlier equitable interest is ofno consequence.'0r whichisgoodagainstthelvholeworldericeptapersonrvithabetterclaitn.rrr Ifanyperson
not the o$mer or his or her duly authorised agent. intcrferes witlt the land the possessor may
Priorities over regrstered land an action in lrespass against him or her. The fact lltat thc person in possession is a
Tire general larv nrles for detennining priorities do not apply to land registered under the Registration
inelevant. for as far as the common lal, is concerned a rvrongflrl possession is effectivc
o.fTitlesAct(cap205).r0'Asiserplainedmorefullybelorv.ros nndertheActprioritvofcompeting everyone else cxcept one l\'ith a better title.rtr So long as it is enjoyed. possession gives
interests is detenlined in accordance rvith the datc of registration and not the date of the rights, including the right to defend possession against third parties, to sell or devise tlte
transaction.16 Intheabsenceoffraudonthepartofthefirstpersontoberegistered,heorshe
takes a better title than that ofa person l'ho purchased the sarne land earlierbut did not register his Porver to evict squ rttcrs
or lrer interest.rn The Act also modifies the doctrine of notice. Section 145 olRegistration ofTtles The risk for a person in wrongful possession is that the true owner lnight at an)'tilne evict
.4ct expressly states that in the absence offraud a purchaser shall not be 'affected by notice actual her without prior notice or colnpensation for the improvetnents on the land.rrr Horvever. the
or constructive of any tmst or unregistered interest, any rule of latv or equity to the contrary ofa landownerto evicta squatteris lintitedby tlrc Land Act.1998 and the Linntation,4ct (cap
notwithstanding'. Inotherrvords.unlikethegenerallarv.undertheActthefactthatrproprietor We have already secn that under the land Act a landorvner rs prohibited from evicting a
prior to purchase had actual or constructil,e notice ofan unregistered (or equitabplclaim over the rvho qualifies as a bonartde occupant e\cept in the very lirnited circumstances described
land does not by itselfconstinrle fraud.ros

'ot (1952-6)?trLR3t.
tto Katarikave v Katwiremu and anothar CS No 8 of 1972; (1977) HCB 187. For ntorc
Chaptcr 5.
oe Mere carelcssness is not a sufficicnt ground for displaccrrent of an carlier equitablc legal intercst, ttt
scc Ashcr y lrh;t/oc,k (1865) LR I QB I.
Northent Counties of England P-ire lrtntrance Co v ll'lipp (1884) 26 Ch D 482 ttz Asher y fihitlock (1865) LR I
QB t A fass€ssor is decmed to havc a tic sinrplc cstate unlcss a
r00 Rrce yRrce (1854).2 Drcrv73;61 ER 646. estate is proved, sec Pollock and Wright.ltr Esr4v a Pm'ar in the Comntot lau srrpra. pp.
tot Ihtl. rrr PollockardWright,AnEsayonPosri:::in&cConmoqtlap,suPra,pp 94-95.Atcontlrron
to: An unpaid scllcr has a licn or.er the Iand sold for thc balauce of thc purchase pricc, which constilutes Bn is relativc. In ordcr to dcfeat a possc.:sor's title 6rc gervr challenging it lnust rcly on the
equitablc intercst. his or hc'osm titlc and not 6rc $elkncss of Ac posscssor's tilJc, scc Penl, v Clissold [1907] AC
r0r RicevRice (1853) 2 Drerv 73'. 61 ER 646. tt' Ashery l/Trirloc,t(1865)lRl QBL.es!66grCmf (1881)SQBD 162. lnLontolotKrlenrbe
t0{ All land that is owued under mailo. lieehold and leaschold tenure is subject to the Act. The only land to Zrd CS No 395 of 19?6; (l97O IICB tsi- Ssthlcd I- hdd that sincc a squattcr had no titlc to land
rvhich the Act does not apply is custolnaN tcnurc. hc could not transfsr rr.y- E b rrqEdilI rntaittd trat ltrs Honour cned unless hc mcant
r05 See Chapter 5. squatter could not crocfcr r bctrf, ft &rn o Fcs:my ridc.
t
I06 Section 44. RTA For illustration see c.g.. Kazzora Rtthtba CA No 13 of 1992 (rnreported). ||s
Ia m o I o -, K i I emrr l-rblzrz^tlcs 16 39, cf, :9Dt O 9-,8) LTC}. 1 57 ; A ry C o u rc i I of K a m p a I o v
tn1 Scc Kazzoro v Rilatba CA No 13 of 1992 lunrcportcd). No 232,;f 196*, Aoii-4c r Iryga ad d6 D R CA No MKA 1 3 of I 993 (unreported).
I0s For delailed discussiott of this provision sec chapter 5. tt''l1te Ltm'totiottlat H c tlr BB Effi ljrfttirr lcr
 Lqn 62 Princryles oJLandLaw Y ltgando
General Prutcrples ofLond Latv 63

deal with it.trt Whether a particular act or acts constitute suffrcient control varies depending on
AcLu? The Act applies to any action to recover land registered uridertlte Registration ofTitlesAct
(cap 205)ns as well as land owned under custornary tenure.rre However. the Act does not preclude fie nature of the land, its size and the rlamer in rvhich land of tlut nature is nonually enjoyed.rr2
Factual possession must be accompanied lvith an intention to possess (aninrus possrdend).
rhe Uganda Land Cornmission from recovering possession of laodvested in it by fie Corutitution
or any other law.r2o
This means that tlrc person claiming title by adverse possession must have an ihtentlon to possess
iect land
the land to the exclusion of everyone else including the landowner.I$ The intention to exclude
I Salne
limitationperiod must be plain for all to see. Where there are other people using the land it must be apparent that
rot in T\e Limitationlct linrits the period within lvhich an action canbe brought to recover la[d. Beyond they are doiug so with lis or her penuission.r3a Just like factual possession, the degree ofthe
rhat 1ims. an action is statute barred. Section 6 ofthe Act provides that no person shall rnake an requisite intention varies depending on the circunstances ofeach case. However. rt rs not requred
istered
eotry or bring an action to recover land after the expiration oftwelve years from the date 0re cause to prove that the squatter consciously inteuded to e.rclude the true owner. Rather. r'hat is required

ciairn ofactionaccruedtohimorherortoapersontluoughwltonrlreorslreclaitns.t2rTherightofaction isproofofintentiontoexerciseexclusivecontrol.r3s Forexaurple,apersonlltoenclosesland,

lairn k deemed to accrue to a landolvner lvhen a stranger enters into adverse possession of his or lter rvhich is adjacent to his or her plot under a nristaken beliefthat it is part ofhis or her land. satislies
l^nd.r22 This may happen by the stranger dispossessing the figlrtful olvuer or by enteri[g into this requirement even though he or she lmd no conscious intentiou to exclude the true oluer.tr6
able
possession following abandorunent of possession or death of the riglttfrrl olvner.rzs Either way
I that a
pmsession rnust be acquired without perruissiou or licence of tlte owner.
r2r Thus, where a person Running of time
occupies land as a servant or caretaker of the landorvner. the limitation time does not run in tlut - The limitation timo begins 10 run against the owner froln the time the right of entry or the right to
person's favour irespective of the period he or sire remains in possession. r2' Stnilarly, tirne does ( bring an action to recover the land first. accrues to hiru or her or to the person through rvliorn lie or
mt run in favour of a tenant for the duration of the lease.rb However. possession gained by 4slre claims.r3T Tbe Limitationlclprescribes specific rules for determining when the right of action
permission becolnes 'adverse possession' ifa person reurains in possession after the pennission is
" is deeured to accrue invarious circurnstanges.u Generally, tirne starts to rur against tlre true ouler
rithdmwn or expirss.r2T For exarnple, a tenant becoures an adverse possessor ifafter tlte lease frorn the day a squatter enters into advcrse possession.rre The Act does not specifically state
apires he or she relnains in possession lvithout the landiord's consent. r13 Also. if a person collects lvhetlter the landowner must have knowledge of tlie adverse possession before time starls to run
lanl under a lease wrongflilly clairning orvnership ofthe land he or she is deerned to be in adverse against him or her. According to Euglish authorities, as long as the squatter's possession is opelr
on has a posession ofthe subject land frorn the date rent is paid to him or lter.r:e for all to see and not clandestine, tirle begins to run against the owner frour the date ofentry even
)erson if tlre owneris urnware ofit. For exaruple. in Rainsv Buxton,r{ for rnany years an intruder occupied
?rw ing adverse posse ssion a cellar in the plaintif's ltouse without knolrledgc of the plaintiff. It tvas held that. in the absence
tor ma)
In the absence of contrary evidence, the orvner of land rvith a paper title is deemed to be in of fraud, tlrc limitation period courmenced to run froul the date the intruder entered into adrerse

rctive
grsession of the land. Hence, where a person without documentary title claims ownership of land possession and not when the owner found out.
r grYes o the basis ofadverse possession, he or she rnust prove to have both factual possession and the However, judicial authorities in Uganda suggest that tiure does not start to run against a
iaendontopossess.t)0 Factualpossessionentailscxerciseofsufhcientphysicalcontroloverthe landorvner until he or she become aware of the intrusion. For exaniple. ni,lusoke Bafray;ela t,
ctdre land. This can be established by prooi for exaurple. of use of tlte land for acconrmodation. Joga,tat the plaintiff in 1960 went abroad and lived there for urarry years. He left the defendant ia
uahhation or grazing anirnals. or generally dealing rvith the land as an orvner lnight be expected to charge of ltis house with instructions to collect rent and send the proceeds to lfm. For sorne tirne,
Le evict tlte defendant collected tlte rent on tlie plaintiff's account. SubsequentlJ,. he stopped sendrag
ver. l}}e tnoney tlut he collected to tlle plaintiffand. rvithout tire plaintiff's knowledge. carried out structural
lct (cap s- Scc Chaptcr 2. ilnprovements to tlte land. The plaintifffound out only rvhen he returned frorn overseas. ln an
cting a N Sce s.30,Zrnitatio,t Act. action for eviction 0re defendant pleaded tlrat the actiou was time barred because he had been ir.r
:scribed M CiumongvOlr'rzgaCANol04ol1982:(1985)HCB86(unreportcd);MturavAbasagiNansubuga adversc possession for the requisite linritation period. The issue was whether the titne started to
CA No l4B of 1992; (1992-93) HCB 241: Nanbafu Kintu v Efulainnt Karuira CA No 26 of 1973 run agaiut the plaintifffrorn tlie date tliat the defendant asserted orvnership of the house or from
{urcported); [1975] HCB 221. when the plaintiffbecatne aware of it on liis return to Uganda. Manyindo J held that time began to
E Scction 32 (l ), (a), Limitation Act. run at the later date.
s E on thc date thc right of action Bccrued thc plrrintitT lvas under disabiliry thc poriod of lirnitation is
ascndcd to a maxinrunr of six ycars frorn tlic datc thc pBrson ccased to be undcr disability or dicd, trt Ibid.
rtichovcr is the carlior, notwithstandrtig that tho twelvc 1'car pcriod had exprred.
@ Sccoon 12(1), Linitation Act. "'Ibid.
M ttt Buchngham City Coutrcil v Morarr [1969] 2 All ER 225.
suprs- friins v B*rton(l880) 14 Ch D 537:539. t,3.'.
sommoa M ER /ves.Iryasnrcnt Ltd v High [967] 2 QB 379. At p. 396, Denning MR. s.rid that a licenco lronr thc Wal I is b C ay an B ay H o I i day C ant p L td v S hell -Mex & Bp Ltd
llg7 S) eB g 4.
cncr ncgateslthc otherwrse advcrsc qtnlrty of possessiott cn;oyed by a clairnanL "' BlryhvMarrin [1968] I WLR 804.
tt.t lVilliant
[1907] * Cdb & atorhbr v Lane ll952l I Atl E R t 199. v [)sherwood ll913] 45 p & CR 235.
M EayvardvChalonerllg6Sl I QB 107. Specialrulesapplyiucascofatenanc.yatwill andayeartoyear '" Section 6,Zrm il{ttion Acr.
l)t
titlc to Sections ?-11.
aancy, sec Lrrnttaliov Act, s. ll. lle Sectiou
6 C&4esrer Borough Council v Smft& [1991] Ch 4a8 ?. It shoutd be noted that tintc does not sta( to run merely becausc the owner has abandoncd
a xl.LardvChalonerllg6S) 1 QB 107. ,.:.. Posscssion' It only starts to fun wltcn a squattcr actually ontcrs, soc s. 12 (l). See also The Tntstee,
npala trr Sccdoo 1.2(3) (b\Lmira tion Act. t "
,,^
Exeauars, And Agenq Contpany Ltd and Tenrylennn t, Short [1888] 13 AC 793.
w " " "" (1880) 14 chD 537.
Fo*ellv McFarlane (1977) 38 P& CR 452, pp.410-12.
"r cS No 32 ol t9'13..(1976) HcB26 (unreportcd).
64 Principles of Land Lav in U ganda General Prtuciples ofLand Law 6

Ssekandi Ag, .J expressed a sirnilar view in tlte case of Nanr balu Kintu v Efulaimu Komira.tn 0r devised his iilerest to B. Ihe ldta.g([H
bc creffi
vith ttre ten lears of adverse
In that case. asin Musoke v Jogga, lbe defendant originally entered the land with the consent of ofhis predecesor. The swnef, ca scp timc rmdng ifbefore the'period expires he or she
the landowner. When the plaintiffsued for possession the defendant sought to argue that the an action of ejectrnentto or asstrts crroerstip
sf tne lalId under possession. The assertion
action was time barred as he had been in adversepossession ofthe land for more than hvelve years. ownershiP must be accornpanied b-t eftaive ard pt5icat resufiption of possession of the land.rr
interrupts the mnning of the lirnitation
The issue'rvas, wlren did the cause of action accme to the plaintiflfor thepurposes of determining Once the owner resumes Possession it etreaivet-v
the limitation period? His Honour held that the cause of action did not accrue until the plaintifr even ifhe or she remains in possession for a bridPeriodt5t
the owner's right to
discovered the challenge to his interest. The lirnitation time also stops runmng ryhea a squatter acknowledges
Neither Manyindo l. in Musoke v Jogga. nor Ssekandi Lg I, in Nambalu Kintu v Efulaimu of the Limitation lcr Prwides that whenever a squatter in a signed
land. Section 23(1)
Kamira, cited any authority for the legal proposition that time does not begin to n:n against the addressed to the ownerlrl acknolYledges the superiority of the owner's title to
documentr5l
of that title. the limitation time begins to
landorvneruntilheorshehasknowledgeoftheadverseclaimtohisorherland. Itissuggestedthat land. or makes atly payment to the owner on accowt
the authority of the two cases should be limited to situations rvhere the intftder originally entered as from that date. For examPle' suppose that Okello has been in adverse possession
afresh
to Opio that lte (Opio) is tlte owner ofthat
u,ith the consent ofthe landorvner. This is because in such situations the orvner asurnes.justifiably. Opio 's land for five years. If Okello in vriting admits
him ofthe land, the five years Okello was in adverse possession will cease to
that the 'intruder' is in possession pursuant to tlte original consent. The following passage from 0r pays for use
need not be express ortake
the judgement of the High Court of India inTuruboi t, l/enkatrao.t'3 supports this proposition: in reckoning the timitationperiod. The acknolvledgment
the true construction of the document it is an admissionof the owner's
form, as long as on
payment be made before expiration of the
[It] is fully established that when thcrc is no act of taking posscssion, somcthing morc tlran a merc title.t5' It is imPortant that the acknolvledgnlent or
adverse claim is neccssary to make possession advcrse. Thus 'one rvho ho'lds possession on belralf
limitationperiod. The reason is that once time lapses title of the orvner is extinguishedby
ofanother does not, by a mere denial ofthat other's title, rnnkc his possession advcrsc, so as to givc activities.'55
himscllthe bcncfit of the Statutc of Limitations': Bejoy Clnmdra v. Ka$, Prosonra (1878)y' Cal. of the Act and cannot be rwived bY subsequent
327. Tbere must bc sonrc'adversc act'. so thnt ifthe possession has comnrenced and continued in
Consequenca of laPse of time
accordance rvith 'any corrtract, cxpress or intplied, behvcen thc parties in and out ofpossession. to disPossessed owner loses his or her right to re-enteror
whichthcposscssionnraybercferrcdaslegalandproper.itcannotbeprcsumedadversc.... That At the expiration of the limitation period the
sue to recover the land.r56 Moreover.
unless the title is registered under the Registration
is to say, if there bc no adversc act^ nothing overt and no unmistokablc oustcr, or taking of the dispossessed owner holds his or her title
posscssion, and all that is donc is rcfcnble to, or consistent with and susccptiblc of explanatron by, lcl it is deemed to be extinguished.rsT For exampte. if
customary tenure or tenancy by ocfllpancy' upon expiration ofthe limitation period his
some titlc which docs not impugn but rccognisc the right ofthe person seeking to recover possession, under
of the Limitation,zla. Legally, the squatter
then there can be no possession adverse to that person rvithout notice or intirnation to him of some her title isautomatically extinguished by operation
person he or she dispossessed. Rather, he or she is left in
kind, that an advcrse claim has becn sct up in opposition to his right therctoforc recognised: not succeed to tle title oftlte
Ittappanrt Manavilrana (1897),21 Mad. 153, p. 159 possession 'resting on the infrrmity ofthe right ofothers to
ofthe land with a title gained by
The title acquired bY the squatter is a freehold in fee simple estate because the
him.'rrs so
It is submitted that the legal position is different rvhere the person entered the land as a trespasser. a lesser estate is proved.r5e The
estateknown to the common la'rv is presumed unless
In that case, as long as the trespasser's occupation is open and not clandestine. tlte lirnitation time lvltere a squatter dispossesses a lessee. Upon expiration of
could be rebutted. for example,
will irnmediately start running against the olvner ivhetheror not he orshe is aware ofthe intrusion.r'l period does not mn against a landlord tmtil
leasethe landlord could re+nter since the limitation
A landotvner who for rnore than fivelve years is unaware of intmders on his or her land does not
lease expires.16o
deserve legal protection.

Stopping time running

The posiession ofa squatter must be continuous for a total period oftrvelve years of?ny extended rae The issuing and scwirrg of sumnrons for possession sufliccs for this purposc, sea Seriednt e Nash
periodthatmayberequiredbytheopcrationoftheAct.rrs Ifbeforethelimitationtimerunsoutt46 &Colt903l2KB304.
the squatter abandons possession the land ceases to be in adverse possession and time stops tto Ndmb;fu innt v Eftilainru Kamira CANo 26 of 1973: (1975) HCB 221 (unrcported). Merc
bc cfllctivc to constitutc rc-cntry'
nnning against the oll,ner.rl? Where subsequentll' the squatter (or another intruder) re€nters a against thc squattei's possession held not to
fresh limitation period will begin to run calculated frorn the date of re€ntry However, where a
t\t Randallvst,ryezs 118 ER907'
rr2 See also s.2.1.
squatter does not abandon possession but instead purports to transfer the land to another person, j! party, for cxamplc, in an aflidavit to thc govcmmcnt, is not cffcctive,
scc
r
An admission madc to a third
the latter rnay add the grantor's period ofadverse possession to his or her own to rnake up the
Bcavanllgl2l 1 Ch 196.
necessary limitation period.rrs For exanrple. if A rvas in adverse possession for ten years and sold ts' Ediginton v Clark 11964l I OB 36?'
tss Sandersv Sandcrs (lSEl) f S-th O 373. Comparc with Colchester Borotgh Cotncil v Snith 179927

wLR 728.
f{2 CA No 26 o11973; (1975) IICB 221 (rnreported). t5' Section 6.
t', (1902),27Bom.43at52{.citcdrvithapproval hJanduvKirpalandanotltarll91S)EA225(K)nt234. rs' Sec ss. 17 arrd 30 of lhc Linitation Act. Kinn v Ertrhinu,(anrrra CA No 26
Sec also rVanrbala
of
t''t RainsvBuxton (1890) 14 Ch D 53?. (r97')HCB22L (urreportcd). Thc conscqucncc ofcxprration olthe limitalion
tirnc upon a titlc
r'r5 Scctions 7 and2?, of Ti tles Acl, is discusscd bclow.
under tho Regrtlralron
"u Once tinre has run out. title is cxlinguishcd nnd cannot bc revir,cd bv subscquent cvcnts. see Sanders l ttt Tavlor v Tvinberrow 11930) 2 KB 16. at 23 Pcr
Scnrtton LJ
Sanders (1881) 19 Ch D 373. t5) Perry r Clissold U90?l AC 73
la' Section 12(21)-Lintitatiorr zlct. Seenlso.4llenvRongltl1,(1955)94Cl,R98 r60 Scc s. 8(1) of the r,r,ilortbt, Act. Sce also^Fhrrrveatlr ar t' St lt'{arylcbone ProperS'Co'
L'd [1963] AC 5
t''s tlosanoli llomufi v Dor & Sorrs (1935) -12 EACA I I l.
i
 Gencral PnncrPles oJ LQttd Ldrv ot
Il, q, 66 Pnnaples o/Land Luv in Ugattda
regrstered Iand
It is submitted that where a squatter dispossesses an owner of lard under custolnary tenue. its effect was to give persons in adverse possession of
iession a similar provisiorL held that larv'r'u
rhe presurnption is tllat the squatter's title is a freehold rather than a custolnary tiue. Part ofthe rvould have against ulitl.
O, as they
hold., under the cotntnott
brirgs if" i"r"r'rigt
tion cif reason for this is that the title acquired by a squatter is not the same as that ofthe person he or she
irnd acquiesccnce
and.l50 dispossessed. Moreover. although the lr mitation .llct applies to custorrary land.r6r the doctrine of Adverse possession, prescription i
^ ^. ,
j..^^ ^r prescripdon r rrr{ racquiescence.
^.-.^,i ^rinn a,'d
adv'erse possession is alien to custolnary land tenurc.ro2 Therefore, the courts have to refer to tlte il, ffiil* oistioguisraJversepossesion frornthe doctrinesof
period they are conceptually different't7t
comrnon lalv to detennine the nature of title acquired by adverse possession. Thoughthe three have ce(ain sinrilirities
tto the Special provision applies rvith respect to land registered under tire Reglstration ofTitles Act.
written Section 30 of the Limitation Acr provides that although upon cxpiration of the linritationperiod a Pnrscnrrrtox
: to the registered proprietor is barred frorn evicting or suing for recovery ofland. tlrc proprietor's title is not
by statute by rvltich an intnrder' after a
;to run thereby extinguished. Horvever. tlic section dgenls thc proprietor to hold his or lter title for the prescription is pri[r,arily a collurlon law doctrine exterded
and occupation rnay acquire a proprierary intgrest over another's
sion of bendrt of the person rvho dispossessed hiru or her. For e.raurple. suppose that Rashida is the ffi;;;"iJ;ifi"4;rrupteduse of
the doctrine of piescription is confined to acquisition
utland rqlistered proprietor of certain nrailo land and Isanga is in adverse possession of the land. Afterthe land.ru Unlike adverse por*riorr. possesion'r7r For exarnple' a person rtray by
o count arpiration ofthe tlvelve years linritation pcriod. though Rashida remains as the registered proprietor interests in land ttrat Oo not carry a rigtrt to exctusire
person
right ofiay, over neighbouring land'r?{ But a
Drescription acqoir. ur, a*.,o.irt,
rticular of the land. she is deemed to hold the titlc in trust for Isanga.'d! sulh as a

uperior Tbe Registration ofTitles Act nitkes provision forthe adrcrse possessor to nrake an applicatioy-
IntliecascofLonplot'Kilenrbel:[inesLtd,t15
cannotacquireaf..riropf..rtai.Uypr.rariptl"n.
r of the to the registrar ofTitles for an order vestirlg in hiur or her as estate in fee simple or other estatr oitin.e\tinguishestheowner'stitlebY.'prescription''
SsekandiAgJ,saidtnatasquailiuylpt Honour's statelnent is conccptuall]'
Eration daimed.r6' Section 86 states that upon satisfac(ion that tbe applicaut has conplied with the 4 Wth due respect to tire lear[JluJg.. ii ,uU*itted.that his
" title by adverse
.r'r possession and not by prescriptiou'
appropriateprocedure andrvith allthe legal requirenrcnts. therpg,istrar'nmy' grant the order sought *r*g. e ,q**r exti[guisiles uriot't
possessionind prescription is that prescription
zrvl cause the land to be registcred in the nanre of the applicail., The process is cornpleted when the Another major difference betwecn adverse
non-existing interest. For example-
opc'rate, plltirety as it teaos o aiquisition
regisrarcancels theexisting title (aud any claiurs registered against il) and issues a fresh certificate of a-previously
doctrine oflost ruodern grant is based on a legal
fiction tltat
enter0r oftitle to the applicant."$ Although s. 8(r appears to give tho registrar unfettered discretion to acquisition ofan easement ;;;;rG iu tille
tfTitles regisl.er an applicant as proprietor. it is subrnitted that he or she carrnot refuse to do so ifan grant to the person enjoving it or to ltis or her predecessor
the easernent had its origin in a
her title adverse possessiotr' as tve liave scen' operates negativell'
applicant satisfies the statutory requirenrents. excepl orl reasonable grounds.rtr A responsible bUt the grant WaS lost.r'5 In COntrast. ofthe
d his or ground for refusal rvould include rvhere, for esarnple. the registrar bslieves that the registered The irltruder enters aod re,nains o11 tlte
land rvithout the penuission' pretendedor otllenvise'
ter does right to re@ver possession is extinguished'
landorvner. After the title e"pii.* tf1. fo"ner
orvner's
F.cprietor whose action is time baned rnight be granted Ieave by a court to file his or her action out rl
upatioo
of time under the ()vil Procedure Rules.t61 The registrar uray also decline to register a title based on 1,it ot lier olvn actual posscsston
leaving the inuuder in posse'ssion tvith a title
to ejed
acquired by adverse possession ifthere is a possibilitv tliat the registcred proprietor rvas under
r large$ ,hsbility and rvould be entitled to e.\tension ofthe linritation period.rd
rmption AcQumscct'lcr
Where a person has been in adverse possession for the requisite statutory period. it is submitted
n of the unreasonable delay n enforctng or assemng a
legai
that even if his or her title rvere unregistered it rvould defeat that of the proprietor he or she The docUine ofacquiesce[ce or lacltes entails
rntil the tlie indolent' Thus' u here a
dispossessed. Thc reason is that. as rve have seen. under s. 30 of tlte Linitatiott Act, after ,fgi";; It is basei on tle ,*.*i*
,t,o, equity aids the active and not
e+iration of the limitation tirne the proprietor is not only precluded frorn evicting the squatter but violatcd and lie or slte chooses to sit rdii' b1'' he or
landowner knorvs tirat his or her rights are being
and rvill be estopped frorn arguing odrenrise''r
also he or she is deemed to hold title ou tlte squatter's beiralf. Effectivelv lhe proprietor is left with she is taken to have acquiesced irithe violation
a tide, which is like an eggshell rvhilst the squatter enjoys the benefits tirereof. This vierv is further The courts' equltaUteiuriiiction to i.n t. to
gunt relief on the ground of accluiescence is erpressiy
sh FieA sengtlreoed by s. 61 of the Regislrotion of Titles Acl. Under that section. title of a registered savedby s.2gofthe.LirritationAct.tso Unlikeadversepossession,thedoctrineofacquiescence
of a cause of
poprietor is not indefeasible as regards 'any rights subsisting urder any ad!'erse possession of can only be useO o, o O.f.nc.lgalnst an action and not is a basis for establislunent
) protcs6 srh land'. lnLakevJones,r6e the Suprenre Court of the Australian State of Victoria, interpreting
Kru Ratrching ond ('o-operotn'e Socrcry (1982-88) 1 KAR
746
r'o Scc also Kisea lvloveu and others t
to indct'easibility in discussed in chapter 'Rcgistration of Titlcs'
Advorsc posscssion as atl oxcoption
), scc t?t Nambalu Kinlu v Efulainw Kamira CA no 26 of 1973r (1975) HCB 221
-nr Scc bclorv.
e t'1 Daltott v.4rrgus (1881) 6 App' Cas 740'
thuereza v ]vlbusye CA No I l8 of 1975 (unreportcd)'. Nonthalu Kitu v Efilntmr Kaniro CA No 26 of r7r Jamcs p.S.,Intoductio,, i'[rrgtirn Law (5b cd: Loldon. Stevcns. 1984). p. 1030' Conrparc Ugandu
ll9e2l 1973; (1975) HCB 221 (unrcported). HCB t44'
ttttt t'td v P lacid wei IgaCS No 29 of I 989: I 988'90)
t (
s Howcvcr, scc ss.30 and 32 ofthcZarrd.{cr, 1998. abovc. *i"ii
rrr g* 1or vlrzgls (1881)'6 npp cut 119: -
" Sections 77-84 oltha Registration of Titles Act. tls lomolo "*rrplc,Dalton
v Kiiemtbe Mines Ltd CSNo 395 of 1976;
(1978) HcB I 57'
5 Sectior:86 (b). t1.
d h is cstablished law that discrctionary powcrs, howcver rvidc they are dmwn arc not absoluto. sec fu NambaluKinruvEfulaimuKarrrraCANo26oflgT3i(1975)HCB22l'.Dahottv"lrrgrrs(1881)(rApp
Rc:(At.Applicarion by) Bukoba Gynrkham Club ! 19631 EA 478 Cas ?40. For t'ur{rer discussion scc Chapter 8'
:::' :'.,,..- t11.'Nambalu Killu v Efulainnr Kamira' ibid'
^' Ugondas'pirmitryttlillsL,rdt,Placidll/etilgacsNosaiof 1987:(1988-90)HQB 148. t1. Cibnongv Otrngd Ce No 104 of 19821 (1985) HCB 86.
tle Citantongv Oirngo, ibid.
- {1889) 15 VLR 728 tn tttandba JO/rgyo-CnNo 209 of 1969; (1970) HCB 60'
il, 68 Principles ol Land La* in Uganda
5'
I

action.rEr But to raise this defence two things must be satisfied. Firstly. the defendant must have
dealt with the land under an ltonest but a mistaken impression that it is his or her land. Secondly, Registration of Titles
the true owner must have been asare of tlre defendant's activities on his land and chose
to do
nothing.rE2 For example. in citamong v olinga.ttl the appellant, for a period of thirty
vean.
occupied and cultivated the respondent's land. Although the latter rvas aware ofthe
intrusion he
made no attempt to stop it or recover the land. In an action to evict the
appellant the High Coun Irraooucrrox
held that the respondent had taken too long to assert his rights. In equig;he was
deemed to have
acquiesced in the appellant's long and unintemrpted occupation.ra- gn1iU. The system of regisbation oftitles which opcrates inUganda, is commonly known as the
adverse possession
rvhere tlre timeframe rvithin rdrich to institute eviction proceedings is strialy System'. It takes its name from SirRobertTorrens, an Australian who played a leading role
fixed by theLimitation
ld.thereisnofixedtimeforthedoctrineofacquiescencetooperate. development and implementation in Ausbalia in the l850s.rTorrens, who was not a lawyer,
Itisuptothecourttodecide
whether or not in the circumstances ofa particular case it considers that th; delay set up a system of conveyance which was simple to operate, secure and fair. The system was
to bring action
rvas unreasonable. For example, in citonong v olinga. the delay rvas intoduced in SirRobert's own State of SouthAustralia in 1858, and subsequently itspread to
for a period ofthi4y y"a.s.
in ll/andtra v okeya lenyears,rEr and in Lomolo v Kilenbe Min", ,*. it was only sgven years. Austalian states, New Zealand, Malaysia, Papua New Guinea, some states in the USA and
Canadian provinces.2 The Torrens system was introduced in Uganda by th e Registration
Act(cap205),u'hichwas enactedin 1922 by OrdinanceNo.22 of 1922 andcame into effect on I
( 1924.t ltrqealedore Regbtration of Titles O'dinance 1908 aadthe Equitable Mortgag*
1912.4 TheActisbasedontheTransferofLandAct, l9l5,oftheAustralianStateofVictoria.
Tlte Registration of Titles Act attomatically applies to all mailo land included in any final
certificate and all lands alienated in freehold or leasehold and any transaction relating to such
By s. 3 ofthe Act it is provided that provisions ofthis Act shall prevail over any other
law dealing with registered land.6
Customary land tenure is not regiskable under the Act.7 Owners of land under
tenure who wish to bring their land under the Act must convert their tenure to freehold as
under the Lan,l Act.E

Scnemrorrnracr
The system oftitle regishation under the Regrsrrafion ofTitles Acl revolves around a
'Register Book'. The book embodies certificates of title kept in a mnning form
separate parcel of land described therein and registered under the Act. If land is brought under
Act for the first time (for example, a fresh grant of freehold or leasehold, or where part of mailo
is sold and a fresh certificate is issued), the registrar is required to prepare a certificate in
One copy is retained by the registrar and kept in the register book, the other is issued to the
(or his or her nominee) who is registered as 'proprietor' ofthe land or interest.ro The
issued to the proprietor is referred to throughout the Act as the 'duplicate certificate' of
*
Seegenerally DouglasJ Whalan, Iie TorrensSystemin Arestralia (Sydney, lawBook Cornpany, I 982), p.
See Rowton Sinipson, Land Law and Registration (Cambridge, Cambridge University Press, 1976).
For background reading seeH.M. West,Land Poliq in.Brganda (Nairobi, East African Publishing
l97s), pp. 163-87.
Barclays Bank D.C.O. v Gulu Millers (1959) EA 540 p. 549.
Scction 9( l), R2.
This provision is discussed in Sla ka Nalima v Muso,te CA No t 2 of I 9 85 (Supreme Court
u9921 5 KALR 132.
Certificatei ofcustomary ownership ofland arc 'recorded' by a recorder established under s. 69 the
tEt Citarnong v OIinga, ibid. /ct. 1998. See Chapter 2.
ts2 See Chapter 2.
Ramsden vDyson [1886] LR I HL. 129. Cornparc with advcrse possession wherc the owncr's knowledgc
is irrclevant. Sections 3 8, R7.
t33 Ibtd. r0 Seess.38and39Q)RfA.Scealsos.2dcfinitionof'proprictor'.Notethattheremaybemorethan
and distinct proprietor over the same piece ofland. For example, ifa mailo owner mortgagcs his land i;
" See also Wandira y Okeya CA No 100 ol 1969; (1970) HCB 60.
r

Itr cANo 100 0f 1969; (1970)HCB 60. remain as the proprietor of mailo land and the mortgagee will be proprietor of a mortgage over the same
rrsection-1e(l),87X.
rt6 CS No 395 of 19?6; (1978) HCB 157.
69
 10 Pnnciples o/Land Luw iu Ugurda Regtstrauort of'I\tles 7 1

Any transaction affecting registered land. such as a mortgage or lease. fiLust be endorsed on the The Act provides that a registered proprietor of any estate or interest in land rvishing to
register book and the certificate of title.
t? For this reason. the duplicate certrficate must be produced transfer. create an easement" lease or r[ortgage! may do so by cornpletion ofthe relevant prescnbed
u
wheneveranydealingconcerningtheparceloflandislodgedforregistration.n Section38(l)of fonn. The instrument. signed by the proprietor and lvitnesed. is presented to the registrar together
Registration o/ Titles Act requires the registrar to rccord transactions in such a manner as to withthe duplicate certificate oftrtle. and such otLer documents or conseltts as tnay be necessary or
preserve their orderofpriority, which. generally. is the order ofpresentation for registration and not requiredby any law.t, Ifthe instrurnents and accornpanl,ing docunreuts are in order and subject to
the order ofthe date the transactious u'ere entered in1o. '' paylnent ofany prescribed fees, registration will proceed. The registration is brought about when
ile registrar enters the irutrunrent purpodng to affect tire strbject estate or interest in the Register
rens
Book upon the file constituted by the certificate of title.te Thereafter. who€ver is narned iu the
n its Essnx'nar. TcATURDS
certificate as the grantee or proprietor or luving arr estate or interest in tlte subject land is deemed
edto
The Torrens systern has hvo essential features that distinguish it fronr other systems ofconveyance: to be the duly registered proprietor thereof'lo
hrst
cther ritte by registration and the principle ofindefeasibilitv oftitle. The tlvo features are interdependent
Unregistered instruments
and they are both essential to the Torrens system.
iome Tlrough s. 5l of the ,l?eg istratiotr of Titles Act states that no estate or interest can be created or
Titles transferred until the instrunrent purporting to create or transfer the szune is registered. tlte section
Titleby registration
Under the Torrens system, interests in land are created or transferred not by execution ofdocunrents does not thereby deuy unregistered instrurneuts any legal effrcacy.2r The Court of Appeal for
fince 22
as under the conunon law, but by registration inthe ruarurerprgsgribed b)'tlrc Registration ofTitles Eastern Africa itt Souza Figueiredo & Co Ltd v luloorings Hotel Co Ltd discussed tlie naturc

lct The key provisiou is s. 51. It stipulates that an instrulnent prlrporting to confer an interest in __ - ar@effect of unregistered instrurnents under the Act. In that case the respordent (registered
laad is not effective to pass any estate or interest in land orbind the land b1'way ofurortgage until proprietor) entered into a contract to lease the suit propedes to the appellant lor a period in excess
the instrunrent is registered as provided under lhe Act. The case of Ndig$jerava v Isaka Kizilo
- of tluee years. The appellant entered into possession though the lease was not registered. Before
and Sabane krbulwamrvand illustrates tire application of this provision t'
In that case, Kizito the three years oxpired the appellant vacated thc preurises rvith rent in arrears. When sued for the
under awritten agreement sold his land to tlle second respondent and the latterpaid the purchase arears tlre appellant contended tlut since tlre agreetnent for the Iease ll?s not registered as required
price. Four days later , Kizito purported to sell the same land to the appellant and the latter paid the by s. 5 l, the lease had no effect and, hence, the appellant rvas not liable to pay rent. In response to
pucluse price. The appellaut irnrnediately lodged rvith the Regisuar ofTiiles a certain docurnent the respondent's argument that there vas au equitable lease, the appellant subnitted that the
eriecuted by Kizito for the transfer to be registered. Later the second respondent also lodged with principles of equity could not ovenidc the provisions of tlieReg istration of TitlesAct. Sir Kennet.h
&e registrar a docuurent oftransfer signed by Kizito. However, neither docurnent was registered, O'Connor B with the concurrence oftlre otherjudges, held that though s. 5 1 says tlut no estate or
bemuse they were not in a registrable fonn. ln court, the appellant conlended tlut he was the ' interest in land can be created or transfened by an unregistered instrutnent:
caner ofthe land, because he lodged his document oftransferwith the regrstrar before the second
[T]hcrc is nothing in thc ... [Act] whiclr renders such instrr.rnrculs ineffectual as contracts bet\\e€n
rrspondent lodged his. In response to this argunrent, Ainsley J said that:)6
tho partics to thcnr: thore is nothing iu the ... [Act] to say that an unrcgistcred docunlent purporung
to bc a lcase of. or an sgrecnrcnt to leasc. land which is subject to the operatiou oftltc lRegrstauon
rder It must be rcmcmbercd that rnailo land (and any land which is subject to the ltegistation of Titles
ofTitles Actl for nrorc thau throc ycars is void. In my vicw it can operate as a contract iltler parlr
Orduonce) cant be tlansltncd only by the exccution of an instrument which fulfils certain statutory
and can confcr ou thc party in thc position ofintending lessco a right to cnforce the contract
requirerncnts and by thc rcgistration ol that instrunrcnt. No docunrent or instrunrent can be
spccifrcally and to obtain irour thc intending lcssor a registrablo leaso.x
rcgistercd unlcss it fult'ils certain requireurenls. and no iustruurent (howcver perfcctly it fulfils thc
$atutory roquircmcnts) is eft'ectual to transt'er any intclcst in land until it is registcrcd

-{,ocordingly, his Honour held that neither the appellant nor the second respondent achieved a
l.*n<fer of0re land to himselfby the execution ofhis docurnent or by paying the purchase price.
However, once the instrument is registered the estate or interest in the land passes and the land t' Sccss.82,98, l00andl14,rcspectively. Instrulncntsnotinappropriatefornrmayborcjected(s. 181),
916). trcnme liable and subject to the covenants and conditions set forth in the instrument. It is partly though altcrations which do not aifcct the substance ofthe instrumcnt, are pcrmissible (s. 209) and the
fra'rhis leas,qn that a title under the Torens systeur is described as a title conferred by registration rcgistrar may pcnlit instrurncnts prescnted in vcrnacular.
t"tqlce withgut registration no title is transferred. rr Forcxamplc,itisrequircd,undcrs.43CofthcFrnanceActlg82,thatnotrausfcrpurportlnglotransferan
intorcst in land slull bc rcgistered witlrout production by both tho transferor and transfcrec of their
rcspoctivc inconrc tai clcarancc ccrtiticatcs frorn thc Cornmissioncr oflnconre Tax.
D Scction 42 Q),R[A.
20 Scction 42 (q,RfA.
d Se ss. 38 (L), 49 & 42 (2) RTA. 2t v Heider and anoilw (1914) 19 CLR 197.
o Scction 66,.R77. Tho rcgistrar may at his or hcr discrstiou dispense with this requiremcn! xc s. 49, RTA. rr Berry
Jts6o1 ER926
d S.t s. 44, RTA. In thc abscnoo of fraud on thc part of thc first pcrson to bc rcgistrrcd, ho or stre takcs a tt lbid,p.93t.
hcse{ titlo than that ola pcrson to whon) tho samc land was sold first but drd not rcgistcr his or hcr
fu*"xeKazzqs vRuIzDa CANo 13 of 1992(uureporlcd);HotellnwnatpnalltdvTheAdministaW
Esute of the Lau Robert Karzrra CA No 37 of 1995.
tt {n*
O953) ? ULR 31. &c also Kazzoro v Rtkuba CA No 13 of 1992 (unrcportcd).
:,:.' r"i

' Ei( P.32.

72 I'rnrciples ofLand Low in Liganda
Re gi.s tr o t i on o/ Ti t I e.s

Appll,ing this principle to thc facts of the case. His Honour held that the respondent was entitled
existenceanequitableeslateoriffiin&Ebnd! Incmrviov.OderJSC'sinterpretationis
to thc pay,nent oftlre surns due under a contract to pay rent for the period during rvhich the
overthat of SirKenneth O'ConnorP in Sarca Figeiredo & Co Ltd.v l{oorings HotetCo Ltd.
appellant enjoyed possession.ir
Although Sir Kenneth O'Connor P. held that an unregistered lease constitutes a contract irter lndefeasibility of title
parte,lte denied tltat it operates to create an equitable lease. His Honour reasoned that because of The second essential feature offte Torrens system is the 'principle of indefeasibility of
s.5l.Reg$rratton o.f Titles,4ct, inUganda noestate (whetherlegal orequitable) couldderivefrom Basically this means tllat onc€ a person is registered as proprietor ofan estate or interest in
an unregistered instrurnent.:5 His Honour refused to follow Australian case law that the the government guarantees that his or her title cannot be divested or attacked by rival claims to
corrcsponding provision does not prevenl the creation ofan equilable estate rvhere an instmment land except as prescribed under the Registration ol Titles lcf. Interestingly. the
of transfer is not registered.:6 'indefeasibility' though n idely used injudgments and scholarly work does not appear
Tlte decision of Souza Figuetredo & Co Lld t, t{oonngs flotel Co Ltd tbal s. 57. Regi,stration i:eRegistration ofTitlesAct.ltsmeaning and scope is. nevertheless. extracted fmtnwhat
of Titles lcl, precludes tlre creation of equitable interests has never been questioned by the Wralan describes as a'mosaic of sections'.34 Thry include s. 56. which declares that the
2?
courts Horvever. there are scveral cases rvhere the courts have held that an equitable interest is of title shall be conclusive evidence of all particulars and endorsements thereon. and that
created bv virtue ofthe contract bet*'een the parties. For exarnple. in Katorikmve y Kohyirenru and person named in the certificate as the proprietor is possessed ofthe estate or interest
anothen:s Ssekandi J, lreld that though in a contract of sale of land an unregistered instrument of The courts are required under the section to receive and treat the certificate oftitle as
transfer is not ellective to transfer title. the purchaser acquires an equitable interest in the landT- evidence ofits particulars. Section 6l declares that. subject to the exceptions stated therein,
rvhiclr is enforceable against the vendor.:e Sirnilar vien s l\,ere expressed by Oder ISC in itibhdi estate or interest of a proprietor registered under the Act prevails over any other
ontl another v Karia and another.to In that case the lirst respondent entered into a contract to interest or claim over the land. Sections 184 and lE6 protect a registered proprietor against
purchase the surt propefi frorn the appellants. Before he paid the purchase price the appellants action for ejectment or damages. Except as stated in these provisions. production by a person
fled the country follol,ing tltc expulsion ofAsians frorn Uganda by thc rnilitary govcrnrnent. The certificate oftitle in his or her name is deerned to be an absolute bar and estoppel against anv
Departed Asians Property Custodiar Board took over the suit property bv virtue ofDecree No. 27 action.sr
of 1972. Snbsequentlv. the Board transferred the land to the first respondent and hc lvas registered Theindefeasibilityprincipleu'asdesignedtoachiwetrvornainobjectives. First.itlvas
asproprietor. Theappellantsoughtanordcrforthetransfertobesetaside. Oneoftheissueswas toprotecttitleoftheregisteredproprietorfromunregisteredinterests. Secondly.tosave
$'ltether prope(} passed to the respondent before thc transfer uas rcgistered and. if so. $,hen. dealingrvith registered land fiom the trouble and expense ofgoing behind the register book in
Oder JSC. rvith the concurrence ofManvindo DCJ and Karokora JSC, held that: to iw€stigate the validity of title or possible rival claims to the land, and thus sirnpliS and
the process of transfer.
Aftcr tlre contrncl ol salc, propertv in the suit propsrty passed to thc first rcspondcnt, rvho The application ofthe principle of indefeasibility is illustrated by the case of Ltranga v
obtained lhe equrtablc estate lhcrcto and retaincd it after thc appcllants lell Uganda. Thc appcllants
Registrar olfitles.36 The facts of the case were as follorvs. In 1920. the applicant's late
in whom the legal estate rentaincd becnme trustces ofthc first rcspondent and rvcre under a duty as
bought the mit property, but title to the Iand was never transferred into the deceased's narne.
such ...lo transtlr thc lcgal estatc in thc suit propcrtv to lhc respondent on conrpletion ofthe
contract. It is that legal cslate. in nrv vierv, rvhich vested in thc [Board]. the deceased's death, one Katamba fraudulently caused the land to be transferred and registered
his name. Later Katamba sold the subject land to one Salongo, an innocent purchaser. rvho
Oder JSC's interpretation of s. 51 of tlte llegistration ofTitles.4ct,3t mirrors the vierv generally registered as proprietor ofthe land. A Magistrates' Court convicted Katanrba of forgery
regarded as authoritative in Australia rvillr respect to interpretation of analogous provisions. In ordered that the suit property be transferred to the applicant. Wlren tlre applicant attempted
Auslralia the legal position is that thc counterpart ofs.51 renders an instrurnent ingffcclual to enforc€ the orCer. the registrar refused to comply. The applicant instituted these proceedings in
crealc a legal or equitable interest or estate in the land. bclore registration.]2 Btrt the p_rovi_s&n does High Court against the registrar. Odoki Ag J. as he then r,vas, upheld the registrar's grounds
not avord the contract behind the instrumcnt or render it inoperative. That con{fact. and not the refusing to transfer title into the applicant's name. He held that Salongo rvas a bonaf de
instrument. is regarded as effective. in accordance s,ith the principlcs of equitl', to bring into forvalue,therefore,unders. l89oftheRegistrationofTitleslct,histitlecouldnotbe
or cancelled notwithstanding that he acquired his title frorn a forger. His Honour observed that
ofthe parado]:es ofregistered conveyance is that though registration obtainedby fraud is
2{ In any cvent it rvas lrcld thnt thc rppellant having gone irrto possession rvas a tenant at rull and as such was is capable ofbecoming a good root oftitle to a bona fde purchaser for value.37
bound lo pay rent for thc period he rvrs in possession. p. 937.
TIre Australian case ofBr"sh,.rr ond onotlterv llhll and others also provides a good
'?5 [960] EA 926 p. 931. of the operation of the principle of indefeasibility.sE In that case, Mr and Mrs Breskvar
26 lbid, pp. 933-34.
2' This case is cited in scveral cascs as authority lbr thc proposition that arr unregistcrcd lcasc constitutcs n money from one Petrie. As security for the loan thev handed over to him the ccrtificate of
conl:act inter pdrre. Sec, for cxanrplc. Ci4, Concil of Kanrpolo v Mukibi [ 967] EA 368 (U); .lonrali
-l988
Dcntocratic Reprtblic v Anoop S),ndiriol Trear CA No 4 of (unrcportcd).
lt Chan and otother v Crcsdon Properties Linited 119891 168 CLR 242 al25'l
1t CS No 2 ol 1973', (1977) HCB 187 (rrnreportcd). .

re SecalsoPopotlarHirjivl.H.Lakharri&(o(EA)Lld[1960]EA4-11 (U\.SenrongovShell(IJ)LtdCSNo "15 The Tonms Sltstent in Axstrolia. supra. at 293.

