Land Transactions Notes Researched and Compiled by Katumba Pius Busobozi FIRM H2 2016-2017

LAND TRANSACTIONS
NOTES RESEARCHED AND COMPILED BY KATUMBA PIUS BUSOBOZI
FIRM H2 2016-2017
Table of Contents
LEGISLATION........................................................................................................................................1
CONSTITUTION OF UGANDA OF 1995........................................................................................1
237- Land ownership........................................................................................................................2
Tenure systems;................................................................................................................................2
THE REGISTRATION OT TITLES ACT, CAP 230...........................................................................3
THE LAND ACT CAP 227 (as amended by the LAND AMENDMENT ACT 2004.................10
Land ownership................................................................................................................................10
S. 39 restriction on transfer of family land..............................................................................15
National provincial BANK v Ainsworth (1965) A.C 175........................................................16
What documents would I require to determine whether the purchase can be safely
undertaken?...........................................................................................................................................20
STEPS TAKEN PRIOR TO PURCHASING THE LAND...................................................................22
RIGHTS/ INTERESTS IN LAND OF DIFFERENT PERSONS.......................................................27
SAFE GUARDING RIGHTS OF AN ADVERSE PARTY..................................................................30
VIABILITY OF THE TRANSACTION OF LAND INVOLVING A NON-CITIZEN.......................32
Cisco. Associated consultants Ltd a non- citizen company....................................................33
Procedure for effecting sale and transfer of land.......................................................................35
DOCUMENTS PERTAINING TO A LAND TRANSACTION...........................................................40
Application to conduct search......................................................................................................40
Caveat.................................................................................................................................................44
AFFIDAVIT IN SUPPORT OF A CAVEAT.....................................................................................46
Sale Agreement................................................................................................................................53
HOW A LAWFUL OCCUPANT CAN OBTAIN A CERTIFICATE...................................................69
The requirements for one to be given a certificate of occupancy are;............................70
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RESEARCHED AND COMPILED BY KATUMBA PIUS BUSOBOZI FIRM H2 & CO. ADVOCATES
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The procedure for applying for a certificate of occupancy is;............................................71
THE PROCESS OF MUTATION AND SUBDIVISION....................................................................74
LAW AND PROCEDURE FOR SUBDIVISION.............................................................................74
Practical steps in subdivision........................................................................................................75
Documents required for subdivision...........................................................................................77
CONDUCTING A SALE IN ABSENCE OF A REGISTERED PROPRIETOR................................78
Procedure to effect transaction using Powers of Attorney..................................................79
EFFECTING POWERS OF ATTORNEY OUT OF THE COUNTRY............................................80
Fees to effect transfer of land......................................................................................................80
COMPLETING AN INCOMPLETE SALE BY ADMINISTRATOR OR EXECUTOR AFTER
DEATH OF PROPRIETOR....................................................................................................................81
PROTECTING INTERESTS OF A BENEFICIARY............................................................................82
DOCUMENTS.........................................................................................................................................85
POWER OF ATTORNEY...................................................................................................................85
APPLICATION TO BE REGISTERED AS PROPRIETOR OF A DECEASED LAND...............86
CERTIFICATE OF OCCUPANCY/ GRANT OF CONSENT.........................................................87
Power of Attorney............................................................................................................................92
Caveat.................................................................................................................................................94
Affidavit in support of caveat.......................................................................................................96
Sale Agreement..............................................................................................................................103
FRAUD AND BONAFIDE PURCHASER FOR VALUE WITHOUT NOTICE..............................107
CASES................................................................................................................................................107
LEASES, SUBLEASES AND TENANGES........................................................................................111
Incidents of the tenure.................................................................................................................111
Essential features of a lease.......................................................................................................112
Exclusive possession.....................................................................................................................112
Tenancy v license...........................................................................................................................113
Covenants and conditions...........................................................................................................115
Covenant of quiet possession.....................................................................................................115
Non derogation form grant.........................................................................................................116
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Certainty of duration.....................................................................................................................117
DURATION OF A LEASE UNDER THE LAND ACT................................................................118
Requirement for registration of a lease......................................................................................119
Effect of non-registration of a lease.........................................................................................119
Equity.................................................................................................................................................119
RELEVANCE OF DATE OF GRANT OF LEASE.............................................................................119
Other differences between licenses and leases........................................................................120
Termination of a lease......................................................................................................................122
Termination by notice...................................................................................................................122
Termination by surrender....................................................................................................................123
Termination by merger........................................................................................................................124
Forfeiture..........................................................................................................................................124
Relief from forfeiture s25 Judicature Act Cap 13.................................................................127
Relief from forfeiture Documents.......................................................................................................129
Affidavit in support..............................................................................................................................130
Tenancy...................................................................................................................................................133
A tenancy at will..................................................................................................................................133
Tenancy at sufferance.........................................................................................................................134
Periodic tenancies...............................................................................................................................135
IMPLICATIONS OF ALL THE ENTIRES ON THE LEASE AGREMENT AND CERTIFICATE OF TITLE..................145
STEPS TO LAWFULLY TAKE POSSESSIONOF THE LAND FROM THE VARIOUS OCCUPANTS/ INTEREST
HOLDERS..................................................................................................................................................153
Termination of a periodic Tenancy......................................................................................................153
Termination of a Tenancy at will.........................................................................................................154
Termination of a License.....................................................................................................................154
VARIATION OF A LEASE...........................................................................................................................155
PROCEDURE.........................................................................................................................................156
How to register a variation lease.........................................................................................................160
RISKS INVOLVED IN ENTERING A LAND TRANSACTION WITHOUT DUE DILIGENCE.................................162
COVERTING A LEASE ON FORMER PUBLIC LAND TO FREEHOLD..............................................................166
Remedies for a lessor..............................................................................................................................169
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Waiver of breach of conditions and covenants.......................................................................................169
LICENSES..................................................................................................................................................180
Characteristics of licenses....................................................................................................................180
Types of licenses..................................................................................................................................181
Bare license.....................................................................................................................................181
License by estoppels........................................................................................................................181
License coupled with interest..........................................................................................................182
Tenancy agreement.................................................................................................................................182
Lease Agreement (8th schedule RTA).......................................................................................................187
Co-ownership of land..............................................................................................................................194
JOINT TENANTS...................................................................................................................................194
Unity of possession..............................................................................................................................196
Unity of interest...................................................................................................................................197
Unity of time........................................................................................................................................197
Unity of title.........................................................................................................................................197
The right of survivorship (jus accrescendi)..........................................................................................197
Termination of joint tenancy...................................................................................................................199
Conversion into sole ownership..........................................................................................................199
Severance............................................................................................................................................199
Unilateral severances......................................................................................................................199
Mutual agreement...........................................................................................................................200
Course of dealing.............................................................................................................................200
Partition...........................................................................................................................................200
TENANCY IN COMMON........................................................................................................................200
The two characteristics of tenants in common:...................................................................................202
Termination of a tenancy in common and joint tenancy.....................................................................202
ACCESS TO ROADS..................................................................................................................................204
Procedure for acquiring an order of accessing a public road /highway...............................................205
ADVERSE POSSESSION.............................................................................................................................211
Proving adverse possession.................................................................................................................212
Running of time...................................................................................................................................213
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Stopping time running.........................................................................................................................214
Requirements for adverse possession.................................................................................................214
PROCEDURE FOR OBTAINING A VESTING ORDER ON ACCOUNT OF ADVERSE POSSESSION...............216
Documents..........................................................................................................................................218
Fees.....................................................................................................................................................219
Vesting Orders in respect of complete purchase but no transfer............................................................219
The conditions to be satisfied by the applicant for a vesting order.....................................................220
PROCEDURE.........................................................................................................................................221
DOCUMENTS...........................................................................................................................................222
Application for a vesting order............................................................................................................222
Statutory Declaration..........................................................................................................................223
Application for a special certificate of title..............................................................................................226
PROCEDURE.........................................................................................................................................227
Documents required............................................................................................................................228
Fees payable....................................................................................................................................229
Application for a special certificate..................................................................................................229
Statutory Declaration......................................................................................................................230
Withdrawing a Caveat by the Caveator...................................................................................................235
Application to be registered as Administrator of the Estate of the deceased on land where there is a
caveat lodged by the beneficiary.............................................................................................................236
Steps by the registrar...........................................................................................................................236
Written statement of defence.................................................................................................................237
Originating Summons..............................................................................................................................239
MORTAGAGES.........................................................................................................................................241
CREATION OF MORTGAGES.................................................................................................................243
What is a mortgage?............................................................................................................................243
Types of mortgages.............................................................................................................................243
Power to create a mortgage................................................................................................................244
Categories of mortgages......................................................................................................................245
Legal mortgages..................................................................................................................................245
Equitable mortgages/ informal mortgages..........................................................................................246
Equitable mortgages on customary land;............................................................................................247
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LEGAL PROTECTION OF A MORTGAGEE..................................................................................................249
TACKING..................................................................................................................................................249
Implied covenants by the mortgagor.......................................................................................................250
LEGAL PROTECTION OF THE MORTGAGOR..............................................................................................252
EQUITY’S PROTECTION OF A MORTGAGOR.............................................................................................253
DOCUMENTS THAT ARE REQUIRED TO BE ON THE BANK MORTGAGE (CREDIT) FILE TO SATISFY THAT THE
TRANSACTION IS VALID...........................................................................................................................256
Search letter........................................................................................................................................257
Search in the company registrar..........................................................................................................258
THE STEPS TAKEN IN ORDER TO PUT THE BANK IN POSITION TO RECOVER ITS MONEY ON BASIS OF THE
MORTGAGE.............................................................................................................................................260
Registration of a mortgage..................................................................................................................263
CHALLENGES LIKELY TO BE FACED AND STEPS TAKEN TO MITIGATE CHALLENGES FACED IN
PERFECTING THE MORTGAGE..............................................................................................................264
Steps taken to mitigate the challenges................................................................................................265
STEPS TAKEN TO ENFORCE THE MORTGAGE AND THE MODES OF ENFORCEMENT................................267
Notice on default.................................................................................................................................267
REMEDIES OR MODES OF ENFORCEMENT..............................................................................................268
Mortgagees’ Action for money secured by mortgage.........................................................................269
Procedure........................................................................................................................................270
Appointment, Powers, Remuneration and Duties of receivers...........................................................271
Mortgages power of leasing................................................................................................................274
Procedure........................................................................................................................................274
Fees payable: 22nd schedule to the RTA...........................................................................................275
Power of mortgagee to take possession of mortgaged land...............................................................275
Mortgagee’s power of sale..................................................................................................................278
S.27 Duty of mortgagee exercising power of sale................................................................................279
Sale by public auction..........................................................................................................................281
Sale by court order/foreclosure...........................................................................................................283
Sale by private treaty...........................................................................................................................283
Features /characteristics of a mortgage..............................................................................................284
S.15 Release of a mortgage.................................................................................................................284
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Whether the mortgage was valid,.......................................................................................................287
STEPS THAT WOULD HAVE BEEN TAKEN PRIOR TO THE LAWFUL SALE...............................................290
What is the procedure to be taken to obtain vacant possession of the land...................................292
REMEDY AVAILABLE TO MORTGAGEE.................................................................................................300
Procedure for obtaining the remedy...............................................................................................301
Notice of motion......................................................................................................................................302
Affidavit in support..............................................................................................................................304
GUARANTORSHIP....................................................................................................................................306
Discharge of guarantor........................................................................................................................314
Circumstances where the guarantor is not discharged.......................................................................314
Rights of a guarantor...........................................................................................................................315
FIXTURES.............................................................................................................................................322
Tests for fixtures..............................................................................................................................322
Degree of annexation......................................................................................................................322
Object of annexation.......................................................................................................................323
EXPROPRIATED PROPERTIES....................................................................................................................325
What amounts to expropriated property?..........................................................................................325
REMEDIES AVAILABLE TO THE PARTES................................................................................................329
Sec 12 Compensation and settlements............................................................................................329
Effect of transfers and other transactions vis-à-vis expropriated properties:.....................................329
Whether Khimji was a departed Asian whose property vested in government by the EPA?...............331
Expropriated Properties (Repossession and Disposal) (No. 1) Regulations S.I 87-8.............................336
Restrictions on the Property upon return............................................................................................337
Powers of the Minister in Matters pertinent to the expropriated properties.....................................337
Certificate of Purchase v Certificate of repossession...............................................................................338
Expropriated Properties (Repossession and Disposal) (No. 1) Regulations S.I 87-8.............................339
Property in which the Government wishes to participate...................................................................340
Redress from the decisions/actions of the Minister:...........................................................................340
Reg 15 Appeals....................................................................................................................................341
APPLICATION FOR EXPROPRIATED PROPERTIES:.................................................................................342
Reg 8. Functions of the committee......................................................................................................346
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Property in which the Government wishes to participate. Section 5......................................................347
PROTECTION OF NATURAL RESOURCES..................................................................................................349
Whether the suit land is a protected natural resource in Uganda?.........................................................350
Whether there was breach of the Doctrine of Public Trust.....................................................................351
whether the land can be legally acquired by the three major manufacturing companies?.....................355
PHYSICAL AND URBAN PLANNNING........................................................................................................358
Whether the land at Kyaggwe can be developed?..............................................................................359
Procedure for an application for development permission.................................................................360
Whether Mr. Omar can successfully subdivide the land at Kyaggwe plot 232?..................................362
Procedure for application for subdivision of land................................................................................363
The necessary physical planning considerations in developing the land accordingly..........................363
CONDOMINIUM PROPERTIES..................................................................................................................366
The possibility of causing each apartment to be owned by a different person in isolation of the other
apartments and the kind of arrangement where this is possible............................................................366
PROCEDURE FOR THE CREATION OF A CONDMINIUM:.......................................................................368
The relationship between the different owners in regard to the property as a whole....................369
Legality of the created units:...............................................................................................................372
LEGISLATION
CONSTITUTION OF UGANDA OF 1995
26 protection from deprivation of property;-
1) Every person has a right to own property either individually in association

with others.
2) No person shall be compulsory deprived of property or any interest in or
right over properly of any description except where the following
conditions exist;
a) The taking of possession or acquisition is necessary for petition, use or in
the interest of defense, public safety, public order, public morality or
public health and
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b) The compulsory taking of possession or acquisition of property is made
under a law making provision for;
i) Prompt payment of fair and adequate compensation prior to the
taking of possession or acquisition of the property and,
ii) A right of access to a court of law by any person who has an interest
or right over the property.
237- Land ownership

1) Land in Uganda belongs to the citizens of Uganda and rests in them in
accordance with the land tenure systems provided for in the constitution.
2) The government or a local government may subject to A.26 acquire
land in public interest and the conditions governing such acquisition shall
be as prescribed by parliament.
c) The government or a local government as determined by …………….by
law shall held in trust for the people and protect natural lakes, rivers,
wetlands, forest reserves, game reserves, natural lakes, rivers, wetlands,
forest reserves, game reserves, natural parks and any land to be
reserved for ecological and touristic purposes for the common good of all
citizens.
d) Non citizens may acquire leases in land in accordance with laws
prescribed by parliament and the laws so prescribed shall define a non
citizen for the purposes of this paragraph.
Tenure systems;
a) Customary
b) Freehold
c) Mailo
d) Leasehold
3) On the coming into force of this constitution;
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a) All Uganda citizens owning land under customary tenure may acquire
certificate of ownership in a manner prescribed by parliament.
b) Land under customary tenure may be converted to freehold land
ownership by registration.
4) Any lease which was granted to a Uganda citizens out of a public land
may be converted into freehold in accordance with a law which shall be
made by parliament.
5) For the purposes of clause (5) of this article “public land” includes;
statutory leases to urban authorities.
6) Parliament shall make laws to enable urban authorities to enforce and to

implement planning and development.
7) Upon the corning into force of the constitution, the lawful or bonafide
occupants of mailo land, freehold or leasehold land shall enjoy security of
occupancy on the land.
THE REGISTRATION OT TITLES ACT, CAP 230

S. 46, Effective date of registration, the duly registered proprietor;
1) Every certificate of title shall be deemed and taken to be registered

under the Act when the commissioner has marked on it;
a) Volume and folium of the Register book in which it is entered.
b) The block and plot number of the land in respect of which that certificate
of title is to be registered.
2) Every instrument purporting to affect land or any interest in land, the

title to which has been registered under this Act, shall be deemed to be
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registered when a memorial of the instrument has been entered in the
Register Book upon the folium constituted by the certificate of title.
3) The memorial mentioned in subsection (2) shall be entered as at the

time and date on which the instrument to which it relates logs received
in the office of titles together with the duplicate certificate of title and
such other documents or consent as may be necessary, accompanied
with the fees payable under the Act.
4) The person named in any certificate of title or instrument so registered

shall be deemed to be the registered proprietor of the land.
S. 48 (1) every instrument excepting a transfer presented registration may be

in duplicate and shall be registered in the order of and as from the time at
which the instrument is produced for that purpose and instrument purporting
to affect the same estate or interest shall. Notwithstanding any actual or
constructive notice be entitled to priority as themselves according to the date
of the instrument.
S.48 (2) Upon the registration of any instrument not in duplicate, the
commissioner shall file it and retain it in the office of titles, and upon the
registration of any instrument in duplicate, the commissioner shall file one
original and shall deliver the other, duplicate to the person entitled to.
S. 54 No instrument until registered shall be effective to pass any estate or in

interest in land under the of the Act, nut upon registration the estate or
interest comprise in the instrument shall pass or the land shall become liable in
the manner and subject to covenants and conditions set forth and specified in
the instrument or by his Act declared to be implied in instruments of a lie
nature. And if two or more instruments signed by the same proprietor or
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purporting to affect the same estate of interest are at the same time presented
to the Commissioner for registration he or she shall register and evidence that
instrument which is presented by the person.
S.59 certificate to be conclusive evidence of title or interest in land under the

operation of the Act shall hold land or estate or interest in and subject to such
encumbrances as are notified on the folium of the Register book constituted by
the certificate of title but absolutely free from all other encumbrances.
S.65 Easements subsisting over or upon or affecting any land comprised in any
certificate or title, the commissioner shall specify upon any future certificate of
the land and the subsisting easement over of upon or affecting the land which
appears to have been created by any deed or writing.
Part VI- Dealings with land
S.92 (1) the proprietor of land or of a lease or mortgage or of any state, right
or interest therein respectively may transfer the same by a transfer in one of
the forms in the 7th schedule to this Act, but where the consideration for a
transfer does not consist money the words “sum of” shall not be used to
describe the consideration but the failure consideration shall be concisely
stated.
2) Upon the registration of the transfer, the estate and interest of the land
proprietor as set forth in the instrument or which he or she is entitled or able
to transfer or dispose of under any power with all tights, powers and privileges
belonging or appertaining thereto, shall pass to the transferee and the latter
shall thereupon become the proprietor thereof and shall be subject and liable if
he or she had been former proprietor or the original lessee or mortgages.
Part VII Caveats
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S.139 (1) any beneficiary or other person claiming any estate interest inland
under the Act or any unregistered instrument or by devolution in law may
lodge a caveat with the commissioner in the fifteenth schedule to the Act
forbidding the registration of any person as transferee or proprietor of affecting
that estate or interest until after notice of the intended registration or dealing is
given to the caveator or unless the caveator consents in writing to the
registration.
3) Every Caveator shall state the name and addition of the person by whom or
on whose behalf the caveat is lodged and shall be signed by the caveator
except if lodged by the commissioner of order if the High Court.
4) The person lodging such a caveatt shall support the caveat by an affidavit
stating the nature of the title under which the claim is made and may withdraw
any such caveat.
5) No caveat shall be received unless some address in which a post office is

situate is appointed in the caveat in the caveat as the place at which notices
and proceedings relating to the caveat will be served.
Part VIII- power of Attorney and Attestation of instruments
S. 147 Attestation of instruments and powers of attorney.
1) Instruments and powers of attorney under this act signed by any

person and attested by one witness shall be deemed to be duly executed
and that witness may be; within the limits of Uganda (qualifications
listed) or without the limits of Uganda (qualifications listed).
2) Where an instrument or power of attorney purports to be attested ot a

certificate purports to be signed as provided in this section, the
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commissioner may take official notice if the signature and of the fact
that the person attesting or signing possessed the requisite qualification.
3) No fee shall be taken or demanded by any officer in the service of the

government except a magistrate in the performance of the duties of a
notary public, or by any chief for attesting within Uganda any instrument
to power of attorney under this Act.
S. 148, the signatures of the parties to the power of attorney or instrument

should be in Latin character or a translate into Latin character of the signature
of any party whose signature is not in Latin character.
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18th schedule
Part XII actions and other remedies
S. 181 purchases protected, purchasers bonafide for valuable consideration of

land.
Part XIV Miscellaneous
S.193 proprietors and transferee shall have the same engagement, obligations
and liabilities and may sue and be sued in his or her own name as if he or she
had been the original proprietor of the land.
S. 199 on the same of land by public auction or private contract the conditions
set out in the table marked A in the 21 st schedule may be adopted
……………………..conditions in Table A of the RTA shall apply to this contract.
S.201 searches and certified copies; 1) Any person may on payment of a fee
for the time being payable in that behalf, inspect the Register Book during the
hours and upon the days of business.
2) The commissioner on the payment of a fee, furnish to any person applying

for a certified copy of any certificate of title, caveat or registered instrument
affecting land under the operation of the Act.
THE LAND ACT CAP 227 (as amended by the LAND AMENDMENT ACT 2004
Land ownership
S.2 all land in Uganda shall vest in the citizens of Uganda and shall be owned in
accordance with the following land tenure systems.
a) Customary
b) Freehold
c) Mailo land
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d) Leasehold
S.3 incidents of forms of tenure
S.3 (1) customary tenure
a) Applicable to a specific area of land and a specific description or class of

persons.
b) Governed by the rules generally accepted as binding and authoritative by
the class of persons to which it applies.
c) Applicable to any persons acquiring land in that area in accordance with
those rules etc.
S.3 (2) freehold tenure
a) Holding land in perpetuity or for a period less than perpetuity which may
be fixed by a condition.
b) Person has full powers of ownership of land etc.
S.3(4), mailo tenure
a) Involves holding of registered land in perpetuity

b) Permits the separation of ownership of land from the ownership of the
developments of land made by a lawful or bonafide occupant etc.
S.3 (5) leasehold tenure-
a) Created by contract or by operation of the law.
S.29 meaning of “lawful occupant” and “bonafide occupant”
i) “Lawful occupant” means
a) a person occupying land by virtue of the repeated
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i. Busuulu and Emujjo law of 1928
ii. Toro land lord and tenant law of 1937
iii. Ankole land lord and tenant law of 1937
b) A person who entered the land with the consent of the registered owner
and includes a purchaser or.
c) A person who had occupied land as a customary tenant but whose
tenancy was not disclosed or compensated for by the registered owner at
the time of acquiring the leasehold certificate of title.
3) “Bonafide occupant” means a person who before the coming into force of
the constitution.
a) Had occupied and utilized or developed any land unchallenged by the

registered owner or agent of the registered owner for 12 years or more.
b) Had been settled on land by government or an agent of the government

which may include a local authority.
S.34 Transactions with the tenancy by occupancy
1) A tenant by occupancy may in accordance with this section, assign, sublet,

pledge, create third party rights in subdivide and undertake any other lawful
transaction in respect of the occupancy.
2) A tenancy by occupancy may be inherited.
3) The tenant by occupancy should submit an application in the prescribed

form to the owner of the land for his/her consent to the transaction.
4) The registered owner should win 6 weeks grant consent with or without
conditions or refuse to the consent of the transaction.
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Read the following subsections
S.31defines tenant by occupancy
S.33 certificate of occupancy
S.35 option to purchase
(1) A tenant by occupancy who wishes to assign the tenancy shall subject to
this section, give the first option of taking the assignment of the tenancy to the
owner of the land.
2) The owner of land who wishes to sell the reversionary interest in the land
shall subject to this section, give the first option of buying that interest to the
tenant by occupancy.
3) Any offer made under this section shall be on a willing buyer, willing seller
basis.
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S.38 A security of occupancy
1. Every spouse shall enjoy security of occupancy on family land
2. Security of occupancy means the right to have access to and live on

family land
3. The spouse shall in every case have a right to use the family land and
give or withhold his/her consent to any transaction referred to in s.39
which may affect his or her rights.
4. Family land- means land

a) Which is situated the ordinary residence of a family
b) On which is situated the ordinary residence of the family and from which
the family derives sustenance
c) Which the family freely and voluntarily agrees shall be treated to qualify
under paragraph (a) or (b) or
d) Which is treated as family land according to the norms, culture,,
customs, traditions or religion of the family.
“Ordinary residence” means the place where a person resides with some
degree of continuity apart from accidental or temporary absence and a person
is ordinarily resident in a place when he or she intends to make that place his
or her home for an indefinite period.
“land from which the family treats sustenance means;
a) Land which the family farms on

b) Land which the family treats as the principal place which provides the
livelihood of the family or
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c) Land which the family freely and voluntarily agrees shall be treated as
the family’s principal place or source of income for food.
S. 39 restriction on transfer of family land.

1. No person shall sell, exchange, pledge mortgage or lease enter into a
contract for the above purposes, give away family land, intervivos,
except with the prior consent of the spouse.
2. The manner is prescribed by the regulations (Reg 64, form 41).
3. The section does not apply to a purchaser in your faith and for value
without notice
4. A spouse may lodge a caveat on the certificate of title, certificate of
occupancy or certificate of customary ownership of the person who is the
owner of the land to indicate that the property is subject to requirement
of consent.
S.40 Acquisition of land by a non citizen.
1. A non citizen may acquire a lease in land in accordance with this section.
2. A lease of five years or more shall be registered in accordance with the
RTA. It shall not be granted if it is exceeding 99 years (s5.3).
3. A non-citizen shall not acquire or hold mailo or freehold land.
4. Meaning of a non-citizen;
a) A person who is not a citizen of Uganda

b) A Corporate body in which the controlling interest lies with non-citizens
(majority shares or decisions are by majority).
c) In case of bodies with shares, where the body’s decision making lies with
non-citizens.
d) Where shares are held in trust for non-citizens
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e) A company incorporated in Uganda whose articles of association do not
contain a provision restricting transfer of shares or issues of shares to
non-citizens.
National provincial BANK v Ainsworth (1965) A.C 175

An order from the court of Appeal reversing by a majority decision of lower
court by which the judge had ordered the responsibility to give possession of a
dwelling house, where the respondent lived, upon the application of the
appellant, the bank, who claimed to be entitles as mortgage to an order for
possession. The husband had mortgaged the house to the bank.
Held: Rights which were referred to as those of “a deserted wife” are of their
nature personal rights and such cannot be treated in any sense running with
the land. The rights she has against the husband do not operate as a dog on
the land which protects by her operating as a mere equity against anyone but
a purchaser for value without notice.
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Makula International Ltd V His Eminence Cardinal Nsubuga 2 Anor
(1982) HCB 11
A court of law cannot sanction what is illegal, an illegality once brought to the
attention of court, override all questions of pleading including ay admission
thereon.
BRIEF FACTS
Peruse Lunkuse, the registered owner of the land 32 acres in size is desirous of
selling of the land and has contracted Sema properties Real Estate Agency to
seek buyers on her behalf who have secured two individual and a company
that have shower interest in purchasing the lad, that is Fred Mwangi, a Kenyan
working as a Head of Operations at Arirang Hotel, Cisco Association.
Consultants Ltd equally owned by Livingstone Nyonyitono and Clars Monogan,
a German citizen and Walter Byaruhanga, per immediate neighbor.
The said land comprises of a residential house in which resides her family (her
husband and four children between 4-21 years)m a long building of six shops
let to different individuals expenses and a two roomed mud and wattle house
occupied by Malcom Oen since 1977 having been allowed on to the land by
Perusi’s predecessor in the title to stay on the said land.
ISSUES
1. What documents would I require from Perusi Lunkuse to determine

whether the purchaser can be safely undertaken?
2. What steps would I take to satisfy the viability of the purchase.
3. What are the respective rights of Enock Mutale, Lunkuse’s children

Malcom Ocen and the tenants of the shops.
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4. What steps would I take to safeguard the rights against adversity
5. What is the viability of the transaction of sale of the land to the

respective prospective purchasers.
6. What steps would I take to conclusively complete the transaction

7. What steps would I take to safeguard the interests of the respective
parties to the transactions if the purchase price I to be paid in three
installments over six months.
8. What duties are to be carried out by parties to the transaction?
9. What ethical challenges are expected to be faced in the transaction of

sale of land by the purchaser or vendor.
10. How would I address the ethical challenges?
LAW APPLICABLE
1. Constitution of Uganda, of 1995

2. The Registration of Titles Act Cap 230
3. The land Act Cap 227
4. The land regulations of 2004
5. The stamps act Cap 162
RESOLUTION OF ISSUES
Issue one
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What documents would I require to determine whether the purchase can be
safely undertaken?
1. Photocopy of the duplicate of the certificate of title or the duplicate
certificate of title, to ascertain that she is the owner of the lands to get to
know the status of the land, that is the encumbrances on it, the
conclusive evidence of ownership, Patel V Patel (1992-93) HCB 137
Karokora J’s holding.
2. Consent forms from the spouse: Enock Mutale Form 41 of the Land
Regulations 2004 schedule s.38 A requires consent of a spouse
before contract of sale. The spouse enjoys security of occupancy. This
ensures that the consent is freely given without coercion and intimidation
of the land owner.
3. Identification documents of Perusi Lunkuse and L.C.1 chairman of

Kibuga, Mengo, this ascertains the identification of Perusi.
4. Sale agreement to prove that she bought it from Robert Asa Sempa and
that there was no fraud involved in the purchase of the mailo land so as
to defeat her title.
David Sekajja V Rebecca Musoke civil Application No.12/1955. The court

defined a bonafide purchaser for value is that as that person who purchases
without notice of fraud.
5. Letter from the LC, National ID, passport photogtaphs, marriage

certificate, tenancy agreement with the tenanats, receipts forms.
6. Parent title
7. Approved plan of the developments on the land.
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S.59 of the RTA provides that a certificate of title is conclusive evidence of title
(proof of ownership).
A. 26 of the constitution guarantees every Ugandan the right to own property.

A.237 (3) of the constitution provides for tenure systems in Uganda to mailo
land, freehold, leasehold and customary tenure.
S. 92 (1) RTA provides that the proprietor of land may transfer the same by
transfer in form set out in schedule 2.
A proprietor is defined in s.1 (1) of the RTA to mean the owner whether in
possession, remainder, reversion or otherwise if land whose name appears or
is entered as the proprietor of land in the registrar’s book. Also includes the
donnee of a power of attorney appointed to dispose of that land.
S.38, A land amendment act 1 of 2004 creates security of occupancy on family

land for every spouse.
 Kristina V Singh Surgit (1964) E.A 278, court held that ordinary
residence connotes permanence. However in RC (an infant) SCCA No.
22/1994, it was held that constructive residence and not actual
residence amounts to actual ordinary residence.
 Perusi therefore has actual title to the land and therefore she has
capacity to sell her land.
STEPS TAKEN PRIOR TO PURCHASING THE LAND

Reg 2(2) of the Advocates Professional Regulations S1 267-2:
 An advocate shall exercise due diligence at all times when handling a

client’s matter.
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Reg 12(2) of the Advocates Professional Regulations S1 267-2: an
advocate shall not advise a client to enter into a transaction which he knows a
reasonable advocate would not advise them to enter as not being in their best
interests.
1. Pay attention to the documentation

- Should examine the certificate of title in order to establish the
existence of the land and the names of the proprietor and the lease
agreement.
- Should carry out a search at the land registry under section 201 RTA,
section 20 1(1) RTA , only person may on payment of the fee for the
time being payable in that behalf inspect the 4register book during
the hours and upon the days of business.
Gibbs V Messar (1891) AC 249 court held that a search is to be carried

out at the land office upon application and payment of the prescribed
fees.
This is done by ordinary letter to the registrar of titles and payment of

the requisite fees, that is shs 10000(item 19 of the 22nd schedule of
the RTA)
2. Pay attention to the personality of the seller
Get particulars of the seller that is the I.D whether he or she is a citizen
of Uganda. Passport or National ID can suffice
Sir John Bogere V Aussi Matovu CACA 7/1996. Okello J.A : Lands
are not vegetables that are bought from unknown sellers. Lands are not
very valuable properties and buyers are expected to make thorough
investigations not only of the land but also of the seller before purchase.
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Uganda pasts and telecommunications V Abraham Kitumba 53/95,
purchasers of land must make inquiries of the person selling in possession of
the land and any other interests affecting the land.
3. Physical search on the land
Uganda Posts and Telecommunications v APKM Lutaaya SCCA

36/1995
 Purchasers of land must make inquiries of the person selling, in

possession of the land and any other interests affecting the land.
 Occupation of the suit land by the appellant to put the would-be
purchasers upon notice of claim addressee to the registered
owner. Investigate the title of the occupants
a) Survey the land: employ a survey to open the boundaries. S.2 of the
Survey act, Cap 212 provides that the Commissioner of Lands and
Surveys at any time may authorize the carrying out of any
topographical survey or of any other survey which in the survey is to
be carried out in any area, notice of the survey specifying the local
limits of the area affected shall be published in the Gazette before the
survey is undertaken. S. 149 of the RTA the registrars may require a
physical survey of the land.
 This will enable him ascertain whether there are any people on the
land and what their particular interests are.
- Should inquire from the local authorities as to the vendors of the land
and whether they have a right to deal with the land, and how long
they have stayed on the land.
4. Pay attention to the physical planning authority/ environment authorities.
- The physical planning authority and NEMA
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- Should get an environment impact assessment, this will help disclose
whether the intended use of the land is tenable. Section 34 physical
planning act 2010
- Ascertain the area development plans
- Utility bills, water and electricity to know the residence and prove
continuous possession. This reduces fraud.
- Sale agreement/ lease agreement
- Tenancy are occupying the land
Types of due diligences
- Description of land
- Identity of seller: 3 government issued I.D documents can be verified
easily.
Title due diligence
 Ascertain citizenship of the client to confirm eligibility to hold

land under the relevant tenure.
 Ascertain the client’s credit worthiness by obtaining the financial
service cards from the bank.
 Permission from guarantors from the first loan
 Establish that the land was with the physical planning approval.
 Peruse the first land mortgage
- Survey due diligence(open boundaries)
- Environment due diligence
- Land use due diligence
- Water and utilities due diligence
- Road access
- Taxes and levies
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- Additional documents and processes
- Authorities and consent
Marital status due dilegence
- Ascertain marital status of the person.
- Obtain from the client a statutory declaration regarding their marital
status.
- Search at the marriage registry after the person
- If married, get consent from spouse.
b) Check with NEMA to ascertain whether such land is put under use by
c) Consult a lawyer in clarifying and verifying the dimensions,
measurements etc on the land in question to be sure of what the client
is going to buy.
RIGHTS/ INTERESTS IN LAND OF DIFFERENT PERSONS

Issue three
Enock Mutale s.38 A(1) land act as amended creates security of occupancy of
every spouse.
d) S. 38A (3) states that the spouse shall have a right to withhold his or
her consent to any transaction which may affect his/her rights.
A.31 (1) (b) of the 1995 constitution of Uganda, a man and a woman are
entitled to equal rights at and in marriage.
Therefore Enock has a right to security of occupancy and the right to consent
to the transaction of sale.
Enock has a right and not merely an interest in the land. His consent is
paramount in any transaction.
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Malcom Ocen s.29 (1) defines a lawful occupant to mean a person who entered
on the land with the consent of the registered owner.
A.287 (8) of the 1995 constitution of Uganda provides that all persons in lawful
or bonafide occupancy of mailo land enjoy security of tenure.
S.31 (1) and s.34 of the land act provide for the rights of the tenant by
occupancy and these include;
i) Security of occupancy s.31 (1) of the land act.
ii) The right to assign, sublet, pledge, create that party rights in ……………and
undertake any lawful transaction. These rights may also be inherited under
s.34 (2).
S.35 of the land act provides for the first option to purchase to be given to the
tenancy.
S.32 A land act as amended provides that a lawful or bonafide occupant can
only be evicted only for non-payment of the annual ground rent.
Tenants of the shops- not licenses of tenants with contractual rights. These are
licenses from the registered owner and cannot be taken to be a lawful or
bonafide occupant and their interest depends in the rent paid.
 KCC V Mukiibi (1967) E.A 68 held interalia that a license has no

conclusive rights on the land.
 Ssessazi Kulabiraawa V Ribinah Nlubega CACA No. 55/2002 per

Byamugisha JA, there is a difference in law between having a right in
land and an interest. The latter goes with ownership which might be
legal or equitable and such interest is capable of being registered as a
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charge on the land. In the other hand rights are associated with the use
of land for activities such as playing games, use of footpaths etc.
 Pardhan Jivraj V Dudley Whelpadale (1920-1929) ULR 193 that

payment and acceptance of rent provided requisite evidence that the
defendant and the plaintiff regarded each other as land lord and tenant.
 Rajwani V Degamwala (1950)EACA 37 , it was held that regard must

be had to the substance of the agreement if the effect of the instrument
is to give to the holder an exclusive right, then it is a lease and if it is
merely for the use of the property in a certain way and in certain terms
while it remains in the possession and control of the owner, it is a
license.
 Weed V Lord Bitter (1845) 838 held that a contractual license may be
revoked in breach of contract, the licensor will be liable in damages, it is
prudent that Perusi Lunkuse before selling the land gives notice to the
tenants to avoid damages.
 Livingstone Mpiima V Elizabeth Nanteza (2003) KALR 337

 Held: an agreement of scale is not an instrument capable of transferring
or vesting any interest within the meaning of RTA. This is a party to an
agreement of sale cannot claim value in the land because no interest or
estate is vested in him or her by the mere agreement of sale.
Issue four
SAFE GUARDING RIGHTS OF AN ADVERSE PARTY

Enock Mutale
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S.139 (1) of the RTA provides that any person claiming an interest land may
lodge, caveat forbidding any dealing, registration of any person as transferee
or proprietor of and notice is given to the caveator.
Therefore Enock Mutale may lodge “caveat to protect his interests S.39 (7) of
the land amendment act.
 Edward Musisi V Grindlays Bank SCCA No. 5/1986.
 S.139 and S.140 of the RTA require that no dealing in land should be
done when there is in force a caveat prohibiting the same.
 Katarikawe V Katwiremu and Anor CS No.2/1973 (1977)HCB 187 a

purchaser of land would ordinarily protect his interest in the and by filing
a caveat.
 Kazoora V Rukuba SCCA No.13/92, it was held that a transfer affected

while a caveat is in force is void and ineffectual to pass title.
 S.140 RTA notice of the caveat should be sent to Perusi Lunkuse.
Lunkuse’s children
e) They have no right or interest in the land if their parents are still alive.
f) They therefore have no remedy under the law
Malcon Ocen
A bonafide occupant was defined in Nambalu Kintu V Ephraimu Kamuntu

(1975) HCB 221 as a person who has occupied the land undisturbed by the
registered proprietor for a period of 12 years before coming into force of the
constitution or more having an open and notorious occupation.
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Malcom Ocen can lodge a caveat to protect his interests as a lawful occupant
(s. 139 (1) of the RTA).
He could also apply to Perusi Lunkuse, the registered proprietor be issued a

certificate of occupancy only if he has paid his ground rent.
Kampala district land board and Anor V NHCC SCCA No.2 of 2004 a bonafide
occupant was given security of tenure and his interest would not be alienated
except as provided by the law. The bonafide occupant would apply for a lease
under s.38 land act as first option to be given to the bonafide or lawful
occupant.
Tenants of the shops
g) Tenancy agreement
h) Damages in breach of contract
Issue five
VIABILITY OF THE TRANSACTION OF LAND INVOLVING A NON-CITIZEN

 A.237 (1) of the 1995 constitution provides that land in Uganda belongs
to citizens of Uganda who can hold the land in the four forms of tenure
systems.
Fred Mwangi a Kenyan working at Arirang Hotel
 A.237 (2) (c)

 S.40 (4) of the land act provides that a non-citizen shall not acquire or
hold mailo of freehold land. S.40 (1) provides that a non-citizen may
acquire a lease in land in accordance with the section.
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 S.40 (7) provides that non citizens’ means a person who is not a citizen
of Uganda as defined by the constitution and the citizenship and
immigration control Act, Cap 66 part III.
A lease is a conveyance of an estate in land for it is given period in return for

premium.
Fred Mwangi is not a Ugandan citizen and therefore cannot mailo interest, he
has an option of acquiring a lease if he insists buying then their transaction will
be illegal. If he conducts a purchase, it becomes a 99 year lease.
Kulubya V Singh (1963) E.A 408, court held that where the making of
contract is prohibited by law , not only is the purported contract void but also
any consideration transfer pursuant to such contract normally is not
recoverable.
Cisco. Associated consultants Ltd a non- citizen company

 S.40 (7) (b) Land Act provides that a non-citizen means in the corporate
body, a corporate body in which the controlling interest is vested with
non-citizens.
 S.40 (8) (a) controlling interest means in the case of a company with
shares, the majority shares are held by persons who are not citizens.
 S.40 (7) (e) further provides that a non-citizen company is a company
incorporated in Uganda whose articles of association do not contain a
provision restricting transfer or issues of shares to non-citizens.
In out facts, Nyonyitono and Monogan a German citizen own 50 shares each
and there is no majority shareholder because they hold shares in equal
proportion.
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This is subject to the memorandum of association of the company in respect to
transfer of issue to non-citizen, then it shall be a citizen as per S.40 (e) but if it
does not contain such a restriction then it shall be a non-citizen.
Without a clause in the AOA restricting transfer of shares to non-citizens then it

is a non-citizen and thus it can only hold land on leasehold.
Walter Byaruhanga
i) He is a citizen of Uganda
j) S.3 of the Land Act
k) A.26 (1) can own property
l) A.237 of the constitution
He can therefore own land as an individual
Issue six
Procedure for effecting sale and transfer of land

The proprietor of land may transfer land to the purchaser S.92 (1) RTA.
S.96, RTA upon transfer, the transferee obtains all the rights remedies and
privileges as if he were the proprietor fully completed set of transfer forms, two
consent forms, a photocopy of the duplicated certificate of title and two
authentic passport photographs of the buyer and seller.
- The applicant presents the documents to the valuation division for

valuation assessment for stamp duty. The land is assessed at market
value for purposes of the applicant paying stamp duty which is 1.5%.
The applicant checks after 3 working days to collect assessment. Assessment

for payment of registration fees is done by the respective district cashiers.
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- The applicant pays the stamp duty and registration fees in the bank and
gets a receipt and transfer form embossed by URA.
- Submit all documentation together with the duplicate certificate of title,
receipts and photocopies of all documents to the mailo registry at the
office of title. The photocopy is stamped “received” and the applicant is
asked to check after 10 working days to collect the title.
- The applicant presents identification documents and the photocopies to
collect the duplicate certificate of title. The applicant signs for the title
and the photocopy is stamped “returned” on completion.
- Documents required, duplicate certificate of title, set if passport
photographs embossed transfer form and consent form duly witnessed
and dated, general receipts of payment. Fees paid at the ministry/
district.
- Transfer shall include description of land transfer or transferee
consideration date of execution.
- S.148 RTA requires signatures to be in Latin character i.e there must be

a name against signature of a person signing there must be witnessed.
- S.147 RTA requires attestation of instruments by people who are

qualified, thereafter, there is due execution of instruments e.g an
advocate, bank manager.
- S.92 (2) upon the registration of the transfer, the interests an estate of
the proprietor shall pass to the transferee.
Issue seven
- The terms should reflect the installments of payment
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- Vacant possession and duplicate certificate of title should remain with the
seller until the final installment is paid.
 Sharif Osman V Haji Haruna Mulangwa
 Uganda Telecom case- Boyes V Gathure
- By caveat or put the title in the trustees’ hands
- Inserting in the clause, penalty for default damages or that title is of the
essence.
Issue Eight
S.2 stamps Act Cap 342 provides that instruments are chargeable with duty.
Yokoyala Kaggwa V Mary Kiwanuka (1979) HCB 23 Odoki J. as he then was

held that instruments to which stamp duty is chargeable is inadmissible is
evidence unless, the duty has been cleared.
- Stamp duty 1% of market value of land by Perusi Lunkuse.
- Registration fee is 30,000/= under item 3 registration if title RTA (fees).

