NKUMBA UNIVERSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

COURSE WORK

COURSE: Bachelor of Laws (LLB)

ACADEMIC YEAR: Year 2, Semester 2

COURSE UNIT: Land law 2

LECTURER: Ms. Peruth Nshemerwirwe

STUDENT NUMBER: 2200100635

STUDENTS INDEX NO.: 2022/AUG/LLB/B230747/DAY

DATE OF SUBMISSION: 19th April.2024.

Question: Discuss the legal justification for the coexistence of section 54 and 59 of the Registration of Titles
Act cap 230, in light of Articles 26 and 237 of the 1995 constitution of the republic of Uganda
1.0 INTRODUCTION:

In this legal analysis, we will explore the intricacies of sections 54 and 59 of the Registration of the Titles Act1
examining their alignment with the constitutional provisions of Article 26 and 2372.This discussion aims to scrutinize
the legal foundation of these sections within the broader constitutional framework, assessing their compatibility with
the principles and rights enshrined in the 1995 constitution of Uganda. Through a detailed examination, we seek to
elucidate the rationale and legal justifications underlying the implementation of these provisions in the context of
property rights and land ownership in Uganda.

1.1 Meaning of section 54, 59 of the RTA Cap 230 and Articles 26 and 237 of the 1995 constitution of the
Republic of Uganda.

Section 54 of Registration of the Titles Act3 provides that; ‘’No instrument until registered in the manner herein
provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render the
land liable to any mortgage; but upon such registration the estate or interest comprised in the instrument shall pass.
Section 59 of RTA4provides that; ’No certificate of title issued upon an application to bring land under this Act shall
be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the
proceedings previous to the registration of the certificate and every certificate of title shall be conclusive evidence that
the person named in the certificate as the proprietor of the estate. Article 265 provides as follows :( 1) every person
has a right to own property either individually or in association with others. (2) No person shall be compulsorily
deprived of property or any interest in or right over property of any description except where the following conditions
are satisfied— (a) the taking of possession or acquisition is necessary for public use or in the interest of defence,
public safety, public order, public morality or public health. Article 2376 provides that: (1) Land in Uganda belongs
to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this
Constitution. (4) (a) all Uganda citizens owning land under customary tenure may acquire certificates of ownership in
a manner prescribed by Parliament; and (b) land under customary tenure may be converted to freehold land
ownership by registration.

1.2 Origin of Registration of estates and property:

The registration of instruments as stated under section 54 and 597 started way back in 1840th by Sir Roberts Torrens.
According to the black’s law dictionary8, Torrens System is a system under which, upon the landowner's application
the court may, after appropriate proceedings, direct the issuance of a certificate of title. With exceptions, this certificate
is conclusive as to applicant's estate in land. The system owes its origin from Australia. Australia being a British
colony, it was subjected to the English law of Real Property. This included private conveyancing and registration of
deeds. However Australia’s economic and social conditions were very different from that of England for example the
latter had a well-developed legal profession that managed the land conveyancing while Australia was a sparsely
populated country. In 1840, Sir Robert Torrens advocated for a new system for Australia. This was so because of the
dependent nature of titles which necessitated retrospective investigation of title each time land had to be conveyed.
Thus, he wanted a single document that could be a conclusive evidence of a title to each particular piece of land. In
1910 through the Ordinances laws, the law was adopted in Uganda. An Ordinance that based on the transfer of Land
Act 1915 of the State of Victoria in Australia was enacted as the Registration of Titles Ordinance 1922 No.229,
revised edition of the Laws of Uganda).Due to the amendments in the Laws of Uganda, the Registration of Titles
Ordinances is currently known as the Registration of Titles Act Cap 230 (R.T.A). The most important issue is the
establishment of the registrar under section 3 of the R.T.A and the functions of therein. Section 3(1)10 provides that
the registrar is in charge of the office of title and exercise the powers and duties that the Act bestows on him/her. The
major obligation of the registrar is to issue a certificate which is conclusive evidence of title as provided for in section
59 of the R.T.A. The Torrens system thus the R.T.A of Uganda has two essential features that are connected to section
54 and 59 of RTA CAP230 and notwithstanding Article 26 and 237 of the 1995 constitution which leads to
justification of legal ownership of property. Therefore one to own property or land in uganda, he or she shall undergo
registration of his property thus will acquire Title by registration under section 54 of R.T.A and that title shall be a
conclusive evidence of ownership as stated under section 59 of the act thus leading to Indefeasibility of title. This leads
to legal ownership of title as stated under Article 26 and registration under Article 237 of the 1995 constitution of
Uganda.