Kampala ltoillers Ltd v Donnnico (Lt) Lrd Ci\No 22 ol 1992 (unrcported).
32 of 1993. unreported. r' Misc. Causc No TAof 1977 (1980) HCB 24 (unrcportcd)
ro CA No 53 of 1995 (uureportcd). 17
rrsec,forcxanrplc.s.4lofthcRea/Praparn,Actl90O(NervSouthWales):s.43oflhcRealProperf'Acl Scc also Tl,e L{anagement Comnilree of Rushodm Printan,Sclrco! v Frtntcts.Vkorcrrta C.A. MKA 1

(tttreported). Olinda De Sona v Kassantali *"omji [1962] EA 756:,\tozaroli HassamrliSavtni v

I {i6l (Queensland)l and s 40(l ) of the Tiansler of Lond Act. 1954 (Mctoria)
32 Bant r Heider(1914) l9 CLR 791'-Chon od orrorlte rCre,xlon Proprles l,initedl1989l 168 CLR 242. l|pcese ?{ntbuga CS No 364 of 1993 (unreported).
rr (1971) 126 cLR 376.
 fTilys
a
'13

\l Principle,s o/Land Law m Uganda Ragistration of'l\tles 75

is prefened
Ltd &fu land and a mernorandum of transfer which, at Petrie's insistence. tbey signed in blank (ie 0i) Fraud
a
a
s[gDed the transfer fornu without inserting the name of &e transferee). Under the Queensland Section 6 1 of the Registrotion of Titles Acr stipulates that the title of a registered proprietor is
qmmpAct, l8g4ablankinstrurnentoftransferwasdeclaredtobe'absolutelyvoidandinoperative' indefeasible except in case of fraud. It shouldbe stressed tlut the fraud. lvhich must be proved to
rty of title'
buh at law and in equity. Petrie without the authority and knowledge of the Breskvars inserted in invalidate a registered title, rnust be the fraud ofthe person rvhose title it is designed to irupeach.
'est in
&e instrument of transGr the name of Wall. an accomplice, as the tramferee and had the land T1us, the fact that the registered proprietor bouglrt the land frorn a rogue or a person who acted
laimsto
*gisered in Wall's name. Wall then sold the land to A Pty Ltd- which bought it in good faith fraudulently in transferring the land does not rnean that the transferee's title was acquired through
uithout knowledge of the fraud. But before A Pty Ltd could register its transfer, the Breskvars ftaud.'2 In.\y'rs isi v Grindlays Bank (U) Ltd and others.at Masika CJ said that a person registered
rnywhere
todged a caveat to prcvent registration and conunenccd these proceedings to have Wall's registntion througlr fraud is one 'who becomes a registered [proprietor] through a fraudulent act by luru or to
rclied and the register book rectified to restore their names as proprietor s. On their behalf it was wlriclr lre is a pafly or rvith full knowledge of tlte fraud'. Similarly. in Kanpala Bottler,s !,td v
lnd that
ugued that since the instrulnent of transfer was executed by u'ay of security only, it was ineffective Datnanico (U) Ltd, Warnbuzi CJ said, 'the tranferee lnust be guilty of soure fraudulent act or luust
it
s transfer the fee sirnple estate to Wall. Moreover. the transfer form having been signed in blank lave lsrorvn of such act by somebody elsc and taken adl antage of such act. "{
ln other rvords, it
rasvoid under the provisions ofthe Starnp Act. must be established that the proprietor gained registration through participation in fraud.
s
The High Court of Australia unanirnously disrnissed the Bresla,ars' argument. It held thal The term 'fraud' is not defined in the Act. In .,lssers Contpany Ltd v fuIere Roihi,a5 aNew
therein,
aoept as provided by the Act, the conclusiveness ofthe certificate oftitle is definitive oftlrc title Zealand case on appeal to tire Priv1, Council. Lindley LJ said that fraud in tlre Torrens systenl meant
'against dthe registeredproprietor. Berwick CJ in his judgernent obseryed that:re 'actual fraud, ie. dishonesty ofsorne sgrt. not rvhat is called constructive or equitable fraud'.16 A
a person Tho Torrens Systenr ofregistcrcd titlc... is not a systcnr ofrcgistration oltitlc but a systcrn oftitlc
j" useful desoiption ofwhat constitutes fraud within thc Torrens system is also found in a passage
nst any by registration. That which thc cc(iticate oltitle dcscribos is not thc trtlc which thc rcgistcrcd in anotlrer Prirry Council judgemettin lYainiha Sawntilltng Co Ltd 0n liq) v lVaione Titnber Co
pmprielor had, or which but for rcgistration ho rvould havc had. It is titlo rvhich rcgistration itself Ltd"'1
has vcstod in thc proprictor. Consequcntly. a rcgistration tiorn r void instrument is cffective
Ifthc designod object ofa transfcr b€ to chcat a nran ofa known existing rigilt. that is traudulent, alld
save according to tho terrls olthc rcgistration. It matters not what thc causc or reasons tbr which thc
so also tiaud may be cstablished by a deliberate and dishonest trick causing au irtterest not to be
book in mstrumcnt is void.
registcred and thus tiaudulently kecping the rcgislcr clcar.
and
TE effect ofthejudgement was that, notwitlutanding Petrie's fraud, Wall by virtue of registration
A conunon element of both delinitions is 'dishonesty' or desire to 'cheat' on the part of the
hc=me the proprietor of the suit land. Because he lvas a parly to Petrie's fraud his title was
tvangQ 1, proprietor whose title is being challenged.
rPqible. But by the time the Breskvars attempted to set aside Wall's title it was too late as Wall
Fraud is a very serious allegation to make against another person. Where a person accuses
i's late
tod aJready transfened an equitable title to A Pty Ltd, u,hich title the coun ruled prevailed over the
i nalne. anotheroffraud, it rnust be pleaded in accordance with the Civil Procedure Rules, Ordsr VI Rule 2.
hstvan' equitable claim.{ andparticnlarsofthefraudrnustbegivenandprovedsuictlybytliepersonaliegingit.as InAlibhai
t registered
rser. rvho rrep6bru 1q indefeasibilify and another v Karia and another Oder JSC said that although the standard ofprooffor fraud may
f forgery The principle ofindefeasibility oftitle though central to the Torrens system is not absolute. It is not be as heavy as to require proofbeyond reasonable doubt, something rnore tlun a mere balance
s&ftct to several exceptions, some of which are expressed within the Reg$tration of Titles Act. ofprobability (which is generally applied in civil rnatters) is required.{'
eedings in fthesare created by overriding statutes and by the courts in ilre exercise oftheir inherentjurisdiction. Tlre case of Lus,weste v Kasule and Couliballfo illustrates a fraudr,ilent transaction. The
plaintifrvas the original registeredproprietor oftwo adjacent plots ofland. u'hich rve shall refer to
{r} Erceptions ryithin the Act
srcr-.on 6l of the Act guarantees the indefeasibility of a registered title subject to the following al LtrsrresvevKasuleandCouliballyCSNol0l0oflgS3(uureported)',Hotcl httennuotnlLtdvThc
erved that meptions stated in the section. the E*ata of tlte late Robert Kavunrn CA No 37 ol 1995 (unrcportcd).
Adninistrator of
aud is
Drcambrances notifed on the
'r
t'
CS No 869 ol 1981 (u[rcported);F98-1] HCB 39.
#S loliuut CANo 22192 (unrepo(cd).lnRurangarattga v Mbarara \lunicipal Council and orlrcrs CA No 10 ol
A r€iseered proprietor takes his or her title subject to estates or interests rvhich are sndorsed on 1996 (uurcportcd), Wantbuzi CJ, hcld ttrat a proprictor who purchased land knorving that the grant to thc
(v2lr tfueregiserbookandcertificateoftitleattlretirneofpurchase. Thisisself-explanatory.Theregister vcudor was uot authorised, actcd fraudulcntly,
icate of bro& is like a rnirror: what 1,ou see is wlut is there and *'hat you do not see is not there.ar Wherc 'r [1905] Ac 176.
&rc is a notification ofan encurnbrance a person searching the register book sirculd pay attention " Ibid, p. 210. For discussion olcquitable tiaud sce Chapter 4.
Dtbe coatents of any doculrent relating lo the encuurbrance. For exanp.e. if tlre land is subject to '7 [926] AC lOt pp. r06ez.
a' Kanryala
r,"nxtgage he or she should ascertain the anrount that is outstanding for obviousty it would affect Bottbrs Ltd v Damanico (lJ) lrd. C A No 22 of 1992, per Platt JSC. Although it is not necessary
lhat tltc word 'fraud' should bc used. thc lacts nrust be so stated as to show that traud is charged. It is not
Sctalrc of the land.
allowcd to lcavc tiaud to bc infencd tionr facts plcaded. Scc Kazzora v Rukuba CA No 13 of 1992
(unreportcd).
lJ\.MKA
t' CANo52of1995. Secalsor(crryalaBotrlersLrdyDunuttico(U)Lld,CANo?2 oflgg2.,ParetvLatji
im,sni v D fri4pp. l1954lEA 314; Kazzora v Rukuba CA No 13 ol 1992 (unreporte.d)'. Shokarati Abdulla Dhalla
{ Ihc'court 385-- 86. ^'Iakq,ii
v Sadrudh lt{*a//, CA No 32 of 1994 (unreported).
found that on a balancc of cquities thc Breskvars lverc moro to bla're bccause thcy rvcrc grossly
'0 C S No 1010/83. For othcr cascs sccilauagiuent Conmilcc o/Rushasha Prrnnn,school t, Nkorenta
rrtfgcnt in signing thc instrurncnt oftransl'er iu blank. CA MKA I 111993 (unreported);l,Iatowt snd otherslvSsct'ir atd otptherCA No 7 of
* .Eor*!vcr, soc cxccptions to iudcfcasibilitv bclorv. I nnt Lrd ll9 l3j AC 49 l.
1978 lutrcporred);
[i 9?9] HCB 11 4'. l,oke lew v Port Swet ut Rub b er C o
1 6 Principles of Land Law tu U ganda
Ragistration o/Titles
as plot A and B respectively. The plaintiffhad built a house on plot A and there rlas a drivelvay to
the house that passed through plot B to the public road. There rvas no building on plot B. During
ln Katarikawe v Katwircmu & dnoflrer:$ Justice Ssekandi said{hat although mere
the political turmoil in the late 1970s. the plaintiffwas detained in prison. and in his absence his of unregistered intere$s cannot be impmed as fraud, where knowledge was accompanied
by
propeq,, including his certificates of title for the hvo plots. was looted. Eventually. when the '$rongful'' intention to defeat such inter€st it would amount to fraud. In that case, the
plaintiffapplied for a replacement certificate he discolrred that the title to plot B had been transfened alleged that in 1971 he purchased the suit property from the first defendant. Before the title
and registered in the name of Coulibally. the second defendant. The latter alleged that he had transferred to the plaintiff he entered into possession and carried out various
bought the plot from one Kasule, first defendant, who allegedly bought it from the plaintiff. The including building a house on the suit land. on several occasions he reminded the first
plaintiffdenied ever selling the land to anyone. The plaintif sought an order under s.185 for the to affect the transfer but the lafter did nol claiming that he had misplaced the cenificate and
that
registrar to cancel registration ofthe second delendant on ground offraud and restore the plaintiffs was in the process ofgetting a replacement copy. Meanwhile, on 4 May 1972, the suit land
narne as proprietor.
registered in the name ofthe s@ond defendanl who happened to be the brother-in{aw ofthe
Tlte issue rvas rvhether Coulibally was involved in fraud. It was held that there rvas suflicient defendant.
circurnstantial evidence to establish fraud against him. Firsly. all records ofthe alleged instrurnents
The plaintiff instituted tltese proceedings against both defendants. The second defendar
of transfer frorn the plaintiff to the first defendant. and from first defendant to the second were alleged that he purchased the disputed land from the first defendant in 196g but did not pay tlE
missing from the registrar's offce. Secondly, there was no evidence to show that the second purchase price because he had. no rnoney. He denied that he was registered through fraud
because at the time his title was registered he was aware of the plaintiff's unregisered claim
defendant searched the register book or investigated the olvnership of the house on plot A, the
driveuay of q'hich passed througll plot B. Thirdly. even though Coulibally Imd allegedlv bouglrt the disputed land. Accordingly, he submitted thar his title was indefeasible. Ssekandi J held
plot B lte occupied the house on plot A. which he knew he had no right to occupy. Finally. the fact there was suffcient circumstantial widence from rvhich it could be infened that he was registered
in consequence of fraud. Firstly, the plaintiff had been in possession of the disputed land for
that neither defendant appeared in court to defend the case raised a strong suspicion against their
a year and had openly carried out improvements on the land before the second defendant's tidc
innocence. The court ordered the registrar to cancel the second defendant's registration and
was registered. Secondly, the fact that the defendants rvere relatives raised strong suspicion ofa
restore the plaintitras proprietor ofthe suit property.
conspirary to defraud the plaintiff. Thirdly, the second defendant's claim that he purchased the
land in 1968 though he never paid the purchase price lvas implausible. 5t i
Notice of unregistered interest is not /rautl
In equity a purchaser ofa legal estate is bound by any prior equitable interest over the land of
(iii) The estate of a proprietor claiming urder a prior instrunrcnt of title
which he or she had notice prior to purchase.5r Notice in this context is of tlvo t),pes: actual notice
The title ofa registered proprietor is not indefeasible as against the interest ofanother proprietor
and constn:ctive notice. Actual notice is rvhere the purchaser rvas actually aware ofthe existence
claiming the same land under a prior registered title (s. 61). The provision envisages a situatioo
ofthe equitable interest. Constructive notice is knorvledge the purchaser lr,ould have acquired ifhe
where the same land is erroneously included in two or more certificates of title. The error nraybe
or she lrad taken reasonable steps to investigate title. For example. ifat the time ofpurcluse ofthe
committedbytheregistrar'soffice,DistrictLandBoardorbytheparties.5e Forexampte, suppose E'
land. a third party was in possession ofthe land, the purchaser is deerned to have constructive
that Mukasa subdrvides his land into trvo plots: A and B. He sells plot A to Okello and the latier is
notice of rvhatever claim the person in possession miglrt have over the land.s? Though the purchaser
registered as proprietor of the land. Then he sells plot B to Amooti. By mistake the certificate of title
in such a situation may be innocent ofactual fraud, in equity constnrctive kndwledge is deerned to
issued to Amooti includes both plots A and B. Two.vears later Amooti purports to sell both plots
constitute fraud.s!
to Kato and he is registered as proprietor ofboth plots. Even though Kato purchases in good iaith
In contrast, under the Torrens system notice by itselfis not fraud. Section 145 ofthe Registrotion
his title is not indefeasibleto the extent that it includes plot A, which is comprised in Okello's prior
ofniles Actprovides that except in the case offraud. a dealer is not required to inquire or investigate
certificate. Thus. Okello may eject Kato frorn plot A.s
the antecedents ofthe title he or she seeks to purchase or be concerned with unregistered intcrests. r.*
The seaion goes on to say tlut rnere notice of unregistered interests, $,hether achlal or cpRslructiv€. (iv) Land included by wrong de.scription
nottvithstanaing any nrle of larv or equity to the conrary. does not imputc fraud. Forffxample. in Section 6l RegrVration ofTitlesAc, stipulates that thetitle of a registered proprietor is not absolute
Shah v Modern Steet Mort Ltd,51 the plaintiffpurchased and lvhs registered as the proprietor of asregards any portion of land that may have been included in his or her certificate of title by wong
the suit property. It was not disputed tlmt at the time of registration he rvas ftilly aware that the description of parcels or boundaries. The effect of the exception is that title to such land remains
defendants claimed an unregistered lease for a term ofseren lears over the property. In an application inthetnreoqilmerandheorshecanbringanactionforejecxnentunders.184(d)orhavethemistake
for vacant possession. the defendants in their defence argued that since the plaintiffhad notice of rectified. The case of Rwamutaliri v Kanrono't provides a good illustration of a situation
their unregistered lease agreement he rvas bound by it in equity. It was held that s.145 specifically
prohibits the application of t'he rules of equity; consequently. though at the time of purchase the 16 cs No
2 of l9?3: U9771 HcB I87 (rnrcporred).
plaintiffwas aware of tlre unregistered lease agreernent. he was not bound by it.'r rt HisHonourborrowedtllistermfromthc(enyaRegistrationofTittesAct(cttp281),dcfinitionoffraudin
s. 2 thcrcof.
3t UgandaPostandTelecommunicationsvAKl[L,.larD,aCANo36ol 1995(unreporled).
r2 Mcgarry and Wade, The Latl o/Real Property (5h cd. Stevcns & Sons. London, 1984), pp. 14849. 't Sec also Management Carmittee of Rushasha Prinrary School v Nkorenta CA MKA l1 of 1993
(unrcpo(cd);.lrt tlrc Mauer of JP Ruzigona MSC No 48 of 1976; (1977) HCB 93 (unrcportcd).
r! Thc expression 'equitablc lraud' or 'constructivc fraud' is sometimes uscd to describc fraud imputcd .^
" Sce, for cxamp)c, ScwanS'ana v Marlin Alil-er CA No 4 of 1990 (unreportcd); tutakereri Univusity v St
merely on the basis olnotice, see lssees Conrpany Ltd v l'lere Roihi [905] AC 176, p. 210. Mark Educallo't Cailre and another CS No 378 ol 1996. Comparc tlitlh Hotel International Ltd v Thc
11 (1956-57) 8 IILR 99. AdministratorofthcEstateofthclateRobertKavurnaCANo3Toflgg5(unrcportcd).
,^
" See also Kyazz e v Enrice Busingte CA No l3 of lg90 (rnreported). Comparc this casc rvith Uganda Posl " Sce also s. 184 (c), RTA.ln Sevarryana v Martin Atikt CA No 4 of lgg0 (unrcportcd), thc plainti{I's
and Teleconrnrunications v AKlr,[ Ltilaoa CA No 36 of 1995 (unrcportcd); Iv[anagement Comntiltec ol nction failed on technical srounds.
Rushasha Pimary School v Nkorenta C.A. MKA 1l/1993 (unrcportcd). " (1978) HCB 3ro (rnrcpoied).
 ?s ll Regrstratrott ofTttles 'l 9
78 Princrples of Land Law m Uganda
,r"ai. follows' Thc
contemplated by the provision. In that case, the defendant and the plaintifforvned adjoining v Ranching ancl Co-operatit,e Society lrd.69 The facs of the case lvere as
Ku
dbyl qnnellants were among a nurnber of psople who settled on the suit land in 1933. In 196l the
aintitr pieces of land under customary tenure. Tire defendant. with a view to bringing his land under the
regi;tered as proprietors of the subject land under tJ'e Kenya Registration of
le was Act lud it surveyed. but in the process the suweyors inadvertently includect land that belonged to ,JrioJ."o were
proceedings against the
rments rhe ptaintiff. The facts are not very clear. but it appears that before the defendant's land was i'i"riu l*pZ8l). Soon after tlreiriegistration. 0)ey,conunenced ejection possession. The trial
lire appellants claimed title ovcr the land on the basis of adverse
registered the plaintifl successfully sugd the defendant for encroachmenl. Howeverr when the uppAfun
:ndant
€rrificate oftitle rvas issued to 0re defendant it included the land clainred by dre plaintiff. The latter i,iiee "
st uck our thiir defence on rhe ground that the certificate of title
rvas conclusive evidence of
that he
rd was commenced these proceedings under s. 185 seeking an order frorn tlre registrar to cancel the ifr.?..pona*6'title. lnanycase,accordilgtothctrialjudge.thepcriodofadversepossession
as proprietors.
rvere registered
lre first defendant's certificate in so far as it atreaed tlrc plaintiffs land. The plaintifbased his claim on the u*ui*i ,ir. r.tpondens strould be calculated frorn I 96 I lvhen they
linritationPeriodbegan to runagainst
calier encroaclunentjudgenrent in his favour against the defendant. The application was dismissed b?.pp."f t"&KenyanCourtof Appeal. itlvas lreldtlutthe
frolr appellants begau to squat on the land and not the date of
gndant oo technical grounds. It is subrnitted that the appropriate @urse of action tvould luve been for the ir. r"lp""A*ts the date tlrat the
ny the plaintifftoinstitutefreshproceedingsforejectmentunders. 18{(d)ReglslrctionofTitles.lctontl'e Irgiruitioooftherespondents'title. Accordingly,theappellantshadbceninadversepossessiotl
merely gror:nd of wrong description of boundaries or parcel of land, coupled rvith au application for foirnore ttu,, tt rapisite limitation period. Platt AJA said that' in his vi$v:
"
m over cacellation under s. 185. au absolutc a-nd indqtlasiblc title. to suclt att exterlt that he
[T]he owner of rcgistcrcd land acquires
id that It should be noted that the scope of this exception to inddeasibility is lirdted. Section 6l states '.[hc adverse possessor stoutly
) cau imrncdiatcly put any squattoi or lrcsPasssr ot'f ttle lalld ...
,istered 'har the e\ception does not apply ifthe land is tranderredtoa bonafide purcluser forvalue. Thus. por*$.r ttrc tand, uut lie has not thc slightcst irtterest utttl thc hvellth 1'ear has been conrpleted'
0I OVer ifbythe tinre the action is brought, the land is already transferred and registered in the narne ofan _ a i.lo* ho.merges as the owncr, and horveier absolute aud indefcasiblo thc titlc is, it is lost
forever'.7o

t's title iumocent purchaser for value, tlrc latter acquires an indcfgasible.title.6'!
in land in their orvn
on ofa This exception to indefeasibility makes it iurperative for potential dealers
ttt Pttblic rights ofway ancl easenrcnts possible As the above case indicates' iftlte
sed tlr int rart to physically inspect the land for squatters.
Hlic riglrts of rvay and easeurents acquired by enjoynrent or user or sut,sisting over or upon or ,qrutt.r, lnve Ueen in possession for ttlore than trvelve years, titlc of the proprietor rvould be
&rting registered land constitute an exception to indefeasibility under s. 6L, Registration of extinguished, In other words, the land rvould not be uorth buying. Ifthe period is less tlun twelve
Wdes Act. A public right of way is a dedication to the public of the occupation of the surface land yrrr"tfn proprietor or his or her suQcessor in title has the balance ofthe period within whiclt to
&r the purpose of passing and re-passing.6] An easernent, on the othlr hand, is a riglrt over iject them othenvise the title would be extinguished'
'pnet(I
tuatica reaber's land for the benefit of solne other land.6' An easernent may be acquired by express or
maybc ialriedgantorbyprescription. Unders.62ofthe.RegislratiottofTitlesAcr.theregistrarisobliged (vii) Interest of any tenant of land
prevails over the
;uppc Dfidorse on the certificate any subsisting easernent which appears to have been created by deed b..tion Ot staGs tirat the inierest of any tenant whose possession is not adverse
his her ilterest is not entered as an encumbrance on
latterb nrrriting. but there is no obligation to endorse on the certificate an easement acquired by title ofa registered proprietor even though or
under the tenanq'
:offf. lcscription or by implied grant or reservation. It is thought that the effect of the exception is that tlrc RegistJr Book. The effect ofthe cxception is that the possessor's clairn
registered proprietor even though the tenanq' is not
thploc aregistered proprietor takes title subject to any easernent and public right ofway,6r rvhich has not ug..rri.irt p..rails over rvlionrsoever is the
over the title
sd fritl hlo othenvise erlinguished even though the same is not endorsed on the certilicate of title.6 ,JgistereA For exanple, tlre interest of a'larvfrrl' or 'bonaf tle' oocupant lvouldprevail
r's prir oithe registered proprietor u[der this provision.Tt Also in Ugada Post attd Teleconmunications
pi)Adverse possessior v AKM lunayaii wis held that the respondent's registered leasehold
was subject to the appellant's
er the lirri tatiott Act (cap 70) if a landowner does not eject or cornurence proceedings against title acquired by possessiou tvith the consent ofthe landlord prior to the leasehold'?!
uinruder in adverse possession rvithin a period of tu'elve years. tlre lalldoryner effectively loses In the Austraiiafl State of Mctoria earlier cases interpreting an identical provision construed
&lrrberlandtotheintruder.6T Byoperationoflawthelatterbeconrestlreowneroftheland. The .tenant
in possession' as limited to a tenant who was in possessiott for a term not erceeding three
uiusrirc of adverse possession applies to land registered under the Registration of Titles Act.a years. The reason was Urat the courts fslt urat the object ofthe provisron was to protectinterests
sr-ira 61 provides that title acquired by adverse possession prwails over the title ofthe registered arising frour short-term tenancies. rvirich were not registrable under the Act.?' Later cases. ho*ever,
ilmprietor. A good illustration is provided by a Kenyan case of Kisee Maweu and others gre i*id.r inte{pretation ofthe proviso. For e;iarnple, inSandhurstllutual Pennanent Investnrent
-Building
SocietyT Gissingll a registered proprietor sought to eject the defendant who had been
s For a good itlustration sce Westem Australia Fresh Food & Ice Co v Freecc,nr I WAR 22. let in pisessiou by the previous registered proprietor under a contract of sale. It was held that the
* Habmbi Mrs E) & another v Puran Singh Ghana & anoher [1962] EA 331.[90a] defendant's possession of the land as a 'tenant' together with an option to purchase the Iand
a For dctailed discussion of casenrcnts, scc Chapter 8.
s llahtnbi (lilrs E) & anoher y Puran Stugh Ghana & another [1962) EA 33 I . Sec also s. 72( I ) of th€
Iaad Act,1998, which stales that ell land shall bo subjcct to pubhc rights olwoy tlut wcrc ill existcnco at "10 (1982) I !3.R746.
t& timc tho Act camc into cffcct. Alt public righs of way aro vcstcd in the govcnrmont on bshalf ol the lbid,p.752.
t?sl puUrc.
?r Secdcfinitionofthctcmr'lawful occupant'and'bonatideoccuparlt'.s.30.LatdAct 1998' Inar)yc{se.
tdt
' t'bis vicw is bascd on Aushalian authoritics, scc cg James v Stzvensor [ 893] AC 162; Ncbon v Hughcs u dixusscd bclorv, such tenancy corrtitutes an cxception to irrdetiasibiliry by virtuc ol lhe Lartd Act'
t, Ceyo f of lgg5jurueprted;, This casc rvas, in our vicru wrougly dccided on tho basis olgorrcral law
il917l VLR 22? ; Di Masi v Pirontalli [ 980] WAR 57 (cf Austalian Hi-I'i Publications Pty Ltd v frehl , .'
itg?gl 2 NswbR 619). r:'t i ' principlcs.
cited &u,d/, urst llultrr.l Pernnncnt Int'esnrcnt Buildmg
'- Sctrbns6andlT. Sccc.g,,Nan$ahrKiltuvEfulaintuKamiraCANo26oflgT3;(1975)HCB22l. " ii, ig" C"I. ert v Tatefugus 8 Augustp. 186?,
Socrery v Gissrag(1889) l5 WR 329.
330.
' Scction ?0 stiputatcs thc plocedurc for registration of a title acquired by adversc posscssion- sec gcncrally
(1889)15vtI'329
Fl.tr7,RTA. "
 80 Principles of Land Law in Uganda
Registration ofTitles

constittted an interest, ivhich prevailed against tlre clairn ofindefeasibilitv oftitle ofthe prcprietor.
provisio& the rcgistrar is qowed b conect errors and supply omissions in the register
notwithstanding that the enolmbrance was not recorded on the register book. Highnboth bJ said
and the certificate of title. The seaioa provides that where a certificate of title
that:75
misdescription cfland orboundarymif itwasvmngty or illegally obtained or retained, the
[T]cnant must be deemed to include it lesst cvcry tenant who is in actual occupation, and holds is ernpowered to demand whsmever has it to return it for correction or canc€llation. If a
under some landlord, and that evcry intcrcst in thc land ofsuch a terrant whiclr grows ogt of, and ordered to deliver up a certificate refoses or ignores the order, the registrar may dispense
is not discoverablc from, his right to continue in occupation as a tenant, is protected by thc tcrms production and amend the registry and- where necessary issue a qpecial certificate without
ofthis provision against thc claims ofn proprictor under a ccrtificatc oflitlc. to the distria larrd tribmal or courtn Honsrer, tlre registrar is required to give a fair hearing to
party likely to be afeaed by his or her decision A person aggrieved by the registrar's
Because ofthis exception a person who deals in land rvithout plrysical inspection ofthe land to
entrtled to appeal to the district land tn'bmal within a period of sixty days. Where a
ascertain whether another person is in possession does so at his or her own peril.?6 It should
be title is cancelled the person in whose favour it is cancelled is prohibited from lransferring the
stressed that for this exception to apply the person must be larrdtllv in possession as a tenant and
until the appeal period expires or pending tlre results ofthe appeal against the registrar's
not as a squatter.TT
The foregoing provision appears to give the regis8ar exlensive powers. The powers are
(viii) Lease, licence or other authority granted by the ninister identical with the situations excepted from indefeasibility in ss. 6l and 184 ofthe
A lease, licence or other authority gmnted by tlre rninister or a government department or office or fitles Act. They are distinct from the power ofthe courts to cancel entries under s. 185
pnblic authority in rispect of which uo provisiorl for registration iszarle. constihrtes an overriding Registralion ofTitlesAct. The registrarexercises his or her powers under ss.92 ofthe Land
right over the land afected. For example. under tJteRoadAc, (cap 345). the minister is givenpowei his or her own account without resort to the court. For example, rvhere the registrar
to declare any land a road reserve, and. where land is so reserv'ed, conslruction ofbuildings and issues a certificate oftitle to another, he or she could recall and cancel the certificate following
other structures in or within a prescribed distance thereofis prohibited.'s Under the sarne Act, procedure prescribed in the section.ta Horvevet it is not clear whether the registrar is
porver is given to the Road Authorilv to dig and take arvay materials required for thc construction exercise these powers against a registered proprietor who is a bona fide purchaser for value.
of roads from any part of a road resen e rvithout paynent to anyone.Te Since there is no proyision example, suppose X illegally obtains a certificate of title ofcertain land. Before the registrar
for the registration of road resen'es under the Registralion ofTittes Act, the ministerial power the certificate X transfers the land to Y. an innocent purchaser for value, and Y is
overrides a registered title. proprietor ofthe subject land. Can the registrar cancel Y's certificate under s. 92 ofthe,Lard
On the face of the provision, it would seem that the registrar could do so. The onus rvould
(x) Unpaid rates, taxes and charges on Y to appeal to the district land tribunal against the decision on the ground ofthe
Section6l oftheRegistrationofTitles.4ctstatesthataregisteredproprietortakesthelandsubject indcfeasibility.
to any outstanding rates or charges rvhich. without reference to tlte provisions ofth e Registratiotl Ifthe above interpretation is riglrt, then section 92 makes drastic changes to the operation
ofTitlesAct,aredeclaredundera written lalvtobechargeableon the land infavour oftltegovernment Torrens .System in Uganda.rr The provision may be justified on the ground that it enables
or a publicbody. For example. s. 95(1) of0re Water Statute,lg95, provides that rates, charges or fees registrar to correct promptly errors in the register and to deal with cases rvhere he or she
lwied under the Act and any interest and penalty pal,able thereon. is a charge against the land in that title was wrongfully obtained. This may be particularly important, for exalnple. in the
respect of which the rates, charges or fees are levied. Thus, where after buying a house the new fraud where the rightful owner is unable. due to financial reasons, to protect his or her interest.
orvner discovers that there are outstanding water charges incurred by the previous owner. the nelv the other hand, the power to correct or cancel entries in the register could undennine the
owner should ensure that the charges are paid, othenvise the water authority might cause the land of indefeasibility. Moreover, the exercise of this power rnay expose the registrar's office to
to be sold in order to recover the moneys due to it. Obviously, the orvner could recoverJhe money challenge in the courts by aggrieved interested persons. UnIess the registrar exercises the
from the person wlto rvas primarily responsible, but as far as the National Water and Serverage in only the most obvious cases of fraud or wrongdoing the registrar will find himself or
Corporation is concerned the charges ari attached to the land. Searchingthe regi&if$ot u,itt not constantly dragged to court at the taxpayer's expense.
of conrse reveal outstanding debts to the corporation.e
O) Overridin g statutory exceptions to indefeasibility
(x) Registrarb poluers as an erception to indefeasibility Statutory provisions operating outside the Regl stration ofTitles Act nat supersede the
Theregistraris givencertainporvers, whichwithinlimits constitute furtherexceptionto the principle of indefeasibility. This may be done by the creation of rights that are enforceable
of indefeasibilityof title. Theporversaregrantedunders.g2of theLondAct l998.tt Underthis

r? Prcviously, wherc thc pcrson with thc ccrtificatc oftitlc rct'used or neglcctcd to surrcndcr it, thc
lotd,p. J5t. could not canccl the ccrtificate wilhout a court ordcr s. 69. RZ4. Scc also Galare v Parkash Kaur
75 See, c.g., Uganda Post and Telecomnunicationt vAKl,{ Lutaaya, xpra. oficrs HCCS 106 of 1995 (unrcpo(cd).
"7! For rights of squatters sec 'adverse posscssion' in Chapter 4. !3 Section 92(1 1), Land Act, 1998
Sec ss. 3 and 6.
7e SectionT. Itispossiblethntthisprovisionviolatesarticle26oftheconstitution,whichprohibittBkingof 'a ln Rurangaranga v Mbarara Municipal Council and o/rcrs CA No l0 of 1996 (rnreportcd),
CJ, and Karokora JSC, cxprcsscd a viant, obiter dichmr, that undcr sr 69, R7?4, thc Rcgistrar had
private property without contpensation. cancel a certificate of titlc, which was friudulcntly or wongly obtained or rctaincd.
!o For a good ilfustration see Soilh-Easrera Drainage Board v Savhgs Bank ofsouth Australia (1939) 62 !5 In lssets Company Ltd v Mtc Roihi U9051 AC 176 al 194-195, thc Privy Council obscrvcd thrt
CLR 603. powcrs of the Rcgistrar under the Ncrv Zcaland provision analogous to s. 61, RTA, u,crs 'significant
tt Origilrally, thc powcrs wcre grantcd under ss. 69 and 178 (a), RTA. Both tllcse provisions wcrc rcpealed
extcnsive'. Ncverthcless, thc Board held that those powers could not be cxcrciscd to thc prcjudicc
by s. 97 of tbe land Act, 1998.
bona fidc purohaser for valuc. Sec also Frasgr v Walk* 11961l AC 569, pp. 585-86.

i...

H
 {rihs sr 82 Principles of Land Law in Uganda Regsration ofntles 83

registered proprietor or by destructron ofexisting registered interests. Whether or not a particular or the basis of their inherent equiuble jurisdiction.e2 The judicial power to intervene without
statutory provision overrides the principle of indefeasibility is a matter of statutory interpretatiou. statutory satrction was espoused by the Privy council in Fraser v walker'.et
Some statutes contain express overriding provisions. Forexample,theAccess to Soads Act. 1969,
Thcir lordships havo acccptcd thc gcnoral principle that rcgistratron uuder thc ... [Tonens Acts]
If a person s. 3 thereofempowers a landowner who has no access to a public road, to apply for a court order for
confers upon a rcgistcrcd proprictor a title to thc intercst in rcsPert ofwhlch hc is registered whioh
rnse with a right ofway over another's land. Ifthe application is granted, the right ofway is registrable in the
is elso inunune from advcrsc olaims. other than thoso specifically cxscpted. ht doing so they rvtsh
register book against the land afiected notwithstanding any inconsistence with the provisions of to makc it clcar that this principlc in no way dcnies tho right of a plaintiffto bring agairrst a
aring to tbe Re gi s tr a t i o n ol Ti t I e s A ct.6 rcgistered propriclor a claim in posonon founded in law or in cquity, for such rclief as a coun
sdecision ln other statutesthe legislative intentionto ovenide the provisions oftleRegistration ofTitles acting in Pcrsonarl nuy 8rant.
)ertificate ,{ct is implied by application of ordinary principles of statutory interpretation.rT One of these
ingthe principles is tlnt where provisions ofa later statute are inconsistent with tlrose ofan earlier Act, the Spry JA, in theEastAfrican Court of Appeal, expressed siolilarviews in,4doniav Mutekanga'.e1
fonuer prevails.s lf tlre later Act contains plain language that indicates that it was intended to
wers are Although thc conccpt of thc sanctity of thc rcgistcr runs through tho Act, it is clear that the
apply to registered land, then it must be given its plain ureaning .'e T\e Land Act, 1998. is a typical
legislaturo intcndcd to rcscrvc to thc High Court the powcr to cnforcc fiduciary obligatrons ...
gistration example ofsuch legislation. For exarnple, s. 32(2) provides tlut a tenant by occupancy is deerned to
;. 185 of beatenantoftheregisteredproprietor. Section34(9)providesthatwhereatenantbyoccupancyis Aclainr inpersonatnisapersonalobligationoflegalorequitablenatureassutredbyaregistered
LandA proprietor before or affer registration ofhis or hertitle. Unlike a right r)r rear, which is enforceable
gnnted a certificate ofoccupancy the registrar is required to noti& it as an encurnbrance on the )
re.levant certificate of title of the mailo owner. But s. 32(9) states that for'the avoidance of doubt' ieainst the whole world, a right in personam is only enforceable against a Person who was a Party
bllowing trk sifn c€rtiI'rcateofoccupancydoes notprejudicethe security oftenure ofa tenantby occupancy 3 tiUre obfigation.es For example, if a proprietor enters into an enforceable contmct to sell his or her
is entitled m rer t1s trsL In our view the Iatter provision rneans tlut a proprietor's title remairs subject to the land, the purchaser by.virtue ofthg contract acquires an equitable interest in the land.e6 That
rr value. ri.ghs ofa tenant by occupanry whether or not those rights are endorsed on the ccrtiJicate oftitle. interest is a rightinpersonamas against theproprietor. Iftheproprietor refuses to transferthe titie
(Iearly the intention of the provision is to override the principte of indefqrsibility. Similarly, it is to the purchaser, the court by order of specific perfomunce can force him or her to transfer it in
registered mght thst the provisions of s. 40 of the Landlc( which prohibittransrctions affecting family accordance with the contract.'7 The courts pierce the veil of indefeasibility to prevent the proprietor
lmd except with the coruent of relevant farnily rnernbers, constitute an exception to indefeasibility. from avoiding the consequences ofhis or her orvn act.et
rould Ib provision renders any transaction entered into without the requisite consent null and void.r
Ib intention ofthe legislature to protect family land would be defeated iftransactions entered into Protection of unregistered interests by caveat
ui&ol the requisite consentwere heldvalid under the principle of indefeasibility of title.'' The registration of an interest provides the best security against the principle of rndefeasibility.
eration Otter o<arnples ofoverriding statutory provisions are found in statutes that control land use to However, there may be circumstances where a person claiming titte is unable to register it, for
t enables example, because the proprietor has refused to sign the appropriate instrument of Ea:rsf,er or to
, ct enyironmentally sensitive arqu. The statutes include the Fore st Act (cap 246), National
fuirunental Statute,1995; and the Uganda lilildlife Statute, 1996. Se,ction 41 of lte LandAct lrand over the certificate of title to enable registration. The Registratron of Titles Act mak*
inthe furyuscs atr obligation on any landolvner or occupier of land to manage and utilise the land in provision for lodging a caveat for protection ofunregistered claims to land. A caveat operates as a
r:ar:nce with lhese statr"rtes and any other written law. strtutory injunction to the registrar to prevent registration ofany dealings which might affect the
itrterest, the subject ofthe caveat. Lodging a caveat serves as all interiDr measure, usually, pending
ce to &ftiel inroe ds - r ights in p erso nant judicial determination ofthe caveator's claim over the lard. ln Kazzora v Rukuba, the Supreme
es the m[ 6f oftheRegistrationofTltlesActwerecorostrued literally. therewouldbe no room for further Cou( held that the doctrine of/ is pendens (whereby a pending suit affecting land and registered in
;elf or rn?rlnq to the principle of indefeasibility except as provided therein. However. the courts have the register ofpending actions acts as a bar to the registration ofdealings affecting that land until
rubp deterred by the section from rnaking additional inroads to the principle of indefeasibility the action is disposed ofl does not apply in Uganda.s Accordlngly, the only way to protect an

:the
ble
* Sroiso6,,{ccessloRoadsAcr. Sccalsos. lQ)ofthcExproprialedPropertiesAcr,Nogof 1982, lvtrich
o.nrffirc eoy titlo to land to which thc Act applies 'notwitlrstanding thc provisions of any writtcn law ,2
gn*aiog tbc confening oftitlc to land'. For discussion ofthis provision scc Ciokaldas Laxnidas Tanna Thc High Court is cntitlcd and bound to apply thc doctrines of cqurty where uot inconsistent wilh written
law and as far as tho circunrstanccs ofthc country allolv. see s. 16 (2)(c)(i),Judicoture Statule,1996.
*&tMary Murywtza Civil Appeal No. 12 of 1992. Suprcure Court [994-5]; HCB 53:, lvlakererc t, [967] I AC 569 at 585.
,fuw*:s Istl v Attontey General CA No 36 of I 996. See also Chaptcr 10.
h.LtElr t Minsur o/ Mhtes and anoht U9631 1 All ER 109 at I13. thc Priry Council held witli " [970] EA429 at433.
'r Mcgarry & Wadc,Modern Law o/Reol Proper4', p. 113.
-fr** o thc New Zcaland Torrcus Act. that it was not neccssary that therc should bc a direct provision e. KatarikaveyKatwirenuandarotJrerCsNo2oflg13:(1977)HCBL}'lilsnrcilJo[erAhbhaiandot]ters
rrtcdl
rr'*Eg tbc provisions of the Act. 'It is sufticicnt if this is proper impircation fronr thc tcrms of thc
ffiE stlErtc'. Karit and onother CA No 53 ol 1995 (unrcported).
v Nandala Harlivan
ar hd SouzaFigueiredo&CoLtdvMooritrgsHotelCoLld[1960]EA926',lsnailJaferAlibhaiandot]rcrst'
Ilii& "iis.ltila v Musoke CA No 12 of 1985. '1
%5 c 4 DrainageBoardvSovingsBot*ofSordtAustralia (1939) 62 CLR6}3'.Trar,hrtoNomiltees Nandala Harjiran Karia and anoher CA No 53 of 1995 (rnroportcd).
tr, Scc for cxasr plc, B ohr an d o to tlrcr v N i co lay ond otlers (l 988) 1 64 CLR 604.
mtfuerE O9?3) i29 CLR l. Sec also Selrlrt Nalimo v .\,/rrsolie CA No 12 oi 1985. .. ::^ -". 'i , -
tt
-e'f.- 4Ct1) . : :i '' " 'i .'
' CA No 13 of 1992 (ruucportcd). Scc also .V7r,h v il hsisi Nyarui HCCS No (H34 of I 996 (urtrcported).
of the Latrd Act.
,@lhre uguulent applies to s.4l of the.L(rrrdlcr, wliich prohibits non-citizuns of Uganda from holding
fif dE, rlo'l lcasehold.
84 Principles of Land Law h Uganda Registration of Ti tle,s 8

unregistered claim over rcgistered land is either to lodge a caveat or seek a court injunction.rm A of an option to purchase th M
&e3 Et cm that the registered proprietor adrnits that
caveat mav also serve as notice to lhe caveateeror and the public ofthe nature ofthe claim the caveator has the qstiorl Fffi ffi
tb cr k titte" It simply meais that the proprietor's title
caveator has over the land.ro: subject to the carreator's imere* +ecificd ia fte cartat prcvided lhat the clainr is proved.tt'
Acaveatnraybelodgedb"vtheregistrarorbyapri\atepcrson. SectionlT8O)oftheRegistranon
ofntle,t.Act empolvers the registrarto lodgea ca1€at. on behalfofthe go\ernlnent ora personwho Duration of a c&rai
is under disability or absent from the country to prohibit registration ofany transaction atreaing ln Olojo v Rajab.tts Tsekooko J yas criti<al of a car-cat that lvas lodged for tlventy years.
land that belongs to or appears to belong to the governrnent or such person. The provision also Honour observed hat thc caveat sctrerne nder seaions 148-150. It eqltstration of Titles AcL
enrpowers the registrar to lodge a caveat to prevent registration ofany dealings in any land where lneant as a temporary measure &rd nfi 'to provide caveators with everlasting protection in
there appears to be a misdescription of land or boundary ot fraud. A private person mav lodge a sense that once a caveat is lodged the carreator should be lulled into sleeping over ltis
caveat against bringing land under thc Act (s. 22): against granting an application to rectiry a interests perpetually.' To use a cat'eat in that manner was. in his lierv. an abuse ofthe
bonndaryorareaofland(s. 169):againstregisteringatitlebasedonadversepossession(s85)iand scherne. With respec! his Honour's criticism rvas justified The caveat scheme is not supposed
agrinst registration ofany dcaling or transfer ofan estate or interest in land in rvhich he or she has be a cheap substitute for registration oftitles. Unfortunately, however. there is not a provision
an interest (s. 148). the Act that prescribes a tirne limit after lvhich a caveat ceases to be valid. Under the Act. a caved
ceascstobeefectiveonlywhereitisrvithdra*nby'thecaveator.116 lapsesincertainsituations
To lodge a cal,eat a person lnust have a caveatable interest over the land.ro3 A caveatable
interest has been defined in several Australian cases to mean a claim of a proprietary or quasi- is revoked by a court.
proprietarynatureinthepartiorlarlaud.ra Anexarnpleofacaveatableinterestincludesaclairnof Section 149(2) of the Registrotion ofTitles lct provides that a caveat lodged against
agranteeunderal,ill:aclairnunderaconlractofsale.rd lease.16 mortgage:ro? optiontopuchase;t6 proprietortti automatically lapses if the proprietor applies for its removal.rrE unless the i
andaclaimbasedonadversepossession. Clainrsthathavebeenlreldnottobecaveatableinclude commences legal Proceedings within sixty days of notification of the application or applies to ri
re 1
a deserted rvife's clairn over the rnatrirnonial home based on occupation,rm a claim by a mere forextension oftlre cavcat before erpiration of tltc sirty days.t Where the caveator seeks extensiorl .,
the court at its discretion may extend thc caveat for any duration as it sees fit on condition that thc :r
licensee;r!0 a claim by a slureholder in land orvned by a company mder liquidation;rrr and a claim ,)
basedonaninconclusivecontractofsale.r12 Acornmonfactorrunningthroughalltheexamplesof caveator undertakes to pay damages suffered by any person as a result ofdelay in registering their
non-caveatable claims is that. under thc general law. none ofthe clairns. even ifproven, lvould interest.r?0 Once a caveat lapses it cannot be rene\r'ed by a person or on behalf of a person rvlto
corlstitutc a proprietarv interest in land. lodged it in respcct of the salne estate or interest.r2l
Section 149(1)of theRegistration ofTitles Acrempowers a court at any time to revoke a caveal
Once a caveat is in place, the registrar is prohibited frorn registering any transaction affecting
at the instance of a caveatee. The section provides that a proprietor or any person prejudicialS J
the land except as espressed'in the caveat or with the consent ofthe person who lodged the
affected by a cavcatt22 may cause the caveator to be sutnmoned before a court to show cause
caveat.rrr It should be stressed tlut lodging a caveat does not I'alidate or prove the caveator's
titlc. It simply maintains a status quo by prsventing registration of rival clairns (rvhich otherwise the caveat should not be removed. If the caveator fails to sholv reasonable cause the court
u'ould defeat the caveator's clairn under the principle ofindefeasibility) until the courts determine revokethecaveat. Forexample.inEo.yesvGatlure.t2\ thecourtrevokedacaveatbecauseit
not properly identiry the interest claimcd as prescribed by the relevant stattltor.Y provisions. In
the caveator's clainr. For example, the ftct that a transfer is registered subiect to a caveator's claim
same case. Newbold P expressed a viel that the courts lvould revoke a caveat if it includes
over wlfch the cayeator had no clairn. His Honour reasoned that such a cavcat is fundatnentally
too l:lKatarikawerKatwirenm andanotherCSNo2of 1973; U977]HCB l8T.SsekandiJ.heldthattaking inegular to the lvhole basis on lvhich caveats are cntered and the defect cannot be cured by .t
posscssion oftitlc rrflvcnt
deeds by a purchaser is insulficicnt to protect an unrcgistcrcd iutcrcst unlcas amendment of the caveat.r2t A caveat will also be retnoved if the caveator has no
is lodged. ctaim. r5 In Australia. if a caveat is properly lodged and the caveator has a caveatable interest,
tor A 'cavcator' is thc person who lodgcs thc cavcat, and a 'caveatee' is the person agBinst whda dv;Bt is
lodged. Usually thc registered proprictor is lhe caveatee. but the ten'n could also bc used to rctbr to a rival tti Leros Pty Ltd v Terora Ptt, Lld & another (7992) 106 ALR 595.
clairnant against rvhom a caveat is lodged. rrr CS No 1241/86 (unrcported).
102 Bot'es v Gathure
[1969] EA -385, per Spry JA, at 388. rr' Scction l48,RTA.
l0r l,nmasrsl ond otlrcrs v Ntobazi CS No 887 of 1988. rD The provision appenrs to bc limited to a proprictor arld not spply to other cavcatees. c.g. a Pcrson
r0{ Sec,e.g..i4aricipalDistrtcto/ConcordvColcs(1906)3CLR96.InKrqer&krpervKanvzstConstntctiott
to rtgister a mortgage. Also provision docs not apply to cavcats lodged by bcneficinries undcr a will or
PN Ltd U9901 3 WAR 419 it rvas held that a pcrson bas a caveatable iutcrcst in all cases rvherc an the rcgistrar.
injunction could bc issued to prevent thc proprietor liom metnwhile dealing with the land. ttr ht Njuki t Mnosi N-r,anzi HCCS No 0434 of 1996. Scbrrtirrdc J held tlral rvhere the rcgistcrcd
t0' Fenrandes v Horstein 11963) 4 FLR 355. was dcad thc adurinistrator olthc dcccased's cshte or a pcrson rvlro had purchascd the Iand durirrg his
to6 Souzn Figeiredo & Co Ltd v lvloonngs Hotel Co Lrd
[ 960] EA 926. hcr lifctimc could apply urrder s. 149(2) for rcnroval ofa cavcat.
ro? Sees.138.RTA. I'' Sec s. 149 (3).
tos tro
Ranrit v Rauonsi [1969] EA 309 htKlndirJunruetnl vAbdtilJtmni./arr)rcs No951 011990;(1988-90)IICB 154(unrcportcd)
tDe DicksortvMcll4tinnie [958] SR(NSW) 179. Howcvcr, ttnders.40(7)of thclandAct. a spousc and application to cxtcnd I cavcflt wBs rejccted bccausc thcrc s,ns no cvidcnce tltat thc proprictor
(tnlstoc)
depcndcnt clrildrcn of a landou,ner havc a right to lodge a cavcat agninst thc t'amily land. about to denl with thc land.
tto La ltlartina v Penn-v [1968] SASR 4 l. Dr Scction 149 (3). Sec. e.g.,Kazzorav Rnhtbo CANo 1-1 o11992.
II I In Rc a Cavear: Ex P The Canotsie Pasroral Co Ltd |931] SASR 502. rt' Comparc with s. 149(2). abovc.
tt? Gentich v l.{oitland Holdhry Pl.l,, Ltd U982j Qd R 58.
'rrr '1r [1969JEA335.
Scction l5O. RZ.{. but this frovisiorr docs not appl,v to a caverrt lodged by a bcncficiary under a Mll or r2r IDrdat389-90.
setllrrnent. s. 153. tls i,{unicipal D i.rlt'i c t o/ Con cord v Colc's ( I 906) 3 CLR 96'
 Regisntthon ofTrtlcs 8'l
,ar,I"n ,, &6 Principles ofland Law m Uganda

