The Torrens system was introduced in Uganda by the British.

Prior to 1840, land in Britain itself

had been owned through conveyancing and deeds. From South Australia, Sir Robert Torrens
introduced a new way to own land. The new system solved the problem of having to carryout
investigations every time was being bought by introducing the certificate of title. It also created a
central body to deal with matters of registering and verifying these certificates i.e., the registry.
In the case of Uganda, S54 of the Registration of Titles Act (RTA) provides that no instrument
shall pass interest in land or mortgage until it is registered. Relatedly, S92(2) of the RTA
provides that upon the registration of the certificate of title, the powers and privileges thereto
shall be transferred along.

Consequently, a certificate of title is understood to be indivisible. Mulenga JSC (as he then was)
explained in Fr. Narsesio Begumisa v Eric Tibebaga1 that a certificate of title is conclusive
evidence that the person mentioned therein as proprietor possesses the estate of the land
mentioned.

Exception to the principle of title indefeasibility is fraud. S64 of the RTA thus provides that a
person owning a title is to hold it subject to only the incumbrances mentioned by the certificate
except in the cases of fraud. Courts condemn fraud wherever it rises its head and it is no
exception here.

The key elements of fraud were explained in Jandu v Kirpal2 as existence of some interest,
knowledge of such interest, knowingly and wrongfully acting to defeat the said interest on part of
the defendant. The standard of proving fraud has been said to be less than that of proof beyond
reasonable doubt but higher than a balance of probabilities.3

Additionally, Uganda remains a country riddled by corruption. Unfortunately, institutions

mandated to oversee the realization of the Torrens system i.e., the judiciary and police rank
among the least performing government agencies.4 Bribery is also the most common form of
corruption and indeed is ever present in land transactions.

In practice, there have been measures put up to limit the impact of fraud to the Torrens system
including employing ICTs. As will be shared below however, these adjustments are still limited
in their strengths.

ICTs

1
(Civil Appeal 17 of 2002) [2004] UGSC (22 Jun 2004)
2
[1975] EA, 225
3
Alibhai v Karia, HCT-01-LD-CA-0024 OF 2017
4
The 3rd national integrity survey (NISIII)." https://www.igg.go.ug/static/files/publications/third-national-integrity-
survey-report.pdf (April 2017).
The invention of ICTs is motivated by the fact opaque and overly bureaucratic institutions allow
a few individuals to have leverage over processes that huge numbers of people are dependent on.
This puts the affected persons at the mercy of the persons on top of the hierarchy. This is fertile
ground for fraud.5

In the case of Uganda, there has been an establishment of an e-Government Policy Framework6
under which the Land Information System falls (LIS).7 LIS’ aim was to digitize land titles and all
land transactions. This means that Ugandans didn’t have to travel to Kampala from then onwards
but to any of the six Ministerial Zonal Offices whenever they wished to sell, lease, or buy land.
Additionally, users would benefit from the fact that the initial steps to the new system did not
involve any personal interactions at all and so the chances of influence peddling were limited.8

The main challenge here has been that many persons benefited from the set of things as they
were prior to LIS. These individuals are thus devising means of extending their selfish dealings
to the new arrangements too. The important thing to understand here is that these persons are
often privileged in comparisons with the persons that LIS is meant to protect. Examples include;
brokers, land administrators, and surveyors.

With GPS gadgets, a surveyor can place the device in their pocket, enter the land they intend to
survey and ask the occupants to visit the bathroom. As he/she is entering and leaving the said
premises, the individual in question will make sure that they have surveyed the entire land.9 They
can then use the details generated to register the land in the names of the persons for work they
work for.

It is also the case that there continues to a large knowledge gap between Ugandans on ground
and LIS. This leaves many of them in a vulnerable position where they can be taken advantage

5
Mohta, Gitika, Andrew Lohsen, Yifan Yang and Chikako Yokoyama. 2015. "Intersectionality of Gender, Land and
Corruption in Ghana." New York: Columbia University, School of International and Public Affairs.
6
Ministry of ICT. 2016. “eGovernment.” https://www.ict.go.ug/initiative/egovernment (December 2016).
7
Thomson Reuters. 2015. "Thomson Reuters Aumentum Helped Uganda Establish a Modernized Approach to Land
Transaction Management." Thomson Reuters https://tax.thomsonreuters.com/aumentum/resources/uganda/
(April 2017).
8
Grönlund, Ake, Rebekah Heacock, David Sasaki, Johan Hellström and Walid Al-Saqaf. 2010. "Increasing
Transparency and Fighting Corruption through ICT: Empowering People and Communities."
https://spidercenter.org/wp-content/blogs.dir/362/files/2016/11/Spider-ICT4D-series-3-Increasing-transparency-
and-fighting-corruption-through-ICT.pdf (December 2016)
9
Priyal Bhatt, Jocelyn Chu, Ximena Mata, Yasuko Nakajima, Alexander Ro, and Marleen Schreier; THE POTENTIAL
OF ICTs TO COMBAT LAND CORRUPTION IN UGANDA: A GENDERED APPROACH, Transparency International.
of. The alternative to this is hiring professionals. This is also not possible for them however as
they are not able to meet their fees.