Amendment Rules No.3/1998.
- Lodgment of caveat 10,000/= item 5 of the registration of tittles (fees)

amendment rules by Malcom and Enock Mutale.
- Search fee 10,000/= item 19 registration of tittles (fees) amendment by

the purchaser.
- Professional fees.
Advocates (Remuneration and Taxation of Costs) Regulations S.1 267-4

regulation 14 provides for charges in non-contentious matters.
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1st schedule 5th schedule
- On the 1st 1m = 15% Rule 6(a)
- From 1m-10m =10% Letters- 20,000/=
- Over 20m= 5% Or per folio 4000/=
Include bank charges- depends on the bank and they are in respect of each
transaction.
Issue Nine
- Handling payments from purchaser to vendor

- Partiality
- Over valuing land
- Bribing
- The advocates (professional conduct) Regulations 10, 11 and 12
- It is easy to assume that the docs presented by the purchaser are valid.
Issue ten
- Assign instructions to a third party after advice is given to the seller and
purchaser.
- Should be impartial to both vendor and purchaser e.g in drafting a sale
agreement, the lawyer should draft favorable terms to both parties.
- Counsel should go through assessment of the land to ascertain its actual
value (market value)
- Withdraw from the case.
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DOCUMENTS PERTAINING TO A LAND TRANSACTION
Application to conduct search
Firm H2 and Co Advocates
P.O.BOX 7117
Kampala
The Registrar
The Mailo Registry
Mengo
Dear Sir,
RE: CERTIFIED COPIES IN RESPECT OF PLOT NO.554 BLOCK NO.12,

KIBUGA MENGO DISTRICT
We do write this letter on behalf of our client, Mr. Walter Byarugaba on whose
instructions we address you as hereunder.
We request you good office to avail us with certificate copies in respect of land
described herein above.
Yours faithfully
………………………
For firm H2 & F1 and Co Advocate.
Cc: Client.
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Consent form
Reg. 64
THE REPUBLIC OF UGANDA
THE LAND ACT CAP 227
THE LAND REGULATIONS, 2004
CONSENT BY SPOUSE (S) TO TRANSACTION IN LAND
1. Location of land the subject of consent

a) Village/ zone __________________________
b) Parish/ward ___________________________
c) Sub. County/ Town ___________________________
d) County/ Division ___________________________
e) District ___________________________
2. Approximate area (ha) ____________________________
3. If land is registered, state
i) PIN ___________________________
ii) FRV/ LRV ____________________________
iii) Fol ____________________________
iv) Block ____________________________
v) Plot ____________________________
4. Use or occupation of land (e.g farming, housing)
5. State the nature of the transaction

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_________________________________________________________
______________
6. I/ we, being the spouse (s) of the owner of the above land and the land
forming part of family land under the provisions of section 39 of the Act,
grant consent/ do not your grant consent to the transaction.
7. Reasons for refusal
Name and signature/ thumb print
i) ________________________
______________________
ii) ________________________
_______________________
iii) ________________________
_______________________
Date
(Delete whichever is inapplicable) Form 39
Caveat
IN THE MATTER OF THE REGISTRATION OF TITLES ACT CAP 230, LAWS

OF UGANDA
AND
IN THE MATTER OF LAND COMPRISED IN KIBUGA BLOCK NO.12, PLOT

NO 544, IN MENGO
AND
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2016-2017
IN THE MATTER OF A CAVEAT FORBIDDING
REGISTRTAION OF ANY DEALING IN LAND COMPRISED
HEREIN ABOVE
To the Registrar of titles
Ministry of Lands, housing
P.O.BOX 7122
Kampala
TAKE NOTICE that I, ENOCK MUTALE of P.O.Box 7117 Kampala do claim an

equitable interest in the above described property as the lawful husband of the
registered proprietor of the said property having got married to
her……………………….
I therefore forbid the registration of any person as the transferee or proprietor

of the land of any other instrument affecting the said land until after notice of
such registration is given to me at the address herein after mentioned or
subject to claims of all persons concerned.
I therefore appoint M/s Firm H2 & F1 and Co Advocates, LAW Development

Centre, Kagugube Road, P.O.BOX 7117 Kampala as the place where notice of
proceedings relating to this caveat may be served.
Dated this 27th day of October, 2016
Signed by the said
ENOCK MUTALE
_________________________
CAVEATOR
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2016-2017
In the presence of:
__________________________
ADVOCATE
Drawn and filed By:
Firm H2 & F1 and Co Advocates
Law Development Centre, Kagugube Road
P.O.Box 7117
Kampala
AFFIDAVIT IN SUPPORT OF A CAVEAT


OF UGANDA
AND

NO 544, IN MENGO
AND
HEREIN ABOVE
AFFIDAVIT IN SUPPORT OF A CAVEAT
I, ENOCK MUTALE of C/o Firm H2 & F1 and Co Advocates P.O.Box 7117,

Kampala do solemnly swear and state an oath as follows;
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2016-2017
1. That I am a male adult Ugandan of sound mind and husband to the
registered proprietor of the above described property under registration
instrument number KLA, 556421 dated 14/04/1999. (Attached is a copy
of the certificate of title marked ‘A’).
2. That my family and I have our residential house on the said land.
3. That I am married to Perusi Lunkuse, the registered proprietor of the

said land and we have four children aged between 4-21 years.
4. That on the said land is a building consisting of six shops from which we
get proceeds to sustain our family.
5. That I fear that if the said caveat is not lodged on the title, my wife
Perusi Lunkuse could sell, subdivide, and transfer.
6. That this affidavit is sworn in support of a caveat herein.
7. That what is stated herein above is true and correct to the best of my
knowledge and belief
8. Sworn at Kampala this 29th day of October, 2016
By the said
ENOCK MUTALE ___________________
DEPONENT
BEFORE ME:
_____________________
COMMISSIONER FOR OATHS
Drawn and filed by
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2016-2017
Firm H2 & F1 and Co Advocates
P.OBOX 7117
Kampala

OF UGANDA
AND

NO 544, IN MENGO
AND
HEREIN ABOVE
To the Registrar of Titles
Ministry of Lands, Housing and Urban Development
P.O. Box 7122
Kampala
TAKE NOTICE that I, MALCOM OCEN of P.O. Box 7117, Kampala do claim an
equitable interest in the above described property as the lawful occupant of the
property.
I, therefore forbid the registration of any person as the transferee or proprietor

of the land or any other instrument affecting the said land until after Notice of
such registration is given to me at the address herein after mentioned or
subject to claims of all concerned.
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I therefore appoint M/s form H2 & F1 and Co Advocates Law Development
Centre Kagugube Road P.O.Box 7117, Kampala as the place where Notice of
proceedings relating to this caveat may be served.
Dated this 27th day of October, 2016
Signed by the said
MALCOM OCEN ___________________
In the presence of ____________________
ADVOCATE
DRAWN AND FILED BY:
FIRM H2 & F1 & CO ADVOCATES
LAW DEVELOPMENT CENTRE
KAGUGUBE ROAD
P.O.BOX 7117
KAMPALA
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2016-2017
Affidavit in support of caveat

OF UGANDA
AND

NO 544, IN MENGO
AND
HEREIN ABOVE
AFFIDAVIT IN SUPPORT OF CAVEAT
I, MALCOM OCEN, of firm H2 & F1 and Co Advocates P.O. Box 7117 Kampala
do solemnly swear and state in oath as follows:
1. That I am a male adult Ugandan of sound mind and the lawful occupant
of the above described land.
2. That I have been on the said piece of land since 1977 with permission
from Perusi Lunkuse’s (current registered proprietor) predecessor in title
3. That I have been informed of Perusi Lunkuse’s desire of selling off the
land.
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4. That I fear that if the said caveat is not entered on the land, title the said
Perusi Lunkuse could sell, subdivide transfer or mortgage they said
property without notifying and taking into account my interests thereof.
5. That this affidavit is sworn in support of a caveat therein.
6. That what is stated herein is true and correct to the best of my

knowledge and belief
Sworn at Kampala this 27th day of October, 2016
By the said
MALCOM OCEN ______________________
DEPONENT
BEFORE ME:
______________________
DRAWN AND FILED BY:
FIRM H2 & CO ADVOCATES
Sale Agreement
THE REGISTRATION OF TITLES ACT, CAP 230
AND
SALE AGREEMENT BY AND BETWEEN
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PERUSI LUNKUSE……………….VENDOR
WALTER BYARUHANGA………………………………PURCHASER
AGREEMENT OF SALE AND PURCHASER OF LAND IN KIBUGA BLOCK

NO.12 PLOT NO.544 MENGO MEASURING APPROXIMATELY 1.290 HA
THIS AGREEMENT is made this 27th day of October 2016 by and between Ms
PERUSI LUNKUSE of P.O.Box 18 Kampala (hereinafter referred to as the
vendor which express shall where the context so admits or permit mean and
include her successors in title, representatives, assigns nominees) on the one
land.
AND
MR. WALTER BYARUGABA of P.O. Box 7117 Kampala (herein after referred to
as the “purchaser” which expression shall where the context so admit or permit
mean and include his successors in title, representatives, assigns or nominee
on the other hand.
WHEREAS;
a) The vendor is the registered owner of land comprised in Kibuga Block

No. 12 plot No. 544 Mengo measuring approximately 1.290 hectares
(herein after referred to as the land).
b) The vendor is desirous of selling ALL the above described land and her
interest there in to the purchase.
c) The purchaser has conducted a search and inquiries about the land
details.
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d) The purchaser is ready, willing and able to purchase the said lands
NOW THIS AGREEMENT WITNESSETHS as follows;
1. PURCHASE PRICE;
In consideration of the sum of shs 180,000,000 Uganda shillings one hundred

eighty million only) paid by each in full to the vendor by the purchaser, the
vendor agrees to sell and sells conveys and transfers all her legal and equitable
title and interest in the land to the purchaser and the vendor acknowledges full
receipt of the whole purchase price at the time of execution here of by signing
this agreement.
2. SIZE OF THE PLOT
The plot of land herein sold to the purchaser by the vendor measures
approximately 1.290 hectares (3.2 acres).
3. GUARANTEE TO GOOD TITLE AND NO INCUMBRANCES
The vendor guarantees warranties and covenants to the purchaser that.
a) She has good and impeachable title to the land free from any
disturbances from third parties claiming either directly or indirectly or
otherwise from the vendor’s title.
b) She has procured all the necessary consents and authorizations for the
sale and transfer of the land.
c) She has the tight, power and authority to sell the land to the purchaser.
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d) The land is not subject to any third party claims, charges, and liens
equity and there is no dispute relating to the land.
e) There are no outstanding demands, notices or litigations, taxes, rates

charges or costs in respect of the land.
PROVIDED that where the contrary is subsequently established, the vendor

shall refund all the monies received from the purchaser together with interest
at the commercial rate of 25% per annum from the date of this Agreement till
payment in full and the said refund together with the agreed interest shall be
recoverable as the purchaser liquidated damages.
4. INSPECTION BEFORE PURCHASE
The purchaser has through his parents inspected the land before purchases
and he has appreciated its location and appearance and has agreed to
purchase it in its present conditions and appearance without any warranties
and conditions as to the purpose for which she intends to use it.
5. CERTIFICATE OF TITLE, TRANSFER FORMS AND POSSESSION
The parties agree that at the execution of this agreement and upon receipt of
the purchase price in full vendor shall contemporary hand over to the
purchaser the relevant original duplicate certificate of the title and duly signed
transfer forms and consent to transfer forms (in favour of the purchaser) and
upon payment in full of the purchase price to purchaser shall take immediate
possession of land.
6. LOCAL AUTHORITIES
The vendor shall if so requested by the purchaser introduces the purchaser to

the relevant local authorities of the area the new owner thereof.
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7. CAPACITY OF THE VENDOR
The vendor sells this land as the registered proprietor of the land herein sold.
8. LEGAL FEES AND EXPENSES

a) The purchaser shall pay the professional legal fees and costs for
preparation of this agreement.
b) The purchaser shall bear the costs including stamp duties and fees for
the registration of the land in his names.
9. EXECUTION OF THIS AGREEMENT
The parties hereto and their witnesses shall sign on each page of this
agreement in order to bind themselves by the provisions thereof.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their

respective signatures the day and year first above mentioned.
Signed, sealed and delivered by
The said Perusi Lunkuse ___________________
Vendor
Diana Nakato
______________________
Signed, sealed and delivered by
For and on behalf of the said
Walter Byarugaba
_______________________
Purchaser
In the presence of Emmanuel Miiro

_______________________
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Witness
All in the presence of

_______________________
ADVOCATE
Drawn and filed by
Firms H2 & F1 and Co Advocates
P.O.Box 7117
Kampala
Land Transactions
Professional Advisor
1. Pay attention to the certificate of title and paint out the defects of the
certificate.
2. Ordinary easements appear on the first page if they exist at the time the
title is being created but subsequently, they will be registered on the
encumbrance part that is part III.
3. Steps on ascertaining the viability of the purchaser.
- Search, done by ordinary letter to the registrar. Physically go with the

vendor to the registry S.201 of the RTA.
- Physical visit on to the land
- Open boundaries by the surveyors
- Write to the approving planning authority.
4. In practice an affidavit may be replaced by a statutory declaration and

under the statutory declaration Act.
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5. Tenants are not licensees, they are tenants with contractual rights but
with no interests on the land. Their remedy is damages in case of breach
of contract.
6. Caveats are instruments entered on to the land title and they can be
removed by a document called a “withdrawal of a caveat” or “removal of
caveat”.
 The finance act 2013, schedule 1 registration fees in respect of transfer

of land 30,000/=
- Consent to transfer land 20,000/=
 Land (Amendment Act) 2004 commissioner includes registrar s.3 (a) and
repeated the definition of Registrar in s.3 (d) of the Act.
Boyes V Gathure (1969) E.A 385
The respondent lodged a caveat against the title to the appellant’s land which
was registered and it forbade all dealing and claimed a beneficial interest. The
appellant applied to the registrar who gave notice to the respondent to remove
the caveat.
Held; - the nature of the registrable interest claimed was not disclosed by the
caveat and it should have been rejected by the registrar. A caveat is intended
to give the caveator temporary protection and it is intended to give notice of
the nature of the claim to the person whose estate s affected and to the world
at large.
Paul Kiseka Saku V Seventh Day Adventist Church SCSC No. 8/93
Held;- Since the appellant’s acquisition of the Kibanja did not constitute a
creation of a new customary interest on public land, the transfer of the
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customary interest to the appellant required that the transfer should be
proceeded by a 3 months’ notice of the intended transfer to the Uganda Land
Commission. Since there was no such notice, the transfer was unlawful and
void.
Kisugu Quaries Ltd V Administrator General SCCA No.10/98
S.2 of the Land Transfer act provides that no lease may be obtained by a non-
African without the consent of the Minister.
Streams of life giving water Ministries V Agnes Ochieng HCCS

No.1088/98
The plaintiff claimed that it was a bonafide occupant or owner through

purchase of the disputed land entitle to a certificate of occupancy under the
Land Act 1998.
Held;- the law regulating the legal concept of bonafide occupant should have
had 12 years occupancy of the land according to S.30 (2). The plaintiff fell
short of qualifying as a bonafide occupant on account of less than 12 years
occupancy.
Mutual Benefits Ltd V Patel 2 Anor (1972( E.A 4’16
The appellant lodged a caveat claiming a lessee’s interest in certain land. When
served with a notice requiring their withdrawal. It applied exparte for an
extension of the caveat and the respondent applied for the removal of the
caveat. The judge granted the application stating that the caveat was too wide
in seeking to prohibit all development with the land.
Held; the court had inherent jurisdiction to hear an exparte application for the
extension of a caveat but should be done only in exceptional circumstances. A
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caveat prohibited all dealings with the land goes beyond what is necessary to
protect a leasehold interest.
Mohamed and Anor V Handara (1972) E.A 166
The respondent lodged against the title f the appellant’s land a caveat claiming
a purchaser’s interest under an agreement for sale and applied for an
extension of the caveat.
Held;- in view of the lack of evidence filed by the respondent the extension of
the caveat should not have been granted. Application for the extension of a
caveat should be treated injunction and must show a prima facie case with a
probability of success.
Broadways construction Co. V Kasule and Ors (1992) E.A 76
The respondents were the executors of a deceased who had agreed to lease
mailo land to the appellant, a non-African, and the appellant alleged that the
deceased had agreed to obtain the necessary consent of the Minister to the
transactions but this will obtained until a year later. The appellant contended
that the contract became effective when consent with subsequently granted.
Held;- the land transfer Act makes illegal all taking of the contract was void ab
initio and the subsequent consent had no effect.
Samuel Kizito Mubiru and Anor V Byesimba and Anor (1985) HCB 106
The plaintiffs filed a suit against the defendants for an eviction order. The 2 nd
defendants company had acquired land and a lease for the same where it built
a coffee factory. The first defendant got into debt as a result of which he was
jointly sued with the 2nd defendant of which he was the managing Director.
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Held: - any scale done pursuant to the exparte decree which was set aside was
nullified.
The mode of acquisition of the title deed in question was tainted with fraud and
illegally because bonafide includes without fraud or without participation in
wrong doing. The title procured by the 1 st plaintiff was therefore void because
of fraud.
GEORGE KASEDDE MUKASA V EMMANUEL WAMBEDDE 2 4ORS (2004)

KALR 551
The plaintiff inherited and (the suit land) situated at Ndeeba bordering a
railway line. He became the registered owner to the suit land in 1971. He filed
the suit against the 5 defendants in trespass claiming that they had built illegal
structures on his land and wanted them evicted.
The second defendant claimed that he was on the suit land caretaking the
Kibanja of his late brother since 1985.
Held-;
1. The law applicable to persons that acquired customary kibanja before the
coming into force of the 1998, land act was the land reform decree that
prescribed the way/manner of acquiring a customary kibanja on public
land. S.4 (1) of the decree allowed the owner of a kibanja to sale or
transfer as a gift intervivos.
2. S.4 (1) of the Decree provided that the transfer of a kibanja whether as
a gift intervivos or by sale shall not rest any title in the transferee but
only to the extent of the improvements.
3. A kibanja may be transferred as a gift or by purchase S.4 decree. (2004)
KALR 559
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TEOPISTA MUGENZI V PASCAL BYRON MUGENZI 2 ORS
The plaintiff lodged a caveat preventing transfer of their matrimonial

land/home to the second defendant who had acquired the land through sale by
the first defendant who had sold the matrimonial home when their marriage hit
the rocks. The registrar of titles, without issuing a notice to the caveator lifted
the caveat and registered the property in the names of the 2 nd defendant. The
registrar was sued as the third defendant but never filed a defense.
Held;-
1. Since she co-owned the home it was wrongful for the first defendant to
have alienated the plaintiff without the permission of the latter.
2. S. 184 RTA allows a party to impeach the title of a registered proprietor

by proof of fraud where it is known that the registered proprietor was
not bonafide purchaser in the instant case, the 2 nd defendant with the
help of the registrar, 3rd defendant acquired registration without giving
notice to the plaintiff to show cause why the caveat should be lifted.
Therefore the registration was fraudulent and would be cancelled and
instead, register the plaintiff.
JOYCE KUSULAKWEGUYA V APPOLO MATOVU 3ORS (1994) KALR 861
The father of the plaintiff, the first and fourth defendant left a will which stated
“All my land should not be distributed” however, all those I have left holding
customary tenures and those who will be given holdings on my land shall
remain loyal and cooperative to the trustees of this land. The will was dated
1973, the testator died in 1977. The plaintiff was given a certificate of
succession by the Administrator General, the first defendant in 1985 made a
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statutory declaration to the effect that the duplicate certificate was lost. He
never informed the plaintiff about his application for a special certificate of title,
he sold and effected transfers of various plots which were sub-divided. The
plaintiff through this action obtained.
Held:- No trust was created because the will never defined property the
subject of the trust since no trust was created the first defendant was free to
make a statutory declaration of the loss of the duplicate certificate of title
pursuant to S. 67, RTA. This section allowed any person to make a statutory
declaration.
TURUN SIODRA 2 ANOT V UGANDA REHABILITATION DEVELOPENT

FOUNDATION (194) KALR 446
Counsel for the plaintiff orally sought court’s leave to continue the case with
the remaining plaintiff after the death of the other. The plaintiffs had brought
the suit in their names as land lords to enforce a tenancy agreement between
themselves and the defendant were after all merely doness of powers of
attorney and not the actual landlords as they had alleged. Counsel for the
defendant objected to the proprietary of the attorney that they did not have a
cause of action and could not thereby bring a suit in their names.
Held-: 1. Powers of attorney had to be strictly interpreted. In this case the

particular power did not confer upon the plaintiffs to institute legal proceedings
in their names. Moreover the powers were defective for the failure of the
witness thereto to give his particulars.
RUTH SIRIMUZAWO V PAULO MUKASA 2 ORS (1994) KALR 560
The plaintiff alleged that she was the customary heir to the estate of her aunt
who died intestate, a minor and without child. She therefore brought this suit
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against four defendants for an order cancelling the transfer and certifies of title
registered in their names in respect of the property that formerly belonged to
her late aunts claiming that the transfers were fraudulent.
Held;- 1. A personal representative of the deceased must be appointed by law

to administer the estate of the deceased such administration cannot be merely
assumed as per the provisions of the succession Act as amended. Any person
dealing in land registered in the names of the intestate must be a personal
representatives of the intestate as appointed by law. It is only each a person
who can bring an action in court regarding the land. The plaintiff did not have
locus to bring the suit since she was not an administrator of the deceased as
provided for under S.143 RTA and S.179 Succession Act.
SHARIFF OSMAN V HAJI HARUNA MULANGWA SCCA NO.59 OF 19
The appellant is the registered owner/proprietor of a building comprised in

Kibuga Mengo Hill Road. He entered into a sale agreement will the respondent
to sell his land to the latter at an agreed price of US 12000. The price was to
be paid in installments and the appellant had to vacate the suit land after the
payment of the installments and if he wished to stay there he had to pay rent
to the vendor. The respondent didn’t pay the balance within the stipulated
time. In August, the suit premises were damaged but the appellant obtain
judgment against the owner of the trailer for shs 7.2 m and repair the suit
premises. The appellant did not vacate nor does handover pass. The appellant
attempted to resell the suit land to another person and consequently, the
respondent lodged a caveat.
Held: a sale agreement should be read as a whole in order to give meaning or

effect to the intention of the parties. According to the principles of equity, the
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right to the property passes to the purchaser and the tight of the vendor is
returned into a money right to receive the purchase money, he retaining a lien
upon the land which he sold until the purchase money is paid. The vendor
became a trustee for the purchaser.
In the instant case, the court held that since the respondent had within the
stipulated time paid over 83% of the purchase price which was substantial
performances, in order for the appellant to be entitled to repudiate the
contract, the appellant should have informed the respondent about the
repudiation immediately after 15/054/1990. The appellant waived his right to
respond the contact on account of the respondent’s failure to pay all the
84000 by 15/4/1990.
WORKSHOP TWO
HOW A LAWFUL OCCUPANT CAN OBTAIN A CERTIFICATE.

 S.29 (1) of the Land Act defines a lawful occupant and it includes a
person who entered the land with the consent of the registered owner
and includes purchaser (S.29 (1) (b). Malcom Ocen entered the land in
question on permission of Persusi Lunkuse’s predecessor in title,
therefore he is a lawful occupant.
 A person who falls under his definition is referred to as tenant by
occupancy under S.1 (dd) of the Land Act.
 S.31 of the land act provides for the rights of a tenant by occupancy and
these include; right to security of occupancy on the land and the right to
security of tenure. The latter right is not prejudiced by reason of the fact
that the lawful or bonafide occupant does not possess a certificate of
occupancy. (S.31 (9) land act).
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 Section 33 of the land act provides for the procedure of acquiring a
certificate of occupancy.
 S.33 (1) provides that a tenant by occupancy may apply to the
registered owner for and be issued with a certificate of occupancy in
respect of the land which he or she occupies in accordance with the
section.
 The certificate of occupancy is a registrable interest under the RTA
possession of the certificate of occupancy provides documentary
evidence that the named person has a right of occupancy over the
subject land. This will undoubtedly facilitate land transactions with
respect to the rights of occupancy. Moreover, since the certificate is
granted after verification and determination of the boundaries, it is likely
to reduce future disputes over the land ownership and or boundaries.
The requirements for one to be given a certificate of occupancy are;

i) The payment of ground rent under S.33 (5) land act, a tenant will
only be entitled to be issued with a certificate of occupancy if he or
she has paid the ground rent for the land with no arrears of ground
rent outstanding, or where there are arrears, the neither has been
determined by the land tribunal.
ii) Consent under S.33 (5) of the land act shall grant entitle the tenant to
be issued with a certificate by the recorder.
The procedure for applying for a certificate of occupancy is;

The tenant applies to the landlord for and to be issued with a certificate of
occupancy in respect to the land he/she occupies (S.33 (1)) this is done by the
applicant in the form specified by the land regulations i.e. form 2 in the first
schedule (Reg 4).
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 The registered owner is expected to respond within a period of six weeks
from the date of the receipt of the application and in case the land
lord/registered owner approves he shall notify the committee in the
jurisdiction where the land is located. The land committees reestablished
under S.65 of the land act.
 The committee’s shall then appoint a day not being less than three
weeks and not more than three months from the date the receipt of the
application when it will meet at the place where the land is situated,
(Reg 26 (2) committee give notice (3) form 22).
 In adjudicating disputes, the land committee must observe the rules of
natural justice that is to say, it should give the parties the opportunity to
be heard, must not be biased or seen to be biased e.g. a member of the
committee is a relative or close friend of the registered proprietor or
tenant.
 The committee is free to call evidence or its own motion and hear
evidence which would not be admissible in a court of law, call witnesses
on its own motion and also use the evidence contained in official records.
S. 33 3).
 After the committee makes a determination, it must inform both parties
of the outcome (S.33 4).
 Upon receipt of the determination, the land owner must immediately
give his/her consent to the application. This should be done without
undue delay in the prescribed form to the tenants that is form 2 under
Reg 5 of the land regulations.
 If the land owner does not within six months after the receipt of the
determination of the committee grant a consent to a land tribunal which
shall proceed to grant a consent to the certificate of occupancy (S.33 7).
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 Once the tenant obtains the requisite consent of the land owner or the
land tribunal, he or she is entitled to obtain a certificate of occupancy
(.33 (8).
 This is done by the recorder, established under S.68 of the Land Act. the
recorder, on being satisfied with the grant of consent, he/she may issue
the certificate of occupancy to the tenant who has presented the grant of
consent to the recorder is S.33. Under S.68 (2), the recorder is
responsible for keeping records relating to certificates of occupancy.
 The recorder notifies the registrar of the issue of a certificate of
occupancy and every certificate shall be notified as an encumbrance on
the certificate of title of the owner of the land (S.33 (9) Land Act).
Lukwago V Bawa Singh 2 Anor (1959) E.A 282 at 285. It was held that a
title of a registered proprietor of mailo land was subject to the interest of any
“tenant” and that a kibanja holder was a tenant within the meaning of S.6 of
the RTA.
The registration of titles (fees) amendment rules 1998 S.1 No.3 schedule
the fees for issue of certificates is 10,000/=
 Reg 37 provides that where a certificate of occupancy is issued and the

land is subsequently surveyed with the consent of the owner, the
notification shall be submitted to the recorder in form 26 in the
regulations.
THE PROCESS OF MUTATION AND SUBDIVISION

S.3 (4) (b) provides that mailo tenure is a form of tenure deriving its legality
from the constitution and its incidents from written law which permits the
separation of ownership of land from the ownership of developments on land
made by a lawful or bonafide occupant: (land act).
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S.38 (1) of the land act is to the effect that tenant by occupancy may acquire a
registrable interest in respect of the land he or she occupies.
In our facts, Malcom Ocen is a lawful occupant and has a registrable interest in
Perusi Lunkuse’s land who in the question has agreed to give Malcom the
tenant by occupancy a registered interest.
LAW AND PROCEDURE FOR SUBDIVISION

 S. 96 of the RTA provides that if the transfer purports to transfer part of
the land mentioned in any certificate of title, the transferor shall deliver
up the duplicate and the registrar shall endorse on the original and
duplicate certificate a memorandum of the transfer and the duplicate
shall be returned to the transferor.
 The applicant must have in his/her possession duplicate certificate of
title, fully filled mutation form and has authentic passport photographs of
the owner (Seller).
 The mutation form must have stamped by the registered surveyor
accompanied by form PPA 3 (under the physical planning act 2010) fully
filled by the registered owner, dated and signed by all the necessary
parties.
 The applicant presents the originals and a photocopy of the documents
to the mailo registry for checking and approval of the subdivision in order
to proceed. The documents are received and the photocopy is stamped
“received” and returned to the applicant.
 The applicant checks after 5 working days to pick the documents the
applicant presents the photocopy of the documents stamped on
presentation.
 On presentation of the approved mutation form from the district
surveyor with an area schedule, receipts of checking fees, deed plan
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fees, registration fees and the duplicate certificate of title and passport
photographs and a set of photocopied documents, the applicant submits
them to the mailo registry. The photocopy is stamped ‘received’ and
returned to the applicant.
 The applicant is asked to check after 10-25 working days.
 The appellant presents identification documents and the photocopies to
collect the duplicate certificates of title. The applicant signs for the titles
and the photocopy is stamped “returned” on completion.
Practical steps in subdivision

- Draft an agreement to that effect
- Malcom has to ensure that there are no encumbrances on the land.
- Vendor contracts or qualified and licensed surveyor, S.9 and 10 of the
survey Act CAP 232.
- By formal letter, you gave notice to the LCI, immediate neighbor of the
vendor and invite them to be present during subdivision.
- Vendor acquires mutation forms which are signed and filled in by the
same.
- They are taken to the registered surveyor who stamps and signs them.
- The surveyor takes the forms to the Ministry of Lands and urban
development in the registry department to confirm that the land exists
and the person who signed them is the actual land owner.
- The surveyor visits’ locus makes findings and marks out access roads,
puts boundary stones computers the area (opening up boundaries)
- Takes the report to the district land office
- The district’s staff surveyor peruses and if he finds anything lacking they
will indicate “ RTF” which means “Refer to field”.
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- If he is satisfied the findings are sent to the cartographer and he
translates the computations into plot numbers and drafts blue prints to
this effect.
- An area schedule is also filled, it indicates the history of land in regard to
any prior or current subdivisions against the land. The acreage is also
filled with the parent plot.
- The cartographer signs and stamps the documents and sends in
………………….
- The mutation form is taken to the valuation office in the Ministry of
lands, housing and urban development for valuation of stamp duty.
- Take all the documents to the registrar of mailo registry and a new
certificate of title will be issued. The old one will also be given (it
becomes residue by balance by sub division).
Documents required for subdivision

 Duplicate certificate of title
 Mutation form
 Set of passport photographs
 Deed plans
 General receipts of payment
 Fees paid
Registration fees Ug shs 10,000/= per title created.
 S. 152 (1) of the RTA provides that any proprietor subdividing any land
under the operation of this act for the purpose of selling the land in
allotments shall deposit with the registrar a plan of that land if so
required.
 S.153 of the RTA provides that after the subdivision of the land and the
deposit of the plan under S.152, the number of the allotments marked
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upon the plan, together with a reference to the plan by its deposited
number may be used as sufficient description of the land for the purpose
of dealings with any one or more of the allotments on the sale or an
allotment according to the plan of subdivision and on any subsequent
dealings comprising the whole of one or more allotment or allotments.
CONDUCTING A SALE IN ABSENCE OF A REGISTERED PROPRIETOR

 S. 146 (1) RTA, the proprietor of any land may appoint any person to
act for her in transferring person to act that land by signing a power of
attorney in the prescribed form in the 16th schedule.
 S. 146 (2) RTA, every such power of attorney shall be registered in
accordance with the registration of documents act and if so registered
within four months after the date thereof shall be presumed to be in
force at the time of its registration unless a revocation of that power of
attorney has been previously registered under that act but nothing in this
section shall diminish the force and effect of any power of attorney if
registered after the expiration of that period of four months.
 S.147 (1) the power of attorney should be signed by and attested and
that witness may be an advocate.
 S.148 (a) the signature of the parties should be in Latin character.
 S.3 of the registration of documents act the registrar shall keep a
register of documents and register it in the manner provided for all
documents to be registered S,5 and 6.
Procedure to effect transaction using Powers of Attorney

- Draft a power of attorney by filling out the form in the 16 th schedule to
the RTA.
- Registering the power of attorney in accordance with registration of
documents act (S.146 (2) RTA).
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- If registered within four months, it will be presumed to be in force at the
time of its registration
- The power of attorney has to be attested to by a witness within (S.147
(1) (a) or without the limits of Uganda sec 147(1) (b) RTA.
- The power of attorney should be signed in Latin character (S.148 RTA).
Sidpra V Uganda Rehabilitation Development Association HCCS 199/93

held that power of attorney has to be strictly interpreted and where there is no
authority given to the holder of power of attorney to institute a suit then he
cannot purport to do so. An attesting witness has to give his particulars for the
power to be valid.
M/S Ayigiyugu 2 Co. Advocates V Muteteri Munyankindi (1988-1990)

HCB held that the holder of power of attorney ought to take proceedings in the
names of the donor/owner of the property.
EFFECTING POWERS OF ATTORNEY OUT OF THE COUNTRY

If Perusi Lunkuse had already left, she could take out powers of attorney in
Italy and have them notarized so that they could have effect in Uganda.
(Stamp of the Notary public) then go through the process of registration.
Fees to effect transfer of land

 Search- 10,000/= (registration of titles fees) amendment rules of 2005
 Transfer forms (lodgment- 10,000/+ (Reg of Titles fees) amendment
rules 2005.
 Issuance of new certificate-____ 10,000/=
 For every transfer (stamps amendment) act No.12 of 2003. 1% of the
total value
 Legal Fees Advocates (Remuneration and Taxation Of Costs)
Regulations.
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Forum
1. Chief Government valuer

2. URA Stamp duty (1%)
3. District Land office registration fees
4. Comm. Land registration, land registries (lodgment and transfer)
COMPLETING AN INCOMPLETE SALE BY ADMINISTRATOR OR EXECUTOR

AFTER DEATH OF PROPRIETOR
 S.180 succession act cap 162 provides that the executor or

administrator, as the case may be, of a deceased person is his or her
legal representative for all purposes, and all the property of the deceased
person vests in him or her as such.
 S.192 succession Act letters of administration entitle the administrator to
all rights belonging to the intestate as effectually as it the administration
has been granted at the moment after his/her death.
 S.278 (1) of the succession act provides that an administrator shall
within 6 months from the grant of letter of administration exhibit in court
an inventory containing a full and true estimate of all the property in
possession.
S.134 (1) of the RTA provides for succession on death;
 Deposit a copy of the letters of administration to the registrar of titles

 The administrator applies to be register as proprietor in respect of the
land. The husband’s name is entered in the registers book and a
memorandum notifying the appointment of the executor and the day of
the death of the proprietor entered in the register book.
 Upon that entry being made, the administrator becomes the transferee
and is deemed to be the proprietor of such land. The administrator holds
it subject to the equities open which the deceased held it. For the
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purpose of any dealings with it, the administrator shall be deemed to be
the absolute proprietor.
 S.134 (4) provides that no fee shall be payable on the registration of
such administrator.
 The application is by formal letter
 S. 192 succession Act letters of administration entitle the administrator
to all rights belonging to the intestate and as such, Enock has powers to
conduct a sale.
S.179 of the succession act
PROTECTING INTERESTS OF A BENEFICIARY

 S.26 (1) of the succession act provides that the residential holding
normally occupied by a person dying intestate prior to his/her death as
her principal residence or owned by her as a principal residential holding
shall be held by her representative upon trust for her legal heir subject to
the rights of occupation and terms set out in the 2nd schedule to the act.
 Under S.29, the principal residential holding is reserved from
distribution. No wife or child of an intestate occupying a residential
holding shall be requested to bring that occupation into account in
assessing any share in the property of an intestate to which the wife or
child may be entitled.
2nd schedule of the succession act, in case of a residential holding occupied by

the intestate prior to her death as her principal the residential holding shall be
entitled to occupy it.
Olina Mutale’s interest is an equitable one as a beneficiary of the land and her
father is holding the land on behalf of the beneficiaries.
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 S. 139 (1) RTA provides that any beneficiary claiming any interest in
land may lodge a caveat with the registrar forbidding any dealing in that
land.
Re M (an infant) adoption cause No.9 of 1994; ordinary resident was held
to be a person who lived in a place uninterrupted for three years.
Caveat 15th schedule of the RTA
S. 140 (2) of the RTA- the caveat of a beneficiary does not expire but the
other caveats expire after notice is given (60 days).
In case of a dispute-;
- The beneficiaries can distribute the property

- Apply to court to revoke the letters of administration.
- Apply to the administrator general to take up the administration of the
property.
Steps
 The applicant obtains 2 sets of embossed caveat documents duly

witnessed by an advocate and signed by the caveator.
 A statutory declaration/ affidavit signed by the deponent and

commissioned by the commissioner for Oaths must be sworn.
 Presents the copies at the department of land registration for

processing procedure
 S. 139 of the RTA form 15th schedule accompanied by an affidavit stating
the nature of the title under which the claim is made.
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 A caveat should be certain the address of the caveator, a clause to the
effect that he/she forbids the registration of any person as proprietor a
transferee without notification, the signature of the caveator and where
the proceedings relating to the caveat should be served.
Boyes V Gathure (1959) E.A 36 court held that the interest should be
specific in the caveat.
 S.141- no entry can be made without consent

 S.140 (2) a caveat lodged by a beneficiary does not lapse
DOCUMENTS
THE REGISTRATION OF TITTLES ACT, CAP 230, LAWS OF UGANDA
IN THE MATTER OF LAND SITUATE AT MENGO, KIBUGA
BLOCK 12, PLOT 544.
POWER OF ATTORNEY
I, Perusi Lunkuse appoint Enock Mutale my attorney to sell to any person all
or any lands, lease or mortgages now belonging to me or which shall hereafter
belong to me under The Registration Of Tittles Act, or of which I now or shall
hereafter be the proprietor under the Act, LAOS to lease all or any such lands
as shall be of freehold tenure for any term of years not exceeding twenty one
years in possession at any rent. Also to surrender or obtain or accept the
surrender of any lease in which I am or may be interested. ALSO to exercise
and execute all powers which now are or shall hereafter be vested in or
conferred on me as a lesser or mortgages under the Act (or otherwise
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according to the nature and extent of the powers intended to be conferred)
AND for me and in my name to sign all such transfers and other instruments
and so all such acts, matters and things as may be necessary or expedient for
carrying out the powers hereby given and for recovering all sums of money
that are or may become due or owing to me in respect of the premises and for
enforcing or varying any contracts. Covenants or conditions binding upon any
lessee, tenant or occupies of the lands or upon any other person in respect of
the same and for recovering and maintaining possession of the lands and for
protecting the lands from waste, damage or trespass.
Dated this 29th day of October 2016
Signed by: ____________________________
In the presence of_______________________
APPLICATION TO BE REGISTERED AS PROPRIETOR OF A DECEASED LAND
Firm H2 & F1 and Co

Advocates
P.O. Box 7117
Kampala
29th October 2016
Register of titles
P.O. Box 7122
Kampala
Dear Sir/ Madam
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RE: APPLICATION TO BE REGISTERED AS PROPRIETOR IN RESPECT OF
PRIVATE MAILO LAND KIBUGA COUNTY BLOCK 12, PLOT NO.544 MENGO
DISTRICT
I write in respect of the above being the legal representative of the late Perusi
Lunkuse who died intestate and was buried at Kibuga.
That I applied for letters of administration from the High Court of Uganda,
Family Division. Vide administration cause No-25/2016 which were granted. (A
copy of the same are attached hereto)
That I also attach a copy of the duplicate certificate of title introduction, letter
from my LC and a copy of the death certificate.
I therefore request that your good office, be pleased to register me as the

proprietor of the above described land.
Yours faithfully
_________________
Enock Mutale
CERTIFICATE OF OCCUPANCY/ GRANT OF CONSENT
THE LAND REGULATIONS, 2004
APPLICATION FOR
CERTIFICATE OF OCCUPANCY/ GRANT OF CONSENT
PART I, (to be filed by the applicant in quadruples).
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1. Full name Sex Age Marital status Citizens
(Surname first) M/F
i) Ocen Malcom Male 40 years married Ugandan
ii) _____________________ _________ ________________
____________
iii) _____________________ _________ ________________
____________
iv) _____________________ _________ ________________
____________
v) _____________________ _________ ________________
____________
2. Address
i) Permanent: P.O.Box 1000 Kampala
ii) Contact: 0752555444
3. Location of land the subject of application
Village/ Zone Kibuga
Parish/ Ward Kibuga
Sub county/ TownKibuga
County/ Division Rubaga
District Mengo
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4. Approximate area (ha) 1.290 ha
5. Use or occupation of land (e.g family, housing, family dwelling, housing,

farming).
6. Names of owners of adjacent land
Peruse Lunkuse……………………………………………………………….
7. Date of commencement of occupancy 11/04/1977
8. State how you came to occupy the land
Permission from Perusi Lunkuse’s Predecessor
9a) Do you wish to hold the land as a family? YES/NO
c) Do you wish to hold the land as community? YES/NO
If yes, state shares (fractions or percentages)______________________
d) Dou you wish to hold the land as individuals? YES/NO
I am, we are requesting your consent to my/our application to register my/our

tenancy by occupation in the office of the recorder and to obtain a certificate of
occupancy.
Name and signature/ Thumbprint of applicant (S)
i) Ocen Malcom __________________________

ii) ________________________
___________________________
iii) ________________________
___________________________
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iv) ________________________
___________________________
v) ________________________
___________________________
Date of application 29/10/2016
PART II: (to be filled by the registered owner)
Notice is hereby given to the committee that I/ we have received the above
application for a certificate of occupancy. I/ we hereby forward the application
for your verification and further action.
Name and signature of registered owner(s)
_______________________ ____________________________
Date:__________________________
PART III: (To be filled by the committee)
_____________________________Area land committee has determined,

verified and demarcated the boundaries of the land as contained in the
attached sketch/ plan on form 24.
Other remarks
______________________________________________________________
______________________________________________________________
_______________________________
Name and signature of Chairperson
_________________________
____________________
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Area land committee
Official stamp
Date:_____________________________________
PART IV: (To be filled by the registered owner).
A. I/ we the registered owner(s) of land of the above particulars hereby

grant/ do not grant consent to your application to register a tenancy by
occupancy.
B. Reasons for refusal
______________________________________________________________
______________________________________________________________
______________________________________________________________
_______________________________________________
Name and signature of registered owner(s)
Witness:
______________________________________________________________
________
Power of Attorney
THE REGISTRTAION OF TITLES ACT, CAP 230
IN THE MATTER OF LAND SITUATE AT KUIBUGA BLOCK, 12 PLOT