The effect of s. lg4 was considered by the Suprerne

Corirt in fi e Executnx.of tlte Estate of rhe
ts tlrat the courts would be reluctant to revoke it. lt lns been held. in several cases. that the courts will not
order the removal ofa caveat in sulnrnary proceedings. under provisions corresponding witlt s. 149 larckbajukiraandanotheryShalitu.ts! lntlutcase,aleaselvasternrhratedbyforfeitureanda
or'$title is ttre lesee (appellant) souglit judicial relief
>ved.tra of tbe Registration ofTitles Acr. unless the caveator's claim to the estate or interest appears to be ,*nrry ** ooted register book'
on the lprytuelttf' because tire
rirhout any foundation. t26 ,gui*iforf.it*.. The Supierne Court.dismissed the application as tnisconceived
-ffgiration provision fora lessee to eject a lessor. ln delivering hisjudgement.
Unders. 15lAoftheRegistrationofTitlesAct, theregistrarisrequircdtorernovefrornthe ofntlesActrr;deno
years. His register book a caveat whiclr has beeu rvithdrawn or has lapsed under sections 148 and 149 Chief Justice Warnbuzi observed that:
rslcl, was cspectively, or where he or she is satisfied that tire nature oflhe interest or estate claittled has
tion in tlte ltsocmstomothstpara(b)of.'.[s18a]simplynreanstlratBlcssofrnaybringatraotiotrof
c:as€d to exist. It is submitted that the provision does not give the registrar independent powers cicctmcnt ogoi"t a lessco tuiro is in dctault rtorwithstandlrg that the Icssee is
protectcd "**o";J;i:lt'ia r, nty
s o remove caveatsl it urerely obliges hinr or her to 'clean up' the register. ;';ffi ;;A;i", of tltc te-*c. Thcrc is no provision lbr thc couvcrsc' " ' Accordtngll''
lhe caveat i.r.i. brinia. action in clectnlcut or recovcry olland agai'st
judgcnrcnt tho cB* oi. purportiug to
iupposed to E&ilityfor*rotlgful lodgement of a caveat
his lessor foU, unA.r:ony than as afoicsaid' irl s 184 in respect olrvltrch the productton
Acaveat lodged against dealing in land may cause financial loss to tire proprietor and other "asootlicr such sctioll. Thc exprcssioll 'arry rule of law
rrovision in of a oertificatc i, an ousotot" bar nnd cstoppel to auy
ct- a caveat EEEo'ns. This is particularly so lvhere the proprietor seeks to sell the land. Potential buyers nright or oquity to ttro oo,rirary notwithstandrng' 'rust irsvs bee' desigrcd to rulc out rcliel against
rtuations or Irdiscouraged frorn dealing in the land because they interpret. with sorncjustification, the caveat tbri'oiturc wlrcn r proprlctor has rc-cntcred'rl
registercd
roa rarning to stay away frorn the land. To deter abuse of the caveat scheure, the Act empowers
not expressly balred by s' 184' the cou( is
I against a &ecmrs to order compensation to be paid to the proprietor or any other person who suffers loss where an application is rnade for ejectrlent in a case
or an entry and to substilute another for
he caveatc i6 ay person who enters a caveat without a reasonable e.xcuse. Whether or not in a particular case - d;;;;;;i',L:oii." u* registrar to cancel a certificate

lies to court .ti:ntirt was lodged without a reasonable cause is a question-of fact to bc determined in the ilr3, InbynngoufnrirgitrorofTitles.trsitrvaslieldthatapersonlvhoobtainsajudgementfor
recoveryof landrnustr.Eko.orttorderiunders.
l85of the'RegtslratiottofTttles'4ct'fort]oe
+imssaoces of each case. The fact tirat the caveator had no caveatable interest does not property instead ofthe other person' Tlds
ion that redly mean that he or she had no reasonable grounds to enter the caveat.r!? Conversely, the reglstrar to entet f,it oi i"i*n
e as proprietor of the suit
.aooi.rluartial oraer' because it is nrade consequcnt upon recovery ofland.rrT
tering Ilq( rrnr the caveator has a caveatable rnterest does not by itself rnean tlut he or she had a order isknown ut u
person rmwrhle causc to lodge'a caveat.r!8
ComPensation
a person deprived ofan estate or intelest
tauf*< fsr deprivation of land seaion 186 oftheRegistration ofTitles)ctprwides that
>ke a in tlie certificate oftitle or ent$'
ffimhrrhe.Reglstration of [itles,rlct a person wrongfully deprived of his or her land rnay bring an in land in consequenc"e offrauO. error. o[lission or nrisdescription
qirtme nt and or for danrages against the person responsible. In an appropriate casq they . or in bringing land under the Act uray bring an action for conrpensation. The action for compensatlon
/ cause
p..son ,.ipontibl. fot tlre loss and or against the registrar' Tiie actron in
e court ry eho be entitled to compensation from the government. *oy U"Ui*Efrt agalrrsi o
frotlr auy actton the victitu tnal'har e
;cause it section lg6 i-s a special aclon. rvhich is separate and dillerent
atcorrunonlaw
;ions. In Iaw eiectnrent is the prirnary renredy available to a person who is u,rongilly dispossessed 1

Tlre term
.deprived' is not dc{ined anyrvhere in tlte Act. In the casc of8 resl*ar and another t
,cludes t *l rd
Under theRegistration ofTitlesAct, thereuredyofe3ectlnentislimitedbythe lyall and others.Bs tJre High Court of Australia deflned the tertu
rvitlt reference to the equivalent
dindefeasibility. Consistent with tltis priuciple s. l8-1 of theRegistration ofTitlesAct provisions that iiureant 'irrevocable' loss or loss by a superior title' Accordrng to this
statutory
le cued is no lollger.in a position to recover
proprietor against any action ofejectment except in circunutances stated in Oefmitiona persol is deprived ofhis orher land only ifhe or she
ry The circunutances include action by a lnortg,agee to eject a mortgagor ir event of tlre interest by appropriite tegat action. For exanrple. in that case, the appellants rvere not depnved
intercsL legal action tltel'
ofthe mortgage debt. Similarly. a lessor uray sue a lessee for ejectrnent in default oftheir land when it vras regi-stered in the narne oia rogue because by appropriate
of real. The action of ejecuuent iu these tlyo cases is based on breach of confact. fron hinr. Horvev'er. the appellants irrevocably lost tlletr land oDce
could luve recovered the la-nd
dprrent may also be brought against any proprietor whose title was acquired in any sold it to all innocent person who acquired a title superior to tlieirs.
the rogue
rtich fall within any one ofthe eNceptions to the principle ofindefeasibility.r'r loss of atr estate or interest
DJprivation. fo, pu.por., ofr. I 86. need not be a total or cornplete
his or her authority is
,soo s. 184 states that tle production of a certificate of title slull be held in in la'i. A proprietoi wiose land is encunrbered with a ruortgage rvithout
bc an absolute bar and estoppel to any action ofejecturent 'any rule oflarv or equity .deprived'oflandwithintherneaningoftlrcseoion. Forexaulple.inRegtstrarofTttlesvF-ranzon't'e
uwitfutanding.'t::

Ii;rtats S-vsten h.4ustralru. pp. 251 - 53

rD cA No o2 ol 1988 (unreportcd).
t KqryestConstnrcuott Pt1, Ltdll990l 3 WAR4t9.
rrr Seoalso;llnredFaroltattdonotlrcrvliirlonlrliaCSNo687of 1993(unrcportcd)'Also'lsselsContpatty
[1984] WAR 16.
W.The Law of Real Properq,-p. 105. Ltd v tvtere Roih,[i905] AC 176 at i95.
r3s Scction 185. AIso Re: Ilabib Ltthwrtttttr (1991) I{CB ?4 (unrcported); Shokatuli Abdulh Dlnlla v
ii.d- o( r€coyery ofland in this contcxt iucludcs cancollation olany intcrcst cntcrcdon thc
r mortgagc. lcasc ctc. scc Frassr y lthlker llL)671 I AC 569 at 5E3. Sadrudin ]uleralli CA No 32 of 1994 (unreported)'
13. Misc. C No ?A of 1911; (1980) HaB jq. S"" also .Lr Re; It'an lhrroka Misr: C No ttl of 1976
erd (c). For exanrplc.a pcrsou regislcrcd thlough lraud may bc cjcctcd uuder,s. 184(c)., -"
t, Edvdrd llpcrcse NsrDrrgo CSNo 364 of i993lS/rokanli.lhdilla Dhalla.:',
i-, (unrcported); (1980) HCB 27.
ttt lbid,
CA No 32 of I994 (unrcporled). Scc also discussion ol exccptions to rndcfcasibi.hN
ril [1971) 126 CLR 3?6. The dotailcd laots ofthis arc statsd abovo'
Ire (1975)l32CLR611.
So,rc judicial iuroads ou th€ coucept of indel'easibilrtr'.
 Regisnation ofTitles 89
oo rnnctptes oJ Land Ldte in Uganda

solicitor fraudulently rnortgaged his clients' land to a bank, and the rnortgage was registered theregistrarundertheequirzlentof r lgloftlBftegistrationofTittesilct'Tl'recourtreasonedthd
Torrcns system's dual objectives o
a rogue
T[e solicitor absconded with tlte money. It was held by the High Court of Australia that where a u ,Ji! i*..pr.tation of the prwision rryas consistent with the who sulfer loss due to the operatioo
tiif. that was secore and to compensate proprietors
mortgage is registered against a proprietor's land it constitutes deprivation of landbecause thetitle ir*ia. "
is lessby the arnount oftlte rnortgage than it wasbefore. Similarly, a rnortgagee is deprived ofhis or
her interest in land rvltere the mortgage is unlauftlly cancelled or where order ofpriority of the
mortgage is reversed rvithotrt his or her consent.
The action for cotnpensation under s.186 must be brought against the'urongdoer' orthe person
rvho is primarily responsible for the loss. Ifa person is deprived ofland as a result ofbringing the
land trnder the R egistrdtion of nflasla. the wrongdoer is the person rvho made the application to
bring the land under the Act or a person through whose error such land nas registered.rro Where
the deprivation is in consequence offraud. crror or rnisdescription. the l,rongdoer is the person
who acquired title through such fraud. error or misdescription. For example, if X fraudulently
transfers P's land to himselfand he is the registered proprietor, X is the r,vrongdoer and P is entitled
to sue him for compensation under s. 186 (a). X would still be liabte even rvhete he transfers the land
to TP. But no action for compensation can be brought against TP or any other person rvho is a
bona fide pxchaser for value. This is because ofthe principle ofindefeasibility under s. 6 I and s.
181 of the Registration of Titles Act. T\e latterprwision erpressly absolves a bonaf de proprietor
for value from any liability for damages suffered by a person ('P') deprived ofan estate or interest
in consequence offraud, error or misdescription.r{' Under s.186(a), a person deprived ofhis orher
estate or interest in land may claim compensation from the govemrnent but only if X, the wrongdoer.
is dead, bankrupt or has absconded from the court's jurisdiction.ra2 Where the government pays
compensation under this provision. it is ernpowered to recover the money from the wrongdoer. or
his or her estate. as a state debt.rrs
Action for compensation may also be brought against the governrnent under s.191 of the
Registration ofTitles Act. There are tlvo g?es ofaciions that tnay be brought under the section.
Firstly, an action may be instituted nhere a person suffers loss tltrouglt any ornission, mistake
or misfeasance of the registrar. In that case, the Registrar is the real defendant because it was
through his or her mistake that the loss 1\as sustained. For example, ifthe registrar ornits to enter a
caveat that is properly lodged as a result of rvhich a rival interest is registered. a claim for
colnpensation may be made under s. 19 1, Unlike s. 186. the person rvho nrffers loss need not be
deprivedofan estate orinterest in land tobe eligible toclaim under s,191. Forinstance. a guarantor
ofa mortgage who sufers loss due to the rcgistrar's ncgligence in registering a mortgagc. may sue
forconrpensationunders. lgleventhoughheorsheisnotdeprivedofaninterestinland.r'a-
Secondly, a person who s:fers loss as a result oftlte registration of another as proprietor may
bring an action for darnages against the registrar ifthe person is barred by the Act frolrefn-g foi
ejectment and tvhere the remedy for recovery ofdarnages 'as lterein provided' is inapplicable. In
Registrar ofTitlesv Franzon.tts the High Cotut of Australia liberatly interpreted a similar prwisionrr6
asgMng a person deprived ofland in consequence offraud a right to seek compensation from the
governmentrvherelers. 186oftheRe.eisrrationofTitle.sAcrisinapplicable. Forexample,inthat
case, action against the bank rvas barred by the Act because ofthe principle ofindefeasibilitt'. No
action could be brought against the rogue solicitor under the section since lte never acquired
ritle.r,7 Accordinglli the Higlr Court held that the plaintiffu'as entitled to claim compensation frorn

r{o Section 186 (a).

r{r Ior a good illustration see Regisuar o.fTitles v Franzon (1975) 132 CLR 61 l.
ta2 See cgArnour v P.nrith Projects P4' Ltd ll919l 1 NSWLR 98.
rr! Section l87,RTA.
rla Sec Whalan, Tonert Sl,stenr in Arrsfalia. supn, p. 356.
tts 1t975) 132CLR611.
f 'r6 Scctiorr 2O5,Transfer olTitles Act,1894. Wcstem Australin. in casc of dixbilitY.
la 7 Thc rogue solicitor cncnn:bercd the lnnd $ith E mortgage by forging the signaturts of thc proprietors. r'! Scction 196 (t). Thc limitation pcriod is 30 Years
 Leqscs 9l

6 Leesrs luo LIcENcES DISTINGUISHED

Leases A licence is permission to enter another's land for sorne specified purpose rvhich othenvise would
be Uespass.e The rnain distinguishing feature between a Iease and a licence is that a la$e creates
aninterestinlandlvhilealicencedoepot.ro Oneofthelegalconsequencesofthisdistinctionis
that a licence unlike a lease only binds [he licensee and the licensor. but not other persons deaiing
Irrnonucrron
with the land.tr Moreover. as a licensee'has no interest in tlte land. he or she carurot sue in trespass
Urder s. 4(5) ofthe lar dAct,L998. a leasehold tenure is defined as a form oftenure whereby one or nuisance persons interfering with his or her occupation ofthe land.r:
IBrty gants to another exclusive possession of land for a period usually. but not necessarily, in
*arrn for a monetary consideration called rent. The tenn 'lease' or 'tenancy' refers lo the estate Essrmnl pBATURES oF A LEASD
grantedr and the 'reversion' is the interest retained by the grantor during the currenry ofthe lease.
The party leasing is known as tlre lessor or landlord and the other party is the lessee or tenant. In At common law, a lease lus two essentiai features: certain duration and exclusivc possession.
1Eice. the expression tenant and landlord" respectively, are nonnally used to refer to a lessee and Though a lease is normally granted for monetary consideration, this is not an essential feature.
Issor ofresidential premises and a short-tenr lease: u'hilst lessee and lessor are used for other Section 5(d) ofthe Zand.lcl expressly states thatr lease rnay be created even where tltere is no
lceses. But this distinction has no legal significance. In this chapter the tenns are used requirement for reft payment. 13
ircrchangeably.
l*ases may be classifled into fl\ed tenn and periodic leases. A fixed terru lease is whose
a lease Duratigp,
fuation is fixed by the parties at the onset so tlut once the tenn expires the lease comes to an end. -AIcomfionlaw, a lease canbe ofany duration butit rnusthavea certain orascertairnblebegiruring
5r example, a lease for hvelve montls or forty-nine years is a fixed terrn lease and it expires at tlie alC ending before it takes"effecq othenvisb it is void as a lease. The classical example ofthe
rld of the term. A periodic lease is a lease which continuously renervs froln one tenn to another application ofthis rule is the case of Lace v Chantlerta In that case, the plaintiffs duriug the
-rrl tenninated by proper notrce serv'ed by either party.3 Periodic leases lnay nrn on a weekly. Second World War sub-let a house to the defendant for the duration of the war. lt u,as held tlut the
ftnnigtrtly, montlily. quarterly or yearly basis. The type of periodic teruncy depends on tlte lease was void for uncertainty ofduration because at the time the purported lease agreement took
rgreement ofthe parties. Iu the absence ofan express agreelrent the urode by wlrich reut is paid effect it was neither certain nor ascertainable when the lvar would end.
*x*mines lhe nature of the tenanry Thus. where rent is payable on a lveekly. monthly or yearly The requirement for certaitrty of duration lus been criticised in several English cases and
tqir, it is irnplied that tho parties intended to create a weekly, uronthll' or yearly tenansy, academic writings as unnecessary,t5 lndeed. in some casesjudges have attempted to undennine
the rule by giving it a broad interpretation or creating artificial exceptions. An exarnple of such
-spectively.r The significance of tlris classification is discussed below.
There are other types of tenancies wlrich do not fall in either of the above classifications: cAses is Ashburn Anstalt v Amold and anothert6 The respondents granted tlie appellant a right
;*ocy at will and tenancy at suferance. At conunon law'. a tenancy at will is inrplied when a to occupy their premises rent-free for an indetinite period. The ageernent was subject to a pro\riso
nndowngl nllqws another person to enter into possession as a tenant without specification ofthe that the respondents could terminate the arrangement. if tlrcy required the land for re-developmenl,
ums of the tenancy agreement.{ Eithcr party rnay tcnninate such a tenanry at any time. But if a by giving three rnonths notice. The notice lud to be accorupanied by a certificate from a reputable
:rmt at will begins to pay rert calculated on a regular periodic basis. a yearll'. monthly. lveekly or developer stating that the respondents were ready to develop the land. It was argued tlut the lease
der periodic tenancy will be implied.s In contrast to a tenancy at lvill. a tenanry at sufferance is $,asvoidforuncertaintyofduration. TheCourtofAppealheldthattlrcdurationoftlteleaserlas
iqitied where a fonner tenant remains in possession alter the erpiration of a fixed tenn witlrout tlte notuncertainbecause the circurnstancesrurderwhich the lease couldbe detenninedwere ob.;ectively
ounsot ald without objection ofthe landolvner.6 Like a tenanqy at witl, a tenancy at sufferance is ascertainable: ttrree rnonths notice oftennination and the certification ofa developer. Horvever, tire
at any time without notice.
7 House of Lords in Prudential Assurance Co Ltd t, London Residuary brought the attempt to refonrl
"{b, l"and Act, 1998. creates a new typc of tenanry known as 'tenancy by occupancy'. This is tlte rule to an abrupt end.t'There. Lord Ternplenran allinued the classical coulnon law rule that
fl,urllue tenancy. which is subject to statutory rules and customary law. Tenanry by occupancy is duration ofa lease nrust be certain or asce(ainable at tlie time the purported lease is supposed to
elsewhere.8 take effect. His lordship $as elnphatic that at common law the landlord and tenant have no power
to create a term which is uncertain.18
B Ibe words'dcnriso' and 'lenu' also nreau llre sarue thiug,
B hadatia I Asxrancc Co Ltd v Lotrdort Residtta4r, t1992] -1 All ER 504
e fu*andena-Kantunr v Kobale Tou'l Corrrrcil CA No MKA 10 of 198 5'. Bvevtt Steel l{orls Ltd v Nationtrl
fuatccCorporarrb, CS No 63 of 1985: [1985] FICB 58.
'
t0
GoldsackvShore [950] KB 708 at 714. Liccncos arc discussed in Chapter 8.
ThonasvSoneU(L673) Vaugh330; l24ER 1098at 1109.
fuy Steel llbrl:s Ltd y Natiotnl Insuronca Cotyoration CS No 63 of 1985 (unreportcd); [1985] HCB || Runda Cofee Estares Ltd v tJjager Singh [966] EA 564.
s L2 Hillv Tupper(I863)2 H &C 121; 159 ER 5l;
N. rr Sco also,4.ilr, um Anstalt v Arnold aud anorher I I 988] 2 All ER 147 at I 54.
&sEa.ssanvlulubiibi CANo. 103 ol191'1;0978lHCB 162. IuBuqyaSteel lltorksLrdvNational
'4 [1944] I AItER3o5.
furttce Corporation, supra. Odoki J said that a tcnBncy at will is inrplicd r*hcrc a tbmrcr tsnart rcnrains tr Scc Gray,8/erzents ofLand Lav (2d ed, Buttorworths, London, 1993), pp. 687-93
irgassssion atler his or hcr lcasc cxpires. With duc respcct. it is subnrined that in such a situatiou a r' 1t9a81zauER laz.
aoLcy et suiltrancc is irnplicd and rrot a tcnancy at rvill. ; -
'? [1992]3AilER5o4
k &r6cr discussion sec bclow in this chapter. rr 3 AU ER 504 at 5lO. At 512, Lord Brownc-Wilkinson acccptcd the archaic common law rule.bul
*aCtrptcr:. suggcstcd that thc Law Cornmission should cxarninc thc ucod for its continusd rctcution,
90
 92 Principles of Land Lav in Uganda Leases

defendant tenanl in the instant case onlv paid infrequent visits to the premises and took
In Uganda. the definition of a lease under the Land Act seems to override the common larv
definition. Section 4(5Xc) statcs that the duration ofa leaselrold tenure is usually ht not nec€ssarily
personal part in the busines carried on bv the persons he allowed-on the premises, nor did he

defined by reference to a specific date ofcomnrencement and to a specific date ofending. It is

any form of supe:vision.'

submitted r]1at tIe phrase 'usuallybut not necessarily' indicates that parlialrent intended to dispense
It should be emphasised thatthe fact thst tlre o$ner retains a riglrt ofaccess for certain
rvith the cornmon iarv requirement lhat the bcginning and ending of a lease mnst be certain. Hence. or occasions does not necessarily mean trat the ocqpier does not have exclusive
under For example. it rs common practice for landlords (o retain a right to enter at certain times
a lease agreement such as that granted in lace v Chantler sould not bevoid for uncertainty
purposes of insprrlion of the premises.s
tlte Lani Act. Of course. s4tere the tenls of a lease agreemcnt. including its duration. are so
The issue that has generated much controverry in legal circles. eqpecially in England. is
uncertain that the court cannot objectivclv detennine the obligation ofthe parties. the agreement
a grant of exclusive possession is conclusive of a lease. According to sorne English
rvouid be void in accordance with the general larv ofcontract.re
unless tlle parties intended to create a lease, a mere grant ofexclusive possession. though
Exc!usive possession evidencc ofa lease. does not necessarily mean that the grantee is a lessee as opposed to a
Section5(C) oftlteLandActdelinesaleaseasafonnoftenureunderu,hichtltelandlordgrants.or For example, in [rrington t, Errington md rmoths4 r' s faflrer allowed his son and daughter-in-
is deemed to grant. thc tcnant exclusive possession ofland. Thus. exclusivc possession is tlre to reside in his house. He promised thern that if they paid off th€ outstanding rnortgage debt
linchpin of a Gase and is rvhat distinguishes a lease from a mere licence.2o A grant of exclusire rvould transfer title to thern. They had only paid otrpart of tlre mortgage debt'n hen the father
possession is a right to use land to the exclusion ofeveryone elsc including tlte landorvner for the In his will, he left the house to lts rvidorv. In an action for eviction, one of the issues was
iuration of tle giant.:r Whether an occupier has exclttsive possession depends on the intention the ddendants wgre tenants or licensees. The court held that. tltough the defendants rvere
of the parties. objectively dctcrmined frorn all the tenns of their agreement and tlte surrounding exclusive possessicn, they rvere mere licensees becanse the parties had no intention to create
ciro:rnstances.l2 An express staternent purporting to grant esclusive possession is neither necessary tenancy.s2
norconclusiveoftheoccupier'slegalstatus.2r Theextentofthecontrolo'ierthelandretainedbl' ln contrast. other authorities support the proposition that a grant ofexclusive possession
the landor.r,ner detennines rvhether the occupier ltas exclttsive possession.2r If the landorner term is conclusile evidence that the grantee is a lcssee inespective ofthe subjective intention
retains general control over the premises. it is a strong indication that the occupier has no exclusive the parties. According to these authorities. the intention ofthe parties is relevant but only for
possessionand.therefore.heorsheisamerelicensee. Forexample.inCinCouncilofKantpala purpose ofdetennining rvhether they intended the grantee to exercisc exclusive possession.rl
,, Mrkibi.n plaintiffs leased certain prelnises to the defendant subject to a covenant that the
the authority often cited for this proposition is the judgement of Windeyer J in the High Court
tenant should nof part with possession or sublet rvithout their consent. The defendant allowed Australia case of Rddaicll v Smiilr.r' In that case. Windever J stated categorically that
hairdressers to 1se the prenrises. paving hirn a daily fee. Tlte plaintiffs sought to temlinate the lease possession was the litrnus test for a lease. His Honour disrnissed the authorities that hold that
on the grolnd that the defendant parted $ith possession in breach of the tenanry agreernent' The person with a right ofexclusive possession can be a licensee. He observcd:
court Gld that a tenant is not in breach ofa covenant not to pafi with possession or sublet unless
To say that r nan who has, by agrecment rvrth a lnndlord. a riglrt of exclusivc posscssion of land for
he or she gives exclusive possession to another person. In this case, the court found that although
a term is r)ot a tcuant is simply to colltrndict thc limt proposition by thc secolrd.rj
the defenJant allos,ed hairdressers to use the premises subiect to pa:vment ofa dai['fee, he did not
give thern exclusive possession. Sir Udo Udoma CJ obsewed that:26 Tlre House of Lords, it
Street v Motottforcl,3o endorsed Windeyer J's judgenrent in Radaich v
,Snrifr. Lord Templenran. \4ith the concurrence of the otherjudges, echoed Windeyer J's statemeff
A point ol great importance rvhrch supports the casc ofthe det'ardant thnt hc nevcr at any time
parted rvith posscssiog ofthc prcn:iscs is thc fact thnt he',vas ohvays in clrargc oftlrc kcy- It rvas
that a grant ofexclusive possession was the detenninant whether an occupant was a licensee or a
iris practice alvays to open thc prcnriscs in thc nronring nnd to adnrit the hnirdrcsssrs and nt tlrc lessee.37 Notwilhstanding this judgement, in England the issue whether exclusive possession is
closcofthebusinessintlrccteningaftercollcctinglrisorvndncstolockupthcprcuriscsarr(r-el!n, - conclusiveofaleis€isstilltoublesome.rE Indeed,inSrreert'Alounthrul,inhisjudgementTenrpleman
thc kcy u,ith hinr. ... It is clear from the evidence that the hairdresser could only make'tfSe and
o."upy th" prenrises rvith thc leavc aud licencc olthc defendant. who could turn them ottt at any
time. 2t ScealsolppahvParncli/Ielwestmeilts [1964] 1WLRl064. Scc alsoDesaivCooper(1950)KLR32.
1' Sbcet v Mountford 1198512 All ER 289 at 289
This case should be comparcd with that of Cirv Cotmcil of Kampala v Mttkubira and another.2l r0 Undcr c. 102(a) ofthe.Ragrstation olTitles Act, it is implicd that thc landlord has n right to cnter oncc in
The facts ofthe hvo cases $,ere sinrilar. horvever. in the latter case Goudie J. held that the defendant cvcry ycar to rnspcct thc premises.
had parted rvith possession. His honour distinguished the tlvo cases on the grounds that the 3' [1950] I KB 290
12 St,calso CranevMorris11965l l WLR 1104 at 1107-1108 pcrLordDenningMR
te Bweyasteetl[brksLtclt,NotionollnnrancecorporationcSNo63oflg85:[1985] HCB58:Sands} "r' RadaichvSmith(1959) 101 CLR 209'.StreetvMotnttfordll9S5l2 AllER289 at289
(1959) 101 cLR2o9
Mutral Benefrs Ltd ll9'll) EA 156 0K)'
20 Street v Morntford 1198512 All ER 289 nt 292' '1 lbid,sl222
2t Street v i,lounrford ll985l 2 All ER 289 al 292 16
u98512AnER289.
t1 .Appah t, p ornctige in,tsinentr lTg64\ I WLR 1064: Ra d aich v Smitlr (7959) l 0l CLR 209 "r! Ibid,nt3oo.
For a vcry good discussion of the English posilion, see Kevin Grty, Elemenls o/ Land Latt (2d ed,
(1949) 16 EACA I5'
"2a fiir\. Sec also,(aramn r llli v Champion Slrcc Conrpanv
Butterworths, London, 1993), pp. 708-28
Desai v Cooper (1950) KLR 32.
,s [1967] EA 368 (tD.
26 lbid,at376-77.
2r [1968] EA497 (U).
ii
B
H

I
 94 Prurciples oJLatttl Law irt (Jganda Leases 9>
,r'
"*"
U cOnCeded that there could be oxceptional circurnstances in whiclt a
person with exclusive paygrqrt a1d agc9punge-ofrelt provided the requisite evidence 0rat the defendant and plaintiff
Indptook
possession could be a licensee. Thosi special circurnstarces include occupation by
a serviCe regardedeachotlrcraslandlordandtenant. Similarly-inKanjeeNarat{eeLtdvTulsidasDharanuhi
mcupier" and family arrangernents where the parties had no inteotion to contract.lo Ghadialy,to the court found from the parties' correspondence that there was suffrcient evidence to
fVtrettrer a grart;fexcilsivepossession is conclusive ofa lease is yet to be considered
by the establish that the defendant impticitly acknowledged the plaintiffas liis landlord frorn tire date he
co,rts in Ugania. The courts lave a choice of authorities to follow either way.{t It is submitted entered into possessiort (
0ssession.
$at the rul;ftat the existence ofexclusive possession is conclusive ofa lease is prefered, as it is The effect of a tenancy by estoppel is tlut neither the tenaut\or thc landlord car.r set up lack of
in tirnes
a general principle not lirnited to its particular facts.{3 Tlte English precedens,
which hold to the title in the other as a defence to an action forbreach ofcovenant orfor rent due.5r For exarnple, in
d"t ..y, coUObe distinguished onlhe ground of the peculiar circurustances under wlfch those Pardhan Jivraj v Dudley-Ithelpadale. tlrc delerdant lvas in possession under a lease lvhich was
o.".0r"." decided.a3 Moreover, the definition of 'leasehold' in s' 4(5Xc) of the Land Act, as a not registered as requiredby the Registrotion ofTitles Ordinance, 1908. Under s. 6 of the Ordin4nce.
ough tsaure under which a landowner 'granted another person . . e\clusive possessron' , seelns to
. support uucgistered leases lvere inadmissible in evidence. Notrvitlstanding. it lvas held that as betrveen
& proposition that exclusive possession is conclusive of a lease. Of course. lvhere exclusive the parties. the defendant was estopped from pleading that the lcase rvas defective. In lndusrrial
*rion is granted without an intention to enter into a contract. neither Parly would be Properlies (Barlon Hill) atld othersvAssociated Electrical lnclustnes l.td, tite defendants refused
otractually bound by the arrangernent.{ to pay the agreed rent to tbe plaintiffs rvhen later it transpired that the plaintiffs had only an
,age debt
equitable title and not a legal title in the land. It was held tiut the defendauts uere estopped from
father
challenging fie plaintiffs' title as long as no other person \vith a superior title interrupted their
yas
&,ranox oFALEASE,
DOSSeSSiO[.
ere
to create
_:?
Gmact Registrationrequirement
lnUganda,unlike
- Leases over land registeredunder theReg,.\Tr"o/ion of TitlesAct (cap 20-i) arecreated subject to tlie
esslon Jlleaseiscreatedeitherbyagreementofthepartiesorbyoperationoflalv.'5
that an agreemsnl. for a lease lnust be in provisions ofthat Act. Srcdons 100 and 108. respectiveiy'. provide that a proprietor rvishing to
ntention t6er cornmon law countries, there is no legal requirelnent
mtiag.s Thus, a contract to grant a lease lnay be oral or in writing or both The agreement lnay lcase or sublease his or her land for a lerur in exces ofthree years should execute thc prescribed
rnlv for
& be inferred frorn the conduct of the parties. For exaurple. a lease ruay result witlrout express fonns. A lease or sublease exceeds tluee years not onl) Nhere the agreeluent stipulates a hxed
sion.rl
the period in excess ofthree )'ears. but also wltere a shorter tenn is granted *rth a perpetual oplion to
fi Court ryrement where a person enters into possession of land aud Pays rent! which is accepted by
trrriownef.aT review52 For example, in Popatlal llirji v L.H. Lakhai & Co (L4) Ltd.st it rvas lield that a sublease
for one year, which rvas renewable annuallylt tlte option ofthe tenant. \!as a lease in excess of
hold thar
brybyestoppel ' tllree years and therefore subject to tlie statftory form. Under s. 5 1. turtil such a lease is registered
& relationship of landtord and tenant may be created by estoppel. There is a well established pursuant to the provisions of the Act, it is not effective to creatc an estal.e in the land.sr But upon
rurd for irgq5o law principle that where a person enters onto land as a tenant of another both parties are a lease is created and the land become subject to the covcnants oftlie lease.
rnpedfromdenyingthataleaseexists.as Itisimportantthattherernustbesufficientevidenceof .registration
t[5partles' conduct frorn which it could be established that the parties recoSlised each other as Unlcgistered leasc
hno.d and tenant. For exalrple, $ Pardhan Jivrai v Dudley-I{helpadale,ar iUtlp \eld that At cornmotr larv, a purportcd lease that does not conrply rvith fonualities ulerely operates as a
contract lvhereby the proposed lessor prornises to lease and the proposed lessee to take the land
:ensee subject to the tenns oftheir agreernent.5s Failure bv cither party to cornply rvith tite agreernent could
'n .& cxvic€ occupicr is an crnployco rvho occupios his or hor ernploycr's Prenusos in ordcr to pertbrnr his result in an action for danrages.56 Moreovc( rvhcre a purported lessee cnters irrto possession
" c{ b.r dutics . Soc Sn1h v Seghill Overscas (1875) I 0 QB 422. Soo also Jamos. 'Sorng Problonts Conccrning under tlre agrcement he orsbebecolncs a conxllon lalv tenarll at will.s7 and upon payutent ofrent tire
i^*cs and Liccrrccs' (1967)3 East,lfncan LawJountal2lS pp.24449. tcrlallcy at will becornes a yearly teuancy.ss
* fotrrt v Mounlford 11985) 2 All ER 289 at 294. In quity, on tlrc other hand, failurc to follow legal fonnalities to create a lease does not necessarily
* i+.r,bothcKinyancaseofllatintt'iftoltsinBfitSc/eft 095?l EA486,wheretheCourtofAppealtbrEast render the lease void. Because equity treats as doue wtat ouglrt to be done. an agrcelnent for a
lEtefo[owcdErn)tgtortvErringto,t cntd anoilrcr U9501 I KB29. ButseeDesaivCooper(1950)24
lease capable of enforcement by specific perfonnance crcates a lease. Such a lease is variousl.y
tg3 32.
fr kr oontrary view sec Jaures,'Sonre Problenrs Couccnriug Lcascs and Liccnccs' (1967) 3 East A"frican referred to as an 'equitable 'or'infonnal' lcase. This principle was laid dorvn in lhe fanrous case of
' t-v Jqrnal2lS o,1239 at seq. ll/alsh t, Lonsdale." The facts ofthal case uere as follolvs. Thc appellant and respondent entercd
.m TL Fnglish position is pcculiar bccause oitho ongoing corltrovcrsy ovcr tlut country's Rent Restriclio,t
a&9, r'trjch apply to leasos atid trot licenccs. 5' [r965J EA t?I
fuu t Mountford [985] 2 All ER 289. 5l
Industial Propertics (Barrott Hill) tutd others v A.ssociatcd Electical lttdustrics Lrd lL977l I QB 580.
trr*ch 5(a), I^an d Acr,1998. 5t
Popatlal Hirj t L.H. LoHni & Co (EA) L,td [1960] EA 437 (J).
.fuX6gshakiyovllassonaliAhnredJusrb(1965)8A241 (1J)'.lvtoyanja-NkangivNatiotnlHorrsitrg 5t
Ibid.
Aa'Fation [1972] 1 ULR 37. 5a
5ec, Souza Figrctredo &Co Ltrl t,]tlooringsHotel Co Lrd [196t)] EA 926.
t\^!*N ka n gi ! N u tioil a I H ou s il g
r 972] t ULR 3?.
C orp oro t t on U
llalsb v Innsdalc (1882) 2l Ch D 9.
&JiwajvDudteyJlllrctpadale (1920-29)3IILR 193'.KageeNaranieeLtdtTakidasDharanshi -." J' Ihid.
!, Souza Figueiredo & Co Ltd v t\Ioorirtgs Hotel Co Ltd [960J EA 926.
S,d$er4 I QB 5sd. ,r lYalshv Lorcdale (1882) 2l Ch D 9.
duw'.:g)3 ULR 193. 59
Ibid.
96 Prinaples of Ltutd Lot, in Ugando Lcases 91

into a s,ritten lease agreernent for a tenn of seven vears subject to a periodic payment of rent. in WalshvLonsdale. HisHonourreasmedtHlecauseofs.5loftheRegistrationolTitlesActin
advance. Though the agreement was not by deed. as required by laru the appellant entered into Uganda, an intending lessee camot Oeriv{m,v e$ate (whetherJegal or equitable) from an
possession. When the appellant dcfaulted in payrnent of rent the respondent distrained on his uffegistered instrumenl He declhed to fotrltrw sereral Aushalian authorities that held that the
goods.60 The appellant sued the respondent for conversion on the gmund that since the lease was
Fovision similar to s. 5l does not preclude the creation mder an unregistered instrumenl, of an
not under deed it rvas void and. therefore. the respondent was not entitled to distrain on his goods. equitable lease for a term.65
It rvas held that. though the agreement rvas ineffectile lo create a legal lease. it was effective to It is submitted that ifs. 5 I prevetrts the creation ofan equitable lease, as held by Sir Kenneth
bringintoexistenceancquitableleaseforatennofsevenyears. Therefore.intheeyesofequity. O'ConnorP, it meansthatuntil a lease is registered there is no relationship oflandlord and tenant
the parties rvere already landlord and tenant subject to the same tenns and relnedies they would between the proprietor and the intending lessee. Therefore, neither party would be entitled to
have had iftheir lease had bcen created by deed. Accordingly. the respondent was entitled to statutory or common law remedies which arise by virtue of tle relationship of landlord and tenant.
distrain upon the appellant's goods. For example, suppose L enters into an agreement to lease her land to T for a period of 5 years
The application of the foregoing principles ofthe gencral larv. to unregistered leases under the subject to payment of rent of I million shillings per annum in advance. T enters into possession
Regi.ttration of Titles,4ct, rvas considered in Souza Figueiredo & Co [.td t, I,Ioorings Hotel Co even though the lease is not registered. It is submitted that if T defaults in payment of rent in
Lkl.6t ln that case. Moorings Hotel Co Ltd (the respondent) entered into an agreement to sublet to advance, L cannot disrain on her goods unless the right to do so is expressed or implied in their
Souza Figueiredo & Co Ltd (the appellant) prernises for a period in excess of three years. Though contract.66 On the other hartd, since there is no relationship oflandlord and tenant the couns
the sublease $,as not registered as required by s. 5 1. the appellants went into possession. Before cannot grant T relief against forfeiture for non-payment of rent.d
the purported sublease expired tlte appellant vacated thc prernises os'ing arrears of rent. In an The decision of Souza Figueiredo & Co Ltd v Moorings Hotel Co.Lrd that s. 51, Registration
action for the olrtstanding rcnt. tlte appellants contended that it rvas not liable. as the agreement ofTittes Act, excludes the principleof Walsh v Lonsdale, has neverbeen directly questioned by the
had not been registered as required ['
s. 5 I of thellegl.r'tration of'fitles Acr. The trial judge held for courts.6s In our view, Sir Kenneth O'Connor P was right in his holding that because of s. 5l an
the respondcnt. On appeal to the East African Court of Appeal. counsel for the appellant argued unregistered instrument is ineffective to create a legal or equitable lease until it is registered.
that a covenant to pay rent contained in an agrcement. lvhich operates as a present demise ofland However, with due rcspect it is submitted ttut his Honour erred in his interpretatior of the etrect of
in excess ofthree years. rvas nnenforceable ifunregistered. Hc submitted that a covenant to pay the prwision over equitable claims. In our opinion, tlle section does not affect an equitable lease
rent is so bound up rvith the land that itcannot lrave effect unless it is part ofa registered lease. or other equitable clairns arising by virtue ofthe parties' agreement that precedes the instument.6
Fnrthermore. he contended that rent issues out ofthe land and is bound up n'ith lhe estate. rvhich
the lease creates. Sir Ker"rneth O'Connor P. rvith the conorrrence of the other members of the Court.
Rlcrrrs AND oBLIcATIoNS oF A I"q,NDLoPD AND TENAI{T
agrecd with the appellant's counsel that s. 5 I al'oids the creation ofan estate or interest in landby
unregistered instruments Horvever his Honour re.iected the appellant's argument tlut the agreement
lvas thereby void. He said: Conditions and covenants
The terms of a lease may be expressed as conditions or covenants. is a t€rm lil-hi9h
&'condition'
[T]here is nolhing in the [Act] rvhich rcndcrs suclr instrunrcnts incllectual in coutracts between the
parties to thenr: there is nothing in lhc [Act] to say that nu uurr:gistercd docuurent ptrrporting to be
a lease of. or au agrcement to lcnse. land rvhich is subjcct lo the operation ollhe [Act] for more thau
tlrree years isvoid. In nty vierv it can opcratc fls n colltrtct ilrter partes and can corrfcr orr thc party
in the posiliou ofiutcndiug lessce a right to cn.lbrcc lhe contract spccilically and to obtain frorn thc
exprcssly rEserved in the lease a$eement. In practice, most formal leases resene a right to terminate
iutending lessor a rcgistrnblc lensc. That is not to ovcrride tlrc provisions of thc Act but to act.in
<orrlbrmitywitlrtlrcnr.5z foibreach ofany term ofthe agreement including non-payment ofrent. Moreover, for leases
g - -. registeredundertheRegistrationofTitlesAct,s. 102@)ofthatActimpliesinthelessorpowertore'
On the basis ofthis principle. his Honour held that thc respondent rvas liable to pay rent for the enter and take possession ifbreach ofany express or implied tenn continues for more than thirty
period during rvhich he las in possession.(l In addition. his Honour held that tlrc appellant rvas in days.72
arly event liable to pay rent becausc at cornlnon larv entn, into possession under an unregistered
lease for rnore than three years creates a tenancy at rvill for rvhich rent can bc reserved. Hencc, 6 lbid,at933-34. Sec also furthcr discussion ofthis.casc in Chapter 5'
rvhether the tenn to pay rent rvas regarded as a confactual stiptrlation in a docurnent for rvhiclt Soza Fr gu eire do & C o Ltd v G e orgc P an a gop oul o s an d o kers I I 959] EA 1 56 (cf Walsh v l,onsdalc
specificperformance couldbeobtdned in uluity oras a tenn in a cornrnon larv tenancy at will. it uas
'6 Scc
supra). A landlord cannot dishain upon goods of a tenant at will for rcnt payable in advancc, see lValsh
enforceablc.6{ Lonsdale (1382) 21 Ch D 9
Horvever. although the learncd president ofthc court held that an unregistered lease constitutes '7
6t
Scc below.
a contract i,Tlerparles. he denied that it operates to create an equitable lease under the principle of It has bccn hcld in sevcral cascs that an equitablc intcrest is crcated immcdiately the partics cntcr into
contnct of salc of land. See for cxamplc, .4Ii6 hai and others v Kaia and ano&ar cA No 53 of
(n (unrcportcd); Katarikawe v Katwiremu and anoker CS No 2 of 1973; [19771 HCB 187; Serunjogi
I)istress (or distraiu) is a comnron larv reuredy rvhich entitles tlrc landlord to conlisc[tc a tcnrnt's goods il
Katabira CS No 547 of 1987 (unreported); [1988-90] HCB 148. lor furthcr discussion, scc Chaptcr
he or shc defnults in rcnt payments.
6' " Chan and unother v Cresdon Properties Linited 11989J 168 CLR 242. Sec also our discussion of
[1960] EA 926. 51,RTA, in ChaPter 5.
6'?
[960] EA 926 at 931. 10 LugogoColceto(J)LtdvSingoCombinedCofeeGrorcrsLtdCSNo.554ol19'13;[1976]HCB
6r See also CiE, Coucil of Kantpola v lvfukibi [967] )]A 368 (LIl: Sonuli D<+nocraric Rcprblic v AnooP 7r Mogarry anC Wade, Thc Law of Real Pruperty' supra, P'P. 67G71'
Swdirial Treon CA No 4 of 1988. ,2 Tc;s impl,cd by thc Act may be cxcluded or modified br crprcss agrccment, s. 142, RTA.
6t Souza Frgrciredo & Co Ltd v |[oorings ]lotel Co Ltd [960J EA 926 at 937.
 easel 97
a 98 Principles ofLand Lav in Uganda Leqses yy