1.2(a) TITLE BY REGISTRATION:

This is where the interests in land are created or transferred by registration under the R.T.A Act cap 230. Section 5411
states that no instrument shall be effectual to pass any interest in land unless it is has been registered according to the
section. Thus, the interests and estates are not transferred by the execution of documents under the common law
doctrine. In Uganda therefore, for one to transfer an interest or an estate, the former and the latter must be registered by
the registrar who issues a certificate of title. That certificate and the particulars of the certificate are then entered into
the register book; and it shall be conclusive evidence that the person named in the certificate is the proprietor thus
having the power to dispose of the land under section 59 of RTA cap230. In Ndigejjerawa v Kizito and
Kubulwamwana12 it was held that none of the buyers got title since none of their documents relied upon the statutory
requirement of the ordinance thus they were only entitled to damages or one entitled to specific performance as remedy
because before transfer, the buyer acquires equitable interest in the suit land. Thus without registration, ownership of
property as stated under article 2613 is not guaranteed.

1.2(a)(i) APPLICABILITY OF TITLE BY REGISTRATION:

In Uganda currently, no one can transfer an estate or interest unless it is registered as required in the R.T.A by the
registrar under section 54 of the act. Therefore the title does not pass by mere execution of titles. In Ndigejjerawa v
Kizito and Kubulwamwana14 both the buyers executed documents but none of them got the title. Even the maxim of
Equity that where equities are equal, first in time prevails did not apply.

The system is also applicable in the way that customary land tenure is not registrable under the R.T.A. Therefore, the
system started to register all the customary land thus issuing certificates of ownership. This is evident in our section
68(2)15 However, the system deals with the registered instruments such as mailo land, free hold land, lease hold and the
registered customary land.section 3816 this will be concluded by the registrar issuing duplicate certificate, recording the
proprietor in the Register Book and retaining a copy in his/her file.

Practically, this has led to the registration of land in Uganda. Although the law is very clear that no instrument shall be
effectual to transfer any interest/estate in land unless it has been registered per section 54 of the R.T.A, the law does not
deny unregistered instruments any legal efficacy. In the actual sense the statement contradicts section 54 of the R.T.A
however this protects the unregistered interests/estates (the doctrine of Equity as it was in Souza Figueiredo and Co.
Ltd v Moorings Hotel Co. Ltd17 where Sir Kenneth O’Connor said that although section 54 could render instruments
ineffectual when they are not registered however, there is nothing in the act which renders such instrument as
ineffectual as contracts between parties to them. Therefore, it was held that the respondent was entitled to the rent from
the appellant since the latter had taken possession as a tenant at will. In Uganda, most of the instruments are not
registered thus the courts look into the matter and the doctrines of Equity be put in place. In Katarikawe v
Katwiremu and anor18, where Ssekandi.J. held that though in a contract of sale of land an unregistered instrument of
transfer is not effective to transfer title, the purchaser acquires an equitable interest in the land, which is enforceable
against the vendor. Therefore, the law does not totally undermine unregistered instruments if there is a reasonable
defense submitted or the doctrine of Equity being at play. This applicability implies that registration of title under
section 54 of R.T.A cap is legally stronger in law compared to unregistered instruments.
 1.2(b)(ii) THE EFFECT OF UNREGISTERED INSTRUMENTS:

Section 54 of RTA cap 230 states that no estate or interest can be created or transferred until the instrument is
registered in the manner provided for by the Act. However, the act does not deny unregistered instruments/
transactions legal efficacy. In Berry vs. Heider & Another19 and Souza Figueiredo & Co. Ltd vs. Mooring Hotel
Co.20. Court in the former and latter case observed that an unregistered instruments executed by the parties constitutes
a contract inter parte and they are bound by its terms. It is now commonly taken from the position of the above case
that an unregistered lease constitutes a contract inter parte as was in City Council of Kampala vs. Mukibi21 however,
there are several cases where courts have held that an equitable interest is created by virtue of the contract between the
parties. In Katarikawe vs. Katwiremu and Another22, Sekandi J held that though in a contract of sale of land an
unregistered instrument of transfer is not effective to transfer title, the purchaser acquires an equitable interest in the
land which is enforceable against the vendor. Similarly in Alibhai & Another. vs. Karia & Another23 Court observed
that; ‘’After the contract of sale, the suit property passed to the first respondent, who obtained the equitable estate and
retained it after the appellants left Uganda.