NO.544, MENGO DISTRICT
POWER OF ATTORNEY
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I, PERUSI LUNKUSE of P.O. Box 1556, Mengo District, being the registered
proprietor of land comprised in Mengo Kibuga plot 544. Block 12, appoint.
Enock Mutale, my lawfully wedded husband of P.O. Box 1556, Mengo District,
my lawful attorney to sell all my land comprised in Kibuga, Plot 544, Block No.
12 and also exercise and execute all powers which now are or shall be vested
in me as vendor and for me and in my name to sign acts, matters and things
as may be necessary or expedient for anything out of the powers hereby given.
Dated this 29th Day of October 2016
Signed by
……………………….
PERUSI LUNKUSE
In the presence of
…………………………………
ADVOCATE
Drawn and filed by COMMISSIONER FOR OATHS
Firm H2 & F1 & Co Advocates
P.O.Box 7117
Kampala
Caveat
THE REGISTRTAION OF TITLES ACT, CAP 230 LAWS OF UGANDA
IN THE MATTER OF LAND COMPRISED IN KIBUGA BLOCK PLOT NO.544.
MENGO DISTRICT
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IN THE MATTER OF A CAVEAT FORBIDDINH OR ANY DEALING IN LAND
COMPRISED HEREIN ABOVE
To the registrar of tittles
Ministry of Lands, Housing and Urban Development
P.O.Box 7122
Kampala
TAKE NOTICE that I Olive Mutale of P.O.Box 1236, Kampala do claim an

equitable interest in the above described property as a beneficiary to the estate
of the late Perusi Lunkuse the registered proprietor of the above described land
at Mengo.
I therefore forbid the registration of any person as a transferee or proprietor of

the land or any instrument affecting the said property or estate until after
notice of such registration is given to me at the address hereafter mentioned or
unless such instrument be expressed to my claim or unless/ consent in writing
thereto.
I appoint M/S firm H2 & F1 and Co. Advocates of P.O.Box 7117, Kampala as
the address at which notice and proceedings relating to the caveat may be
served.
Signed by the said
Olive Mutale _______________________
CAVEATOR.
In the presence of
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KATUMBA PIUS BUSOBOZI
__________________________
ADVOCATE
Drawn and filed by
P.O.Box 7117
Kampala
Affidavit in support of caveat
IN THE MATTER OF THE REGISTRTAION OF TITLES ACT, CAP 230 LAWS

OF UGANDA AND
IN THE MATTER OF LAND COMPRISED IN KIBUGA BLOCK PLOT NO.544.
MENGO DISTRICT AND
IN THE MATTER OF A CAVEAT FORBIDDINH OR ANY DEALING IN LAND

COMPRISED HEREIN ABOVE
AFIDAVIT IN SUPPORT OF CAVEAT
I, Olive Mutale of C/o firm H2 & F1 and Co Advocates P.O.Box 7117, Kampala
do solemnly swear and state as follows;
1. That I am a female adult Ugandan of sound mind and the caveator

herein.
2. That I am a daughter to the late Perusi Lunkuse who died intestate on

the 27th day of July 2016 and was buried at Kibuga Mengo.
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3. That the late Perusi Lunkuse who died intestate on the 27 th day of July
2016 and was buried at Kibuga Mengo.
4. That upon her death my father Mr. Enock Mutale applied and was
granted letters of administration from the High court family division (A
copy is attached marked ‘A’).
5. That upon acquiring the letters of administration my father applied to

the register of titles to be entered as the proprietor of the land above
described.
6. That on being registered as the proprietor, and upon acquiring title my

father has put up the above land for sale which affects my interest as
the beneficiary of the land.
7. That I depone the contents of this affidavit in support of a caveat

forbidding any transfer dealing and transaction in the above described
land except with my consent and that of the other beneficiaries.
8. That what I have stated herein above is true and correct to the best of
my knowledge and belief.
Sworn by the said
Olive Mutale __________________________
DEPONENT
Before me: __________________________
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Drawn and filed by
P.O.Box 7117
Kampala
QADASI V QADASI (1963) E.A 142
The agreement of May.29.1949, contained reciprocal promises in that each

party undertook to run the business in turn for periods of 6 months and
thereafter to hand it over to the other.
These promises had value in the eyes of the law for each party had an interest
with financial implications in having the business continue operated in order
that customers would be retained and the good thereby maintained. Therefore
there was consideration to support the agreement.
DENNING V DAVID & ANOR (1960) E.A 755
In an action by the respondents against the appellant for specific

performance of an agreement for sale of land the trial judge held that by
reason of the combined operation of S. 55 (6) (b) of the Indian transfer of
property Act, 1882 and S. 127 (2) of the crown. Lands ordinance the
agreement was inadmissible in evidence and dismissed the respondents claim
on the first appeal the court held that the trial judge had even in holding that
the agreement was inadmissible and also rejected a submission that S. 88(3) o
the crown lands ordinance rendered the agreement void because the
governor’s consent had not been obtained prior to the execution of the
agreement on further appeal.
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Held:- 1. S. 88 (3) of the crown lands ordinance which provides that any
instrument in so far it purports to effect any of the transactions referred to in
S.5 (1) shall be void unless the terms and conditions of such transaction have
received the consent of the governor which shall be endorsed on the
instrument, was not applicable to the transaction/agt in question.
2.There was nothing contrary to law in entering into a written agt before the
governor’s consent was obtained and the legal consequence that endued was
that the agreement was inchoate till that consent was obtained once consent
was obtained the agreement was complete and completely effective.
MARKO MATOVU & ORS V SSEVIRI & ANOR (1979) HCB 174
Per Ssekandi J. that there is no definition of customary tenure but it is

generally accepted that even in the absence of Kibanja holdings, customary
rights of a customary tenant may be established by the cultivation of crops,
grazing of cattle and establishment of wells for cattle, and such rights are
protected by the law.
Uganda Commercial Bank V Bushuga HCCS No.124 of 1994
Okello J. that is 139 of the RTA enjoins an equitable mortgage to invariably

register a caveat on the mortgaged property, their failure to do so, the
equitable mortgage cannot be enforced by fore closure.
RUTSIDAZI DEO & ORS V EDWARD RUTAGIRA (2001) KALR 35
The 3 plaintiffs alleged that the defendant included their bibanja when he
obtained title to his land. The plaintiffs alleged that the defendant on the
strength of the certificate of title fenced off their land thereby trespassed
thereto. They prayed for damages for trespass and an order rectifying the
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defendants title. So as to exclude their bibanja from the defendant’s title. They
based their claim on fraud committed by the defendants.
Held:- where it is proved that the plaintiff has cultivated, planting crops, or
grazed animals on some land for considerable period of time, then such
plaintiff has proved a claim to customary ownership of land.
2.Where a defendant obtains title to the plaintiff’s Kibanja with the knowledge
that the plaintiff owns that lend and obtains title by deliberately conceding from
the kibanja holder, the process of registration of the said land then fraud is
proved against the defendant without consent of the plaintiffs kibanja holders
constituted trespass.
ASHER KIWANUKA NTEYAFA V WILLIAM MUSOKE HCCS NO.218 OF 1993
The defendant was the registered proprietor of land comprised in Kyadondo

Block 118 plot 9 measuring 5 acres situate at Bamba village Kyandondo
county, Mpigi district. By their written agreement, the defendant sold all the
said land to the plaintiffs. The defendant refused to sign the transfer from
without any good excuse. Counsel for the plaintiff submits and was asking
court to direct, the chief registrar of titles in the land office to register the suit
premises in the names of the plaintiff and the defendant to execute a transfer
in favour of the plaintiff.
Held;- The plaintiff proved his claim on a balance of probabilities and judgment
was entered in his favour, the Chief Registrar of titles is enjoined to cancel the
names of the defendant from the Register books and register plaintiff as the
proprietor of the land.
EDWARD MUSISI V GRINDLAYS BANK SCCA NO.5/1986
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Court held that S.139 of the RTA requires that no dealings in the land should
be done while there is a caveat prohibiting the same.
KATARIKAWE V KATWIREMU (1977)HCB 187
Court held that a purchaser would cordially protect his interest in the land by
lodging a caveat.
SHOKACHATI ABDALLAH V SAID MERALI SCCA NO.32/1994, Court
Held that for an executor to transfer land, he must first get land registered in
his names before he can transfer it.
GRINDLAYS BANK V UGANDA BOTTLERS LTD CAC.A NO.29 OF 1995
Mere irregularities in the registration of title are not sufficient to impeach a title
fraud must be proved.
THE REGISTRTAION OF TITLES ACT CAP 230
LAWS OF UGANDA
MAILO REGISTER
KIBUGA, BLOCK 12
PLOT 544 AT MENGO
APPLICATION TO REGISTER AND ADMINISTRATOR
(Under S.134 of the said Act)
I, ENOCK MUTALE of Mutundwe, Kiggaga zone, Rugaba Division, Kampala

district being the administrator the Estate of the late PERUSI LUNKUSE
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(hereinafter called the deceased) do hereby apply to te registered on the
above said certificate of title as administrator
Dated at Kampala thus 29th day of October 2016
Signed by the said
ENOCK MUTALE __________________________
To: The Registrar of Tittles
Kampala
Drawn and filed by
P.O.Box 7117
Kampala
Sale Agreement
THE REGISTRTAION OF TITLES ACT CAP 230
LAWS OF UGANDA
MAILO REGISTER
MENGO
PLOT NO.544 BLOCK NO.12
AREA: 1.290 HECTARES
LAND AT KIBUGA
REG. PROPRIETOR: PERUSI
LUNKUSE
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SALE AGREEMENT
THIS AGREEMENT MADE this 29th day of October 2016 BETWEEN PERUSI
LUNKUSE of P.O. Box 1000 Kampala Uganda (hereinafter called “the seller”) of
one part AND WALTER BYARUHANGA of P.O. Box 1236, Kampala, Uganda
(hereinafter called “the buyer”) of the second part.
WHEREAS the seller is the registered proprietor of the of the land herein above
described.
AND WHEREAS the seller is desirous of selling her interest in the above said
land and the buyer is ready and willing to purchase the above said land and for
a valuable consideration.
NOW THIS DEED WITNESSETH AND IT IS HEREBY MUTUALLY agreed as

hereunder;-
IN CONSIDERATION of the total sum of UGX 180,000,000/= (Uganda shillings,

One hundred eighty million only) all of which is to be paid by surrenders his
estate, interest and property in the above said land to the buyer free from any
encumbrance whatsoever.
1. The buyer shall take possession of the land hereby sold upon the signing
of this agreement.
2. The buyer shall take possession of the land hereby sold upon the signing
of this agreement.
3. The seller shall cause the land to be transferred into the names of the
buyer at the buyer’s expense.
4. The seller hereby confirms that he has good title to the portion of land
hereby sold and undertakes to identify the buyer in respect thereof.
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5. The seller shall introduce the buyer to the local councils of the area
immediately after the payment in full of the purchase price.
6. The buyer shall pay the lawyer’s fees for preparing this agreement.
IN WITNESS WHEREOF the parties hereto have affixed their hands and seal on
the date herein above first written
SIGNED by the said SELLER
PERUSI LUNKUSE __________________
VENDOR (SELLER)
In the presence of
KATUMBA PIUS BUSOBOZI

_______________________
WITNESS
SIGNED BY the said BUYER
WALTER BYARUHANGA (BUYER) _____________________
In the presence of NAKIYAGA LOUISE

_____________________
WITNESS
Drawn and filed by
Firm H2 & Co Advocates
P.O.Box 7117
Kampala
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FRAUD AND BONAFIDE PURCHASER FOR VALUE WITHOUT NOTICE
CASES
HANNINGTON NJUKI V WILLIAM NYANZI HCCS NO.44/ 1996, For a
purchaser to successfully prove/rely on the bonafide doctrine must prove that
1. He adds a certificate of title

2. He purchased the property in good faith
3. He had no knowledge of the fraud
4. He purchased for valuable consideration
5. The vendors had apparent valid title
6. He purchased without notice of any fraud
7. He was not party to the fraud
Kazzara V Rukuba civil Appeal No. 13 of 1992
Court held that in absence of fraud on the part of the person to be registered,
he or she takes better title than that of a person to whom the same land was
sold first but did not register his interest.
Various due diligence categories necessary for a given transaction
1. Pay attention to documentation

i) Examine the certificate of title
ii) Carry out a search by writing an ordinary letter to the registrar of
titles and get statement.
iii) Physical search of the register under S.201 RTA
2. Pay attention to personality

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i) Get particulars of the client (citizens) company confirm with the MOA
and AOA
3. Pay attention to physical land

i) APKM Lutaaya V Ug posts and Telecommunication services Ltd whee
buyer has notice of other interests, he should not ignore those
interests
ii) Survey the land
iii) Employ surveyor to ensure that boundaries are where they actually
are
4. Pay attention to planning permission/ environment

- e.g it it’s a lease, does it restrict certain uses
- do the environment authorities restrict
Haji Sulaiman lule V Zamu Nalumansi (1990-1991) KALR 49
The word transfer means the vesting of property from one individual or group
of individual to another.
Kampala District Land Board and Chemical Distributors, National

Housing and Construction Corp Ltd SCCA 2/2004
A bonafide occupant has priority over other persons and is entitled to be given
first priority for the lease as he had utilized the land for 45 years.
Yokoyada Kaggwa V Mary Kiwanuka (1979) HCB 23
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Odoki stated that any instrument which stamp duty is chargeable is
inadmissible in evidence unless the duty has been cleared, however such
unstamped instrument can be rendered admissible in evidence on payment of
the duty which is chargeable in addition to any penalty that may be
prescribed.
7th schedule RTA (Transfer form)
TRANSFER OFLAND, MORTGAGE OR CHARGE
Freehold register
Lase hold Vol._____________Fol______________
Mailo
FORM 1
Transfer of land (under S.92 RTA)
I _____________________(transferee) being the registered proprietor of the

lands comprised in the lands comprised in the above mentioned folio in
consideration of the sum of shs._________ paid to me by
_________________ (transferee) on or before the execution of these
presents the receipt of which I acknowledge hereby transfer that land. (If the
land leased is part only of the land comprised in the land leased is part only of
the comprised in the certificate of title, set forth the description and refer to a
plan) to __________________(name of transferee) to hold to
____________(transferee) foe all my estate and interest in the land.
Dated this______________ day of___________20__________
Signed by transferee) __________________________________

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In the presence of ____________________________________
Signed by (transferee)___________________________________
In the presence of______________________________________
LAND
WEEK 2
WORKSHOP 1
LEASES, SUBLEASES AND TENANGES

Under A. 237(3) of the constitution, land in Uganda is owned in accordance
with the land tenure systems including leasehold (A.237(3) (d) ). This is also
provided for under section 2of the land act, cap 227.
Incidents of the tenure

Section 3(5) of the land act provides for the incidents of leasehold tenure as a
form of tenure:
a) Created either by contract or by operation of law.

b) The terms and conditions of which may be regulated by law to the
exclusion of any contractual agreement reached between the parties.
c) Under which one person, namely the landlord or lesser grants or is
deemed to have granted another person namely the tenant or lessee
exclusive possession of land usually but not necessarily for a period
defined, directly or indirectly by reference to a specific date of
commencement an a specific date of ending.
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d) Usually but not necessarily in return for a rent which may be for a capital
sum known as a premium or for both a rent and a premium but may be
in return for services or may be for free of any required return.
e) Under which both the landlord and the tenant may subject to the terms
and conditions of the lease and having due regard for the interests of
other party exercise such of the powers of freehold owner as are
appropriate and possible given the specific nature of a leasehold tenure.
Section 1 (5) defines leasehold tenure: means the holding of land for a
given period from a specified date of commencement on such terms and
conditions as may be agreed upon by the lesser and lessee, the incidents
of which are described in section 3 and includes a sublease.
Essential features of a lease

- Exclusive possession
- Certainty of duration
- Payment of rent (is not an essential feature of a lease)
- Certainty of subject matter
Exclusive possession
Section 3 (5) of the land act, the lease hold form of the tenure is a form of
tenure under which the landlord grants or is deemed to grant the tenant
exclusive possession of land. Thus, exclusive possession is the linch pin of a
lease and is what distinguishes a lease from a mere license.(Street v
Mountford [1985]2 ALLER 289 at 292)
Street v Mountford (1985) 2 ALLER 289: Street granted the appellant

mount ford the right to occupy certain furnished rooms, subject to termination
by 14days written notice and subject to other terms stipulated in the
agreement. The question raised by this appeal was whether the agreement
created a tenancy or a license lord temple man. The intention to create a
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tenancy was negative if the parties did not intend to enter into legal
relationships at all or where the relationship between parties was that of a
render and purchaser. These exceptional circumstances are not to be found in
the present case where there has been the lawful independent and voluntary
grant of exclusive possession. The grant of exclusive possession was the
determinant whether an occupant was license or a lease.
Tenancy v license
There can be no tenancy unless the occupier enjoys exclusive possession to
constitute a tenancy the occupier must be granted exclusive possession for a
fixed periodic term certain in consideration of a premium or periodic payment.
Emington V Emington [1952] ALLER 149
A person who is let into exclusive possession is prima fact so if the

circumstances negative any intention to create a tenancy. In the present case,
the only circumstances are that residential accommodation is offered and
accepted with exclusive possession for a term at a rent, the result is a tenancy.
In this case, a father allowed his son and daughter in law to reside in his
house, he promised them that if they paid off the outstanding mortgage debt
in part when the father died. In his will, he left the house to his widow. In an
action for unction one of the issues was whether the defendants were tenants
or licenses. The court held that though the defendants were granted exclusive
possession, they were mere licenses because the parties had no intention to
create a tenancy.
City council of Kampala V Mukiibi (1967) E.A 368
The plaintiffs let the suit property to the defendant subject to certain
covenants, inter alia that the defendant shall not sublet or part with possession
of the premises. Council sought to terminate the lease on the ground that the
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defendant in breach of tenancy agreement parted with possession by subletting
the premises to other people for their business. The issue was whether the
defendant had sublet or parted with possession.
The hairdressers were mere licensed and were not in exclusive parted with
possession of premises is the fact that he was always in charge of the key. It
was his practice always to open the premises n the morning and to admit the
hairdressers and at the close of the business in the evening after collecting his
own dues to lock up the premises and retain the key with him.
Covenants and conditions

Section 102 of the RTA provides for the covenants to be implied in every lease
against the lessee.
a) That he or she or they will pay the rent reserved the lease at the
times mentioned in the lease.
b) That he or she or they will keep and yield up the leased property in
good and tenantable repair. Damage from earthquake, storm and
tempest and reasonable wear and tear accepted.
Covenant of quiet possession

There is an implied covenant against the landlord that he or she and persons
claiming under him or her shall not interfere with the tenants use and
enjoyment of the demand premises.
Shah Champs shi Tejshi and others V The Attorney General of Kenya
[1959] E.A 650; The government representative granted a lease to the
plaintiffs/appellants. The plaintiffs claimed that under the lease they had an
implied right of access to a certain road. Later the government leased the
adjoin land to another person (Dominion properties ltd) the latter blocked the
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plaintiffs alleged access to the road. Whether the government breached the
covenant of quiet enjoyment?
Held: A common / mutual lesser is not liable for breach of covenant of quiet
enjoyment or for unlawful interferences with a tenants possession caused by
another tenant unless he or she permitted the act.
Non derogation form grant

At common law, its implied that where a person leases their land they
undertake not to do anything in relation to the leased premises that defeats the
main purpose for which was leased.
The covenant not to derogate from the grant does not apply where the tenant
uses the land for a special purpose or a purpose that not in contemplation of
both parties at the time of the lease is that the tenant cannot extend the
landlords obligation beyond contemplated by both parties.(Robinson V
Kilvett(1888)41 ch.
Aldin V Latimer clark Muirhead and co .ltd (1894)2 ch 437
Munro leased part of his land to the defendant for a term of years for carrying
on timber trade. At the date of the lease the part of the adjacent land retained
by munro was open space. Munro death both portions of land were sold to the
defendant in such a manner that they affected the free flow of air to the
plaintiffs’ timber drying sheds.
Held: Munro became subject to the obligation to abstain from doing anything
on his adjoining property which would certainly interfere with the carrying on
of that business n the ordinary course that obligation binds the present
defendants as assignees from subject to the existing lease.
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Certainty of duration
A grant of an uncertain term does not create a lease. At commence law, the
duration must be certain or ascertainable before lease takes effect otherwise it
is rid at law.
Laco V Chantler 1944], ALLER 305;
The plaintiff sublet a dwelling house to the defendant for the duration of the
war. The issue was whether letting for the duration of the war that creates a
valid lease
l. Green MR.; A term created by a lease hold tenancy must be expressed either
with certainty and specially reference to something which can at the time when
the lease takes effect be looked to as a certain ascertainment of what the term
is meant to be.
The duration of the lease must point out the period during which the
enjoyment of the premises is to be had: so the duration as well as the
commencement of the term must stated.
The certainty of a lease as to its continuance must be ascertainable neither by

express limitation of the parties at the time the lease is made or b reference to
some collateral act which may with equal certainty measure the continuance of
it otherwise it is avoided.
If the term be fixed by reference to some collateral matter, such matter must
either be itself certain or capable before the lease takes effect of being
rendered so.
Prudential Assurance co ltd V London Residency and 20 Ors [1992]3

ALLER 504
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Affirmed the rule that the maximum duration of the term must be certain
before the lease takes effects. H.O.C held that a lease granted until the
landlord requires the land for purposes of widening a certain word was void for
uncertainty.
DURATION OF A LEASE UNDER THE LAND ACT

In Uganda section 3(5) (c) of the Land act overrides the common law definition
and states that the duration of a lease is usually but not necessarily defined by
reference to a specific date of commencement and to a specific date of ending.
It is submitted that this phrase ‘usually but not necessarily’ indicates that
parliament intended to dispense with the common law requirement that the
beginning and ending of a lease must be certain.
Requirement for registration of a lease

 Section 54 RTA instruments do not become effectual until registered.
Section 49 RTA leases are to be registered in triplicate in the words”
lessors” part on one part and lessees part on the other part are to be
endorsed.
Effect of non-registration of a lease

However, in Souza Figuerido co ltd V Moorings Hotel ltd (1960) E.A 926,
court held that an unregistered lease agreement operates as a contract,
which is enforceable between the parties where the extended lessee
enters into possession pursuant to the agreement, a tenancy at will be
created.
Equity
Walsh V Londsdale (1851) 21 LHD.9
In equity an agreement to grant a lease which doesn’t comply with the legal
formalities may nonetheless create a lease recognized by equity.
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RELEVANCE OF DATE OF GRANT OF LEASE
Kaloli Kaggwa V Esteri Kityo (1992) HCB 130
(relevance of effective date of lease V retrospective)
Dr. Adeodanta Kekitinwa and 3 Others V Edmund Mbudo Wak CACA

3/1971; Beginning date is the date when parties agree. Effective date of lease
must be when lease was executed and it could not be executed retrospectively
affect individual rights which were enjoyed prior to the date of execution of
lease agreement. Therefore premise in dispute were the defendant property
held under customary tenure on plaintiffs land he could only be evicted by
compensation.
Livingstone Sewanyana V Martin Aliker SCCA 4/1990
A lease granted by a controlling authority is granted time when the application

for a lease is minuted as approved district land board.
Other differences between licenses and leases

A license is personal to the licensee. The right to sublet is only to the lessee
and not a licensee. Section 100 RTA the proprietor of any lease may sublet
subject to any of his or her lease affecting his right to do so.
Runda coffee estate ltd V Jagar Singh [1966] E.A 564.
A licensee died and the heir to the estate of the deceased claimed to be
entitled to rights of the licence for example the licence agreement provided
that upon termination of a license the licensee would be entitled to
compensation.
Errington V Etrington (1952) ALLER 149 pg 155 Lord DLJ said of persons
who by permission were occupying a building in respect of which they had
expended a sum of money “they were not tenants at will but licensees. They a
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mere personal privilege to remain there with no right to or sublet. They were
however not bare licensees, they were licensee contractual rights to remain as
such they have no right to law but only in equity and equitable rights now
prevail.The defendant (heir) continued wrongfully to occupy the building,
plaintiff were entitled to mean profits.
Livingstone Sewanyana V Martin Aliker SCCA 4/1990
If the application had been made or approved after the expiration of the
respondents’ original lease the consequence would have been different.
The conclusion that the suit property was not available to the commission to
lease to the appellant when his application was made and approved in 1982 on
account of respondent leasehold which was still subsisting at the same time in
respect of the same is supported by the case of Departed Asians property
Custodian Board V Benjamin Anyard C.A 8/1989.
A subsequent lease to another person is null and void if there is a subsisting

lease or lease in existence in another person name.
Christopher Sebuliba V A.G SCCA 13/1991
Section 15(1)(b) of the GPA(Government Proceedings Act) in any proceeding

against government for the recovery of land or other property the court shall
not make an order for the recovery of the land or delivery of property but may
in lieu thereof make an order declaring that the plaintiff is entitled as against
the government to the land of property to the possession thereof.
Trial judge awarded on eviction order but this court set it a side in favor of the
A.G and substituted judgment for the plaintiff as prayed against the A.G for the
declaration and order for eviction.
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Termination of a lease
1. By efflux ion of time, fixed term / duration of a lease expires or comes to
an end.
2. Termination by notice(notice upon default)
3. Termination by forfeiture or breach of terms of the agreement
4. Merger
5. Surrender
Termination by notice
A lease for a fixed period cannot be terminated by notice unless the power to
do so is expressly reserved in the lease agreement.
Note: R.E Meggary QC and Wade in the law of real property 3 rd Ed page
641, a yearly tenancy may be determined by notice and at such time as the
parties agree. In default of such agreement it can be determined by at least
half a year notice expiring at the end of a completed year of the tenant.
Rukanderna Kamuru V Kabale Town Council C.A No 10 of 1985
The respondent kabale town council allowed the appellant to occupy the
subject premises without a tenancy agreement. Between 1980 and 1983 the
appellant paid to the respondent rent on a yearly basis. After giving him one
month to quit the premises notice stated that the council wanted the premises
since payment of rent was on a yearly basis, a yearly tenancy was implied in
the absence of any other .since there was a tenancy it is my view that the
respondent could lawfully have determined the tenancy by giving him half a
years notice commencing at the end of 1983 which was not the case here.
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Tenancy was wrongfully terminated: respondent is ordered to refund the
amount of rent of which he never used premises aggravated damages for
illegal conviction.
Termination by surrender
If a tenant surrenders his lease to his immediate landlord, who accepts the
surrender, the lease merges in the landlord’s reversion and is extinguished.
Surrender must be to the immediate landlord; a transfer of the lease to a

superior landlord does not effect a surrender but operates merely as an
assignment of the lease.
If A leases land to B for 99 years and B sub leases to C for 21 years Cs lease
will be extinguished by surrender if he transfers it to A.
Surrender may be either express by surrender deed or by operation of law.

Tenant accepts a fresh lease from his immediate reversion even though the
new lease is for a shorter term than the old one or starts at a future date. If a
lease is varied by extending the term, this operates by the way of surrender
and re-grant.
Other variations for example an agreed increase of rent, do not necessarily

bring about a surrender re-grant Jenkin R. Lewis and Sons Ltd V Kerman[1971.
J Ch 477.
Termination by merger
Under a surrender, the landlord acquires the lease whereas merger is the
consequence of the tenant retain the lease and acquiring the reversion or of a
3rd party acquiring both lease and reversion.
Therefore the lease is absorbed by the reversion and destroyed.
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Forfeiture
This is the re-entry by the landlord for breach of covenant that entitles the
landlord to terminate the lease. It must be an unequivocal act.
Section 103(b) RTA in case of default of payment for a space of 30days,

although no legal or formal demand has been made for payment of that rent or
in case of any breach or non-observance of any of covenants expressed in the
lease or by law declared to be implied in the lease continuing for space of
30days the lesser or his /her transfers may re-enter upon and take possession
of leased property.
Kasaja V Registrar of titles HCMA 51/1993
The applicant was the registered proprietor of the suit property in 1956. He
leased the property for 49 years and the lease was registered under the RTA.
The lesser reserved a right of re-entry in the event of breach of any covenant
including non-payment of rent. In 1992 the applicant purported to enforce
forfeiture on the ground that rent was in arrears for a period of 20years and
failure to maintain building in a tenable repair.
Whether the mode of re-entry adopted by the a0pplicant determined the

leases.
Re-entry without undisturbed occupation of the demised premises by the

lesser is not sufficient to determine the lease. Mere giving notice of
intention by the lesser to re-enter coupled with a statement that the
lease has determined which had not in fact happened is not sufficient to
constitute re-entry in law.
Section 106 RTA. The registrar may take an entry or re-entry in the register
book or in sublease register and term for which the land was leased or
subleased shall upon that entry being made determine the lease.
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Lugogo coffee Curing Co. (U) ltd V Singo combined Coffee grower’s Ltd
CS No.554 of 1973
Held that a lease is a contract and breach of a term of contract rescinds the
contract. He there after held that the act of the; lessor of re-entry brought the
lease to an end. He therefore held that before the registrar makes a notice of
re-entry in the register book in accordance with section 106 RTA, the lessee
would seem to have an equitable title until the re-entry is made in the register
book, the lessee can confer good title on a person who becomes duly
registered without notice of the lessors re-entry.
Therefore if you do not register the re-entry, the lessee will or shall have
an interest in the land.
Note: re-entry (section 114 RTA) on non-payment is regarded in equity

merely as security for the rent and provided the lessor and other persons
interested can be put in the same position as before the lessee is entitled
to be relieved against the forfeiture on payment of the and any expenses
to which the lessor has been put (paragraph 1409 Halsbury laws of
England 3rd edition).
Erukana kuwe V Vader SCCA 21.2002.
Bringing another tenant on land where is existing or subsisting tenant, it

amounts to re-entry. It is a common ground that the respondent as a lessee
had been in breach of the lease agreement by failing to the suit properly in
good and tenantable repair and conditions and by subletting it without consent
of the appellant.
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Held: by subletting land to a complete stranger who had not been a tenant,
consequence were as for he had terminated the lease by the appellant putting
his tenant possession of the lease.
Relief from forfeiture s25 Judicature Act Cap 13

Section 25 (1) Where a lessor is proceeding, by action or otherwise, to
enforce a right of re-entry or forfeiture for non-payment of rent, the lessee, his
or her executors, administrators or assigns may, in the lessor’s action or in an
action brought by himself or herself, apply to the High Court for relief.
Section 25(2) The High Court may, under subsection (1)—

(a) grant any relief it considers fit on such terms as to costs, expenses,
damages, compensation, penalty or otherwise, including the granting of an
injunction to restrain any future non-payment of rent, as it thinks fit; or
(b) Refuse the relief sought as it thinks fit.
(3) Where relief is granted under this section, the lessee, his or her executors,
administrators or assigns shall hold the demised property according to the
terms of the lease without necessity of a new lease.
(4) The High Court may, after judgment in any action for a right of Re-entry or
forfeiture, grant relief from forfeiture on application made in that behalf within
six months from the date of the execution of judgment by the lessee, his or her
executor, administrator or assign on such terms and conditions as to payment
of rent and costs or otherwise as it may impose.
In the matter of Christopher Geoffrey Kiwanuka and Musisi and Anor
(1973) HCB 167.
Court has discretion to grant or refuse relief. If the landlord can be put in their
original position and there is no injustice then court may grant relief an
payment of rent due and the expenses by the tenant.
Francis Butangira V Namukasa (1992) K.L.R 176
Relief against forfeiture is only available for non-payment of rent and no other
covenant.
Kampala district land board V Narandas Rajaram Co (Africa) ltd CACA

32/2005
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Twinomujuni J.A noted that the lessee is given the relief from forfeiture for
non-payment of rent only not for breach of other covenants in a lease.
Gomba Mavines and contractors (ltd) V Kiwana MA 13/1999.
Courts have no Jurisdiction to grant relief from forfeiture under section 25 of

the Judicature Act where the application is made more than 6months after
delivering of judgment for re-entry.
Procedure
By ordinary plaint under 0.4r.1 CPR and 0.7 of the CPR. Or by motion on notice
with affidavit. Check counter
Relief from forfeiture Documents

IN THE HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
MISCELLANEOUS CAUSE OF 20 OF 2016
PREMIO MUSIMENTA APPLICANT
VERSUS
KAMPALA DISTRICT LAND BOARD RESPONDENT
NOTICE OF MOTION
(Under section 25(1) judicature act 0.52 of CPR 71 Section 98 CPR Cap 71)
TAKE NOTICE that this Honorable court shall be moved on the 03 rd of

December 2016 at 10:00 o’clock in the afternoon or soon therefore as counsel
for the applicant can be heard for orders that
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a. The applicant be granted relief against forfeiture for non-payment of rent
b. Costs be provided for
The grounds of the application are set forth in the affidavitt of premio
Musimenta attached here to but briefly.
1. That the applicant undertakes to pay the outstanding rent.
2. That the applicant undertakes to pay the landlord any costs incurred
and damages.
Dated at Kampala this 01st day of December 2016
………………………….
Counsel for applicant
GIVEN under my hand and seal of this court this 01st day of December 2016
…………………………
Registrar
Affidavit in support
(LAND DIVISION)
MISCELLANEOUS CAUSE NO 20 OF 2016
PREMIO MUSIMENTA APPLICANT
VERSUS
KAMPALA DISTRICT LAND BOARD RESPONDENT
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AFFIDANT IN SUPPORT
I Premio Musimenta do solemnly swear as follows,
1. That I am a male adult Ugandan of sound mind whose address of service

for purposes of this application will be firm H2 and Co Advocates,
P.O.BOX 7117 ,Kampala ,a lessee and I swear this affidavit in that
capacity
2. That on the 29th of November 2016, I was evicted by KCCA for non
payment of ground rent.
3. That I undertake to pay the outstanding ground rent and to compensate
the lessor for any cost and damages suffered.
4. That this affidavit is made in support of the application for relief against
forfeiture
5. That whatever I have started here in is true top the best of my
knowledge and relief
6. Sworn at Kampala this 01st day of December
……………….
Deponent
Before me
…………………………………
Commission for oaths
Drawn and filed by
Firm H2 and Co Advocates
P.O.BOX 7117
Kampala
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Lugogo coffee Curing Co. LTD V Singo combined coffee Growers ltd
The fact that the defendant company is a bad payer of rent does not amount to
a ground for refusing relief.
Courts will not grant relief from forfeiture where the land has already been re-
let to another tenant.
Kiwanuka Musisi V Segane [1973] E.A 561
The respondent leased the suit land to the applicant /lease subject to right to
re-enter and terminate the lease on breach of any covenant in the lease upon
alleged breach certain covenants including non-payment of rent, the re-enter
was registered in the register book. The respondent leased land to a 3 rd party
and the applicant sought to institute proceeding for relief from forfeiture
Held: the provision for re-entry on non-payment for rent regarded in

equity as merely a security for the landlord can be put in the same
position as before, can be granted relief against forfeiture on payment of
rent.
Court has discretion to grant or refuse the relief and wont if it entails as
injustice to the landlord for example where landlord has the premises.
Tenancy
A tenancy at will
This is implied when a person is in possession with knowledge of the owner.
Meggary page 644 – 646
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A tenancy at will arises whenever a tenant with the consent of the owner
occupies land as a tenant on terms that either party may determine the
tenancy anytime. It may be created expressly or by implication. A common
example is where a tenant whose lease has expired holds on with the
permission of the landlord before payment of rent on a periodic basis or a
purchase let into possession before completion of payment.
It is determined at will of either party. A tenancy at will is also determine when

either party does any act in consist with the continuance of the tenancy.
A tenant at will may be converted into a periodic tenancy
Tenancy at sufferance
A tenant at sufferance arises where a tenant having entered under a valid
tenancy holds over without the landlords assent or dissent. Such tenancy
differs from the former (tenancy at will) in that the original entry was lawful.
A tenancy at sufferance can only exist by operation of the la and not by

express grant for it assumes an absence of agreement between landlord and
tenant.
The tenant can be liable for a claim for use and occupation but not damages
for trespass. There cannot be a claim for rent as a service which depends upon
a proper tenure by consent.
The landlord may eject the tenant or sue for possession at any time and the
tenant will have no right to emblements. In reality, the tenant at sufferance is
in position of a squatter. He may be converted into a periodic tenancy.
Periodic tenancies
A tenant can be a yearly tenant, weekly or monthly tenant.
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 A yearly tenancy is one which continues from year to year indefinitely
until determined by proper notice notwithstanding the death of either
party or the assignment of his interest.
It is not affected by the rule against leases of uncertain maximum duration for
originally. It is treated as a grant of one year which if not determined at the
end of the year will automatically and without any fresh letting run for another
year and so on from the year similar rules apply to all periodic tenancies.
In essence, the law treats each yearly successive term when it takes effects as
part and parcel of the original term indefinite period.
The landlord has a right to terminate a periodic tenancy upon giving the tenant
proper notice. The general principal is that a weekly or other periodic tenancy
is determined by notice to it which in absence of special stipulation should be
given so as to expire at the end of the complete period of the tenancy and
should be equal in length to that period.
Notice to quit is a unilateral act determines a tenancy without the consent of

the opposite partly and as such must be strictly construed. A notice is therefore
bad if it does not expire at the proper time. Since the plaintiff had a quarterly
tenancy it was entitled to the 3months notice to quit expiring at the end of the
current period during which the notice was given.
The 14days notice was therefore invalid and in effect to terminate the tenancy
Adeodanta Kekitiriwa and 3 Ors V Edward Mbudo Wakida CACA 3/1997

(1999) KALR 633
The case of Commission of Lands V Sheikh Mohammed Bashir 1960 E.A

818, Equity leans against forfeiture where the lease is running and there is an
earnest intention of compliance with covenants.
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In the instant case , it is well established that when a lease for a definite term
has been reached when the lessee or tenant has no longer any legal right on
the property and is merely a trespasser.
Remedy lessor or controlling authority must not thereafter seek to enforce its
right in possession for it is automatic.
The question of notice would be superfluous.
Facts: The lease expired without due complain with building covenant, the
same reverts to the lessor. By the expiry date, the r4espondent had not
complied with the building covenant. A year after the expiry date the
respondent applied for extension of the lease. The respondents 5years term
had expire without any development on the plot.
Kanjee Naranjee Ltd V Tulsidas Dharamshi Ghadialy [1965] E.A 171
The landlord and tenant created a tenancy absence of express tenancy a lease
was subsequently executed premises later bought by the limited company.
Arrears of rent denial of landlord’s interests for a period prior to lease. Part
payment of arrears of rent covering period prior to lease.
Whether tenant is stopped from denying title of landlord.
Held: though the legal title was transferred to the app.co on May 5, 1958, the
legal possession of the property was vested in it as from the date of its
incorporation. The app co possession was therefore sufficient to enable it to
maintain an action for recovery of land.
Facts:
The landlord sold property to app co which was incorporated in 1955 and ion
consideration for transfer of property, on May 8, 1958 received shares in the
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aapp.co. In 1958, the whole shop was leased to the defendant for a term of
10years.
It was further held that the part payment of the amount claimed as rent by
appellants for a period prior to may 1958 and the promise to pay the balance
due constituted an acknowledgment of a tenancy for the entire period for
which rent was claimed by the appellants.
Popatal Hirji V Lahana and co (E.A) LTD [1960] E.A 437
Defendants were sub lessees of certain premises and had a tenancy agreement
of 1 year renewable annually at the tenant’s option. Premises were occupied by
another firm that was associated with the defendant. The proprietor of the
lease died and executors assigned the lease to plaintiffs who sought to increase
rent. The plaintiffs through their advocates wrote letters that sought to
terminate the lease.
Plaintiffs sued relying on estoppels and defendant pleaded that the agreement
purported to create a term exceeding 8 years and was sold because it was not
in statutory form.
Whether tenancy can be terminated by notice to quit. As there was no

suggestion that the option to renew was ever exercised after the relationship of
landlord and tenant had ceased agreement was not determined by notice to
quit.
Ravin Bint Mohamed V Abdee Shaher Ahmed
Plaintiffs were tenants and sublet the premises to the defendants. The
defendants executed the sublease and later bought the premises from the
original owner.
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Defendant remained in possession as a subtenant of the plaintiffs but later on
stopped paying rent to the plaintiffs.
Plaintiffs filed a suit for the rent in arrears and the defendant gave notice to
quit.
Held: since the plaintiffs had only a monthly tenancy terminable by a valid
notice to quit the claim for possession could be maintained.
On the expiry of the notice to quit the plaintiff would be entitled to a statutory
tenancy or the rights of a statutory tenant if they were in possession but
possession being with the defendant plaintiff had no right to recover possession
as statutory tenant.
Plaintiffs sublease to the defendant for a period of 3 years was invalid as it

purported to create an estate larger than the lessors interest.
Marko Matovu and 2 Ors V Mohammed Sserin and another [1979]HCB

174
App had applied for a lease from the Uganda land commission. An offer was
sent and they accepted and paid. On applying for the title there were other
applicants in respect of the same land and list of applicants for the land in the
area did not include the 1st respondent (they found that the 1st respondent who
claimed to have obtained a title in respect of same land had already surveyed it
for himself and started fencing it.
Held: a decision arrived at in breach of audi alternative parton rule like the
commissions decision in the instant case to offer a lease to the 1 st respondent
is VOID and of no consequence in the same way as a decision made without
jurisdiction is a NULLITY where aggnered by floating of principles of natural
justice apply for judicial renew.
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RTA empowers H.C to cancel a certificate of title procured by fraud or obtained
by breaching the cardinal principle of natural justice.
Souza Figueiredo and co ltd V George panogo [1959] E.A 756
The third respondent agreed to purchase from K.LTD a lease hold plot in
Kampala. The price was paid to assignment was duly executed but not
registered as required by section 51 RTA 3 rd respondent agreed to lease a
restaurant which had mean while been erected on the plot 3 rd respondent had
not yet been registered as proprietor the 3 rd respondent had assigned his
interest in the plot to 1st and 2nd respondent lessee did not reply the letter and
paid no rent and took no step which might constitute recognition that 1 st and
2nd respondents had hence forth become landlords lessees goods were
detrained for default payment of rent.
Held:
For distress for rent there has to be established a relationship of landlord and
tenant.
Since the 1st and 2nd respondent were not the lessees landlords they were not
entitled to detrain upon the premises occupied by the lessee and therefore the
levying of distress was unlawful.
Landlord cannot distress for rent where lease has been determined.
Landlord cannot sell good distained without leave of court.
Obong and Another V Municipal council of kisu (1971] E.A 91
Knokes VBarnard(1964) A.C 1129.
Exemplary damages for tort may only be awarded in two classes of cases,
where there is oppressive, arbitrary or unconstitutional action by the servants
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of the government and secondly where the defendants conduct was calculated
to proclaim him some benefit not necessarily financial at the expense of
plaintiff.
As regards the actual award the plaintiff must have suffered as a result of the
punishable behavior, the punishment imposed must not exceed what would be
likely to have been imposed in criminal proceedings if the conduct were
criminal.
H.D.L: exemplary damages are penal not consolatory as had sometimes been
suggested.
Aggravated damages: are compensatory in nature, it is well established that

when damages are at large under a court is making a general award. It may
take into account factors such as inline or arrogance on the part of the
defendant and this is regarded as increasing the injury suffered by the plaintiff
for example by causing him humiliation or distress. Damages enhanced on
account of such aggravation are regarded as still being essentially
compensatory in nature facts: App, were awarded special general and
exemplary damage against respondents in respect of forcible eviction of
appellants from their tenancy of an eating house.
Normal method of valuing a lease by taking difference between rental value

and contractual rent is inapplicable to a monthly tenancy.
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Erukana kuwe V Vader SCCA 2/2002
The app leased the suit property to the respondent for a period of 49years. The
property was undeveloped at the same time thereafter the respondent built a
residential house on it . the apps application of re-entry to be entered in the
register was turned down hence the suit.
Held: re-entry in the registry does not have effect on keeping the lease
subsisting. That the lease was terminated by the lessor’s re-entry.
Because of breach of some covenants by the respondent the lessor had lawfully
re-entered the land because the breach rendered the lease voidable at the
option of the lesser.
The lessor re-entered the premises by affectively renting it to another tenant
BRIEF FACTS
Premio Musimenta is desirous of purchasing the land comprised in leasehold

Register volume 212 folio 14 plot no 28. Kanjokya Street, Kampala which is
approximately 1-08 acres owned by professor Alexandria Rwomushana. He is
interested in purchasing the property purposely to use the premises as a
warehouse for chemicals to be imported from Japan for use in the manufacture
of radiant cement/. The premises are currently being occupied by Amos
Muguwa, who pays rents of shs 200000/= per month by annually, Ransom
Enterprises a dry cleaning firm whose tenancy expired in December 2013 and
has not paid any rent since then apart from the water and electricity bills of the
entire premises and fabulous Ndije a Congolese refugee who stays in the
premises exgratia with her 2 year old twin sons and is looked after by Yason
Mwalim7u the proprietors brother and care taker of the premises.
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ISSUES
1. What are the implications of all the entries on the certificate of title and
lease agreement
2. What are the steps ought to be taken prior to lawfully purchasing the
land.
3. What steps should Premio take in order to lawfully take possession of the
land from the various occupants or interest holders after purchasing the
land
4. What steps should be undertaken to enable him use the premises for the
intended purpose
5. Draft the necessary document
6. What risks are involved in using the premises without complying with
due diligences
7. What steps would premio take after getting registered as proprietor to
convert the leasehold interest into another interest tenure
8. What steps would premio take to prevent eviction for non payment of
ground rent
LAW APPLICABLE
1. The 1995 constitution of Uganda

2. The land act cap 227(as amended)
3. The registration of titles act cap 230
4. The judicature act cap 13
5. T6he stamps act cap 342
6. The land regulations 2004
7. Common law
8. Case law
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ISSUE ONE
IMPLICATIONS OF ALL THE ENTIRES ON THE LEASE AGREMENT

AND CERTIFICATE OF TITLE
1. Description of land
Leasehold register volume 212 folio 14 plot no 28 Kanjokya street

Kampala area approximately 108 acre.
This shows the nature of the interest, the location of the land and the
area it covers. 1ha = 2.47 acres
2. Term of the lease

From 14th September 1983 for 99years.
This shows the time for which the lease is going to run. The registrar did
not counter sign the change from 5 years to 99 years though this is not
fatal.
3. Easements
Enables one to identify whet6her there is an easemen5t on the land at
the time the title was made.
Part ii
4. Proprietorship (ownership)
This captures the history band status of ownership. Section 54 RTA the
instrument is only effectual on registration.
The name of Samuel Baingana is crossed out which means there is a
transfer to prof. Alexandria Rwomushana section 59 RTA provides that a
certificate of title is conclusive evidence of title
Therefore pro. Alexandria has title to the leasehold (section 54 RTA can
pass effectual interest.
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5. Encumbrances (date of reg. of the encumbrances inst.no)
Section 1 (h) RTA defines an incumbrances to include all prior estates,
interests, rights, claims and demands which can or may be had, maH2e
or set up in, to, upon or in respect of the land section 110 RTA ,evidence
that the sublease is duly registered.
There is an incumbrances of a sublease to Lonah Kajumba Kabanza
created on 29th April 1998. This means that it was created before prof.
Alexandria Rwomushana acquired the leasehold on 11th December
1998(section 48 RTA).
6. The lease agreement between city council of Kampala and Samuel
consideration -14000000/=
Yearly rent-shs 800000/= payable in one installment annually on the 1 st
day of January of every year.
7. Covenants
The obligations that the lessee has to do / follow observance of wh8ich
will cause the lease to be increased/ enlarged to 99years.
 User clause 2(e) for residential purposes.