'les A-ct in No derogation from grant

Express covenants
, fro$r an The impliedcovenart notto derogate ftom the grant meaas that the landlordwill not frustratethe
d tlfrrrhe
Termsinaleasemaybeexpressedorinpliedintheleaseagreernerl Ex?resstermsarethosewhich
are stipulated in writitrg or orally in the agreement. Parties to a lease are ftee to incorporate any use of tlte land for the purposes that" in the contemplation of both parties, it was let.tr The
rent, ofan
terms in the lease provided that the terms are not contrary to any rule of law. Certain terms which are covenant is nomully implied ina situationwhere alandlord leases part of his or her land and retains
commonly found in formal lease agre€ments, are set out in the Ninth Sclredule of the Registration the other part. The effect ofthe covenant is thatthe landlord must desist from carrying on activities
rKenneth
of Titles Act. The parties may adopt these terms or any of them in their lease agreement if they so on the land retained that rgnders the part leased rnaterially less fit for the purposes for which it was
mdtenant
,ntitled to wish. The terms are set out in two colurnrs, In Column I the terms are expressed in a short fornr of leased" For example, in the Australian case of lelex (Australasia) Pty Ltd v Thomas Cook & Sons
nd tenanl words, and in Column 2 in detailed form of words. Section 103 of the.Registration oflilles Act (Australasia)L/d,E2theplaiutiffsweretheproprietorsofabuildingcomplex. Theyleasedpartof
provides that where the shorter form ofwords is used in a lease agreernenl it is inrplied tlut the the building to the defendant for business puposes which involved the use ofhighly sensitive
of 5 years
rossession
parties intended the detailed meaning ascribed to that tenn in the schedule. For exarnple, where the equipment. Later, the plaintifs installed a cooling systern in the building, which interfered wiLh the
lease states that the lessee shall transfer or sublet the premises the extent ofthe lessee's obligation defendant's equiprnent. The defendants terminated the lease and vacated the premises.,In an
of rent in
is determined by reference to Colurnn 2 opposite the tenn 'transfer or sublet'. The object ofthe action for breach of contract the defendans counterclaimed breach of covenant not to derogate
:d in their
the courts provision is to avoid prolixity in the drafting ofleases. from the SranL It was held that the interference was substantial and constituted a breach of
covenant, which entitled the defendants to terrninate the lease.t3
Coveunts implied underthe geueral lal against the landlord The covenant not to derogate from the grant is implied only where the tenant uses the land for
gistration
In the absence ofany express agreement ofthe parties. the comrnon law implies certain covenants a purpose that was within the contemplation ofboth partiei at the time the lease was entered into.
ned by the
against tlre landlord and tenant. The covenants implied against,tlre landlord include: covenant for
rf s. 51 aa J$e reason is that the tenant cannot qxt€nd the landlord's obligation beyond what was contemplate.d
quiet enjoyment, not to derogate froul the grant, and to provide pienrises that are fit for habitation. t}bothparties.s Forexarnple,inRobinsonvKlvert,'s thelandlordleasedtheupperfloorofhis
rgistered.
'
building to the ptaintiffforbusiness purposes. The landlord employed a heater in the grounO floor.
re efect
Quiet enjoyment wltich caused the temperature to rise sliglrtly in the prernises leased to the plaintiff. The piaintiff
lable The covenant ofquiet enjoyment implies that the landlord, and those claiming through him or her,
claimed that the rise in temperature damaged the special paper he lvas drying in his roorn and
will not interfere with the tenant's possession.?r The basis of this covenarrt is that by letting the
rendered it less valuable. It was held that the landlord was not liable for breach of covenant not to
premises the landlord gives the tenant the right ofpossession and he or she thereby guarantees
not to interfere with the tenant's exercise ofthat riglit or use ofthe preruises.Ta The breach of derogatefrornthe grautbecausetheplaintitrwas usingtlre premises fora special purpose that was
not contemplated by both parties.86
covenantforquietenjoymenttakesvariousfonns. Forexample, inOpinyav.Vukasa,r thelandlord
sought to forcibly evict his tenant by rernoving the roof from the premises. The court found the Fitness for human habitation
landlord liable for breach of covenant of quiet enjoymert. The court arvarded punitive damages At common law, apart from &\press agreenrent, the landlord has no obligatiou to provide premises
because ofthe high-handed manner ofthe landlord's interference with Ore tenant's possession. Io thatarcfitforhumanhabitation'Butwirerepremisesarerentedflrllyfunrished8thessnrmsllsly
the case of Tfte Kampala Cotton Co Ltdv Privinlal MadhvariT6 the landlordblocked thetenant's implies against the landlord that the premises are fit for hurnan habitatione Even tlre4 the coveoaat
right ofway. It was held that the landlord's act constituted a breachofthe covenant ofquiet is only implied at the beginning of the lease and not throughout the temr. So, if the premises are flr
enjoyment and darnages rvere awarded to the tenant.77 for humqn habitation at the commencenrent of the lease but became unfit during the temc, the
Tlrc landlord is not liable for the breach of,covenant ofquiet enjoyrnenl where the interference landlord is not liable.s Premises are unfit for human habitation if they are in such i state that they
with the tenant's possession is due to unlawful activities of other persons. For example , in Shah pose a risk ofpersonal injury or to hygiene.er
Champshi Tejshi and olhers v The Attorney-General ofKenva,?8 the government granted a leaseto
JWer
the plaintiffs. The plaintiffs claimed that under the lease they had an irnpiied right of access to a Covenant implied against atenant
Jran
certain road. Later, the governrnent leased the adjoining land to another person and the latter At common law, it is implied against a tenant Uurt he or she will pay rent as it falls due and all rates
blocked the plaintiffs' alleged access road. The plaintiffs sued the govenrnent for breach of the atrd taxes except those for rvhich the landlord is by law responsible. Unless othenvise agreed, rent
covenant ofquiet enjoyment. It was held that the government was not responsible because it had is payable in arrears.e2 In practice, paynent ofrent is invariably expressed in the parties' lease
not been established that the interference rvas lawfirl or that, if unlawfirl, it had permitted it.D The
landlord would be liable if he or she authorised arother person to interfere with the tena[t's al
Aldin v Lqtimer ClarkMuirhead & Co. Lrd 11894)2 Clt 437 ,
possession or if his or her interference is an inevitable consequence of a purpose the landlord t2 (t970)2 NSWLR257.
tJ
authorised.to Se*alsoAldinvLatimerClarkMuirhead &Co. Ltd[189412ch431 HannervJumbi (Nigeria) TmAreas
Ltdllg2Ll I ch200.
Telct {Ausealasia) Pty Lrd v Thomas cook & sons (Ausualasn) (rglo)zNswl-R 257.
53 of
"1' AM. Dharas and Sont Ltd v Elys Ltd |9631 EA 573. rr
la-
(1889)41 chDs8.
KennyvPreen
?r CC No 167 of [1963]
I QB499. f' comparc \}ath retex (ausualasia) pE ltd v Thomas cook & sow (ausualasia) Ltd (lg7o) 2 NswLR
1964, High Court Digcst, p. 514.
25't.
lSSr!
"il CC No.485 of 1952, High Court Digcst, p, 5l l. l1
Cruse v Mount (1932) All ER 781.
Scc also 1.ly'. Dhoras & Sons Ltd v Elys Ltd [963] EA 573 @ (failurc by thc landlord to delivcr up tt Sao Sands v Mutual Benefts Ltd
ll97 I I All ER 78 I .
possession of part of thc dcmiscd land constitutcs brcsch of covcnant of-quict cnjoymcnt), It C-rugtMount(1932) All
ER 781.
'tD [1959]EA630. ^ rir
Sarson v Roberu [895] 2 QB 395.
Sc* also Malzy v Eiclrch[916] 2 QB 308. ,l
e lbid. Sco S hah Chanpshi Tejshi aud Swm*s v Saford Co2/oration [1943] AC 2S3,
others v The Attorne.vGeneral of Kary. ,2
Mcgarry & Wadc, Tile Law of Rea! Property. supra, p. 706.
 Laases l0l
agreement. It is also implied that at the determination of the lease the terant will delher up vacant Susltnsr ANo ASSTcNMENT
possession.er This obligation not only entails the tenant vacating the entire premises, but also
removing all persons on the premises with his or her consent before handing the premises over to A sublease is a transaction whereby a lessee crEates a lease tlat is less than the term that the lessee
the landlord.er If the tenant or a person rvho originally entered with his or her permission remains SupposethatKatoistheownercfcertainmflolandcalled'Mailoaoe'.HelasbMailorcre
has.tor
in possession after termination ofthe lease, the tenant will be held accountable to the landlord for toNakatoforaperiodof2lyears. TWoyearslater,NakatoleasesthelandtoWaswaforatermof
rent for use and occupation. In addition, the tenant will be liable for the costs incurred by the 5 years. Nakato's lease is the 'headlease' and Wasq.a's is a 'sublease'. Kato is the headlessor and
Iandlord in ejecting whoever remains in possession.'5 Nakato is the headlessee. As between Nakato and Waswa, the former is the sublessor and the latter
Finally, the common law implies against the tenant that he or she shall use the premises in a is her sublessee.ror [n other words, Kato is Nakatot landlonC, whereas Nakato is Waswa's landlady.
'tenantJike'manner. Thisobligationmeansthatthetenantshouldtakepropercareofthepremises An assignment ofa lease is a transaction whereby the lessee transfers absolutely the remainder
by doing 'the littlejobs around the house which a reasonable tenant would do'.s For example, the of a term to another person.ro' Thus, in our example above if Nakato, instead of subleasing
tenant should keep the premises tidy, fix windows when broken by a family member or guest and Mailoacre loKato sold tohim the residue of her leasehold the transaction would be an assignment
mend electric lighs when they fuse. In addition, a tenant must not commit 'voluntary' or 'permissive' of the lease. The person who assigns is the assignor and the person to whom the lease is assigned
rvaste. Voluntary lvaste refers to damage that is comrnilted deliberately or through negligence. It is is the assignee.to6
aiso voluntarywaste fora tenant to alterthepremises in someway withoutconsent ofthe landlord. InMilmo v Carreras,rd Lord Greene MR described the distinaion between a sublease and an
For example, pulling dotrn a building or changing its stn:cture is voluntary waste.eT Permissive assignment as follows:
waste implies an omission that results in the dilapidation of the property, such as where the
[]n accordancc wrth a vcry ancient and cstablished rulc. rvherc a lessce, by a document in thc form
propety is allorved to decay by inaction.s According to some authorities, short-term and periodic
of a suElcase, divests himsclf of cvcrything lhat hc has got (rvhich he must nccessarily do if hc is
tenants are not liable for permissive waste.e lnnsfcning to his so-called sub-lessee 0n estate as grcst as, or purporting to bc grcater than, his
own) he from lhat moment is a stranger to the land, irr lhc sense that thc rclationship oflandlord and
Covenants implied under the Registrotion of Titles Ad
tenant, in rcspect oftcnurc, cannot any longer cxist bctwccn him and thc so-callcd sub-lcsscc. Thc
In every lease registered under the Act, certain powers and covenants are implied in favour ofthe rclationship must dcpend on privity of estato. I mysclf find it impossihlc to conccivc of r
lessor. Sectionl0limpliesagainstthelesseethatheorshervillpayrentreservedbytheleaseand relationship oflrndlord and tenant which has not got that essential clcment oftenurc in it, and that
all other dues that are payable under the demised property. The sectio4 in addition, implies that the implies tlrit the tentnt holds of his landlord, and hc can only Jo that ifthc landlord has a rcvcrsion.
lessee shall 'keep and leld up the demised property in good and tenantable repair', reasonable You cannot haYc a purcly contractual terrancy. Tcnurc exists by rcason of privity of cstatc.
wear and tear excepted. Premises are in 'good and tenantable repair' where they are in such a state
ofrepair as would nrake them 'reasonably fit for the occupation ofa reasonably minded tenant of At common law, tire power to sublease or assign is incidental to all types of leases, including
periodic tenancies, unless such power is expressly excluded in the lease agreenrent.r0E This is also
the class who rvould be likely to take it'.'@ In determining whether the premises are in tenantable
the position under t}rc Regislration ofTitles Act.t@ Horvever, in practice. most formal leases exclude
repair, regard must be taken ofseveral factors including the age and location ofthe premises. The
the power to assign or strb-lease. The exclusion may be absolute or qualified by a requirement of
obligation of a tenant is not only to maintain the premises in tenantable repair drring the term, but
the landlord's prior consent. Where the pouer is excluded the landlord may, at his or her discretion,
also to deliver them up in that order at the end ofthe lease, Therefore, unless otherwise agreed,
where at the commencement ofa lease thepremises are in,disrepair, it is the lessor's obligation to waive the exclusion with or without any conditions.l'o If the landlord refuses to waive the exclusion,
put and keep them in tenantable repair at his or her expense.ror the courts cannot compel him or her to give his or her consent however unreasonable the ground
Bys. l02itisimpliedthatthelessorhasthepowertoentertheprcmisesatallreasonabletimes of refusal maybe.rrr A total exclusion of a lessee's porver to assign or subJease though beneficial
for specific purposes, such as inspection ofthe premises and repair. The seaion also implieq,a fromthelandlord'sviorpointisuncommonbecauseitreducesthevalueofthelease. Instead,most
power in the lessor to re-enter where rent is in arrears for a period ofthirty days or ifthe lessee is in lcases restrict the power to assign or sublease subject to the consent ofthe lessor.r12 At common

breach of any express or implied term that continues for thiay days. The parties to a tease agl6ririnf
- lalv. where the porver to assign or sublease is so qualified it is irnplied that the lessor shall not
may by express declaration in the lease exclude or modifu any or all covenants implied under the
Registration of Titles Act.to2 r0! Asub'strbleascisasubleascsecSouzaFrgueircdo&CoLtdvMooingsHotelCoLtdllg60]EA926at
937 _

I0{ DuringthccunencyofthosubleascWasrvahaspossession,u,hichiscxclnsivcofbothKatoandNakato.
et Kamanyire r Srandard Bank (J) Ltd [ 977j HCB 82.
105 Ifa lcssee purports to sublcasc for a period cqual to or greater than his or
her lcasc, thc transaction is an
ea Sahiliba v Attomqt-Gawal CA No 13 of 1991;. Hardtugv Crethorn 170 ER 278 assignmcnt irrcspcctivc of what thc partics call thc transactiorr, sce Milno v Caneras [1947] KB 306 at

's Sebuliba v AttomqpGmeral, ibid. Sce also Kamanyirc v Standard Bank (U) Ltd [1977] HCB 82; 310.
rE 'Sec for cxamplc, Sotza Figueiredo & Co Ltd v George Panagopoulos and others 959] EA 756.
Henderson r, (1869) LR 4 QB 170; U
^S4rrres
'6 Wan'en v Kem 11954j 1 QB l5 at 20, per Lord Denning MR ,'o' [947] KB 306 at 3 10.
e1 tor Kecves v Dean
F/estham Central ChartE, Board y East London Watcrworls Co [900] I Ch 624. [1924] I KB 685. Courts strictly corrstruc a provision in a leasc which restricls the right
tt Megarry and Wadc, The Law olRcal Propoty, supra p. 95. to sublcasc or assign, cspecially, if thc rcstriction ir absolutc. Sce Ciry Courcil of Kampala v Mukibi
ee Scc Mcgarry and Wade, The Law olRcal Propety, supra, p. 702 U9671 EA 368 (l) at 377-378.
100 ro' See s l08,.RDl
Proud/oot r Haz (1890) 25 QBD 42.
t|tProudfootvHarl,i6rd. Citcdwithapproval inl{alionalandGrindleybBank(K)LtdvPT.Pmatcr[1965)
lr0 Waiver may bc cxpress or implied from the landlord's conduct.
EA 648 (K).
ttt hscount Tredefo, v Harwood U929) AC 72.
r02 Secs142,RTA. Seeforcxample,XationalondGrindleybBank(QLtdvPT.Punaterll965lEA643(K). r t' Sec for exant plc, RTA, Schedulc Ninc, tentr no. L

/
 It2,. Principles oJLand Law in Uganda Leases 103

eithhold the consent except on reasonable grounds.rts The test for determining whether the be in possession as Nakato's tenant and, lrot asKato's tenant.
Accordingly, i{ for example, waswa
controversial. Generally, where the grounds have nothing
grounds for refirsal are'unreasonable' is defauls in payment of rent Kato carnot sue hirn. However, ruto .oluio ii
ar..,ry enforce the
re ro do with the prospective assigaee or sublessee or the purposes for which they intend to use the covenant by suing Nakato for breach of contract. Nakato could then sinrilarly
,u. 1ryurruo.,z:
of pemises, then the grounds are unreasonable. r r' Both sublease and assignment entail the creation
Registration of transfer
td atranserofaninterestinlaod. Therefore,theformalrequirementsforthecreatronofinterestsin
rrnd, andthe consequences of non+ompliance, discussed above, would equally applyto them.r's Section 104 oftheRegrs rration ofTrtleslcrprol,ides that upon registration
3r ofa trarufer ofa lease
a covenant is implied between the transferor and the transferee
v. thatlue utter stratt pay rent reserved
3r Eaforcement of covenatrts in a lease in the original lease and be bound by all covenants expressed therein
bliaw against the
or implieo
'b
Tbe enforcement ofcovenants in a lease partly depends on whether there is privity ofcontract or Iessee. The section also implies that &e transferee binis trlmseror
nisi, her successors
rrer-serr tana
rt privity of estate between the parties. Privity of confact lneans direct contractual relationship. intitle)toindemnirythetransferoragainstanysuitsorclaimsforbreurnorruJ*renants.
ona
)d *tile privity ofestate means the existence oftenure or relationship of landlord and tenant.rr6 literal reading ofthis provision, it appears that the assignee is liable
for all cwenanu in tlie original
Where there is privity ofcontractbetween the parties tlren all the terms ofthe lease are enforceable lease whtther or not they touch and concernthe land.
ivhether ttris is a conectiiitelretation is not
n ia accordarrce with the general principles of the law of contract. For exarnple, where Kato leases settled' However, it is thought that the courts will require more e*pri.it
rr"gurg"io u...pr tt r, ,t .
Xailoacre to Nakato, there is privity of contract (and privity of estate) between the two of thern. provision was intended to ove*ide thecommon law.,"
wiur .*p*i;;fi;Js, s. Ir2 of the
Therefore, they can enforce against each other all the terms oftheir lease agreement. Indeed, Registration of Titles Act implies a term llut the sublessee and
his or lrer successors in title, in
taless otherwise agreed, liability to each other under their contract continues for the duration of ro the terms expressed in the subrease, shalr be bound by ail
the lease wen if Nakato subleases or assigns her interest.rrT
?9td:l ternx in ure headrease
Jincludingtermsimpliedinaleasebys. lQl). Aliieralinterpretationoftheprovisionmightsuggest
-that the headlessor
could directly enforce the .o*nrns ln it e original leaie
Assigpment against trre suutessee
even though there is neitherprivity ofcortract norprivity
Wbere in our prwious example Nakato assigns her leasehold to Waswa, then there is no privity of ofestatJbetween thJtrvo However, for
a similar reason as above, tlre preferred view is thaithe
couns would not construe the provision as
contract befwe€n Waswa and Kato. Horvever, since Waswa steps in the shoes of Nakato as tenant intended to override the common lalv.
dMailoacrefortheremainderofthelease,thereisprivityofestatebetweenhimandKato.ttr At
common law, where there is no privity ofcontractbetweel the parties, but there is privityof estate, Assignment of a reversion
only covenants that touch and concem the land are enforceable. rte Generally, a covenant touches Al common law, apart from covenans that are inherent in the relationship
6 of landlord and tenant
5 and coocerru the land if it affects the nature, quality, use orvalue of the land.r2o Exarnples of such (for example, a coveDant to pay retrt), neither the
benefit nor the burden ofa covenant runs rvith the
c csvenants include covenant to pay rent, to repair and to use the premises only for specified rsversion'rz Thus, suppose in our example above Kato sells
Mailoacre to Salongo during the
trnposes. Thus, where in our example Waswa defauls in payments of rent, Kato can sue him and curersy of Nakato's lease' Salongo and Nakato cannot sue .uct
f or levy a distress over his personal property.r2r Horvever, as already noted, unless Kato expressly termsintheoriginalleaseexceptasstatedabove.rr InEngland
oo.i r*
,ro .'ororaror.nt
or
tt"cror,trarro6*"rrionAct,l540,
agrees to release Nakato she rpmains liable to Kato under the origirnl contract for the rest of the replaced the common law In essence, this Act providis
that an assignee or a ,.u.rrion t a tn.
tenn sven if he consented to the assignment. same rights of enforcing covenants as the original
landlord.r2d Thi-s statute does not apply to
t uganda and there is no equivale-nt statutory piovision. Therefore,
Sublease unless the courts decline to
I follow the common law nrie on the grounds tn"t iiit ,.t
Where there is neither privity ofcontract nor privity ofestate between the parties they cannot suitable for Uganda,s circunuances, it
t seems that an assignee ofthe landlord cannot directly
dircctly sue each other to enforce covenanb in the lease. This would be the situation if in our enforce *u.rirs in-the original lease
I against a tenant who entered into possession prior to
example Nakato subleasesMaj/oacre to Waswa. During the currency of the sublease Waswa will tire assignment
t The assignee of the landlord can overcome the problem
i-ndirectly by instituting a chain of
actions. For crampre, where Nakato is in breach ofa
sue her but he can sue Kato for breach of contract.
coverunt in the orignar r.r*, ililg;;;;i
Then Kato cal sue Nakato for breach of
conlractorforreirnbursement.r2z Amoredirectwayofavoidingthepr.bl.rri.f.;!;ongotoenter
into a aesh contract wrth Nakato on the assignment
ttt hr Re: Gibbs & Holder Brohers & Co Ltd [925] Ch 198. oiu,. ,"i.rriJ, .",ir, piJil"rcon6act is
e$ablished Auother option is for Kato. to assign hir riglrs (including
ttl In Re: Gibbs & Holder Brothers & Co Lr4 ibid. for a usoful summary of the rclevant tcsts applied by tho a right to sue) and obligations
to Salongo with the express or impliedcorueit
covrls,e.IntamationalDrlllingFluids Lrdv Louisvillc ltwesbnents (Jxbridge) Ltd 11986l I AIIER 3210 s1l.Iafa1..,r.
pp.325-26, per Balcom! LJ.
rrr Sc.cforcxampla,CityCounciloJKanpalavMulibr[967] EA368 SouzaFigueiredo&CoLtdvGeorgc
Panagopoulos and ohers fl959l EA 756. L2-2
rr' Megarry and Wadc, The Law ojReal Property, supra, p. 740.
Moule v Ganer (1872) LR ? Ex l0l.
tti Thursby and ohers v Plant (1670) 85 ER 254. "' Scc Whalan, The Torrens Sysrem h Austalia,supra, p. 163.
rrr Thctransferrnustcomplywithlcgalformalitics,seeSouzaFigteiredo&CoLtdvGeorgePanagopoulos anf property, ,,ipri,'r.]lz.
"' Y"*
l]l lvada The Law of Reat
Mcgarry and property,rriru,
Wadc,The Law of Rea! iSZ.
ond ohers, t25
tte P&ASwiftInvestnents(afvn)vConbinedEngltshSaresGroupPIL[19E8]3WI,R313. 16rz scvcrar othcr common taw jurisdictions't"il,i*,.,
tr21, statutory pronsions.
Se* Cir! & Meuopolitan properties v Greycrojt
- ll93i)i
oouza t<tguevedo & Co Ltd v George panagopoulos
*fn roas.
tzt Souza Figuetedo & Co Ltd v Geuge P anagop wlos and others ll9 59)EA'l 56. and ohers [1959] EA 756.
 Lcases I
lO4 Principles of Land Law in Uganda

to terminate the lease, he or she ra-r m for rcrt as it falls due. At common law, there is
Rrlrnntrs FoR BREAcH oF covENANT
obligationonthe landlordto mitigatetis orterloss" for examplgty re-tetting, ever in a
where the terurnt has clearly abandoned tle prerrises.ts
Tenant's rcmedies
the lease agreement' the{enant may seek afiy Mesne proJits
$/here the landlord is in breach of any term of -
Where the lease is determined and the teoarfi remains in possession contrary to the
appropriateremediesunaerthegenerallawofcontractortort.Forexample,ifthelandlordbreaches prorent
a covenant of quiet enloymentihe
tenant could sue for damages and or an injunction to wishes,thelardlordmayclaimdarnagesforiossof'rnesr,eprofits'.r.'Theactionformesne
is a specie of t he law of trespass and it lies to recqver damages suffered by the landlord for
futurebreach.r?, Tr,etenanimuyartot.tnioatetheleasewheretheagreementexpresslyprovides
proulsion, the tenant cannot terminate a lease for breach of a keptoutofpossessiorLra2 Therighttorzeoreproftsawa*fromthedatethetenantwas
such power. In the absence oii.rch Thetestfor
it is atundamentalbreach or a repudiation of the agreement''lo to deliver vacant possession to the time when cant possession was actually given and
il;;;;;;;"unless to infer, from the landlord's conduct an premises mad: habitable. il3
..i'"ar.:,.. i. it is reasonable for the tenant
"frether
intentionnolongertobeboundbytheleaseagreement.lllTherepudiationofacontractisa Distressfor re'nt
*^';;;;;;ii;;,
serious matter and is not lightlydrawn'r32
their landlord for breach of Distress or distrain is an ancient common law remedy of self-help by which the landlord may
,uinry ro, i*icial reasons, it is rare for tenarts to sue i
remedy of withholding rent to force the landlord the leased premises if rent is in arrearsr{a and confiscate any goods found on the prernises
cov,enant. Tenants sometim., i.r.J" *ri.help valueoftheorrtstandingrent.ra5 Theremedydependsontheexistenceofarelationship il
^ Theriskofsuchacrionisthatthelandlordmayturn
;;;;;hir;rherob.tigationunderthetease. andtenantatthetimeitisexercised. Forexample,tnSouzafrgueiredovPanogopaulos,ta6K. t
aroundandsuethetenantforbreachofcovenanttopayrent,whichmayresultinforfeitureofthe
right t.t-ofthe landlord's breach against the claim for
trrt .r.r,t,-t . ,.*n
registered prcprietor ofthe subject land, entered into a contract to sell the land to X. Before I
lease. However, in transfer was registered X agreed in writing to lease the land to E for a period of ten years. E
rent.Aset-ofclaim,ifsuccesful,couldreduceorwenwipeoutthelandlord'sclaim.'3] entered into possession and paid trvo months rent in advance wen though the lease was I
Landlord's remedies
registered. Meanwhile, X sold their interest in the land to the respondents. X gave !
landlordwhereatenant is inbreachoftheleaseagle€ment' E to pay rent to the respondents. E did not respond to the letter and did not pay rent to I
There are serrcral remedies available to a I
relpondents :rs'told. Before the transfer to the respondents was registered, the
instructedac<rurtbrokertolelyadistressuponE'scluttelsandsellthem. Inanactionfor I
"?;:,:ffi1"r0 forbreach of covenantandfor other remedies
may bring the uzual action fordamages distress, itwas heldtlut asbetweenthe respondents andE there was neitherprivity ofcontract !
in National and Grindley's Bank (K) Ltdv P'T'
under the general law of c"r"rJ.'" For exampll privity ofestate. Accordingly, they rvere not her landlords and were not entitled to distrain l
punater,trr the tenant breacheJ a covenant to deliver up the premisesingood order and condition the premises.raT The respondents and the court brokers they employed were found to be {

teasl. it r'tera *tt

that the landlord was entitled to damages equal to the
on termination or he and swerally liable for trespass and conversion. Similarly, in Eastern Radio Service and I
been depreciatedby the breach. If the breach is for
amount in money ry wnici'tr,i premises had v R.J. Patel tua Tiny Tots and another, ilwasheld that once the landlord determines the lease
may sue to recover the outstanding rent. where a tenant
non_pa),nent of rent, the landiord may at his or her
she cannot Ievy a distress on the former tenant's personal efects.
to terminate the lease,r36 the landlord
breaches a term that entitles the landlord At common larv, the landlord had no right to sell distrained goods without leave of court.
option elect to keep tfre rease
,n. landlord opts to terminate the lease for breach of
onior.t" lf she could only retain the goods as a coercive measure until paid or authorised by court. The
covenant,heorsheisentitiltorecoveroutstandingrentuptothedateoftermin"Io.n'"'However' to sellwas introducrdinEnglandby ldreDistressAcr, 1688'aEand theDistressAmendment
o1future rentunless
damages iorlos of a-bar8ain
the laodlord is notentittJi;;e for substantial 1888.tre Sinc€thesestahltesarenotofgeneralapplicationinUganda,rr0 itissubmittedthat
repuoiation 6fcon.act.rD Where the landlordelec{-s not
the breach is funor*.n uioi.onstit t"s a
*
tao Bqtcr v n'drby
p A.M. Dharas and Sons Ltdt Elys t1953) 1 QB 234.
e Scc cg. Opinya v Muba saCC No' 167 of 1964; High Court Digesl 514; t't
I 2
Nonnan Godh{no v l4rani CC 224 of 1938, High Cou( Digest, p. 256- Kananyin v Standard Bank
applv to reascs. scc Nationar Ltdl1977l HcB 82.
,,. 3fl,'#;'lfiifll'oi raw incl.ding termination ror rcpudiation ta2 Andcrson v
Bowles (1957) 84 CLR 310 at 325.
"onon., U98ll AC 675' tt'
CrJ*:t i,a " irnelpina Q'lothem) Kamatryire v Standard Bank () Ltd |19771HCB 82. Thc tcnant is liablc for mesnc profits if a pcrson
l,l 'td
RashadMoletlinaCo(L4ombasa)LtdandothcrsvHoimaGinners,Ltd||g67)EA645CA@),Frecthv or shc allowcd into pbsscssion holds ovcr aftcr the leasc expires.
Errr (1874) LR 9 CP 208' r{' Right only ariscs whcrc rcnt is in arrcars. sccMassmba v Haji Kasaka and Mbarara Auction Mart (1
r7 P ro grcssive Mait ing H ousc P ty Ltd t Tabali P U Lrd (1935) I 57 CLR 17 at 32'
t
1IJLP.222.
n3 HandkvGreen[195g]2 eB6;BritishAnzan;(FetixstonQLidvlnternationalMaineManagemmtAK) t" Megarry and Wade,Thc Law of Rcal Property, supra, pp. 709-12.
,d U9801 QB 137. 'r'[1959]8A756.
"' i^oryii, i standaril Bank ()) Ltd ll977l HcB 82' tt7 lbid,at762. Tocstrbtishthcrelationshipof landlordandtcnantEhadtoconsenttoX'sassignmcnt
EA 648 (K) their rights to thc rcspondcnts, at 761 per Windham JA.
',r
rr6
U9651
l02,RTA r't U962lEA8l8.
Sec, c.g.,s.
131 Boyert'WarbYl1953l
'51i*;1u I QB234' rre Mcgarry and Wadc, The Law of Rcal Property, supra p. 710.
,,' gu;fiis -.iiie (1982) 149
Licensing Board CLR 620' t30
S* Ilganda Motors Ltd v lttavah Holdings Lrd CA No 19 of I 991.
whilc mere non'payment of rcnt docs
rle l.or examplc, otonaonr"ni iremisc, "onrtitutos rcpudiation,
judgem i"'r*grudve Maiiing Hanc Pty Ltd v
not, see gcncrally thc nigi iourt'of Australia ^iil,
Taiah Ploprietary Ltd (1984) 1 57 CLR
I? '
 lQ6 Principles of Land Law in Uganda
Leases 107

)
landlordhasriopowertos€Uwithoutajudicialorder. Distressmustbecarriedoutbythelandlord Whether or not the re€ntry is registered, as between the parties, the lease is terminated for all
I in perso4 by a lawyer attoroey or by a duly licensed bailiff. Distress by any unlicensed agent is intents and purposes. t6!
illegal.rir Where the tenant refuses to vacate the leased premises peaceably, it is advisable for the 1essor
to seek ajudicial order for re-entry rather tlun forcefirlly eject him or her.ra The law treats the
,s
Forfeiture
conullencement ofproceedings for recovery ofthe premises as an inevocable and inetrievable
Forfeiture (or re€ntry) is the termination of a lease by the lessor before the term expires. As already
,s electionby the lessorto determine the lease.r5s The filing of a writ is equivalent to actual rerntry
see& at @mmotr law, in the absence of an express provision for forfeitrue, only breach of a condition
rg from the date of service of the writ to the lessee.r6 To detennine a lease effectively, the writ mu;t
entitles the landlord o enforce forfeiture of a lease. For examplg it is established law that failure to
d pay rent is a breach ofa covenaat, which does not entitle the landlord to terminate the lease. On the
unequivocally demand possession. If the dernand for possession is equivocal, that is to say,
Ie
other hand, parting with possession in breach of the lease agrcemeot is generally regarded as a
accompanied by alternative remedies which are corsistent with the continuation of the tease, ii
does not determine the lease. For example, in Moorev Ullcoats Mining Co Ltd,t@ the lesspr issued
serious breach, which entitles the landlord to terminate the lease. r52 In practice, most formal leases
a writ demanding recovery ofpossession and in lhe alternative sought an order that the lessee let
reserve a right offorfeture for breach of any term of the lease agreernent. Moreover, where a lease
hirn inspect the premises in accordance with the lease agreement. It lvas held that the writ ryas
ter is registered under lhe Registration of Titles Act, s. 102(5) implies in tlrc lessor power of re€ntry
equivocal since the alternative remedy could only be granted on the footing that the lffise rvas in
ilte afterbreach ofany covenant (including non-payment ofrent) erpressed in the lease has continued
existence. In contras! inEastern Radio Sen,ice and another v R.J. Patel y'a Tiny Tbts attcl another,
rrd for thirty days.'53 Section 1l I extends these provisions to subleases.rsa The implied powers of re-
it lvas held that inclusion in the plaint a clairn for outstanding rent up to the date of the suit does noi
the entry can be modified or excluded by express agreeinent of the parties.r55 Moreover, as we shall
render the claim for possession equivocal.rc
presently see, the lessor may waive his or her right of forfeiture. .,r.
the
Prior to the Judicature Act, 1967,t55 a lessor seeking to enforce forfeiture had to follow the
-- -6 It is irnportant to remember that the fact that the lessor files a suit for possession does not
tuly necessarily ruean that lre or she is entitled to determine the lease. He or she must prove the breach
not procedure prescribed bythe Er,glishConveyancing and Law of Prdpqrfl,4cr, 1881, which was of
relied upon. Moreover, even ifthere are srrfficient grounds for forfeiture ofthe lease the
rs to general application to Uganda. r'7 Section 14 of the Act relwantly provided that a riglt of re€ntry court may
in an appropriate case grant the lessee relief frorn forfeiture.l5e Nevertlieless, rvhile the suit is
the could not be enforced by action or otherrvise unless notice in writing had been served to the lessee
pending as between the parties the lease is irretrievably revoked.rTo As a consequence
ents speciSing the breach and requiring a remedy. The right of re-entry could be enforced only if after both
parties are discharged from the covelunts under the lqls.ur Thus, the lessor cannot
lapse of a reasonable time the lessee failed to comply with the notice. Since the "Izdic ature Act sue the
uinil Iessee for rent falting due aft.er the commencement of the proceed.ings.rTs Moreover,
precluded the application ofEnglish statutes ofgeneral application, the Act no longer applies to since the
I no! porryer to distrain is dependent on tbe existenc€ of a relationship of landlord
Ugandats There is no provision in the Reg istration ofTitles.4ct or any other legislation in Uganda a.od tenatrt, &e
]p0o landlord cannot lery distress upon thetenant's goodsfor rent even though it fell due priorto
intly corresponding to s. 14 of the Conveyancing lcl, which regulates when and how the power of re- . proceedings.rT3
the
ilher entry can be exercised. Accordingly, it is submitted that unless the parties' agreement expressly
says so, there is no legal requirement for the landlord to serve notice offorfeiture prior to re€trtry.
If the lessor's action for re-entry is succesful, the lessee will be liable to pay dam ages ot nusne
he or
At common law, once a right of rerntry acques, the landlord is entitled to enforce it without profits for lrespass. Darnages are calculated fronr the date tlrat the writ wai served up to the time
the lessee delivers vacant possession.l?a Ifthe lease is registered under t]rre Regrstraiion ofTitles
Heor resqrt to the courts. The landlord affects a re€rfry by physically entering thtl premises with the
intention of determining the tenancy. Forfeiilre cannot be effected by written notice unaccompanied
lcr,the lessor may apply to the registrar, under s. 105, for the reentry to be endorsed in the register.
riglt The section states that the lessor must satisf, the registrar that he oi she has recovered possession
t Act, by actual physical re{ntry,rse If oecessary, reasonable force may be used to eject the tenant.
rat thE Provided that no more than reasonable force is used the landlord cannot be liable for civil or
criminalassault.r@ Uponazuccessfi:lre-entrytheleaseiseffectivelydetermined.16r Unders.l13
t5' ln
of the Registration of Titles Acr, tle lessor may apply to the regis[ar to register the re-entry, Upon Naluswa v Luswabi lvfisc. C No. 5 of 1974, it was held, obiter dictum, tlat whcrc the
regrstrar refuses
proof of sati$actory re-entry, tle legistrar may make the appropriate entry in the registerbook.t62 to rcgister a re-cntry, the lessor may scck au order of mandamus.
t" Lugogo Coffee Co (t]) Ltd v Singo Combined Cofiee
Growers Ltd supra, it was held rhat the refusal of thc
rcgistrar to rcgisGr a rc-cntry docs
tst SoaSouzaFigueiredo&CoLtdvGeorgePatuppoulosudothm}959]EAT56wasdecidedbcforctlro t" rn Capelfitha v Marchese Holdingsuot
. __ kocp tho lcasc subsisting.
(1995j 3 sR (wA) 261, the District court of westcm Australia hcld
1967 Judicaturo Ac! which dispo.sod of tbc epplixrin b Ugaods stafirtcs of gaieral application. that whcrc therc was any ProsPcct of physical opposition on tho part of thc tcnant, justified
rr2 Scction 3, Distess For Rent (Bailits) act (cap 68I or not, the
lessor should not use force.
-
tst Vaiety Timber Ltd v Musa 17971) EA 398 (K). D€aial of t!.
brvllr.rd'5 trrb is also rcgardcd as e t" EastemRadioServiceandanolhervRJ.Pately'aTinyTosandanotlter[l962JEAg1g.
NewboldJAat
substantial brcach, scc lVsuDuga atd onotha vLbto*
[1974] EA {47 (CA). 835, said that evon ifthc plaint is subscqucntly amcndcd it could not ,*.rr"
th" cffect ofthc original
ua Scc, for exampla, Kiwanuka-Musisi v Sz,gotc [y/3l
EA 561- plainS. But sce Sir Trcvor Gould JA, at g25.
r55 Scc,forcxamplo,ShellandBPUgodaltdvSX-eEtdE dr-do.anCSllo 1038of 1975. t,:- Ilid Scc also
Ciry Coa ncil of Kompala v Mukubra and anoher
rs' Scction l42,RA. r'r {l968lEA 497 (U).
[t908] 1 ch 5?5.
r57 Rcpcalcd by lhcJudicature Statuk,1996. t'e EastenRadioseniceandanohervRJ.pately'aThyTosandanorfrer[1962],pAgrg.
tst S* Khoja Shia Janat v Nonnan Godhiao (193651) 6 ULE {r. l7o See below.
Lt? Uganda Moors Ltdv Wqvah Holdings Ltd CA}lo 19 dl9P1,
Ib"r.,*a'F=f,arsrr4 196; docs not tl t
Easwn Radio Service and anoher v RJ. Patel t/a Tiny Tos and anollrcr, svpra, See aln
City Council of
altcr tho lcgal position, $anyap v Mulafita and anohcr
r50 Scc Kassaf v Regi*ar olTitles Misc. Appn. Na 5l oi 1993- _^ fl968l EA 497.
"' Jones v Carkr (tE46) l5 M&W 718; 153 ER lO4O.
ttt HemmingrStonePog*GolfCluD U9201 I KB72r. nt lbid.
t'2 Lugogo Co[ee Co (U) Ltd v Singo Combined Cofcc &olozlrdC$]f,L 5St cflyfa t" Easum Radio Sqtbe atd another
Oyr6l ECB 92. v RJ. patel y'a Tiny Tots and anorlte4 supra
108 Principles ofLand LatY in Uganda Leases 709

.any proceedings'.r?, Where the lessor's action for possession is unsucccssfirl. the parties' The power of the courts to grad rdidfim forfeiture is extensive, but can only be exerciseit
by
will be liable to pay rent where the breach is for aonaryroent sf renr The courts have no power under the Judicatutr
iirationstrip as tanllord an<l tenant will be restored as before. The lessee
period of suspension. t?6 Usually, rent is much lower Statateto grantdidfromfufeitueforbrcach of othercorrcnants.'r In deciding whether to graril
reserved under the lease agreement for the
thanmesne Profits.
relidthecourtstakeintoacccnntallcimrmsalcesdthecasc.rr Theseincludetheperiodof no*
payment of rent,the conduct of the lessee,rE and delayhg to apply for relief,rD and the disparity
Relieflromforfeiture
ptoprietary interest in land. The
between the value ofthe property forfeited as compared with the loss likely to be sutrered by tk
Forfeiture of a lease may entail loss to the lessee of a substantial lessor as a result ofthe breaclr-rs
for non-payment
court ofequity, being a court ofjustice, always regarded the proviso for re-entry Howerrcr, exce.pt in exceptional circumstanceq the courts almost as a matter of course grad
if was terminated for non-payment of rent'
of rent as meiely se;rity for re;t. Accordingly, a lease relieffiom forfeiture ofa lease for non-payment ofrent ifthe lessee pays into court all arrears and
iiscretion, the tenant relieffrom forfeiture provided he or she was ready and expenses incurred by the lessor.ret Such circumstances include where the lessor has already leased
the murt, at its Sranted
*iff ing to pay tt e outstanJing rent and all relevant expenses incurred by the lessor.t" The object or sold the land to an innocent third parg. For orarrylg in the case ofKp anuka-Musi si v Seggane ,1,
was tJ prcvent the lessor from taking advantage ofa breach ftom which
he the court declined to grant the lessee relieffrom forfeiture because by the time he applied for relief
ot eqrlty'sinieruention
or sfie was not proportionately and ineparably damaged' the lessor had let the prcmises to another tenant.'e' The court reasoned that granting the lessec
is enacled in s. 27 of
The equitable power to grant relieffiom forfeiture for non-payment ofrent relieffrom forfeiturc in the circumstances would inllict injustice upon the lessor and his new tenant
by action
theludiciture Stitute, WgA. Section 27(1) proddesthatwherethe lessor is'proceeding, ln The Executrix ol the Estate o/ the late Tebajukira and another v Shalita,tet a lease was
ofren! the lessee may apply for reliefagainst terminated by forfeiture and a re€ntry was noted in the register rmder s. 105 of the Registration of
or otherwise' to enforce a forfeiture for non-palT nent
action for ejectrnent,tTt
forfeiture. The lessee 's application for relief maybe made either in the lessor's Titles Act. Subsequenfly, the former lessee soughtjudicial reliefagainst forfeiture and applied for
or by his or her own adi;;.
r7e
If it is the latter, the application must be rnade before the court makes theformerlessortobeejecledunders. lS4oftheRegisr/ationofT'itlesAcr,TheSupremeCourt
theorderforforfeiture.rso Whereacourthasalradymadeanorderforforfeiture,theapplication dismissed the application as misconceived because that section does not make prwision for a
must be
for relief should be made under s. 27(4) of the Judicature statute.tBt The application lessee to ejcct a lesso( Wambuzi CJ held that the effect of s. 184 in this regard was that, once the
judgement'r12 landlord re-cnters and the rerntry is registered the courts could no longer grant relief from
broughtwithin a pcriod of six months after the date ofthe
statute vtherc
.il.rr.. *n uiro apply forrelieffromforfeiture under s. 27(1) of theJudicature forfeiture.rei In the case of Ahmed Farah and another v Kwanuka,t% Byamugisha I cites this
ioiorfeitthe lease or&eil, ise lhan by actlon. The italicised tords necessarily case for the proposition tlmt registration ofa re€ntry was a bar to an application for relieffrom.
the lessor is proceeain!
'proceeding' seems to suggest
refer to forfeiture by taking physical possession.rB The expression forfeiture in as much as such application seeks to recover land from the landlord.
is in the process of re-entering. If the With due respect, it is submitted that s. 184 of theRegistration ofTitleslcl does not override
that the applicationfor rel#should be made whilst ihe lessor
he or she is no
pro."ss ii iomplete, namely, the lessor obtains possession by peaceable re€ntry the courts' jurisdiction to grant relief against forfeiture under the ..Iadic ature Statute. If it does,
However, then, inourview, theJudicatue Statute,birrgalaterenactrnent, shouldbe construedaswerriding
iong...pro..ding'tore-enter,hence,therighttoapplyforrelieffromforfeitureislost.
Enitistriuaicialauthoritysugglststhatthisi;notnecessarilythecase. Forexample,inBillsonand s. 184 of the R egistratlon of Tiiles Act to thc extent of the inconsistency.reT It is suggested that
otiersv ResidentialAparhne;; Ird,Le the House oflords held, with reference to a similar prwisiolt' registration of a re€ntry should not be treated as an absolute bar to the excrcise of the court's
for relief sven where the lessor has discretion, but as one ofthe facton to be considered in determining whether to grant relief.
that the provision does not preclude the lessee from applying
t E j
re-entered PeaceablY.
tr' h Butagira v Namukdsa CA No. 69 of 1989, thc fact that thc application for rclicf from forfeiturc was
madc more than a ycar aftcr thc landlord had physically rc-cntcrcd, was not raised as an issuc.
t15 Driscoll v Church Commissionfor England 17957] I QB 330' t.' Butaglra y Nanukasa CA No. 69 of 1989. It i! a moot point whctho thc courts rctain thcir inhcrcnt
n, Rgflstrar- equitablc jurisdiction to grant rclicf from forfciturc. 7n Shiloh Spinnus Ltd v Harding [1 973] AC 69 I at
See,NalurwavLusyabiMisc. CNo. iof tsia. InthccascofllrEhaiandothersvThcChicf
of it hcld with rcfcrencc to s. 185, R?14, that thc expression 'any 723-24,Lad Wilberforcc *id, obiter dicta, that thc cou(s' inhcrent cquitable jurisdiction to grant rclicf
oli*r,ui"".Appn. No. 60 19g2, rvas
to othcr
court proccedings. Kalanda J said thst the cxprcssion applies fmm forfciturc could bc cxercised in any casc whcrc justicc dcmandr that rclicf ought to bc grantcd.
;;;;"Jt"8;, *.s not 6m;tca to,hr which a mattcr can bc solved" pcr Kalanda J. ttt
by any othcr law trbld..Scc also Lugogo Cotec Co (U) Ltd v Singo Combined Cffie Growos Ltd CS No. 554 of 1973;
ir*""ai"E,
t" 6nro" pTipeity io Ltd Teta'ision Servicc Ltd [1970] 2 QB 433' [1976] HCB e2.
"
t1t Kiwarurka-Mrtsri v Segganc [1973] EA 561 (r): Ha]i Musa Magala v Ondowa HCcc 360 of 1971; tr, lnButagiraviVarzutasaCANo69of1989,OdokiJSCsaidthathighhandcdconductofrtcnantmeynot
Butagira v Namukasa CA No. 69 of 1989' bc sufiicient to dcprivc him or her ol relicf from forfciture (cfWambuzi CI).
rTr sec,forcxamplc,LugogoCo/fe"CotUlUa"Sr"goCombinedColleeGroversLtdCSNo'554of1973; 1,0 LlgogoCofeeCo(tl)LtdvsingoCombincdCo/fceGrowersLtd,supn;GombaMmines&Contraclors

IlcB 92. (Ltd) v Klwma, supn.

u9761
t'o buhgiro, Nonu,kasa CA No 69 of 1989' t't Shiloh SpinnesLtdv Harding U9731 AC 691.
rlRogersvRicelllg2j2Ch-lii;Biltso,nandothcrsvResidentialApartmentsLtdllggzllAllERl4l' t'1 GillvLcwis11956)lAIlER844at35,pcrJcnkinsIJ. ThcsupremeCo,xlnButagiravNamskasaQA
tr7 1318/93,By-amugishaJ lrcldthatan No 69 of 1989, cxtcnsivcly cited this casc with approva! nrpra- S* alx Haji Musa Magala v Ondowa
lnGombaMarine"&Conrra"tor"(Ltd)vKiwdnqMisc.Appn.No.
196?(whichisidenticalwith CS No. 360 cf 1971.
applicationforreli"rironrror?,t,'r.rri",,ia"tt./atalofthcJudicanrclcl,
i. Zl$)),wherc thcrc was no judgment in existbnce, was misconccivcd' ",
rt'-
u9731EA561.
s:rra-
Scc also Gofiba Mqrines & Contactors (I'td) v Kiwota,
nr Gonbd Marines & Contrdclors (-td) t' Kivana'stpra'
rt. Forfciturc is cffccted eittreriy ora", o, ty physicil rc'entry, sec r(assaTb v Ragrstrar o/Titles'Mitsc' ',s cANo.2 0f 1988.
"ourt rr. Ibid.
Appn. No. 51 of 1993. tt'
AIIER 141. Civil SuitNo 687 of 1993 (unrcporled).
''' 119921 1
 I
a Leases lll
?s 109 ll0 Principles of Land Law in Uganda

ofrentpaymenl Ifitispaidweekly,itisaweeklylenancy,monthlyisarnonttrlytenanryandyeariy
is a yearly tenancy.26
2AtUre Shere a breach occurs, which entitles the lessor to re€nter, the lessor may at his or lrer option
A tenant who rernains in possession without consent ofthe landowner after expiratron ofthe
, gmnt d.ciderottoenforceforfeitureofthelease.'er Thisisknownas'warver'oftherightofforfeiture.
leaseisliableforthecostsincuredforhisorherevictionandformesneprofts.}tD Mesneproftft
rf non- {hiver may be express or implied from the lessor's conduct. In the English case of Matthews v
are calculated ftom the date th,at the lessee was supposed to deliver vacant possession to the date
Parity fullwood,Parker J said that:ts
that he or she (and all persons on the land on his or her account)2r2 actually vacated the premises.2ll
by the
Waiver of a right of rc-cntry can only occurwhcrc ths lcssor, with knowlodgc of tho facts upon The damages awarded are not recessadly limited to the rent reserved under the expired lease,
which his right to rc-cntcr ariscs, dms somc uncquivocal act rccognising tho continued cxistenbc of though such rent is aprima facie guide to their calculation.2t'
:$ail thc lease. It is not cnough that hc should do thc Bct which rcoogniscs, or appcars to rccognisc, the
us atrd continucd cxistoncc ofthc tcasc, unlcss, at thc timc wlren tho act is donc, he has knowledgo oftho I Noticeto quit
leased facts undcr which, or from which, his riglrt of cntry arosc. Thcrcforc, wc gct thc principlc that, I A lease for a fixed period cannot be terminated by notice by either party unless the right to
'ane,t% though an act ofwaiver operatcs with rcgard to all known breachos, it docs not opcrato with rcgard I
terminate is expressly reserved in the lease or in the event ofbreach ofa terrn, which entities either
I

to brcachos which wcrc unknown to thc lcssor at thc timc whcn the act took placc.
I . party to terminate the lease.2ti Periodic tenancies, on tlre other hand, are by natue termimble by

tenaD!.
"[. rlsi v Commissioner of Lands,z@ O'Connor P held that if the lessot with knowledge of the i
I
either party giving an appropriate notice. In the absence of any express agreeluent between the
i,r.*-h, does an act which unequivocally recognises the continuatiotr of the leasg the law prezumes t parties a weekly tenanry is terminable by oae week's notice,2r6 a monthly tenalcy by one month's
lse was i notice,2u and a quarterly tenancy by tfuee months notice.2rr The exception to this rule is a yearly
tion ry Lreotion to waive the forfeiture, even if that was not the lessor's actual inter[io[ For example,
_ - ,tenancy, wNch is terminable by six months notice.2te
I

the lessor, with knowledge of a breach entitling forfeiture, demanG rent which is payable in
ffirc he or she is deemed to a.ffrrm the continuance of tlrc tenancy,2or However, the dernand and l " Subjea to the agreement of the parties, a notice to terminate a lease need not take any form. An
oral notice is as effective as a written notice.uo Unless otherwise agreed, the notice must be made
mifranc€ of rent due before the date of forfeiture does not waive the forfeiture.er Similarly, I
I

t$cte the covenant is a continuing covenant and is broken from day to day, its breach is not to expire at the end ofa complcte period ofthe tenancy and should be equal in length to that
by acceptance ofrent.2o! It has also been held that since the filing ofa suit for re-entry is
period.zr Otherwise, the notice is invalid and ineffectual to terminate the lease.222 For example, to
m"iceyocable election to detennine the lease, no subsequent action ofthe lessor can operate as a tenninate a monthly tenancy, which commenced on the I" of the rnonth, the notice must be made to
mis whilst the suit is p€nding.2q expire on the last day of the rnonth at the end of a full uronttr-':D Thus, where the landlord wants the
tenancy to terminate on 3l December ofaparticulary,earttre noticemust be servednotlater than 30
November of that year. Where the person seeking !o terminate the tenancy is doubffirl as to the
OFLEASES OTHERTHAN BY FORTDMURE . dateonwhichtheperiod expires, it is custornary to addinthe noticewords to the effectthat ifthe
date mentioned is not the conect date on which the period expires, then the notice to quit is to
may be terminated by forfeiture, effluxion of time, uotice, su[ender and merger. Forfeiture
expire on the next proper date ofexpiry at the end ofthe current period.22a
above. The other modes oftermination are considered below.