Customary Land in Uganda

At least 75% of land in Uganda falls under customary land tenure.10 The effect here is that the
Torrens system even with adjustments is unable to provide remedies for misuse that goes on
thereunder. It is no wonder then that many instances of fraud continue to happen in these
settings. There are cases reported for example of land owners selling part of their property but
being misled into signing for the sale of the entire land.11 In other instances, companies have
taken advantage of the fact that the said land is not registered to fraudulently claim certificates of
title over the same and thereafter evict the occupants.12

Moreover, the said land will often be controlled by a few persons e.g., clan leaders who at times
make decisions that are not in the interest of anyone else but them. This makes it rather easy for
mischievous actors to unfairly takeover ownership as they only have to buy off the said category
of people. People that wish to report these injustices are likely to suffer many limitations too. For
instance, it is the case that many of them are already marginalized and are as such unable to use
the aid of say toll free lines as they would not have cell phones.

Other cases simply stem from societal narratives. One may hesitate to report a clan leader
because by doing so, everyone else around him/her would judge them for bringing shame to their
heritage.

False Pretence

Despite emphasis of the certificate of title as well as confirmation rightful holders thereto, the
RTA provides a couple of exceptions as these principles can’t hold on their own. Unfortunately,
fraudsters have capitalized on the few allowances to carry out fraud. This is usually enabled by
professionals e.g., lawyers who fully understand these loopholes.

Pretence by securing special certificates

10
Arial, Anni, Craig Fagan, and Willi Zimmermann; "Corruption in the Land Sector. ʺ
http://www.fao.org/docrep/014/am943e/am943e00.pdf
11
Supra Note 7
12
Zagema, Bertram. 2011. “Land and Power: The Growing Scandal Surrounding the New Wave of Investments in
Land.” Oxfam International. http://policy-practice.oxfam.org.uk/publications/land-and-power-the-growing-
scandal-surrounding-the-new-wave-of-investments-in-l-142858
S70 of the RTA provides that if a person’s certificate is lost, becomes so obliterated as to be
considered useless, or is destroyed, the owner of such title shall make a statutory declaration
stating the facts and particulars of all incumbrances affecting the lad to the best of their
knowledge. Upon satisfaction, the registrar shall issue such individuals a special certificate of
title which shall inter alia include a copy of the title in the registry.

Fraudsters have unfortunately realized that this is something they can bank on and have
accordingly applied severally under this provision. The Ministry of Lands has put out a strict
policy that demands any applicant to present an introductory letter from the Chairperson, a police
letter confirming the loss and physical appearance of the applicant for verification. Yet this
criterion is still abused. The question here is how this is possible. Unfortunately, the answer is
that these individuals connive with persons on the inside.

Pretence by forging powers of attorney

S 146 (1) of the RTA provides that a person who has rightfully obtained powers of attorney may
conduct transactions on land, lease or a mortgage on behalf of the rightful owner of these
interests. The law appreciates here the fact that not at all times is it possible for individuals to see
through transactions on their property. It could be that they are sick, or minors etc.

Many persons have again forged powers of attorney to facilitate transactions. In Konda Mathias
Zimula v Byarugaba Moses & Anor,13 the second defendant used the plaintiff’s special
certificate of title to forge a power of attorney under which he transferred the property subject to
the suit to a certain party and later to the first defendant.

The responsibility here falls on owners of land to be careful with their documents. While
government and other stakeholders have roles to play as discussed already, they can only go so
far.

Some Strengths

While fraud still looms wide, in some key aspects the law has been able to arrive at proper
mechanisms around it. An example here is the case of contract inter-parties. In Souza Figuerido
Vs Moorings Hotel,14 the appellant and respondent had entered a lease agreement in excess of
13
HCCS No. 66 of 2007
14
[1960] EA 926
three years. The appellants left before the said premises though and refused to pay the
outstanding arrears arguing that since the land in question was not registered, then there was no
lease to start with.

Court held in favour of the respondent though saying that there had been a contract regardless
and that the respondent had entered it with a good consideration.

Recommendations
There remains a lot to be desired when it comes to the operations of the Torrens system in
Uganda. Below are recommendations that should be considered in reforming the status quo;
1. As discussed, there still remains a fair fraction of the population that is unaware of the
operations of the Torrens system. Without registering their lands, it is hard to see how the
system will help them.
2. There should be regular oversight by either independent agencies or other government
departments regarding the operations of the land Registrar and other in line offices. As
seen from the earlier discussion, it is not that the Torrens system has no potential but
rather that that potential is being failed by those who don’t want it realized.
3. There should also be harsh punishments met on professionals who aid fraudulent actions
like some lawyers. This will send a message to their colleagues not to follow in their
path.