ST.

AUGUSTINE UNIVERSITY OF TANZANIA

FACULTY OF LAW
Suppose X intends to purchase a plot of registered land and he is warned of the existence of a
statutory provision to the effect that
“Every person acquiring any estate or interest in any registered land shall be deemed to
have actual notice of every subsisting memorial relating to such land in the land register
at the moment when he acquires such estate or interest and, in the case of subsisting
memorials inscribed in those parts of the land register which contain the description of
the land and the particulars of encumbrance, of any filed documents to which those
memorials refer.”

a) What must he do?

b) What are the legal implications of failure to take notice of such provisions?
c) Suppose X had asked the seller about all the relevant materials facts before the sale
transactions was concluded but shortly after the sale, it is learnt that the seller had made
certain misrepresentation regarding the land, what could be the position
A. What must he do?
In this, if X intends to purchase a plot of the registered land while he is warned of the existence

of the provision of section 341, he must first fulfill his pre-contractual conditions being to Take

notice and make a legal search, Thus X will have to research on the property he is about to buy.

This will be both legal research and a physical research

In legal search X, has to have knowledge of the buyer and the nature of the property he is

about to buy, in this he has to investigate the seller’s tittle to the land and the required land

qualities and restrictions or subsisting memorial relating to the land in the land register

This is governed by the principle of caveat Emptor, the principle holds that the buyer has

to beware and take notice of the land he is about to purchase. He is under the obligation to

make a search of the land he is about to buy for any form of defects unless they are latent

defects. X’s notice to the land may either be

actual notice, this may be obtained by X by directly asking the seller of any information

to be disclosed regarding the house, thus it’s the direct information and knowledge given by the

seller, this is mainly on matters of registration and legal defect like restrictive covenants or the

plot being a matrimonial property, or any form defects not easily discovered at that time. This is

a legal requirement of which failure of exercise of buyers notice to the land he will be deemed to

have actual notice on any subsisting memorials over the land.

Constructive notice, this is the notice imputed by the law on instance where the buyer

was either careless in researching over the land. In this the law will assume the buyer has

1
Land Registration Act CAP 334 (R:E 2002)
constructive notice over the property he is about to/ has purchased. This is governed by the

provisions of section 67 (b) (I)2.

Imputed notice in this the information on land passed to the agent of the buyer or his

advocate is regarded by the law as being actual notice communicated to the buyers himself.

Therefore imputed information is all actual notice which is acquired by the agent of the buyer or

his advocate. This is governed by section 67 (b) (2)3

Therefore the most important thing X has to do, when intending to purchase the said plot

of land after learning of the provision of section 344

“Every person acquiring any estate or interest in any registered land shall be deemed to

have actual notice of every subsisting memorial relating to such land in the land register

at the moment when he acquires such estate or interest and, in the case of subsisting

memorials inscribed in those parts of the land register which contain the description of

the land and the particulars of encumbrance, of any filed documents to which those

memorials refer.”

X has to conduct a legal research on restriction and memorials relating to the land to attain all

notice relating to the land

B. What are the legal implications of failure to take notice of such provisions?
2
The Land Act, Cap 133 R.E 2002
3
Ibid
4
Land Registration Act, Cap 334 R.E 2002
 X’s failure to take notice and conducting research on the plot will be legally implied as a

constructive notice,

This is so since, legally X is required by the law to make a search of the property he is

about to purchase, this is as governed by the principle of “Caveat Emptor”, this is a Latin maxim

meaning buyer should beware, In this the buyer of a plot is required to take notice of the land he

is about to purchase this, being on sanctity of the tittle of the seller to pass the tittle of the land

and on any defects on the property either being patent or latent defects

constructive notice, is to mean that information/ knowledge imputed by the law to a

person, this covenant is usually applied In case of buyer carelessness in finding the information

as provided under section 67 (b) (i)5. The law will assume that was constructive notice meaning

that the buyer has actual notice over the property similar to information he could have made

equally inspection on the land. Therefore all information concerning the right of occupancy

should be known before drawing and execution of the deed of transfer. This was also provided in

the case of Omari Yusuph vs. Rahma Abdul Kadir 6 which was above mentioned that before the

buyer buys the land he has to conduct a research over the land if it is registered and to who it is

registered to. This implies that, if X fails to follow the provisions provided to be observed when

buying the registered land, the law will imply as if he had received the information actual notice

over the property similar to information he could have made equally inspection on the land

5
The Land Act, Cap 133 R.E 2002
6
[1987]TLR APPEAL NO. 169
C. Suppose X had asked the seller about all the relevant materials facts before the sale

transactions was concluded but shortly after the sale, it is learnt that the seller had made

certain misrepresentation regarding the land, what could be the position

Since contracts of disposition of land are required in writing therefore they are governed by the

rules of making a contract as provided under the Contract Act 7. Therefore in case of a bona-fide

misrepresentation by the buyer the contract will be voidable at the expense of X. But is the

misrepresentation was an intended fraud by the seller then the contract will be void unless he

thinks fit and insist that the contract shall be performed, and he shall be put in the position in

which he would have been if the misrepresentation first made was true.

X has to prove there is sufficient misrepresentation to the land he purchased from the buyer in

order for the agreement he issued during the transaction between him and the seller to be

voidable as provided under section 19 (1)8 which states that a contract is voidable at the option of

the party whose consent was so caused. That is, he has to prove or provide evidences which

show that his consent came under the influence of misrepresentation and if proved he can be

rewarded with remedies caused due to the misrepresentation of contract during the sale of land as

it was discussed in the case of Bartholomew Ndyanabo v. B. Petronida Ndyamukama9 in

which the court held

“As the respondent’s consent to the contract was induced by fraud she was entitled to

repudiate on discovering the true position.”

Therefore in contracts of disposition of land, the normal rules of contracting tend to apply to both

parties as a seller and the buyer therefore on instances of misrepresentation the provision of
7
The Law of Contract Act, Cap 345 RE:2002
8
Ibid
9
[1968]HCD 339
section 19 (1) of the contract act shall apply. This is so since capacity to contract and

requirements to contract are some of the pre- contractual condition in a contract for disposition

of land
 REFERENCES

STATUTES:

1. The Land Act, Cap 133 R.E 2002

2. The Land Registration Act, Cap 334 R.E 2002

3. The Law of Contract Act, Cap 345 R.E 2002

CASES:

1. Omary Yusuph vs. Rahma Abdul Kadir [1987] TLR.APP.NO. 169

2. Bartholomew Ndyanabo v. B. Petronida Ndyamukama [1968] HCD 339

3. Bi. Amina Katume v. Eustace Ndyakowa [1968] H C D 13, (PC) Civ. App. 64-M-65,

16/11/67
(The content of this document are subject to any form of valuable criticism and correction if any)