8. Attestation: the agreement is attested to on behalf of the lessor, town
clerk mayor and on behalf of the lessee by a civil servant. Section 147
RTA provides that instruments signed by any person and attested by one
witness shall be held to be duly executed. Section 148 RTA, the
signature should be in Latin character.
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ISSUE TWO
STEPS TAKEN PRIOR TO PURCHASING THE LAND
Reg 2(2) of the Advocates Professional Regulations S1 267-2:
 An advocate shall exercise due diligence at all times when handling a

client’s matter.
Reg 12(2) of the Advocates Professional Regulations S1 267-2: an

advocate shall not advise a client to enter into a transaction which he knows a
reasonable advocate would not advise them to enter as not being in their best
interests.
5. Pay attention to the documentation

- Should examine the certificate of title in order to establish the
existence of the land and the names of the proprietor and the lease
agreement.
- Should carry out a search at the land registry under section 201 RTA,
section 201(1) RTA , only person may on payment of the fee for the
time being payable in that behalf inspect the 4register book during
the hours and upon the days of business.
Gibbs V Messar (1891) AC 249 court held that a search is to be carried

out at the land office upon application and payment of the prescribed
fees.
This is done by ordinary letter to the registrar of titles and payment of

the requisite fees, that is shs 10000(item 19 of the 22nd schedule of
the RTA)
6. Pay attention to the personality of the seller
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Get particulars of the seller that is the I.D whether he or she is a citizen
of Uganda. Passport or National ID can suffice
Sir John Bogere V Aussi Matovu CACA 7/1996. Okello J.A : Lands
are not vegetables that are bought from unknown sellers. Lands are not
very valuable properties and buyers are expected to make thorough
investigations not only of the land but also of the seller before purchase.
Uganda pasts and telecommunications V Abraham Kitumba 53/95,

purchasers of land must make inquiries of the person selling in possession of
the land and any other interests affecting the land.
7. Physical search on the land
Uganda Posts and Telecommunications v APKM Lutaaya SCCA

36/1995
 Purchasers of land must make inquiries of the person selling, in

possession of the land and any other interests affecting the land.
 Occupation of the suit land by the appellant to put the would-be
purchasers upon notice of claim addressee to the registered
owner. Investigate the title of the occupants
m) Survey the land: employ a survey to open the boundaries. S.2 of the
Survey act, Cap 212 provides that the Commissioner of Lands and
Surveys at any time may authorize the carrying out of any
topographical survey or of any other survey which in the survey is to be
carried out in any area, notice of the survey specifying the local limits
of the area affected shall be published in the Gazette before the survey
is undertaken. S. 149 of the RTA the registrars may require a physical
survey of the land.
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 This will enable him ascertain whether there are any people on the
land and what their particular interests are.
- Should inquire from the local authorities as to the vendors of the land
and whether they have a right to deal with the land, and how long
they have stayed on the land.
8. Pay attention to the physical planning authority/ environment authorities.
- The physical planning authority and NEMA
- Should get an environment impact assessment, this will help disclose
whether the intended use of the land is tenable. Section 34 physical
planning act 2010
- Ascertain the area development plans
- Utility bills, water and electricity to know the residence and prove
continuous possession. This reduces fraud.
- Sale agreement/ lease agreement
- Tenancy are occupying the land
Types of due diligences
- Description of land
- Identity of seller: 3 government issued I.D documents can be verified
easily.
Title due diligence
 Ascertain citizenship of the client to confirm eligibility to hold

land under the relevant tenure.
 Ascertain the client’s credit worthiness by obtaining the financial
service cards from the bank.
 Permission from guarantors from the first loan
 Establish that the land was with the physical planning approval.
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 Peruse the first land mortgage
- Survey due diligence(open boundaries)
- Environment due diligence
- Land use due diligence
- Water and utilities due diligence
- Road access
- Taxes and levies
- Additional documents and processes
- Authorities and consent
Marital status due dilegence
- Ascertain marital status of the person.
- Obtain from the client a statutory declaration regarding their marital
status.
- Search at the marriage registry after the person
- If married, get consent from spouse.
n) Check with NEMA to ascertain whether such land is put under use by
o) Consult a lawyer in clarifying and verifying the dimensions,
measurements etc on the land in question to be sure of what the client
is going to buy.
ISSUE THREE
STEPS TO LAWFULLY TAKE POSSESSIONOF THE LAND FROM THE

VARIOUS OCCUPANTS/ INTEREST HOLDERS
Termination of a periodic Tenancy
Amos Muguwa who pays rent of shs 200000/= per month and pays bi
annually.
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In Street V Mount ford [1985] 2 ALLER 287 Lord Temple man stated that a
tenancy arose whenever there was a grant of exclusive possession for a fixed
or periodic term at a stated rent.
According To Meggary And M.P Theropean: Bi Annual On The Law Of

Real Property 6th edition 1993 at 319 there are three broad categories of
tenancies.
The periodic tenancy where the landlord allows the tenant onto the land in
consideration of rent at fixed/ agreed period of time. The rent can be paid
annually weekly or monthly.
Amos Muguwa is a periodic tenant and he is entitled to notice of termination of

the tenancy/notice to quit and this should be equivalent to the term of
payment according to common law that is 6months notice.
Bweya steel works Ltd V NIC [1985] HCB 58
The general principle is that a periodic tenancy is determinable by notice

to quit which in absence of special stipulation should be given so as to
expire at the end of the complete period of the tenancy and should be
equal length to that period.
Termination of a Tenancy at will

Ransom Enterprises, the term expired in December 2013 but still on the land,
paying the water and electricity bills having entered upon land under a valid
tenancy, held over without the landlords
Assent or dissent. The original entry is lawful and therefore he differs from a
trespasser. He is staying on the land without the landlord’s consent.
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Ransom Enterprises should pay compensation for the use and occupation of
the land. This tenancy can be determined at any time; they are not
entitled to notice.
Kanjee Nananjee Ltd V Dharamshi Ghadially [1965] E.A 117;
Once the tenant is in possession he has to pay the rent.
Termination of a License
Fabulous Ndije; a Congolese refugee with her 2 years old twin sons and she
was allowed to stay in the premises ex-gratia.
A license is an authority to do a particular act, or series of acts upon another’s

land without possessing any estate there in. A license does not create an estate
in land but only makes ban act lawful which would otherwise be unlawful. It is
renewable at will
Errington V Errington (1952) 1 AllER.155, Lord denning held that a licensee

has a mere personal privilege to remain on the land with no right to assign or
sublet.
Runda Coffee Estates V Ujaga Singh (1966) E.A 564, the defendant, the
eldest son was occupying premises on his father had been allowed to live on
after helping on their building.
Held: A license was personal to the father and any equitable estoppel that
could arise was only in favour of the father and not the respondent.
Winter Gordon Theatre (London) Ltd V Millennium, production, it was

stated that the license might be terminated by the licensors on the expiration
of a reasonable notice opened duly communication to the licensees.
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ISSUE FOUR
VARIATION OF A LEASE
Under section 105 of the RTA, it is implied that in every transfer of a lease
made under this Act, there is a covenant with the transferor by the transferee
binding him/ her and his/her executors, administrators and transferee that
he/she they will pay the rent by the lease and perform and observe law
declared to be implied in the lease or grant and will indemnify and keep
harmless the transfer and all his representatives against all actions, suits,
claims and expenses in respect of non-payment of the rent or breach of any
covenant.
PROCEDURE
 He has to enter a new agreement with the lessor to vary the terms of
the lease agreement to enable him use the land for as a ware house for
chemicals to be imported from Japan for use in the manufacture of
cement.
 Item 22 of the 22nd schedule RTA. 10000/= for registration of a variation
deed.
 He also has to get permission from the physical planning authority.
Section 33(1) of the physical planning act, a person is not supposed to
carry out a development within the –planning area without obtaining
development permission from a physical planning committee.
 Section 34 Application for development permission should be in form
P.P.A 1 in the 6th schedule.
 Section 37- where an environment impact assessment is required
preliminary approval may be granted subject to obtaining on
environment impact assessment certificate in accordance with the
national environment act.
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 Section 35- non conformity to any conditions registered against the title
of the under section 19 of the national environment act section 19(1)
provides that a developer of a project described in the third schedule to
the act shall submit a project brief to the lead agency in the prescribed
form and giving the prescribed information.
 Section 19 (3)An impact assessment shall be undertaken by the
developer where the lead agency in consultation with the executive
director is of the view that the project may have an impact on the
environment or Is likely to have a significant impact on the
environment or
 Section 19 (4) an environment impact assessment shall be undertaken
by experts whose names and qualifications are
approved by the authority.
 Section 20 (1)where a project has been determined under section 19(1)
as requiring an Environment impact study, the developer shall after
completing the study make an environmental impact statement in the
prescribed form and in the prescribed manner.
 This is in line with section of the land act which provides that a person
who owns land shall manage and utilize the land in accordance with the
forests act, the mining act, the national environment act, the water
act, the Uganda wildlife act and any other law.
 After the requisite permission permission obtained, the variation deed
will be drafted and registered (section 54 RTA) fees: 10000 item 22 of
the 22nd schedule RTA.
ISSUE FIVE
VARIATION DEED
THE REPUBLIC OFUGANDA

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THE REGISTRATION OF TITLES ACT CAP 230
LEASEHOLD REGISTER
VOLUME 212 FOLIO 52
KNOWN AS PLOT MO
28, KANJOKYA KAMPALA
VARIATION OF LEASE
THIS VARIATION OF LEASE made this 1st day of December, 2016 KAMPALA
DISTRICT LAND BOARD.
Here in after referred to as lessor and having their address as Kampala city
Council authority P.O. Box Kampala.
PRO.ALEXANDRIA AND PREMIO MUSIMEMTA here in after referred to as the

lessee company firm H2 and Co. advocates P.O.BOX 7117, Kampala.
WHEREAS; Kampala city council authority former city council of Kampala did
on the 14th day of September 1983 lease Land situated at plot 28 kanjokya
street ,Kampala of lease register to Samuel Baigana for 99years commencing
on 14th September 2016 which lease was registered under instrument number
226531(here in after referred to)
The lease was transferred to pro. Alexandria of P.O.OX 2232 Kampala and
registered under instrument No 298365 on 11th December 1998.
The lesson and lessee have agreed to charge the lease from the
date of execution here of in consideration of the considerations and covenants
here after set.
NOW THIS VARIATION OF LEASE DEED WITNESSETH AS FOLLOWS

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That the lease registered on 14th day of September 1983 for the purpose of
constructing a residential house is here by varied to the purpose of
constructing a ware house commending on the date of the execution of this
variation deed.
That the lease shall pay to the landlord shs 800000 as premium.
That the rent reserved shall be 800000 per year payable in one installment on
the 1st day of January of each year.
That the rent shall be received and revised every 10 years from the date
of this deed to during it in time with the going rate of rents of properties in
similar locations on the date of the revision
That the parties are unable to agree on the rate of revision, the value shall be
set by the government value or any other qualified practicing licensed value
agreed by the parties and the costs therefore shall be one equally by the
parties.
IN WITNESS WHEREOF THE PARTIES HERETO have affixed their respective

signatures, the date, month and year first abovewritten.
Signed by the said (secretary and chairperson)
Kampala district land board
In presence of …………………………………………
Premio MUSIMENTA……………………………….
IN THE PRESENCE OF ………………………………….
Drawn and filed by
M\S Firm H2 and CO. Advocates
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P.O.BOX 7117
Kampala
How to register a variation lease.

1. The applicant must have or in his/her possession of a letter from the
controlling authority for variation of the lease, duplicate certificate of title
and two passports photographs. If the variation involves changes of land
use then form P.P.A is included.
2. The applicant presents the documents to the department of the
department of land administration for assessment of revised ground rent
and premium per annum and collects the documents after 3 working day
for confirmation of assessment.
3. The department of land administration forwards the documents to the
office of titles for drafting of the variation deeds.
4. The applicant collects the variation deed after 5 working and takes them
for payment of stamp duty and registration fees and execution by the
parties.
5. The applicant returns the embossed documents, dated, signed and
sealed by the chairperson and secretary of the controlling authority and
the owner. A photocopy of all documents is also submitted which is
stamped “received” and returned to the applicant.
6. The applicant checks after 10 working days to collect the completed
duplicate certificate of title.
Documents
- Letter from controlling authority for variation of lease
- Duplicate certificate of title
- Variation deed
- Set of passport photocopy
- General receipts of payment
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Fees paid
- Stamp duty -5000/= per copy

- Registration fees -20000
ISSUE SIX
RISKS INVOLVED IN ENTERING A LAND TRANSACTION WITHOUT

DUE DILIGENCE
The guiding principle in all transactions in land is ‘caveat emptor’ buyer
beware. It is the buyer to take all the requisite steps to verify the transaction
that he is about to enter and its viability so as to avoid the enormous risks
involved if the steps are not taken.
 Section 59 RTA, every certificate is conclusive evidence of title. However,

section 64 RTA provides that the estate or interest of a registered
proprietor is paramount and he holds the land /estates/interest in land
subject to such encumbrances as are notified in the folio of the register
book except in case of fraud.
Therefore if the purchaser does not carry out the due diligences, he or she
risks being attributed to fraud.
Black’s law dictionary 6th Ed page 660 defines fraud. “An intentional
perversion of truth for the purpose of inducing another in reliance upon it to
part with some valuable thing belonging to him or her to surrender a legal
right.
 Section 77 RTA any certificate of title, entry removal of encumbrances or

cancellation in the register book, procured or made by fraud shall be void
as against all parties or privies to the fraud.
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 Section 136 RTA, a person/purchaser who gets title from a registered
proprietor shall not be required to inquire or ascertain the circumstances
in or the consideration for which the proprietor was registered.
Sejjaka Nalima V Rebecca Musoke SCCA 12/1985 object of this section is

to save persons dealing with registered proprietors from the trouble and
expense of going behind the register to satisfy themselves of the validity and
expedite the press of transfer.
However, the purchaser is required to carry out due diligence to prevent

instances of fraud.
Hajji Sulaiman Lule V Zamu Nalumani C.S No. 558/196 it was held that a
certificate of title is conclusive evidence of ownership unless it can be shown
that the title was obtained by fraud or any other wrongful means.
Fredrick Zabwe V Orient Bank Ltd SCCA 4 12006 court held that a
purchaser who does not do due diligence before purchasing land is not a
bonafide purchaser for value without notice.
 The purchaser risks buying land that is not fit for the intended purpose
section 34 of the PPA and section 33 of the PPA prohibits a person from
carrying out a development in a planning area without obtaining
permission from the physical planning committee.
 Section 33(2) of the PPA provides that a person who contravenes sub
section (1) commits an offence and is liable on conviction to a fine not
exceeding 960000 or imprisonment not exceeding 2 years or both.
 Section 33(2) provides that any dealings in connection with any
development shall be null and void and the development shall be
discontinued.
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 The purchaser also risks purchasing the land from a non-existent seller
or someone who is fraudulent.
Sir John Bagaire V Ausi Matovu CACA 7/1996 Okello J.A “Lands are not
vegetables that are bought from unknown sellers. Lands are very valuable
properties and buyers are expected to make thorough investigations not only
of the land but also of the seller before purchase.
 The purchaser also risks not knowing the interests in the land that are
paramount to his interest or subject to which he holds the land.
Uganda posts and telecommunications V Lutaaya SCCA 36/1995,

Occupation of the suit land by the appellant would put the ‘would be’ purchaser
upon notice of claim of his interest to the registered owner. A purchaser ought
to make inquiries of the persons in possession of the land in issue, otherwise
the property is purchased subject to all the equities which the persons in
possession could enforce against the vendor.
 The purchaser risks being liable for the obligations of the previous owner.
Section 193 RTA provides that proprietors and transfers of any lease
shall have the same estates, rights, powers and remedies and be subject
to the same engagements, obligations and liabilities and can sue and be
sued in like manner as if he or she had been the original proprietor of the
land or original lessee.
 Entitle the landlord to terminate the lease as a breach of the user clause
is fundamental breach of the contract. If you do not get consent from the
lessor he may forfeit the lease; re-enter the land.
Haji Sulaiman V Kakembo(1990-91) KALR 54
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Failure to get the necessary consent where consent is required renders the
transaction void.
The consent does not take a prescribed form.
KCC v Mukubira (1988) E.A 49
Court held that subletting without prior consent of the lessor is a breach of a
condition which terminates the lease.
ISSUE SEVEN
COVERTING A LEASE ON FORMER PUBLIC LAND TO FREEHOLD

 A 237(5) of the 1995 constitution of Uganda provides that any lease
which was granted to a Ugandan citizen out of public land may be
converted into freehold in accordance with a law which shall be made by
parliament.
 This is operationalized in section 28 of the land act.
 Section 28(1) provides that any lease which is granted to a
Ugandan citizen out of former public land and was subsisting on
the coming into force of this act may be converted into freehold if
the board is satisfied with the laid out conditions.
The land in question was leased to Samuel Baigana on 4th January 1984 by the
City Council of Kampala for a period of 99years. Therefore this was out of
former public land and was subsisting before the coming into force of the land
act which came into force in 1998.
Conditions That Have To Be Complied With To Convert The Lease To

Freehold Are:
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a. That the lease is authentic and genuine
b. That there were no customary tenants on the land at the time of
acquisition of the lease
c. That if there were any customary tenants on the land at the time of
acquisition whose tenancy was disclosed those tenants were duly
compensated.
d. That all development conditions and covenants have been compiled with
e. That any other conditions imposed by law from time to time have been
complied with and
f. That the conversion shall be limited to one hundred hectares and that
any area in excess of one hundred hectares shall be converted only if the
board has verified it and is satisfied that it is desirable in the public
interest that it should be converted into freehold.
Regulation 14 of the land regulations 2004 provides for the form of an

application for conversion of lease hold out of former public land into freehold
which is form 5.
Procedure
1. The applicant must have in his/ her possession fully completed set of
form 5 and 19 in duplicate, a set of 3 authentic deed plans, duplicate
certificate of title, 3 passport photographs, receipts of payment and a
form letter requesting for a lease hold to free hold title signed by the
district land officer of the respective district where the land is located.
If the land was titled after the coming into force of the land act i.e. 2nd
July 1998, then a surrender deed/ agreement of the lease is required, it
is prepared by the secretary DLB to be executed by the DLB and the
applicant (registered proprietor)
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2. The applicant presents the full set of original documents and a photocopy
of the same to the department of land administration for checking. The
photocopy is stamped “received” and returned to the applicant.
3. The applicant checks with the department of land administration after 10
working days to confirm their approval or rejection and is given a letter
advising him/her on the fees to be paid.
4. Reg. 22(2) of the land regulations i.e. board shall hold a hearing into an
application for the conversion of a lease granted out of former public land
to freehold (a) where it appears that all the conditions of section 28(1)
have been met, the application shall be granted.
ISSUE EIGHT
Other remedies
Damages: Basher V Commissioner for Lands [1959] E.A 1013
Court noted that breach of a covenant gave a right to recover damages.
Remedies for a lessor

a) Action for Ejectment: Section 176(b) RTA states that no action of
ejectment shall lie or be sustained against the person registered as a
proprietor under this Act except in any case for a lessor against a lessee
in default.
b) Section 103(b) RTA : re-entry Kamanyire V Standard Bank (U) Ltd
(1977) HCB 82
c) Damages for breach of contract
d) Mesne profits (0.36)
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Where the lease has been determined and the tenant remains in
possession contain to landlords wishes one claims for mesne profits as
held in Kamanyire V Standard Bank (U) Ltd (1977) HCB
e) Injunction 0.41
f) Distress for rent
Waiver of breach of conditions and covenants

It may be express or implied. It will be implied if
a) The landlord is aware of acts or omission of the tenant giving rise to right
to forfeiture and landlord does some unequivocal act recognizing the
continuing existence of the lease both elements should be present to
constitute waiver.
(Meggarys manual of the law of real property 4th Ed.page 355)
Dinan Singh Kalsi V Commissioner of lands 1954 E.A 367
The appellant obtained a grant of land at Nairobi providing for erection of a

building within 2 years the plans of which were to be approved before the
building was constructed. No building had the plans been prepared or passed.
Comm. Of lands gave notice in the Gazette that the app. Had failed to comply
with the building condition and notice was given that the commissioner
intended within one month from service of notice to commence proceedings for
recovery of land and forfeiture. Despite the notice, the building plans were
approved on behalf of the commission where upon a contract was made by the
app for construction on the building and foundations were laid.
Held:
a) Since a question of waiver involved a substantial point of law and no

further evidence could have been adduced which would affect the
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decision thereon, it was expedient and in the interests of justice that the
appeal court should entertain the plea of waiver.
b) As a result of the breach of the building condition, the grant was voided
at the option of grant who must in order to take advantage of the
breach, do some unequivocal notified to the lessee indicating his
intention to avail himself of the option given to him, the commission
could have re-entered or served on the app a plaint claiming ejectment
which would have been sufficient election to determine the grant.
FOLLOW UP
I.A
Lorna is the one in possession of the land having subleased the land
Two categories of breaches
1. Previous breaches
2. Apparent breach
Breach an account of assigning the lease without consent
Change user without consent of the lessor
Whether KOLB had locus to terminate this lease on account of the fact that the
on the lease it is the city council of Kampala that is the lessor.
On the coming of the 1995 constitution the district Land Board was given
locus.
Statutory successor of city council of Kampala
Breach of covenants
The lease is rendered voidable

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- Requirement of consent was statutory before 1995 therefore breach
would render the lease void however on coming into force of the 1995
constitution they became voidable on breach ( consent clause)
- Breach of the user clause renders the lease void.
- Non-payment of rent entitles the lesser to cancel the lease.
- Would the cancellation be effective against the addressee
- The transfer to Rwomushana was in 1998 which implies that the right of
the lessor to avoid this lease arose at the time of transfer.
- The law recognizes Waiver of the right to forfeit by conduct of the parties
for example where there was default on the part of the lessee but the
lessor continues to receive rent, he will be estopped from enforcing the
right of forfeiture.
Estoppel is a rule of evidence and therefore the conduct should be proved.
- Change of user also occurred in 1998 this was done while the lessor was
aware and he continued to accept the rent therefore he was stopped
from enforcing the right of forfeiture.
- In our facts the non-payment was from 2002 and similarly the change of
user, however there is a continuing default of non payment of rent this is
the breach on which the lessor can take action.
What relief is available to Loma?
Relief from forfeiture, this right is vested in the lessee and the lessee is
uninterested.
What remedy is available to Lorna as sub-lessee
Section 112 RTA: section 112(2) RTA
The determination of the lease by forfeiture shall determine the sub-lease.

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Section 113 RTA
The sub lessee is equally bound by the covenants contained in the lease.
If the lease prohibits change of user so does the sublease.
- The lessor can forfeit the lease (sublease)

- The default of the user clause is by the sub lessee.
- Waiver that would preserve the right of a sub lessee would be that of the
sub lessor(Waiver of the right to forfeit)
Kanini V .....(1964) E.A 619
The finding that the sub lessee will be entitled to a right of forfeiture, there
should be estopped, that the sub lessor did not enforce his right to forfeiture
against the sub-lessee.
The lessee/sub lessor Waived his right to forfeiture.
Kampala District Land Board and Anor V National Housing and

construction corp.Sc civil Appeal No 2 of 2004.
The constitution abolished statutory leases A.283 of the constitution. The effect
of this provision is that the statutory leases granted to the city council by ULC
in 1970 were extinguistied on the coming into force of the constitution.
The fundamental question to be answered is what happened to the land

previously held by the city council as a controlling authority and those interests
granted or held under the extinguished statutory lease.
The district land boards became successors in title to controlling authorities or

urban authorities in respect of public land which had not been successors by
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operation of law because land was vested in them by law not by grant transfer
or registration under section 54(8) of the Land Act.
Aisha Najjemba V Esther Mpagi CACA No 14 of 2003.
The respondent and her late husband purchased an equitable interest on Mailo
land from one Kiwoma and took possession of the same Kiwoma passed away
and a one Namusisi applied for LOA of the estate and sold the land to the
respondents. The registration of the respondents was cancelled because the
instrument that was used to register the respondent and her husband was
found to belong to another transaction and the transfer forms could not be
ytrac3d. The respondent filed the application for vesting order.
Held: The transfer was cancelled not because of fraud and the respondents’
only alternative was to utilize the provisions of section 167 RTA to seek a
vesting order, the vendor having passed away at the time of cancellation. The
vendor had sold the property and recovered the whole of the purchase price
and the purchase was in possession with the full knowledge and consent of the
vendor. The vendor was dead and no representative was available to sign fresh
transfer forms.
Saku V Seventh Day Adventist Church Association of Uganda SCCA No 8

of 1993
In 1984 the appellant bought Kibanja from a one Nandaula and he started
constructing residential houses on it. In 1987 the land was sold to the
respondent by the mailo owner and obtained a registered title and promised to
pay the appellant compensation for his developments. There was a
disagreement about the amount amend the respondent fended off the land.
Held: The appellant bought an existing Kibanja or customary tenure from
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Nandaula who was occupying land and it cannot be said that the appellant’s
occupation was creation of a new customary tenure. He acquire it by transfer
Nandaula had to give notice of not less than 3months to the prescribed
authority before transferring the land to the appellant according to section 4(1)
Land Reform decree and there was no evidence that she did so. The appellant
did not acquire the land lawfully.
The Executors of the Estate of the Late Tebajjukira and another Shalita
civil Appeal No 2/88
Held: In view of provisions of section 184 RTA a lessee has no right to bring
action for ejectment or recovery of land against the lessor since only the lessor
is permitted to sue the lessee who has defaulted in complying with the terms
of the lease.
Waiver of forfeiture
Control Estates V Waolgar [1972]1WLR 1048
Court noted that to constitute a Waiver of forfeiture it was sufficient if there

was an unequivocal act done by the landlord which recognized the existence of
the lease after knowledge of the ground of forfeiture. Examples Acceptance of
rent
Diwan Singh V The commissioner of Land [1958] E.A 3G.
Held: As a result of the breach of building condition the granter could do some
unequivocal act notified to the lessee indicating his intention to avail himself of
the option given to him that is to say the commissioner could have re-entered
or served on the appellant a plaint claiming ejectment but before re-entry the
agent of the commissioner so acted within knowledge that there had been no
compliance with the building condition this amount to an unequivocal act from
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which assuming the commissioner had power to Waive a forfeiture an intention
to Waive the forfeiture would be presumed.
Chat Rah V Shan cedar Mart [1967] E.A 93
1. Court stated that it has always been held that acceptance of rent after
notice Waives the forfeiture the reason being that 8incase of a forfeiture
the landlord has an option of saying whether or not he will treat the
breach of a covenant as forfeiture.
2. The lease is not void but voidable and if the landlord accepts rent after
the notice of a forfeiture it has always been held that he is thereby
acknowledging or recognizes that the lease as continuing.
Where the covenant is a continuing one then breach will be from day to day
and receipt of rent will not be accepted as a Waiver of forfeiture.
Variety Timber V Musa
Any breach which may result in forfeiture is a substantial breach. Covenant

was a continuing covenant and was broken from day to day as long as the
prohibited trade was clamed on the acceptance of rent was not Waiver of
forfeiture.
Non-payment of stamp duty in conveyance
Yokoyada Kaggwa V Mary Kiwanuka (1979) HCB 23: Odoki A.J stated that
any instrument which stamp duty her been cleared. However such un stamped
instrument can be rendered in addition to any penalty that may be prescribed.
Subleasing
Provided for under section 109 RTA 10th schedule
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NB:
1. Should not be greater that the original lease otherwise the demise is void
because the lessee would be granting more that he holds.
2. Lessee cannot also give a sublease for the same term as his lease as this
would be as good as a lease. He should give a sublease atleast a day less
than his lease.
Ravin Bint Mohamed V Abdoo Shiaha AHMED [1957] E.A 782
Provisions of the lease apply equally to sublease with the necessary

modifications
Section 112 RTA
Section 113 covenants to be implied in the sublease.
Procedure for subleasing
- Search the register section 201 RTA
- Do a physical search of the land
- Lessee gets the lessors consent
- Parties execute an agreement
- Should be assigned and attested to section 147 RTA
- Fill in the form in 10th schedule RTA
- Pay fees and stamp duty
- Register the sublease section 110 and 111 RTA
- Entered as an incumbrance on the title
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Forum Registrar of titles
Docs
- -Agreement to sublease
- Sublease 10th schedule RTA
Fees
- 22nd schedule RTA item 3 __10000/=
Item 19__10000/=
LICENSES
This is permission from the occupier of the land to another person to perform
an act on the formers land which in absence of such permission amount to an
illegality.
Meggary and Wade, page 351: permission granted by an owner to another

person to perform an act on the formers land which would in absence of sum
permission amount to an illegality.
The owner /occupier retain the possession and proprietorship of the land.
Kampala city council V Mukibi (1967) E.A 368. The existence of a license is
a question of fact and not form i.e. it is determined by looking at the
circumstances and not the form of the agreement between the parties.
Characteristics of licenses
a) No exclusive possession
Errington V Errington [1952] ALLER 149
b) It is personal to the licensee
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Runda coffee Estate Ltd V Jagar Singh [1966] E.A 564
c) No need for certainty of period / duration
Types of licenses
a) Bare license
b) License coupled with an interest
c) License for value
Bare license
Is one which is not accompanied by any consideration. It is gratuitous
permission from the occupier of the land to another person to perform an act
for the formers land which would in the absence of such permission amount to
an illegality it is not assignable.
It can be revoked at any time with or with notice upon revocation; licensor
does not access liability for damages.
License by estoppels
Meggary: it applies here a land owner stands by and allows a person to spend
money improving his own or the land owners land in the expectation that some
covenant will not be revoked.
Inwards V Baker [1965] 2 Q.B 29 where a father encourages his son to build
himself a house on the fathers land ,the court refused to allow the trustier of
the fathers will to dispossess the son.
License coupled with interest

Permission is accompanied with some interest in the land, either in the land
itself or some other chatter thereon. For example hunt on a man’s land and
take own a deer killed)
 At common law it is irrevocable
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 At common law it is assignable
 Interest in question must have been created by deed or by
prescription(long enjoyment)
License for value
Is not assignable can be revoked.
A license for value resembled a bare license in that it could be revoked at any
time even if it had been granted for a fixed period which had not expired.
Wood V Lead bitter (1845) 13 M.W 838
Remedy licensee would recover damages for breach of contract for premature
revocation.
Sue for breach of contract (contracts act) for court to enforce damages,
general and special damages and costs for the suit.
Tenancy agreement
TENANCY AGREEMENT
AN AGREEMENT made on this 02nd day of December 2016
PREMIO MUSIMENTA BETWEEN AMOS MUGUWA of P.O. Box 1223, Kampala

Uganda (here in after called” the landlord” which expression shall where the
context so admits include his assignees and successors in title) of the one part.
RANSOM ENTERPRISES AND of P.O.Box 1717, Kampala Uganda (here in after

called: the tenant” which expression shall where the context so admits include
his successors in title and / or assignees on the part.
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WHEREAS the landlord is the proprietor of the above property situate at plot 28
LRV volume 212 folio 14 kanjokya street Kampala here in after referred to as
the “demised premises”
AND WHEREAS the landlord is desirous of letting out and the tenant is ready
and willing to take on rent the demised premises here in above described upon
terms and conditions there in.
NOW THIS DEED WITNESSES AND IT IS HERE BY MUTUAL AGREED as follows
1. IN CONSIDERATION of the rent here by reserved and on the

covenants and conditions here in after contained subject to other
covenants and powers implied under the PTA Cap 230 and other
enactments made there under or in respect there of (unless modified
or negative) the landlord here by lets and the tenant here by takes on
to rent the premises afore mentioned the general particulars of which
are specified here in above to hold the same into the tenant from the
02nd day of December 2016 for an initial period of 4months with an
option to renew the tenancy for a further term by mutual
understanding of both parties here to determinable nevertheless as
here in after provided and yielding and paying during the said term
the sum of shs.2000000/= per month, the 1st installment payable 4
months in advance, at the execution of the agreement and here after
2 months in advance.
2. THE TENANT HEREBY COVENANTS WITH THE LANDLORD
a. To pay the rent hereby reserved at all times and in the manner
afore said.
b. To pay and discharge all future, water rates, electricity charges
and other related charges during the subsistence of this tenancy.
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c. To utilize the premises here by vested for the business of a retail
shop and hardware.
d. To keep the interior of the demised premises, window and other
fixtures in a good decorative and tenantable repair as they are now
(normal wear and fear expected) and to be responsible.
e. To make good any damages occasioned to the demised premises.
f. Not to assign, sublet, or part with possession of the premises.
3. THE LANDLORD HEREBY COVENANTS WIRTH THE TENANT AS
FOLLOWS.
a. To pay and discharge existing and future rates, taxes and dues.
b. To keep the exterior of the demised premises and structure of the
demised premises in good and tenable repair order and conditions.
4. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED
THAT:
a. If the rent is not paid for 21days after it is due the landlord may at
any time thereafter enter open the demised premises and
repossess the same.
b. Any party desirous of terminating this agreement shall give the
other party 2 months’ notice in writing.
c. Any breach of this agreement shall entitle the innocent party to
terminate the agreement.
d. The landlord shall bear and pay advocates fees .IN WITNESS
THEREOF, the landlord and tenant here to have put them
respective signatures on the date herein above mentioned.
Signed by the said
……………………..
PREMIO MUSIMENTA
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Landlord
In the presence of
………………………………
WITNESS
Signed by the said
RANSOM ENTERPRISES
……………….
TENANT
In the presence of
………………
WITNESS
DRAWN BY
H2 & Co Advocates
P.O. Box 7117
Kampala
Lease Agreement (8th schedule RTA)

