SAMPLE QUESTION:
Discuss the development and the application of the Torren’s system of land recording in Uganda.
The approach of the land transaction coursework
1. Define torrens system
2. History back ground of torrens system
3. Reasons why the torrens system was adopted
Advantages of the system within the explanation
The different types of land conveyances that existed in Uganda by then.
4. The establishment of the registrar
5. The essentials of the torrens system
Title by registration
Indefeasibility of title
6. Title by registration
Applicability
Giving criticisms
Local examples
Advantages within the explanation
7. Indefeasibility of title
Applicability
Exceptions
Local examples
Other statutes
Protection of the title
8. Conclusion and the remedies
Torrens system is a system for establishing title to real estate in which a claimant first acquires an abstract of title certificate which serves as conclusive evidence of ownership.[1] Per the definition, therefore a title which is registered is an essential feature in land transactions. The system owes it origin from Australia. Australia being a British colony, it was subjected to the English law of Real Property. This included private conveyancing and registration of deeds. However Australia’s economic and social conditions were very different from that of England for example the latter had a well developed legal profession that managed the land conveyancing while Australia was a sparsely populated country. Thus the systems could not apply in Australia.
In 1840, Sir Robert Torrens who came from south Australia, advocated for a new system that could be used in Australia.[2] Sir Robert was of the view that there be a total break away from the private conveyancing and registration of deeds. This was so because of the dependent nature of titles which necessitated retrospective investigation of title each time land had to been conveyed. He opted for a system of conveyance which was simple to operate, secure and fair compared to other systems.[3] Thus, he wanted a single document that could be a conclusive evidence of a title to each particular piece of land.
Sir Robert Torrens’ efforts led to the evolution of the Torrens system of land conveyance in Australia in 1858 thus naming the system after his name. The system spread even to Australian states, New Zealand, Malaysia, Papua New Guinea, some states in United States of America and Canadian provinces.[4] Since Uganda was a protectorate, it was subjected to the systems of Britain thus the system of Torrens had to be inculcated in Uganda. However, there was Open and Public convenyance; Private conyenyance; and Registration of deeds already in place. The system started to have its roots in Uganda in 1910 through the Ordinances that were enacted by the colonial master the British. An Ordinance that based on the transfer of Land Act 1915 of the State of Victoria in Australia was enacted as the Registration of Titles Ordinance 1922 No.22 (Cap.102 of the 1923, revised edition of the Laws of Uganda).[5] However, the Ordinance came into force on 1st May 1924[6] thus importing the Torrens system of land recording in Uganda that was practiced in the state of Victoria Australia. The system took effect by registering the final Mailo certificates. An example is section 9(3) of the Ordinance provided that in order to pass any estate or interest after the commencement of the Ordinance, that estate
or interest should be registered. Due to the amendments in the Laws of Uganda, the Registration of Titles Ordinances is currently known as the Registration of Titles Act Cap 230 (R.T.A).
The most important issue is the establishment of the registrar under section 3 of the R.T.A and the functions of therein. Section 3(1) of the R.T.A provides that the registrar is in charge of the office title and exercise the powers
and duties that the Act bestows on him/her. The major obligation of the registrar is to issue a certificate which is conclusive evidence of title as provided for in section 59 of the R.T.A. The Torrens system thus the R.T.A of Uganda has two essential features thus the Title by registration and Indefeasibility of title which make it distinct from other land recording systems. Through those systems, that is the way how the torrens system of Sir Robert Torrens is applicable in Uganda.
Tile by registration as a feature, is where the interests in land are created or transferred by registration under the R.T.A Act[7]. This provided for in section 54 of the R.T.A that no instrument shall be effectual to pass any interest or interest in land unless it is has been registered according to the section. Therefore, the interests and estates are not transferred by the execution of documents under the common law doctrine. In Uganda today one to transfer an interest or an estate, the former and the latter must be registered by the registrar who issues a certificate of title. That certificate and the particulars of the certificate are then entered into the register book; and it shall be conclusive evidence that the person named in the certificate is the proprietor thus having the power to dispose off the land as prescribed by the Act.[8] In Ndigejjerawa v Kizito and Kubulwamwana,[9] Kizito who was a registered proprietor of a certain piece of land agreed to sell it to Kubulwamwana a second respondent under a written contract. After four days, Kizito purportedly sold the same land to Ndigejjerawa who was the appellant. The appellant went to the registrar of titles with the documents to transfer title in his names. Later, the second respondent also went to the registrar of titles to with the document to transfer the same piece of land in his name. However, none of the purported buyers got title because all the documents presented were not in a registrable state. Ainley.J gave his judgment that “… No document or instrument can be registered unless it fulfils the requirements, and no instrument (however perfectly it fulfils the statutory requirements) is effectual to transfer any interest in land unless it has been registered…” He based on the Registration of Titles Ordinance which is equivalent to section 54 of the R.T.A. Therefore, it was held that none of the buyers got title since none of their documents relied upon the statutory requirement of the ordinance thus they were only entitled to damages or one entitled to specific performance a remedy.