It is therefore very important to note that whereas the RTA cap230 does not recognize an unregistered instrument,
case law treats it as a contract between parties and enforceable. The provisions of the RTA cap230 do not avoid the
contract behind the instruments or render it in operative. It is that contract and not the instrument which is rendered as
effective in accordance with the principles of the equity so as to bring into existence an interest in land as intended by
the parties in the agreement. The above submission implies that under unregistered instruments, courts shall recognize
the contracts of the parties and intension of the contract. Therefore when instruments are not registered, ownership of
property is not guaranteed as it would be if it was registered under section 54 and 59 of R.T.A which would ensure
ownership UNDER article 26 of the 1995 constitution of Uganda.

1.2(b) INDEFEASIBILITY OF TITLE:

Section 59 of the RTA cap230 provides that a Certificate of titles is a conclusive evidence of ownership of land.
Section 64 of the act states that the estate and the interest of a registered proprietor is paramount and prevails over all
other unregistered interests or estate except as stated in the Act. Sections 181 & 17624 talks on the protection of a
registered proprietor against any action for the ejectment or damages. Except as stated in the act. In Kampala Bottlers
Ltd v. Damanico (U) Ltd25 court held that appellant was a sole registered owner of the land and is title was effective
and could not be challenged because of irregularities of the commission.

1.2(b)(i) Objectives of the principle of indefeasibility:

 To protect the title of the registered proprietor from unregistered interests.

 To save the persons dealing with the registered land from the trouble and expense of going behind the register book in
order to investigate the validity of the title or possible invalidate claims to the land and thus simplifies and expedite the
process of transfer. In Lwanga v. the Registrar of Titles26; it was observed that one of the paradoxes of registered
conveyance is that through registration obtained by fraud is void, it is capable of becoming of good root of title to a
bona fide purchaser for value as it was similarly observed in Nazarali Hasanali Sayani Vs Edward Mperese
Nsubuga27Where it was held that a bonafide purchaser with value without notice has a better title indefeasible.

1.2(c)(ii)Exceptions to the principle of indefeasibility of title.

The principle of defeasibility under the Torrens system is not absolute and is subject to several exceptions both within
the R.T.A cap230, other statutes and by the exercise of the inherent jurisdiction of courts. Section 64 of the RTA28
provides for several exceptions to the indefeasibility principle among others as stated below:-
(a)Encumbrances notified on the folium: a registered proprietor takes his/her title on subject to estate or interests
which are endorsed on the register book and certificate of title at the time of the purchase. If the land is subject to a
mortgage, he/she shall ascertain the amount that is outstanding for obviously it would affect the value of the land.

(b)Fraud: the title of a registered proprietor is indefeasible except in the case of fraud. Such fraud must be proved to
as orchestrated by the registered proprietor and it should be attributable to him/her. The fact that a registered proprietor
bought land from a rogue or a person who acted fraudulently in transferring the land does not mean the transferee’s
title was acquired through fraud.in Lusweswe v. Kasule & Coulbally29(unreported) court held that there was sufficient
circumstantial evidence to establish fraud thus the plaintiff got back his land. In Musisi v. Grindlays Bank (U) ltd &
Ors30, court held that a person who becomes registered through fraudulent act by himself or to which he is a party or
with full knowledge of fraud is not a bona fide purchaser. In Rurangaranga Vs Mbarara municipal council31 court
held that the appellant acquired the plot of land fraudulently and thus , he was not entitled to own it.

(c) Land included by wrong description. Section 64 of the R.T.A32states that the title of a registered proprietor is not
absolute as regards any portion of land that may have been included in his or her certificate of title by wrong
description of the parcel or boundaries.

Public right of way and easements: The public right of way and easements acquired by enjoyment or user or
affecting registered land constitutes an exception to indefeasibility under section 64 of the R.T.A33 a public right of
way is a dedication to the public of the occupation of the surface land for the purpose of passing and re-passing as it
was in Makumbi (Mrs. K) & Anor Vs Puran, Singh Ghana & Anor34 where court held that An easement on the
other hand is a right over another’s land for the benefit of some other land. Section 65 of the act on easements existing
under deed or writing to be noticed as an encumbrance.