IN THEN MATTER OF THE REGISTRATION OF
TITLES ACT CAP 230
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LEASE AGREEMENT
This LEASE AGREEMENT is made this day of 2016.
BETWEEN
KAMPALA DISTRICT LAND BOARD of P.O.BOX 7756,
Kampala Uganda (here in after called the “lessor” which expression shall where
the context so admits include its successors in title and assignees) of the other
part.
AND
PREMIO MUSIMENTA of P.O.BOX 1232 Kampala, Uganda (here in after called

the “lessee” which expression shall where the context so admits include his
successors in title and assignees) of the other part.
WHEREAS:
1. The lessor is the holder of a certificate of title of ownership of land

located at measuring acres bordered by on the upper side and
2. The lessor hereby demises unto the lessee all that piece of land
described here in above NOW THIS AGREEMENT WITNESSETH AND IT
IS HEREBY MUTUALLY AGREED as here under.
a. IN CONSIDERATION of the rent and the lessors covenants here in
after reserved and contained the lessor here by demises unto the
lessee the land described here in above ,here in after called the
“Demised premises”
TO HOLD the same unto the lessee for a term of 99 years from the
day of 20 at clear annual rent of ug shs. Only payable by 2 equal half
yearly payments in advance on the 1st day of January and 1st day of
July in every year
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2. THE LESSEE HERE BY JOINTLY AND SEVERALLY COVENANTS
With the lessor as follows namely:
a. To observe and perform all conditions and covenants implied by law in

the lease or otherwise here in contained or referred to
b. Not without the prior written consent of the lesser to erect any engine or
machinery on the said land or in the said buildings save and except such
engine or machinery as shall be necessary to or consistent with the user
of the said land or buildings as stipulated here in
c. To pay or cause to be paid and discharge all electricity and water
charges including telephone charges in respect of the demised premises
during the term here by created.
d. At all times to keep the demised and all additions there to in a good and
tenantable repair and conditions as they are now and upon the expiration
of the term to deliver up the demised premises together with all the
lessor fixtures in good repair and condition as afore said.
e. To use the demised premises for the purpose of a ware house for radiant
cement.
f. Not to assign, sublet, or part with the possession of the demised land or
any oath thereof without the written consent of the lessor which consent
shall not be unreasonably withheld.
PROVIDED AS ALWAYS
That if rent here by reserved or any part thereof shall be unpaid for 21days
after becoming payable whether legally demanded or not or if any covenant on
the lessees part hereby contained shall not be performed or observed.
3. In the event of either party here to being desirous to terminate the said
term here by created, it shall give the other 3 months’ notice in writing of such
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desires then immediately on the expiration of such 3months, the lease and
everything herein contained shall cease and without prejudice to the rights and
remedies of either party against the other in respect of any antecedents claim
or breach of covenant.
4. In the event of any dispute as to the interpretation or meaning of this lease

or any part, thereof any such dispute shall be determined by arbitration in
accordance with provisions of the arbitration and conciliation act and statutory
modifications thereto for the same time being in force.
5. Any notice under this lease shall be in writing. Any notice to the lessee shall
be sufficiently served or left addressed to him on the demised premises or sent
to it by post and notice to lessor shall be sufficiently served if delivered to it or
sent to it at its known address in Uganda.
6. All costs, charges and expenses of and concerning the preparation,

completion and registration of these including stamp duties, advocates fees
shall be borne and be paid by lessee.
IN WITNESS WHEREOF the parties hereto have hereunto set forth their
respective hands on date herein above
Signed by the said
KAMPALA DISTRICT LAND BOARD
....................................
LESSOR
In the presence
.................................
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WITNESS
Signed by the said
PREMIO MUSIMENTA
...............................
LESSEE
In the presence of
...........................
WITNESS
WORKSHOP 2
BRIEF FACTS
A. Semu Sebidde and Deo Nswazamugole are registered owners of the land
comprised in Busiro Block 266 plot 33, kungu as tenants in common . In
February, Deo Nswazamugole passed away and Semu has secured the
transaction. He is in possession of the certificate of title and entire land.
B. Didas Orojo is the registered proprietor of land comprised FRV 118 folio 22
Plot 13 Hesketh bell road, Luzira on which he has constructed a block of six
apartments. His immediate neighbor Waller Kisuule has a very large compound
and he attempted to talk to him into purchasing a strip of his compound but he
is trying to avoid him.
C. Nicholas Siita has been occupying land at Kiyana since 1947 after the death
of his father. The land is on two certificates of title in the names of Bishop
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Mason Kiwalabye. He wishes to obtain a registered interest in respect of the
land he occupies. He has been growing coffee and doing any available casual
work.
d. Allah Ofwono purchased land comprised in LRV 240 folio 12 plot 12 block
220 Bukoto from Mako Gido and paid the purchase price in full and received
the certificate of title but before Mako had given her a transfer deed to enable
her cause a transfer into her name. Mako travelled to china and was arrested
for being in possession of a prohibited substance and serving life sentence in
Beijing prison.
E. Crystal Keinamura kept her certificate of title with uncle Fabian Mwebasa,
his house caught fire and the contents were completely destroyed. She wants
to lease the property for 20years to plan Uganda and is desperate to replace
her certificate of titles.
ISSUES
A. What is the viability of the transaction that Semu intends to undertake and
what steps ought to be undertaken to lawfully conclude the transaction?
B. What are Didas options in the circumstances and the relevant documents to
enable him obtain the road?
C. What are the conditions that Siita has to satisfy to achieve the objective and
what steps would be taken to achieve the objective.
D. What are Ms Ofwono’s interests and rights in the land and what steps would
be taken to render the necessary services.
e. What steps would crystal take to effect the replacement of her certificate of
title and the extent to which the time frame of 10 days can be complied with
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LAW APPLICABLE
1. The 1995 constitution of Uganda
2. The land act cap 227(as amended)
3. The registration of titles act cap 230
4. The land regulations of 2004
5. The access to roads act cap 350
6. The civil procedure rules section 1.71-1
Co-ownership of land
Co-ownership of land is where two or more persons concurrently own interest
in land. (Mugambwa principles of land law in Uganda page 145).
Co-ownership may be by way of joint tenancy or by tenancy in common.
 A.26 of the constitution gives connotations for the joint

tenancy/ownership by guaranteeing ownership of property by all
Ugandans individually or in association with others.
 Section 56 of the RTA cap 230, the legal presumption as to the joint
tenancy is stated as follows: two or more persons who are registered as
joint proprietors of land shall be deemed to be joint tenants and in all
cases where two or more persons are entitled tenants in common to
undivided shares or in any land those persons shall in the absence of any
evidence to the contrary be presumed to hold that land in equal shares
JOINT TENANTS
This is where two or more persons together as a group own the entire interest
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in the property. Co-owners in joint tenancy do not have distinct shares in the
land. It has two essential features which distinguish it from a tenancy in
common: presence of the four utilities and the right of survivorship. Unless
these two features exist, there cannot be joint tenancy
A.G.Securities V Vaughan[1988] 3 ALLER 1058, the appellant granted the

right to occupy a furnished four bed roomed flat to four individuals flat shares
under separate short term agreements which were made at different times and
on different terms. Each agreement provided for a different monthly rent and
provided forth that each occupant had the right to use the flat in common with
others. When an occupant left, a new occupant was mutually agreed by the
appellant and the remaining occupants in 1985, the appellant served notices to
quit on the four occupants who applied to the rent officer to have a fair rent
registered for the flat but the basis that they were tenants of the flat but the
appellant obtained a declaration that they were merely licensees amend not
tenants.
Held: the agreement entered into by the appellant with the four occupants
whereby each occupant had exclusive possession of one bedroom and shared
the reminder of the accommodation did not have the effect of creating a
collective joint tenancy among the occupants of the flat since the agreement
were independent of one another, commenced on different dates, covered
different periods and provided for different payments for that occupation.
1. The four unities
For a joint tenancy to exist four essential requirements must be satisfied and at
common; law, they are called four unities. These unities must exist at all times,
if any of them is missing or no longer exists, and then there can no longer be a
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joint tenancy
Unity of possession
This means that each of the co-owners is entitled to possession of any part of
the land. Each co-owner is entitled to an undivided possession of the whole of
the co-owned land and none holds any part separately to the exclusion of the
other co-owners.
Bull V Bull [1955] 1 QB 234: the plaintiff and defendant purchased dwelling
house but the plaintiff (son) provided the greater part of the purchase money
and the conveyance was made out of his name. Later the plaintiff gave the
defendant (his mother) notice to quit. The mother refused to live and he
brought the proceedings.
Lord Denning MR, Each of the tenants is entitled in equity to an undivided

share in the house, the share of each being in proportion to his or her
respective contribution. The rights of the legal owners in common each of them
is entitled to the possession of the land and to the use and enjoyment of it in a
proper manner.
"when there are two equitable tenants in common, until the place is sold, each
of them is entitled concurrently with the other to the possession of the land
and to use and enjoyment of it in a proper manner and that neither of them is
entitled to turn out the other.
Unity of interest
This means that the interest of each joint tenant must be identical in nature
and duration.
Unity of time
This means that the interest of each joint owner must rest at the same time.
For example if A and B together purchase land and the land is converged to
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them there is unity of time because the title rests in them at the same time
Unity of title
This means that the co-owner must derive from the same title/act/document.
if they acquire through a will it should be the same will.
A.G Securities V Vaughan court held that there was no unity of title because
each of the flat sharers commenced on a different date and each commenced
his or her occupation of the flat under a different document.
The right of survivorship (jus accrescendi)

This is the second essential feature of joint tenancy. Joint tenants do not have
distinct shares in the co-owned land they own the whole as a group. Therefore
upon the death of one joint tenant his/her interest in the land is extinguished
and does not form part of his/her estate.
Wight V Gibbons (1949) 78 CLR 313
For example if a husband and wife own their matrimonial home in joint
tenancy, whoever survives the other automatically becomes the sole owner of
the house.
Where joint tenants die in common calamity in circumstances which renders it

impossible to determine who survived the other, the doctrine of survivorship
does not apply.
Wilcox V Mcleroth (1933) KLR 82, a husband and wife executed identical
wills each pointing the other sole heir and executor of my estate and affects.
They both drowned in a lake in circumstance in which it was not known who
survived the other. It was held that according to the common law the estate of
each of the deceased must be administered as in intestacy it being presumed
that they both died at the same time.
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Therefore, their respective heirs inherit the lands of the deceased owned the
land in tenancy in common.
Administrator general of Zanzibar V Khalfan Bin Ali Mohamed and Ors

[1963] E.A 230, the plaintiff took out summons to determine whether a son
has survived his father. It was a common ground that both of them died in
common calamity when their house was attacked by a mob. The father was
regarded as an old man and blind while his son was 14 years old.
Held: the massacre was a common calamity in which the father and son did
not die simultaneously, but court could not draw any inference that an elderly
blind man would struggle against death longer than a boy of 14 years or vice
versa and it was impossible to say which survived the other.
Termination of joint tenancy

Conversion into sole ownership
By virtue of the doctrine of survivorship, when one or more of the joint tenants
dies, the survivor becomes the sole owner of the property. He/she can opt to
be registered as the sole proprietor of the land by virtue of section 192 RTA
Cap 230.
Severance
This occurs when a joint tenancy is converted into a tenancy in common. since
all joint tenants have a potential share in the property they could sever the
joint tenancy in their life time.
Recaines (1987) WLR 546, severance cannot be affected by will. A will takes
effect after the death of the testator.
Sir William page. Wood VC in his celebrated statement in Williams V

Hensman(1861) JRH 546 declared that there are three ways of severance of
a joint tenancy: unilateral action, mutual agreement and course of dealing of
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the co-owners.
Unilateral severances
Occurs when the co-owner indulges in an act that destroys one of the four
unities for example where one of the co-owners transfers his/her interest in the
co-owned property to another.
The severance will be effective when the transferee gets registered under the
RTA.
Mutual agreement
The RTA, they can agree verbally or otherwise to several their interest. In this
case they hold the property as tenants in common in equal shares.
Course of dealing
Severance by cause of dealing occurs where there are circumstances that do
not involve any agreement but where it can be inferred that the parties have
formed a "common intention" to hold their property as tenants in common. In
short where the conduct of the joint tenants towards each other reveals a
mutual understanding that the joint tenancy be severed.
Partition
This is physical division of land amongst the co-owners. They may apply to
court to have the land divided. When a court grants a partition action for joint
tenants with rights of survivorship, the property is either physically broken into
parts and each owner is given a part of equal value or the property is sold and
the proceeds are distributed equally between the co-owners.
TENANCY IN COMMON
This is where co-owners hold undivided shares in the property but the share of
each is distinct and therefore known. Since these shares are not divided on
ground but on paper, tenants in common are all entitled to possession at the
same time, and therefore the unity of possession must exist.
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The common law position on formation of tenancies in common is exposed in
the case of Robertson V Fraser(1871) 6 ch.App. 696.
In this case it was said that where one of the four unities is missing or where
the grant contains "words of severance" indicating the grantors intention that
each grantee is entitled to a distinct share in the property of a joint tenancy is
discharged.
In short anything which in the slightest degree indicates an intention to divide

the property must be held to abrogate the idea of a joint tenancy and create a
tenancy in common.
At equity, a tenancy in common is presumed in the following circumstances
A. where the property constituted partnership assets
B. where property was purchased with funds contributed in unequal shares
C. where the property was held as security for a loan advanced by the joint
tenant
Robertson V Preston (1858) held to the affect that equity’s presumption of a

tenancy in common might be rebutted by evidence that both parties intended
to hold the beneficial interest as joint tenants.
Re Murram Murtor 18 KRL 65, the presumption is discharged either where

one of the four unities is missing or where the grant contains words of
severance words that indicate the grantors intention that each grantee should
take a separate and distinct share in property.
A testator granted his state to a trustee to apply for the benefit of G and J. The
issue was whether G and J were to hold the estate as joint tenants or tenants
in common. It was held that where property is given to several persons
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concurrently, Prima Facie they take as joint tenants. In this case, since there
was nothing to suggest a tenancy in common, it was held that the testator
intended G and J to hold in joint tenancy.
The two characteristics of tenants in common:

 There is no right of survivorship: East African General Insurance Co V
Ndende and 5 0rs (1979)HCB 225 Ntagaba J held that this is a type of
tenancy where each tenant in common had a fixed share in the land the
doctrine of survivorship does not apply.
Malayan Credit Ltd V Jack Chia Moit Ltd [1986] 1 ALLER 711 held that
where two or more people acquire land for purposes of commercial
undertaking/ joint venture, the presumption are a tenancy in common.
Termination of a tenancy in common and joint tenancy

1. Sole ownership
2. Release
3. Alienation by a joint owner
4. Sale
The Registration of Titles Act
 Section 57 RTA allows for joint tenants to hold land upon a transfer
without the right of survivorship by endorsing the words "no
survivorship" on the transfer or lease.
In practice where one joint tenant dies and there remains one surviving joint
tenant, he must present to the registrar of titles a death certificate of the
deceased joint tenant and apply formally in writing for his name to be entered
on the certificate of title as sole owner.
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Steps that should be taken by Semu
- Look for the administrators/ executors of Deo’s estates
-Negotiate with them/him to sell the land to the buyer that he had secured and
share the proceeds.
- Section 134 of the RTA Cap 230 has the name of the deceased crossed out
from the title
- The administrators and Semu transfer thereto the prospective buyer by

signing the transfer forms.
ACCESS TO ROADS
This is governed by the Access to roads Act Cap 350 and it is applicable in
situations where one has no access to the main high way and there is a plot of
land between his piece of land and the highway.
 The person in need of the road of access is supposed to under section 2

of the Act ask his neighbor for access upon provision of compensation.
 If the neighbor refuses he or she may apply to the land tribunal by way
of use of the form specified in the schedule to the Act accompanied by a
sketch or plan showing the course and direction of the proposed road of
access and the present means of access if any to the highway.
 An order made under section 4 of the Act, shall be registered in the
Register Book under the RTA within three months from the date of the
order.
 It must be noted that the order if granted shall be for an access road not
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exceeding 20 feet (section 7 of the Act).
 Section 3(1) on receiving an application for leave to construct a road of
access, the land tribunal shall cause a notice to be served upon the
owner of any lands over which the proposed road of access is to be
constructed calling upon him or her to show cause within one month why
leave to construct the proposed road of access should not be granted.
 Section 3(2) provides that the service of the notice under this section
shall whenever it is practicable, be made on the person named in the
notice by delivering or tendering a copy of it signed by the land tribunal.
 Section 6 of the Act provides that the width of the road of access
constructed under the Act should not exceed 20 feet.
 Section 8 provides that when a road of access has been constructed,
A. The applicant or his/her servants
B. Any other person lawfully going to or from the applicant
C. His or her successors in title shall have at all times to use the road of access
 Section 9(1) provides that the applicant shall at all times maintain the
road of access in a good and efficient state of repair and for that purpose
the applicant, his/her servants or agents shall have leave to enter at all
times upon the road of access.
 Where it is also used by the respondent (owner of the adjoining land) he
or she is to contribute to the maintenance of that road as agreed
between the parties or decreed by the land tribunal.(section 9(3) )
Procedure for acquiring an order of accessing a public road /highway.

1. There must have been a failure of negotiations. Section 2(1) of the access to
Road Act Cap 350. The owner of the land should be unable to obtain leave
from adjoining land owners through negotiations to construct a road of access
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to the public road /high way.
2. The application is made to the land tribunal. Section 2(1) of the Act.
3. The application must be in form set out in the schedule to the Act. Section
2(2) (a). It should be accompanied by a sketch or plan of the proposed road
and the tribunal may give an order to enter upon the respondents land to draw
that sketch or plan. Section 2(2) (b) and section 2(3).
4. The tribunal shall then ensure that the owner of the affected land is served
with the notice so as to show cause against the grant of the application
(section 3(1)). This should be within ...... months.
5. The service is preferably to be personal or by leaving it with an adult

member of his family or a servant residing with him or at a conspicuous place
on his property or in a local newspaper. (Section (3) and (4)).
6. Subsequent to the above a hearing date is set for the application.
Section 4(1) of the Act: after the expiry of one month from the date of service
of notice on the owner of the land was affected.
7. The land tribunal may take an order after the hearing of such evidence as
may be adduced in respect of the application subject to any other terms it may
so deem fit to impose and payment of compensation. (Section 4(2) (a) and
(b)).
8. A disgruntled party may appeal within 30 days to the high court. Section 10
the high court decision shall be final.
9. A certified copy of any order made by the land tribunal under section 5
(revoking the order an application of the owner of adjoining land that the
conditions have not been complied with) or section 10 of the high court on
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appeal shall be served on the order and the registrar of titles within 30days of
the date of the order and the registrar of titles may upon payment of the
prescribed fee make such entry of the order in the Register Book as he deems
fit. This is provided for under section 11 of the Act.
10. An order made under section 4 of the Act is registrable in the Register
Book on the application made by the person affected by the order within 3
months of the date of the appeal is pending within one month after the
determination of that appeal(section 7(1) ).
11. Section 7(3). If the registrar of titles is satisfied that the application is he
shall on payment of the fee prescribed under the RTA register the order in the
Register Book.
12. Section 7(2): an application for the registration of the order shall be made
to the registrar of titles and shall be accompanied by
A. a certified copy of the order
B. a sketch or plan showing the course and direction of the proposed road of
access as approved by the land tribunal and
C. such certificate of title as the registrar of titles may require for endorsement
of the order on the certificate.
Barclays Bank V Patel (1970) E.A 88 CA
Moose purchased land which had no access route. It had not been preserved
by the agreement nor was it mentioned in the certificate of title.
It was held that a right of way arose out of necessity of law over the adjoining
land cannot be defeated unreasonably.
Ahmed Dauda Ziwa and Anor V Dr Kafumbe Anthony HCCA No.33 of

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2012.
It was held that compensation should conform to A.26 of the constitution and
should also take into account the loss of the land itself.
In our facts, Didas Orojo has an alternative route to the main road therefore
this remedy is not available to him he can just engage in clearing the land/
road so as to making it easier for use by the tenants.
Form of application for leave to construct a road of access.
1 Name of applicant DIDAS OROJO

Place of abode
Nationality UGANDAN
2 Name, situation and registered title FRV 118,FOLIO 22
reference of land or lease of land in PLOT 13 HESKETH BELL
respect of which the road of access is ROAD LUZIRA
required stating the title reference of land
county and all particulars which may
assist in loading it
3 Name of public highway to which the road Hesketh Bell Road
of access is required
4 Names of land over which it is proposed Walter Kisuule
to construct the road of access together
with the name or names of the respective
owner or owners of the land.
5 The means of access (if any) to any Small road of 7 feet
highway at present available for the use
of the applicant and whether use of that
highway is subject to any payment or
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other terms or conditions.
6 Whether any crops or building will be No crops or building that
damaged or destroyed by the construction will be destroyed
of the road of access, if so to what extent
7 Maximum width between drains of 20 feet
proposed road of access
8 Any other facts of which the applicant is None
aware which may affect the grant
......................................
Applicant
Forum -Magistrate Grade 1
Practice Direction 1 of 2006.
They replaced the land tribunal for the M.G 1 or any other court with
competent jurisdiction.
In practice you need an order of the high court so as it can be quickly complied
with.
Notice of motion supported by an affidavit in practice.
Differentiate an easement from one of necessity and one under the Act.
Use the form in the Access to Roads Act and attach an affidavit.
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ADVERSE POSSESSION
At common law, possession of land is the root of title. A person who is in
possession has a title which is good against the whole world except a person
with a better claim. (Asher V Whitlock (1865) LR 1 QB1).
In common law, adverse possession is the process by which title to another

real property is acquired without compensation by holding the property in a
manner that conflicts with the true owner’s rights for a specified period of time
The circumstances of the adverse possession determine the type of title

acquired by the adverse possessor which may be fee simple, mineral rights or
another interest in real property.
The law of adverse possession is partly statutory and partly common law.
The required period of uninterrupted possession arises out of a statutory
limitation period or statute of limitations.
 The limitation Act under section 12(1) limits the period within which an
action can be brought to recover land. Beyond that time an action is
statute barred. Section 6 of the Act provides that no person shall make
an entry or bring an action to recover land after the expiration of 12years
from the date of the cause of action accrued to him or her to a person
through whom he or she claims.
 If on the date the right of action accrued the plaintiff was under disability
the period of limitation is extended to a maximum of six years from the
date the person ceased to be under disability or died whichever is the
earlier, notwithstanding that the twelve year period had expired.
 The right of action is deemed to accrue to a land owner when a stranger
enters into adverse possession of his or her land (section 12(1)).
 This may happen by the stranger dispossessing the right full owner or by
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entering into possession following abandonment of possession or death
of the rightful owner (Rains V Buxton(1880) 14 Ch.D 537 at 539)
Either way possession must be acquired without permission or license of
the owner.
Proving adverse possession

In the absence of contrary evidence the owner of land with a paper title is
deemed to be in possession of the land. Hence where a person without
documentary title claims ownership of land on the basis of adverse possession,
the possession may pass.
 Factual possession entails exercise of sufficient physical control over the

entire land. This can be proved for example of use of the land for
accommodation ,cultivation or grazing animals or generally dealing with
the land as an owner might be expected to deal with it. (Powell V MC
Farlane (1977)38 p and CR 452 PP 4707.
 Factual possession must be accompanied with an intention to possess
(animus possidendi). This means that the person claiming title by
adverse possession must have an intention to possess the land to the
exclusion of everyone else including the land owner. (Buckingham City
Council V Moran [1969] 2 ALLER 225.
 The intention to exclude must be plain for all to see. Where there are
other people using the land it must be apparent that they are doing so
with his or her permission. However, it is not required to prove that the
squatter consciously intended to exclude the true owner.
Rather, what is required is proof of intention to exercise exclusive control.
Running of time
The limitation time begins to run against the owner from the time the right of
entry or the right to bring an action to recover land first accrues to him or her
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or to the person through whom he or she claims.
Rains V Buxton (1880)14ch.D537: the plaintiffs sought to restrain the land

owner from executing works on the cellar which was in possession by the
plaintiffs for 60yrs. The intruder occupied a cellar in the plaintiff’s house
without the knowledge of the plaintiffs. It was held that in the absence of
fraud the limitation period commenced to run from the date the intruder
entered into adverse possession and not when the owner found out:
Stopping time running

The possession of a squatter must be continuous for a total period of 12years
or any extended period that may be required by the operation of the Act.
If before the limitation time runs out the squatter abandons possession the
land ceases to be in adverse possession and time stops running against the
owner.
Where subsequently the squatter re-enters fresh limitation period will begins to
run calculate from the date of re-entry. Consequences of lapse of Time
At the expiration of the limitation period the disposed owner loses his or her
right to re-enter or sue to recover the land.
Requirements for adverse possession

1. Actual possession; it’s a function of the type of property location and
uses paying taxes may or may not be required as proof.
2. Open and notorious: the adverse possessor’s use of the property is so

visible and apparent that it gives notice to the legal owner that someone
may assert claim.
3. Exclusive: adverse possessor holds the land to the exclusion of true

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owner.
4. Hostile or adverse: used without true owner`s permission and

inconsistent with true owner`s rights.
5. Continues: the adverse possessor must show that property was used
continuously for the entire limitation period. Must use as a true owner
would for that time.
6. Claim of title or claim of right.
7. Good faith or bad faith.
8. Improvement, cultivation. or enclosure
9. Payment of property taxes.
Namubiru Kintu V Ephraim Kamuntu (1975) HCB 221
This case discusses who has adverse possession
1. People who have settled by government or its agents or local

authority.
2. Settled before coming into force of the 1995 constitution
3. Occupied the land for 12 years.
4. Any person who has purchased or otherwise acquired the interest of a

bonafide occupant, also becomes a bonafide occupant.
Limitation is wholly statutory and simply extinguishes a former owner`s right

to recover possession of land leaving some other person with a title deed based
on adverse possession.
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John Oitamong V Mohammed Olinga (1955) HCB 86
It was held that limitation is a shield and not a sword.
That where a person is in possession of land for over 30 years (now 12) and
land from him, which amounts to acquiescence. It is inequitable to allow him to
disturb that possession.
Bilasi`s case No.11 of 1975 (1977) HCB 1
The respondent lived on the disputed land for 12 years. It was customary
land .The appellant sought to end him lower courts held that he had acquired
title by prescription since the appellant failed to sue within the statutory 12
years. It was held by Sekandi J that customary law does not apply / recognize
prescription as a root of little.
PROCEDURE FOR OBTAINING A VESTING ORDER ON ACCOUNT OF ADVERSE

POSSESSION
S.78 of the RTA provides that any person who claims that he or she has
acquire a title by possession to land registered under registered under resting
the land in him or her for an estate in fee simple of the other estate claimed.
1. Apply to the register/ commissioner for a vesting order(S 78 of

the act)
2. The application should be in writing in the form or to the effect of

the 6th schedule to the Act. The application should be signed by
the applicant attested to by at least one witness being a person
mentioned under section 147 of the RTA.
 It should be supported by a statutory declaration by the person

signing it that the several statements in it are true and
accompanied by a survey plan (with field notes) of the land.
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(S.79 RTA)
3. When the application is not rejected by the registrar under S.80,

the registrar shall advertise notice of the application at the expense of
the applicant at least once in the Gazette. The registrar will also give
notice
4. This notice is given to every person appearing by the Register book

to have any estate or interest in the land or in any encumbrance
notified on the title of the land (section 81 RTA).
5. The commissioner appoints a time not less than 3 months nor

more than 12months from the publication of the advertisement or
service of notice of application at or after the expiration of which
grant the application altogether or in part. (Section 83 RTA.
6. After the expiration of the time appointed, the commissioner of

satisfied that the applicant has acquired a title by possession may
cancel the existing certificate of title and any instrument, entry or
memorial in the Register Book altogether or to such extent and issue
to the applicant a new certificate of title free from all encumbrances
appearing by the register book. (Section 87 RTA).
There upon the person named in the certificate of title becomes the
registered proprietor of the land. (Section 91(1) RTA).
In our facts, Slita covers the whole of plot No. 306, therefore this is the land
which he can acquire a vesting order on account for adverse possession.
For the land in block 24, plot 307 Silta can apply for a certificate of occupancy
as a bonafide occupant having been on the land before the coming into force of
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the 1995 constitution and for 12years.
Documents
- Application by formal letter
- Statutory declaration
- Survey plan
- Notice of the application
Fees
1. 22nd schedule of the RTA item 7 provides that for every
application under section 78 - 0.5 of the value of the land.
2. Item 1 -for every certificate of title issued -shs 10000/=.
3. Advertisement in the Gazette
4. Dispatch through the post office by registered mail -5000/=
5. For certified copies of any certificate of title or registered

instrument, per foolscap page or part of its 2000/=
Vesting Orders in respect of complete purchase but no transfer

Article 26 of the 1995 constitution of Uganda guarantees everyone’s right to
own property.
Aliah Ofwono has purchased the land therefore she has an interest, a legal
interest in the land and has a right to have the land transfer in her names.
Therefore she can apply to the registrar for a vesting order pursuant to section
167 of the RTA.
Section 167 RTA provides that if it is proved to the registrar that registered
land has been sold by the proprietor and the whole of the purchase money paid
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and the purchaser has taken full possession under the purchase which has
been acquiesced to by the vendor but a transfer has never been executed by
the vendor and cannot be obtained by reason that the vendor is dead or
residing out of the jurisdiction or cannot be found the registrar may make a
vesting order in the premises.
The conditions to be satisfied by the applicant for a vesting order

In the case of Re Ivan Mutaka (1980)HCB 27 and were reiterated in the
case of URA V Uganda Land Commission Misc Cause No.20 of 2009 court
held that in order to invoke and rely on section 167 RTA and before court can
make a resting order, the applicant must prove the following.
1. There was a sale of land
2. The land is registered under the RTA
3. The whole purchase was paid
4. The purchaser is in possession of the land
5. Entry and possession have been acquiesced by the vendor
6. Transfer has never been executed
7. The vendor cannot be found by reason of death or is residing

outside jurisdiction or cannot be found.
Yaswa Kityo V Enya Kaddu(1982) HCB 58
Per Karokora J: That a vesting order can only be made where the purchaser is
in possession of the land and his entry has been acquiesced by the vendor.
Adonia V Mutekanga (1970) E.A 429
That the proceeding of a vesting order must be served on a registered

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proprietor if he is living otherwise the granting of the vesting order exparte it’s
an error which leads to the order being avoided.
PROCEDURE
 The applicant applies to the registrar by way of formal letter which
should be accompanied by a statutory declaration narrating the
fulfillment of the conditions that warrant the giving of the vesting order.
 The applicant should also attach the sale agreement, receipts of payment
and evidence that the vendor cannot be found or is out of jurisdiction.
 The registrar will then make the order and may include in the order a
direction for the payment of such an additional fee in respect of
assurance of title as he may think fit. (Section 167 RTA)
 Upon the payment of that additional fee the registrar shall effect the
registration directed to be made by entering in the register book and on
the duplicate certificate of title and duplicate instrument if any, the date
of the order, the time of its production to him/her and the name and
addition of the person in whom the order supports to rest the land estate
or interest (section 166 RTA)
Fees payable
- For every application under section 167, item No 13, 22nd schedule
-shs 10000/=
- Stamp duty - 0.5% of the value of the land /5000
The applicant after registration shall become the transferee and be

deemed to be the proprietor of the land, estate or interest. (section
166 RTA)
DOCUMENTS
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Application for a vesting order.
Firm H2 & F1 and Co AdvocateS
P.O.BOX 7117
Kampala
04th December 2016
OUR REF: H2/GEN/1/2016
YOUR REF:
To: Commissioner of Land Registration
Leasehold Registry
P.O.BOX 1223
Kampala
Dear Sir,
RE: APPLICATION FOR A VESTING ORDER IN RESPECT OF LAND COMPRISED

IN LRV 240 FOLIO 12 PLOT 12, BLOCK 220, BUKOTO MUKALAZI ZONE
We act for our client, Ms Aliah Ofwono on whose instructions we address you
as follows.
Our client Ms Aliah Ofwono purchased the above mentioned land from Marko
Gidoi and she has paid the purchase price in full and received the certificate of
title, however a transfer deed for the land was not given to her because Marko
Gidoi is currently serving a life sentence in Beijing prisons.
We hereby apply for a vesting order vesting in her that piece of land comprised
in LRV 240 folio 12 plot 12 block 220 bukoto located in Mukalazi zone.
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Yours sincerely
.............................
For firm H2 & F1 and Co Advocates.
Statutory Declaration
IN THE MATTER OF THE REGISTRATION OF
TITLES ACT CAP 230
AND
IN THE MATTER OF THE STATUTORY DECLARATIONS
ACT CAP 222
AND
IN THE MATTER OF LAND COMPRISED IN LRV
FOLIO 12 PLOT 12 BLOCK 220, BUKOTO, MUKALAZI
ZONE, KAMPALA
AND IN THE MATTER OF AN APPLICATION FOR VESTING
ORDER
STATUTORY DECLARATION
I Aliah Ofwono of c/o M/S firm H2 and Co advocates P.O.BOX 7117, Kampala
do hereby solemnly declare and state as follows.
1. That I am a female adult Ugandan of sound mind with capacity

to make its declaration.
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2. That in March 2011, I purchased land comprised in LRV 240
folio 12 plot 12 block 220 Mukalazi zone Bukoto Kampala with a
residential house on it.
3. That I purchased the land from my neighbor Marko Didoi.
4. That I paid the purchase price in full and received the certificate
of title in respect thereof(A copy of duplicate certificate of title
is hereto attached as annexure and a receipt of the payments is
hereto attached as annexure "B")
5. That I currently reside in the residential house with my infant

children.
6. That before Marko Gidoi had given me a transfer of the land

into my names he travelled to China
7. That he was arrested for being in possession of a large amount

of prohibited substance and is currently serving a life sentence
in Beijing prison(attached hereto is a letter of confirmation from
the ministry of foreign Affairs marked "C")
8. That I hereby affirm and declare that whatever i have stated

here in above is true and correct to the best of my knowledge.
Declared at Kampala by the said Aliah Ofwono this 04th day of December 2016
..........................................
Deponent
Before me
.........................................
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Commissioner of oaths
Drawn and filed by
Firm H2 and Co. Advocates
P.O.BOX 7117, Kampala
Application for a special certificate of title

 Section 70 of the RTA provides that if the duplicate certificate of title is
lost or destroyed or becomes so obliterated as to be useless, the persons
having knowledge of the circumstances may make a statutory
declaration stating facts and the particulars of all circumstances affecting
the land or the title to the land to the best of the deponents knowledge.
 The registrar if satisfied as to the truth may issue a special certificate of
title to the land which shall contain an exact copy of the original and shall
state why the special certificate is issued.
 The registrar shall at the same time enter in the Register Book the notice
of the issuing of the special certificate and the date of its issuance. The
registrar shall give one months’ notice in the Gazette of his intention to
issue a special certificate before its issuance.
 Section 71 RTA provides that where any court calls upon the registrar to
issue a special certificate of title the registrar shall do so but before
issuing, the registrar shall give a notice of his intention to do so in the
Gazette where upon any person who wishes to oppose the issue of the
certificate may within one month of the date of the notice make an
application to the court in that behalf.
 Section 72 RTA, if any original certificate of title is lost or destroyed or so
obliterated as to become illegible the registrar may cause a copy of it to
be prepared and to be endorsed with such entries as on the original. The
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registrar shall make and sign a memorandum upon the copy stating that
this is a substitute.
Procedure
Inform crystal that it is impossible to obtain a special certificate of title within

10 days because section 70 RTA provides that the special certificate will only
be issued after 30 days /one months’ notice in the Uganda Gazette.
PROCEDURE
 The applicant makes an application to the registrar for a special
certificate by formal letter. This application is signed by the registered
proprietor and witnessed in accordance with section 147 RTA.
 The applicant must have in his possession the application that should
have a statutory declaration attached to it. It should be signed by the
applicant and commissioned by a commissioned for oaths. He should also
have two passport photographs of the person requesting for the special
certificate of title and the identification documents that must be attached
to the application.
 The registrar will receive the application and give it an instrument
number. The applicant presents the full set of original documents and
photocopies of the same to the registrar who shall stamp on the
photocopy received and return the same to the applicant.
 The registrar will then issue a 30 days’ notice at the applicants cost in
the Uganda Gazette. Section 70 RTA; therefore in our facts the 10days
period in which crystal wants to acquire a replacement is impracticable.
 The registrar will then write to the commissioner surveys and mapping to
issue in duplicate deed plans of the subject land and the subject plans.
 Upon receipt of the confirmation of the publication in the Gazette after
the lapse of 30days and the deed plans duly signed and sealed by the
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registrar, a special certificate /replacement of the duplicate certificate of
title is issued if no objection is raised.
After 10 days the applicant upon presentation of the photocopy stamped

“received" collects the special certificate of title. The photocopy is stamped
“returned" on completion
Documents required
- Letter of application for a special title
- Statutory declaration
- Copy of the Gazette
- Passport photographs
- General receipts of payment
Fees payable
- Registration fee -15000/=
- Stamp duty -10000/=
- Application for issue of a special certificate of title 22nd schedule

RTA item 6 -15000/=
Substitute certification, when the white page gets lost the registrar applies for
a substitute certificate.
Application for a special certificate

Firm H2 and Co. Advocates
P.O.BOX 7117
Kampala
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2016-2017
04 .December. 2016
OUR REF:
YOUR REF:
To: The commissioner
Land Registration
P.O.BOX
Kampala
Dear Sir
RE: APPLICATION FOR A SPECIAL CERTIFICATE OF TITLE FOR LAND

COMPRISED IN KYADONDO BLOCK 212 PLOT 36,KIWATULE
We act for our client crystal Kanamura on whose instructions we address you
as follows.
Our client is a registered proprietor of the above said land.
We hereby apply for a replacement of the certificate of title of the above

mentioned land which was destroyed while in the possession of her uncle
Fabian Mwebasa when his house caught fire.
Yours sincerely
...........................
For H2 and Co. Advocates
Statutory Declaration
IN THE MATTER OF THE REGISTRATION OF
TITLES ACT CAP 230
AND
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IN THE MATTER OF AN APPLICATION FOR A
SPECIAL CERTIFICATE OF TITLE
STATUTORY DECLARATION
I Crystal Keinamura of c/o M/S firm H2 and co advocates P.O.BOX 7117,

Kampala do hereby solemnly declare and state as follows.
1. That I am a female adult Ugandan of sound mind with capacity

to make its declaration.
2. That I am registered proprietor of land comprised in Kyadondo

Block 212 plot36 Kiwatule
3. That I was issued a certificate of title in respect of the above

land
4. That the said certificate of title has since and at all material
times been in the possession and custody of my uncle Fabian
Mwebasa at his residence in Kiwamulo zone bukoto in kampala
district
5. That in June 2016 Mwebasas house caught fire and everything

in the house was completely destroyed (Attached is the police
report indication the destruction marked "A")
6. That this statutory declaration is made in support of an

application for a special certificate of title as specified above.
7. That whatever is stated herein is true to the best of my

knowledge and belief.
Sworn at Kampala this 04th day of December 2016
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..........................................
Deponent
Before me
.........................................
SUBSTITUTE TITLE
Procedure
1. The registrar may be moved by an application in writing in form of a

letter. No fees or duties are payable. The letter ought to set out the basis
of the belief that the original certificate of title (Registry copy) cannot be
found.
2. The registrar of titles can also on his own motion replace the misplaced
or destroyed original certificate of titles.
3. A memorial is entered on the Register to the effect that the original

certificate of title is lost or misplaced.
4. The replacement is referred to as a substitute title
5. The registered proprietor may be used to present his duplicate certificate

of title to be used as a basis for the recreation of the registry copy
(substitute title)
6. The registrar may also require that a surveyor makes an adjudication of

the boundaries of the land which is simply an opening of boundaries and
recomputation of the size of the land to confirm the correct size. The
surveyor files a report of the findings with the registrar of titles on the
basis of which the correct size of the land is entered on the substitute
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title.
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HAJI ABDU NASSER KATENDE V VITHALICAS HARIDAS & CO, LTD CACA
NO.84 OF 2003
It was held that the appellant’s case is not one of only irregularities in the early
stages. This was a case tainted with fraud and forgiveness throughout fraud
went to the root of the title. The original record having disappeared a
substitute certificate of title was compiled from whatever documents could be
found. However a false entry of the proprietor was made. The substitute file
and the instrument of transfer were all null and void.
Whether an imperfect title would pass a good title would depend on the
imperfection whether fatal or ongoing to the root of the transaction or
minor.
There is therefore a duty on the buyer personally or through his agents to

inquire into the title of his predecessor.
In the instant case, the transaction was null and void for want to payment of
stamp duty. It was also incomplete due to the absence of consent from the
controlling authority under S.22 (5) (c)of the public lands act, 1969 that
requires consent before transferring or subletting public land.
MPAGAZIHE &ANOR V NCHUMISI (1992-93) HCB 148
It was held that a purchaser who without investigating whether his

predecessor had any title or power of Attorney to sell the land could not be
held as a bonafide purchaser.
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Withdrawing a Caveat by the Caveator
The instrument by which the registrar is improved is a withdrawal of caveat
instrument. It must set out:
i. The particulars of the land
ii. The particulars of the caveator
iii. The particulars of the caveat sought to be withdrawn(its instrument

number and date of lodgment)
iv. It must be signed by the caveator
v. Its execution must be witnessed in accordance with section 147 of the

RTA
vi. Fees and duties should be duly paid
The registrar will receive the instrument and give it an instrument number.
He/she will then proceed and cancel the caveat from the original title and
endorse the word "withdrawn" against the cancellation.
Application to be registered as Administrator of the Estate of the

deceased on land where there is a caveat lodged by the beneficiary.
1. The instrument used is a formal letter applying for registration of the
administrators. To it must be attached a certified copy of the letters of
administration and passport photographs and copies of identification
documents of the applicants.
2. The applicants must submit to the Registrar the duplicate certificate of

title to enable the registrar of titles to make the sought entries.
3. Registration fees must be paid on the application.
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Steps by the registrar.
4. Receive the application and give it an instrument number.
5. Cancel the name of the deceased from the register and in his place register
the administrators of the estate as proprietors on both the original and
duplicate certificates of title pursuant to section 134 and 144 of the RTA.
Teja Singh V Singh Or[1957] E.A 654
Caveats lodged by or on behalf of a beneficiary under a will or settlement can

only be removed by the beneficiary or by a court order upon application by an
interested party.
Jonah Senteza Kanyerezi V Registrar of titles miscause.
Written statement of defence

(LAND DIVISION)
CIVIL SUIT No. of 2017
ABC__________________________ PLAINTIFF
VERSUS
XYZ___________________________ DEFENDANTS
WRITTEN STATEMNT OF DEFENCE
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1. Save wherein as expressly admitted the defendant denies each the every
allegation contained in the plaint as if the same where set fourth
verbatim and traversed seriatim.
2. The contents of paragraphs 1 and 2 of the plaint are admitted and for
the purpose of the suit, the defendants address is C/o P.O.BOX.
3. The contents of paragraph 3 of the plaint are denied and the defendant
shall aver and contend that…
4. The contents of the plaint are denied in toto as they are within the
plaintiff’s knowledge and shall be put to strict proof thereof.
5. The contents of paragraph 4 of the plaint are admitted.
Wherefore the defendant prays that the suit be dismissed with costs.
Dated at Kampala this___________ day of ____________2017.
_______________________________
Counsel for defendant
Drawn and filed by:
Summary of evidence.
In case of a counterclaim
From the last paragraph
COUNTER CLAIM
XYZ PLAINTIFF
VERSUS
ABC DEFENDANTS
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1. By way of counterclaim the counter claimant shall aver that
Particulars of fraud
a)
b) Costs of the suit
Dated at Kampala this____________ day of _____________2017
__________________________
Counsel for counter defendant
Filed in this court this ______________ day of ___________________ 2013
__________________________
Registrar
Drawn and filed by:
Summary of evidence.
Originating Summons
IN THE COURT HIGH COURT OF UGANDA AT KAMPALA
(LAND DIVISION)
ORIGINATING SUMMONS NO ___________ OF 2017
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ORIGINATING SUMMONS
TO: XYZ
WHEREAS, the above named ABC of P.O. Box claims an interest in the land
comprised in was applied for the determination of the following questions.
1. Whether
2. Whether the plaintiff should be granted costs of this suit
YOU ARE HREBY required if you desire to be heard upon the determination of
any of the said questions to appear personally or by advocate on
the_____________ day of ____________2017 at ________________o’clock
in the forenoon or soon thereafter when this court will proceed to make such
order whether by way of declaration or otherwise as the court may think fit.
Dated at Kampala this ______________ day of _______________2017
__________________
Judge
Accompanied by an affidavit to be sworn by the person conversant with the

facts of the matter.
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WEEK 2
WORKSHOP ONE
MORTAGAGES
Nile bank limited verses Richard Desmond Kaggwa (2001-2005) HCF 22;
respectively alleged that the third defendant asked the respondent for a power
of attorney to mortgage the suit property. The third definition in rectum
promised the respondent never received. After execution of the power
attorney, the respondent received a letter addressed by the appellant to 1 st
dependant by which the suit property was threatened with sale due to failure
of the first deficient to pay an old mortgage loan for which respectively
certificate of title had been deposited by the first day as security.
Held;
Both power of attorney and mortgage deed were invalid for war of form
prescribed by S.155 and 156 of RTA. The mortgage was not attested by any
witness and it was not shown that the mortgage was signed by the mortgage.
This was a serious defect which rendered the documents invalid.
S.120 RTA, one of the conditions necessary for creation of an equitable

mortgage by deposit of the title is that the registered proprietor must have
intent to create a security therefore i.e. deposit of the title alone is not enough,
there must be an intention by the registered owner to deposit title as an
equitable mortgagor. This is a condition precedent and another condition
subsequent is that the equitable mortgage shall cause a caret to be entered. In
the instant case, it is rodent that the registered owner (resp) did not deposit
his certificate of title with the app. Bank to create an equitable mortgage but as
security for a loan to Bond Air Services.
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General parts (u) limited verses Non Performing Assets Recovery Trust.
SSCA 5/1999; A lawful demand is always a question of fact depending on the
deed. Signatures of parties to a mortgage must be in Latin character.
Econ construction and engineering limited verses Giro Commercial Bank

limited (2003) 2 E.A. 427; execution of a mortgage by a company entails
sealing the mortgage in the presence of a director and secretary or of two
directors and in the presence of a qualifying witness. When a company
executes a document it cannot be the witness to itself.
CREATION OF MORTGAGES
What is a mortgage?
S.2 of the mortgage act, a mortgage includes any charge or lien over land or
any estate or interest in land in Uganda for securing the payment of an existing
or future or a contingent debt or other money or money’s worth or the
performance of an obligation and includes a second or subsequent mortgage, a
third party mortgage and a sub mortgage.
Types of mortgages
S.3 (2) of the mortgage act; the power to create a mortgage includes the
power to create third party mortgages, second/subsequent and sub
mortgages. Third party mortgage a mortgage which is created or subsists to
secure the payment of an existing or future or a contingent debt or other
money or money’s worth or the fulfillment of a condition by a person who is
not the mortgage whether or not in common with the mortgage (S.2 of the
act).
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Sub mortgage a mortgage of a mortgage (S.2) subsequent/second mortgage
s.3 (6) of the act. S. 3 (7) of the act.
Matambulire verses Yozefu Kimera (1995) HCB 150; A mortgage was

defined a transaction where an owner uses his/her interest in land as security
for loan payment.
Power to create a mortgage