tern automatically tenninates when the period expires. Thue is

Iaw, a lease for a fixed
zot Bwaya Suel Works Ltd v National Insurance Corporatiott,lbid.
either party to serve notice of termination unles their lease agreement expressly 2t0 Rukandenta-Kanuru v Kabalc Town Council CANo
E If the tenant remains in possession without consent or dissent of the landlord he or she MKA l0 of 1985.
ztt Mayanja-Nkangi v National Housing Corporalion (19?2) I ULR 371 Kamanyire v Standard Bank (J)
ateruIntatsuffe&lnce.206 Wherethetenantremainsinpossessionlrlththeconsentofthe
Ltd ll977l HCB 82.
a tenanclaat will is implied unless or until some other interest is created.2o Both 2rr Ses thc dcfinition in s. 2 of tha Civil Procedurc Act.
will and at sufferance become periodic tenancies once the tenant pays re[t and the 2t3 Sebuliba v AttorneyGeneral
CA No. 13 of 1991.
nrd oa a regular basis, accepts it.208 The nature of the periodic tenancy depends on the mode zta Mayanja-NkangivNationalHousingCorporalion(1972)
1ULR37l. InKomanytrevSnndardBank
(U) Ltd ll9'17) HCB 82, whcrc thc lcsscc dolivercd thc premises in an uninhabitablc state, rnesno profits
,f,e -rcnding statutory exceptions to indcfcasibility' in Chaptor 5. wore oaloulated till tho housc was made fit for human habitation.
2t s
fuINlr llbhi lo Nur Mohamedv Parel and others 1956 [EACA] 8};Vaiety Tinfier Ltd v Musa 11911) Cldton Secttrities v Huntley 119481 2 All ER 283.
&f,$r(K). '16 Chcshiro and Bvns,Modern Law of Reol Prop*r), supra, p. 435.
211
nffil I ?-b'117 at786. Queanb Club Gardens Estate Ltd v Bigtetl179241 1 KB l 17.
ztt Musumba v Haji Kasaka aud Mbarara Auction Mort (1971)
S9$lEA367 at37l. I ULR 222.
2re BweyaSteelWorksLtdvNalionallnsuranceCorporation
blblllehi lo Dr Nur Muhamed v Patel and others 1956 [EACA] 80; Kalsiv Comnissioner ollands
z2o
CSNo.63 o11985; U9851 HCB 58.
ffiffiEA 367;Sanley and Sow LrdvAlibhai11963) EA 594 (T) Rukandema-Kamuru v Kabale Towr Council CANo. MKA 10 of 1985. See ilso ahhagan v Manani
ifr+--rRadio Service and anothervRJ. Patel y'o TinyTos and anotherlL962) EA 818. 11964l EA 71.
ifuqTra,b* Lul v Musa ll911l EA 398 (K). Cf Kalsi
ut Musumba v Hajt Kesaka and ]v{barara Auction Mart (1971) I ULR 22.
v Comntbsioner of Laads [958] EA 367. 222
'ffq{-alrrd olKampalavMukubira and anoher I1968] EA 497. Bvqn Steel llbrlcs Ltd v Notiorrcl buurarrce Corporarion CS No. 63 of 1985; U9851 HCB 58.
221
futu@@(1e42) 20 KLR 57. lbid.
lfr1s, -.-z vM*iibi CANo. 103 of 1977; [978] HCB 162. :
u iuluswnba v Hajt Kasako and Mbarara Auction Mart (1971) 1 ULR 222.
I
fu,*tlYorksLtdvNationallnsuronceCorporalion CSNo63 of 1985; [985]HCB58. \tStanley
d.bt Ld v Alibhai 11963l EA 594 (T), it was hcld that a dsmand for rcnt afler cxpimtion of thc leaso
.#* a tssrncy at wi.ll.
7 12 Principles of Land Law in U ganda
Lcascs I
The notice terminating a lease shouldbe reasonably clear to the person to whom it is giventhat
no evidence of express agreement to srrender, but there was
theleaseisterminated.26 Ifthenoticeisambiguous,itisnoteffective. Forexample,inRajanNanji surrender by operation oflaw.
delivering hisjudgement, Madan J said:a?
v Jadowji Dewji,226 the notice to a tenant read that ifthe tenant did not vacate the premises by a
certain date his rent might be increased. It was held that the notice was not effective to terminate whcn thc [first defendant] unqucstionably abandoned and ceased to occupy
thc prcmises as ressee
the lease. The fact that the tenant remained in possession did not mean he had consented to the thc.company... immediately went into posscssion of them, and thcreaftcr
in -".y ..rr", ir'".,"d
new terms. In contrast, in Balbir v Panesar it was held that liberal interpretation should be given and was trcated and acceptcd as tenant by the landlord.
to a notice oftermination. So that, even if a notice contains some inaccurate statements, effect
His Honour said that even though the plaintitrdid not acfually re+nter,
should be given to it as long as the court is satisfied that the recipient was left in no reasonable his acceptance of rent
treatment of the second defendant as his tenant sufficed in law as symbotic
doubt as to its meaning.2?7 resumption
possession. There was surrender by operation of Iaw when the plaintiffwent
r\n action for eviction cannot be brought on the basis of a defective notice.22t If a landlord into possessiorL
created a new monthly tenancy rvith the second defendant.
pur.Dorts to re-enter follorving such a notice he or she will be held liable for damages forbreach of
Where the surrendered lease is registered under the Registration of Titles
contract and the covenant of quiet enjoyment. For example, in Rukandema-Kamuru v Kabale Act, surrender
effected following the procedure stipulated in sections 56 and 107 ofthe Act.
Town Cotncil,22e the court awarded general and aggravated damages against a landlord who Upon
the interest ofthe lessee is extinguished and the landfreedfrom the leasehold.23E
evicted a yearly tenant ater serving him with only a one-month termination notice. There is no
Iimitation within which to register surrender of a lease.2re Horveveq as between the lessee
and
Surrender lessor, surrender of the lease is effective even if it is not entered in the register
book.2{o
Surrender occurs where, before expiration ofa lease, the lessee gives up possession ofthe land to
Merger
the lessor. Once the lessor accepts possession the lease merges with the rcvenion and is thereby
Merger is the opposite of sunender. Where the lessee acquires the rwersion from
terminated.Bo Sunender may be by express agreement of the pahies,ar operation of law or statutory the lessor,
lease merges raiththe revenion and is thereby terminated. The merger is
provision.232 A lease is surrendered by operation of law if the lessor grants, and the lessee acceptg completedby
entry in the registerbook.
a fresh lease commencing before the current lease expires.233 A lease is also zurrendered by
operation of larv where the tenant abandons the premises and the landlord re-enters.ar The L€ssor's rights to fixture$.t
subjective intention ofthe parties is irrelevant in detennining whether the lease was surrendered by At common law, unless othenrise agreed" the lessor has no obligation to compensate
the
operationoflaw.235 Forexample,inShahKaramshiPanachand&CoLtdvVeljiandanother,2t6 improvements carried out during the term, Howwer, subjed to any contrary
agreement of
the plaintif leased the suit property to the first defendant for a period often years and the lease was parties, the lessee is entitled to remove certain fixh:res installed by
the lessee known as
registered underthe KenyaRegistration ofTitlesAct (cap287).'7n 1963, the firstdefendantformed fixtures'. The tenant's flxhres arc fixlures rvhichthe tenant uses fortrade, domestic or
a company (the second defendant) to u'hich he transfened his business. To the plaintifls knowledge purposes. Other fixtures, including tenant's fixtures that cannot be removed
without
the second defendant continued to carry on busincss in the same premises. become a free gift to the landowner.
For three years the plaintiffaccepted rent from the second ddendant and issued receipts in its
name. In I 967, the plaintiffinstituted these proceedings for possession against the first defendant
on the ground that the lease had expiredby effluxion oftime and against the second defendant for
trespass. The defendants claimed that the original lease had been sunendered in 1963 and fresh
lease arrangements were entered into with the second defendant. The court found that there was

;;-;;;-- €'- --
226QueenbClubGardensEstateLtdvBigncllll924l l KB llTat
126. Thiscaservascitedwithapprovalin
Kikabhai N Mistry v Abdulla Mohamcd (1956) 23 EACA 192; and Balbir v Panesar l7972lEA 94.
211 Kikdbhai N Mistry v Abdulla Mohamcd,Ibld.
2tr l FAr.Rgl.
zz:11972)EA94, ScealsoSaidbinMbarakvKapacecL0KJ-R100. CfBwqyaSteelWorksLtdvNational
Insurance Corporafibn CS No 63 of 1983;, [1985] HCB 58, Odoki J, said that sincc a noticc oltcrmination
is a unilatcral act it should bc construed strictly against thc p&rty giving it.
23o Bweya Steel Works Ltd v Nalional Innrance Corporation, Ibid.

'rr CA No. MKA 10 of 1985.

231 Kalani v Kaur CA No. 22 of 1995. Sec also Megarry andWadc,The Law of ReaI Properf, supra, p.684.
2" See for cxample Kalani v Kaur CA No. 22 of 1995.
2ra For examplc, under s.57 of lhcTrustee dnd BdnliuptcyAc, (cap 71), the hrrstec in bankruptcy may, with 2t1 Shah Karamsht Panachand
& Co Ltd v Velji and anoker tl9691 EA 794 at 196.
2t, Ibid.
leavc of court, surrendcr by discharge thc bankrupt's lcase he considers oncrous.
235 Megarry and Wadc,The law of Real Property, supra, p. 685.
2" Scction :,1'I,RTA. see, for cxample , Kalani v Kaw CANo. 22 of 1995. Notc lhat a lcasc subject to e
,rt Notc that abandonmcnt by itsclfdocs not constitutc surrcndcr unless thc landlord accepts possession, for - _
.
rcgistercd mortgagc cannot bc surrendcrcd without ttrc mortglg€c's conscnt.
2'o Kalani v Kaur CA No. 22 of 1995
cxamplc by cntcring into possession or leasing thc land to anothcr.
2a' Fixfures arc discussed
above in Chapter 4.

I
 Mortgages 115

7 CRrartox oFA MoRTcAGEE

Mortgages
c Registered mortgage
d Section 114 ofthe Registation olTitles Act errpowers a proprietor ofland registered rurder the Act
to create a mortgage by signing a mortgage instrument in the prescribed form. The prescribed form
' is in the Eleventh Schedule to the Act. Upon the registration of the instrument, tlie land becomes
liable as security in a manner set forth in the i$trument.e The rnortgage is protected by s. 6l of the
Registration o/Titles Act, and whoever deals with the land does so subject to the mortgage as an
exceptionto the principle ofinddeasibility of title.to A registered mortgage is sometirnes referred
to as a 'legal' mongage to distinguislt it from an unregistered or 'equitable' morlga5e.
nder
Equitablemortgage
In equity, a conEact to create a mortgage was treated as a promise by the debtor to execute a legal
ud mortgage when called upon to do so. Since equity regards as done that which ought to be done,
such an agreement created an equitable nortgage.rt For example, under the doctrines of equity a
jeposit of title deeds by way of security whether or uot accompanied by a menrorandum was
sol, *quivalent to an agreement to execute a legal mortgage and carried vvith it the entire remedies
common incidental to a legal mortgage.12 Sectibn I38 of the Iegisrra fion of Titles Acl specifically enables
tion of T t les z4cl (cap 205) difiers fromthe
Ee nature of a mortgage under the Regis/ra thecreationofanequitablemortgageundertheActbydepositofacertificateoftitte. Thesection
stration of Titles Act expressly provides that a mortgage
Seption 115 of &e Regi oPerate as provides that notwithshading anything contained in the Act, the registered proprietor may create
over the mortgaged land 'but shall not
under the Act takes effeot as a securitY &AgencYCo an equitablemortgageof landby depositing his orher certificate oftitle witha creditorwith intent
Trust Trustee b Executors
ofthe land therebY mortgaged'. In Re: Forrest
to create a security thereon whether or not accompanied by a memorandum of the deposit. The
a mortgage created under the conesPonding
rt of Anson,t Herring CJ, described the effe,ct of section provides further that every such equitable mortgage shall be deemed to create an interest
of the 7l ansfe r of Lan d A c t (Vrctoria), that
'it confers on the creditor rnerely a grouP of
in land. Under this provision an equitable mortgagee is required to lodge a caveat against the
(rnortpgor) remains tlre owner ofthe land subjectto
o secure the'uroney lenf ' The debtor mortgaged land.'l
agrcement.
of his or her obligations under tlre mortgage Several points arising from s. 138 of lhe Registratiott ofTitles Act need to be suessed. First, to
Re gi strat i o n of Ti t I e s Ac t does not
transfer ownershiP
Alhough a mortgage created under the create an equitable mortgage the certificale oftitle rnust be deposited by the proprietor with the
in the mortgagee's favour a seParate and distinct interest in
laad to the mortgagee, it creates creditor wi& the object of securing a debt. Prima facie, depositing a certificate rvith a creditor
rvithin the meaning of the
mrtgaged land. Thus, a registered mortgagee is a 'proprietor' against payment of money rarses a strong presumption that the object is to create an equitable
mortgage while the mortgagor is the
of Titles Act.6 Heor she is a ProPrietor of a mortgage over the enlire land described in the certificate and for the whole amount of the debt then
of English, Scottish & Australian Bank Ltd Y
of the mortgaged land. In the case
due.t{ The presumption can be rebutted by proving, for example, that the object of depositing the
system mortgage toalease. Likealease
theHigh Court of Australia compared a Torrers certificate oftitle was merely for safe custody or possessory lien.r' Secondly, it rs not aecessary
fromthefee simPle or other estate ofthe
distioct interest, which maybe dealtwith seParatelY tlrat a note or memorandum accompany the deposit, though, ofcourse, to avoid controversy in the
interests ofboth parties there should be a memorandum setting out the object of depositing the
certificate and thc terms thereof.t5

I Undcr s, 40 of the Land Act, 1998, a mortgagc ovcr fanrily land is void aD rzilio unlcss thc spouso and or
thc family oftho mortgagor oonscntcd to thc transaction bcforo it was cntcrcd into.
t Scction 5l,J?711.
to Scc Za/ropoulos v Recchi [978] SASR 5, seo also Chaptcr 5.
ktambulire v Kimera CA No 37 of 19?2
(unrcPortcd)' tt EtParte l*atlres (1833) Ch I 12.
cherEo' In Uganda a mortgatc of land is
thc most t' Barclqts Bank D.C.O. v Gulu Millers [1959] EA 540.
s Ghrr seouritics includc plcdgc, debenturc, and floatrng
13 Forillustretiot**BarclaysBonkD.C.O.:vGuluMillersllgsg]EA540. lnAustralianjurisdictionswrth
sfitrmon form of
sccuritY.
Mcgarrl and Wado' The trau
No 37 of 1972 (trnroported)' Soc also a provision similar to s. 138, it has becn suggcstcd that though thc provision only mentions oquitable
b,..g.,Matambulirc v KimeraCA
suPra, P 913' mortgagss crealcd by way oftitlc dcposit it docs not mean that it is thc only way an cquitable mortgage
dRzol ProPertY, Whipp (1884)26 ch D 482.
iii"*iorrries iJEiglandFire InsuranceCoy can be creatcd ovcr Torrens systcm land. Scc Sykcs, The law ol Seculities (4h cd, Law Book Company,
r n953lVLR246'at256 I Sydncy, 1986),p.315. This may not bo so in Ugandg scaBugandaTrmberCo Ltdv Muli KMetha1196ll
t i.. aonnition of 'propriot'or', s' 2, RTA .l il.477, at 481, pcr St Kcnncth O'Connor P.
r t'GaaranryDixowtCoL.tdvCreditFinanccCorp*ationLtd&anotherllg63lEA345.NsoByaruhanga
{1937) 57 CLR 302,at321 I
v Barclays Bank ofUganda Ltd CS 1327 of 1977 (unrcportcd).
I
I
t5 WC Lul (in Liquidation) t NZI Securities Ausralia Ltd and anoherl l99ll 4 WAR 349.
t'GuarotyDiscowtCoLtdvCrcditFinanceCorporationLtd&.anotherI1963JEA345.
114
I

I
_{,,.
116 Pinciples of Land Law in Uganda
Mortgages ll
Thirdly, the person named in the certificate, proprietor. must deposit the certificate. Where
as Where the rnortgagor is itr breach ofan--e tef,rn
two or more persons are registered as proprietors all must be involved. For example, in De Souza
ofthe mortgage agreement, the mortgagee
pursue the remedies stipulated inlheMortgage
Deoee- There are four remedies that
Figueiredov Talbot and anothe4rT two executors were registered as proprietors ofthe suit property, may pursue under the Decree; a
but only one deposited the certificate as seolrity for a loan. It was held that the deposit was D action on a personal covenanq
ineffective to create an equitable mortgage. Finally, the section requires an equitable mortgagee to
0 take possession;
lodge a caveaL On the surface. this requirernent ap'pears to be permissive for the equitable mortgagee iii) appointa receiver;
to protect his or her interest against extinguishment by zubsequent registered dealing in the land. ro sale; and
Horvever, it seems that lodging a caveat is in fact a requisite for the creation of an equitable v) foreclosurc.2r
mortgageunders. l38.rE Thisviervissupportedbythefactthatiflodgingacaveatweresimply The remedies are cumulative. Trrerefore, a mortgagee
permissive the provision would be superfluous. The reason is that, under s. 148 of the Registration is free to pursue one or alr of them.2i

ofTitles Act, any person claiming an interest in land is entitled to lodge a caveat against dealings in i) Action on a personal covenant
the subject land. A mortgagee is a person claiming an interest in land. This is an action for breach ofcontract and is not
unique to the law of mortgages. If the action
successftrl, the rnortgagee may enforce the judgement
against the mortgagor's general assets eveE
Mortgage of customarJ land and tenancy by occupancy though they are not comprised in the mortgage.26 The
action on the personal covenant is not a
Under s. 9(2)(c) of the Iand Act,1998.aholder of a customary certificate of ownership of land has partiorlarly usefr:l remedy whilst the mortgage is
still cwrent. Howwer, ifthe mortgagee sells the
arighttomortgagehisorherland. Likewise,unders.35(t)oftheAct a tenantbyoccupancy(a mortgaged land, and the proceeds are not sufticient
to discharge the costs ofthe sale and thc
lawful or bona fide occupant) is entitled to 'pledge' or undertake any other lawful transaction in mortgage debt, the mortgagee may bring an action against
respect ofthe occupancy.te The Act does not prescribe the procedure for the creation ofa mortgage
the mortgagor based on the personal
covenant to reccver the balance of the debt.2?
overlandownedundercustomarytenureorrightofoccupancy. Sinceneithercustomarylandnor
tenancy by occupancy are registered under the .Regi stration of Titles Act, the provisions of that ii) Possession
Act do not apply to them. In the case ofMatambulire v Kimera,2o which involved lnortgage of a under s. 6(l) of the Mortgage Decree, where a mortgagor
is in breach of any covenant, the
kibanja, theHigh Court held thatwhere the mortgaged landwas not reglstered underlheRegistration mortgagee may enter into possession of the mortgaged lino for
the purpose of r#ising his or her
ofTtles Act,theapplicable law was the common larv and the doctrines of equity.2r Similarly, in the security. The right ofpossession is enforceableiroi only
against di.;o;gog* uut atso against
case of ,yaswa v Kkungwe.2z which involved mortgage of customary land, it was held that where any person who derived tifle froT.h..n]-otglgor subsequentlo
tne -ortgagi rir exampte. a lessee
a contract 'resembling' a mortgage between 'natives' is sought to be enforced the courts could and an assignee of the mortgaged land.6 Pii6r to
taking possession thelnirtgagee must serve the
apply the English law ofequity applicable to mortgages. mortgagornoticeofnotlesstltansixtydaysofhisorheiintentiontoenter.2e
Tn1'n.....doesnot
state how possession may be efected.3o It is suggested that fie mortgagee tJes
physically entering and tardng over contror of th'Jmortgaged iossession by
Rriltrnms oF A MoRTGAGEE land r."'*irr. ,Jgrgor. wherc
tenants occupy the mortgaged premises. the mortgagee
takes possession of thl premises by
Subject to any express agreement of the parties, s. 122 of the Registration oflitles Act implies sew-ing them an unequivocal notice to pay rent direitlito
the mortgagee.r,
certain covenants against a mortgagor in wery mortgage made under the Act. The covenants Where a mortgagee enters into possession he or she by law
ar*nirJ...tuin powers and duties.
include payment ofthe mortgage debt, maintenance and repair ofthe property, and a right ofthe --
The mortgagee's powers include collectingany income
from the mortgaged land, including arrears
mortgagee to enter to inspect the premises at any reasonable time.2r In addition, s. l(2) ofthe lvltich the rnortgagee would have been entittia to nad he or
she beeriii po.r...ion f.orn the date
l,fortgage Decree,l974, implies in every mortgage a covenant against a mortgagor in possession to of the mortgage.r2 The principle duties of a mortgagee in
possession n." to u..*nt not only for
preserve the value of the properly. 6- ' - - incorne (whether in cash or in kind) he or she ,.tiriiy
receives from_the mortgaged property but
also that which he or she ought to-have received by
eiercise of a* airig.r*. "e"ry *ch benefits
must be set-offfrom the debt due.,3 wherelhe mortgrgee
us.s the moigaged premises for own
'7 u9611 EA 167 (CA). personal purposes, for examplg as an office, tre
rr Scc,forcxample,BarclaysBanfD.C.O.vGuluMillersll959]EA540,at550.NsoJakanavSenkaali or stre wiit be herd accountall}oitr,e mart et rentat
CS No 491 of 1984 (unreported); [988-90] HCB 167.
re Thc section does not expressly mcntion thc powcr to mortgEgc. Howcvcr, it is thought that 'other lawlul r{ Scction 2 of ll.tc Mortgage Decrce.
transactions' include a right to mortgage. Bcfore thc Land Act was cnacted therc was no doubt that a " Barclays Bank (lJ) Lrd v Northcorc and another c.s. No.
Sce,forcxamplc,MatambulircvKimeraCANo3Tofl9T2 1t r46i of r974(unrcportcd).
kibanjacou,ldbemortgagedjustasmailoland. Burn, chcshin & Bumb Modctn Law of Rea! prop"ri
71 Rudge v Richans(1873) oaucd, London, Buttcrworths,lgEg), p. 655
(unreported); [975] HCB 150.. Cp8 LR 35g.
20 CANo 3'7 of1912 (unreportcd). 2r Section 6(2)Mortgagc Detee.Butsec
2r s. 6(6).
Scction 9(5)of.lheLandAct,lggS,impliesthattheprovisions of thcMortgageDecreeNo 17 of 1974, 2' seclion 6 (1)- Mortgagc Decree. lt is submittcd that thc noticc must bc scrvcd aller cxpiration of
the
apply to a mortgagc of customary land madc under thc Decrcc. Howcver, thc Dccrcc, as prcscntly pcriod ofdcfnult statcd in s. l1S, RTA.
worded, only applies to rcgistercd and equitablc mortgages crcatcd ovcr land rcgistcrcd undcl.lhe Rcgisl/ation
.-
r0 Undcr s' 120' RZ, which was rcpcalcd by thc s. 16 of the
Mortgagc Decrce, posscssion could bc cffcctcd
of Titles Act. Sec the dcfinition of 'mortgage' and 'thc Act' in s. 18 of the Decrcc. In any casc, thc Decrec entrance or by retciving rents from tenants, ifLy.
only deals with remedies, and not with thc proccdurc for crcation of a mortgage. .,
" :r,h:r.bl.physical
seeMubintvUgandaCredit&saingsBank(1918)HcB109. Inaidition,undcrs.6(5)ofthelulortgage
21 (1952-6) 7 ULR 1.
has powcr to collect iny inconre from thc mortgaged propcrty.
,3 Note that any covenant implied by thc Act may bc ncgativcd by cxprcss agrcement ofthc partics, s. 142, ,,
" ?:::r,,:n:!ortgagee
Section 6 (5) of the lu[orlgage Deoee.
Rru. '" Matambulirc v Kinera CA No 37 of 1972 (unreporredl t197, HCB 150.

A
 rl t''Scrii Mortgages 119
ll8 Principles of LandLa*

It is mainly for this reason that mortgagees appoint a receiver instead ofentering into possession.
oftheproperly.]4Itradditio4tbEl8egl.isrlc@l*leforureasonabledarageorneglectof
tle property due to his or her n€lisrr
g 6 mr<sirr+ Despile tbe reponsibilities involved' a The drawbackis that areceiver has to be paida commissionfor hisor herwork out of theincome of
the mortgaged pioperty. Indeed, the receiver's remuneration has priority over any other payment
mortgageeinpossessioois*tgJift1oryl@ratl6forpersonattymaaaglngthemortg3ged
for the CoSs of repair and imprOvements due from the income collected.'5 Therefore, where the properly does not generate any income, for
land.35 Howeve.r, the m€(tgagEe b Friit{ri torEtDhFsffPst
he or she carries out to pmtEJor i**o tl" ral,e of the mortgaged land. To the extent that the example, where the mortgaged land is a residential house occupied by the mortgagor, appointment
Aom the mortgaged land, they become part of the mortgage
te imrc ofa receiver may not be economical except as a step towards the sale ofthe property.
;p;; i;.rreO exceeA
interest'r6
delt at the same level ofpriority as the principal debt atrd earn the same iv) Powerof sale
lmposed upon a mortgages who enters into possession' it is
Due to the heavy responsiUi[tia Thisis tlrenrostimportantand commonremedyforrealisation ofsecurity undera mofigageagreemenl
exercise ttris remeay except as a preliminary.step towards selling
not advisable for a mortgaGio
-alternatively, The right to sell may be exercised without recourse to corrrt where such right is expressiy reserved
propertyl, mortgage€ mayavoid this responsibility by appointing
tfr" .ortg.g"a a
in the mortgage agreement. Otherwise, the sale must be conducted with the sanction of the court.s
a receiver to enter into possession' Section 9 ofthe Mortgage Decree provides that if a mortgage agreemert allows the mortgagee
receiver to sell the land vyitiout reference to court. the sale lrurst be conducted by public auction unless the
iii) Appointmentof a
proceeds mortgagor and subsegueot mortgagees, if any, consent 10 a sale by private treaty. The power of
A receiver is person appointed 1o receive income of the mortgaged land and to use the
a
be charged with a duty to matrage the land by, for sale arises ifthe moflgagor defaults in payment ofthe mortgage debt, or part thereof, for a continuous
to reduce the rnortgage diut. A receiver may also
oec.rruryepairs or carrying out improvements, where so dilected in writing by period ofone month (orsuch other period as is stipulated in the agreement) and the mortgagor fails
examplg making
the mortgagee witt Oe consent of the mortgaSor or the court.3s The
mortgagee may appoint a 6 pay a$er a written notice is served on him or her.a? However, where there is a provision in the
expressly rJsewed in the mortgage agreement' In the absence of mortgage agreeme[t that the loan is payable on dernand,rs the power of sale arises once demand is
receiver if the power to appoint is
Section 5(4) of the made and the mortgagor fails to pay.ae For example, in the case of Barclays Bank of Uganda Ltd v
such powers, the mortgagee may apply to the court to aPpoint a receiver'3e
void unless made in Livingstone Katende Lutu,so lhe mortgage agreemert provided that the debt was payable on
Mortgage Diecr"e p.ouid.s maiOiippoinEnent of a receirer is null and
) witiig-and in accordance with ttre piovisions of the section.'o lt is submitted that the power to demand and that in the event of default, the mortgagee has a right to sell the land without a court
for period of at least one order. It was held that once demand had bepn rnde and the mortgagor defaulted in paying the debt,
r appolit a receiver does not arise unless the mortgagor is in default a
t month and fails to make repayments following a written denand notice.{r Whue a mortgaged d$t the bank was entitled to sell without recourse to the corlrt. Given the agreernent oftre parties, s. 9
3 payable on demand, ,'*titt
n demand for payment is equivalent to notice. In that case tlle of the Mortgage Decree sanctions the porver of sale wi0rout reference to the court.5r The court
is
3 *ortlugo *y proceed to appoint a receiver witltout further notice'42 held further that if the mortgagee has the power of sale without a court order, the court has no
,t
#riurify, i i.olver is emptoyed to Protect the mortgagee's interest,He or slre directly receives power to order some other remedy or postpone the sale. The only way the mortgagor could redeem
v the proceeds irom the land initead of the mortgagor receiving them. After payment of rates' taxes his landwas to repay the loan.
pay the mortgagee what is The mortgagee's power of sale under s. 9 of the Decree is further illustrated by the case of
and other outgoings relating to the mortgaged land, the receiver must
v Oue unaer me-morigage AOI aod hand overlhe net balance, if any, to the mortgagor. From a legal Barclays Bank of Uganda Ltd v Livingstone Katende Lutu.52 The facts of that case \\ ere as
point ofview, the main advantage to the mortgagee ofappointing a receiver is that, although the follows. The appellant bank lent money to a third party. The respondent mortgaged iris land to the
s. mortgagee appoints the receiveito protect hisor her interest, the receiver acts as an agent
ofthe bank as security for tlrc guarantee lte gave the bank for the repayment of the loan. Under the
s mortlaior inespective of any aglesment to the contrary.'3 The effect is that the-mortgagee is not uortgage agrcement, thebankhada rightto sell the landif thethird parry defaultedin payment of
le Uable to the mortgagoror seoondirymortgagees forthereoeiver's negligenceorwilfi:l
misconduct'{ the loan. When the third party defaulted, the bank, afler serving the third parry notice of its
)r intention to sell the mortgaged properly. advedsed the land for sale by public auction. The
It respondents applied to the court for an injunction to stop the sale. The trialjudge held that,
ts 3. scotion 6(4). Scc also l{hite v city o/London Brewery company (1889) 42 ChD 237. notwithstanding the express provision in the mortgage agreement giving the bank the power of
ll 3' Scction 6 (4Xd). sale, that power could not be exercised without a court order. Thejudge also found that in view of
AI
!6 Scction 6(a[d-c). the discrepancy between the money owed and the value ofthe property, the respondent would
r7 Scotion I I (2) of tho Mortgage Decree.
rt Scction 5 (2),Mortgage Decree.
t) So*lron 3, Mortgage Decree. r5
a0 Section 5(3\a), Mortgage Decree.
Soc also Grindtays Bank ('U) Ltd v Edward Boazi CANo23 of 1992 (Suprcmo Court).
5
4t Scction ll5, RIi. By virtuc of s. 210A(6) of tho Ragrirraabn of Titles Ad.rf mortgage€
a attcmPts to '6 Scc sg. 1 &9,Mortgoge Decree.
rely on that '7 Section ll5,RA.
affect sorvico of a noticc by post, but thc lettcr is retumed uo&livcscd bc or she cannot ar
effcct pcrsonal scrvicc Many mortgago agrccmcnts, though thoy allow lhc mortgagor a period rvithin whiclr to repay the loan by
posting as constituting servic, und"r s. I 15. Ia tiut casc, thc mortgogee mu$ erther
thc o, to tt o ,.gistrir for dircrtions. (scc uganda credit and salyings Bo* v Eriyad scthba 119661 periodic instalmcnts, conlain a proviso giving thc moflgagco a right to dernaud payuent oftho full anrount
"pp-ly at eny timo.
-.2 EA
500. ae Section 116, RA. Sec a.lso Bnrclayc Bank of (Jganda Ltd v Livingstonc Kotende Luu CA 22 of 1993
tcd Scction s* also Grindlays Bank (u) Ltd v Edward Bazi cA?B of 1992" scc fxts bclow'
116, RTA,
.r Scction 4 (i),Mortgage Decrce. A reccivcr eppointcd by thc court b ld * Scat oithc Eortgagor-of (unrcportcd).
to lbid,-.
,ge mortgagcc, but is anlffrccr ofthc court to which hc or shc must sDcouot for rny irrccoc bc or shc rcccivcs,
'l Scction 9 docs not sctua.lly statc that whcrc a powcr of salc is roscrvcd tlrc rnortgagec nray sell without
s.4Q)Mortgage Decrec.
,a WhitevMeiatlnlollzci,sol.InGrindlaysBank(u)LtdvEdvsdSoaa;crtllo23oflg9,itwas sanction ofthc court, Tho provision socrns morcly to doal with tho nranncr ofoonducting a nrortgagc salc.
nas iEroPEdy tlfr(itrtcd !2 CA No 22 of 1993 (unrcportcd Suprcrnc Court ofUganda).
hcld that 0 mortgagor was not liablc for dcfaults of a rcccivcr who
720 Principles of Land Law tu Uganda
Mortgages l2l
sffer ineparable loss if his land were sold. On appeal to the Supreme Court, it was held that s. 9 of Duties of the seller
the Decree makes it clear that if under a mortgage agreement the mortgagee has a right to sell, upon The pover of sale is given to the mortgagEe to realise his or
her security in the event of default.
default the mortgagee may sell the mortgaged propertv withoutjudicial sanction. Manyindo DCJ, Once the power of sale has arcnre4 the mortpgee is entitled to exerci..
it roi t ir o. t i. own benefit
Odoki and Plaft JJ.SC. in a their joint judgement reiterated the proposition that where a mortgager at a time oftheir choosing. It has been esabtsnea in seeeral
cases thar in exer"irirg tirl, po*.., trr.
has the porver ofsale withoutjudicial sanction. tlte 'mortgagor's right to redeern the land is confined mortgagee does n ot act as a trusbe for the mortgagor.o consequently,

',r
*r. .o.tgrio is entitled to
to repayment of the loan' . The High Court's decision was accordingly overturned. look after his or her oq'n interests where they may codrict with tios. #tn *"ng?gir. r"r examplg
Where the mortgage agreement does not empowerthe mortgagee to sell rvithout r@ourse to the
court,themortgageemustseekacourtordertoselltheproperty.s'SectionT(l),MortgageDecree,
provides that a mortgagee may apply to the cou( to 'foreclose' the mortgagor's right to redeem at
any time after the breach of any covenanl to pay.5' It is submitted that. unless the debt is payable
"\:mr*5rm:l::f#s
for the mortgagor subrnitted that the mortgagee should have postpo'ned the
sate blcause in the
circumstances it was not appropriate to sell. Lord Justice Salmon, in aemering
tris;uagem"nt soia
on demand, an application for foreclosure cannot be entertained unless the mortgagor is in default that the mortgag,:e has no duty to speculate as to the most appropriate time
to seli:
for at Ieast one month and has failed to pa-v a-fter a s,ritten denrand.55 When the application is made,
the court will assess the amount due and fis a date. rvhich must not exceed a period of six months It matters nol that thc moment may bc unpropitious and that by waiting a higher price
could be
oltained. He has the right to realisc his security by tuming it into moncy ihen
from the date of default, within wtrich payment should be made.56 If the mortgagor fails to pay by ic likes. Nor, in my
view, is thcrc anyhing to prcvent a modgagec from acccplng the bcst lia
the prescribed date, the court must order the mortgagor's right to redeem foreclosed and grant the n" g"t on
cven though thc auction is badly attcnded and thc biddingixccptionally ""n "i "r"tion,
low. piovidint
mortgagee a right to sell the property.s? nono of
thorc advcrse factors is duc to any fault of the mortgng... h" do as hc likcs. rthc mirtgogce,s
A mortgage sale consequent upon an order of foreclosure must be conducted in accordance ""n
intetcsts, as hc sces them, conflict with thosc of thc mortgagoq the mortgag""
can givc pr"f"rcncc
witlr the provisions of s. 8 of the Mortgage Decree. Section 8(1) provides that the sale must be by to his own inrcrests, which of courso hc could not do werc hc a trustcc oiti'" po*"Ioirio
ro, tt
public auction unless the mortgagor and all subsequent mortgagees ofrvhom the mortgagee has mortgagor.s "
notice ofat thedate ofthe foreclosure order agree to a sale by private treaty and the court approves
the terms of the sale.rt By s. 8(2) it is further provided that the sale must not take place until after
Neither the Reg$tration of Titles Act nor the Mortgage Decree imposes any duty
of care on a
mortgagee in exercising his or her powers ofsale. However, the common law
at least thirty days have expired from the date ofthe foreclosure order.s{ Presumably, the object of imposes on a selling
mortgagee a dulv to act in good faith and with care.6r The duty of care is based
fhis requirement is to prevent the mortgagee from mshing into disposing of the land without on Lord A&ins'
sufficient advertisement and preparation. Besides, the delay allows 6 cooling-offperiod to allow well-known' nei ghbour' principle espou sed in Donoghu e y Stevenson.66 The proximity
between
the mortgagor and mortgagee (and other interested parties) to attain a mutually agreeable alternative the mortgagee and the mortgiagor giyes rise to a duty on the mortgagee to take
reasonable care to
arrangement to a foreclosure sale. It should be stressed, though, that unless the mortgagee obtain the true marketvalue of the land at the moment the mortgagee chooses to
sell.6? One of the
precautions that needs to be taken by a mortgagee is to ensure that
voluntarily agrees, it seems that a foreclosure order cannot be reopened to allow the mortgagor to the property is properly
redeem. Finally,s.8(3)requiresthemortgageetogivereasonablenotice(notlessthanthirtydays adrrcrtisedbefore t}e sale. For example, 6E
themortgagee
prior to the sale) ofthe date and place ofthe sale to the mortgagor and all subsequent mortgagees advertised in the newspapers the mortgage sale ofthe suit propertyby auction simply as 'a
parcel of land b eing 4.26 acres'. The advertisement omitted to mention
of q,hom the selling mortgagee has notice at the date of the foreclosure order. The object here that the land had been
appears to be to give interested parties a chanceto attend and observe or participate in the bidding dweloped and a permanent house had been constructed thereon. It was held that failure to state
these facts in the advertisement was negligence because the property could have
or seek an injunction if there has been an impropriety.e Also, as we have suggested, they may been valued
come up rvith some alternative afiangements agreeable to the mortgagee. Failure to notiry thtr
ditrerently. In Sajabi v Amreliwalla and lVamala, Bacon JA observed that, if a mortgage sale is
by
public auction, rvhich is duly advertised and to all appearances properly
mortgagor or subsequent mortgagee does not render the sale void. However, the selling mo{Egec - - conducted, prima facie, it
would be held liable for any loss s:fferedby the mortgagor or any subsequent mortgagee as a is assumed that the mortgagee's dual dnty to sell in good faith and with reasonable care was
fulfilled- Butwhere the mortgagee sellsby private treaty, it is incumbent upon him or her to make
consequence of the omission to notiry them.6r
partiqilarly sure that the mortgagor's interests are amply protected.6e
Where the selling mortgagee fails to take reasonable precautions or to observe preliminary
53 statutory r€quiremenls prior to the sale, the mortgagor and any interested party may seek
This rvas also thc position at common law. Scc Mcgarry &. Wade The Lav ol Real Propaty (5th ed, a temporary
1984), p. 936.
r, Thc fact that thc provision only mentions brcach ofcovenant to pay, suggests that a mortgagcc cannot 62 MubiruvUgandaCredit&SavingsBankCS56l/65;(19?8)HCB
109;SajabivAntreliltallaandllamala
apply for foreclosnre for breach of othcr covcnanls. Under s. 117 , RTA, (rcpcaled by s. l6(b) of the u9561 22 EACA 7 I ; cucronere Brick co Ltd v Mu*at Financc Co Ltd (197r ] ch 948.
Mortgage Deoea), a mortgagec had a right to sell for brcach ofcovenant to pay or for brcach ofany othcr
_
-
6r [1971]ch948.
covcnant. '.6t Ibid,at96s.
'r Sections 115 and 116,R24. Also seeSa.TaDi v Amreliwalla and lVamala11956122 EACA 71. SaJabivAmreliwallaandWamatallg56)22F.ACA7l. MubiruvllgandaCredit&savingsBank(1918)
16 Scction 7(2). HCB 109.
57 Section 7(3).
6. [1932] Ac s62.
Jf Section 8(1) oltheMortgage Deoee. '1 Cuckmerc Brick Co Ltd v Mutual Financa ttd, cas citcd witi approval in Mubiru v Ilganda Credit &
5t Scc also s. 8(3). Sovings Bank (7978) HCB lO9.
60 Section 9(5) provides that thc mortgagor and subscqucnt mortgagecs art not precludcd from buying thc (1978)HcB to9.
"
mortgaged land at thc salc. " u955] 22 E\cA 11, ar 77, Scc also Bri8tqs Ag- vp, at 73. As wc havc seen, salc by privatc trcaty is
6r Section 8(4). prohibited unless all intcr"stcd parties cotr*rr! s. 8 (1) & 9 of thcMortgage Decrce,

I Lt
I
 122 Principles of Land Law in U ganda . Mortgages l)J
injunction to restrarn the sale from proceeding. The granting of an interim injunction is of couse at orderofpriority. TheremaiqderoJtheproceeds,ifany,ispaidtothemortgagor. Thecourthasthe
the discretion of the court, Normally, the court will not grant an injunction udess an applicant powet to order, in the case ofa sale colsequetrt upon a foreclosure, that
tlie lroceeds be deposited
presents a prima facie case tlut the respoudent's act or omission is wrongfirl and that there is a into courtfor disribrrioq tboughthecourt has nopowerto altertheprescribed'order
ofdistribution.Tt
probability that the applican: will prevail on the rnerits ofthe case at firll trial. Secondly, the i4lunction To avoid liability, in most cases it would be prudent for the mortgagee, after paying
rrimself or
will not nonnally be granted unless the applicant rnight otherwise sutrer irreparable injury, which hersel{ to deposit the remainder ofthe proceeds into court.
would not be adequately compensated by the award ofdarnages. Thirdlii ifttre court is in doubt, it It should be noted that if the proceeds are not enough to pay for the costs of the sale
and to
will decide an application on a balance of probabilities.?o The cout may in addition deurand that the discharge the mortgagedebt, that is not the endofthe matter. The mortgagee
can bring action as
applicant pay a sum ofmoney into court and or undertake to pay damages 10 the respondent in the an unsecured creditor against the mortgagor for the shortfall based on ipersonal
covenant to
event that the action fails. pay'76 In practice, the action is likely to be pointless because the mortgaged
iand would usually be
Where the sale is cornpleted, the rnost common rernedy available to an aggrieved mortgagor is the mortgagor's only worthwhile asset.
to institute proceedings for compensation for loss suffered as a result of tlre unlawful mortgage
sale.?t Damages arc awarded Lr the usual rval'. For exanrple, in Mubiru v Uganda Crcdit & Savings
Cornpletion of a mortgage sale
Bankll themortgagor was awarded damages calctlated as the difference behveen the true market A mortgage saletransactionis completedbyregistrationofthe purchaseras proprietor
oftire land.
The purchaser takes the land free frorn all intere$s that lvere created afler thi
value of the properly and the value realised from the improperly conducted mortgage sale. In ,illing *ortgug..,,
itrterest was registered. But the purchaser takes the land subject to aty interest wfricfr
Sajabi v Amreliwalla and Wanrala,ls the court fourrd that the mortgagee sold the land by private fraa ptority
to that mortgage.T For example, asurne that the land 'lms subject to ti-,r..
treaty without serving the mortgagor the statutory notice aud conspired with the purchaser to sell *o.tguges: A, B and c,
thelandbelowitsmarketvalue. Thecoutawardeddamages against &emortgageeand thepurchase4 jggistered in tlut order. If B caused the Iand to be sold, the purchaser would takf tteland free of B
I

nreasured as the value of the land at the time of the unlaudrl sale, lqss the amount of money due on
snd c's mortgages but subject to A's mortgage unless the latter were paid 0ff.
the mortgage at that date. v) Foreclosure
Protection of purchasers At common law, if the mortgagor failed to pay &e mortgage debt by the agreed
date, the urortgagee
Unders ll? ofthefieglstration ofTitles.,lcr. which was repealed by s. l6(b),A'lortgage Deuee.the becarne the absolute olvner ofthe rnortgaged land, irespective ofivheure-r
the value ofthe land far
title of a purcluser at a lrortgage sale was not impcachable rnerely because thc selling mortgagee's exceeded the money owed. However, the Court ofEquit intervened
and allowed tlie-rnongagor to
power to sell had not arisen or that the sale was otherwise irregular. The secrion provided further redeern, even after the contractual date had long expired" on payment
of the nortgage debt and
that a purchaser had no obligation to inquire lvhetlier or not tlrc condition of sale had been costs.Tt To prevent the rnortgagor frorn redeeming the land, the mortgagee
had to ieek a jud.icial
compliedwith" lncortnst, section 8(7) of theMortgage Decree, provides thatthetitleofapurcluser orderfor foreclosure. Thus, foreclosurewas the name givento the proceliviiereuy
tle mofigagor,s
acquired at a mortgage sale consequent upon an order offoreclosure shall not be impeached on the equiable right to redeem llas extinguished and the mortgagee was left as the
absotute o\lner of ttre
ground that the orderlor the sale was improperly or irregularly made. The scope of this provision land both at common law and in equity.?e By a foreclosure order,
the coun of Equiry effecdYely
is not very clear. It would seem that tlrc provision oniy protects the purchaser where the court erred closed its doors in the mortgagor's face.e In practice, lvhen the mo(gagee
applied for a for*losure
in making a foreclosure order. For instance, the purcluser's title will not be affected in a situation order, the court allowed the ruortgagor a period of six rnonths wittriiniiucrr
io pay the mooey oue
where, afler the sale, the court overturns a foreclosure order made by a district tribunal on the with ioterest. Atthe expiration of the six rnonths, on default ofpuym.nq tn..offigee
*ouJd take
possessiou of the land and the mortgagor's right to the
grounds that the order was misconceived. However. it is submitted that, unlike the repealed s. I 1 7, land would end.sr
oftherRegis/ration ofTitlesAcr, s. 8(7) oftheDecree does not protectapurclxNer's titlewhere, for The remedy offoreclosure was e,xpressly recognised under s. 130
of theRegr strarton of nths
example, the sale was not properly advertised or othenvise conducted in a rnarurer which constituted to mortgages created under the1ct.s2 However, since s.130 ias repealed
49r_as _applicable by s.
16@) of t\e Mortgage Decree, it is subrnitted that the only remedies
a breach of the selling mortgagee's duty of care to the mortgagor. Nor does it protect the purehaser's available to a morrgagee of
title ifan irregularity occurred in a urortgage sale which was conducted withoutjudicial sanction. land registered under the Act are those set out in the Decrel.t
Accordrnglv, tne Lqoitaute ,e*.oy
Nonetheless, it is submitted that even in such cases once the transfer is registered under the offoreclosure is no longer available to a registered rnortgagee.
Registration ofTttlesAct, in the absence offraud, a purchaseracquires an indefeasible title under
Renedies of equitable mortgagees
section 6l of that Act.74 tn Barclays Bank (U) Ltdv Northcote and
another,s Ssekandi Ag J observed that while s. l3g of
Proceeds ofsale the Registration o/Tltles Acl,provides for the creation
ofequitab-te ruortgages by Jeposit ortitre
Section 10(l) of theDecree prescribes the priority in which the proceeds frour any rnortgage sale are
to be distributed. First to be paid are the experues properly incurred or incidenlal to the sale. Next 1t
Section l0 (3).
to be paid are all sums due to the selling rnortgagee and any other encumbrances with the same 1a
Rudge v Richetu (i873) LR 8 Cp 588.
11
Section 8 (6) of the Mortgage Decree.
,l
Canpbell v l{ofuladd [1S7?] 7 Ch D 166.
10 Giella y Cassnan Brown ond Co Ltd U9731 EA 358 at 360, per Spry W.
1'
Thc cxprcssion forcolosurc as uscd hcrc difltrs fiom thcMorlgage
7r t0 Decree.
Scction I (4),Mortgage Decree provides that whcrc tho brcach is failurs to notity thc mortgagor ofthc & Wadc, The Law of Real propery,supra, p. 933.
tl Y.gr"y y
sale, thc only rcmcdy for tho mortgagor is damagcs, Matambulirc Kmero CA No 32 of l9Z2 (unrcport O;;
r: 1ISZS1 HCB l5O.
':?3 CS No 567 of 1965; (1978) HCB I09. B ardityi bdik D.c.o. v &tu Milkrsk i e5e j EA siri jso.
t! t
"i No 1467 of
n956l22EACA7l. sectlso Bcrclc7s Bank (J) Ltd v Norhcore ani anotrter cs
I ta r974(unrcported).
SeoS4ybDi v Amreliwalla and Wannla.lbid. of indefeasrbility in Chaptcr CS No 1467 ofl97{ (unreported).
" Sec also the discussion 5.