(d)Adverse possession: Under section 5 of the Limitation35, if a land owner does not eject or commence
proceedings against an intruder in adverse possession within a period of twelve years, the land owner effectively losses
his/her land to the intruder as it was clearly stated in Nambalu Kintu Vs Effulaimn Kamira36. In Kisee Maweu &
ors Vs Kitu Ranching & co-operative society Ltd37 court held that the limitation period began to run against the
respondent from the date the appellants began to squat on the land and not the date of registration of registration of the
respondents title.

(e)Interest of any tenant of land: Section 64 of the act states that the interests of any tenant whose possession is not
adverse prevails over the title registered proprietor even though his/her interest is not entered as an encumbrance on the
register book. The effect of the exception is that the possessor’s claim under the tenancy agreement prevails over
whosoever is the registered proprietor even though the tenancy is not registered.in Uganda Post And
Telecommunication Vs AKM Lutaaya38 it was held that the respondent’s registered leasehold was subject to the
appellant’s title acquired by possession with the consent of the landlord prior to the leasehold. It is therefore important
that a person who deals in land must conduct a physical inspection of the land to ascertain whether there is a person in
possession or not.

(f)Registrar’s powers as exception to indefeasibility. The law gives the Registrar certain powers that may constitute
an exception to the indefeasibility and includes the powers to correct errors and omissions in the register book and the
certificate of title. Under section 91 of the land39, registrar has Powers to recall a certificate of title and cancel it. It
should be noted that the Registrar’s powers should be exercised with caution to avoid an open gate to litigation against
the registrar. In Rurangaranga Vs Mbarara Municipal Council & Ors40, appellant’s certificate of title was
cancelleed by the registrar on grounds of fraud.
1.3 CONSEQUENCES OF FRAUD ON REGISTRATION OF LAND

According to Kerr on the Law of Fraud and Mistake 5th edition41, fraud is defined as the contemplation of a civil
court of justice to include all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust
or confidence, justly reposed, and are injurious to another.In the American authority of Husky International
Electronics, Inc. vs. Ritz42 court defined actual fraud as encompassing fraudulent conveyance schemes that can be
affected without a false representation as it was in Frederick J. K. Zaabwe v. Orient Bank & 5 Others43 where court
defined fraud in accordance to Black’s Law Dictionary 6th Ed44 to mean an intentional perversion of truth for the
purpose of inducing another in reliance upon it to part with some valuable thing belonging to him/her or to surrender a
legal right. In Kampala Bottlers Ltd vs. Damanico (U) Ltd45, it was also held that fraud must be strictly proved, the
burden being heavier than one on balance of probabilities generally applied in civil matters. Section 59 of the RTA46,
provides to the effect that a certificate of title is conclusive evidence of ownership. Under Section 64 (1) R.T.A47, the
estate of a registered proprietor is paramount and is indefeasible except in case of fraud. Further, Section 176 (c)
R.T.A cap accords protection to a registered proprietor on registered land from ejectment except on grounds of the
fraud attributable to the registered proprietor. In Taylor vs. Stibbert [1803 – 13]48, court held that the failure to make
reasonable inquiries of the persons in possession and use of land or the purchaser’s ignorance or negligence to do so
formed particulars of fraud. In David Sejjaaka v. Rebecca Musoke49 it was held that fraud must be attributable to the
transferee, either directly or by necessary implication. The transferee must be guilty of some fraudulent act or must
have known of such act by somebody else and participated in it or taken advantage of it.

Section 177 RTA50 provides that; “Upon the recovery of any land, estate or interest by any proceeding from the person
registered as proprietor thereof, the High Court may in any case in which the proceeding is not herein expressly barred,
direct the registrar to cancel any certificate of title or instrument, or any entry or memorial in the Register Book
relating to that land, estate or interest, and to substitute such certificate of title or entry as the circumstances of the case
require; and the registrar shall give effect to that order.” Section 27(2)51provides to the effect that costs shall be in the
discretion of the court and shall follow the event unless for good reasons court directs otherwise.

1.4.RIGHTS OF A REGISTERED PROPRIETOR OF LAND:

No action of ejectment or other action for recovery of land shall lie against a registered proprietor under Section 176
RTA52 The production of a certificate of title shall be held in any court to be an absolute bar and estoppel to any action
against such person named in the title as proprietor, No certificate of title issued under this Act shall be impeached or
defeated. The certificate shall be conclusive evidence that the person named is seized or possessed of that estate or
interest under section 59 of RTA cap230. In Anderea Lwanga v. Registrar of Titles [1980]53 Odoki Ag.J held that a
title of a bonafide purchaser for value cannot be impeached. A person registered through fraud can pass good title to a
bonafide purchaser, unless the purchaser was not bonafide. And in Kampala Bottlers Ltd V Damanico (U) Ltd54Platt
JSC explained that the registered title cannot be set aside for mere irregularity in the preliminary stages. Fraud must
reside in the transferee. The learned judge found fraud in the officials of KCC and the land office and not on the
transferee. This was not sufficient to impeach the title bonafide obtained.