S.3 (1) of the act; a person holding land under any form of land tenure may be
an instrument in the prescribed form mortgage his/her interest in the land or a
part of it to secure the payment of an existing or a failure to contingent debt.
A mortgage created under S.3 (1) shall only take effect when registered S.3
(1). However an unregistered mortgage shall be enforceable between the
parties S.3 (5).
Erisa Wamala verses Musa Musoke (1920) 3 ULR.120, mortgage is always

security and not a transfer. Provisions that property would revert to lender
when certain errant occurs is told.
Muhindo enterprises verses Greenland Bank HCCS 125 of 1987 held that a
mortgage is a mere security for payment of a debt and does not operate as a
transfer.
Uganda Commercial Bank verses Bushugu HCCS 123/94: mortgage to be

registered under RTA, no remedy for lender unless mortgage is registered.
S.8 (1) of the mortgage act; a mortgage shall have effect as a security only
and shall not operate as a transfer of any interest or night in the land from the
mortgage to the mortgage.
S.8 (2), where a mortgagor signs a transfer as a condition for the grant of a
mortgage. The transfer shall have no effect.
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Categories of mortgages
Mortgages are traditionally categorized as;
 Legal mortgages
 Equitable mortgages.
Legal mortgages
It is a statutory requirement that a mortgage shall be registered as
contained in s.3 (4) of the act. However under s.3 (5) an unregistered legal
mortgage is still enforceable interparty.
The dangers with unregistered mortgages are that;
1. When the mortgagor transfers ownership of the property to an innocent
third party, the mortgage cannot enforce it to the third party.
2. If the unregistered mortgage is created after the registered mortgage,
the later takes priority over the unregistered mortgage.
A legal mortgage is created by deed. It is created by signing a mortgage deed
which is the registered as an encumbrance on a certificate of title.
Advantages rights are automatic e.g. sale without recourse to court, 3 rd party is
put on notice of the legal interest creates rights in rem and priority over all
subsequent mortgages.
Equitable mortgages/ informal mortgages

S.2 of the act defines informal mortgages as a written undertaking, the dear
intention of which is to charge the mortgagor’s land with the repayment of
money or money’s worth obtained from the mortgage and includes an
equitable mortgage and a mortgage an unregistered customary land.
Thus there are two types of equitable mortgages;
1. Equitable mortgages on registered land
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2. Equitable mortgage on customary land.
Equitable mortgages on registered land is created when the holder of

registered land deposits the certificate of the title to the land with another with
or without a memorandum of deposit but when the intention of creating
security.
For this equitable mortgage to exist the certificate of title has to be deposited
and it is deposited with the intention of creating a mortgage.
De Souza Figueiredo verses Talbot and Anor (1961) E.A. 167:2 executors
were registered as proprietors of the suit property but only deposited the
certificate as security for a loan. It was held that the deposit was ineffective to
create an equitable mortgage.
Equitable mortgages on customary land;

 s.8 (2) (c) land act. A holder of a customary certificate of ownership has
a right to mortgage his/her land.
 S.34 (1) land act. A tenant by occupying is entitled to pledge or
undertake any other lawful transaction in respect of the occupancy.
 S.7 (1) of the mortgage act- the creation and operation of mortgages on
customary land shall, subject to this act continue to be in accordance
with the customary law applicable to the land in respect of which the
mortgage on customary land is created.
 S.7(2) mortgage act, mortgage seeking to dispossess or permanently
deprive the occupation of mortgaging land, mortgage shall engage the
services of the mediator or make an application to the court for an order
authorizing the exercise of that remedy.
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 S.7 (3) mortgage act, mortgage under a mortgage customary land may
apply to a court for the mortgage on customary to be reopened on the
ground that the terms of the mortgage are
a) Unconscionable
b) An unreasonable departure from the normal terms of a mortgagee on
customary land applicable in the area where the land is located.
c) Disadvantageous to the interest of the dependants of the mortgagor.
 S.7 (4) common law and doctrines of equity shall be applied where it
appears to the court that
a. The customary law applicable to the mortgage is inadequate.
b. No other system of customary law makes adequate or any other
provision for the matter in question.
 S.7 (6) spousal consent or consent of spouses and children of the
mortgagor is required in the case of customary land which is owned by a
family.
Matambulire verses Kimera (1975) HCB 150; the appellant lent shillings
2000 to the respondent and respondent was to pay with an interest of shillings
1800. This was to be repaid in a lump sum as security. The respondent failed
to repay the loan on the due date and appellant took possession of the kibanja
and house. The respondent failed to repay the loan on the due date and
appellant took possession of the kibanja. Respondent instituted proceedings for
recovery of the kibanja.
Held;
The transaction was not a contract of sale of the kibanja but a mortgage and
was governed by the law regulating mortgages.
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In Uganda, the law regulating mortgages is two old. If the land mortgaged is
regulated by the RTA, then that act applies. In the case of an unregistered
interest in land, the law applicable was the common law and the doctrines of
equity.
In this case the respondent’s interests in the kibanja was unregistered and the
applicable law and the doctrines of equity.
LEGAL PROTECTION OF A MORTGAGEE

When a mortgage deed is being drawn; the mortgagee ensures that terms are
set out which protect his position.
A mortgagee has to ensure that the security is determined not only by

conducting a proper search to confirm the geniuses of the title but also the
identity of the intending mortgagor.
The mortgagee should include the following covenants on the part of the
mortgagor.
TACKING
1. That the mortgage is to be a continuing security not only for the sum
advanced but also interest therein. S.10 of the mortgage act provides
for tacking. Tacking is an arrangement between the mortgage and the
mortgagee provided in the mortgage of instrument for further advance
or to give credit to the mortgagor on a current or continuing account.
S.10 (1) the mortgage instrument provides that the mortgage shall be
the security for the money now being advanced and also the future
money advanced except where the future date is linked to an earlier
one. Tacking should be provided for in the mortgage instrument in order
to have legal effect. A further advance shall take priority over
subsequent mortgage if;
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a. Provision for a further advance is noted in the register in which
the mortgage is registered
b. The subsequent mortgage has consented in writing to priority of
the further advance.
Tacking excludes disbursement of a principal sum by way of installments. S.10

(4).
2. The convent on the part of the mortgagor keeps the property in a state
of repair.
3. The convent to repay the loan.
4. The right of a mortgage to sale without having a court order or restoring
to court.
Implied covenants by the mortgagor.

Whether or not they are set out in the mortgage deed. The mortgagor by
executing the deed implied by undertakes to certify the following covenants
which are set out in s.8 of the mortgage act.
 S.18 (1) (c) repair or keep in a reasonable state of buildings on the

mortgaged land and allow the mortgage or his/her agents enter and
examine the state of the land upon reasonable notice.
 S.18 (1) (d) to insure by insurance or any other means that resources
are available or will be available to make good any loss caused by fire to
all buildings on the land and where insurance is taken out, it is done in
the joint names of the mortgage and to the full values of all the
buildings.
 S.18 (1) (c) in the case of a mortgage of land is used for agricultural or
pastoral purposes, to use and continue to use the land in the sustainable
manner and in accordance with the principles of good husbandry and any
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conditions subject to which the land is held and to comply with all written
laws and lawful orders applicable to that use of the land.
 S.18 (1) (f) not to lease or sub lease the land without consent of the
mortgagee.
 S.18 (1) (g) not to transfer or assign a lease or a tenancy by occupation
or part of it without the previous consent in writing of the mortgagee,
but that consent shall not be unreasonably withheld.
 S.18 (1) (b) in case of a mortgage of a lease the continuance of the
mortgage, to pay perform and observe the rent, covenants and
conditions contained and implied in the lease, and on part of lease to be
performed and observed and keep the mortgage indemnified against all
proceedings expenses and claims on account of non-payment of rent.
 S.18 (1) (i) where the mortgage is second /subsequent mortgage, that
the mortgagor will pay the interest from time to time occurring on each
prior mortgage (not being a third party mortgage) when it becomes due
and at the proper time to repay the principal money or part of it due on
each prior mortgage.
 S.18 (1) (j) where the mortgage fails to comply with any of the
covenants implied by paragraphs (b) (c) (d) (e) and (h), the mortgage
may spend money as is reasonably necessary to remedy the breach and
may add the amount so spent to the principal money and that amount
shall be deemed to be part of the principal money secured by the
mortgage.
 S.18 (2) the mortgagor shall keep all buildings upon the mortgaged land
in a reasonable state of repair but shall not put any building or part of it
into a better condition than it was in the amendment of the mortgage.
 S.18 (3) the mortgage shall not spend any money under s.18 (1) (j)
without giving notice to the mortgagor of his/her intention to do so.
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LEGAL PROTECTION OF THE MORTGAGOR
S.10 (3) except as provided in the section there is no right to tack. This is
intended to protect the mortgagor from ambitious mortgagees.
S.13 (1) the mortgagor can bring a suit against the mortgagee or in respect of
the mortgaged land e.g. trespassers.
However, he should first give notice in writing to the mortgagee(s) to inform

him of the intention and the nature of the action which is to be commenced.
EQUITY’S PROTECTION OF A MORTGAGOR

 Equity’s protection of a mortgagor is summed up in the maximum “once
a mortgage always a mortgage”. The maximum applies in two broad
ways.
a. The test for a mortgage is substance and not form whether the
transaction is a mortgage or some other transaction it is not a question
of form of substance. Thus if the parties enter into a contract of sale of
land which is essence is a mortgage in equity it is regarded as a
mortgage and all the consequences of a mortgage will follow.
b. There should be no dogs on the equity of redemption. This means that
the court will not permit any attempt by the mortgage to exclude the
mortgagor’s right to redeem his /her property.
Samuel verses Janah Timber Wood paving corporation (1904) A.C. 323
at 329, Lord Lindley explained the maxim thus;
“the doctrine once a mortgage always a mortgage means that no

contract between a mortgagor and a mortgagee made at the time of the
mortgage and as part of the mortgage transaction in other words, as one
of the terms of a loan can be valid if it prevents the mortgagor from
getting back his property on paying off what is due on his side. Any
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bargain which has that effect is invalid, and inconsistent with the
transaction being a mortgage.
Santley v Wilde (1899) 12 ch. 474; Lindley MR. a mortgage is a

convergence of land or an assignment of chattels as a security for the payment
of a debt or the discharge of some other obligation for which it is given. The
security is redeemable on the payment or discharges of such debt or obligation
any provision to the contrary notwithstanding. Any provision inserted to
prevent redemptions on payments or performance of the debt or obligation for
which the security was given is what is meant by a dog or fetter on the equity
of redemption and is therefore void.
The maxim has now been reduced into legislation by the provisions of s.8, 14,
15 and 16 of the mortgage act.
 S.14 right to discharge on the discharge of the debt or obligation the

mortgagor is entitled to demand that the mortgagee releases that
mortgage at the mortgagor’s cost.
 The mortgagee releases the mortgage by signing and delivering to the
mortgagor a release mortgage in the subscribed form.
 The mortgagor has to register the release of the mortgage under s.15
where the registrar cancels out the encumbrance which was created at
the time the mortgage was created.
 Where the mortgage absents himself or goes out of the jurisdiction so
as to dodge receiving payment and having execute under s.16 the
mortgagor can pay all the money due to the treasury who then issues
the receipts.
 When the mortgagor presents the receipt to the registrar of titles, he
will then cancel the mortgage. In case of an informal mortgage, the
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mortgagor will deposit the money into court, the court will then order
the release of the mortgage.
 The right to redeem should not be excluded Samuel verses Janah
Timber Wood paving corporation (1904) A.C. 323 held that a
mortgagee is not allowed at the time of entering in the contract to
purchase the mortgaged property.
The right of redemption cannot be postponed, however the night to redeem

cannot be taken away but it can be lawfully postponed. In James Fair Clough
verses Swan BREWE COMPANY LIMITED (1912) A.C. 52 it was held that
the stipulations as to the redemption were nugatory and illusory since the lease
could only redeem back the property at the time where the lease was at the
time of expiry.
It is permissible for the mortgage deed to confer certain collateral advantages

on the mortgage e.g. it can give the mortgagee an exclusive right to confer
some services to the mortgagor.
 S.14 (1) (c) a mortgage instrument which stipulates for a collateral

advantage which is unfair and unconscionable and inconsistent with the
right to discharge is void.
James verses Rumsey (1879) 1 Ch. D 398; if the mortgage is redeemed by

the mortgagor the mortgagee must deliver the title deeds to him.
Erisa Wamala verses Musa Musoke (1920) 3 ULR 120; mortgage is always
security and not transfer provisions that property would revert to lender when
certain event occurs is end.
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DOCUMENTS THAT ARE REQUIRED TO BE ON THE BANK
MORTGAGE (CREDIT) FILE TO SATISFY THAT THE TRANSACTION
IS VALID.
 2 sets of duly signed and dated mortgage deeds.
 Duplicate certificate of title
 2 passport photographs of persons registering the mortgage
 Loan offer letter
 Power of attorney
 Board resolution authorizing the company to borrow
 MOA and AOA
 Company form for registration of charges and certificate of particulars of
the charge.
 Spousal consent (if applicable)
 Valuation report to ascertain the urgent value of the property
 The above documents are presented to the land registered
 Search letter.
Search letter.
UGANDA CREDIT BANK LIMITTED
P.O BOX 3431
KAMPALA
02/03/2015
OUR REF:
YOU’RE REF:
THE COMMISSIONER
LAND REGISTRATION DEPARTMENT
MINISTRY OF LANDS, HOUSING AND URBAN DEVELOPMENT
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P.O.BOX 7096,
KAMPALA UGANDA
Dear sir/madam.,
RE: SEARCH ON LRV 143 FOLIC 25 PLOT 72 NSAMBYA.
We are a financial institution carrying on principal business the scaring for

funds from local and international funders.
We are interested in knowing the status of the above mentioned land and thus
the purpose of this letter.
Please avail us with information regarding ownership, acre age and any
encumbrance if any on the above land.
We further request to be availed with a copy of the land area scheduled.
The above mentioned land is subjected of a proposed mortgage deed to be

effected between Uganda credit Bank limited and Auto centre (u) ltd.
We undertake to pay the requisite search fees.
Your timely response will be highly appreciated
Yours sincerely
_____________________
For: Uganda credit bank limited.
Cc: Auto Centre (u) limited.
Search in the company registrar

UGANDA CREDIT BANK LTD
P.O.BOX 3431
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Kampala
02/03/2015
OUR REF:
YOU’RE REF:
TO: THE REGISTRAR OF COMPANIES

P.O.BOX
KAMPALA
Dear sir/madam:
RE: APPLICATION TO CONDUCT A SEARCH IN THE COMPANY
REGISTRY ON AUTO CENTRE (U) LTD.
We would like to conduct a search on the company mentioned above and

provide us with;
1. Certificate of incorporation
2. Certified copies of company form 7
3. Copy of the board resolution authorizing the company to borrow ug.
Shillings 250,000,00
4. Certified copies of M.O.A and A.O.A (show whether the company was
given power to borrow.)
5. Returns of the company.
Your timely response will be highly appreciated.
Yours sincerely
__________________
For: Uganda credit bank ltd
Cc: Auto centre (u) ltd.
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Fees
Conducting a search item 18-10,000 shillings 22nd schedule of the RTA
THE STEPS TAKEN IN ORDER TO PUT THE BANK IN POSITION TO

RECOVER ITS MONEY ON BASIS OF THE MORTGAGE
a) Taking into account the directive form the commissioner land
registration, Sarah Basangwa Kulata dated 24 th may 2013, the
mortgage deed between Uganda credit bank ltd and auto centre ltd. She
guided that mortgage deeds should not be more than four pages of A4
size strictly to take effect from the first day of July 2013 and any
voluminous mortgage deeds for registration contrary to the format in the
law shall be rejected compress the voluminous deed.
b) The mortgage deed attached is voluminous and needs to be in line with
the directive, especially since it is not perfected and needs to be so
attestation.
c) Attestation of mortgage; the mortgage instrument has to be attested to
buy a witness within or without the limit of Uganda as conversed in
s.147 RTA. S.148 RTA further states that no instrument is demanded to
be executed unless the signature is in Latin character.
Fredrick Zabwe verse Orient Bank and others SCCA No.4 of 2006 on due
execution of a mortgage, signature to be in Latin character.
General parts (u) ltd verse NPART SCCA No. 5/1999; a lawful demand is
always a question of fact depending on the deed. Signature of parties to a
mortgage must be in Latin characters.
Eccon construction and engineering ltd verse Giro commercial bank ltd
and Anor (2003) E.A. 426 on execution of a mortgage by a company entail
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sealing the mortgage in the presence of a qualifying witness when a company
executes a document it cannot be the witness itself.
The mortgage deed was not attested to and a company cannot be the witness
of itself.
d) Payment of stamp duty on the mortgage deed s.2 stamp act.
Juma verse Habib (1978) E.A. 128; a mortgage deed is an instrument liable
for stamp duty and failure to pay stamp duty renders the deed inadmissible in
order.
e) Registration of the deed in accordance with the registration of documents

act (s.4 and 5, s.3 (4)) act. S.54 RTA no instrument until registered shall
be effectual to render the land liable to any mortgage.
Uganda commercial bank verse Mrs. B Bushugu HCCS No. 123/94;

Mortgage to be registered under RTA no remedy for lender unless mortgage is
registered. However an unregistered mortgage shall be enforceable between
the parties s.3 (5) mortgage act.
Registration of power of attorney of Deogratius Nviri and attestation s.147 and

148 RTA. The power of attorney is registered in accordance with the
registration of documents act. If it is registered within four months from the
date it is made, it will be presumed to be in force at the time of its registration
unless it is revoked.
f) Registration of the charge of mortgage security with the registrar of

companies. S.105 (1) companies act, 2012 every charge created by a
company registered in Uganda and to which this section applies is void
against any creditor of the company unless the charge and the
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instrument by which the charge is created are delivered to the registrar
for registration within in the days after the date of creation.
 S .105 (3) (d) the charge applies into a charge on immovable property or
any interest.
 S.106 (1) companies act it is the duty of a company to send to the
registrar for registration. S.106 (1) companies act, if a company fails for
42 days to register the charge, it is liable to a deposit of 50 currency
points.
 S.106 (1) company’s act, if a company falls for 42 days to register the
charge it is liable to a deposit of 50 currency points.
 S.106 (4) for the purposes of S.3 in the case of a mortgage the 42 days
shall be taken to run from the time of filling the mortgage instrument
with the registrar of tittles.
 A charge is defined in S.2 of the company’s act to mean a form of
security for the payment of a debt or performance of an obligation
consisting of the right of a creditor to receive payment out of some
special fund and includes a mortgage.
Registration of a mortgage.
 Assess the payable stamp duty of 0.5% of the amount borrowed item 31
stamp (amendment) act.
 Assess for lodgment of mortgage Ugx 10,000 item 3(a) registration of
title (fees) amendment rules 1998.
 Lodge the mortgage deed which the registry together with proof of
payment.
 Check later and ensure that the mortgage is entered on the title as an
encumbrance.
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Jinja International Textiles Supply Ltd v Barclays bank R. Anor HCMA
311/2008: debentures are created under the company’s act and the rules
pertain to execution of under the RTA do not apply to debentures.
General parts (u) ltd verse NPART C.A No. 5/1999 where the signatures to
a mortgage are not in Latin character the mortgage is not valid.
CHALLENGES LIKELY TO BE FACED AND STEPS TAKEN TO MITIGATE

CHALLENGES FACED IN PERFECTING THE MORTGAGE
Challenges
1. Dishonesty among the parties S.4 of the mortgage provides for the duty
to disclose information so parties may fail to disclose relevant
information.
2. There is need for valid power of attorney s.146 RTA Fredick Zabwe Vs
Orient bank & Ors SCCA No.4 2003.
3. The title has an encumbrance registered an equitable mortgage to
Barclays bank of Uganda on LRV 143 folio 25 plot 72 Nsambya
registered on 8th June 1999. This equitable mortgage was withdrawn on
3rd September 2002 but the same has not been crossed out.
4. One of the securities is in the names of Deogratius Nviri who is not a
party to the mortgage transaction. The registered proprietor of property
at Kyagwe block 93 plot 137 Kagala is Deogratius Nviri.
5. The mortgage deed is voluminous and was poorly drafted.
- The interest of Uganda credit bank limited is not registered.
- The mortgage deed isn’t attested to.
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Steps taken to mitigate the challenges
1. Search S 201 RTA, a search should come out to ascertain the
registered proprietor of the land.
2. It should be established whether Auto centre (U) has an interest in
the land. S3 (1) mortgage act, the mortgagor should have an interest
in the mortgage land. Auto Centre (U) Ltd should obtain a valid
power of attorney in accordance with S 146 RTA from Deogratius
Nviri, if Deogratius is named spousal consent should be obtained as
envisaged under S6 mortgage act and reg 17 and 18.statutory
declaration if unmamed (Mortgage regulation)
3. Compel the mortgager to have the commissioner of land registration
cancel the encumbrance.
4. Execute and have the deed attested to witnessed to in accordance
with S147 and S148 RTA and pay stamp duty.
Class discussion
 A mortgage is a security not a transfer

 A lawful demand is always a question of fact depending on the
deed
 Signatures of parties to the mortgage must be of latin characters
 An application for fore closure is by originating summons and not
notice of motion.
 Valuation report- Cuckmere Brick
 Barclays bank Vs Gulu Millers- equitable mortgage
 S.3(9) mortgage act subject to S.2
 Tropical bank limited Vs Grace Were
 A court of law is concerned with the form of the mortgage but with
the substance
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 Essential features of a prima facie valid mortgage include due
execution and registration
 read the difference between surety and guarantor
 there is no default known to the mortgager until there has been a
demand notice of default S.19 (1)
 S.19(4) the demand notice is served after default has been for 30 days
 S19 (2) then the demand nutia gives the mortgagor time of 45 days to
rectify the default.
STEPS TAKEN TO ENFORCE THE MORTGAGE AND THE MODES OF

ENFORCEMENT
Notice on default
 S.19 (1) of the mortgage act where money secured by the mortgage is
made payable in a demand in writing shall create the default in payment.
 S.19 (2) the mortgagee may serve on the mortgagor notice in writing of
the default and require the mortgagor to rectify the default within 4
working days.
 S 19(3) the notice shall be in the prescribed form and shall adequately
inform the mortgagor of the following matters
a) the failure and extent of the default made by the mortgagor
b) the amount that must be paid to rectify the default and the time being
not less than 21 working days by then of which the payment in default
must have been made.
c) Where the default consists of failure to perform or close any covenant
the action the mortgagor must take or desist from taking so as to rectify
the default and time not being not less than 21 working days.
d) If the default is not rectified within the time specified in the notice, the
mortgagee will proceed to offer any of the remedies in S.20.
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 Reg.22 of the mortgage regulations 2012. The notice of default to the
mortgagor of form six schedule 2
 The Mortgagor will be deemed to be in default warranting the mortgagee
to serve upon him or her a notice in writing of the default if the
mortgagor fails to meet any obligation after the period of 30 days from
the date when the obligation to pay becomes due
Epaineto Mubiru Vs Uganda Credit and Savings Bank (1978) HCB, the
service of notice is mandatory and the mortgagor should be served personally
Muttia vs Jimba Credit Finannce Co-operate and Anor (1986-89) E.A 340
there is no requirement nor rationale for giving a fresh notice where the sale is
postponed several times on account of promises for the mortgages to pay.
REMEDIES OR MODES OF ENFORCEMENT

S.20 where the mortgagor is in default and does not comply with the notice
served on him or her under S.19, the mortgagee may
a) require the mortgagor to pay all money owing on the mortgage

b) appoint a receiver of the income of the mortgaged land
c) Lease the mortgaged land or where the mortgage is of the lease, sub
lease the land.
d) enter the possession of the mortgaged land
e) Sell the mortgaged land.
Kakugu T Sullivan Vs Patrick Mutaya (2001-2005) HCB 105. There is no

provision under S.2 mortgage decree (now S.3 mortgage act) which empowers
the mortgagee to transfer mortgaged property to himself upon default by the
mortgagor. The available remedies are appointing a receiver taking possession
of the said land and fore closure. The plaintiff’s act of sale and transfer of land
to himself was void and illegal.
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Michael Ojatum Chuma Vs Joseph Matovu HCCS No.823 of 2000 (2000)
KALR 749; a mortgagee is free to pursue any one as all the remedies provided
for under the mortgage decree as they are accumulative since mortgage deed
allowed the mortgagee to sell without order of court. The dismissal of the
application for order of foreclosure did not take away the mortgagee’s right to
sell without an order of court.
Mortgagees’ Action for money secured by mortgage

 S. 21 (1) the mortgage may sue for money secured by the mortgage
only in the following cases:
a) Where the mortgage deed provides that if there is default by the
mortgager, the money secured by the mortgage becomes payable in full.
b) Where the mortgagor is personally bound to repay the money
c) Where a surely has agreed to be personally liable to repay the money in
circumstances that have arisen
d) Where the mortgage is deprived of the while or part of his / her security
or the security is rendered insufficient through or in consequence of the
wrongful act or default of the mortgagor.
 S.21 (2) an action shall not be commenced until the time for complying
with a notice served under S.19 has expired (75 days (30 +45)
 S.21 (3) the court may application of the mortgagor or a surety order s
stay of any proceeding of until the mortgage has exhausted all the other
remedies against the mortgaged land.
Procedure
 S.3 (9) A sum secured by a mortgage shall be deemed to be a civil debt
recoverable summon (S.2)
 S.19 CPA Cap 71 suits are to be instituted in the mode provided for in
the CPR S1-71-1
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 S.36 r.2 provides for a specially endorsed plaint as the mode to be used
in suits seeking to recover a debt.
 It is supported by an affidavit made by the mortgage or by others person
who can swear positively to the facts verifying the cause of action and
amount claimed.
 Forum is the High Court of Uganda, A 139 (1) it has unlimited original
jurisdiction S.98 CPA (sum is Ushs 250m)
Appointment, Powers, Remuneration and Duties of receivers

 S.22 (1) it is an implied condition in every mortgage that the mortgage
has the power to appoint a receiver of the income of the mortgaged
land.
 S.2 defines a receiver to mean a receiver, a manager or a receiver and
manager in respect of nay land, and includes any person appointed as
receiver.
a) By or under any document or
b) By the court in the exercise of a power to make such an appointment
given by any act or any rule of court or in the exercise of its inherent
jurisdiction.
Lochab Bros v Kenya furfurd (1985) LRC Comm 77: a receiver in

mortgages is appointed to take care of and receive property of a charge, his
appointment does not rest any property in him.
 The mortgage shall serve a notice on the mortgagor and shall nit
proceed to appoint a receiver until 15 working days have lapsed from the
date of the service of the notice of appointment of receiver (S.22 (2)
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 The notice to the mortgagor for the appointment of as receiver shall be
in form 7 schedule to the Regs (Reg 23)
 The appointment of a receiver shall be in writing signed by the mortgage
(S.22 (3))
 S.22 (4) A mortgagee may apply to the court for the appointment of a
receiver and any such application may be made in an interlocutory
application.
 A receiver shall be deemed to be the agent of the mortgagor for the
purposes for which he/she is appointed and the mortgagor shall unless
the mortgage instrument provides otherwise be solely responsible for the
acts and defaults of the receiver S.22 (6)
 The effect is that the mortgage is not liable to the mortgagor for the
receiver’s negligence or willful misconduct.
Grindlays Bank (U) Ltd v Edward Boazi CA No 23 of 1992 it was held that
a mortgagor was not liable defaults of as receiver who was improperly
appointed.
 The receiver shall have the power to demands and recover all the income
in respect to which she is appointed in the name of the mortgagor and to
give valid receipts for it (S.22 (7)
 S.22 (a) sets out the order of priority for payment of all monies received
by the receiver
a) Payment of all rents, rates, charges, taxes and other outgoing in respect
of the mortgaged property.
b) In keeping down all annual sums or other payment, and the interest on
all principal sums having priority to the mortgage in respect of which
he/she is the receiver.
c) In payment of his/her remuneration and expenses
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d) In payment of all reasonable expenses incurred in the doing of anything
which a receiver is required or entitled to do in respect of the mortgaged
land including but not limited to:
i) The payment of any premiums on any insurance policy properly
payable under the mortgage instrument and
ii) Costs of undertaking necessary and proper repairs to any buildings
comprised in the mortgaged land as directed in writing by the
mortgage
e) Repayment of any money paid or advanced buy the mortgage to meet
the reasonable expenses
f) Payment of the interest accruing and due in respect of any principal sum
secured by the mortgage.
g) Payment of and discharge of the principal sum secured by the mortgage
h) Pay the residue if any to the mortgagor or other person entitled to
receive the income from the mortgaged land.
Mortgages power of leasing

 S. 23 (1) A mortgage shall , unless the mortgage instrument expressly
provides to the contrary have power subject to this act and any other
law applicable to the leasing of land.
a) To grant leases in respect of the mortgaged land or any part of the land
and
b) To accept a surrender of by lease so granted and of any lease granted by
the mortgagor and may for that purpose execute in place of the
mortgagor any instrument required to execute that lease or surrender.
Procedure
1. Give notice/ serve notice on the mortgagor in the prescribed form S.23
(2) the mortgages shall not precede with granting or execution of a lease
until 15 working days have lapsed from the service of a notice.
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2. After 15 working dates have lapsed , the mortgagee proceeds to grant or
execute the lease(S.23 (2)
3. The terms of the lease granted by the mortgagee are in S.23(3) of the
Act
4. The mortgagee shall then enter into a les agreement with the lease. This
shall be in the form provided in the English schedule to the RTA. The
agreement should be in writing (S.101 RTA)
5. Registration of the lease S.54 RTA no instrument is effectual until
registered.
Fees payable: 22nd schedule to the RTA

On lodgment for registration of lease 10,000 item 3 (a)
If lodged in triplicate 2,000 items 4
Stamp duty 0.5% of the value of the lease, item 42
Stamps (amendment) act No 2 of 2002
 S.23 (4) A lease created by a mortgage under this section shall nit be
binding on any person holding a mortgage which has priority to the
mortgage of the mortgage who has granted the lease unless that person
has consented to it.
Power of mortgagee to take possession of mortgaged land

 S.24 (1) mortgage Act: A mortgage may after 45 days in S.19 and after
serving a notice of not less than 5 working days of his / her intent to do
so, enter into possession of the whole or part of the mortgaged land.
 Reg 26 mortgage regulations before taking possession, the mortgagee
shall give notice to the mortgagor in form 10 in schedule 2.
 S.24 (2) mortgage act: A mortgagee may exercise the power of entering
into possession of the mortgaged land by:
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a) Entering into and taking physical possession of the land or a part if it
during the day time using only such force as shall be reasonable in the
circumstances.
b) Asserting management or control over the land by serving a notice in the
preserved form requiring any lessee of the mortgagor any rent or profits
which would other be payable to the mortgagor.
 The mortgagee takes possession of the premises by serving the
occupiers of the land with a notice to pay rent directly to the
mortgagee. Mubiru V Uganda credit and savings bank (1978)
HCB 109
c) An order of court by law assumes certain powers and duties. The
mortgagee’s powers include collecting any incomer from the mortgage
land. The principal duties of a mortgagee in possession are to account
not only for the income received from the mortgaged property but also
that which he/she ought to have received by exercise of due diligence
(S.24 (5)) due to the heavy responsibilities imposed upon a mortgage
who enters into possession, it is not advisable for the mortgage to
exercise this remedy except as a preliminary step towards selling the
mortgaged property. Alternatively a mortgage may avoid this
responsibility by appointing a receiver to enter into possession.
 S.25 withdrawal of mortgagee from possession a mortgagee shall
withdraw from possession of the mortgage land where:
a. A court makes an order directing the mortgagee to withdraw
b. The mortgagee appoints a receiver under S.22
c. The default which was the cause of the entry into possession has
been rectified through the possession of the mortgagee.
d. The mortgagee has exercised the power of sale under S.26 (2) or
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e. The mortgagor becomes entitled to a discharger of the mortgage
under S.14
 S.25 (2) A mortgagee in possession shall be taken to have
withdrawn from possession of all or a part of the mortgaged land
a. When the court makes an order under sub section (1)
b. When the receiver has been appointed in accordance with S.22
c. When the mortgage
- Ceases to occupy the mortgaged land
- When he/she is not occupation , servers a notice of withdrawal on
all persons served with notice and S.24 (2) (b)
d) When the purchaser of the mortgaged land enters into occupation of that
land or
e) When the mortgagor obtains the discharge of the mortgage.
 S.25 (3) – a mortgage who has withdrawn from possession of
mortgaged land may not again enter into possession of that land,
otherwise that by complying with S.24
 Reg 26(7) notice of withdraw is in form 11 (2) d schedules (Reg)
Mortgagee’s power of sale

 S.26 (1) A mortgagee may exercise, his her power of sale of the
mortgaged land, where a mortgagor is in default of his / her obligations
under a mortgage and remains in default at the expiry of the time
provided fir the rectification of that default in the notice sewed on his /
her under S.19 (3).
 S.26 (2) before exercising the power to sell the mortgaged land , the
mortgage shall serve a notice to sell in the prescribe form on the
mortgagor and shall not proceed to completely any contract for the sale
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of mortgaged land until 21 working days have lapsed fir the duty of the
service of the notice to sell.
 Reg 25 before exercising the power to sell under S.26 of the Act, the
mortgagee shall give note to the mortgagor in form 9 in schedule 2.
 S.28 (3) A copy of the notice to sell served in accordance with sub
section (2) shall be served on:
a. A mortgagor
b. Any spouse or spouses of the mortgagor in respect of matrimonial home
c. A surety
d. The independent person as provided under this action
e. In case of customary land, the children and the spouse or spouse.
S.27 Duty of mortgagee exercising power of sale

 S.27 (1) A mortgagee who is exercising a power to sell the mortgaged
land owes a duty of café to the mortgagor any surely of the whole or any
part of the sums advanced to the, mortgagor, any mortgagee under a
subsequent mortgage including a mortgage on customary land or under
a lien to take all reasonable steps to obtains the best price as prescribed
in the regulations.
 S.27 (2) A mortgagee shall not be liable to any compensation or
indemnity from the mortgagor, any formers mortgagor or any surely in
respect of any liability arising from a breach of the duty imposed by sub
section 1.
 Reg 11 the Mortgagee shall before selling the proper value the property
to ascertain the current market value and the forced sale value of the
property (Reg 11 (1))
 The valuation report shall not be made more than six months before the
date of sale.
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 The valuation report shall contain the current pictures of the property,
including:
a) The front view of the property
b) The side view of the property and
c) The detailed description of the property.
Cuckmere Brick Co Ltd v Mutual finance Ltd (1971) 2 ALL ER 633 a

mortgagee must not disregard the mortgagor’s interest but must take
reasonable care to obtain the true market value of the mortgaged property at
the moment he chooses to sell it.
 Where the mortgagor is in possession of the mortgaged property at the

time of sale, the mortgagor shall upon notice give accessed to the
mortgaged property to
a. The person authorized by the mortgagee to value property.
b. Person inspecting the property after advertisement for the purposes if
purchase (Reg 12 (2))
 Where the mortgagor refuses to give access to mortgaged property, the
mortgages shall take possession of the properly for the purposes of
valuation and inspection at the cost of the mortgages.
 S.28 (1) where a mortgagee becomes entitled to exercise the power of
sale, that sale may be
a. Of the whole or a part of the mortgaged land
b. Subject to or free of any mortgage or other circumstances having priority
to the mortgagee’s mortgage
c. By way of subdivision or other wise
d. By public auction, unless the Mortgagor consents to sale by private
treaty.
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Sale by public auction
 S.28 (1) (d) of the mortgage Act
 S.28 (2) where a sale is to proceed by public auction , it shall be the duty
of the mortgage to ensure that the sale is publicly advertised in advance
of the sale by auction in such a manner and form as to bring it to the
attention of persons likely to be interested in bidding for the mortgaged
land.
 The advert may include but not limited to the mortgagee placing on
advert including a colored picture of the mortgaged property, in
newspapers which have wide circulation in the area concerned specifying
the place of the auction and the date of the auction, being no earlier than
30 days from the date of the first advert (Reg 8 (30)
 Reg 8 (1) A mortgagee exercising a power of sale under the Act shall sell
the mortgaged property public auction.
 After giving notice the mortgage shall give notice of the public auction by
advertising the intended sale on a wide circulation.
 A sale shall note take place before the expiration of all working days from
the date of service of the notice as specified in s.26 of the act. (reg 8(4).
 A person who contravenes reg.8 commits an offence and is liable on
conviction to a fine not exceeding three years or both. (Reg. 8(5).
 Reg .13(1), the court may on the application of the mortgagor or any
other interested party and for reasonable cause, adjourn a sale by public
auction to a specified date and time upon payment of a security deposit
30% of the forced sale value of the mortgaged property or outstanding
amount.
 Reg. 14 (1) act the fall of the hammer, the person declared purchaser
shall within the working day pay a deposit of at least 30% of the
purchase amount to the officer conducting the sale.
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 Where the purchaser defaults in paying the deposit, the property is
resold (Reg 14(2). The balance shall be paid to the officer who
conducted the sale within 21 working days.
 s.2 8 (3) transfer of the mortgaged property shall be made in the
prescribed form.
 Reg. 15 of the Regs; Reg.21 transfer of mortgaged land by the mortgage
to a purchaser shall be inform 5 in schedule 2.
 s.28 (4) upon registration of the transfer the interest of the mortgagor
shall pass and vest in the purchaser free of all liability or encumbrance to
which the mortgage has priority other than a lease or easement
consented to in writing.
 S.29 protection of the purchaser, Reg 16- an irregularity in conducting a
sale by auction shall not vitiate the sale but any person suffering
loss/injury as result of the irregularity may bring an action for damages
or compensation against the mortgage or the person who conducted the
sale
 Where a person suffering loss or injury as a result of any irregularity in
conducting a sale by action is the purchaser that a person may bring an
action for declaration of ownership.
Sale by court order/foreclosure

 Reg.9 where the court makes an order for sale of mortgaged
property the sale shall be conducted in the manner directed by
court. 0.37r 4 CPR-procedure is by originating summons for relief
of sale or foreclosure. It should be supported by an affidavit.
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Sale by private treaty
 Reg .10 (1) a mortgage exercising a power sale under the act with
the consent of the mortgagor may sell the mortgaged property by
private treaty. Consent of the mortgagor shall subject to s.26 be
by written notice (Reg 10(2).
 The mortgagor’s consent shall not be retrospective (Reg.10 (3).
Williams vs. Morgan (1996) ch-804, the right to proceed does not answer
until repayment has become due all law for while equitable right to redeem has
anise it can’t be extinguished by foreclosure, repayment is due at law when it
is at lease.
Features /characteristics of a mortgage

1. Contract
Pneumatic Printing co. vs. Simpson, Jessel MR held that men of
competent age and of sound mind shall have the utmost liberty to
enter into binding contracts which shall be enforceable in courts of
law. The terms to be incorporated in a mortgage deed follow
principles of freedom of contract. S.54 contracts act 2010.
2. A mortgage is merely security.
s.8 (1) mortgage act; a mortgagee shall have effect as a security only and shall
not operate as a transfer of any interest or right in the land form from the
mortgagor to the mortgagee.
s.8 (2) where the mortgagor signs a transfer as a condition for the grant of a
mortgage, the transfer shall have no effect.
Equity’s protection of a mortgagor is summed up 10 the maxim once a

mortgage always a mortgagee at the request of the mortgagor and at his/her
cost.
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S.15 Release of a mortgage.
 S.32 right of mortgagor to discharge mortgage on payment of sums due
any time before sale.
Samuel vs. Jarrah Timber and Wood Paving Corporation (1904) A.C. 323
at 329; Knightsbridge Estao Trust ltd vs. Byme and ors (1939) ch.D 441.
A mortgage provided for the repayment of the principal and interest by eight
half yearly installments spread over the period of 40 days. In view of falling
interest rates, the mortgagor sought to redeem early in order to take
advantage of a loan somewhere on better terms. The mortgagor sought a
declaration that postponement of redemption for a period of 40 years was
unreasonable because of its length and that it was entitled to redeem at any
time by serving a six month notice.
Held; that postponement is a dog if it subsist so as to make the equity of

redemption illusion and that there should be no clogging of equity of
redemption.
Note; equity of redemption anises due to the fact that transaction is a mere
loan. Equity of redemption comes first before foreclosure and before
foreclosure and before the mortgaged property is available for disposal.
3. Interest
s.3 (1) mortgage act allows a person holding land under any form of land
tenure may mortgage his/her interest in the land.
NB. Where the mortgaged deed is lost and it can be have anywhere, and a
mortgagee wants to recover your land to sell by an order of court.
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WORKSHOP 2
BREIF FACTS.
Raymond Ola obtained a loan of shs. 18 million from side lay financial services
limited, a licensed money lender repay in January 2013 repayable over a
period of one year in equal installments of shs. 3 million per month.. Raymond
Ola paid only 7 months installments by January 2014. On 28th February 2015,
the money lender advertised for the sale of land comprised in FRV 1334 folio
48 plot 11 Sidon road, muyenga which Raymond had given as security and
asked him to vacate. Joseph Aine has picked interest in purchasing the land
however the land has a residential house in which Raymond resides with his
wife and three infants. Olivia has refused to vacate on grounds that she was
not aware and did not benefit from the loan.
LAW APPLICABLE
1. Money lenders act cap.273

2. The money lenders (licenses and certificate) rules s.1 273-1
3. Mortgage act no. 8 of 2009
4. Restrictions of mortgaging property
5. Family land s.39 land act.
6. National property s.5 and 6 M.A spousal consent.
RESOLUTIONS OF ISSUES.
Existence of a mortgage.
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Barclays bank of Uganda vs. Gulu Millers Limited (1954) 540; under the
doctrines of equity a deposit of deed with intention to create a security
amounts to an equitable mortgage.
Raymond Ola had given as security for the loan of certificate of title of land
compromised in FRV 1334 folio 48 plots 11, Sidon road Muyenga and this
amount to creation of an equitable, hence the money lenders act doesn’t apply
to this transaction with regard to s.21 of the money lender’s act.
Whether the mortgage was valid,

 s.3 (1) of the mortgage act empowers a person holding land under any
form of tenure to mortgage his or her interest in the land by an
instrument to secure the payment of an existing debt.
 S.2 (2) of the mortgage act of land ensures that power shall be
exercisable subject to any prohibition or limitation imposed by the
mortgage act.
 S.5 (1) mortgage act provides that notwithstanding s.39 of the land act,
a mortgage of a matrimonial home, is valid if any document or form
used in applying for the mortgage is signed by or there is evidence from
the document that if has been assented to by the mortgagor and the
spouse or spouses of the mortgagor living in the matrimonial home, or
any document or form used to grant the mortgage is signed or there is
evidence of it being assented to by the mortgagor and the spouse(s)
living in the matrimonial home.
 Therefore the intending mortgagee shall take reasonable steps to
ascertain whether an intending mortgagor is named and whether or not
the property to be mortgaged is a matrimonial home, (s.5(2) (a)
mortgage act.)
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 The intending mortgagor has duty to make full disclosure to the
intending mortgagee as to his/her marital status and whether or not the
property to be mortgaged is a matrimonial home. (s.5 (2) (b). This is
done or the duty is discharged where the mortgagee obtains a marriage
certificate issued in accordance with the laws in Uganda and in its
absence and statutory declaration from the spouse or spouses as proof of
marriages. (s.5 (30.
 S.6 (1) mortgage act; where a matrimonial home is the subject of an
application for a mortgagee, a mortgagee shall satisfy himself or herself
that the consent of the spouse is an. Informed and genuine consent and
that duty is denied to have been complied with if;
a. The mortgagee has explained to the spouse(s) of an applicant in the
presence of an independent person the terms and conditions of the
mortgage which is being applied for or advised the applicant in writing
that he should ensure that his spouse receives independent advice on
the terms and conditions of the mortgage.
b. The spouse provides a signed and witnessed document to the effect
that they have received independent and on the mortgage which is
being applied for and have understood and assented to the terms and
conditions. The mortgage or that they have notwithstanding the advice
from the mortgage waived their right to take independent advice.
 Reg. 3 (1) of the mortgage regulations, a mortgage shall require the
applicant to state whether he or she named and;
a. Where the applicant for a mortgage states that he or she is named, he or
she shall make a statutory declaration to the effect stating the name and
address of the spouse or
b. Where the applicant states that he or she is not named, the applicant
shall state so in a statutory declaration. Where a person applying for a
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mortgage state that he/she also make statutory declaration to that
effect. Reg 5 (2)
 The applicant who declares that he/she named shall attach a certified
copy of the marriage certificate or any other evidence of the marriage to
the declaration. (reg 5 (3).
 The consent of the spouse and the holder is in form 2 in schedule 2
reg.19
In our facts, the land was given as security without Olivia’s consent as there is
no evidence that Olivia assented to the mortgage.
Therefore the advice that I would give to Joseph Aine is not to the purchase
the property.
ISSUE TWO
STEPS THAT WOULD HAVE BEEN TAKEN PRIOR TO THE LAWFUL SALE.
 S.20 (c) remedy to sell the mortgaged land by mortgagee, the
mortgagee may give a notice of default as produced under s.19 of the
mortgage act. There is no default until the mortgagor has been given
notice of default.
 Under s.19(4), a mortgagor is deemed to be in default warranting the
service of a notice in writing if he fails to pay within 30 days from the
date when the obligation to pay becomes due.
 The mortgagee will then sew upon the mortgagor a demand notice
inquiring the mortgagor to rectify the default with 45 working days. (s.19
(2).
 Valuation of the mortgaged land is done by mortgagee reg.11 (1)
mortgage regulations. The valuation report is made more than six
months before the date of the sale. (reg.11 (2).
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 Notice of foreclosure on the mortgagor’s right of redemptions is served
on the mortgagor.
 If sale is by public auction advertisement of the sale of the mortgaged
land is done in a newspaper of wide circulation for 30 days s.28 (2) reg.8
 If the sale is by private treaty there needs to be consent of the
mortgagor which must be in writing. (reg. 10)
 Side lay financial service ltd will the transfer the mortgage by a transfer
in form 5 in schedule 2 of the mortgage regulations. (reg 11 (2) of the
mortgage regulations and s.17 of the mortgage act.)
 The mortgage will then be automatically released.
 Stamp duty payment and legislation.
ISSUE THREE
What is the procedure to be taken to obtain vacant possession of the land.