The applicability in general is that currently in Uganda no one can transfer an estate or interest unless it is registered as required in the R.T.A by the registrar. Another applicability is that title does not pass by mere execution of titles. In Ndigejjerawa v Kizito and Kubulwamwana ibid, both the buyers executed documents but none of them got the title. Even the maxim of Equity that where equities are equal, first in time prevails did not apply. The system is also applicable in the way that customary land tenure is not registrable under the R.T.A. Therefore, the system started to register all the customary land thus issuing certificates of ownership. This is evident in our section 68(2) of the Land Act 1998. However, the system deals with the registered instruments such as mailo land, free hold land, lease hold and the registered customary land. Under section 38 of the R.T.A this will be concluded by the registrar issuing duplicate certificate, recording the proprietor in the Register Book and retaining a copy in his/her file. Practically, this has led to the registration of land in Uganda. Although the law is very clear that no instrument shall be effectual to transfer any interest/estate in land unless it has been registered per section 54 of the R.T.A, the law does not deny unregistered instruments any legal efficacy.[10] In the actual sense the statement contradicts section 54 of the R.T.A however this protects the unregistered interests/estates. In my view I see the doctrine of Equity being at play. This is well illustrated in Souza Figueiredo and Co. Ltd v Moorings Hotel Co. Ltd[11]. The respondent by contract leased the suit of properties to the appellant for a period excess of three months. The lease was however not registered. Before the time elapsed, the appellant vacated the premises in arrears. The respondent sued but the appellant based on section 54 of the R.T.A arguing that the lease was not effectual thus he was not liable to pay rent. The respondent argued that there was an equitable remedy however the appellant said that equity could not override the provisions of the R.T.A. Sir Kenneth O’Connor said that although section 54 could render instruments ineffectual when they are not registered however, “[T] here is nothing in the… [ACT] which renders such instrument as ineffectual as contracts between parties to them, there is nothing in the… [ACT] to say that unregistered instrument document purporting to be a lease of or an agreement to lease land which is subject to the operation of the [ACT] for than three years is void. In my view it can operate as a contract inter parts and can confer on the party in position of intending leases a right to enforce the contract specifically and to obtain from the intending lessor a registrable lease.” Therefore, it was held that the respondent was entitled to the rent from the appellant since the latter had taken possession as a tenant at will.
As I said that there is an element of Equity being at play, this helps the proprietors who cannot register the instruments because they do not have money to register to the registrar as per section 3 of the R.T.A, if there is delay on the proprietors’ part to register the instrument and also if there is existence of fraud. In Uganda, most of the instruments are not registered thus the courts look into the matter and the doctrines of Equity be put in place. In Katalikawe v Katwiremu and another,[12] Ssekandi.J. held that though in a contract of sale of land an unregistered instrument of transfer is not effective to transfer title, the purchaser acquires an equitable interest in the land, which is enforceable against the vendor. Therefore, the law does not totally undermine unregistered instruments if there is a reasonable defense submitted or the doctrine of Equity being at play.
Indefeasibility of title as the second feature means that once a person is registered as the proprietor of an estate or interest in land, the government guarantees that his/her title cannot be divested or attacked by rival claims to the land.[13] This principle is not provided for in the R.T.A however, it was developed by Professor Whalam. He
described it as a “mosaic of sections.”Today, his principle can be evidenced our R.T.A cap 230 in form of sections for example section 59 provides that certificates offered by the registrar as the provisions provide that they shall be received in all courts as evidence and shall be conclusive evidence that the person named in the certificate is the proprietor. This means that no one can come and eject the person in possession of the land as long as he has the certificate. Practically in Uganda, there were many land proprietors who had certificates of title and they used them as conclusive evidence thus evicting other occupants on the land. This was mainly done in Mubende district. However, the law protects the occupant for example in new Land Bill that was passed on 27th November 2009. This can also be illustrated in section 64 which provides the proprietor of land or any interest shall except of fraud, hold the same subject to such incumbrances as notified on the folium of the register book constituted by the certificate of title. Briefly as stated, the section says that the proprietor of land or interest shall not evict the settlers unless he compensates them as per section 178 of the R.T.A since they will be violating section 29(2) of the Land Act cap277 if the occupants are bona fide and if it is the Government evicting, it will also compensate the occupant(s) as per section 29(3)(a) ibid. Thus, the law protects the settlers from such evictions.