CONCLUSION:

In light of Article 26and 237 of the 1995 constitution of Uganda as amended, the coexistence of section 54 and 59 of
the Registration of Title Act Cap 230 be legally justified. Section 54 provides for the registration of titles, ensuring
legal ownership of land, while section 59 allows for the rectification of mistakes in the register. These provisions work
together to protect the property rights of individuals, ensuring that land ownership is secure and accurately recorded.
This coexistence aligns with the constitutional principles of equality before the law and protection of property rights,
promoting a fair and just legal system in Uganda.
1
cap230 of Uganda (RTA)
2
of the 1995 constitution of Uganda as amended
3
cap 230
4
ibid
5
supra
6
of the 1995 constitution the republic of Uganda
7
supra
8
page 1660 by Henry Campbell Black, M. A Revised fourth Edition
9
(Cap.102 of the 1923
10
supra
11
ibid
12
(1995)7 ULR 31
13
of the 1995 constitution of Uganda
14
supra
15
of the Land Act 1998.
16
of the R.T.A cap230
17
[1960]1 EA 926(CAK)
18
[1977]H.C.B211
19
(1914)19 CLR 197
20
(1960) E.A 926
21
(1967) E.A 368.
22
[1977] HCB 187
23
CA No. 53 of 1995,
24
of the R.T.A
25
C.A No. 22 of 1992,
26
(1980) HCB 24
27
C.S No. 364 of 1993.
28
cap230
29
,HCCS No.1010 of 1983
30
(1983) HCB 39
31
(supreme court civil appeal No.10 of 1996)[1997]
32
cap230
33
cap230
34
(1962) EA 331
35
Act cap 80
36
CA No. 26 of 1973 [1975] HCB 221
37
(1982)1 KLR 746
38
SCCA No.36 OF 1995
39
Act cap227
40
civil appeal no.10 of 1996
41
part 1 page 1
42
No. 15–145of 2016
43
SCCA NO.4 of 2006
44
at page 660
45
SCCA No.22 of 1992
46
Cap 230
47
Supra
48
ALL ER 432
49
Civil Appeal No. 12 of 1985,
50
cap230
51
Of the Civil Procedure Act Cap 71
52
Civil Procedure Act Cap 71
53
HCB 24
54
SC CA 22/1992
BIBLIOGRAPHY:

LAWS APPLICABLE:
1. The Constitution of the Republic of Uganda (as amended)
2. The Land Act 1998 Cap 227
3. The Registration of Titles Act, Cap. 230
4. Access to Roads Act Cap 350
5. The Limitation Act Cap 80
Books
1. Tumwebaze, Ayebare: Land Transactions in Uganda, Barristers Reference
Services, 2nd Ed. 2016
2. Sir Robert Meggary& HWR Wade: The Law of Real Property, 5th Ed.
London, Stevens & Sons, 1984
3. EH Burn: Cheshire & Burn’s Law of Real Property, 14th Ed. Butterworth’s
London, 1988
4. Mugambwa, John: Principles of Land Law in Uganda, Fountain
Publishers, 2002
5. Morris and Read: Uganda, the Development of its Own Laws and
Constitution
CASE LAWS:

1. Ndigejjerawa v Kizito and Kubulwamwana (1995)7 ULR 31

2. Souza Figueiredo and Co. Ltd v Moorings Hotel Co. Ltd [1960]1 EA 926(CAK)
3. Makumbi (Mrs. K) & Anor Vs Puran, Singh Ghana & Anor(1962) EA 331
4. American authority of Husky International Electronics, Inc. vs. Ritz No. 15–145of 2016
5. Anderea Lwanga V Registrar of Titles [1980]
6. Kampala Bottlers Ltd V Damanico (U) Ltd SC CA 22/1992
7. David Sejjaaka v. Rebecca Musoke Civil Appeal No. 12 of 1985
8. Taylor vs. Stibbert [1803 – 13] ALL ER 432