S.29 of the Mortgage Act provides for protection of the purchase. Under S. 29
(1) a purchaser acquired good title except in a case of fraud, misrepresentation
or other dishonest conduct on the part of the mortgage of which the purchase
has actual or constructive notice.
The obligation to provide vacant possession is the legal commitment to ensure

that when a construct for sale is completed or a lease is terminated, property
fit for occupation both physically and legally
a. When the property is sold or a lease is granted

b. When a tenant vacates at the end of the term
c. When there is a breach of s covenant
The procedure to be taken to obtain vacant possession is by way of instituting

a suit by originating summons accompanied by an affidavit under 0.37 of the
CPR or notice of motion under 0.52 of the CPR accompanied by an affidavit.
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S.98 of the CPA provides that nothing act shall limit or otherwise affect the
inherent power of the court to make such orders a may be necessary for the
ends of justice or to prevent abuse of court process.
The remedy that could be sought from court is the grant of an eviction order
Negotiations between Olivia and Raymond could also be carried out as a

preliminary step before going to court.
VALIDITY OF A MONEY LENDING TRANSACTION
1. Carrying out money lending without a license makes the transaction

illegal
S.2 of the money lenders Act requires annul license to be taken out, and makes
it an offence to carry out such business without a license.
Naks Ltd v Kyibe Senyange (1982) HCB 52, it was held that in that case
that since the plaintiff had no lending license, any agreement or contract so
made in default was illegal and could not be enforced by the courts on the
basis of the maxim ex-turpi cause non orito action simply means that no court
will lend its aid to a man founds his cause of action union an immoral or illegal
act.
S.2 (4) of the act, it is an offence to carry on business as a money lender

without having in force a proper money tenders license authorizing on to do so.
Litchfield v Dreyfus (1906) KB 584 at 588 -89 in a man who carries on

business as a money lender and is not registe4d under the Act, cannot recover
but not every man who lends money at interest carries on business of money
lending speaking generally a man who carries on a money lending business is
one who is ready and willing to lend to all and Sunday provided that they are
from his point of view eligible.
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2. The contract should be in writing S.6 of the CT on form of money lending
contracts.
3. Interest rate S.12 puts a ceiling on the interest rate at 24% S.12 (!) S.12
gives court power to treat any interest that exceeds 24% p.a or the
corresponding rate in respect of any other period as excessive and the
transaction as harsh and unconscionable.
Alice Okiror and Anor v Global Capital save 2004 and Amor HCCS No
144/2010 held that interest charged at 12% per month would translate to
144% p.a and was harsh and unfair for a money lender to charge and was
contrary to the money lender Act.
Black law dictionary 7th Ed at page 1526 defines unconscionable to mean

extreme unfairness and unconscionable as having no conscience, unscrupulous
affronting the sense justice decency or reasonableness.
Juma vs Habibu (1975) E.A 103 set aside the interest rate apparently agreed
on by the parties for reasons that it was inherently excessive and
unconscionable.
Multi Service Book Binding Ltd and Ors V Marden, (1975) to ALL ER 489
at 502, established that a bargain cannot be unfair and unconscionable unless
one of the parties to it has imposed the objectionable terms in a morally
reprehensible manner that is to say in a way which affects his conscience.
S.26 CPA, cap 71 as applied by the court in A.G vs. Sam Somanda supreme
court civil appeal No.8/2006, provides that where an agreement for the
payment of interest is sought to be enforced and the court is of the option that
the rate agreed to be paid is harsh and unconscionable and ought not to be
enforced and the court may give judgment for the payment of interest as it
may think just.
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Dembe Trading Enterprises ltd vs. Welcome Impex ltd HCSS No. 0246 of
2006 adopted the definition of unconscionable as laid down in the money
lenders act cap 273.
4. The money must commence recovery within one year from the date the
cause of action arises s.19 of the act.
5. The contract must be secured by chattel or real property.
NB. The rights under the money lenders act are very restrictive, s.21 provides
for the transactions in which not apply.
B. BRIEF FACTS.
Eustace Nakalanzi obtained a loan of shs. 97 million from Trust Bank ltd
in October 2013 carrying interest at 23% p.a. repayable in 3 years. The loan
was secured by deposit of her certificate of title to land comprised in Kibuga
block 8 plots 23 Namirembe. In March 2014, Eustace discovered that the loan
amount had been disbursed six months late but interest had been charged
from the date of the loan application, the interest amount was 28% p.a.
without her having agreed, the loan was converted into an overdraft and a
charge added to the principal amount the bank had charged her account with
legal fees paid to its lawyers without her having agreed, the loan was
converted into an overdraft and charged her account with legal fees paid to its
lawyers without her agreeing to it, the bank had also charged her account with
fees for registration of the mortgage but have never registered the mortgage
by the end of the loan period she would have paid 60% over the above what
she expected to pay and wants to pay a stop to this financial justice.
ISSUES.
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1. Whether the actions of the bank constitute a breach to warrant Eustace
to a remedy.
2. What is the remedy available to Eustace?
3. What is the procedure for obtaining the remedy?
4. What are the necessary documents?
LAW APPLICABLE.
1. The mortgage Act , act No.8 of 2009

2. The mortgage regulations.
RESOLUTION OF ISSUES.
ISSUE ONE.
Whether the variations by the bank constitute a breach;
1. The loan amount had been disbursed 6 months late but interest had
been charged on the date initially agreed on. S.4 (1) mortgagor shall act
honestly and in good faith and disclose all relevant information relating to
the mortgage.
A mortgagee who fails neglects or fails to disclose relevant information to
a mortgage and which is in his/her possession commits an offence and is
liable on conviction to a fine not less than 24 months but not exceeding
60 months or both.
In the instant case, the Trust Bank ltd as a mortgagee breached its duty
to act honestly and in good faith.
2. The interest applied to the loan was actually 20% without Eustace over
agreeing to a higher rate. The interest rate was agreed at 23% p.a.
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S.12 (1) mortgage act provides that the rate of interest payable under a
mortgage may be reduced or increased by a notice served on the
mortgagor by the mortgagee which shall;
a). give the mortgagor not less than 15 working days written notice of
the reduction or increase in the rate of interest.
b). state Cleary and in a manner which can be readily understood, the
new rate of interest to be paid in respect of.
c). states that the covenants, conditions and powers expressed or

implied in the mortgage are varied in the manner specified in the
memorandum. In the case, the mortgage unilaterally varied the interest rate of
the mortgage from 23% to 28% and no notice was served on the mortgagor as
required by the mortgage act of 15 working days.
In Epainetu Mubiru vs. Uganda credit and savings Bank (1978) HCB, it
was held that it is mandatory to serve notice and the mortgagor is to be
personally served.
3. The loan had been converted by the bank into an overdraft and a charge
was being levied by the bank on the unutilized amount of the facility and
the charge added to the principal amount owing.
Having regard to s.4 mortgage act, the bank breached its duty to act in
good faith and honestly as a mortgage.
S.12 (2) of the mortgage act, the amount secured by the mortgage may
be reduced or increased by a memorandum which is endorsed or
annexed to the mortgage instrument, signed by the mortgagor
instrument, signed by the mortgagor in case of increase and state that
the principal moneys intended to be secured by the mortgage are
increased.
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s.12 (5) of the act, the memorandum shall be endorsed on or annexed to
the mortgage on or annexed to the mortgage in accordance with the
terms of the memorandum.
The loan was converted into an over day without Eustace’s consent and
this was a breach of the contract between. Trust bank Uganda limited,
the overdraft was also erroneous as she had control over the repayment.
4. The bank had charged her account with legal fee paid to the bank’s
external lawyers who had carried out the due diligence on behalf of the
bank before getting the loan which charges she has not been aware of or
agreed to.
S.4 of the mortgage act duty of disclosure of information. S.4 (1) (b) of
the act provides that the mortgage shall disclose all relevant information
relating to the mortgage.
S.18 (1) (a) of the mortgage act provides that there shall be implied in
every mortgage the covenant to pay all rates, charges, rent, taxes and
other outgoings payable in respect of the mortgages land and the
covenant is binding on the mortgagor.
This therefore was a breach on the part of the bank as it did not disclose
this information.
5. Failure of the bank to register the mortgage after charging her account
for registration fees is contravention of s.4 of the mortgage act as the
bank did not act in good faith or discharge its duty to disclose.
ISSUE TWO.
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REMEDY AVAILABLE TO MORTGAGEE
S.34 of the mortgage act, where a mortgage has been obtained through
fraud, deceit, misrepresentation by the mortgagor or in a manner which
is unlawful, the court may review the mortgagor in the interest justice.
S.36 of the mortgage act, upon application under s.34, the court may;
a. declares the mortgage world.
b) direct that the mortgage shall have effect subject to such modifications as
the court shall order.
c) Require the mortgagee to repay the whole or part of any sum paid under
the mortgage.
The court shall not declare the mortgage void unless it is satisfied that the
circumstances justify it (s.36(2))
s.36 (3), where an application is made on the grounds that the mortgage
contains any provision which is unlawful and unconscionable or extortiate the
court shall to the greatest extent possible, uphold the mortgage with the
omission of the unlawful, unconscionable and extortionate provision.
Pelican investment ltd & another v national bank of Kenya ltd (2000) 2
E.A 488 except in cases of fraud undue influence or oppression, courts will not
interfere on matters of interest charged arising from a contract.
The remedy available to Eustance is to apply to court to review the

mortgage. Eustance would institute a suit and seek orders that;
a) The acts of the bank were unlawful

b) The mortgage be set aside in so far as it varied, the interest rate, it
converted the loan into an overdraft among others.
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c) The mortgagor (Eustance) be reimbursed all monies unlawfully charged
d) The costs of the suit be provided for .
The mortgager can also seek for an order of specific performance.
ISSUE THREE
Procedure for obtaining the remedy
The procedure is by notice of motion as provided for under 0.52 of the

CPR. 0.52, 3 of the CPR., the notice of motion shall state in general
terms the grounds of the application and the affidavit shall be served
with the notice of motion.
0.52 r 2 notice should be given to the bank as a party affected by the
motion .
ISSUE FOUR
Notice of motion
MISC. CAUSE NO. 025 OF 2015
EUSTANCE NAKALANZI APPLICANT
VERSUS
TRUST BANK (U) LTD RESPONDENT
NOTICE OF MOTION
Under s. 98 CPA, 0.5 r 1 and 3 (CPR)
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TAKE NOTICE that this honorable court shall be moved on this 4 th day of
March 2015 at 10:00 o’clock in the forenoon or soon thereafter as
counsel for the applicant can be heard on an application for orders that;
a) The acts of the respondent were unlawful
b) The mortgage be set aside in so far as it varied the interest rate and
converted the loan into an overdraft
c) The applicant be reimbursed all the unlawful monies charged
a) Costs of this application be provided for
TAKE FURTHER NOTICE that this application is supported by an
affidavit of the application Eustance Nakalanzi attached hereto but
briefly the grounds of the application are;
i) That the interest rate of the loan agreement was varied without
her consent.
ii) That the loan was converted into an overdraft and the principal
amount increased without her consent.
iii) That it is just and equitable that the court sets aside the
mortgage/review the mortgage.
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Dated at Kampala this 2nd day of march 2015.
……………………..
Counsel of applicant
GIVEN under my hand and seal of this court this o3rd day of March
……………………………
REGISTRAR.
Affidavit in support
I Eustance Nalanzi of the C/o firm H2 and Co. Advocates P.o box 7117,
Kampala do hereby make oath and state as follows;
1. That I am a female adult Ugandan of sound mind. The applicant herein

and I swear this affidavit in that capacity.
2. That I obtained a personal loan of Ugshs 97 million from Trust Bank (U)
Ltd in October 2013.
3. That the loan was carrying interest at 23% p.a repayable in 3 years.
4. That the loan was secured by deposit of my certificate of title of land
comprised in Kibuga block 8 plot no. 23 Namirembe.
5. That in march 2014, I discovered from my Bank statements that the loan
amount had been disbursed six months late but interest had been
charged from the date of the disbursement initially agreed upon.
6. That the interest rate was 28% p.a and I had not agreed to higher
interest rate.
7. That the loan had been converted into an overdraft and this increased
the principal amount without my consent.
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8. That the bank had charged my account with all the duties and fees for
registration of the mortgage on the land but it was never registered.
9. That by the end of the loan period, I would have paid 60% over and
above what I am expected to pay.
10. That I swear this affidavit in support of an application for review of
the mortgage.
11. That whatever I have stated herein above is true to the best of my
knowledge and belief.
SWORN at Kampala this 2nd day of march 2015 by the said Eustance
Nakalanzi.
…………………………
Deponent
Before me
………………………
Drawn and filed by;
……………………….
BRIEF FACTS
In June 2013, Karl Marx Insurance Brokers Ltd obtained a loan of Shs.
19,000,000 from Uganda insurance association (UIA) repayable within one
year and the loan was secured by 2 securities land and guarantee by Lenin
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Opera. A demand was made on the guarantor under an on demand guarantee
opera feels that UIA wants to embarrass him especially since there are 8
months within which the mortgagor can repay the loan and there is security in
form of the mortgaged land which is ample in value to repay the loan.
GUARANTORSHIP
 A contract of guarantee is defined in s.68 contracts act 2010 to mean a
contract to perform a promise or to discharge the liability of a third party
in case of default of the third party which may be oral or written.
 A guarantor means a person who gives a guarantee.
 Principal debtor means a person in respect of whose default a guarantee
is given.
s. 70 contracts act, anything done or any promise made for the benefit of a
principal debtor may be sufficient consideration to a guarantor to give a
guarantee.
According to s. 71 contracts act, the liability of a guarantor shall be the extent

to which a principal debtor is liable unless otherwise provided by a contract. (s.
71 (1). The liability of a guarantor takes effect upon default by the principal
debtor S. 71(2).
Halsbury’s laws of England 4th edition vol. 20 paragraph 193, the liability
of a guarantor arises only upon the default of the principal debtor in his/her
obligations.
Bank of Uganda v Banco Arabe Espanol C.A 23/2000
Once a principal debtor defaults, the guarantor has a duty to repay the loan.
Moschi v Lep Air Service Ltd (1973) A.C

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Held that on default of the principal debtor, apart from some special stipulation
to the contrary, the surety guarantor is immediately liable to the full extent of
the obligation without being entitled to inquire about either a notice or a
default or previous recourse against co-sureties.
Paget’s law of banking 12th edition page 730 paragraph 34.2 it stated that;
“The essential difference between a guarantee in the strict sense (i.e. a

contract of suretyship) and a demand guarantee is that the liability of a
surety is secondary, whereas the liability of the issuer of a demand
guarantee is primary. A surety ship liability is co-extensive with that of the
principle debtor and if default by the principle debtor is disputed by the surety.
It must be proved by the creditor. Neither proposition applies to a demand
guarantee. The principle which underlies demand guarantee. The principle
which underlies demand guarantees is that each contract is autonomous.
In particular the obligations of the guarantor are not affected by dispute under
the underlying contract between the beneficiary and the principal if the
beneficiary makes an honest demand. Whether as between himself and the
honor of the demand, the principal must reimburse the guarantor (or counter-
guarantor) and any dispute between the principal that the drawing was a
breach of the contract between them, must be resolved in separate
proceedings to which the bank will not be a party.
Edward Owen Engineering v Barclays bank international ltd (1978) 1 98

159; lord denning held inter alia that the issuer must pay according to its
guarantee on demand if so stipulated without proof of condition, the only
exception being fraud. Such guarantees are virtually promissory notes that are
payable on demand.
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It was held that a performance guarantee must honor the guarantee according
to its terms. It is not concerned in the least with the relations between the
supplier and contractual obligations nor with the question whether the supplier
had performed his contractual obligations or not nor with the question whether
the supplier is in default.
The bank must pay according to its guarantee on demand. If so stipulated,

without proof or conditions only exception is where there’s fraud of which the
bank has notice.
Lion assurance co ltd v national housing and construction co. ltd HCMA
No. 411/2013; Madrama J held; demand grantees are autonomous from the
underlying contract which when a demand is made. It should be settled
especially if the wording is such as to make it clear that the guarantor
undertook to make good upon demand without proof of conditions. The
settled exception being fraud. The relevant date for knowledge of fraud
is a date prior to payment.
The exception or distinction of on demand guarantees however, does not apply

where a mortgage was created.
Mana Odido v Barclays Bank of Uganda ltd HCMA E 45/2008

(unreported) if default by a principal debtor is disputed by the guarantor, it
must be proved by the creditor before the guarantee is made enforceable
notwithstanding the understanding that is an on demand guarantee.
The same was reiterated in William Sebuliba Kayondo and Berkeley

education enterprises ltd v Barclays bank of Uganda ltd HCMA No.
325/2008, this was a summary suit by the respondent to recover a mortgage
debt from a guarantor on an on demand guarantee.
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Held; s.26 of the mortgage act which provides for collateral security as an
addition to the principal security implies that a guarantee notwithstanding that
is an on demand guarantee cannot create an obligation greater than the
obligation of the mortgagor under the mortgage as provided under the law.
George Semivule V Barclays Bank (U) Ltd HCMA 267/2008 where a

mortgage was created, the extent of the guarantor’s obligation is constrained
by the obligation under the mortgage.
The mortgage act under s.21 (3) appears to similarly limit the obligation of the
guarantor to the lawful obligation of the principal debtor. It provides that on
application of the mortgagor or a surety, a court may order a stay of any
proceedings brought under the section until the mortgagee has exhausted all
his or her other remedies against the mortgaged land, unless the mortgagee
agrees to discharge mortgage on payment of the money secured by the
mortgage.
A surety is defined under s.2 of the mortgage act to mean a person who offers
security in the form of money or court to ensure the payment of any monies
secured by a mortgage and includes a guarantor.
Smith v wood (1929) 1 page 4 about a security may be discharged if there

is any agreement between the principal with reference to the contract
guaranteed, he surety ought to be consulted and if the surety has not
consented to the alteration, the surety himself must be the sole judge on
whether or not he will consent to remain liable notwithstanding the alteration
and if he has not so consented, he will be discharged.
Shelby v Federated European bank ltd (1932) 1 KB 254, it was observed

that it must always be recollected in what manner a surety is bound, you bind
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him to the engagement you have no hold upon him. If a written agreement is
altered in a single way, no matter whether it is altered for his benefit, whether
the alteration is innocently made, he had a right to say that he is no longer
bound for that for which he engaged to be a surety, this brings an end to the
contract that he guaranteed as well as to his obligation under such a contract.
Fina Bank Ltd Spares And Industries Ltd (2000) 1 E.A 52, the function of
the court is to enforce what is agreed between the parties and not what the
court thinks alright to have been fully agreed between the parties.
Fina Bank Ltd V Ronak Ltd (2001) E.A 65; the court must leave parties to
their bargain, good or bad.
Paul Kasagga and Andrew Kasagga V Barclays Bank (U) Ltd HCMA
113/2008; held
i) A guarantee is a contract whereby a person contracts with another to

pay a debt of a third party who notwithstanding remains primarily
liable for such payment. The guarantor’s liability for the non-
performance of the principal debtor’s obligation is co-extensive with
that obligation. If the principal debtor’s obligation turns out not to
exist or is void or diminished or discharged, so is the guarantor’s
obligation in respect of it.
ii) A guarantees obligation is secondary and accessory to the obligation
of performance of which is guaranteed. The guarantee undertakes
that the principal debtor will perform his obligation to the creditor and
that the guarantor will be liable to the creditor if the principal debtor
does not perform.
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Therefore the obligation of the guarantor/surety is to pay the outstanding debt
upon default or on demand by the borrower.
S.26 (3) (c), the notice to sell is served on the surety in case of default among
other persons.
The rights of the guarantor include the right to indemnification s.58 contracts
act, s.53 (1) provides that in every contract of a guarantee, there is an implied
promise by a principal debtor to indemnify a guarantor.
s.85 (2), a guarantor is entitled to recover from a principal debtor any sum the
guarantor might have paid under the guarantee on the contract.
Does a guarantor to the first mortgage entitled to indemnification take

priority over the second mortgagor?
Drew locket (1863) E.R 589, surety who paid off a debt for which he became
surety must be entitled to all equities which creditor debts he paid off could
have enforced not merely against the principal debtor but against all persons
claiming under him. It should be observed that the second subsequent
mortgagee is in no respect prejudiced by enforcement of his equity.
When he advances his money, he knows perfect well that there is prior charge
on property and if he thinks it to advance his money on such security it is his
own affair and cannot afterwards with justice complain.
S .43 mortgage act allows use of doctrines of equity and common law.
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Discharge of guarantor
S. 74 contracts act; any variance made in the terms of a contract between a

principal debtor and a creditor without the consent of a guarantor discharges
the guarantor from any transaction which is subsequent to the variance.
s. 75, a guarantor is discharged by any contract between a creditor and

principal debtor where the principal debtor is released or where the creditor
discharges the principal debtor.
s. 76; a contract between a creditor and a principal debtor where the creditor
makes a compromise with the principal debtor or promises to give time or not
to sue the principal debtor discharges the guarantor unless the guarantor
assents to the contract.
Section 80; a guarantor is discharged where the eventual remedy of the

guarantor against the principal debtor is impaired because a creditor does any
act which is inconsistent with the right of the guarantor or omits to do any act
which his/her duty to the guarantor requires him/her to do.
Circumstances where the guarantor is not discharged
S. 77; where a contract to give time to a principal debtor is made by a creditor

with a third person and not with the principal debtor, the guarantor is not
discharged.
S. 78; mere forbearance on the part of a creditor to sue a principal debtor or to

enforce any remedy against the principal debtor does not discharge the
guarantor.
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S .79; where there are co-guarantors, a release of one of the guarantor by a
creditor does not discharge the other guarantors and does not free the
released guarantor from his/her responsibility to the other guarantor.
Rights of a guarantor
S .81; where a guaranteed debt becomes due or where default of a principal

debtor to perform a guaranteed duty takes place, the guarantor is upon
payment or performance of all that the guarantor is liable for, invested with all
the rights which the creditor had against the principal debtor.
S .82 (1)- a guarantor is entitled to the benefit of every security which a

creditor has against a principal debtor at the time a contract of guarantors is
entered into whether the guarantor knows the existence of the security or not.
S .82(2) where a creditor loses or parts with the security without the consent
of the guarantor, the guarantor is discharged to the extent of the value of the
security.
S 85(1) and (2)-indemnity.
Francis Xavier Muhoozi & Kabale Kobil Station V National Bank Of

Commerce (U) Ltd HCCS NO. 303/2006; there is no privity of contract
between the guarantor and the principal debtor under the guarantee.
In our facts, the advice I would give Mr. Lenin Opiro Or the steps that he would
take is to;
i) Pay money owed by the debtor, Karl Marx Insurance Brokers. He will
then be entitled to be handed over the security that is the land
comprised on Kyadondo Block 193, Plot No. 44, Kisasi.
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If the bank hands over the security to the principal debtor, it would
have breached the duty to the guarantor, Lenin Opiro.
FIRM H2 & CO. ADVOCATES
P.O BOX 717, KAMPALA
04/03/2015
OUR REF: H2/001/LO/2015
YOUR REF:
THE MANAGING DIRECTOR

UGANDA INSURERS ASSOCIATION (UIA)
Dear Sir/Madam,
RE: DEMAND FOR PAYMENT IN RESPECT OF KARL MARX INSURANCE
PROKERS LOAN
We act for our client Mr. Lenin Opiro, on whose instructions we address you as
follows;
That on the 15th day of June 2013, you entered into a loan agreement with Karl
Marx Insurance Brokers Ltd wherein our client was undersigned as guarantor,
alongside a mortgage on land comprised in Kyadondo Block 193 Plot No. 44,
Kisasi for the money borrowed to a tune of shs. 19 million.
Karl Marx Insurance Brokers has defaulted payment of the debt under the
mortgage and the first option for the repayment should be realization of the
security and not the guarantee.
On that basis therefore, we write in objection to your demand and shall in that
respect proceed to stipulate our reasons hereunder;
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That under the agreement there are still eight (8) months under which
borrower is owed and has as such not yet defaulted.
That the security provided by Karl Marx Brokers is ample value and viable to
service the existing debt. The guarantor will only be liable upon failing to
realize fully from the mortgaged land.
That it is a well-established principle of law that guarantees on mortgages are

an exception to the general rule on demand guarantees. That the issuer must
pay immediately upon presentation. We hope you are alive to the principle as
was held in William SebulibaKayondo and Berkeley Education Enterprise Ltd N
Barclays Bank (U) Ltd HCMA 325/2008, where the court held that a guarantee
notwithstanding that it is an on demand guarantee cannot create an obligation
greater than the obligation of the mortgagor under the mortgage.
Further, we should be mindful of the provisions discharging a guarantor in the

contracts act 2010 section 74, 75 and 76 variation of the contract without
consent of a guarantor discharges the latter from his obligations.
We also note that you granted the principal debtor compromise of a grace
period of one month without the guarantors consent. We consider this
variation in line with section 74, 75 and 76 of the contract act which suffices to
discharge our client’s obligation as a guarantor to the mortgage.
Therefore our client stands discharged from his obligation.
We hope the above settles your claims against our client and puts the matter
in its proper perspective.
We await further correspondence from you.
Yours sincerely,
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…………………………..
For: firm H2 and Co. Advocates
Cc Lenin Opiro (client)
BRIEF FACTS
On 18th November 2013, West Budama Cooperative Union purchased land

comprised in LRV 1298 folio 34, plot 1 Wandiro Road, Rudoola from the
Uganda development bank ltd, who sold the same as mortgages under a power
of sale without recourse to court, Andrew Wadibe having failed to repay the
loan. The land is developed with a soap making factory and it is machinery. On
28th December 2013, officers of assault bailiffs and court brokers came to the
said land with a warrant for the attachment and sale of the machinery in
execution of a decree against Andrew Wadibe. The officials of West Budama
Cooperative Union resisted the attachment and denied the bailiffs access to the
premises arguing that they had purchased the land with its machinery.
ISSUES
Who has the legal right to the machinery?
ISSUE ONE
Where there is a mortgage of land with plant and machinery, 2 mortgages

should have been executed i.e. mortgage of the land and a chattel mortgage in
respect of the machinery.
Mortgage of land
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In the case of a company, it is by debenture Halsbury’slaws of England 3 rd
edition vol. 6 on meaning of a debenture, it is a document which creates a
acknowledges a debt. It is issued by a company under seal. It may be a
floating debenture which covers property of the company present and future
but the company is allowed to carry on its business until an event of default
occurs.
A.K Detergents v E.A.D.B CACA No. 171/95 a debenture properly registered

with the registry of companies gives rise to a legal mortgage.
Chattel mortgage
Equip agencies ltd v credit bank ltd (2004) E.A where there is machinery and
equipment on the mortgaged land, a chattels mortgage must be in place
before they can be sold.
If the chattel mortgage is non-existent, it is presumed that they are not

security.
A deed of chattel mortgage is executed and registered with the registrar of

documents at URSB.
In our facts, Uganda development bank has a remedy of selling the mortgaged
land under the above tests.
In the cases of Duncans Industries Ltd V State of UP (2000) SCC 633, the
supreme court construed the plant and machinery which formed the fertilizer
plant as immovable property as it is permanently embedded in the earth with
the intention of running a fertilizer factor and while embedding these
machineries the intention of the party was not to remove the same for
purposes of any sale of the same either as part of machinery of scrap and the
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very nature of the user of these machines. It can therefore be concluded that
these machinery ere immovable which were permanently attached to the land
in question.
The question whether the plant and machinery embedded in the earth are
immovable or movable property depends upon the facts and circumstances of
each case.
In the instant case where the bailiffs want to attach the machinery which is on
the mortgaged land purchased by Budomacooperative union, the degree of
annexation and object of annexation will be the test taken into consideration in
deciding the question of who has the right over the machinery.
The person who attached the fixture is entitled to remove it though both
parties agreeing at common law, certain futures installed by the tenant
belonging to him or her may be removed from the land by the tenant e.g.
trade fixtures.
NB. The person who removes the fixtures must make good any loss/damage
caused in the course of the removal.
Mortgage act, as a mortgagee upon the default of the mortgagor.
West Budama Cooperative Union as a purchaser is in a sale effected by UDB

requires good title S. 29 (1) mortgage act and hence it is protected.
FIXTURES
Fixtures include everything that attaches to the land quid quid plantatur solo
solo cedit?
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Tests for fixtures
Degree of annexation
This means by the thing is attached to the land. The slightest fixing to the land
is sufficient to raise the presumption that an item is a fixture hence the person
who asserts that it is not a fixture has the anus of proving it.
If the thing is resting on the ground by its own weight prima facie it is not a
fixture.
Object of annexation
The intention of the person who affixed the thing to the land. If the intention
was for permanent purpose then it is a fixture and if the intention was for
temporary purposes then it is a chattel.
The above tests were discussed in Holland v Hodgson (1872) L.R 1 CP 328,
where it was held that through the leems were slightly attached and could
easily be removed, the object of the owner in setting them up was to enhance
the value of the factory premises to which they were attached. It was held that
the looms were fixtures and part of the plaintiff is mortgaged land.
Hence on the matter whether the machinery can be sold depends on whether it
is a fixture through applying the above tests.
In the case of Duncan’s Industries Ltd v State of Up (2000) SCC 633, the
supreme council construed the plant and machinery which formed the
fertilizers plant as immovable property as it permanently embedded in the
earth with the intention of running a fertilizer factor and while embedding
these machineries. The intention of the party was not to remove the same for
purposes of any sale of the same either as part of machinery of scrap and the
very nature of the user of these machines. It can therefore be concluded that
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these machinery were immovable which were permanently attached to the
land in question.
The question whether the plant and machinery embedded in the earth are
immovable or movable property depends upon the facts and circumstances of
each case.
In the instant case where the bailiffs want to attach the machinery which is on
the mortgage land purchased by Budoma cooperative union. The degree of
annexation and object of annexation will be the test taken into consideration in
deciding the question of who has the right over the machinery.
The person who attached the fixture is entitled to remove it though both
parties agreeing at common law, certain fixtures installed by the tenant
belonging to him/her may be removed from the land by the tenant e.g. trade
fixtures.
NB the person who removes the fixtures must make good any loss/damage
caused in the course of the removal.
WORKSHOP 1
EXPROPRIATED PROPERTIES
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ISSUE 1
What amounts to expropriated property?

Law Applicable
THE EXPROPRIATED PROPERTIES ACT CAP 87
Any property vested in the departed Asians property custodian board:
Sec. 2. Revesting of properties in the Government, etc.
(1) Any property or business which was—
(a) Vested in the Government and transferred to the Departed Asians Property
Custodian Board under the Assets of Departed Asians Act
Any property acquired by the government under the properties and business
acquisition decree:
Sec. 2. EPA Revesting of properties in the Government, etc.
(b) Acquired by the Government under the Properties and Businesses

(Acquisition) Decree, 1973;
Any other property expropriated by the military regime from 25 th Jan 1971 up
to 3rd June 1979
Sec 2 EPA Revesting of properties in the Government, etc.
(c) in any other way appropriated or taken over by the military regime except
property which had been affected by the provisions of the repealed National
Trust Decree, 1971, shall, from the commencement of this Act, remain vested
in the Government and be managed by the Ministry responsible for finance.
Irrespective of whether the property belonged to citizen Asians or not:
Onapa v Punjani [1995-98] 2 EA 266
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KCC granted the respondent a three year lease over a plot for purposes of
constructing a house thereon. The lease was to run up 31st October 1972. In
Dec 1972, the R applied for extension of the lease which was granted a further
12 months. The R was among the Asians expelled by the Amin regime in
Aug/Sep 1972.
The issue was whether the expropriated properties act applied to it.
The applicant had been granted a lease over the suit property and on 22 nd
December 1990 when the respondent returned, he was issued with a
certificate of repossession on the property. It was held that KCC Retained
control over the suit property because the R had not complied with the
covenants contained in the extension of the initial lease especially the covenant
requiring completing of the building. There was no evidence that the property
was taken over and managed by the DAPCB. FROM 1ST Nov 1972, the R had no
title to the suit property and the same had reverted to KCC. There was no
lease or agreement of a lease to vest in government when the R left Uganda in
1972. The learned trial judge erred in holding that the lease on that plot
subsisted at the date of the R expulsion. He further erred when he declared
that the lease granted to the applicant by KCC was null and void. For property
to fall under the EPA the person claiming must have had such an interest
at the time of departure.
 Property irrespective of the manner of expropriation whether

declared or not is subject to expropriation and the former owner
will be entitled to repossess the property. Declaration is irrelevant
to determine whether the property was expropriated or not.
Registered Trustees of Kampala Institute vs. Departed Asians Property

Custodian Board (1994) 4 K.A.L.R 110 per C.J Wambuzi
The appellant institute had its membership composed of Ugandans of Asian

extraction. At the time they were expelled, he institute owned land where its
house was located. The property was taken over by government which put it in
the hands of the DAPCB. The appellant applied for repossession but
repossession was rejected on grounds that the lease under which the lease
was held by the institute had expired. Trial judge held that the EPA didn’t apply
to properties which were expropriated when they belonged to Ugandans basing
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on the long title to the Act. ‘to provide for the return of property expropriated
by the government to former owners’ it was held that although the lease
had expired in 1981, it was deemed to have continued by virtue of
section 2(2)(b) until such property had been dealt with in accordance
with the act. And the respondent had powers to manage such property
till the minister appointed any other body.
It was further held that: the effect of expropriation is to entitle the current
owner to compensation for any improvements made on the property.
Jaffer Alibhai and 2 Ors v Nandala and Anor CA 53/ 1995
The Supreme Court held that a departed Asian who had sold his property and
received pat payment before leaving Uganda and the sale was completed by
the DAPCB couldn’t reclaim his property since the purchaser acquired an
equitable interest in the property at the time of sale which was completed by
DAPCB.
Stephan Kalani v Satwant Kaur SCCA 1996
The lease was surrendered in 1972. The surrender was registered in 1977. The
former owner obtained repossession in 1994 it was held that it is true that
the surrender was registered some 5 years after execution but there is
no time prescribed within which a surrender may be registered. In law
the effect of a surrender is that the lease merges with the land lord’s
reversion and is extinguished. The surrender having been genuine, the
property was not expropriated and the repossession certificate was not
lawfully obtained.
Somali Democratic Republic v Traon CA 4/1998
An unregistered instrument acts as a contract interparty and can confer an

equitable right to specific performance of the contract. The unregistered
surrender conferred to the mailo holder a right to the reversion of the lease
and extinguished the respondents lease.
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Lutaaya v Gandosha HCCS 86/1990
Property irrespective of the manner of expropriation whether declared or not is

subject to expropriation and the former owner will be entitled to repossess the
property.
ISSUE 2
REMEDIES AVAILABLE TO THE PARTES

Sec 12 Compensation and settlements.
(2) Where property or business is returned to a former owner or transferred to
a joint venture company or retained by the Government in accordance with this
Act, the former owner or the company or the Government, as the case may be,
shall be liable to pay for the value of any improvements in the property or
business to the person or body that effected the improvement.
Upon re-expropriation the property persons who made any improvements

thereon shall be entitled to compensation form either the Government,
company or former owner to whom the property has been returned:
- Vacant possession: section 7(a) of the EPA

- Certificate of repossession
-
-
ISSUE 3
Effect of transfers and other transactions vis-à -vis expropriated properties:

Outline:
- All are nullified.
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- Affected persons i.e. transferees are entitled to compensation from eth
Government
- Valuation shall be a function of the minister guided by the board of valuers.
- The Compensation shall be the purchase price minus the income derived from
the property
- All leases which would otherwise be deemed to have been terminated are
deemed to be continuing.
Subsequent sale without minister’s consent is restricted. It renders the sale

voidable. S8 EPA Shamsherami v Alibhai and another CACA 81/2004
Legal Premise:
All are nullified:
Law applicable
THE EXPROPRIATED PROPERTIES ACT CAP 87:
Sec 2 Revesting of properties in the Government, etc.
(2) For the avoidance of doubt, and notwithstanding the provisions of any
written law governing the conferring of title to land, property or business and
the passing or transfer of that title, it is declared that—
(a) any purchases, transfers and grants of, or any dealings of whatever kind in,
such property or business are nullified.
Arvind Bhai Popat v Aidah Mbwali [1997] KALR 429; Tailor, an Asian lived
in a residential house with the respondent, a Ugandan Citizen. Khimji Tailor
was expelled from Uganda and he fled to England and died there. The
respondent and children remained in the suit premises but were evicted fom it
but were evicted by Ugandan soldier on grounds that they had been evicted
from it by Khimji. Later on the house was taken over and managed by DAPCB.
In 1980, the board returned the property to the Respondent on the ground
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that it had not been abandoned by Khimji after all. The respondent caused the
property to be registered in her names as proprietor following Khimji’s death in
England, one of his sons Ashokumar applied for letters of administration and
obtained the same for the late father’s estate. He then came to Uganda and
applied for and obtained a certificate of repossession of the suit property and
demanded vacant possession.
ISSUE
Whether Khimji was a departed Asian whose property vested in government by the
EPA?
As the alleged transfer of the suit property to the respondent was made on 9 th
October 1992, it would have been null and void. The purported registration of
the respondent as proprietor of the suit property isnot protected by the
provisions of s56 of the RTA as was claimed by her counsel because under s2
(2) (a) EPA, any purchase, transfer and grant of property which were vested in
government are nullified if they were effected between the time when the
property in question was first vested in government under decree 22/1973 and
the time when the EPA came into force. And so the alleged transfer to the
respondent in 1972 by Khimji in 1980 by DAPCB would be invalid.
Mohammed Alibhai v W. F Bukenya Mukasa & DAPCB CA 56/1996
It would seem that an application made by the applicant for the repossession
on 30th October 1993, long before the applicant was granted letters of
administration by the court on 28 th June 1994, would be ineffective as the
applicant had no legal status to administer the estate that time. Mabale
Growers Tea Factory Limited v Noorali Mohammd & Registrarof Titles CS
65/ 2006
Gokaldas Laximidas Tana vs. Sister Rosemary and Departed Asians