-d 6{
124 Principles ofLdndLae tn Uganda

deeds as secrrrity, neither theRegistration ofTitlesAct nor theAlortgage Decree makes provision qver customap lald or to a msrtgage of a tenancy by occupancy.D In
that case, the
for the remedies available to an equitable motgagee. Accordingly, his Honour felt compelled to must resort to the conrmon Iasv fcrr his or her remedies.
It is submitred that the common
look 'elservhere' for such remedies. The issue had already been canvassed in thejudgement ofSir are the same as in tbe Decree,$ erc€pt tlatthe mortgagee
will require a judiciat order to
Kenneth O'ConnorP,inBarclays Bank D.C.O,y GuluMillers LtdLimited,Es whichwasdelivered orher security.qr In additiorg ttre mortgagee may enforce a foreclosure,
whiclr, as we have
rvellbeforethei,lortgageDecreewasenacted. There,SirKennethheldthatthelawapplicableto no longer available under the Decree.
equitable mortgages is to be found in the doctrines ofequity. Following thisjudgemen! Ssekandi CIearly, lhere is a need forthe legislature to harmonise the
law ofmortgages. In
Ag J held that: Mortgage Decree ndslo be amended to bring it into line
u/ith the Land Act.
present it is not clear as to the notices ard their length
It would appcar that the diffcrencc bctween an cquitable mortgagc and a legal mortgage as regards that a mortgagee of customary
tenancy by occupancy must give prior to enforcing a
remcdics is that wl:crcas a lcgal mortgagec may rcalise his security unda a nrortgagc by cxercising sa1e. Since the Decree does not apply to
mortgages, he mortgagee is not bound to follow the procedure prescribed
most of the statutory powcrs conferrcd upon him without recoursc to thc courts, an cquitable by theDecree.
mortgagec must ofneccssity apply to thc courts for exercise ofany ofthese powcrs, In accordancc
it is suggested that the mortgagee should, as much as possible,
use the procedure as a
with the principles laid down id Barclays Bank v Gafu Millcrs Ltd ... thc court may avail to an
Discharge of a mortgage by payment
equitablc mortgagec all the rcmedics available to r legal mortgagec. Thc rcmedier availablc to a legal
We have so far considered situations where the mortgagor
mortgagec arc now set out in theMortgage Detee 1974 and these arc in my view equally availablc defaults in payment of the
to an cquitablc mortgagcc subject to ccrtain considerations sct out in [that] judgcment. debt. In practice, most mortgages are discharged by payment
within the prescribed period.
the mortgagor pays offthe mortgage debt, the mortgagee signs
a di scharge form, which is
Ssekandi Ag J stated that the appropriate procedure to follow for an equitable mortgagee seeking in the Tkelffh Schedule of the Registration of Titles Acr. Upon its
registration, the
to realise his or her security, was in the first instance to sue the mortgagor and obtain an order for discharged and the land ceases to be subject to the mortgage.e2
an account ofthe outstanding mortgage debt. Then he or she should seek a declaration that he or
she is entitled to a charge on the land comprised in the certificate of title referred to in the
Eeutryts pRoTECTIoN oF A MoRTGAGoR
memorandum of deposit to secure the amount outstanding plus interest and costs. The declaration
should be followed by an application that if palment is not made within a specified time, the Equity's protcction ofa mortgagoris mmmed up in the maxim 'once
a mortgage always a
mortgagee may realise the security by pursuing any or all of the remedies provided for in the This maxim applies in two broad ways: the teit for a mortgage is substance
and notform and
Mortgage Decree.E6 there shouldbe 'no clogs' on the equity of redemption. The former
means tlnt whether a
is a mortgagc or some other transaction it is not a question
Remedies of mortgagee of customaryland and ttnancy by occupancy ofform but ofsubstance.
parties enter into a contract ofsale ofland which in essence
ln Jakana v Senkaali,E1 it was held that the remedies under the Mortgage Deuee, apply only is a mortgage, in equity it is
as a mortgage and all the consequences of a mortgage will follow.e3
rvhereamortgageiscreatedundertheReglshationof'TitlesAc/. Inthatcasetheplaintifadl'anced No clogs on the equity
redemption rneans that the court will not permit any attempt by the mortgagee
to the defendant a sum ofmoney. As security for the loan the defendant deposited the title deeds to exclude
mortgagor's ight to redeem his or her property. Lord Lindley, in S amu e I y Jarr
of his land with the plaintifr's advocate. Under the terms of the contract, if the defendant failed to ah 7i m b e r &
P avi n g Corp,ration, explained the maximthus;ea
repay the money within one year from the date of the contract, the plaintitrwas entitled to sell the
land. When the defendant defaulted, the plaintiffbrought proceedings for a court order that the The doctine 'oncc a mortgage alwap a nrortgagc' mc,ns that no contract
bctwecn a mortgagor and
defendant pays the outstanding amount or, in the alternativg that the land be transferred into the a mortgagcc madc at thc time of the mortgage and as part of the
mortgage transaction, of,ii
orher
plainti-ff's name. It was held that there was a binding contract and that the plaintitrwas enljfled to words, as onc of the terms ofthe roan, can uc varid ir it prcvcnts thc
judgement for the amount of money claimed. Wth respect to the mortgage, it was held that for a
i.o'.tgngo. r.orn ginr"g
his.ptopety on paying offwhat is duc on his sccurity. Any bargain which
i."r
i"Jtnut cftJt is iiv"lia,
modgagee to enforce his or her remedies under the lr[ortgage Decree, the mortg6]ad1o be and is inronsistent with the tnnsaction being a mortgage.
registered under lhe Registration ofTitles Act, as either a legal moftgage or equitable mortgage. In
Equity's intewention was justified on the ground that mortgages tend to be
tlle instant case, there was no evidence that the modgage $as registered under the Ac1.s Therefore, entered into by
peoplewhou'ould accept whatex/er terms 'craffy' creditors may impose
the plaintiffcould not rely on s. 2 ofthe Decree to realise Ns security under the mortgage. It follows upon them.e, For
inMatambulite v Yosefu Kimera,s the plaintitr, in desperation to go on a pilgrimage
from this judgement that the mortgagees' remedies under the Decree do not apply to a mortgage to

tt Sec also the dcfinition of .morlgagc' and .thc Act' in s. I g ofthc Decrce.
t0 Altqnativcly, the court courd-rpply
rJ [1959]EA54o. 1!c rme
v Northcott and arofier CS No 1467 of L974,
remedies by shtutory analogy. sce Ba rcrays Bank ())
t5 For commcnts on this casc scc Bossa, 'Commcnts on rcccnt legislation: Thc Mortgage Decrce No 17 of
197 4' (197 5) 1 &2 The U ganda l,av, Foats 17 7.
" Ibtd.
t' CS No49l of1984 (unrcported); [1988-90] HCB 167.
'2 Section L34,RTA.
t! With rcspect. it is submitted that thc judgc crrcd whcn he said that an cquitablc mortgago must be
" !:", ".q., (irangeside Properties Ltd v cottingwood sec]urities Ltd et al [1964) 1 wLR 139. sce also
Matambdi.ev CANo37 of 1972 (unrcportcd); tl97sl HCB 150.
'registered' under thc Act. As we havc sccn. rn cquitable mortgagc ofa ccrtificatc of
is created by dcposit tt u 904] AC 3?3 Kimera
at 329. This case was cited with
'rpp*"r|'m
titlewiththemortgagecandthclattdmustlodgcacavcattoprotcctthemortgage,s.l38,RZ. Itsecmsin Mor^htlire v rozefu Kimcra, ibid.
" samuclvJ,rrahrimbo&woodpmingcorporatii,Ibid,rt32l,prl,ordMainaghtcn. Howcvcr.Hir
theinstantcasethattheplaintiffdidnotlodgcacavcat. ThelcamedjudgcdidnotcitcthccaseofBarclays lordship cautroned againstjtrdicial intcrvention to dclcat bargains frely entcred iltl by persons dcaling
Bank of(J) Ltd v Northcote,supn. But it would seem that the two cases arc distinguishablc on thc ground at arms' lcnglh.
that thc purported mortgagc in Jakana v Senkaali, wBs not Protcctcd by a coveat.
'6 CA 37 of t972 (unrcported).

iI
A h-
 126 Pnnciples o/ Land Law in Uganda
Mortgages 121
mortgaged his land to the defendant on @ndition that if the plaintitr failed to pay offthe loan
within a specified period the defendant would become the absolute owner ofthe land. After the found that the parties were ofegual bargaining strength. the mortgagor
freely accepted the terms,
contractual date for payruent had expired" the ddendant clairned ownership ofthe land and rejected and it could not use the court to breach its contract.-
the plainti-fls subsequent attempts to redeem. It was held that the plaintilf rvas entitled to redeem onthebasis of these two authorities, it would seem that postponement
of the date of redemptron
until his right to do so was foreclosedby order ofcourt orthe land was otherwise disposed ofin a by itself is not a ground forjudicial intervention unless in tire cir.r*,un...
orfarticular case it
f tli mortgage sale. Similarly, a clause in a mortgage agreenrent that gives a mortgage€ an optio[ to renders the right to redeem illusory.
e,tr, purchase the mortgaged property is a clog because it deprives the mortgagor of his right to
Colla&raladraatage
dc redeetn.ot
A collateral advantage in this context refers to any additional benefit
;ud A clause in a mortgage contract may provide that the mortgage shall not be redeemed earlier to payment of the secured
debt and interest which accrues to a mortgagee under a mortgage
mf,. than. for example, ten years from the date of the contract.et Where the mortgagor seeks to redeem agreement. For exampre, in
earlier a question rnay arise whether such a clause ts a clog on the equiry ofredemption. The
Faircloughv swan Brewery conryany Limited,the colrateral aivintr!.
irc" *u, th. *onopory for the
marketing of the mortgagee's product. Prior to the nineteenth
question might be answered by reference to two English authorities, which are often cited in this enturf the traditiona] view of the
courts in England was that the essence of a mortgage \vas to
regard,. ln Eqitslpgg,h v SwaL-E&wgrv CouLary! Limiled,e the applicanVrnortgagor had a lease secure money lent; therefore any other
iaF advantage foreign to this basic object rvas void.'6 6radually,
over a hotel for a period of seventeen years. He mortgaged his lease to the respondent (which was this nrle lvas
relaxed in line with the
Incc subsequent economic developments and the notion of freedom
a brewery company). The mortgage was subject te the condition that the defendant should not of contract. As a resutt, more
o( redeem earlier than six weeks before his lease had expired and that during the continuance ofthe
re'':nt cTes support the proposition that a collateral advantage
is not necessarily a ciog on the
ie is equity of redemption. especially wrrere trre advantage terminatle,
mortgage only bser brewed by the plaintiffshould be sold on the premises. The defendant sought upon ,.d.*f tiori.,t
an early redemption so that he could be released from the restriclion to sell only the plaintiff's beer.
4
Other grounds for judicial intervention
The issue was rvhether a clause postponing redemption was a clog on the equity of redemption. The.courts have in}erent powers to intervene in mortgage
The Prily Council held that the clause rvas a clog bepause the right to redeem was illusory or agreements, as with any otller contract,
on the grouad that the agreement is in restraint of trad1.
It is an established common Iaw rule that
valueless. Lord Macnaghten explained the Privy Council's reasons as follows:rm a contract that operates as an unreasoi-rable restraint oftrade
ge'. is invalid as being coot.a.y to puutic
Fore:<ample, a prwision in_a rnortgage agreement
Ut( Tho lcarncd counscl on behalf of tho rospondcnts admittcd, es hc lvas bound to adnrit, that a ryt?.t
sluu
that for a grven period trre rnortgagor
9nt{9at tle mortgageet products rniyk ctrauengea on grounds of unreasonable restrainr
tioa nrortgago cannot bc madc ircdcemablc. That is plainly forbiddon. Is therc any difforcncc betwecn ln
'tle forbidding and pcrmitting. it, iftho pornrission is a merc prctoncc? Hcrc thc provision for rcdernption of trade. whether indeed the restraint is unreasonable
will d.p.r,I on ,rr.rur a.o., i*ruding the
is nugatory Thc inounrbrancc on thc lcasc thc subjcct ofthc mortgagc accordrng to tho lcttcr oftho duration of the restmint and the reasons for it.r6
ded
bargain falls to bc dischargcd bcforc thc leasc tcmrinatcs. but at thc timc whcn it is on thc vcry point Equity may also give reliefagainst terurs in any co[tradual
yof transaction ifthey are oppressive or
of cxpiring, when redemption can bc of no advantagc trc thc mortgagor evcn if hc should bc so unconscionable.r,T It is important to note that the
the fortunetc to gct his deeds back boforc ths aotual tcnnination ofthc lcasc. For all practical purposos term .unconscionable, mearu more thaa
bod unreasonableness' The court will not intervene in a rnortgage
this mortgagc is irrcdeemablo. It was obviously mcant to bc irre.dccmablc transactiou merell because the terms
are unteasonable, because it is up to the parties
to deciae what ttrey consider io ue reasooauie.,o
The above case slrould be compuedwithKlightsbridge Estat@l It will onJy intervene ifthe terms are shown to be rnoraliy
reprehersible, especially ivhere one parr1.
In this case, a mortgage provided for the repayment oftlrc principal aod interest by eighty half- seeks unfairly to take advantage of another. For
yearly instalments spread over a period of forty years. In view of falling intcrest rates, the mortgagor
exaruple. in the High c."n
of Jgmauilahihtt-t@ a mortgagor sought a declaration
.ril-"ia
in the case
TL\ ttrat oo peri", in,.r.r, ruu p", annur' R.as
sought to redeem early in order to take advantage of a loan elsewhere on better terms. The harsh and unconscionable. MapiganoAg theld
cr'\ that thernterest rate was evidently unconscionable
mortgagor sought a declaration tlBt postponement of redemption for a period of fody years was and extortionate and the respondent had not adduced
evidence to show that it was"nor n aeciatg
unreasonable because of its lengt[ and that it was entitled to redeem at any time by serving a six- lvhat constifutes excessive rates His Honour refused
to follow an earlier casero that stated that a
monthnotice. Itrvasheldtluttherewasnoruleoflawtlatpostponementofredemptionperseor contractraleofinterestofgreaterthaa4gper centperannum isprintafacieex.orir.. mrHonor.
foranunreasonableperiodisaclogontheequityofredernption. FollowrngFarrclough,thecovrt
said tlut postponement is a clog if it subsists so as to make the equiry of redemption iIlusory.
However, Green MR added tlat postponernent may be one of the factors which the court may uke
into account in deciding overall whether or not a mortgage agreement should be set aside on the
ground that its terms are oppressive and urcorucionable.r@ On tire facts of this case, the court
tot Jennings
v Ward (l't)s)
S20. 2 Vcm
e7 Sanuel t'a comparcBiggsvHoddinou(\il9l)2Ch3}T,udNoakesandcoLtdvRice[1g02]AC24.
v Jarrah Timber & l[/ood Paving Corporanon fi9C4j AC 323. It is not a clog if tirc optiou is
Horvever,in
G and C Kreghnser v New patdgonia.ttleat'Sbr;Be
granted in 8 separatc agrccnrent, scc Reeves v Lisle [1902] AC 461. io La. pst.llac ii, ,t . piry c*ncil uphcld a
Thc advantage of such a clause from thc nrortgagec's vicwpoint is that it provides tho rnortgagec a sccuro was stipularcd ro continuc" after r"o"rnpuon.
't , r, :o]llF{jdrantagc.rhat
investmcnt at a favourable interost ratc (subjcct ofcoursc to inflation). It has be€n hcld that ifthcrc is uo
cxpross provision precludiug carly redcnrption, thc mortgagor is entitled to .rdccnr at any titnc, sec G I "i
1,0^1-
oroLtd U968lAc 269.
Investmenls Pty Ltd v Slandard Insurance Co Ltd II 964J WAR 261 at 2o7 tor flighubridge Esnu Trust Limitea ayr""
":"i
.i"i i6rglch D 441.
,e .[19!2].AC 565 (Pq).
lbid. "
t00 lbid,att70.- - lll'Ugz:i eq roa G,.
r0r n9391 ChD44l. "' Mohoned Moiffidi v Athman Shqnre [1960] EA I 062.
rc21f,.ffif;--
728 Principles of Land Law in U ganda
8
reasoned that having regard to the prwailing social, political and economic climate of Tanzania
where'the eradication of exploitation is declaredpolicy andwhereunfairplay is frownedon, itwas Servitudes over Land
not only interest above 48 percent which may be regarded as exploitative.'rtt Mapigano
Ag. J opined that inthe prwailing circumstances of Tanzania any interestrate above 20 percent per
an-num'could perfectly cause the court to raise its syebrows and require the party who claims it to
IrrrRonucnox
prove that it is proper and fair in the circumstances ofthe case as a whole.'rr2
It should bcstessealthatall the zurrounding cirormstances will bc consideredbefore the court This chapter deals with thelaw governing'servitudes'. The term'servitude' in Roman law
intervenes in a mortgage a$eement on equitable grounds. rights ofuse ofanother's land in a specified way. The rights considered are: easements,
prcn&e,res/iic.ive covenants, customary rights, and licence. With the exception of a licencg
rest ofthese rights constitute interests in land and, subject to the principle ofindefeasibility,
enforccable against whoever is the landowner.

Ensrvmrrs
An easement is a right attached to a particular piece ofland that entitles the owner ofthat
eitherto usethe land ofanotherperson in a particrrlar manneror to restrict that otherperson's
ofhisorherlandtoacertainextentrThelandtowhichtherightisattachediscalledtlrc'dominant'
landandthatoverwhichtherightisexercisedisthe'servient'land. Forinstance,supposethatA
and B are adjoining plots and that the owner ofplot A has a right to use a driveway over B's lald
to reach a public roa( that right ofway is an easement. Plot A is the dominant land and plot B is tle
servient land.

Essential features
An easement is an interest in land and, subjea to the principle ofindefeasibility, is enforceable
against any proprietor ofthe servient land.2 A right over another person's land does not become al
easement merely because the parties said so. It must satisry certain essential features of an
easement prescribed under the general law. These are:
(D there mustbein existence a dorninantand a servient land;
(i! the right must accommodate the dominant land;
(iD the dominant and servient land must not be owned and occupied by the same person; and
(iv) the right must be capable of forrning the subject matter of a grant.
Dominant and servient land
An easement cannot exist in 'gross'. This means that a right cannot be an easement unless it is
* connected with a dominant land that belongs to the person to whom the right is given.r The object
ofgranting the rightmustbetobenefittherseofthegrantee's land andnot the granteeindependently
ofownership ofland. For enample, if{
ownerofcertain mailo land, gives Y. ownerofneighbouring
land, permission to use a footpath on her land in order to reach a public road, the right ofway is an
easement. Suppose X gives the same permission to W. If the latter does not own any land at the
material time, the right of way is not an easement but a mere personal licence.l A public riglrt of way
is not an easement precisely because the right is dedicated to the public at large irrespective of
connection with any dominant land. In the case of Makumbi (t{rs E) & another v Puran Singh
Ghana & another,' Bennett J said that a plea that a certain road used by members of the public was

t EHBum,C}cshircandBurabModentLawofRealPrcpcrty(l4acd.,l,ondon.Butterworths, 1988), p.
490.
2 See below.

' Makumbi (Mrs E) & anoth*,t Paran Singh Ghana & another [1962] EA 331.
lil 164at 111. 'I Hill v Tupper (1866) 2 H & C 121, for thc sigrrificrncc ofthc distinction, scc 'liccncc' bclow.
t,, 16,75"q116n 73(l)oflheMorlgageDcc,rce,lgT4givesthcministcrpowcrtofixfromtimototimcthcratc n9621 EA 331 at 333.
ofinterest chargeablc in mi,Igag. transaction. To date this powcr has not bcen cxerciscd.
"ny 129
 130 Principles olland Lav tn Uganda Semitudes over Land l3l
(customary be created in respect ofland owned by the same person where different persons occupy the
a easement' was unfortunate since ao easement enjoyed by the public at large was
unknownto law6 'dominant' and 'servient' land. For example, a landlord can reserve :ln easement of way ovei part \
The requirement for a dominant land ruy be excused by statute. For instrmce, under the Water ofthe land occupied by a tenant for the benefit ofthe land he or she retains.
Statute, 1995. the Director of Water Development has the power to create ao easernent over a
The right must be copable offorming the subject matter ofa grant
person's land for carrying water, drainage or waste under, through or over tJrat land to another
This requirement embraces several things. Firstly, it rnears that there must be a capable grantor and
persol's land.' The Act does not require the Water Authority to own the land to be benefited by
a capable Srantee. For example, a stafutory corporation with no capacity to grant an easement
such easement.
cannot grant an easement 11 Secondly, it means that the right granted must be capable ofreasonable
Easement must accommodate the dominant land definition. For instance, a right ofprivacy or a right to a view is incapable ofbeing an easement
A right $anted is not an easement unless it confers a benefit on the domirunt land or some activity because it is too wide.rs Thirdly, the right granted must be within the general niture of rights
courected therewith, and is reasonably necessary for the better enjoyrnent of that land. For an capable ofedsting as easements. Though the list ofeasements capable ofbeing created is niver
easement to accommodate the dominant land, the servient land should be close enough to the closeq it is customary for easements to fall under one of the well-knowrr categories: right ofway, to
dominant land to confer a practical benefit on it, though this does not necessarily mean that they lighf to suppor! and to water. Newer righs to be recognised as easernents inilude rigtrt to a tenant
must be adjoining. A classical illustration of this requirement is the case of Re.' Ellenborough to use a toilet in a flat occupied by a third party;t5 a right to store goods on land;r, i right to park
Park.r A developer subdivided a block of land into srnall plots, which they sold to various pemons. a car ina defined area;tt and a right to have a fence nraintained by an adjoining ownerJe
They left out an inner portion of the block, known ns 'Ellenborough Park', to be maintained as a ,- In contrast, tlre courts have refused to recognise as an easement a right of privacy. For example,
pleasure ground for the f,rll enjoyment, at all times, by the owngrs of the surounding plots in '- '6'HansraiThaHcarvTheVanikL{ahaian,2otheplaintiffanddefendantiwneOuaioiningprop..ti.r,
common with each other, subject to contributionfor its nuinteuance. Dunng the Second World which for over sixty years wcre separated by a wall. The defendant renovated his house aad
War, the government requisitioned the park so that the surrounding landowners could not use it. installed two windows in the wall overlooking the plaintiff's properfy. The plaintiffbrought
The government paid a yearly compensation rent and an amount for dilapidation. The respective proceedings cornplaining that the installation of Oe windows in the wall interfered\i/ith his privacy,
owners ofthe plots, all ofwhom were successors in title ofthe original orlncrs, claimed a sbare of He claimed that since the disputed wall had be€n in existence for over sixty years as a blank wall
the compensation money on the basis that they had an easement over the park.e facing his property, a right of privacy had been attached to the property by prescriptioa It wasleld
Against their claim, it was contended that the right granted was not an easementbut a mere that English law does not recognise any easement of prospect or privary. Other righs held as
licence granted to the original purchasers. This corrtention was partly basal on the argument that incapable ofconstituting an easement include a right that obliges thi ownir oftle servient land to
there was not sufrcient connection between the right granted to enjoy tire park for pleasure and . spend money;2t and a right to exclusive use of a room.22
relaxation and the ordinary use of the applicants' land" which was the alleged dominant land.to The
issue was whe&er the right accommodated and served the prope4y in questioru The court held Creation of easements
tlat whether or not a connection exists between the right granted and the nonnal enjol'rnent ofthe Easements may be created by statute, express grant, or reservation and by imphed reservafion
or
alleged dominant landis mainly a question offact which depeuds onthe naturobfthe land andthe
gant. In addition, easetnents may be created by way of necessity, inrplication from the panies,
right granted. The fact that a right snlu4ees the value ofthe land, though relevant was not agreement and by prescription.
conclusive; it must be shown that the right was connected with the nonial enjoyment of that Easement by statute
properly. On the facts of the case, ttre court held that there was sufrcielt connection because
A statute may authorise, usually, a public authority to create easemeots for carrying out their
residential property is always improved in character by the availability of a garden and that a
activities. For example, as we have seen, &e Director of Water Developmetrt has thi pouer to
garden is a nonnal attribute of a house. The faa th:1 i1 1v65 a 'collective garden' was not to be
create an easement over a P€rson's land for the purpose of carrying water under or over that land
material. However, the court limited its flndhg to houses neighbouring &e Ellenborough Park and
to a[other person's land.a Easements created by statutes ueed not have all the essential
not houses which were at considerable disance &om the park.rt

The dominant and servient land must not be owned or occupted by the s6me person ta National Guarantee Manwe Co v Donald (1859) 4 H & N 8.
i a requirement for an easement thrt the dominent aud servie$ Iand must be owned and or
It is tt BrownevFlowollgllllCh2lg.Comparcwiththorightoffullenjoymentofthepark,whichwpshcld
I occupied by different persons.t2 Tbe reasos is an easemot is a right exercised over another to bc an casomsntinRe: Ellenborough park[1956)3 All ER 667,
f person's land for the benefit of one's l:rui Where ao onur of ITliteacrc and Blackacr€ passes t' Mill* v Encer Products Ltd ll956j Ch 304.
I over lllhiteacretorerchBlackacre heorsbeis uotercisinga rightdvayn reqrx,. ot l(hiteacre, t7 souhernNigeriavJohnHolt&coLtd[lgls)Ac599.
Seoalso wightvMacadamllg4g)2K8744.
s butrathermakinguseofhisorherlandoge&omorcprtdttoaaothel!] Butaneasementmay lftt Mcgarry & WaAc,The I*w olReal Property, p. 840, noto 34.
Crow Wood F97Q)3 All ER 425. At 42g,i.rlrd Denning said that strictly spcaking such a right is not
"
an casemcnt bccausc it involvcs tho scrvicnt owncr in thc cxpcndituro of monry .Bul
F
t lbid,at33233. in practicc by thc courts as bcing an cascmcnt ...'
rt has been treated

? Scction 36. 19 n960l EA2o8.

I [l956] 3 A[ ER 667, 'r For cxamplc, an obligation to maintain a road cannot bc tlro subject matter of an casement which runs with
'r0 If th.y wcrc lhc original purchascrs, thoy would.hrw bsd &Ei cLh 6g .rtr+s' li;sscc..
l:
ttrc.lar-r!, and thcrcforc docs not bind succrssors in titlc: Jonas v Prilchard
[1908] I Ch 730. Ses also
Tho rcst oftho rcspondcnts' argumcnt is discussed bd.m. Austerberry v Oldham Corporation (1885) 29 Ch D ?50. Thc only oxccption to thc rulc is a right to havo
I I Scc also another classical cav" Hiil v Tupp * llffil-T3l lI ER ffi. ono's neighbour maintain a fen*. S* Crow v Wood
tz Re: Ellenborough Park |956)3 All ER 667. - Grigsby v Melvilte
22 [l970l 3 All ER 425.
11973)3 All ER 455.
t' Roev Siddons (1888) 22 QB D 224 at236. 2r Scotioo 36 of tho lYater Statute,l99i,
132 Pinciples of Land Law in Uganda
Senitudes over Land 13!
characteristics of easements. For this reason. such rights created by stafute, which have some but &aL wiflr the exception of.easerneffs ofoecessitv and an intended
easement. a reservation of&
not all the characteristics of common law easements, strictly speaking ar€ not easements but easement could nor be implied inft.rour
statutory rights and should be trealed as sul generis.24 The nature and content ofthese rights is
of the rand retained by rh.
reserve an easement in faruur oftlre laad retained.
gr;"i;;.]f;
j.un or*no
*
dependent upon the statutes that enabled their creation rather than the common law.2r
he or she ,irn a?r" .-p*"fi-
Ease m ent o/w ay of n e ce ssi ty
Easement by express grant or resen'ation wtere a landowner sells part of his or her Iand and
the part he or she retains is Ieft without
Al easement may be created by express grant, For example, assume that Saryu sells part of her legally enforceahle means. of access to a puuuc .oal. any
an easement of way of necessity will
landto Paul and in the transfer, shegrantsPaul, forthebcnefit oftheland soldto him, a right to use implied wer the land sold-' Likewise. wtrere a be
unio*ner grants part of his or her land to another
a footpath over her land to reach a public road. The right to use the footpath on Sarynr's land is an and the latter has no legally enforceable means
of access to the land then an *.arnant of way
easement created by express gnnt. An easement by ex?ress reservation is created where, in our necessity arises by operation of the law over of
example, Saryu sellspart ofher landto Paul and intheinstrument oftransfer she reserves a right of
the land retained.ro
of lawbecause it is a matter of necessity and vital
n
. .or.*.ni ,.iles by operatioo
to the effective of the land
way over the land sold for the bencfit of the land she retains. The right of way is an easement that the o'vner sltould have access to it. otherwise the
land would "*rr*rrip "iti,.ipart
not be of inuch usi to trim o, t er.
created by express reservation. The legal etrect is the same lvhether an easement is created by Thelawisilrustratedbvtheaseof BarctavsBankD.c.o.v parrtri
exprcss grant or by express reservation. ofcertain land in Nairobi, subdirided the land into three plors:
h it;l:T;;rrt, proprietor
A" B and c, ,ni t .a1n. m... ptot
registeredundertheKeryaRegislrationofTitresAct(cap2gr).
Easement by implied grant or resen,ation rtotarunteaoniangataRoad,a
public road, but there was no means ofaccess proi
Wrere a landorvner grantspart of his or lter land to anotherperson, thecourts will readily imply an to B and c except via surrounding rand with
permission of the respective owners. In 1944,
intention to grant that other person all 'quasi-easements' pertaining to such land. A quasi*asernent
Tebbutt sold plots B and c to
transfer nor the certilicates of title issued to Moore rnentioned
M;;;.
Neither the
is a continuous aad apparent easement which is necessary to the reasonable enjoyment ofthe land. any riglrt of way to the two plots
from Langata Rond over plot A, which Tebbutt retained.
and is at the timc of the grant used by the landowner for the benefit of that part.36 A quasi- Later, Tebbutt sold plot A to ute appellant
again without ar5' reference to a right ofrvay. indeeal
easementisbestexplainedbyillustration. SupposeLutayaownsandoccupiestwoadjoiningplots the certificate ortitre"p.ciricariy declared that
plot A was not subject to any encumbrance. Subsequently,
of land we slull call A and B. His house is on plot A and plot B is vacant land. Lutaya uses a plots B and c lvere sord to the
respondent.
footpath overplot B as a shortcut from his house to the main road. The footpath wouldbe an Sweral years later the respondent brought these proceedings
easement but for tle fact that both the 'servient' (plot B) and 'dominant' (plot A) land are owned against the appellant claiming a
right o{
and occupied by the same person. Nwertheless, the footpath is regarded as a 'quasi+asement'. If 1ay of necessity over prot A. on appeal io rtre east .it i.a cor.iiiippeat. it rvas
contended for the appelrant that the circumsiances did
Lutaya sells or leases plot A to Robina, unless a contrary intention is expressed in the instrument necessity. Secondly, that in any case the respondent
not *ppofi; ;ir*;
o, a way of
oftransfer, it is implied that he intended to grant her the right to use the footpath inthe same way was not entitled to the easement ofway of
necessity as no relerence to such easement wa; made
in the transfer or in his certificates or that of
as he himself was using it prior to the transfer. Quasieasements are sometimes referred to as the appellant. The court found that-at the_time the
respondent', p..a....ro. in;ii., M. purchased
easements created under the rule of lWeeldon v Burrows.n the two plots from T, he had no legally enforceable
means ofaccess to t angau noai. eccordingty,
Where t].re instrument of transfer does not resewe an easement in favour of land retained by the a right of way of necessity arose by operation of law '
vendor, subject to two exceptions which we shall presently discuss, corlrts are reluctant to irnply a
over the land
neither certificate of title mentioned the-right of way was
,.td.r;y
T. The fact that
not material be.uuse the pu.ties do not
reservation of ar easement in favour of such land. This is because of a well-established maxim that create an easement ofway ofnecessity. unlike othei
easernents, the easement ofwa! ofnecessity
a grantor shall not derogate from his or her grant. The case of I/} eeldon v Bunows illustrates this arises by operation -)
ofthe law and, therefore, does not need registration.i,
nrle.' T owned two adjoining plots of land, onewas \acant, and on the other, there was aworkslop A few points need to be noted with respect to an easement
whose rvindows overlooked the vacant plot. T sold the vacant land to the respondent and,_ created by way of necessio,. An
easement of way of necessity does not arise if there
is an alternative means of access that is
subsequently, sold the plot on which the workshop was erected to the appellant. Foffitving a practicably available to the claimant as a matter
ofright. The fact that access is inconvenient, for
dispute between the respondent and the appellant, the former erected hoardings near the edge of example. because it is unsuitable for cars or entails tiavelling
her land facing the app€llant's workho,p window thereby obstn:aing the liglrt urtedng tlrc workshop a long aistonc. in oia.r to get to a
public road, does not entitle the grantee to a way
ofnecessity over thI grantor;s landl, secondty,
rvindows. The appellant knocked dowtr the hoardings asserting a right to an easement oflight in tlte necessity for access must exist at the time of ihe g.ant
respect ofthe windows. The respondent sued in trespass. It was contended for the appellant that
*d not merefi arise later.st For example,
stlppose at the time of sale the vendor has a legally
enforceable righi of access over some other
T impliedly reserved a right of light through the workshop rvindows in the conveyance of the
vacant plot to the respondent, and, therefore the respondent could not build upon her land in a
manner, rvhich interfered with his easement. The Cout of Appeal rejected this argument. It held 2' Weeldon v Erzaws, supra.
'0 Baw^v.Easctdine lr952j2 All ER 3r7, citcd with approvar in Barcrays Bank D.c.o. v patetugTol EA
88 (cA).
1a TlrcElectricityStatute,l999,unlikctheprcvionsElecttcityAct(capl35),docsnotany'rvhercuscthctum 3t lbid.
'easement' in rcferencc to the power givcn to thc Electricity Authority lo pass cables ctc ovcr any land for ' Ibid, per Sir charlcs Newbold P at 93. Law JA at 94 and 96, said
that although a way of necessity is
thc purposc of suppllng clcctricity power to anothcr's land. generally rcfcncd to as an cEscmcnt, in his view it wus morc correct to refcr to it ai, .a right inhercnt to
2r thc
Sec for cxamplc, s.36(6) of theWater Stano,l995. right-ofpmpertv,comparabletothcrightofsupportortherighttoligfit
suchriglitsarJnot.crcatcd,but
26 Shah Champshi Tejshi and othcs v Thc Attomq4cneml of Kcnya [959] EA 630 at 638. owe thcir cxistencc to the vcry naturc ofthingi and do
t3 not... rcqu* to be registcrcd.,
U874-801 All ER Rep 669. McLernon v ConnortlgOTl 6 WALR l4l.
" t' Midland RIy Co v Mites [1886] 33 Ch D 632.
'r Supra.
 134 Princryles of Land Law in Uganda Servitudes over Land 135

land, but later that access ceases to be available because the public road is closed and the vendor The general nrles for esablishing an easelnent acquired by lost modern gmnt were authoritatively
has no access to the nelv road except yia the land sold. An easenrent of way of necessity will not establistred in Da lton v Angts.az First. the clairnant musl prove exercise by irim or her (or a previous
be implied over the land sold because the necesity did not exist at the time of grant.r5 Thirdly, the owner) ofthe alleged right for at least twenty years. Secondly, the riglrt must not have been
owner ofthe servient land is not entitled to cornpensation because he or she nrust have envisaged exercised with force. For example. if during those twenty years, the owner of the 'seryient land'
the necessity ofway at the time ofconveyance.$ However, sirce the right ofway affects the use blocked access to a footpath in order lo preveil tbe claimant from using it or protested, but the
ofthe servient land its owner is entitled to determine exac0y where the road shall pass on his or her claimant ignored the protest. a right by prescription cannot arise.ar Thirdly, the right must b€
land and to limit it to no more thar the necessity requires. The law does not impose upon him or her exercised openly and not secretly.{ Fiully, the right must be exercised witlrout licence or permision
any obligation to make the road or to keep it under repair. His or her only obligation is uot to ofthe owner ofthe servient land. Thus. ifa landownergives pennision to his or her neighbour to
obstruct the way and to allow, subject to reason&le notice, the owner of the dctnirunt land and his use a footpath on his or her land, the latter cannot claim an easement by prescriptron even after long
or her servants to enter upon the servient land to construct or rnaintain the uay.37 user.

Intended or implied easement Access to public road

An easement that is required to carry out the common intention of the grantor and the grantee will At common law, except in the case ofan easernent ofway ofnecessity already 4iscussed, there is
be implied even though it is not expressly reserved or granted in the conveyance. Such easement no right of access oyer another's land, Howwer, a right of access over another's laud may be
is known as an intended easernent. The case of ll'or gv Beauntont Property Trust Ltdst illustrates granted under tlrc Access to Roads Act.15 Section I I ofthe Act provides that where a landowner
thisrule. X,ownerofabuilding,leasedthebasernentofthebuildingtoTforpurposesofcarrying fails tluough negotiations to obtain leave from adjoining landowners to construct a road ofaccess
on the business of a restaurant, T entered into a covenant to keep the premises op€n as a restauranl" I
6ver their land to a public highway, he or she rnay apply to a land tribunal for permission to do so.6
to control and eliminate all smells and odours caused by such a use oftlie premises and otherwise
to comply with the health regulatious. Later, X sold the building to the defendant subject to the
l- The Act gives the lribunal discretion to refuso or grant the application subject to any conditions,
such as payment of conpensation and lire course of direction of the road as it shall deern fit.a7 An
i
lease. Subsequently, T also assigned the lease and the restaurant business to the plaintitr The I
order made under the Act rnust be served on the Registrar ofTitles u,ithin thirty days from the date
plaintitrsought the defendant's permission to corutruct aventilation systemwith anexternal duct ofissue, and, subject to payment ofany prescribed fees. may be entered on the Register Book as
on the back part of the building, but the defendant declined. The issue was whether tlrc plaintiff appropriate.'r Once the road of acceis is constructed the applicant, or his or her successor in title
had a right to put up a duct without the defendart landlord's permission. Derming IvIR, with the and any person laufully going to or from the applicant's land, has a right at all tirnes to use the
concurrence of the rest of the court said tlut the larv readily implies the grant or reseryation of an road.re The Act imposes upon the applicant a duty at all tines to maintain the road of access at his
easement that is necessary to give effect to the common intention of the parties to a grant. On the or her expense. However, where tlte owner of the land also uses the road of access. he or she
facts ofthe case, his Lordship found that the lease was granted for carrying on a restaurant should contribute towards its maintenance.so
business subject to an obligation on the part of the lessee to comply with health regulations. In the
circumstances, the business could not bs carried out at all in the rnanner contemplated by the Easemenls under the Registration of Titles Act
parties without the installation ofa ventilatioa qysteiu by a duct. Tlrere is no provision in theRegr'srra fion of TitlesAcr rvhich expressly strtes the rnanner of creauon
t of easements under the Act. Section 57 stipulates that a statement in a certificate of ritle thar a
t Easements acquired by long user or prescription person named in the certificate is entitled to an easernent shall be conclusive evidence tlut he or
v At common law, an easement rtuly be acquired by prescriptioo or by long user even though there she is so entitled. Though the section quite clearly anticipates the creation of easements under the
rnay not be any actual eyidence of grant of ttre easemeol3e The fact of long user is regarded as Act by endorsenrent on the certificate,s' it does not indicate whether tle endorsement should be
Jl suffrcient evidence that the easemelt was ooce upon a time properly granted. According to suict on the certificate of the servient or dorninant land. Ideally. and consistent with the underlying
is common law, a prescriptive right uas established by prmf of coutinued use from time immemorial, poliry of the Torrens system, Oe endorsernent should be on the certificate of title of the land to be
br which in England was arbitrarily set at 1189.10 Gradually, the common law courts developed the burdenedby the easement or on both titles. In any event, it nay not make any difference whetirer
)a doctrineof'lostmodemgrant'. Underthisdoctrile,courtsruayallorvaprescriptiveclaimbyproof tlte endorsement appears on either certificate. As we have already discussed s . 6lof ttle Re gistration
ly, of continuous use during living memor;,. which is arbitrarily set as hyenty ) ears. The doctrine is
,1e, based on a fiction (freely admitted by the courts) that twenty y'ears use provides evidence that a
grant was properly made but had since been misplaced and losi-{r The purpose of the legal {iction
.2 (1881)6AC740.
ler $
is to expl.ain enjoyment of an apparent right ttut is inexplicable on any other legal basis. Scc, c.g.,Eolon v Srvansec llateruorks Co (1851) l7 QB 267.
{{ Tho rcason is tirat thc undcrlying basis ofa prescriptive claiur is acquiescence on thc part ofthc ownsr of
tho scrvicnt land. it would bc unlbir to lind acquiesconcc whcre ilrc interfercncc took placc without his or
Itcr knowlcdgc. Sca Liyerpool Corporatton v Coghill & Sois Ltd I Ch 307.
EA {5 Act No 2 of 1969, as arnendod.by s. 72(2) oltho ln nd Act, 1998. 11918)
t5 BarclaysBankD.C.O.vPatel,svpra.Butsoc,4.cce&sroRoadsAct,1969,di*usedbcbwinthischaptcr. a6
Soction lL ln Barclays Bank'D.C.O. v Patel, svpra, the court held, with reltrcncc to a conesponding
t' Ibid,at93. ,,
Kcnya Act, that its provisions do not abolish ttrc conulou law way of necessity. but merely provido
ity i3 t1 lbid.
anothcr means whcrcby a landowncr could acquirc acccss oycr another's land.
o thc r. n9651 l QB 173.
i,btn !e Prcsoription is unknown at customary law. Scs NozDalrr Kintu v Eluhimu r(,a:au CA No 26 of 1973l '1
{r
Soction 3.
Section 10..
(1975tHcB 221 (unreported). i ''i' te 'scciion
?.
a0 Statute of Westninster 1,1215,C39. so Sectiqn g.
a I Bryant,r Foor (l 867) LR 2 QB 161 : Dnlton v.4rgru (l 88 I ), 6 App Ces 7{1. 5r Sce also s. 58 RZI
136 Principlcs o/ Land Law in U ganda Scmiludes oyer Land 13i

ofTitles Act states that easements created by cnjoyment or user or subsisting over or upon any Aprofitd prendrc incorporates a licence to enter another's land to exercisd the right granted- In
land constitute an exception to indefeasibility.s'? contrast $'ith a bare licence, unless the parties otherwise agreed, a licence coupled with a grant or
prcfit A prendre is irrevocable while the granrremains in existence.66 A further major distinction
Extinguishment of easements
between the two rights is that while a bare licence is a personal privilege conferring no interest in
Aneasementmaybeextinguishedbyexpressagreementoffieparties. E:rtinguishmentiseffected
land.67 a profit d prendre is an incorporeal hereditamcnt, and therefore it is an interest in land.6s
when the owner of the dominant land expressly releases the servient land from the easement.r3
Being an interest in land, a proffi d prendre, where validly created, would bind any person dealing
SecondlS extinguishment may come about by merger. Wrere the dominant and servient land come
in the subject land. However, where the land is registered under the Registrdtion ofniles Act,
into a common ownership and occupation, all easements affecting the land are merged and
except in case offraud" a proprietor takes the land free ofany proft d prendre not created by him or
extinguished.r' Thirdly, an easement may bc extingrished by abandonment by the dominant
herselfand not endorsed on the certificate oftitle.5e
lardorvner,s' Abandonment may be express but, more often. it is implied from the acls or omisions
In some instances, it may be very diffrcult to tell Mrether a contract is for sale of goods or grant
ofthe beneficiary. Because an easement is propertli the courts do not lightly infer abandonment
of aprofrld prendre. Partof tl're rqlsonfor the diffrculty is that the definition of 'goods' underthe
and the onus ofproof is on a person asserting abandonment.r6 For example, in the casc ofBarclays
Sale of Goods Act (cap 79), and of 'land' under the Reglsbation of Tilles Acl, in some respects
Bank D.C.O. v Patel, Sir Charles Nervbold P said that the fact that the dominant landowner for
covermuclrthesameground. Section2oftheSalesofGoodslcldeflnes'goods'forthepurposes
twent, years did not use a right ofway was indicative but not conclusive proofofabandonment.
of the Act as including:
It must be clear that such non-use was due to abandonment.5? Once an easement is abandoned.
the dominant landowner cannot reclaim it. all cmblemcnts, industrial growlng crops. and things attachcd to or forming part of thc land which
The Torrens Acts in some states in Australia make provision for interested penons in any land are agteed to be scvercd bcforc salc or undcr thc contract ofsalc.
affected by an easement or a restrictive covenant, to apply to a court for an order for thc easement
or restrictive covenant to be modified or e:rlinguished in certain specified circumstances. For Section 2 ofthe Registration ofTitles Act defines 'land' as including:
example, under s.l29Cof theTransfer of l-andAct,1893, of Western Australia, ilre court may order rcsourccs, tcnements and hereditamcnts corporcal or incorporeal, and in cvery ccrtificatc oftitlc ...
extinguishment ofan easement or restrictive covenant if. for example, due to change in land use it sttch word also includcs cascrnents and appurtcnsnccs appcrtaining to land ...'o
isobsoleteordeemedtobeabandoned.18 ThereisnocorrespondingprovisionintheReglstration
ofTitlesAcL NordoesanyotherstatutoryprovisiongivethecourtsinUgandapowertoeXinguish The problem of distinguishing a contract of sale of goods and a grant of a profit d prendre is
or modiff easements. It is doubtfirl whether thc courts have inherent powers to intervene. illustrated by the Kenyan case of Settlenent Fund Trustees t Nurani.lt In that case, Nurani, the
respondent, bought from the previous proprietor ofthe subject land the bark ofrvattle trees growirig
on her landwiththe rightto remove itwithin eiglrteen months. Before Nurani had removed thebark,
PnonrsA PRINDRE
the owner sold the land to the appellants who had notice ofhis right to the bark. The appellants
Aprofidprendre confersarighttoenteranother'slandtotakesomethingoftheland., Theright prevented him from removing the bark, whereupon he commenced these proceedings against the
must relate to something rvhich either cornprises part of the land, such as gravel and sand,60 or appellant. The trial court held in favour ofNurani. On appeal to tlre East African Court ofAppeal,
things growing on the land. such as tirnber. and grass.6r The right of pasture may be the subject of the appellants contended that Nurani's right to rernove the bark was a profrt d prendre and not a
proffi A prendre: the uking and carrying away is efected by means ofthe mouths and stornachs of mere revocable licence. They submitted that since the right was not registered as an encumbrance
the animals in question.62 In addition, a right to catch fish or hunt wild animals on the land can under the Reg,.rtration ofTitleslcr (Kenya). it rvas unenforceable against them even though they
constitute a profit d prendre. The grant may be for an indefinite or fixed period.5' It rnay confer bought with notice.
exclusive right. or it rnay be a right enjoyed in common with other people including the grantor,6' The issue was whether the transaction between Nurani.and the previous proprietor rvas of sale
Unlike an easemcnt, a profit aprendre canbe granted in goss. In other rvords, while tlrere rguet of goods or sale of an interest in land. Larv JA, rvith whom Spry VP concurred, cited the above
always be a sewient land fland from rvhich something is taken). there need not be a dominant lafrf,S definition of'goods' and 'land' under the corresponding Kenyan statutes. He observed that
wattle barh which is pennanently attached to a tree rooted in the soil until the tree is felled and the
bark stripped oflcould come under either definition.72 However, in the circumstances of tfus case,
12 See Chaptcr 5.
5t lVaterloo v.Bacon (1866) LR2 Eq 514.
s' Brckby t Colcs (1814) 5 Taunt.3ll. 66 James Jones & Sons Ltd v Earl of ianken itte U9097 2 Ch 440; In Rc: Rejod of Dues rnder Timber
ts Janres y Stevenson 11893) AC 167. Regulations [935] AC 184.
tG lbid.
r' "6' Sccbelow.
19701 EA 88, at 94. Scttlcmcnt Fund Tmstecs v Nurani U9701 EA 562; Duke of Surlrcrland v Heathcote [ 892] I Ch 475;
Sec also s. 84(18).Law ofProperty Act, 1925 (England). Lavery v Purscll (1888) 39 Ch 508.
'3
3e 6e ScttlcmcntRmdTrltste?svNuranill910lEA562;MillsvStocloaan
Duke ofSuherlond v Heathcolc 892] I Ch 475.
[ (1957) l16 CLR61. ThcRZ4, likc
60 Re: Refund underTintber Rcgriallons [935] AC 184. Torrcns statntes in mostAustralianjurisdictions. does not cxprcssly provide for tlrc creation ofprolit d
6t Settlemmt Rrnd Trustees v Nurani [1970] EA 562', Krsell v Timbcr Operators and Contrucmrs Lld prcndrc. Ncvcrthclcss, according to Whclan. The Tonens System in Anstraha, supra, pp. 106-07, their
[1927] I KB 298; Mills v S tocknan (1967 ) I I 6 CLR 61. creation is infcrablc front the gencral provisious ofthe Acts.
61 Witevltllliants U9221 KB121;llhitevTaylorQlo2) U969] I Ch 160. 70 'Corporeal heriditarncnts' would includc trccs. gravcl and subjaccnt nriuerals. any of which could bc
61 lWckhan v Hawker (1840) 7 M&W 63: 151 ER 671. gnnted as a profil d prendre.
6t Tooheyandothars.ExPartel[en?lingStationPtyLtdandothers(1982)158CLR327, ?r [1970]EA562.
61 Stallordshire & lYorcester.rlire Conal Navigation
v Bradlq, [19721 I Ch 9l. 11 lbid"al573.