The principle of indefeasibility is also applied in section 176 of the R.T.A, it provides for the protection of the registered proprietor against ejectment except in certain cases. Thus since one has the title, it is conclusive evidence and ejectment will be violation of Article 26(1), (2)[14] which provides for the protection from deprivation of property. This has however come with exception such as mortgagee as against a mortgage in default; a lessor against a lessee in default; where a person is a bona fide purchaser for value.[15] Article 26(2) ibid also provides for the exceptions. The case of Lwanga v R.T.A[16] the principle is clearly brought out. Briefly, the applicant’s late father bought and but it was not registered into the deceased’s name. After his death, one Katamba, fraudently caused the land to be registered in his name. He later sold the same piece of land to Salongo who became a bona fide purchaser for value. In court of first instance, the Magistrate convicted Katamba of forgery and ordered the suit to be transferred to the applicant. However, the registrar refused to transfer the suit to the applicant. The applicant appealed to the High Court. Odonki.AG.J upheld the registrar’s grounds. He held that Salongo was a bona fide purchaser for value thus under our current section 176 of the R.T.A his title could not be impeached or cancelled notwithstanding that he acquired hi title from a forger.
Therefore, the case portrays the applicability of the principle of indefeasibility in the way that a certificate is conclusive evidence of the title. Thus there was no way the applicant would challenge Salongo who was a bona fide purchaser for value and was not he was not the fraudster.
The principle of indefeasibility however is subjected to certain exceptions. These exceptions are both created by
statutes and others created by overriding statues. Courts also do exercise their inherent jurisdiction. Thus, the certification of title will not be conclusive evidence when any of the exception is being brought up. Therefore, through the exceptions, the torrens system is applicable in Uganda. Exceptions within the R.T.A include fraud. Fraud is the knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.[17] Section 178 of the R.T.A provides that a registered proprietor is indefeasibility except in case of fraud. Thus the person whose title may be impeached must prove the fraud. In Lusweswe v Kasule and Coulbally[18]the exception of fraud was established where a plaintiff’s land was taken by the respondents when he was detained in prison alleging that the latter had sold them the land. The plaintiff sought an order of cancellation of the title of the second defendant since his land was taken through fraud. The judge held that there was sufficient circumstantial evidence to establish fraud thus the plaintiff got back his land.
Public rights of way and easements under section 64 of the R.T.A is also an exception. This is where a way is benefiting the whole public thus it is needed hence one’s title will not be indefeasible. Where there is adverse position; the defendant being a bona fide occupant under section 29(2) of the Land Act, the title will also not be indefeasible. If a lease, license or other authority granted by the minister,[19] the title also ceases to be indefeasible. An example is when there was construction of Entebbe road. The road was extended while construction thus the proprietors’ titles were indefeasible by then. The title will also not be indefeasible when the land included was by wrong description.[20]
Overriding statutory provision is also an exception to indefeasibility of title. This is enforceable against the registered proprietors however, this matter of statutory interpretation.[21] An example is section 8 of the Access to roads Act Cap 350 which provides for the right of way. Through caveats, the title will also cease to be indefeasible. In Katarikawe v katwiremu and Anorther supra Ssekandi.J. held that taking possession of title deeds by a purchaser is insufficient to protect an interest unless a caveat is lodged. This can also be portrayed in section 187(2) of the R.T.A.
In conclusion, Article 237[22] provides that all land belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in the Constitution. However, there has been an extra mile taken to register land in order to avoid land disputes which mainly lead to death. The torren system being one of the systems of land recording, it is applicable as discussed above and is more advantageous since the system is simple to operate, fair and does not require a lot of documentation like private land conveyancing. Therefore, having a certificate of title is very important since it acts as evidence to the piece of land. Though there are exceptions, the law provides remedies like ejectment, damages and compensation.
BIBLIOGRAPHY
STATUTES
1. The Constitution of the Republic of Uganda 1995 (as amended)
2. The Registration of Titles Act cap 230
3. The Land Act cap 277
4. The Access Road Act
TEXT BOOKS
1. Principles of Land Law: John. T. Mugambwa
2. Source Book of Uganda’s Law: John. T. Mugambwa
3. Black’s Law Dictionary 8th edition: Bryan A. Garner.
4. Land Policy in Uganda: H. M. West
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