Property Custodian Board (1994-1995) H.C.B 53
Section 2(2) (a) of the EPA nullified any of the transactions entered mentioned
therein. ‘if the transaction was effected between the time when the property
was first vested in government by the Assets Of Departed Asians Decree 1973
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and the time when the act of 1982 came into force namely on the 21 st of Feb
1983. That provision of the Act has a retrospective effect and nullified all the
categories of transactions and dealings entered into in regard to expropriated
properties in the period between the expropriation by the decrees of Idi Amin
and the EPA as correctly pointed out by Oder JSC.EPA nullified sale,
notwithstanding that the bank as mortgagee had carried out a valid sale or
transfer.
Noordin Charania Walji v Drake Semakula SCCA 40/1995
Oder JSC held that re-entry was a dealing in the property and fell under the
expression ‘any dealings of whatever kind’ in the suit property which was
nullified by that section. The respondent did not act alone. He notified the chief
registrar of titles who in turn notified the DAPCB
Bidandi Ssali v Attorney General CS 834/1989 the high court held that a
lessor would after the coming into force of the 1984 Act re-enter the land and
terminate the lease if there was any breach of the term of the lease by the
DAPCB. This position is no longer good law as was overturned by the court of
appeal in:
Victoria Tea Estates v James Bemba CACA 49/ 1996
The suit property was subject to the EPA, 1982 but the lessor (respondent)
who had in March 1991 made a re-entry thereon and then the former owner
(appellant) obtained a certificate of repossession in November the same year.
Twinomujuni JA held that the suit property became a statutory property of
government until the minister of finance dealt with the property as provided for
by the Act 9 of 1992.any of her purported dealings in such property would be
null and void. This remains so whether the government paid the ground rent.
The lessor would of course maintain a separate action against government for
arrears of rent.
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Makerere Properties Limited v AG CACA 36/1996
The effective date when the EPA came into force was 21 st Feb and all dealings
before that date were nullified.
Active Automobile Spares Limited v Crane Bank SCCA 21 2007 cf Makula

International v Emmanuel Nsubuga 1982 HCB 11
It is trite law that courts will not condone or enforce an illegality. This well-
established principle of the law was put this way by Lindlay LJ in Scott v Brown
Doering 1892 2 QBD 724 at 728 exturpi causa non oritur action. This old and
well known legal maxim is founded in good sense and expresses a clear and
well recognised legal principle which is not confined to indictable offences. No
court ought to enforce an illegal contract or allow itself to be made the
instrument of enforcing obligations alleged to arise out of a contract or
transaction which is illegal if the illegality is duly brought to the notice of the
court. And if the person invoking the aid of the court is himself implicated in
the illegalities. It matters not whether the defendant has pleaded the illegality
or he has not.
Sec 12 EPA Compensation and settlements.
(3) Where property or business had been transferred to any person or body for
value and the property or business is returned to a former owner or is
otherwise dealt with in accordance with this Act, the Government shall be liable
to pay compensation to that person or body.
Pyarali Abdul Kaasule v Adrian Sibo Constitutnal Case No. 9/1997
The EPA provides for 2 types of compensation. S12 (2) clearly covers
improvement of the property in question. S12 (3) and (4) deal with
compensation for the property as originally purchased. Twinomujuni JCA held
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that S11 (4) and S12(6) should be construed as conforming to the purpose of
Article 26 of the 1995 constitution.
Godfrey Male vs. A.G Court of Appeal Civil Appeal no. of 2000
Valuation shall be a function of the minister guided by the board of valuers:
Sec 13. Valuation of properties.
In the implementation of this Act, the Minister shall, in matters of valuations,

be guided by the board of valuers established under section 2 of the Properties
and Businesses (Acquisition) Decree, 1975.
The Compensation shall be the purchase price minus the income derived from
the property:
Sec 12 EPA Compensation and settlements.
(4) The compensation payable under subsection (3) shall be the purchase price
less the income derived or which ought to have been derived from the property
or business from the date of the transfer.
All leases which would otherwise be deemed to have been terminated are
deemed to be continuing:
Sec 2 EPA Revesting of properties in the Government, etc.
(2) For the avoidance of doubt, and notwithstanding the provisions of any
written law governing the conferring of title to land, property or business and
the passing or transfer of that title, it is declared that—
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(b) where any property affected by this section was at the time of its
expropriation held under a lease or an agreement for a lease, or any other
specified tenancy of whatever description, and where the lease, agreement for
a lease or tenancy had expired or was terminated, the same shall be deemed
to have continued, and to continue in force until the property has been dealt
with in accordance with this Act, and for such further period as the Minister
may by regulations made under this Act prescribe.
Akena Onapa vs. Mohammed Hussein Rashid S.C.C.A No. 5 of 1995

(1996) 2 K.L.A.R 87 per Odoki J
Expropriated Properties (Repossession and Disposal) (No. 1) Regulations S.I 87-8

Reg 13 Expired leases, etc.
For the purposes of section 2(2)(b) of the Act, every expired lease, agreement
for a lease or other tenancy shall be deemed to continue, after the property
has been dealt with in accordance with the Act, for a further period of two
years or a period equivalent to the unexpired period of the lease, agreement
for a lease or tenancy at the time of expropriation of the property whichever is
the greater period.
Restrictions on the Property upon return

The any subsequent sale within five years of the return of the property is
subject to a ministerial consent:
Sec 8 EPA Restriction on sale, etc.
Any property or business transferred to a joint venture company or to a former

owner under this Act shall not be sold or otherwise disposed of without the
written consent of the Minister until after five years from the date of the
transfer.
ISSUE 4
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Powers of the Minister in Matters pertinent to the expropriated properties
Outline:
- The minister may transfer there expropriated properties to their former

owners
- Precedent to such transfer the minister must be satisfied that the former
owner is to physically return to Uganda, repossess and effectively manage the
said property
- In the case of corporate persons or firms the satisfaction that one of the
directors or partners will physically return to Uganda
- Or that it is otherwise in the best interests of Uganda
LAW APPLICABLE
1. THE EXPROPRIATED PROPERTIES ACT CAP 87:
 The minister may transfer their expropriated properties to their

former owners:
Sec 3. Power to transfer property or business
(1) Subject to this Act, the Minister shall have the power to transfer to the
former owner of any property or business vested in the Government under this
Act that property or business.
Precedent to such transfer the minister must be satisfied that the former owner
is to physically return to Uganda, repossess and effectively manage the said
property:
(2) Nothing in this Act shall be construed as empowering the Minister to

transfer property or business to a former owner unless the Minister is satisfied
that the former owner shall physically return to Uganda, repossess and
effectively manage the property or business.
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In the case of corporate persons or firms the satisfaction that one of the
directors or partners will physically return to Uganda:
Certificate of Purchase v Certificate of repossession

Mohan Musisi Kiwanuka v Asha Chand SCCA 14/2002
The appellant had purchased the property in 1979 and was caused to enter
into another contract in 1991 and paid a nominal consideration in order to
obtain a certificate of purchase in accordance with the Act. Minister
subsequently issued a repossession certificate to the respondent. It was held:
1) Upon issuing a certificate of purchase, a minister had no power to issue a

certificate of repossession subsequently as it had ceased to be
expropriated property.
2) A certificate of purchase clothed the appellant with an equitable title to
the property and upon its registration, the legal title vested in him in
accordance with section 91(2) of the RTA.
3) The act doesn’t empower the minister to revoke a certificate issued in
disposition of an expropriated property. Those powers lie with the court.
This position was further applied in Ravji Megjhi Patel and 2 Ors v AG &
Another CACA No. 16 of 1999
 The minister has no power to revoke or to otherwise annul a

certificate issued by him under the act. The act did not intend to
give the minister concurrent jurisdiction with the High Court. The
minister therefore cannot cancel certificates previously issued by
him. It follows that upon issuance of purchase, the minister has no
power to issue a certificate of repossession as it had ceased to be
expropriated property.
Expropriated Properties (Repossession and Disposal) (No. 1) Regulations S.I 87-8

Reg 14 Proprietary residence
For the purposes of section 3(2) of the Act, where the applicant is a corporate
body or a firm, then at least one shareholder or partner of the corporate body
or firm shall physically reside in Uganda and effectively manage the property or
business.
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Or that it is otherwise in the best interests of Uganda:
Property in which the Government wishes to participate.

Section 5(3) Where the Minister is satisfied that any property or business
affected by this Act is being occupied, managed or rehabilitated under a joint
venture agreement with a former owner which is in the best interest of
Uganda, the Minister may without recourse to subsections (1) and (2) issue a
certificate validating the transfer of any property or business made pursuant to
the joint venture agreement.
ISSUE 5
Redress from the decisions/actions of the Minister:

Outline:
- Appeals from decisions of the minister must be made within 30 days of

communication
- Such appeal shall be instituted in the High court vide a plaint
 Appeals from decisions of the minister must be made within 30

days of communication:
Sec 15 Appeal
(1) Any person who is aggrieved by any decision made by the Minister under
this Act, may, within thirty days from the date of communication of the
decision to him or her person, appeal to the High Court against the decision.
Such appeal shall be instituted in the High court vide a plaint:
Expropriated Properties (Repossession and Disposal) (No. 1) Regulations

S.I 87-8
Reg 15 Appeals.
The rules of civil procedure governing the institution of suits in the High Court
shall apply to appeals made under section 15 of the Act.
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Habre International Co. Ltd v Ebrahim Alaraka Kassam and Ors. CA
4/1999
 States that an appeal under s15 of the EPA is not a judicial appeal. The
minister in exercise of powers vested in him by the act makes
administrative decisions. S15 of the Act directs that a person aggrieved
by such a decision may appeal to the High Court within a period of 30
days. Apart from that time limit the act doesn’t stipulate any special
procedure of instituting the appeal against the minister or challenge
against the minister’s decision. Decision challenge can be done in an
ordinary suit.
 Rule 11 of the SI 87-8 states that the proper procedure to sell
expropriated property is through competitive tender and the board of
valuers. These procedures were not intended to limit the minister’s
discretion. (failure to comply with statutory sale procedure did not vitiate
disposal of the suit property.)
 Certificates issued under the EPA do not confer ownership as contended
by the respondents counsel. Their effect is no more than that of deeds
of transfer or assignment under the R.T.A. that is the clear implication of
s7(a) and 9(3) in order to provide sufficient authority to the registrar to
effect transfer f title, they must be competently issued.
Muloowooza Bros Limited v Mishan & Co. Ltd SCCA 26/2010
S15(1) of the EPA provides that any person who is aggrieved by any decision
made by the minister under this act may within 30 days of the date of
communication of the decision of him/her appeal to the High court against the
decision. The minister’s powers under the act are only of an administrative
nature therefore the act doesn’t take away the High Court’s original jurisdiction
and the person can contest the minister’s decision even after the 30days have
elapsed.
Emmanuel Nangoli v AG [2000] KALR 817
 AG is the proper party to sue if one is aggrieved with the decision of the
minister of finance.
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 The applicant sought to challenge the decision of the minister after the
30 days prescribed by law had elapsed. He brought this application for
extension of time to file an application to the High court challenging the
decision of the minister. It was held that a notice of motion is the
document for the extension of time to appeal against the decision of the
minister if the 30 days had elapsed.
APPLICATION FOR EXPROPRIATED PROPERTIES:

Outline of Procedure
 Any interested person shall have to apply for repossession from

the minister
 There must be separate applications for each distinct property an
applicant seeks to repossess
 The application shall have to be in the requisite form of the
regulations
 The application must be accompanied by a non-refundable fee of
25,000UGX
 The application must further be accompanied by a copy of the
M.O.A, A.O.A, title deed and copies of the declarations
 The application upon being received by the Minister shall
necessitate the issuance of an acknowledgement to the applicant
 The committee determines whether the Government would wish to
participate in that property and the authenticity of the application,
and other claims or interests pertinent to the property:
 IF the government wants to participate in the property the owner
is called for negotiations:
 Upon the successful negotiations between the two the property is
transferred to a joint venture company
 Where the Government is not interested in participating in the
property a certificate of repossession is issued to the former owner
Legal Premise:
Any interested person shall have to apply for repossession from the minister:
 Sec 4 EPA Application for repossession

Any former owner of property or business vested in the Government under
section 2 may, within ninety days of the commencement of this Act, apply to
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the Minister in writing, and in such form as may be prescribed, for repossession
of the property or business.
There must be separate applications for each distinct property an applicant

seeks to repossess:
Japher Brothers Limited v Mohammed Majid Bagaalaliwo and 2 Ors CA

43/1997
Shareholders of the appellant company were all of Asian extraction. At the time
of the expulsion, the appellant was the registered proprietor of the suit land.
Subsequently, government took over the suit property and vested it in DAPCB
which then sold it to someone who in turn transferred it to the Ist Respondent.
The appellant later came in in November 1993 and obtained a certificate of
repossession. It was held that S4 of the EPA; any former owner of property or
a business vested in government under section 2 may within 90 days of the
commencement of this Act apply to the minister in writing and in such form as
may be prescribed for repossession of the property or business. The act came
into force on 21st Feb, 1983 and by simple calculation the 90 days ended on
22nd May 1983. The section cannot be construed restrictively. The section
is directory so that non-compliance is only an irregularity.
 Expropriated Properties (Repossession and Disposal) (No. 1)

Regulations S.I 87-8
 Reg 4 Separate applications.
There shall be made a separate application in respect of every different
property or business which an applicant wishes to repossess.
The application shall have to be in the requisite form of the regulations:

 Reg 2. Application
An application for repossession of property shall be made in the form specified
in the First Schedule to these Regulations, and shall be addressed and sent to
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the Minister either directly to the address specified on the application form or
through a Ugandan diplomatic mission or such other authorised agent as the
Minister may determine.
The application must be accompanied by a non-refundable fee of 25,000UGX:

Reg 3 Fee and documents
(1) Every application form shall be accompanied by the following—
(a) a non-refundable fee of twenty-five thousand shillings or its equivalent in

convertible currency or such other nonconvertible currency that the Minister
may allow;
The application must further be accompanied by a copy of the M.O.A, A.O.A,

title deed and copies of the declarations:

S.I 87-8
(b) In the case of a company or firm, a certified copy of the memorandum and
articles of association or a copy of the certificate of registration as applicable;
(c) Copies of the title deed relating to the property at the time of its
expropriation, or if unavailable particulars of the title deed;
(d) Copies of Forms PRO/1 and PRO/2 completed under the Declaration of
Assets (Non-citizen Asians) Decree; and
(e) Copies of declarations and claims submitted under the Properties and
Businesses (Acquisition) Decree.
The application upon being received by the Minister shall necessitate the
issuance of an acknowledgement to the applicant:
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Reg 5. Acknowledgement of applications.
(1) Every application received shall be acknowledged by an acknowledgement

receipt issued to the person who makes the application.
The committee determines whether the Government would wish to participate

in that property and the authenticity of the application, and other claims or
interests pertinent to the property:
ISSUE 6

S.I 87-8
Reg 8. Functions of the committee.

The committee shall advise the Minister on matters relating to the
implementation of the Act, and, without prejudice to the generality of the
foregoing, shall—
(a) Examine and verify the authenticity of each application to repossess a

property or business;
(b) Examine and verify the authenticity of documents accompanying each

application form;
(c) Examine and verify the authenticity of claims of any interest of whatever
description in a property or business for which application to repossess has
been made;
(d) determine whether any property or business for which an application to

repossess has been made is the subject of a caveat, lien, loan, charge,
mortgage or any other registered encumbrance in favour of a bank, financial
institution or any other lender;
(e) Examine and verify the authenticity of competing claims for repossession of
a property or business;
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(f) Identify and advise whether any property or business for which application
has been made to repossess is a property or business in which the Government
may wish to participate;
IF the government wants to participate in the property the owner is called for
negations:
ISSUE 7
Property in which the Government wishes to participate. Section 5

(1) Where an application made under section 4 relates to property or business
in which the Government wishes to participate, the Minister shall notify the
applicant accordingly and invite him or her to enter into negotiations for that
purpose.

Reg 8. Functions of the committee.
(g) Assist the Minister in all matters requiring negotiation under the Act, and
advise him or her on what decisions to take regarding the disposal of
properties under the Act
Upon the successful negotiations between the two, the property is transferred
to a joint venture company:
(2) Where the negotiations under subsection (1) are successfully concluded, a
joint venture company shall be incorporated and the Minister shall issue a
certificate transferring the property or business to that company.

S.I 87-8
Reg 10. Certificates.
(1) Where, under section 5(2) of the Act, negotiations for a joint venture
company are successfully concluded, the Minister shall under his or her hand
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issue to the new joint venture company a certificate in the form set out in the
Second Schedule to these Regulations.
Where the Government is not interested in participating in the property a

certificate of repossession is issued to the former owner:

Reg 6. Property in which the Government does not wish to participate.
(1) On receipt of an application made under section 4 relating to property

or business in which the Government does not wish to participate, the
Minister shall, subject to subsections (2) and (3), after satisfying
himself or herself with the merits of the application, issue a certificate
authorising the former owner to repossess the property or business.
WORKSHOP 2
BRIEF FACTS
PROTECTION OF NATURAL RESOURCES

With an acute shortage of sugar supply in Uganda, His Excellency the president
issued special directives to guide operations of commercial sugarcane growing
countrywide. These left the out growers disgruntled and they posed threats
which are likely to exacerbate (worsen) the sugar shortage.in an attempt to
forestall this, the Honourable minister of state, Ministry of Lands, Housing and
Physical development has directed that dormant land in Kabalega National park
measuring up to 40 sq. miles be allocated equally to three major sugar
manufacturing companies and certificates thereof be put in their possession by
the end of the month.
ISSUES ARISING
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1. Whether the suit land is a protected natural resource in Uganda?
2. Whether the land can be legally acquired by the three major
manufacturing companies?
3. What steps and procedures can be taken to acquire the land?
LAW APPLICABLE
• THE CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995

• THE LAND ACT, CAP 227
• THEWILDLIFE ACT, CAP 200
• THE NATIONAL ENVIRONMENT ACT,CAP 153
• THE RELEVANT CASE LAW
ISSUE ONE:
Whether the suit land is a protected natural resource in Uganda?

Objective 13 of NODPs the Constitution provides that the state shall protect
important natural resources including land, water, wetlands, minerals, oil,
fauna and flora on behalf of the people of Uganda.
Objective 27(iv) provides that the state including local governments shall
a) Create and develop parks, reserves and recreation areas and ensure the
conservation of natural resources
b) Promote the rational use of natural resources so as to safeguard and protect

the biodiversity of Uganda
Article 8A (1) Uganda shall be governed based on principles of national

interest and common good enshrined in the NODPs.
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Article 237(2) (b) and Section 44 (1) of the Land Act.
provides that the government or a local government as determined by

parliament by law shall hold in trust for the people and protect natural lakes,
rivers, wetlands, forest reserves, game reserves, national parks or any land to
be reserved for ecological and touristic purposes for land held in trust by the
government on behalf of the citizens. (The Public Trust Doctrine
Advocates Coalition for Development and Environment Versus Attorney

General Misc. Cause No. 0100 Of 2004
Whether there was breach of the Doctrine of Public Trust.

In very brief terms, the essence of the above doctrine is the legal right of the
public to use certain land and waters. It governs the use of property where a
given authority in trust holds title for citizens. Citizens have two co-existing
interests in trust land; the jus publicum, which is the public right to use and
enjoy trust land, and the jus privatum, which is the private property right that
may exist in the use, and possession of trust lands. The state may convey the
jus privatum to private owners, but this interest is subservient to the jus
publicum, which is the state's inalienable interest that it continues to hold in
trust land or water: See Paul M.
Bray: the Public Trust Doctrine in Uganda the above doctrine has been
enshrined in the 1995 Constitution in its National Objectives and Directive
Principles of State Policy as follows:
"The state shall protect important natural resources, including land,

water, wetlands, minerals, oil, fauna and flora on behalf of the people of
Uganda".
The Doctrine is restated in Article 237 (2) (b) of the Constitution which states:
"The Government or a local" Government as determined by parliament

by law, shall hold in trust for the people and protect, natural lakes,
rivers, wetlands, forest reserves, game reserves,
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National parks, and any land to be reserved for ecological and tourist
purposes for the common good of all citizens:
The above provisions were operationalized by Section 44 of the Land Act in the
following terms:
"44 Control of Environmentally Sensitive areas
(1) The Government or a local government shall hold in trust for the people
and protect natural lakes, rivers, ground water, natural ponds, natural streams,
wetlands, forest reserves, national parks and any other land reserved for
ecological and tourist purposes for the common good of all citizens.
(4) The Government or a Local Government shall not lease out or otherwise
alienate any Natural resources referred to in this section.
(5) The Government or a Local Government may grant concessions or licenses

or permits in respect of any natural resources referred to in this section subject
to any law.
(6) Parliament or any other authority empowered by parliament may from time
to time review any land held in trust by the Government or a Local Government
whenever the community in the area or district where the reserved land is
situated so demands".
Article 237 (2) (b) should be read together with section 44 (4) of the Land Act.
The same should apply to Article 237 (2) (a) and Section 42 of the Land Act.
The two provisions allow Government or a local government to acquire land in
public interest subject to Article 26 of the Constitution and conditions set by
parliament. It is clear from the above expositions that Butamira Forest Reserve
is land which government of Uganda holds in trust for the people of Uganda to
be protected for the common good of the citizens. Government has no
authority to lease out or otherwise alienate it. However, Government or a local
government may grant concessions or licenses or permits in respect of land
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held under trust with authority from parliament and with consent from the
local community in the area or district where the reserved land is situated.
In the instant case there was evidence that the permit was granted to Kakira
Sugar Works amidst protests from local communities which raised up a
pressure group of over 1500 members who depended on the reserve for their
livelihood through agro-forestry, and source of water, fuel and other forms of
sustenance. There was therefore breach of public trust doctrine. I must add
that this doctrine was applied by the then Principal Forest Officer when he
rejected the demands to alienate to Reserve to Kakira Sugar Works Ltd. in
1956
It is clear from the above analysis that Butamira permit if it was ever
granted at all was null and void by the fact that no project brief and
Environmental Impact Assessment were ever carried out
as required by the law.
MC Mehta Vs Union of India and others AIR 1988 Supreme Court 1037.
"Man is both creature and molder of his environment which gives him physical
sustenance and affords him the opportunity for intellectual, moral, social and
spiritual growth. In the long and tortuous evolution of the human race on this
planet a stage has been reached when through rapid acceleration of science
and technology, man has acquired the power to transform his environment in
countless ways and on an unprecedented scale. Both aspects of man's
environment the natural and manmade, are essential to his wellbeing and to
the enjoyment of the basic human rights, even the right to life itself'.
The concept of Public Trust was defined in the case of Gann v Free Fishers of
White Stable (1896) CanLII 76 (SCC), where it was held that “the bed of
all navigable rivers where the tide flows and arms of the sea is by law
vested in the crown but this ownership of the crown is for the benefit of
the subject and cannot be used in any manner so as to derogate from or
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interfere with the right of navigation which belongs by law to the subject
of the realm”.
 Section 44(4) and (5) of the Land Act, provides that government can
give out this kind of land by giving a license etc.
 Section 18 wildlife Act – Protected areas include a national park.
Issue 2;
whether the land can be legally acquired by the three major

manufacturing companies?
Section 44(4) Land Act the Govt or Local Government shall not lease out or
otherwise alienate any natural resource referred to in this section.
Section 44(5) Land Act the government or local government may grant
concessions or licences or permitsin respect of the natural resource referred to
in the section to any law.
The Uganda Wildlife Act Cap 200
Section 14(1); the Executive Director may with the approval of the board enter
into any suitable commercial or collaborative arrangements with any person
for:
a) The management of a protected area or a portion of the protected area;
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b) The provision of services and infrastructure in a protected area
c) The management of a species or class of species…….
Section 15 of the UWA requires an Environmental Impact assessment to be

conducted by any developer desiring to undertake any project which may have
a significant impact on a wildlife species or community, in accordance with the
National Environment Act.
Advocates Coalition for Development and Environment versus Attorney

General Misc. Cause No. 0100 Of 2004
Held that where a permit is issued without carrying out an environmental

impact assessment as required by law, the permit or licence issued is null and
void.
Section 18(5) UWA; A national park declared under subsection (2) shall be an
area of international and national importance because of its biological diversity,
landscape, or national heritage and in which the following activities may be
permitted.
(e) Any other economic activity…
S24 of the UWA gives authority to carry out an otherwise unlawful act in a
wildlife conservation area. It provides that if the ED is dissatisfied that an
otherwise unlawful act is specified by this act to be carried out in a wildlife
conservation area, in the interests of better wildlife management, he or she
shall require an environment impact assessment to be carried ut on the subject
and shall submit the results of the assessment and request the opinion of the
board.
(2) The board if its opinion that the act should be carried out in the
interests of better wildlife management shall issue instructions to any
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officer or person authorizing him or her to undertake the otherwise
unlawful act.
Conclusion according to Ssozi
 A private interest cannot arise on protected resource.one can however

acquire user rights.
 Use may be granted by the ED of the UWA upon an application by the
user. This is preceded by an environmental impact assessment.
 The use should be that use which is intended to enhance the
management/conservation of this resource as per sec 24 of the UWA.
In determining this, they rely on the reports of the Impact
Assessment
 The land officer would therefore advise that the land in issue is not
subject to private interests that the permit can be issued by the ED
upon application the user. Issue of certificates of title therefore can’t
arise.
 Jurisdiction to grant user rights isn’t with the minister of lands but
with the ED of UWA.
 Advice to ED is that the activities must be to enhance the protected
resources, conservation and management.
 Whereas the UWA has the mandate to grant the permit, this mandate
is not exclusive. Private individuals and other actors can challenge it
on the basis of the public trust doctrine as discussed above.
 Government can de-gazette the land as another alternative through
parliament. De-gazetting takes back the land to the district land
board. It does not vest in government. Bamuhiga and Ors v
Bundibugyo District land Board and 0rs on degazetting.
 The case of Nyakana pointed out that where there is an injury to the
environment, the person liable for the injury is obliged to restore the
resource/ rectify the injury.
 Note: there are natural resources that are not subject to gazetment
e.g. Wetlands so in the even that you are notified that you are in a
wetland what are your remedies?
a) You can subject yourself to a study/ EIA
b) Try to remedy the effects
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PHYSICAL AND URBAN PLANNNING
PART 2
Brief facts
 Mr. Omar Mandelebu purchased a twenty acre piece of land at Namanve,

Mukono district comprised in LRV 1002 Folio 13 plot 34 kyaggwe block
232.
 The lease was expressly granted for purposes of commercial purposes.
 Mr. Mandelebu intends to have the land subdivided into three equal parts
i.e. housing estate, a tooth paste factory and a hazardous waste land fill.
Issues
 Whether the land at Kyaggwe can be developed?

 Whether Mr. Omar can successfully subdivide the land at kyaggwe plot
232?
 What are the necessary physical planning considerations in developing
the land accordingly?
Law applicable
 Constitution of the Republic of Uganda

 Land Act Cap 227
 The Physical Planning Act No.8 of 2010
 National Environment Act Cap 153
 National Physical Planning Standards and Guidelines 2011
Whether the land at Kyaggwe can be developed?

Section 3 of the Physical Planning Act (PPA) provides that the entire
country is declared a planning area and this Act shall apply to the entire
country in all respects.
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Section 33 (1) of PPA provides that a person shall not carry out a
development within a planning area without obtaining development permission
from a physical planning committee.
Section 2 of the PPA provides for these definitions;
“Development” means—
(a) The making of any material change in the use or density of any buildings or
land or the subdivision of any land; and
(b) The erection of such buildings or works and the carrying out of such
building operations;
“Development permission” means a development permission granted under

section 33 by a local government to an applicant to develop land;
“Physical planning committee” includes a district physical planning committee,

urban physical planning committee and a division or local physical planning
committee;
Therefore Mr. Omar intends to develop the land into a housing estate, host a
tooth paste factory and a hazardous waste landfill which amounts to a
development according to the PPA.
Procedure for an application for development permission.

 An application for development permission shall be in form P.P.A.1 set
out in the Sixth Schedule. Section 34 (1)
The application shall be made to the relevant local government which shall
then forward the application to the relevant physical planning committee.
Section 34(2). Section2 of the PPA provides that a local government
includes a district council; a city council; a city division council; a municipal
council; municipal division council; a town council and a sub county council
 A physical planning committee shall, when considering a development

application submitted to it under this section—
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a) be bound by any approved relevant regional or local physical
development plan;
However section 40(1) of the PPA provides that an application for
development permission in an area where there is no approved physical
development plan shall be submitted to the local physical development
committee for consideration.
(b) Have regard to the health, amenities and conveniences of the community
generally and to the proper planning and density of development and land use
in the area;
(c) Have regard to any comments received from the physical planner or
authorities;
(d) In the case of a leasehold, have regard to any special conditions stipulated
in the lease.
In the instant case the lease was granted for purposes of commercial
enterprise. Therefore the committee needs to take this into consideration
whether the housing estate, tooth paste factory and hazardous waste landfill
conforms to such conditions of the lease.
 A local planning committee may, in respect of a development application

—
(a) grant an applicant, development permission in form PPA 3 specified in the
Seventh Schedule, with or without conditions; or
(b) Refuse to grant an applicant development permission. Section 38(1)
 The physical planning committee shall, within thirty days after making a
decision, notify the applicant in form P.P.A. 3 set out in the Eighth
Schedule, of its decision and shall specify the conditions, if any, attached
to the development permission granted, or in the case of refusal to grant
the permission, the grounds for refusal. Section 38(2)
 A person aggrieved by the decision of the local physical planning
committee may appeal in writing to a higher physical planning
committee.
Section 35 of the PPA is to the effect that where in the opinion of a local
physical planning committee, an application in respect of development has an
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impact on adjacent land or does not conform to any conditions registered
against the title of the property, the committee shall, at the expense of the
applicant, publish the notice of the application in the Gazette, in a manner it
thinks expedient.
Whether Mr. Omar can successfully subdivide the land at Kyaggwe plot 232?
Section 2 of the PPA defines subdivision in relation to land to mean the
dividing of land into two or more parts whether by conveyance, transfer or
partition or for the purpose of sale, gift, lease or any other purpose.
Section 51 of the PPA provides that subject to any other law relating to the
administration of land, no subdivision, consolidation, renewal or extension of a
lease of any land shall be effected without approval by the relevant physical
planning committee.
Section 36(1) of the PPA provides that land within the area of a local
government shall not be subdivided or consolidated, except in accordance with
the approved local physical development plan relating to that area.
Therefore in order for Mr. Omar to successfully subdivide the land into
three equal parts, he has to ensure that it’s in accordance with the approved
local physical development plan by applying to the committee for subdivision of
the land.
Procedure for application for subdivision of land.

Section 36(1) of the PPA-The subdivision or consolidation plan in relation to
any land shall be prepared by a qualified physical planner and the plan shall be
subject to approval as specified in section 38.
 An application for the sub division or consolidation of land shall be in

form P.P.A. 2 in the Seventh Schedule. Section 36(3)
 The committee shall serve copies of the application on every owner or
occupier of the property adjacent to the land to which the application
relates and to any other persons as the local physical planning
committee may think fit. Section 36(4)
 Upon receipt of any objections in connection with the application, the
local physical planning committee shall notify the applicant of the
objections or representations and shall, before the application is
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determined, accord the applicant an opportunity to make representations
in response to the objections or representations. Section 36(5)
 A local physical planning committee may recommend, with or without
modifications and subject to conditions as it may think fit, or refuse to
recommend an application for subdivision. Section 36(6)
 A person aggrieved by a decision of the local physical planning
committee may appeal in writing to a higher physical planning
committee. Section 36(7)
The necessary physical planning considerations in developing the land accordingly.

Housing estate
Chapter 2 of the National Physical Planning Standards and Guidelines

governs Residential Standards. The standards set out below refer to all types of
residential developments
Paragraph 2.1-All residential developments are subject to physical planning

regulations. In urban areas, the local authority should have building by – laws
which govern the design and construction of permanent buildings.
Paragraph 2.2 – the housing estate must conform to the permissible ranges
of plot sizes in table 1 and illustrated in figure 1.1 and the minimum plot size
should be taken as a guideline for designing residential layouts to make best
use of urban land and infrastructure.
Paragraph 2.5-Every plot must have direct vehicular access to a road. Section
28 of the Public Health (Buildings) Rules SI No. 281 states that “A building shall
not be erected on any plot which has no proper and sufficient access to a road
or road reserve, such road or road reserve not being a sanitary lane or
passage”.
Paragraph 2.6-All residential developments must be built of permanent

materials or any other materials whose performance has been approved by the
relevant authority and all roofs must be permanent and preferably non –
reflective.
Paragraph 2.7-A car parking area must be provided on low and medium
density residential plots. On low density plots there must be minimum parking
space for two cars while on medium density plots, one car parking space is
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sufficient. It is not essential to have car parking space on high density
residential plots but where possible, public car parks within the neighborhood
should be provided.
Paragraph 2.8-All residential plots must be served by piped water supply, or

any other suitable supply, to the approval of the appropriate water authority.
 In urban areas all permanent developments must have water–borne

toilet facilities drained to a septic tank and soak pit within the plot,
connected to a sewage lagoon or connected to a central sewer line
system, to the approval of the local authority.
 Any refuse must be stored in proper containers for collection.
 Permitted sources of power in urban areas include electricity from the
national grid, solar, generators and wind.
Paragraph 2.9-Plots may be enclosed by hedges, wire fences and perimeter
walls
Tooth paste factory
Mr Omar must conform to the standards in chapter five which governs

industrial areas since he intends to put up a tooth paste factory. However he
can only host the factory if industrial development is permitted in Namanve,
Mukono district.
Paragraph 5.1- industrial buildings and installations must conform to the

standards set out in the Factories Act, and all industrial development proposals
must be referred to relevant approving organs, including NEMA, Uganda
Investment Authority and Ministry of Gender, Labour and Social Development.
Industrial activities may have to be licensed by the responsible local
government and institutions.
Hazardous waste landfill
 Section 1(dd) of the National Environment Act defines hazardous

waste to mean any waste which has been determined by NEMA to be
hazardous waste or to belong to any other category of waste provided in
section 53.
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 Section 5 of NEA governs the management of hazardous waste.
 Section 19(1) of NEA provides that a developer of a project described
in the third schedule to this act shall submit a project brief to the lead
agency in the prescribed form and giving the prescribed information.
 Section 37 of the Physical Planning Act and Paragraph 12 of the
third schedule NEA lists a waste disposal project as one that requires
an environment impact assessment.
Therefore in order for Mr. Omar to use part of the land as a hazardous
waste landfill , there is need to submit a project brief for preparation of an EIA.
CONDOMINIUM PROPERTIES
Task 1)
The possibility of causing each apartment to be owned by a different

person in isolation of the other apartments and the kind of
arrangement where this is possible.
a) This may be done by any proprietor or developer by
registering a plan with the registrar:
Condominium Property ACT No. 4 of 2001:
Sec 3 (1) A proprietor or developer of an existing or planned

building may divide the building into two or more units by
registering with the Registrar a condominium plan in accordance
with this ACT.
b) Upon receipt of the aforementioned application the

registrar closes the former title and issues new
certificates of title in respect of each unit:
Sec 4 (1) The registrar shall upon an application for registration of

a condominium plan close the part of the register relating to the
parcel described in the plan, and open a separate part for each unit
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described in the plan and shall upon the payment of the prescribed
fee issue a certificate of title in respect of the unit.
c) The aforementioned certificate is as good as the one

given under the RTA:
Sec 5 (3) A certificate of title issued in respect of a unit

compromised in a condominium plan registered under this ACT shall
upon the registration of the plan be deemed to have been issued
under the Registration of Titles ACT.
In conclusion, the land of Allan and Mary Kagoro comprised in LRV

314 Folio 14 Plot 9 Kisauzi Drive can be divided into the required
units and apartments for him, his children and retain the rest with
each unit having its own title.
TASK 2
PROCEDURE FOR THE CREATION OF A CONDMINIUM:
a) The application must be in the FORM I of the second
schedule of the regulations:
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Sec 11 (1)(a) (b) and Sec 11 (2)
The Condominium Property Regulations 2002:
Reg 11 (1) An application for the registration of a condominium

plan shall be in FORM I specified in Part II of the second schedule.
b) The application must be accompanied by

 A certificate of a registered surveyor Reg 11 (2) (a)
(i)
 Local authority Reg 11 (2) (a)(ii)
 Registered architect: Reg 11 (2) (a)(iii)
c) The application must however be in quadruple copies:
Sec 3 (2)
d) The plan must state that it is a condominium plan, the

boundaries, an illustration of the units, approximate floor
area of each unit, particulars to enable the identification
of the title of the units, signature of the proprietor, and
address of service:
Sec 10 (1) (a-k)
Sec 11 (6)
e) Payment of fees upon presentation of the application i.e.

20,000UGX:
Reg 29 and the 6th Schedule Par A
Task 3:
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The relationship between the different owners in regard to the property as a whole
Common property includes any property that does not belong to
any specific unit and is used in common by all the owners of the
units including the land on which the property is located, support
structures, infrastructure and services
- Such common property is held under a tenancy in common:
- Where tenancy in common means that two or more persons have

interest in the same land accruing at different times, under different
titles but from the same title with each having distinct severable
shares in the land
- Each condominium shall have a corporation upon registration

which shall inter-alia be responsible for the management and
keeping in good repair all common property:
- This common property may be transferred or leased by the

corporation
- There must be a registration of transfers pertinent to the common

property
Legal Premise:
Common property includes any property that does not belong

to any specific unit and is used in common by all the owners of
the units including the land on which the property is located,
support structures, infrastructure and services:
Sec 2
Any common property under is held under a tenancy in

common:
300
2016-2017
Sec 7 (2) The common property compromised in a registered

condominium shall be held by the owners of all the units as tenants
in common in shares proportional to the unit factors for their
respective units.
Where tenancy in common means that two or more persons

have interest in the same land accruing at different times,
under different titles but from the same title with each having
distinct severable shares in the land:
Sec 2
Each condominium shall have a corporation upon registration

which shall inter-alia be responsible for the management and
keeping in good repair all common property:
Sec 20 (1)
Sec 21 (1) (a) (b) (c)
This common property may be transferred or leased by the

corporation:
Sec 22 (3)
There must be a registration of transfers pertinent top the

common property:
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2016-2017
Sec 23 (1)
Legality of the created units:
Outline:
- Such units may be dealt with as land is accordingly dealt with

under the RTA
- The proprietor of the unit may further subdivide or consolidate his

or her unit with the same procedure as was the case when the
original unit was being created:
- Prior to the above subdivision or consolidation the the registrar

will cause an endorsement of notification on the original plan and
include on the same the fact of consolidation or subdivision
Such units may be dealt with as land is accordingly dealt with

under the RTA:
Sec 5 (3) A proprietor of a unit in respect of which part the register

is opened under section 4, may subject to this ACT sell, transfer,
lease, charge or otherwise deal with that unit in the same manner
and form as land held under the Registration of Titles ACT.
The proprietor of the unit may further subdivide or consolidate

his or her unit with the same procedure as was the case when
the original unit was being created:
Sec 8 (1)
Sec 8 (2)
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2016-2017
Prior to the above subdivision or consolidation the the
registrar will cause an endorsement of notification on the
original plan and include on the same the fact of consolidation
or subdivision:
Reg 12 (1) (a) (b)
303
2016-2017

Land Transactions Notes Researched and Compiled by Katumba Pius Busobozi FIRM H2 2016-2017

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Land Transactions Notes Researched and Compiled by Katumba Pius Busobozi FIRM H2 2016-2017

Uploaded by

LAND TRANSACTIONS

NOTES RESEARCHED AND COMPILED BY KATUMBA PIUS BUSOBOZI

1) Every person has a right to own property either individually in association

237- Land ownership

3) On the coming into force of this constitution;

6) Parliament shall make laws to enable urban authorities to enforce and to

THE REGISTRATION OT TITLES ACT, CAP 230

1) Every certificate of title shall be deemed and taken to be registered

2) Every instrument purporting to affect land or any interest in land, the

3) The memorial mentioned in subsection (2) shall be entered as at the

4) The person named in any certificate of title or instrument so registered

S. 48 (1) every instrument excepting a transfer presented registration may be

S. 54 No instrument until registered shall be effective to pass any estate or in

S.59 certificate to be conclusive evidence of title or interest in land under the

Part VI- Dealings with land

Part VII Caveats

5) No caveat shall be received unless some address in which a post office is

Part VIII- power of Attorney and Attestation of instruments

S. 147 Attestation of instruments and powers of attorney.

1) Instruments and powers of attorney under this act signed by any

2) Where an instrument or power of attorney purports to be attested ot a

3) No fee shall be taken or demanded by any officer in the service of the

S. 148, the signatures of the parties to the power of attorney or instrument

Part XII actions and other remedies

S. 181 purchases protected, purchasers bonafide for valuable consideration of

Part XIV Miscellaneous

2) The commissioner on the payment of a fee, furnish to any person applying

S.3 incidents of forms of tenure

S.3 (1) customary tenure

a) Applicable to a specific area of land and a specific description or class of

S.3 (2) freehold tenure

S.3(4), mailo tenure

a) Involves holding of registered land in perpetuity

S.3 (5) leasehold tenure-

a) Created by contract or by operation of the law.

S.29 meaning of “lawful occupant” and “bonafide occupant”

i) “Lawful occupant” means

a) a person occupying land by virtue of the repeated

a) Had occupied and utilized or developed any land unchallenged by the

b) Had been settled on land by government or an agent of the government

S.34 Transactions with the tenancy by occupancy

1) A tenant by occupancy may in accordance with this section, assign, sublet,

2) A tenancy by occupancy may be inherited.

3) The tenant by occupancy should submit an application in the prescribed

S.31defines tenant by occupancy

S.33 certificate of occupancy

S.35 option to purchase

1. Every spouse shall enjoy security of occupancy on family land

2. Security of occupancy means the right to have access to and live on

4. Family land- means land

“land from which the family treats sustenance means;

a) Land which the family farms on

S. 39 restriction on transfer of family land.

S.40 Acquisition of land by a non citizen.

a) A person who is not a citizen of Uganda

National provincial BANK v Ainsworth (1965) A.C 175

1. What documents would I require from Perusi Lunkuse to determine

2. What steps would I take to satisfy the viability of the purchase.

3. What are the respective rights of Enock Mutale, Lunkuse’s children

5. What is the viability of the transaction of sale of the land to the

6. What steps would I take to conclusively complete the transaction

8. What duties are to be carried out by parties to the transaction?

9. What ethical challenges are expected to be faced in the transaction of

10. How would I address the ethical challenges?

1. Constitution of Uganda, of 1995

3. Identification documents of Perusi Lunkuse and L.C.1 chairman of

David Sekajja V Rebecca Musoke civil Application No.12/1955. The court

5. Letter from the LC, National ID, passport photogtaphs, marriage

A. 26 of the constitution guarantees every Ugandan the right to own property.

S.38, A land amendment act 1 of 2004 creates security of occupancy on family

STEPS TAKEN PRIOR TO PURCHASING THE LAND

 An advocate shall exercise due diligence at all times when handling a

1. Pay attention to the documentation

Gibbs V Messar (1891) AC 249 court held that a search is to be carried

This is done by ordinary letter to the registrar of titles and payment of

3. Physical search on the land