_,t
738 Principles otl-atd lat a t'3e,.oiE Sen'itudes over Land 139

he fou[d that the sa]e of rrade balt e.s e ma:r

d safe of gmds His Hon cur reasoned that the
sale was of a si:rgle crop of rzarb l*r{' aa in&srial groqlog crop to be severed and retuoved Enforcement ofcovenants in equity
within a liruited period- lv{oreot8 tbE pe.iod albs€d for its removal rvas not primarily intended to In equity, the burden of a covenant may be enforced against an assignee if it is a restnctive
covenant. A restrictive covenant is a covenant which restricts the use of the covenantor's land
allow the bark to derie beoefir &@ tbe ]irxr aDd become altered. but to allow the purchaser to
(servient land) forthebenefit ofthecovenantee's land (dominant land). The classical illustration of
arrangeforitsrenuala Cmseqrnrty. Iarn'JAagreedrviththetrialjudgetlurttherightofentryon
the land conferred by rhe agreaeor *as Do ltrore tlun a temporary licence not mounting to a a restrictive covenant is tbe case ofTulky lvloxhay.e ln that case. Tulk owned a block ofvacant
registrable interest in landz land.iu the middlEofLeicester Square in London as lvell as slveral houses adjoining the square. He
sold the vacant block to E who entered into a covenant with Tulk tlut he would keep the square as
a garden and not build on it. The subject land changed hands several tiures until Moxhay, the
RrsrRlgrryB covEt{ANTS
defendant, purchased it. Though Moxhay bought with notice of the restrictlon, he did not make
any express undertaking to abide by it. Moxhay was preparing to build on the block when Tulk
Introduction conrmenced these proceedings for an injunaion to stop hirn. The House of Lords granted the order
Technically. the expression 'covenant' refers to a prornise contained in a deed, but in practice, it is sought. Lord Cottenbam LC said that the court could not pennit a party in the defenda[t's position
used to refer to any contractual prornise relating to land rvhether or not under deed. Covenants to use 0re land in a rnanner inconsistent with the terms under which the vendor sold the land and
made between immediate pades are enforceable in accordance rvith the ordinary principles of the ofwhich he had notice. tn his Lordship's view. to allow the defendant to disregard the restrictions
law of contract. For example, suppose Mukasa suMivides his la[d into t\4,o plots: A and B. He sells would be rnost inequitable to me original vendor who lnd irnposed them in order to protect the
plot A to Okello subject to an undertaking by Okello and liis successors that Iie. Okello, will at his value of the.land he retained.t'
sole expense, maintain an access road used by the orvners of A and B. and that he rvill contribute .g Sirc;eTulkv Moxhay, tlre rules for enforcing restrictive covenants against assignees have been
annually 10.000 shillings for five years torvards the salary ofa local p"riest. IfOkello breaches any of refined by the courts. First,.the covenant lnust be negative in naturc and substarce. That is to say,
these terms Mukasa can of course sue lritn for breach of contract,' the covernnt must restrict the servient o\vner from doing sornething and not irupose a positive duty
to do sornething. A rule of thurnb generally adopted is that a covenant u'hich requires the covernntor
Enforcement of covenants at common larY to expend money in order to cornply with the covenant. is not a restrictive covenant.82 For example,
Suppose, in the above example, a year later Mukasa sold plot B to Lrryiga If Okello fails to maintain inHiyvoodv Brunsttick Pernanent Benefit Builcling Soae$.sr Y covenanted to erect a building
the road or to cotrtribute the money he promised. Luyiga cannot sue him in contract because there
on the land conveyed to hirn and to keep the building in repair. Later Y conveyed the land to tlie
is no privity of contract between her and Okello.'5 At comrnon law. hou,ever. even in the absence
defeudant, who bought with notice ofthe covena[t. The issue was wliether the covenant t0 keep
ofprivity ofcontract, an assignee ofthe 'dorninant' land (Luyiga) may enforce against the original the building in repair lvas enforceable against the defendant. It u,as held that the covenant was not
covenantor (Okello) any covenant provided that it touches and concerns the land. A covenant
enforceable because it purported to impose a positive obligation against an assignee.
touches and concerrs land ifit affects the land as regards the uranner ofoccupation or its value and
The second requirement is that the covenant must be ruade for the benef,t and protectron ofthe
is intended by tlre parties to nrn with the land.'6 In our exaurple, the covenant to nraintain the road
land retained by the covenantee. Tltis ureans that there luust be dominant land orned by the
quite clearly touches and concerns plot A, as its esistence and maintenance rvould affect thevalue
covena[tee and servient land ownedby the covenantor. If, at the time the covenart is entered into.
ofthe land and possibly the rnode ofits occupation. Thereforq Luyiga can enforce performance of
the covenantee has no land to be benefited. the covenant is a personal covenant, aad it only binds
the covenant against Okello, even though tllere is no privity ofcontractbetrveen the two ofthem.
tlrc immediate parties. This rule is illustratedbythe case oflozdon CrN Councilv Allen.s' In 1906.
As regards the covenant to pay the priest's salary. though a rvorthy cause. lt does not touch and
the council granted Mr Allen permission to subdivide certain land subject to an undertalong tliat he
concern the land. The coveuant is a personal obligation lvhich can only be enforced by the and his successors in title lvould not build upon a certain part ofthe land, which it required for
immediateparties. future exlension of a pubiic road. Tluee years later, Mr Allen conveyed the land to Mrs Allen, who
So far, we have considered a situation rvhere the dorninant land is assigned. Suppose in our
boughtwith notice ofthe saidbuilding restriction. The council sought to prevent Mrs Allen fronl
example above Okello sells plot B (the sen'ient land) to Aisa. and she buys with notice of the
constructing a building on the land in breach of the said covenant. The issue rvas whether tlie
obligations undertaken by Okcllo. If Aisa fails to perfonn the obligations neither Mukasa nor covenant ran with the land and. tlrcrdore. was binding. It was held that it is essential to the doctrine
Luyiga can sue her for breach of contract. as there is no privity of contract behveen them.z Nor can
ofTulkv lv{oxhay that the covenaltee should have at the time ofthe creation ofthe covenant, and
they sue her under any other cornmon larv rule. The reason is tlut at common law a burden of a
afterwards, land for the benefit ofwhich the covenant is created. In this case, tire court found that
covenan! unlike a benefit. does not run with land.TE Therefore, an assignee of the servient land is
though Mrs Allen had notice of the covenant it was not binding because tlie council irad no land
not bound by covenants entered into by his or her predecessor in title even ifhc or she purclused
to be beoefited at the time the covenant Nas made.
the land with notice.?e

73 lbid,lularsloll v Green (1875) t CPD 35" distinguislred.

7a Seo alsoMrT/s and anotlrcrv Stoknan and another(1967) I 16 CLR 61. All ER Rcp 9.
75 Tcchnically, Mukasa oould still suc Okcllo. but tlto danrogos awardod would 'o
tt [184360]
probably bc nonrinal sincc ho [ 843-60] All ER Rep 9 at I 1. In subscquent cases it lvas held that noticc per se is not enough to hold an
uo longcr has any bcnefit in tho pcrfonuance ofthc colltraot. J5]All ERRep i008.
t2 Scc Mcgarry and Wadc, The Lav of Real Property,supra, p. 7?4. [9t
assignccbouudbyacovcnant. secegLondonCiryCouncilvAllen
1' Snith and Snipcs Hall Farm Lrd v Rncr Douglas Catclmtetrt Board [949] 2 ,{l ER 179. at 183. pcr
Tuckcr LJ. rr (18.q1) 8 QB D 403.
77 Okello cau howcvgr suc her lbr brcoch ol coutract ttrough thc danrages arc likcly o bc nominal.-- t1 [914-15] All ER Rep 1008. Thc rulc does not apply wherc a statutory provisron cmpowers a public
'r The rule is di&trcnt uridcr thc larv oflandlord and tcnant.
1e Artsterberryv Oldhan Qorporadar (1885) 29 Ch D 750.
body to imposc rcstrictivc coveuants, rcgardles of whcther it owns any dorninant land. Nor does rt apply
in tho case ol'scherncs ofdoveloprncnt'. Sco bclow.
 i?,r

140 Principles ofLandLaw inUganda Scwttudes over Land 741

The third requirement for the enforcernent ofa restrictive covenant against an assignee
is that restrictions olt all the plos. Thcs rEstriri$rs $mld be consistent with a general scheme d
both the originai covenantor and covenantee must have intended the burden and the benefit ofthe development. Thirdly, the conrmon vendor rms tart intended the restrictions to be and they are
tJrun with the senient and dorninant land respectively.rr In practice. the intention is for the benefit of other land retained b-v tbe rcodor. Fo$thfy. the parties. or their predecessors ir
covenant
expressed in the agreement. title, must havepurchased tlreirlotsfromthecommonrrndoruponthefootingthat the
to whichthepurchaseswere subjected *eremadefortheberrefitof all the other lotsincluded in
Schcme of development general schenre.
A scheme ofdevelopment (or a development scheme) is a plan produced by a developer for land in Subsequent case law holds that the abole rules arejus guidelines and not prescriptive for
a pfiicular area to be dweloped and rnaintained in a partiorlarway consistent
withthe scheme. For creation of a building scheme. For example, it Baxter t Oaks Properties Zrd.s it was held
exarnple, assume that D Ltd. a construction and land dwelopment companyJ purcltases a large whether or not there was a building scheme is a ques'tion of the intention of the vendor and
block of land at Tank Hill, overtooking Lake Mctoria. D Ltd subdivides the block into ten plots purchasers, as gathered from all circumstances. ln that case. the second rule in Elliston v
numbered I -10. The company wishes the land to develop in an orderly fashion and to remain a high- had not been fulfilled, as the common vendor had not laid out the estates in lots prior to selling
area for an indelinite fllture. To this end, it plans to extract frorn each
purchaser of
class residential land. Cross J, nonetheless, found the requisite intention to create a building scheme.
the plots a number ofcovenants. They include an undertaking by each plot owner not to construct Similarlli inDolphinbConveyonce, Re: BirminghmrCorporationv BodenEe Stamp J said
anybuildingonthelandrvithoutfirstsubmitting hisorlrcrplanstoDLtdandotherplotownersfor '[t]hebuilding scheme cases stem. as I understand the larv, frorn the wider rule that ifthere be
purchasers and
approval. ett ptot or\mers agree to extract identical covenants from subsequent the cornmon intention . .. the court will give effect to it .. . ' In that case. counsel for the
their assignees. Because ofprivity ofcontract, D Ltd could enforce the covenants against each sought to attack a scheme on the ground of lack of a common vendor (there having been
original p}chaser. Horvever, in practice. after D Ltd has sold offthe last plot it is unlikely that they vendors) and on failure to lay out the estate in lots. Starnp J upheld the scheme. saying that
u,it'ite att ttmt teen to police the covenants. Their real reason for dwising the scherne $as to make equity arose, not by the effect ofthe four rules. or by the existence of a deed of rnutual
theplotsattractivetobu),erstornaximisetheirprofits. Oncethatisdone.theyceasetobeinterested. but by the existence of a common interest and intention actually expressed in the
Moieover. if the original purchaser sells to a third partv. there lvould be no privity of contract themselves.
between D Ltd and that parw, therefore, the covenants could not be enforced
in conract. Ifthe requirements for a building scheme are satisfied. plot orvners can sue each other
for an indefinite period. the current orvners of the enforce the covenants in the scherne. Nevertheless. it should be stressed that even $,ith
For the scheme to succeed and be effective
plots themselves should be able to enforce the covenants against each other. This. ltowwer, may existenceofaschemeofdevelopment,onlynegatirecovenantsareenforceable. Thus.for
notbelegallypossibleunderthedoctrine ofTulkvl,loxhay. As'wehaveseen.thedoctrinedoes a covenant to keep a building in repair does not run rvith the land even though the land is part
not .pptf unl.$, ot the time the covenant was entered into, the col'enantee orvned or was in scheme of dcvelopment.s
possession otthe land to which the covenant relates.E6 In our example. suppose tlut D Ltd sclls
ihe plots I to l0 ifr that order. They sell plot I to X subject to the said covenants
and the covenants Restrictive corenants and theB72l
Theysellplot2toY The Regis*ation of Title.s Acl (cap 205) rnakes no provision for the registration of
I
lr arestatedtobeforthebenefitoflots2-t0.whichatthetimeDLtdstillowns.
covenants. This is probably because restrictive covenants are equitable inlerests and the
inthesamenayandthecovenantsarestatedtobefortlrcbenelitofplotsl-10(except2). Itshould
earlier disposed ofit to X. system generally avoids registration of equitable interests.'r In sorne Australian jurisdictiong
be noted that by then D Ltd is no longer the otvner ofplot L as they had
Co;ncil v Allen.X cannot enforce the covenants against otlter practice is for registrars to nrake notations ofrestrictire covenahts on the certifrcates oftitle
On the basis of Lonclott Ciry
entered into for the benefit of all the 10 burdened land. The legal efficacy of such notation. unsupported by legislation, has
plot owners even though the ctvenant lvas zupposedly
il plots. For the salne teason, Y, owner of plot 2. can enforce the covenants against x or his or her questioned.az Sorne authorities suggest that restrictive covenants are not enforceable
plot 10. the last plot sold' subsequent registered proprietors. even if they purchased witlt notice of the
successor in title, but not ajainst the olvners ofplots 3 - 10. The otvner of
at the timglltdsold Accordingll,. tlte only certain lvay to lnake the covenant bind a subsequent purchaser is
is in the best position as faias enforcing the covenants is concerned. Since
must owner ofthe dorninant land to enter into a fresh contract with the purclraser ofthe servient
ptots 1 - s, ttreywere the owners of plot 10, it means that the requirements that the covenant
L

Therefore, the ownerofplot l0 could enforce the task rvhich rnay not be eas.v to acltieve in rnost cases.
te for the benjfit ofthe covenantee ire satisfied.
else, but no one else (apart frorn D Ltd) could enforce the covenants
covenants against everyone
Remedies fur breach ofrestrictive covenants
all plot owners
against himir her. However, where the plots form part of a scheme of developnent,
in rvhich tlte Since restrictive covenants have their origins in the courts ofequity, the only rernedy
aie bound by and can take the benefit of the covenants irrespectire of the order an aggrieved parly is by an injunction to prevent the rvrongdoer frorn breaching covenants
original purchasers acquired tlte land from D Ltd.
v
ihe mles for the Jstablishment of a scheme of development were plescribed in E//is/on party
col'enants and the
Rea:cher.v They are as follows. Firstly, the party wishing to enforce the
vendor' Secondly' the
against which ii is sought to enforce tiem must derive titie frorn a common
have subdivided it into plotswithihe intention of imposing t! [1965] ch 816.
vlnOor. priorto selling theland, must
r' [1970] I ch 654 at 663.
e0 Dolphin s Cot^,eyance. Re: Birrtitrglnm Corporatiorr r Boden
ll970l1 Ch D 654.
er See. for examplc. s.46, RTA, prohibits noticc oftrusts to be ontcrcd in thc rcgistcr book.
t2 Wlralan. The Tonens S),stem in Australia, supra, p. 110. In Westem Australia. s.l29A.Transfer
Hones Ltd v MillLodge Propertias Ltd It980] 1 WLR 594'
"16 Federated -4ct 1893- makcs provision hr thc reglstratlon of rcstrictive covcnants.
London Ci4, Comcil v,Allen [1914-1 5] All ER Rcp 1008'
E? " Scc Norro, v Kildulf 1197 al Qdl. a'7.
[1965] Ch 816.
 Co-otnrerslup of Lattd 147
146 Principles o/Land l,aw m Lrgoda
the event ofdeath ofjoint tenants in a couimon calamity. their respective heirs rvould
inhertt the
Uniry of fiile land as ifthe deceased owned the land ir tenancy in cornmon'
Unity of title means that the cmryners' title must derive fronr the sane act or document. If they
acquired the land by inheriunce it must have been under the sarne will. If they purchased the land
it rnust have been conveyed to them in a siagle transaction.
Trxlxcy IN coMMoN
Tlre case of AG Secarities v Vaughan' illustrates the above points. The appellants owned a Tenancy in common diflers from joint tenancy in that tenants in comrnon hold land in indMdual
four-bedroom house. Under separate cotrtracts entered into at different times, they granted a riglrt
shares. In other words. each tenant in conrmon has a distinct share in the property' What
makes the
to occupy the flat to four individuals referred to as the 'flat sharers'. The contract enti0ed eaclr parties co-orvners is thqt they all have shares in a single piece of land though the land is not yet
occupant to use the premises in comrnon with other people lvho might frorn time to time havg a physically divided aurorlgst them.ts Because each tenant in corntrrorr has a f,xed share in the land.
similar right. The rent payableby each occupantvaried. The CourtofAppeal heldtiut theoccuparts
ini Aoctrine ofsurvivorship does not apply. Hence, ifone ofthe tenants in couuuon dies. Iiis or her
held the flat injoint tenancy. The House ofLords unaninrously reversed this decision on the uiay
undivided share ofthe land passes under his or her will or intestacy. Although the four unities
ground tlut the arrangement lvas 'notably deficient in the four unities of interest. title. time and only essential one is unity ofpossession. For example, A
be present in a tenancy in common, the
possession'.e There was no unity of tirne because each of the flat sharers commenced on a
and B can be tenants in cogunon even though they acquired their respective interests by differ-ent
different date. There was no unity of title because each colnluenced his or her occupation ofthe flat
documents at different times and their shares are unequal.r6
under adifferent document. There was no unity ofinterest because the agreenents covered a
different period and provided for different paynrent for tlut occupation/ Creation of jointteuancy andtenancy in common

The rightof sunivorship (7as acuescendi) --6rnmonlaw

Tlre second essential feature ofjoint tenancy is the riglrt ofsurvivorilrip orTr rs accrescendi. loinl The common law and equity differed in theii apprQacll to the creation ofjoint tenancy and tenattcy
tenants as individuals do not have dr,srr/,cr shares in the co-o'rvned land; they own the whole as a in common. The common law leaned in favour of joint tenancy because the operation of tlte
group. Therefore, upon the death ofonejoint tenant his or her interest in the land is extinguished r' Therefore. at
doctrine of survivorship inwitably led to tlie vesting of the property in one person.
and does not fonn part of his or her estate.ro For esaniple. if a husband and wife own their coruuon law lvhere a glant was nade to t$'o or more persons it rvas presunred that tlte grantor
rnatrimonial horne in joint tenancy. lvhoever survives the other autornatically becomes the sole intende.d to create a joint tenanc, of the legal interest. For exatnple. tn Re: lt'lurram llurtor.ts a
owner of tlre house. Sirnilarly'. if there were threejoint tenanls: A" B and C, and A died, his interest testator granted his estate to a trustee to apply for the benefit of G and J. The issue was whether G
in the land would be extinguished and that ofB and C correspondingly enlarged. Upon the deatlt and J lvere to hold the estate as joint tenants or tenants in conlmon. It lvas held tliat rvbere properry
ofB her interest would also be extiuguished leaving C. the last survivor. as sole owner of the landr is gtven to several persons concurently, prirr,a lacie tlrcy Akeas joint tenants. In this case, since
Thisisknownastherightordoctriueof'surv'ivorslfp'. Becauseofthisdoctrine.propertyheldin thJre tvas nothing to suggest a tenancy in common it was held tiut the testator intended G and J
e joint tenancy cannot devolv€ by will or intestate succession unless the joint tenancy has been to hold injoint tenancy.
ts previously severed in the lifetime ofthe deceasedjoint tenant.rt The presuinption ofjoint tenancy is discharged eilher lvhere one ofthe four unities rs mis-sing
le Where joint tenants die in a corrunon calamity in circurutances which render it irnpossible to or lvhere the grant coDtains 'words ofseverance'.re The tvords of severance are expresstons tiut
F determine who survived the other, the doctrine of survivorship does not appll'. For exarnple. in indicate the grantor's intention tl'rat each grantee should take a separate and dtsttnct s[are in lhe
:! l{illcoxv McLerolr a hu$and and rvife executed identical rvills each appointing tlre other sole heir property.m ln Robertson v Frasen Lord Hatherley said. 'anything which in the sliglttest degree
IE and executor of'my estate and effects'. They both drorvred in a lake in circunutances in lvhich it indicates an intention to divide the property urust be held to abrogate the idea ofjornt tenaaq'- ald
was not known who survived the other. It was held that according to the corurnon law the estate of
tocreateatenancyincommon'jrExaurplesofwordswhichhavebeenheldtoconstituteseverarce
hc each ofthe deceased rnust be administered as in intestacy it being presurned tlut tlrcy both died at include 'share and share alike', 'amougst'. 'in equal share', 'equatly' and 'participate'.2
i-l tlresarnetime.r2 InEnglandtheoonuuonlarvbasbeenrnodifiedbys. l84oftheZarvofPropertyAct
l925.rr The section provides that where trvo or urore die in circurnstances rendering it uncertain Equity
which of 0rem survived the other, it slull be presurned that the younger survived the older. Since In equity. atcomrnon law. a grantofproperty to two or rnore persons'tvithout rvords ofseverance
as
the English Act" of course. does not apply in Uganda.tr it is suggcsted that the cornmon lalv rule aa*i* u joint tenancy and a grant with rvords of severance creates a terlancy in cottttn0n.:'
3ID
espoused in llillcox v ltcLeror& is the appropriate law applicable. The eflect of the rule is that in However, since equity is concerued with justice and 'prefers the certainty and ecluality of a
-i.'n
tenanry in commonto t}te chance of all or nothing wltich arose from ttre right of survivorship'?' , it

. u9881 3 All ER 10s8.

e Pcr Lord Jauncey of Tullichcttle, at 1976. ts Easr A/ricau General lrcuroucc Co Ltd v Nteilde and otlrcrs CS No 1387 ol'1975: (1979) HCB 225
to lhghtvGibboru(1949)TSCLR3l3lChcshiroandBurn.trlodentLavofRealProputy,supra,p,209. (unroportcd).
tt SviftandNealevRoberts(1764)3Bun1488,97ER941" Scverauccisdiscusscdbelow. t( BullvBullll9s5l I QB234.
r'? (1933)KLR82. SccalsoTheAdninbratorGeneralolZanzibarvKhalftnandothers{19631 EA230. ti Morleyv Bird (1798) 3 Vcs.628:30 ER 1192-
r' iljoint tcuants die iu a circunrstanccs whcrc it is not known who
tt 1 8 KLR 65. Scc also iy'orley v tsird (1'198) 3 Ves, 628. 30 EII I I 92.
15 Gco.5, c. 20. Lr Papua New Guinea.
It
survived thc othcr, tic propcrry is decmed lo dsvolvc as if it rvclc owncd in lenanci in common, scc s.7. Mcgarry and Wade, The Lav o/Real Property. supra. p 424.
20 Rober-uon v Fraser (18?1) 6 Ch App 696.
Similtaneous Deatlu Act (up 332).
ta ln The Administrator Garcril of Zanzibar v Kha\u snd others, thc High Court ofZanzjtxr cxpresly -l'l: ' 'zt lbil;dt699.
t' "Ibid. S* also Morlcy v Bird (1798)3 Ves. 628; 30 ER I I92.
rejccted thc presuurption that thc youngcr survivcs tho oldcr
1' Morley v Bid(l79E) 3 Ves, 62E; 30 ER 1192.
2{ Mcgarry arrd Wadc, The Law of Real Properry- supra. p.425'
 148 Principles of Land Lav irt Ugando
Co-ownership of Land 149

leansinfavouroftenancyincommon. Hence.ince(ainsituationsevenintheabsenceofwords Thcir lordships do not accept that thc ca-ccs in *tri:fi joint tenants at law rvill be prcsunrcd to hold
ofseverance equity presumes that the co-orvners intended to create a tenancy in as tcnants in common arc as rigidty circumscribed as the plaintiff asserts. Such cascs Ere 11ot
common and not
a ioint tenancy unless there is clear evidence to the contrary necessarily linrrted to purchasers *+)o contnlutc unequally, to co-mortgagccs and to partners.
Traditionalll,. ihere were three suclr
situations in which persons who were joint tenants at lar.vrvere cornpelled Thcrc are othcr circnmstanccs in rvhich equrty ma.v hfcr that thc beneficial intercst is intendcd to
by the court of equity to
hold the legal estate upon trust for themselves as equitable tenants in be held by the grantecs as tenants in conrmon. In the opinion ofthcir lordships, onc such casc is
cornmon. Tlrese - rvere:
(, where the property was purchased with funds contributed in unequal
,trn..rf
rvhere lhc grartees hold the prcrnises for their sevsrrl individual business pnrposes.rl
(ii) rvhere the property constituted partnership assets: and
His Lordship reasoned that in a situation such as in the instant case. it was improbable that
(iif rvhere the property was held as security for a loan advanced
by thejoint tenants. busines people would intend that upon the death ofone ofthem the benefrcial interest in the entire
Property purchased with funds contributed in unequal shares premises would vcst in the survivor.
Where two or more persons together purchase property. the purchase price
having been contributed Rebuttal of presumption of tenancy in common
irr unequal amounts, equity presumes tlrat the purchisers intended
to hold as telnants in common Equity's prenunplion oftenancy in common rnay be rebutted by evidence thatboth parties intended
in shares proportionate to their contribution.2, For example. suppose Adam and Eve
take a to hold the beneficial interest as joint tenants.r? The presumption may also be displaced in an
conveyanceoflandasjointtenants$'hereAdamcontributedtu'othiirisoftheplrcluseprice.
In appropriatecqsebvpleadingacounterpres:rnptionof'advancement'orintentiontogiveabenefrcial
equity, it is presurned that they intended to hold the legal estate in trust
for themselves as tenants intercst. Where the husband pays the lvholc or most of the purchase price of land, and the property
in common in shares proportionate to their contribution. Similarly,
where only one pays tle purchase is conveyed to him and his rvife in joint tenanqi a presurnption of advancements3 is made in favour
price but the conveyance is made to hirn or her and another injoint
terrnry, .qrity fr.sumes tt at of thewife,'r The effect of the presumption is that the rvife takes her legal interest as a gift and not
the sole contributor did not intend the non-contributor to acquire a beneficial
inteiest in the land. in tnrst forthe husband. as would otherwise be flre case.ri For example, in Cah,erleyv Green36 the
In the absence of any evidence to rebut the presumption. it is assumed that
the non-contributor appellant and respondent lived together as r/e/acro spouses. Together they bought a house, which
holds his or her legal interest in trust for the sole contributor.r6
they intended to tr their matrimonial home and it was registered in their names in joint tenancy.
Partnership property Unfortunately their relationship did not prosper and they separated. The issue was whether
There is presumption that property acquired by partners as part ofthe partnersl.rip
a
they owned the house injoint tenancy or tenancy in common. Ifthey rverejoint tenants then the
assets is held proceeds of sale of the house were to be divided equally between then. If they were tenants in
by the partners in tenanry in common and not in joint tenancy. This is inespective of rvlether their
contribution to tlre purchase price rvas equal or unequal.2? The presumition isjustified common they were to be divided in proportion to their contribution towards the purchase price.
on the The male respondent, who had contributed three-quarters of the purchase price. contended that,
ground tltat it is inappropriate to applv the rule of survivorship to
a blsiness undirtaking.2r
though they were registered as joint tenants in equitj," they were presumd to be tenants in common
Proper$t held as security because their contnbution lvas unequal. For the female appellant it was argued that the presumption
wrere two or more persons a.dvance uroney, whether equally or unequally. to a third person ofadvancernent displaced the presumption oftenancy in common and consequently she took her
and a
Tortgage
is made to them iointly, at lalv they arejoint tenants but in equity they are presumed to legal interest as a gifi and not in trust for the husband. The High Court of Australia held that the
hold the mortgage in tenancy in common. The rationale for the presumption in favour presumption of advancement rvotrld have applied. as contended by the appellanl if the panies
of tenancy in
cotnmon is that in such a situatior it is unl^ikely that the parties intended that rvhoever were properly mlrried.!? In the event, it rvas held that they held theirbeneficial interest in the house
happened to
die first rvould forego his or her interest.D in tenancy in cornmon in slures equal to their contribution.

Other situationt Creation of coownership undet lhe RTA

The traditionai view is that only in the three specific categories mentioned above $,illjoidriehenfa Joint tenancy and tenancy in common are created by registration under the Registration ofTltles
t!
.f
i,
at law be presumed to hotd as tenants in conunon in equi(v. However, inMa layan
Crcctit Ltcl tt Jock
lc, as joint tennnts or tenants in cornmon respectively.rr Instruments presented for registration
Chia-MPH Ltd,ro the Prir,y Council rejected this vierv. In that case, the appellant and respondent that would transfer al.t estate or interest to two or more persons should set out the manner in which
held a lease injoint tenancy over certain premises n'here they conducted tireir separate businesses.
The issub rvas u'hether in equity they rvere presurned to be tenants in cornmon. Counsel for
the
appellant argued that the equitable presumption oftenancy in common did not apply
outside the
tt lbid,at560.
three classes mentioned above. Lord Brightrnan, delivering the judgement on
Ueiaf of tne frivy
t2 Robinson v I'resloz (1 858) 4 K & J 505; 70 ER 2l 1.
Council rejected the argument and stated: !! DixonCl,inMartinvMartin(1959)ll0CLR29T.at303,saidthatitiscallcdaprcsumptionof
advanccment 'but it is nthcr the abscncc ofany rcason for assuming ... that thc cquitablc right is not at
homc with tlre legal titlc'.
2s Robinson v Prestotr(1858)4 K& J505; 70ER21t,at213. !a Thc prcsumption of advanccrrrcnt is not nradc in t'avour of the husband whcrc thc wifc is thc nrain
26 Cah'erley v Green (1984) 155 CLR242. contributor cfthe ptrrchase pncc,scc Mercier v fu[crcier [1903] 2 Ch 98. It also applies whcre a parcnt
27 LakevCraddock(1733)3 transfcn propcrty to his or her childrcn but not whcrc a child transfcrs propcrty to his or hcr parcnts.
PWms 158;24 ER 1011.
2! Thcprcsttnlptionoftcnancyincomlnontothebcneficial interestofpartnershipassetsisnowincorporated ts Sec Lamr v Sood CS No I 541 of 1972, unrcported.
inthes.24(1)Partnership,Act(cap 86).Seei(itir'za vRegistrarofTitlrsMisc.Appn.No 82of 1g77. ,. (r9M) 155 CLR246.
--
7e A{orleyvBird(1798)3Vcs.628;30ER1192.'Thotrghtirrytakeajointt"nancy,'eaclrurcanstolcndhis ,? Secalsolurntv.SoodCsNo 1541 of lgT2,NyamuchoncoJsaid,oDdtcr dicra,that thc presumptionof
own and take back his own', pcr Lord Ardcn IvII! at 1199. advancement docs not apply wherc thc parties arc not legally married.
ro u9861 AC 549 (PC). Sections 53 and93,RTA.
"
 { o/Lmd l5l
tr 150 Prmciples oJ Land Lav nt Uganda Ceownership

the co-owners hold tlie estate or interest. Where persons desire to hold land asjoint tenants. the including the defendant together bought land and constructed thereon several houses for reoting.
instrument of transfer should state tlut the transfer is made to the transferees 'asjoint tenants'. If The coowners incorporated the plaintiff company with a view to transier to it title to tfie land. For
tlrey desire to hold land as tenants in colrunon. the instruncnt should statc likewise and dle iweral montfu before title lvas transfered to the plaintiff, the defendant occupied one of the
proportions in which tire land is held. TIIe registration ofthe co-o!\'ners asjornt tenants or tenants houses and paid rent to the plaintiff. Upon default the plainliff brought these proceedings for
in cotrutron is conclusive as far as it concerns third parties lvho act in reliance upon the register.]e arears atrd eviction. The defendant pleaded that as a tenant in common he was neitlier bound to
HoweveL between the parties registration is not conclusive. Evidence may be adduced to establish pay occupation rent nor could his co-tenants evict him, It uas held that the partners bought the
that. notwithstanding registration asjoint tenants. the parties intended to hold ttre beneficial land for commercial purposes and when 0re defendant occupied the house in question he did so on
interest in tenaury in cotnmon. The equilable presurnptions discussed above operate in appropriate the understaoding that he was renting itjust like a stranger. Therefore, he was bound to pay for his
cases to detennine the intention ofthe parties..o occupation and, ifhe failed, he could be evicted.
Under s. 53 of the Regrsl ration oJ'fitles.,lcr. rvhere the instrument of transfer lo two or rnore A co-owner may also be liable for occupation rent and or trespass if he or she ousts or evicts
persons is registered without specification ofthe nature ofthe co-olvnership. the proprietors a[othel co-owner from occupation of the common prop€rty. The co-owner who is ousted from
are
ptesuned to lrold injoint teruncy. In the case of ln Re: Fole.v (Deceased); Public Tiistee y Folev.a occupation by another co-owner is entitled to sue the person responsible in lrespass and to claim
the High Court of New Zealand. interpreting a siurilar provision. held that its objective is occupationretrtfronrhinrorherfortheperiodheorshewasexcludedfromoccupation.'8 Forthis
to make
registration conclusive, so far as it concerns third parties rvho act in reliance on the registered purpose, exclusion need not be express. it could be iruplied from the conduct of tlie bffending co-
itlstrutuent. However. as bet$'een the registered proprietors the presumption $'as rebuttable. For owner. For example, in Dennis v McDonalcl,'e the defendant and plaintiff lived together in a de
example, as illustrated by thc ca se of Cah,erley v Green,az et idence.uray be adduced to show
tlut facto relatonship in a house they owned in tenancy in conrmon. A.fter several years, the plaintiff
though the parties were registered as joint tenants. in equitv tlrcy- olyn the land in tenancy in lefothe house because ofdornestic violence. leaving the defendant in sole occupation. In an
@mlnon. -- - aflplicationforsaleofthehouse,theplaintiffclairuedoccupationrentfromthedefendantforthe
Right of enjoyment amongst coowners
- period he was in sole occupation. It was held that a co-owner is liable for occupation rent if he or
slrc is resporsible for the other being out ofiiccupation, ln this case, though, the defendant did not
Co-owners of land enjoy certaiu rigltts and owe each other certain obligations rn their dealings
with actually oust the plaintiff, for all practical purposes ltis violence towards her was tantarnount to
tlteir land. The rnost imponant right of a co-owner is the right to possession. In law each co-owner
eviction because it would have been urueasonable to expect lier to occupy the house in such
is entitled to possession and enjoyment ofthe entire co-owned lind iuespectir
e of the size of his circumstances.
or her share.rl
No compensation for improvements or repair
No liabiilties for trespass or occupation rcnt
Because eaclt co-owner has an equal right to occupy the land. neither can
A co-owner who, of his or her oryn accord, expends lnoney on irnprovernents or repairs of tlie
sue the other for trespass common property cannot demand compensation frorn other coowners.5o HolveYer, in equig'. upon
to the conunon land.4' Nor can a co-orvner dernand occupation rent frour
the other evel if that other termination of the co-ownership, lvhetherby sale or partition of the conunon properq,, a co-o\lrler
occupies tlre rvhole. For example. inJones (AE) t, Jones
lFly),ts t\edefendant and plaintiffwere may claim expenses he or slre incurred in carrying out improvernents to the properq.: The reason is
tenants in common of a certain house orvning one quarter andthreequarter
shares in tlp property, that it would be unfair for the non-contributor(s) to take advantage ofthe increase in value of the
respectively' For several months the defendant lived in the house alone. In an.rpplication
for tho property due to the eforts of tlre other co-owner. But the court of equity allows the improver to
sale ofthe house the plaintiffclairned rentfrorn the defendant for sole
occupatioil;rhe house. The recover only to the oxtent to which the improvements result in the present enhaucement of the
trialjudge ordered the defendant to pay tluee quarters ofa fair rent to the plaintif On appeal
to the valueoftheprope4y,ifany." Forexanple,supposeBinrngiandNanrazziorvnabuildingintenancy
Court of Appeal the decision rvas ro'ersed. Lord Denning MR **
thrt tlte common law in cornmon or in joint tenancy. Birungi spends I million shillings to renovate the house. As we
clearly states that tenants in common are equally entitledlo occupation"*plrti.
ofthe land. Consequently, havejust stated, ifBirungi spent the uroney on her own accord she cannot deurand any contribution
one tenant in comtnon is not entitled to dernand rent fron a co-tenant even ifthe
latter occupies tlie fromNanuzzi. Ifuponthesaleofthepropertyittranspiresthatbecauseoftherenovationsitsvalue
whole.
has increased by 2 million sNllings, Birungi would be entitled to reimbursement frorn the proceeds
However, where a coowner is in sole occupation of the cornrnon property on the
understand.ing for her expenses to a maxirnum of I ruilliou shillings. Ifon the other hand the increase in value is
rvith the other co'owner that he or she will pay occupation reot tb"r, ne
or it e is liable to pay ren-t onlyhalfamillionshillings,shewouldbeentitledtorecoveronlyhalfanrillionshillings. Where,in
as prornised.{6 The agreement to pay rent may be inferred from
the circurnstances aDd conduct of spite of her expenses, the house does not increase in value she rvill not be entitled to any
the parties. For exarnple, it
ugancla ThriJt co Ltcl v J.lv.(. Nnanbale.a, a group of ten people
reirnbursemeut.52

te- In Re: Foky @eccased); Public Trustee v Foley [1952] NZLR 702.
{0 See for cxanr ple, Calverley v Grear 9g4) j Cin
I :eZ.
r [1952]NZLR?02.
( f S

r1 (1984) 155 cLR242.

tt HetdersonvEosor (1851) l7 eB 701.
".' Bullv Bullll955l 1 QB 234.
098u 2 All ER 633.
'a Jacobstsewcrd(1872)LR5HL464'.TheProprietorofCcntreBuildittguriuplcuvBounre[l9ga]ed 50 Leigh t Dickeson (1881-85) AU ER Rcp 1099.
{ R 13. st Jon*:FaringtoilvFoftesterllSg3l 2Ch46l.ForagoodillustrationsecthedecisionofthcHighCourt
'! u9771 I wLR438. .., , . of Australia in Squire v Rogars [979] 39 FLR 106. ,

"'- Leigh v Dickeson (l8Sl-85) All ER Rcp 1099. 5r' Sco Sqlrre v Rogers, Ibid.
': Cs No 550 of l9i0 (unrcporrcd); tt97il HCB 326.
 152 Principles o/Lond Law in Uganda t
t L:o-ownef,rhtp oJ Lanct I )J
No liability to account for profits rl
interest of the transferee is conveyed to that partl Hence. where the joint tenancy is registered
At common law, since each co'ouner has a right to possessiofl and enjoynent
of the entirc qrmmon under theReglstration ofTitleslcr. severance b€comes efective on registration ofthe transfer.60
properly. a tenant who receives more than his or her share ofthe pioht
is not acco,ntable to the However, in equity. severance is recognised as operative even before registration ofthe transfer to
other co-orvners.5r However, in equity the courts rnay hold a co-o*n.,
uc.ornt"ti. for profits the third party provided that there is a contract oftransfer (specifically enforceable in equity)
either on the basis ofequity's inherentjurisdiaion to orderaccount
between ao-o*o.., o. a, behveen the transferor and transferee.6r Where the intended transfer to a third party is by way ofa
incidental to a partition suit.5i The liability to accornt in equity is limited profits
to received from a gift it will not be effective to sever thejoint tenancy in equity unless tlrc grant is completed prior to
third party's use or occupation of the common property ai distinct from
incorne maae uy ttre co- the grantor's death.62
owner's investment or use of the colnmon property.rs For example,
where a co_owner leases the
cotnmon land to a third party he or slte mrrt share the rent with the other liil Muuol
@-owners. but rvhere a co- agreement
ol\'Ier uses the common land to grou' commercial crops he or she has
no obligation to account for Severancebymutualagre€mcntisrvhereallthejointtenantsagreetoholdtheirtitleas tenantsin
the profits.r5
common.o There is valuable consideration for the agreement in that eachjoint tenant agrees to
relinquish the beneficial interest in the common prope4y including the right ofsurvivorship. in a
TeR-unauoN oF co-o\yNERsHIp return for a share of a tenancy in comrnon.6{ The fact that the agreement is verbal or otherwise
incapable ofspecific perfonnance does not appear to be important.6J Once thejoint tenants have
Termination of joint ten ancy agreed to ser/er tlteir joint tenanry, it is immediat ely and irret ersiDly severed in equitv.e Where the
Joint tenancv may be determined by conversion into sole ownership. joint tenants are regislered asjoint proprietors under the Registration oflitles Act. from thc
severance and partition.
rnoment they agree to sever they will hold the property as trustees for themselves as tenants in
Conyersion into sole ownership
colntnon and in equal shares.d
As rve have seen, on the death ofall but one ofthe.loint tenants. the survivor
becornes the sole
orvnerbyvirtueoftheruleofiusaccrescenr/i. Unders.20loftheRegrstrationof1itlesAct, (iii) Course of dealing
lye
survivor may apply to the registrar to be registered as the sole p.op.i.tor A joint tenancy is severed by course of dealing rvhere the conduct of the joint tenants towards
ofthe land and upon
registration he or she is deemed to be the proprietor thereof. each other rsleals a mutual understanding that thejoint tenanq,should be swered. Mrether this
issoessentiallyisaquestionoffactdependingonthecircumstancesofeachcase.6r Severanceby
Severance
mutual agreement and by course ofdealing lnay in sorne cases overlap. However. they are separate
Severance describes the process rvhereby.ioint tenancv is converted into
tenancy in cornmon. and distinct tnetlrods of severance. The difference is that severance by mutual agreement
Though strictly speaking a joint tenant orvns no distinct share in the common p'roperty
eqlity encompasses express agreement to sever the jointure, whereas severance by course of dealing
recognised that eachjoint tenant had a potential share in the property. wlilch
he or she could sever covers circumstances that may not involve any agreement but where it could be inferred from the
during his or her lifetirne. 5? Sir Williarn Page-Wood VC in liis ;elebrated
statement in lt/illiamst, circumstances that thc parties formed a 'common intention' to hold their property as tenants in
Hensman declared three r.vays of severance of ajoint tenancy: unilateral action.
mutual agreement cornmon.6' For example. in Burgess v Rarvnsle/. it lras held that a court may be entitled to infer a
and course ofdealing ofthe co-owners.rs
cornmon intention to severby course ofconduct onthe basis ofnegotiations carried on by thejoint
@ Unilateral severonce tenants. evcn though those negotiations did not result in an agreernent.?o
Ajoint tenant may unilateralll'sever thejoint tenancv by engaging in an act that destroys any one
of the four unities. For exzunple. rvhere X and Y are joint tenants, if Y during her lifetime transfers her
share ofthe property to Z thejoint tenancl. is severed because unity oftit-le and time is destroyed-
Intlisregard,YdoesnotneedtoseekX'sconsentletaloneinfonnhimpriortograntingherintererfi- - --
lo Z'1e Al law, a transfer to a third party becomes effective to severihe.yoini tenuroy when
the 60 Section 51. R77 Sce also Wi gh t v Gi bbon.r [19481 78 CLR 3 13.
6t ll'riglt v Gibbons. ibid. In Ugnnda tr contrnct to traust'cr an intcrcst in land is cntbrccablc cvcn ilit is not
st Hendenronvpasor(I851)17Q8701.Tltestantr-ofAnneofTT05gBvcthecouftspowertoorderan irr writing. section 4 (3) Contact .4ct cap 75. and lt,Itymja-Nkangi v National Housing Corporatiotr
account against I
cc.owncr receiving morc than his or herjust share. u9921 1rrLR37.
!a 62 A{ilrqt,vLord(1862)4DeGF&J264:45ERll85.lnSantamu'pNafirya(CANo84ofl959;HighCourt
See Peter Btttt. Lond Law (2'd,
Sydney. Larv Book Conrpany. I988) p. 196. Wrether a suit to account in
cquity can bc brotrght indcpcndently ol a partition suit is not clcar sce Bradbrook ct al, Thc Digcst 538, unrcportcd), it was hcld that a gift ofland is incomplctc until registration of the instnrmcnt of
Latt of Rcal transfcr. Hovr'cvcr. comparr with thc High Court of Australia judgcrnent in Corin v Patton (1990) 169
PropuS, m Ausralia, supra, at 317.
ss Squtre v Rogers [1979] 39 FLR 106, at lZ4. cLR 313.
5,6 Henderson v Eason (1851) 6t Wight v Gibboos (1948) 78 CLR 313
17 eB 701. Sce nlso,Sqrune, Rogers llglg)39 FLR 106. 64 Corinv Patton (1990) 169 CLR 540. nt 572
J7 Megarry and wadc, The Law ofReal properry. rrpir, pp. 429-30. scvcrance cannot per Deanc J.
be clfcctcd by will 6s Brngessv Rawrsley 11915) 1 Ch 429.
since a will only takcs cffect aftcr the deBth of thc tcstaror. scc Re.. caines I wLR
rr (1861) J&H546; 70ER862, at867. ll9g7l 546. Bttrgess v Rawtslry 11975) I Ch 429.
'6
61 Corin v Patton (1990) 169 CLR 540.
te lltilliamsvHerrsnrorr(1861)J&H546;10ER862.Notethatunders.40
oftl.teLandAct,lggg,theother 6' Burgess v Rawrsley 119751 1 Ch 429.
spousc mtlst conscnt prior to any transaction affccting t'amily land. Therefore. if in thc cxamplc
X and y 5' Ibid, it 447 , F,et Sir John Pcnnycuick.
arc nrarried and tlre co-owned property is t'amily land. a purportcd transler by Y of hcr intcrest. without
70 lbid.
X's consent, would be ineffcctive to sever thc joint tcnancy.
+ I Ceo*n*shrp ofLand 155
154 Principles of Land Lav in Uganda

'J Singh v Kaur.11 it was held that llte Partition .4crs were
statutes of general apphcauoa rn Ke n1a-
d (iv) Other manner of severance forthe applicatron of th:
TGargumentused intJrat case lvould havebeenof high persuasivevalue
In addition to the tluee rules of severance declared by Sir William Page-Wood YC.in l[/illianisv of general apptication do not apply to.Uganda'r8 ln
Hensman, there are two other methods of severance. The first one is sayer,uce by court orcler.
ecS in'UganOa. but for the fact that statutes
thouglrt that. without a statutory base. the courts in Uganda have nojurisdiction to
the evenl-it is
1
Once the court makes an order which is inconsistent with the continuation of thejoint tenancy. the A
joint tenancy is severed from the date ofthejudgement though the parties continue to hold asjoint ,nat.aro*putsory-orderforsaleofcoownedlandwhereanapplicationisrradeforpartition.Te
fragnrentation. It
tenants until the order is executed and the necessary legal transfers rude.?' For exarnple. if husband strict application oitL. *r*rron larv in this regard might lead to uneconomic land
is argua'ble tlut for this reason the courts luay, in the exercise of their porvers under
s' 16(3) of tlte
and wife hold their matrirnonial home in joint tenanq'. and in divorce proceedings the court rnakes ground its appircation
Judlcature Starue,lgg6.decline to follos, the couuuon larv rule on the that
an order for a settlement of property. the etrect of tlre order would operate to sever the joint tenanuy' the absence of
is not suitable for thg circumstances of this country and its people. In tlnt case, in
in equity. Thus, it is submitted that if before the order is implernented one of them dies, the rule of
survivorship would not apply in favour ofthe survivor. a'y other rule it might urake an order for the land to be sold or any such other order as thejustice
put the natter
Secondly, severance rnay occur as a consequence of uulawful killing by onejoint tenant ofhis of'the case so dernan&.$ Ideally, appropriate legislation should be enacted to
or her co-ovrner. It is a rule of public policy of tlre general lalv that a person slull not be pennitted beyond any disPute.
to profit by his or her own crime.?2 Equity will prevail on him or her to hold the legal interest on a
constructive trust for lfuself or herself and the estate of the decpased in tenancy in corumon in PRAcrtcnL APPLIcATIoN oF co-owNDRSHIP
equalshares. Forexample,inRe:Stone,1' therespondentandhislatewifewereregisteredasjoint
Manypeople rvho o*nland in joint tenancy or itr tenancy incollu[onare notclear intheir rninds
of
tenants ofthet matrimonial house when he strangled her. He rvas convicted ofrunslaughter
because of diminished responsibility. It lvas held that the respondent's action in killing his wife -- - -seuOuuotug.rofoneforruoftenancyovertheother. Nonually,jointtenanryisbestsuitedfor
caused a severance of the joint tenancy in the land. The court declared that the respondent manied people because upon the death of either spouse the survivor autolnatically becorlles the
sole ownerwithout need olprobate. Joint tbnancy is also a convenient nrarner ofholding tlie
legal
acquired his interest at law asjoint temntbut that he held it on trust for hirnselfand whoeverrvas
entitled to it under his late wife's estate. in tenancy in comrnon.
' title by admidstrators of estates and trustees. Tliis is because where there are two or lnore
adndnistrators or truste€s and bne ofthern dies, by operation oftlie doctnne ofTr.rs a ccrescendi the
(u) Partition survivor(s) would have the legal polver to adrninister tlre estate.tr For the same reason, it is
Joint tenancy rnay be terminated by partition. The rules for partition are exactly the salne as for advantrgeous for partners to be registered asjoint tenants oftheir parmership land' Upon the
termination oftenancy in corunon discussed below. death ofone ofthe partners. the firm nonually dissolves and tlie survivor lus a legal obligation to
wind up the business. lvhich usually inolves sale of Ure partnership property'. By operauon of the
Termination oftenancy in common . right of survivorship the remaining partner would luve the legal porver to dispose of ttre properq'
Bothjoint tenancy aud tenancy in corunron can be detenuinedby sale orby partition ofthe comruon
witlrout the assistance ofthe deceased's personal representative who othenYise must be isvoh'al
land. Termination by sale is where the laud is sold and the proceeds distributed arnongst the co-
if the partnership property lvere heid in tenancy in cotrunon. As we ltal'e seen, &e benefi;ul
owners in accordance with their shares. subject to any appropriate adjustnrents. such as fees for
interest ofthe estate of the deceased in the partnership is protected by the presumption &ar th:
sole occupation and reimbursernents for expenses incurred in iurprovements. Partition, ou tlr.e
beneficial interest in the partnership is held in tenansy in colrunon.&
other hand, is the physical division of the land anongst the coorvners. The co-owners may
Apart from the cases rnentioned above. joint tenancy as a rnamer of holding propery ca-o be a
voluntarily agree to sell and share the proceeds or to partition the property. as they so wish, subject
tmp for the unwary in particular because of 0re draconian operation of the right of su*'tvonhrp.
to relevant planning regulatiors. Wrere oue of tlrc parties is unwilling to partitio[ the comrnon
property, the courts have inberent squioblejurisdiction to cornpel a partition if in the circumstances
it isjust to do so. "
The legai position is less clear rvtrether tlle courts. iu an application for partition can at their
discretionorderasaleinlieuofapartition. Bothatlawandinequitythecourtscouldnotrefuseto
decree partition, however inconvenient, where denranded by one ofthe co+rvners.75 In England.
tlre situation was rectifiedby the enactmeot of the Partition Acts of 1868 and .1876, which gave the
courts discretion to decree a sale and division ofthe proceeds instead ofpanition.T6 In the case of
r' 11936) l7 (l)KLR l.
lt Dovies v Davies [1983] WAR 305. Patzak v Ltuon [984] WAR 532.
1r lJgondalulotorsLtdvtVavahHolditg.rtrrdCANolgoflggl. Onthebasisoftlisauthority,theHigh
1 2 Cleaver v Mutual Reserve Fund LiJe.4ssociation [892] I QB 147. Court lrolding h Mpalikanrunya v Serrpr)ro CS No 571 ol 1976 that the Portilror,4cr werc appkcable to
Ugaudq is no longcr good law.
'r [1989] I QdR251. SecalsoRasrrnrrbvJurewitsclt (1968)88WN(Pt l)(NSW)59. ClPfilicTrustee 1e
v Evors [1985] 2 NSWLR 188. Cf Gabriel lrlichel and another v Ktorrry (1944) t0 WALR 286.
1' MgalikananyavSanryiira CSNo5Tl of 1976(uurcportcd). Secalsol/nlsbury'sLawsofEngland(lst
' !0 Scc s. l6(2Xc) oftlicJrrdicoture Statute,1996.
Ed), at E34, nt v, At conmon law. tlrc courts had no suolr jurisdiction until thc cnactnrclt of lbc Partition
rt Scction LS6,Succession Act (cap 139), proyidcs tliat 'When probate has beon grruted to scvsral exccutors.

lcts 1539 and 1540. aDd ono ofthom dics, the eutiro rcprescntatiou oftho cststc accrues to thc sttrvivittg cxccutor or cxecutots'.
1t llalfairPropertyCoLtdvJohrrrcn [894] 1 Ch508. lnGabrielMichelandanolter.vKtotryQg44)10 Sceqlso.s.275ofsarnoAct.Alsosccs. 19(l)TntsteesAct(capl{Z)providcsthatwhcrontrustisgivcn
WALR286,it*'asheldttratthecourthasnojurisdictiontoordcrasaleinlicuot'partitionWherbneithcr.-1'
,
.- to two or morc"1bi,t/1 the sanrc may bo cxcrciscd by tho survivor(s) for tho tiure boirrg.
co'owner requcsts a salc.
s2 Soc also*o r. i3 of tl'p Admittistrator Act (ap 140), rvhich rcquires thc surviviug partrer to lurnish a

3l and 32 Vict. c 40 and 39. The law of Property Act ol s\rom statenlent of account to thc adnrinistrator.
'6 1925 repealed both Acts.
 Expropiated Property
10
Other measures included the setting up of tlre Uganda Da'elopment Corporation in 1952
Expropriated Property facilitate the industrial and economic develcpmem ofUganda- promote and assist in
management and establislment of ne.rv undertakings schemes for the better organisation
modernisation ofand the more effrcient caqying sm ofany undertaking and the conduct
(This chapter was wrttten by Mr Peter l4/alubiri, Senior Lecturer, Fccttlty of Law, Makerere into the indrrstrial and mineral potentialities of Uga-oda.6
University.) Provision rvas also made under lheAcc1uistion of Ginneries Ordinance.forthe
acquire comprllsorily privately orvned ginneries and sell them to Africans.T Several of these
Illsropr c.ql, sACKGRoITND sold to African-run cooperative societies. In 1953, the Produce Marketing Board was set up
perfonn a similar role in rclation to otlEr produce such as maize. simsinu and groundnuts, to
ln August 1972, President ldi Amin amounced an economic war, the net effect of which was the that was being perfonned in respect of cotton by the Lint Marketing Board.E The board
massive expulsion ofpersons ofAsian extraction from Uganda. Thousands ofproperties belonging a near monopoly ofthe ex?ort ofthese products and was able to guarantee a stable income
to these Asians were expropriated by the government and placed under the management of the producers.
Departed Asians Properry Custodian Board. After Idi Amin's fall from power, legislation was Otherinitiatives included the settingup ofthe African Loans Fund to facilitate loans to
enacted under which most of these properties have either been returned to the former owners or in furtherance of agricultural. industrial. commercial and building purposes.' These
sold off. legislativemeasures. coupledwith otherpolitical initiativesto gve Africansmore say inthe
of the colonial govemment, though positive in themselves, did not fully satisS the Africans
Asians' economic dominance
continued to agitate for more economic and politrcal space. Eventually. political
In spite of its economic, political and social magnitude, this expulsion and expropriation was not
won on 9th October 1962. The post independence government continued to strengthen
entirely unexpected. The Asian community first made a serious presence in Uganda in the aftermath
institutions set up in the colonial era to integmte Africans into the econorny.
of the construction of the Uganda railway where hundreds worked as iadentr:red labourers. After To accelerate urban development. the National Housing Corporation was set up in 1964
the construction of the Uganda raihvay several of them settled to a life of commerce. By the mid-
undertake the development. buildingand management of housingestates.r0 Aspart ofits
Ir forties, the Asiaus had established themselves as a dominant force in the retail trade, cotton to integrate Africans into the tolvns, the corporation had special programrnes, especially in
ri ginrring, coffee hulling, produce buying, kansportation, import and export trade.' Almost all major
li (Ntinda, Nagrrnr, Kiswa. Nakarva, Kataza). to enter into agreements fortlle sale of houses on
towns. including trading centes. had Asians as the donrinant trading community and real property
i,' of deferred palment for a period not e\ceeding 20 years or fol the grant of a lease of any
i' houserr. UrrdertheflalionalTradingCorporationAct.tl thecorporationwasmandatedto
The Africans to whom a cash economy was just being introduced for the first time were largely
li!i oraidanypersonbeingacttizenofUgandainbusiness.rr Thepromotionoraidcouldtaketlte
relegated to peasant farming and labouring in plantations, factories and shops owned by the
\t offinancing.
Asians and Europeans. There was no significant African presence in commerce or industry. Over
1,
til
All the foregoing rneasures made significant contributions to the inte$ation of Africans
time, discontent grerv among the African communities. They started agitating for a more significant
ir'
the economybut the dominance ofthe Asians in comrnerce and industry still rcrnained. It
share in the economy in terms of cotton ginning, coffee curing rights, marketing of their agricultural
a contentious political issue inthe country andbetu,een Uganda and Great Britain since most
1i
produce and participation in commerce. They were in effect demanding morepolitical and economic
,li Asians were British citizens orBritish protected persons.
i,' space. They organised strikes and trade boycotts.2
In 1969. a netv Trode (Licensing),zlc, was enacted with one of ils aims being to limit
operational srea ofnon<itizen traders.ra The lninister uas empolvered- ftom tirne to time by
Corrective measures
order, to derlare any trading cenEe to be an area in which a person who was not a citizen
The colonial govemment responded to this agitation by several measures such as the settiqgupol
was prohibited from trading.tr Pursuant to these polvers. the minister issued statutory
the cooperative movement to enable Africans to engage in organised production and marl€iing of
prohibiting nontitiz€ns from trading in rnost rural trading c€ntres. 16 Under section 4( I ) of the
their own produce.3 In 1949, the Lint Marketing Board was set up to handle all cotton exports and
itbecame illegal for anyperson u'ho wn s not a citizen ofUganda to trade outsidc any city.
to ensure a greater return to the farmers.r A price stabilisation scheme was set up to ensure that
or tovn or to trade in prohibited goods. This law put considelable prcssure on the Asian
fluchratiols ofexport prices did not result in large yearly variations in peasants' incomes. The
communiq'to move to the city or other large urban centres. By 1969, there tvere open political
followinglear, the Uganda Creditand Savings Bankwas setup with the objectof facilitating loans
to Africans in furtherance ofagricultural, commercial, building and co-operative society purposes.s
6 Section 1(1) The lJgonda Da'elopment Corporation Act' Cap. 319.
7 Ordinance 7 of 1952.
t Sec Ordrnancc I of 1953 (now rcpcaled Cap. 243).
They were in part assisted financially by the foreign banks likc thc Bank oflndia, which were the first to t Long litle to Tltc African I'oans Frotd Act, Cap. 164.
be established in Uganda. to Tha Natioral Hotsing Corporation Aet. Cap. i l.
2
These strikes and boycotts targeted Asian merchants. It l&rds.3(1Xc).
Cooperative Societies Ordinance No. 5 of I 946. t2 No. 18 o11966.
Lint Marketing Board Ordinance No. 33 of I 949 and subsequently Ordinance I 6 of I 959 (Cap. 234, Law rr IDrds. a(lXc)
ofUganda,19641. r{ Act 14 cf 1969.
See long title to the Uganda Credit and Savings Bank Ordinance 20 of I 950. r IDrds. l(b).
156
r6 Seess. 196 of 1969.227 of 1969, 12 of 1970. I3 of 1970- 119 of 1970'

_L_
 158 Prnrciples of Lond Law in Uganda
Expropnated Property 159

on Britain to repatriate its Asian citizens. Thus" when the expulsion ofAsians finally
took place in Agents for sale of properties to Ugandan citizens
1972. it was not entirely unexpeOed.
Initially, it was conceived that departing Asians would nordnate persons to act as their agents ro
The laws enacted to give effect to the expulsion of the Asian comrnunity. tJ re
expropriation and sell their property or businesses. To tlut end. every departing Asian rvas obliged to give to the
rnanagernent oftheirproperties and the subsequent return ofthose properties
have had a fai minister [otice in writing noruinating a person to act as his or her agent
25
The agent lud to ensure
.

reaching impact on the larv of Uganda. The lnost effected law was uriAouUrcOy
the lalv of real that the property or busioess was properly looked after until it rvas transferred by sale to a Ugandan
property, since the ruost valuable forur ofproperty afeoed was
irnmovable property. citizen.26 The ageut had powers, subject to the directions and approval ofthe AbandonedProperty
Custodian Board. to sell or transfer the property or business to any person, let a-uy prenrises,
THr sxpnopRrATrox convey by way of gift to auy person the properry- or business. or to acquire the property or
personally cary on the business.:7 Horvever, these porvers of agency rvere short-lived since the
Cancellation of entry permits follorving year Decree27 of 1973 repealed Decree 27 of l9'12.2E Ail acts done by agents in the
The first stage of the expropriation rvas the expulsion of noncitizen perforrnance oftheir duties on or a.fter 24 October I 972 for tlie purposcs ofuranaging any declared
Asiaru frorn Uganda. On 9
Septernber 1972, a derree was published to cancel enuJ* permits and assets wero deerned to have been donc b1" the governtuent.?e
certificates of residence held
by certain persons in Uganda.rT Uuder this tarv. anO'notrvithstanding
tire provislons ofUre
InunigrationAct, Ig6g,allerttrypermitsorcertificatesofresiOenceissuei'toari-personofAsian
Vesting of the pmpertics in the board and government '-

Tlie first category ofpropertics to be expropriated was that ofnon-citizen Asians s,ho depa(ed
origin" extraction or descent and who was a citizen of the united Kingooro
oi6i.ut Britain and Uganda without declaring the sanre. Such prope4y could not be sold or purchased and it
Nortlrern Ireland, the Republic of India. the Republic of Pakistan,
or uie n p*ric of Bangtadesh *u autonraticallyvestedinthegovenurent.$ WhenDecr*29ofL9T2atnendedDecrecNo.2'7of1972,
were cancelled.tt By a zubsequent amendment to theDecree. tle
cancellation gas extended to.any the Abandoned Property Custodian $oard rvas creilled and tire property hitherto vested in tlre
otlter person wlro is of lndian Pakistan, or Bangladesh origir\ extraction
or descent; ,, regardless of governmeot lvas vest'ed in the board without furthcr assurance.rr
his citizenship.
The second category of properties 10 be expropriated was propcrty abandoned by departing
Prohibition of nerv Iiabilities Asians or left in such a lva.v that no adequate arrangernents were urade for tire proper and efficient
Persons who had to leave Uganda due to cancellation rnanagement of such property. The board could, by statutor)- order. declare such properg to be
of their entry perurits or certificates of
residence lvere prohibited frorn trarsfering or mortgaging ve$edintheboard.u UnderstatutoryinstruruentsNos. 169 and 174of 1972.atotal of 14 properties,
their ir*oo*it. p.op"rty or in tle case
ofcoupanies, from issuing nelv shares or appointinfnew directors.2o mostly industrial propertieq and one hotel rvere vested in the board in this nrarurer. The powers of
HoLel]er. t[ose transfers
and mortgages that had been properly done before 6 bctober the board to vest propefly lvere subsequently assumed by 0re urinister who could by statutory
1972. when De croe, 27 of 1972 was
published, were saved'2r In tlre case of.irnmovable properry. order vest in the government any other asset ofa departed Asian.!
these restrictions were tlre fust step of
expropriation, in as much as registered proprietorJrvere preve.nted The third category of properties was properfy cxpropriated by rJte Properues and Busines.s
fronr freely dealing with their
properties as provided for by law. (Acquisitiort) Decree, l972.ra Under this Decree. all properties specified in the Schedule to the
Decree were vested in the govermuent and deerned to have been so vested and acquired by the
Declaration ofassets govenunent as from l8 Decenrber l972.ri Most olthe scheduled properties rvere industrial
Every departing Asian was obliged to declare his or herassets establishurents and tea estates owned by British nationals. Tlie list uas aruended by several
and liabilitics and supply zuch other
particulars and i-ofonnation reiating 10 his property statutory instrurue[ts36 and subsequently replaced by a single instrurnent appended to Decree 12
or business on the fonris siecified in the
schedule to tire decree.a The fonns subrnitted to itre ininister of 1975. rvhich was itselfarnended by a nunrber ofstatutory instruments.rT
tr ad,. i*er aiia:;;;aLrnpanieauy
a list oftitle deeds debenfures, loan agreements The last category was property sirnply taken overby the Custodian Board or other goverrunent
and contracts or other agreements entered into by
the departing Asians.Bonce the assets were declared. officials without either being declared or abandoned and no order nlade in respect thereof or
the rninister lvouli list themin a register of
declared properties aud businesses.ra acquired under the Properties and Business (Actluisitiott) Decrees. Tliough not founded on any
lalv this expropriation had serious legal cousequpnce. as lve shall discuss later.

25 /brd s.2(2)(d).
t1 Tlu Inmigratiot (Cancellation o/Enev Pcmrits 14 tbids.2l3).
tutd Certifcates of
tt 16,4 s.1. Residencc) Decrec No, lz o! 1972.
te s-ecliott I The Inuigratiott (Caucellatiott r7 Sc,ltiorr 1(a) oltheDec/or..tion ofAss;ct.t lNon-Citben l.ilsiutts) (Anordnottt) Decree, 1972.
oJEthT Perntits ord cernfic.te rf Rcsidence) (Ame,dnto,t) 23 Scction 36(1)(a).
Decree No. 30 ofl972. ?e lbid s.4(4).
20 Secliott I Thc Dechratiott
ofAsses (Non-Citizett Asntts) Dccreq No. 27 of l9?2;
Re<nactql as s 1 of ro s.4(5) Dccrcc of 1912.
2'7
!r
Dcorw21 of 1973. rr s. 8 and 12 (l)
ofDecrce 27 of 1972 as anrendcd.
Scction l(l)
& C3) of Dccrx,ZT of 1973. 12 s. 12(2) ofDccrce 37 of 1972 as anrendcd.
2? 2(l ) of Dccrcc 27 ol I 972. Re-euacted as s.2( I of D
S cction
of 13 s.4(2) ofDei,ree 27 ol 1973.
:3 Ibid s. 2(2f,c). Rc-cnacttJ as s3(a) (a) ) ecree 27 1973
ra No.33 o11972.
ot Decrcc 27 of i SZl.
24 Ibid s.3. -'l6rd
ri s. 1(1).
ll J( Secs.lNos.4of1973,20of.1973-58o1-1973,129o11973-47of1974.'16olt9?2.
" Secs.l Nos,44 of 1976 and 88 of 1978.
 l6Q Principles ofLand Law in Uganda
Eqsropriated Prope1, 161
Constitutionality of the exprcpriation
Atthetimeoftheexpropriation,theConstitutionoftheRepublicofUganda, Asian in relation to expropriated property. The board was also empowered to collect all debts or
lg6T.rvhichwastlen
in force. provided for protection ofprivate prope4y. articie B other rnonies due to the departed Asian in respect of expropriated property.a6 Howwer. debts
ortlJconJiitrtlon irovided that:
(l) No property of any description shal be compulsorily taken possession
oi. nni no int...rt in
claimed by or against a departed Asian were exempted from bearing any interest whatsoever.
right over Property of any description shall be compulsorily u.qui..a, nohvithstanding anything to the conrary qontained in any agreement.t' Effectively then. the
9r .*..pt where the contractual relationship between mortgagors and mortgagees was interfered with.
following conditions arc satisfied. that is to say.
(a) the taking of possession or acquisition is necessary in the interest The board was specifically empowered to sell or otherwise deal with such assets in the same
of defence. public
safety, pubric order, pubric rnorality, public trealth, town way that a depaned Asian could do.'E The board could and actually did sell, mongage. lease, sub-
and .o*irl,pronning or the
development or utilisation of any property in suih lease and let several of the properties it was managing. In other instances, the board released
*rnr.. rr,o p.orrole'trre-puuric benent:
and mortgages, surrendered leases or re-negotiated the terms of leases such as t}re annual rent payable.
(b) the necessity therefore is such as to a.fford reasonable justification
for the causing of an1.
In all these transactions, third parties acquired legal rights rvhich were subsequently afected by
hardship that may res*rt to any person having any interest in tlre provisions of tbe Expropriated Properties Act, I 982 andwhich have resulted in considerable
or right ovei the property:
and litigation.
(c) provision is made by a larv applicable to that taking
ofpossession or acquisition. Compensation to departed Asians
_ (i) for thepayment ofreasonable compensation,...
Decree 27 of 1973 v,as arnended in t975 to clarif the issue ofcompensation to departed Asians.o
Decree No' I of l97l under rvhich Idi Amin assumed
oftice suspended several parts of the Undertlreamendmentnelvsections 15. 15A" l5Band l5CvrercintroducedinDecree2'1 of 1973to
constitution but Article 13 was not afrected. Arthough amin was'aroroeJ
under that legal notice, tltose powers had to be exercisedln
trgll.tn. po*.r. provide for compensation. its rnode ofdetermination. time ofpayrnent and appeals to an arbitratiot
conformity $,irh the surviving provisions tribunal respectively.
of tle Constitution. including Article 13.
: The govermnent committed itselfto pay compensation, in respect ofany property or business
In our opinion. the various-decrees tlrat made provision for
expropriation rvere beyond Amin.s declared under s. 2 ofthe Decree, to the departed Asians.ro The compensation was to be determirred
i Iegislative porvers in as far as tltey violated Article 13 ofthe
Constituilon. rri. trting ofpossession by 1!e Board of Vahrers appointed under s. 2(1) of the Properties and Business (Acquisrtion)
ofthese properties was not in the interests ofdefence, public safety, public
i order, piuic rnoratitv. Decree, l975.sl
rl
I, public health, town and country planning or the deviopment
d
or utilisation ofany property in a The compensation had to be paid rvithin such period as the minister may determine lmvilg
manner so as t0 promote publicbenefit. There was no necessity
for the scale of hardsirip occasioned regard to the period within which the property or business may generate sufficient income to effect
iI to the Asian community andthe decrees did notprovideforpayrnent
irl, of reasonable mmpensation.rs
Unfortunately, the constitutionality ofthese decrees rvas not challenged
the amount ofcompensation payable.s2 The value ofcompensation, as determinedby the Board d
iit until ater the fall ofldi Valuers, had to be communicated to the responsible minister of the government of the
Amin's government and after the enactment ofthe remedial Exp *prinTri
H
hl
The issue of the constitutionality of erpropriation was in e,reit
i*piiiit Act in 1982. Asian's country of origin.53 If the government of the departed Asian was not satisfied with
iri
lil
overtaten uy a,.ntr. tt ,*s valuatiorl it had a right, exercisable within 30 days ofthe notilication ofthe valuation, to inform
nevertheless ruised in Huddo & Ors v Nyanza Sa}v tvtitls (l g47)
iu
Ltd & OrCe bui was abandoned government of Uganda of its objection together with its reasons. Unless the two
t,i atthehearing.Theissuewasalsoraisedin {JnitedAssranceCo.LtdvAttomeyGeneralrobulwas reach4d a settlement within 60 days from receipt of the objectioq the matter would be referred to
nex/er determined.
fi ArbitratibnTribunalappointedunders.l5CoftheDecree. Notwithstandinganyother
ii law to the contrary the award of the Arbitration Tribunal was final and binding on the
ri Management of erpropriated property
,I The larv for the management ofexpropriated properties s,as evenhrally gwernments.5'
*, consolidated into thelssetf- Provision was made under s. t5B for departed Asians, who had not declared their propertieq
oftlreDepartedAsiansDecree,lgT3.rr AllassetiartdliabititiesresteilnUregwl.n-entby,yh61q
,l
.,];
of s. 4 of the Decree were ftansfered to the Departed Asians property
-- declare them belatedly and to supply other information to the minister. Where such infonnation
I had itselfbeen established under s. 5(l) ofthe Decree.
custJdia, B.;jiifi;; not forthcoming, the government could nevertheless pay compensation as deemed
The board was established as Tlrese compensation provisions were repealed by the Expropriated Properties Act,I98253
a body corporate rvith perpetual succession and a comrnon seal
with capacity to sre and be sued in its coqporate name.o ihe board was mandated
to take over and
manage all assets transfened to it.'r'Ihis included the responsibility
all the liabilities
to discharge
a6 Section 7(l)(d)'
transferred to itby the Decreetr and the discharge of mortgages or other
debts owed by a departed f7 SectionT(3)asinscrtcdbyS. 1(a)ofthclsrerro/theDepartedAians(Amendment)DecreeNo. 12
'tat Section 7(1) (c).
Scc s.I(b) ofDccrcc 12 of1975.
rr P-rovision for compcnsation was madc by Decrcc 12 of 1975 long afler
j0 Section 15 (1) ofDecree2T of1973.
!' the cxpropriation h 1972. 5t Section liQ)Decrco27 ot1973.
High Cou( Misccllaneous Application No. 46 of 19g7. unreported
10 12 Scction l5A(1) Decree2T of 1973.
Civil Appeal No. I of 1986, unrcported.
aI No.27 of1973. 'r Section 15A(2)Dccrce27 of1973.
a2 lbid s.73. ,a Scction l5A (3). Under s. 15C thc tribunal was to be chaircd by an advocatc of&t least 5 ycars
o /brds.5(3). Tho tribunal had to havc 3 membcrs appointed by thc Uganda govcmmcnt and 3 other nrembers
a' lDid s. 7(1)(a). by thc governments of thc departed Asians concerned. Thc six mcmbcrs would appoint thc
failing rvhich thc Chicf Justicc of Uganda would appoint onc.
'5 Section 7 (1)(b).
r5 Scction l6(1Xd).
 ?
![ 162 Princtples of I'and kw in Uganda
t
H:',,,ffi"#SiH-,::#i;
t thcy were implemenred Some cnmpensation was paid to the govenunents of fonner owners but
there is scanty iaformation on the amounts involved and the procedurcs followed.
unders.l(e(c)-rravegeneratt.t:;;:;':-.;1}1.tffi6ffi
anylsrownlaw' lnLut.avay
n'u-'^::::"r":;:;;;iir.O enjoy,'re*t of t'e prop'
ilt*'ion'rexpropria'[ed*,ur:ii*#:f''#x*+tir*Eti;;ttrq1ffi
to oui.,

Rnwnsn rc rHE EIIPRoPRIATIoN

HTr'#,,:ili#j[i**J-C',..*tiie.*r,ouif,ti,i,,i,iJ.i,"aingond,etrueeissues
his wife' wlio rvere
pariluilit.lrt*ut tfrt si,.ce tt" n'st Otfedantand
The pressure for repossession Ireframed inthe zuit. Of ilie propery of
Upon the fall of Idi Amin's regime in 1979 foreign governments, notably Britain, that lrad supported the only shareholders
of the*s-elonddefendantcoY'{;;;;;liugandancitizens
the anti-Amia war effort and to whom the post'Anrin goverunents looked for donor support to H:ffiJ;;*3;Uru;j.iff ffi :l'"t:iii'1""iJj.iuanyo,,ier,Hr,'::i",edo*aken and
rebuild the ruined economy, called upou 0re government in Uganda to redress tlte wrongfirl ortr" g'p iopriated'Propu''::'::"'1982
in- rtrl[tl
overby the military over of tlie
expropriation ofAsian properties in 1972. The expropriationwas but onc ofthe tnany wrongs ofthe
"gi*jottitjoe
t'i'" JJJ"." ', anv
bring d;;;fitpt3titl-t-:j1Ylg
Amin regirne which had to be redressed. concluded tlut anvone
Not all Ugandans were unhappy with the expropriation. Many had expressed joy at the departule
of the AsianS. The departure actually opened up nrany business oppo(unities to Ugandans, *iT-v-t;:'-t#:';,,;;3fr l?*11#"H:[llltir*'f;;l'{^::i:{'::;i'::;(^!;'
opportunities that they would never have dreaurt ofbefore the expropriation. Ttris section of tlrc 'lauftl'
popr:lation did not favour the repossession and actively campaigned agdnst it in the 1980 general MasikaCJ,sjudgernentlvasfollowedby.ilreHiglrCourtinRegistere-dTlltstee,lofKampala
elections. However. the new governrnent fulfilled its electoral pronrise to returnthe expropriated 4 InstitutevDep"'t'ae'i'iuiiffi gitiau'11,.11i;t*:;;;ll,:.*:f ileo:'#';;l1sg
properties to tlre fonner owners by enacting 0re Exproprialed Properues Act, 7982.$
';;*;:xy;::;X;:i:l*,1f;r,:liij:::{ili,i,i'lr"*o'o''ina,vwavappropria'led
(t) ;; q''?t t'lce in this case' the
UV fo*' *l"p"ttgtil
1

or taken over' **t o'i'ttf"' ']":

taken over or used bv the
ri
The purpose of &eErpropriated Propefiies Act,1982 ^*o
qrt,";i;;;ii;t ue surt propertl'*ri r*rLzurv
evidence iudicated ,rr. inr*g ovei rvas illegal' t'e property rn
i The loug tille to the Act stated that its purpose was to provide for the uansfer ofthe properties and
eovernme,' ir wouto ue ailJro'to ,ogg.rt trrt uouutl
businesses aoquired or otherwise expropriated. during the military regirue. to the Ministry of Finance
$
and to provide for tlleir return to their fonner owners or disposal ofthe sarne by the government.
i
ii fu;[];fiXl,t'1fl:5,'"l'1'H,!'f,l:l,t.aproperrvattl':eti'l':'f.*-':,"'xpropriarion
acdon Ho*'e'er' the fonner
owner
Tlrc ilterpretatiou of the Act had to be guided by its erpress object and intention. The Supreme .*proprio,.aiilffiil-;iit;iarvzutness'oriuch
a wlrich was
t,
n'
x,
Court has held that this is a rernedial statute aimcd at putting riglrt what the legislature in 1982
thought had been unfortunately decreed or done. It was aining at reluming property to former
h",?;;"n;;"ilHT,ii5**HX*',,ffi *:ryi,iry;l,";?:Sf J.T,Tf,
of exPropnauol
caPable tns-eptetnuer l9l2'be ii ot*utr isr:'
owners and accordingly it had to be given a liberal interpretation.s? The ruischief which the Act
il$, a 3-vearleaseov.rup.p.rryinxlurpala.rvhicltexpit.i"t
rntended to recti$ was the appropriation of properry by the military regune and the remedy was to
return the properly to former orvners. The Supre[re Court enrphasrsed that. ifthe statute were
il,',ffi ql'r:**rffi.l;:lliJ;t*ftt[:lt}:t't:LUil.,x,f
Cotrurustonel ":#;6X 19?2 bad
I 97 3, the ql*.' lstNorember
construed restrictively the mischief intended to be redressed would be perpetuated, thereby failing aturtirer periodof 1"";;;';tiit-l';r*i ln the
forextension of tlrc leaseby acdfi;;tr;;;; tulfiI ce(aincondiuons'
to provide a remedy to the injustice rvhich ,was occasioued by tlre military regirne to fonner owners.
been approved ano
ir" ro
rvithout
or-"'io*tt \"t t"ttilto
$' and he left ucanda
"qJ"a 'espondem
tueantirne, tt"
the
ormt ttott' Later' in 1984'
ffi Properties to which theAct appliu
declaring his "'pooiJni';;iilt
asr.o -i"olior.
irJ*.l-ir.a ,rr.
"tr" "i;-ioi, The
Provision is urade in s. I (1) of the Act for tlrc following properties or businesses to remain vested
Iii appellurtobtai".OofJr.i"i.spectofttrepropetV'."0-tt*iit"tdrvithacertificateofdue' years'
in the goverrunent and to be managed by the Ministry ofFinance. These :re properties or businesses *u,'rggs lte obtartred a lease of 97
rvhichwere: lease rn-as exrenu.o ,ffi., "iir"L. "atett itr respect of the suit property.
"
In 1992.r,. ,,,poni.,iiild*',
certificate
til (a) vested in the government and transferred to the Departed Asrans Property Custodian "i,.p.'**i,, have properry to repossess' The
g.unds that the re+onJJn, OiO 'ot
Fi Board under the Assets of DepartedAsians Decree, I973. The appeliant c**uii, "" t' t;r;;;;;t; a le"t'o'lit" ihe respo'rde*t Ieft
Supre're cout held iri* tr'tit was no lease of the Act'
@) acquired by the government under the Properties and Business (Acquisition) Deuee,
Ugaflda in rszi' tht'"i;;' it't p'"p""y Jlu *t fill u[der tlre operation
Ln5. jlrrjlr-r,'* ipp.[*u. *rro;;il" iuailo orvuer of tire disputed Property'
(c) in auy other way appropriated or taken over by the miiitary regirne, save property lt Ktiani, ,"*rr, irir.o to tL. *;;;;;,ii o,i tr" grouirds
that the respondent
contested u ..po*rrrion..nlr,cui.
I which had been affected by the provisions of the repealed National Trwt Detee,
Lvn.
Thepropertiesprovidedforins l(lXa)&(b)werethosethatwereexpresslytakenoverunderthe HcB 46'
;;htrrct* civil Suit No' 860 of 1982: [le86l
f, respective decrees and have not b€€n tlrc subject of any controversy. Howwer, properties covered r, ^fi;n
6"rn cirif Suit No. 610 of l992--trrrrcported'at p' I0 & 11' olher nrcurbsrs of the
il Jldgrncnt olWnmbuzi C'J'
1993'
*i 60 Suprcmc Coun epp*iiit'
z-i tlrat properlies ol citizerts
, Courr coucurrod. ii.'irigr,
court **-'.J'* iitgtt,*t't"t,. hold
"f lras^si*qc
Gcrlerol Misc. Appcal
T
I s6 Act No. 9 of 1982. The Act cantc in forsc on2ll02l83 pursuant to statutory instrument No.5 of 1983 takoD
sctually *", i"* i,,|'-i,i t,nail
il,r ..,f,.,.,'c Act. Scc S/,o,r"
Attorlrt,

$, nradc undcr s. 18 ofthe Act. . No' 358 oll994'

57
i Regisured Tn.slees of Kanryala Institute v Departed Asions Properg Cusudiatt Board Civil appfi No. .r Civil Appeal No. 5 ol 1995'
Suprenrc Coud' turrcpotlcd'
62 civil Appcal No' zi"iisgs' Sup'cntc court'
2l of 1993 per Plaft J.S.C. at p. 13. unrcportod'

.J
 Etpropriated ProP?rD' 16<
164 Principles of land La* in Uganda

lrad executed a surrender of ltis lease witlt effect from 1 luly 1972 before he was expelled from
Uganda. This surrender had only been registered in 1977. The Suprerne Court held that the
unregistered snrrender conferred on to the mailo holder a right to the reversion of the lease and
extinguishedtherespondent'slease. ThepropertyhadrevertedtothemailoowneronTJulyl9T2
rvhentheleasewassurrendered. Therefore.theExpropriatedProperliesActdidnotapplytothat
propedy wlrich lvas never expropriated.6) Similarly. in Ja/fer Alibhai and 2 others t, Nandala H.
Kaira and another,e the Supreme Court heldthat a departed Asian, who had sold his property and
received part payment before leaving Uganda and tlre sale had subsequently been completed by
the Custodian Board. could not reclairn his property. since the purchaser acquired an equitable
interest in the property at the time ofsale. rvhich sale rvas cornpleted by the Custodian Board.

Re-vestingof property in the government and nullification of tlealings Derlings bY the minister
As pointed out above, all property vested in the governrnent under Decrce 27 of 1973 or in any TlreexoroDriatedpropertiesre.vestedingovernmentlradtoremainsovestedtlntilthe
in arry of the follorving lvays:
otherway appropriated ortaken overby the rnilitary rcgirncuas re-vested in the govemlnent to be --"" tliemrvith
dealt -' -
managed by the Ministry of Finance.ds The minister could bv statutorv order appoint any other itl return to forrner owners (repossession) -
the former o1uler'
person or body to manage any such \€sted property.66 Until such appointment. the Departed (ii) government entering a jointvenmrc with
Asians Property Custodian Board continued to manage the properties.6? (iii) sale
To ensure that the expropriated properties rernained vested in the government and that they (iv) disposal in anY other manner'
were dealt with under the provisions of lhe Erpropriated Properties Act, 1982 all purchases.
i' transfers. grants or any other dealings ofrvhatever kind in such properties were nullified.6t This
nullification even affected leases or tenancies lvhich had expired or rvete tenninated. Such expired
i,
or terminated leases uere deerned to have continued in force and to continue until the property had
.ir
been dealt with under the Act.6e
,1t
t1i
,t{ This nullification interfered with the lalfrl transactions that had been concluded by the Departed
t(t i
Asians Property Custodian Board in respect ofthese properties. Purchases or leases or surrenders
'lrIi
:xit
'
larafully effected b.v the Custodian Board rvere nullified. Equally nullified rvere foreclosures and
illlt sales of mortgaged properties by mortgagees,T0 Re+ntries by lessors on eripropriated leases lvere
lll'i
iil,!, also nullified and such forfeited leases reinstated to be dealt $'ith under the Act.'r Thus. this law
llll,
?l$li interfered with existing legal relationships behveen vendors and purchasers. mortgagors and
jlii mortgagees. and lessors and lessees.
i,llii
,il, I The nullification, on the face ofit, rvas intended to be retrospective, that is, to affect those
iiltjI dealings tlrat had taken place beforetJte Exproprtated Properties Act; 1982. Tlds rvas the earlier
i rltli
i: ll, I
viervlreldbytheHighCor.rt.z Accordingtothisvien'.afterthecomingintoforceoftheExprcpriatgd
rl:' Properties Act the nonnal legal relationship rvould obtain. for example. betlveen a lessor and a
ii lessee. In Bidandi Ssali r, .Attorney Genera!.'r the High Court held that a tessor could..tftr lhe -
{i corning into force of the 1982 Act. re-entcr upon the land and tenninate the lease if there rvere any
,:l
breach ofthe terms ofthe lease by the Departed Asians Propertv Custodian Board.
lij
!:,
,i
i
6r Per M6nyindo D.C.J at p. 8 ol his judgenrent.
;
6{ Civil Appcal No. 53 of 1995. Suprenre Court. Unreported.
6t Section 1 (l ) Espropriated Properties Act. 1982. of 1996. Suprenre Court' unreported'
65 lbid s.1(3). " Civil Appcal No.49J.A. at I0.
P.
's Per Tuinontnjrtnu Ministcr in the Uganda Gazcttc
67 Ibid s. l(4). % 5.-1 of the Act. Thc by Gencral Notice No.20 of 1993 issucd
6t dcadline lor lodging
.IDrd s. l(2)(a). rvilh S.l No I of 1994 cxtendcd thc
6t I,XXXVI of 13.5.93 togcthcr thc Court ol'APPeal itJa.fftr Br<srhers Ltd v
lbids.l(2Xb).Undcrregulation13ofs.l No.6oflg83theseleasesueredeentedtocontitrucaftcrthc by
-10. lO'93. This
crtension rras hcld lcgitimatc
propcrty rvas dcalt rvith urrdcr the Act for a furthcr pcriod of2 yean or B pcriod cqttivalcnt to thc
Civil APPcal No' 43 ot'1 997- trlrrcPorted.
unexpired period ofthe leasc or tenancy Bt thc timc ofoipropriation rvhichevcr rvns the grcater pcriod.
70 '? s. 5(1) ofthc Act'
See Gokaldas Laxinidos Tanno v SR Rosenot)' Mtt tvinzo Civil Appeal No. 12 of 1992, Supreme Cottrt ?i S.6(tr) olthc AcL
il [1994-s]: HcB 53. 1t S. 1 No' 6 of 1983'
i
1t Sce Nordin Charania llhlji v Droke Sentahrla Civil Appcnl No.40 of 1995- Suprtnre Court. unreported. to
12 Bidondi Fonn 3
Ssali v Attonrey General. Civil Sttit No. 834 of 1989. rl Supra
'3 Ibid.
 In-
166 Pnnctples o/Land Lav m
f. L gatda

F
!t 'laffer Ltd v Khemisa sen.vlJ' Rajasinghanr J. held that tlds letter was iu effect a .certificate
*{,
AuthorisingRepossession'. ByarnugishaJ.usingtherireralrur.gfil;,p;;;;;;eroaconrrary
conclusion .3 which was subsequently fottowei'uy
Ileathg rvith incumbered pmperties
Where a propeny applied for by a fonner olvner is subject to a caveat. lien. Ioan, charge. mortgage.
visited by the court of Appeal which having regaid
Kato f. fas rre ureriwasF ili, issue was re_
or other registered incumbrance in favour ofany lender, the rninister must first hold consultations
to the purpo;f ,r";;;, leia
in effect a 'certificate auttoiisrng Repossesson'.ri - - ---' "-'
repossession was urat a letter of with the former owner and the lender lvith a view !o securing a rnutually acceptable arrangement for
the discharge of such incumbrance.s Where no such arrangement is reached. the tninister is then
Joint venture behveen the government and a Therniuisterhassimilarpowers
/ormer ovner empoweredtornakesucharrangernentasheorsheconsidersfit.eT
where the government is interested in property in case ofproperties that he orders to be sold.e8 It is submitted urat rvhere no arrangement is
*lrich a forn e, owner has applied to repossess,
tninister notifies tlre applicant oftrte goueirrr,enrtint.r.rt thc
and invites the forurer owner to enter reaclred and no directions are rnade by the urinister then the incumbrance reur.rins to be discharged
into joint venture negotiations'e *here rhe according to the ordinary law governing such caveat lien. Ioan, charge or luortgage.ee
negoilationsare successf,rlly concluded. a joint
venture conrpany is incorporated and the
nrinisterlssues a certificate transferring
t1e property or
business to the cornpany.r The uriritta.
which are in the best interests of uganda-
*
uiro uaiaate any existing joint venture
a'angements
nrerely issuing a certificate validating
:-'-''
*itLoui rruuing recourse totv the above procedure. bv
rrte 4uuY(
Present tenants
ure transre;;- Persons who at llre comruencement of tire Act were legitimately occupying or managing properry
affected by the Act are allowed to continue to occupy or manage the property until it is dealt with
Sales by the ntinister
under the Ast.rm After disposal of tlrc property by the urinister, such occupants are entitled to not
br s' 8(l) of the Act to make ar order thar lessthan90daysnoticetovacateresidentialproperty.r0rThelawissilentonnoticeincaseofnon-
;|,t"ffi[Hffitr1d rhe properry be sord in the
residential properties.
a)
where the fonnrr-lr1ffiif r'o appry-for
repossession rvit,.in rhe prescribed
b)
where the minister is not sarisfied of
tfr. rneiirs of the application
tirne Compensation
c)
where negotiatiors for ajoint venture fail,
oi Provision is made in t\e Expropriated Properties Act for compensation lo be paid to various
d) where a former owner fails to pirysicaily retu'r and reside categories ofpeople. Where the nrinister orders a properry to be sold, the former olvner, not being
in Uganda within a period
of 120 days Aom date of repossission.
. a citizen of Uganda, is enti0ed to compensation from the government of Uganda.'02 Where the
The nrinister bas used ttrese powers to
sell hundreds of largely rmclairne.d properties.D property is returned to a fgnner owner or transfened to a joint ventue company or retained by the
is issued with a certificate ofpurclus", T1e purchaser goverunent, the former owuer or the cornpany or the gov'erunent is obliged to pay for the value of
*rricir r,* ti, Jorn. .r.a *a certificate ofrepossession.e
any improvernents on such property to the person who effected such improvernents.rol
Disposal by any olher nnnner
Where the property has been transferred to any person for value and it is subsequently returned
other ttran orderiagthe sale ofa property-
the minister ca,,. under s.g(l) of to a fonner owner or otherwise dealt with under the Act. the govemment is Lable to pa.v cornpensation
form of disposat deeerding oo rL circr.st*r., the Act, order any other
oitrr. prrticularproperty. He or srre can. for to such person.til The compensation payable to such a person is the purcirase pnce pard for tJre
exarnple, order rh^t a properw
be sMivided inio ,.porrtj
titr*r, ..rr, ," rr"i*r.i;;;;#:#;
person'erHearsbecanret"ridateteasesgantedtvlntrottingauthoritiesbeforelgg2andrnake
properly less the incorne derived orrvhich ought to have been derived from the propercy- from the
dar ofraruferto5 The provisiors relating to compensatio[ are not cornpatible rvith the Constitutiou
pro'ision for rhe compensarion of rhe
foi:rer oil.;; He o;rr;;a; ;rso-rlr.i Firstly, the rneasure ofcornperi'sation is not the present lnarket value ofthe property. Secondlr,.
prop.rry ,, u
l]i.Yg i:th""ty.forreplamiag aul otoer tne autrrorlry to compensare " cornpensation has to be paid over such a period and in such a rnanner as the uiinister rnay detemrine
rnstance, ft6 minivE *ty tlrc forner orvner.er In one
a. resare or properuesio purcrusers or negotiate witlt the person to be cornpensated.L6 In PltraliAbdulResul Esnntl v Adrian Stbo,tol
wrrose purcluses
been
Inamrhsi.sarce.,u"riiucri.ridaredaneariiersalebyanagentofthe the issue of rvhether these provisions met the constitutional requirenrent for adequacy' and
ilHTTHS:Acts 'ad
prompttress of cqmpensation was raised but only two of their lordships attempted to address the
issue. The rnajority ofthe court for one reason or another declined to decide this issue.
l]tt ttigt Court Ciril Suit lrlo, E?9 of 1992, uucporred.
Nazamlill.*,uris'4,@niEdyudw**;i;;"ya,r[6hcourrcivirsurtNo.364oflgg3uurcporred. e' Soction 5(2) Exp ropriated Properties Act, I 98 2.
'7 Ibid. s .5(3).
::ffi:xffi#"#ffi t'*il[cil:i;H,Hi*?i':'r",','#r""
t7 Section 4{2) ofS.A.{
et Ibids8(2).
te SccforexanrpleSandardCharteredBank(U) LtdvGrtutdHotel(J)LtdCivllAppeal No. l3of 1999,
t' Scction 4C3) of6*A.r Court of Appcal, unroported.
r00 Section 9(l) of tha Expropriated Proper
t' se*thcEryopt*dw-pr:r!disposar)ord*s1,!o.lst994rcpJacedbys. tot Ibid s 9(2).
ties Act, I 98 2.

and supplcocorcd bv rr l;oi- 18 or lNo. l?of rg95 ro: Scction 1l (1)ofthcAct.

comptitivic tcadcr co &E h"s" of rervc "r-JirJiiiro u,,d*,"8il;'r;;iil*"y is sord by
reeT
pri* ."t r0r Scctionll(2)ofthcAct.Accordingtos.l2ofthoActthcnrinrsterinMattersofValuation[ofCompensahon]
to Section 8 (3) of 6. Uy,i* Board of Valucrs
Art, is guidod by tho Board of Valucrs cstablished undcr s. 2(1) ol lhc Propernes and Btrsness (Acquistttoil)
:: *'*_ffi! P,wt*s 6+to-ganrur)order s.r No.J7 o!1995. Dacree,7975.
E p rapttatd, nT ro'
L LLE
y:s_mt t & D ispo so I ) O rd r s. l.N o. i i. of I 9 o 6.
e Section 1l (3) of the Act.
ll i;t 3
tls Erpro[yvuit W
tiogtjas
Etwsiau)
Rz?o.sl;c.ssiott
o,;;;.'; i.. sj orree6.
and Disposat) nrgultio,r. ,.t N;.
ros scc6,on 1l(4)ofDeoree ll of1975.
ro' Section 1l (6) oftheAct.
" ThcEqroyia;dh;".r- O,t"""pr*,U Orai-{.i 67 of 199g. l0' Constitutional Potition No. 9 of 1997. Constitutional Coult, unreported. See comnrcntary in Peter
i). zA olleea.
Walubiri(ed) Uganda, Constitutionalisnr or Cross Roads, Ugando Law Watch. Knmpala. 1998. 187-9 I .
s
 il 168 Principles ofLand Lae tu Uganda
t,
( Index
Appeal from the minister's decision 9' l0' 12'
Land Reform Decrec, 1975. 5, 6, 7, 8, 15'
Persons aggrieved by any decision made by the minister under the Act have a right to appeal to the Acquiesccncc,6"
23, 30,33
High Court against the rninister's decision. The right is exercisable within 30 days from the date of Advcrsc Po:sess'on
lrnd resislration Pilot schcmcs,3
of t;me,65
and Control Bill see hnd Bill
L,aPsc
communication of the decision.rc Written decisions are deemed cornmunicated fourteen days Irnd Teiurc
Limitation PerioC, 62, 63
afler date ofposting to an address in Uganda or tlventy-one days to an address outside Uganda.r@ Landlor( 97, 104
Powcr to evicl squatters. 6l
hndlortl and Tenf,nt l,rw 1937, 3
Tlre minister's decision cannot be challenged in an ordinary suit since there is no statutory Prcscription and acquiescencc, 56
Lcases
provisron for appeal. Ccrtificatcs of1 tle' 2 Assignnrcnt' 101
Colonial administration land policy' 3
Brcrch of covcnant, 104
Commtrnal Land .Associrtions' 30
Condition:, 97
CoNcr,usrox Co-ownershiP,',44' 154 Covcnrnts. 97' 98, I00' 102
Custonary laq I
Croation. 94
The expropriation ofproperties ofpersons ofAsian descent had economic. social and historical Cu3tomary righ's, 142 Distingui3hed from liccncc' 91
Doctrinc of cst rtcs
Duralion, 91
origins that had Estatcs lcss thcn frcchold, 48
Exclusive Pos:esrion. 92
raged on for over thrce decades. Government atternpts to redress the economic imbalance between Estrtcs oI frcehold. 48
Fixed temt' 90, 110
tlre Asians and the native Ugandans seem not to have been fully appreciated by the people. The Doetrine of tenure. 48 ll0
Forfciture. 106. 108,
indigenous people who had hoped that. following independence, the economy would change in Doctrincs of cqritv, 1. 2
Pcriodic, 90
Eascmctlts
their favour felt irnpatient with the slorvpace ofchange. Legislative attempts to drive the Asians Crcation, 130, l3l
Revcrsion.103
Sublease. l0l,102
out of the mral econorny came loo late. When a barbaric soldier seizedpolitical power. he resorted Donrinant land, 128, 129
TenancY at suffcrancc. 90
to the crude expulsion of the Asian community. Extinguishnlcnt, 135
TentncY at will, 90
While the larv rvas able to cope with the expropriation. albeit with several distortions of the Fcatures, 128
Tsnant bY occuPancy
Intcndcd. l33
esisting legal order, the economy rniserably failed. The inexperienced natives had no managerial Termination, I l0
Nccessitl- 132
Lcgal inrffcsts. 55. 56. 5?. 58. 59' 60
skill to run the properties and businesses ofthe departed Asians. This coupted rvith the strained Public rord, accas to' 134
Liccnces. 141, 142
il international relations rvith major donor and trading countries, brought the economy to its knees. Servicnt land, 128
Lukiiko. 2
Under Registrolton ofTttles Act' 134
By tie fall of Idi Amin there rvas need for rnassive foreign aid and investrnent. Againthe lara,s have M ortsEsaes
User or prcscriPtion. 133 'eipointmcot of n rcceiver' ll8' 120' 122' 123
been q\ck to make provision for repossession ofproperties and pronrotion offoreign investrnenf Erpritablc inteiests' 5i. 56. 5?- 58' 59'
60' 6l' 72'
Collalcral tdvant.gc. 12?
but economic progress has been slow. Moreover, the issue of rvho should dominate the economy 76.83, t',1
Foreclosnre.123
rernains dangerously alivetoday. Onehopes therervillbe no repeat ofnationalisation orexpropriation Dquity, 55, 56 Mortgagcd proPerty. purchase of' 126
ExoroPriatcd ProPerty' Pcrsonal covenant, 117
in frrtnre.
Expropriation. 157, 158, 159' 160 Posscssiotr. taking. I l7
History, 155 Rcnrcdics. 116. lZ3. 124
nir"tring 1he cxproPriation, 161, t63' 164' 165' Mortgages
166 ll5,
Crcntion,
Fixturcs.5I.54. ll3 Customary larrd. l16
Govcmmcnt I rnd, 7. 33 Disclrtrgc bY PaYnrent, 125
:
JoiDl tenrncY Eouirable. I 15
Crcttion, 146
Juiicial intcrucntion. 12?
Defirrition, 144 Naturc, I 13
t.
I Doclrine of snrvivorslriP' 145
Morlsasors.113,114. l15' l16' ll?' ll8' l19' 120'
Tcrminatiorr' I 51. 153 'tit,
tzz. r23.124. 125. 126'
UnitY of inlcrcst' 144
1i t7't
UnitY of Posscssion, 144
N:'
OutershiP of land
.L
L
UnitY of title' 145 ComPulsory acquisition' 38' 40' 41
Land administration Govemnrcut rcgulrtion of land rrse'
38
Districr Land Bdards' 34 Non-citizcns, 32, 36
,:' I.and Committeer' 15, 19' 23' 24' 26'26'29'
Restrictions on fanlilY land, 37
35,47 Prcscription, 67
lnctfund. SJ
Priorily see Lcgll inlerrsts: Equilablc intcrests
Uganda Land Commission' 33
Profits a Prcntlrc, 135
Land (Amenctment) Act 2000' 47 Public Lrrnds Act 1969. 4' 5' 9' 23' 35
knd Bill' 7
Registratiorr of titlca Jet Torrens Systcm
Land disPutes. scltlcnrcnt of' Restrictive covehants
Di<rict Lard Trihtrtals' 30' 42' 43' 45 Enforcement nt !'orllmoll ltu' 13?
Sub-countv Trihunals, 44 Enforcemcnt in equitv' 138
I
TrtnsitionaI jtrrisdiclion' 47 Extingulshment of' l4l
45
i Urbtn and City Division Land Tribunah'

I ror Section 14(1) ofthe Act.

t ru' Section l4(2) ofthc Act. 169
t
I
I
I
I
\ 170 Prnciples olLand Low in Uganda
r+
Rcmcdies for brcrch of, 140 Te[ure systcms
* Schcmcr of dcvclopmont, 139
scnitudu, 128, r35, 137, 141
Custonrary terure. i, 4. 5, 7, 23, 25. P6, 27, 32
Frethold tenurc, 3, 5, 7, 8
Sourccs of hw I l*arehold lcuure, 8. 9
Tonency in common Mailo tcnurc, 2. 10. 12, 14
Crcation, 146 Toro Agrccnreut 1900. 3
Dcfinition, 146 Torelrs Systcms.
Tormination,153 Iudcfcasibility of ti'.Ic. 73, 74, 81, 82. 83
Tcnrnt by occupancy Origins, 69
Csrtificatc of occupency, 19 Rcgistcr Book, 29, t19, 70, 71, 73, 74,76. 79, 80.
Payment ofrcnt, 14, 15 82. 86, E7. 134, 143
Rcgistr.blc intcrcst, 22 Rcnrcdies for dcprivuion of land. 86, 87
Tcrmination,2l Titlc by rcgisrretiou. 70
Unrcgistcred il)strulncnts, 7l
Ugauda Agreenreut I90C. 2