A) Discuss the following:

(I) Tenure

(II) Estate

Tenure

The doctrine of tenure states that crown, who is the lord paramount, owns all the land in
England. Under this doctrine of tenure it’s assumed that there is no land which is allodial
or owned by a subject and not held either directly or indirectly of the crown. The crown’s
title is variously described as the radical or absolute or ultimate title. The origin of this
doctrine is founded in the traditional belief that sometime after the Norman conquest of
England in 1066, William 1 declared that all lands in England belonged to him by
conquest and surrender. He distributed his land to his subjects (‘tenants in chief’); others
who held their land differently but didn’t rebel against William’s retained possession. The
king rewarded his followers with grants of land, not absolutely but conditionally on
performance of various services. The obligation of tenants created complex feudal ties
between the King and his subjects

The term ‘tenure’ signifies holding land form from a superior lord in return of services. It
can also refer to a mode of holding land where one (the tenant) holds lands of another
subject to the performance of certain obligations

The doctrine of tenure enables interests in land to be divided spatially with different
tenants having a range of entitlements tied to particular parcels of land thus a
Fragmentation in a spatial dimension. The classic doctrine of tenure exerts a profound
influence on the structure of proprietary interests in land, its roots lying in the economic
and political interstices of the feudal system.

Estate

The doctrine of estates refers to the interest that the subjects own in land. According to
English land law, a subject does not own land but holds an estate of the crown. An estate
is an abstract entity which authorizes a person to remain in possession of the land for a
period subject to the performance of tenurial duties. The estate itself is property which is
subject of ownership both at law and in equity. The doctrine of estates allows
fragmentation of interests in land on a temporal basis with the fullest set of rights of
enjoyment of land, namely the right of possession and they permitted interests in land to
be carved out temporally,future interests could also be alienated.

Estates are classified into two categories;

A. Estate of free hold

B. Estate of less than free hold

A. Estate of free hold

They are uncertain in duration and include fee simple estate fee Tail estate and Life
Estates).

Fee simple estate.

This was the largest in terms of duration that can exist at common law. The term fee
designated that it is inheritable and simple indicates that it is inheritable by general heirs
of the holders for the time being. A fee simple estate only determines when the holder of
the estate dies intestate and without any relatives whatsoever capable of inheriting it
under intestate succession.

This estate only ceases when the holder of the estate dies and has no relativesto take up
ownership whatsoever. It is capable of enduring endlessly since it is unreal for a person
not to have relative. And it is equivalent to full ownership of the land itself.

Fee tail estate

This was a freehold estate but unlike a fee simple estate it was inheritable by a limited
class of relatives. Normally its inheritance was limited to lineal descendants of the
original grantor. For example a grant ‘to A and heirs of male descendants’ meant that the
estate was only inheritable only by A’s male descendants and if there was no male
descendant the estate would revert back to the original grantoror successor in title. The
object of entailing was to ensure that the land remained to benefit a closed family.

Life estate
This is an estate that endures for life of the grantee or some other person’s life. For
example, where in a will a testator grants his house to ‘A for life’ it means that A has a
free hold estate for as long as he or she is alive.

A life Estate is a freehold estate because its duration is uncertain as it is not known when
the holder will die and the estate terminate. However a life estate cannot be inherited as it
determines upon the death of the holder.

B. Estate less than free hold

These refer to an estate whose date of termination is certain or fixed. A good example of
estate less than a free hold is a free hold lease to B for 20 years since the actual date of
termination is known. A lease even if it is for 1000 years is not a freehold estate because
the date of its termination is certain

B) Explain the term Bear License

Bare License

A bare license is a personal permission or consent, granted without

consideration, to enter, traverse over or be present upon the land of another. A
bare license covers a huge number of every day situations where a person may
enter on to another person's property - for example, a friend inviting another
person over for a drink. A bare license is a defense to what would otherwise
amount to the tort of trespass.”When you invite a person into your house to use
the staircase, you do not invite him to slide down the banisters". Similarly, if the
person is permitted to enter the land for one purpose but enters for another
purpose, or whilst on the land begins to pursue a different purpose to that which
he is authorized, again he becomes a trespasser, where it is known or
understood that the occupier would not have given consent.
QUESTION TWO; according to section 57 of the registration of titles act, a
certificate of title is conclusive evidence of land ownership and cannot be challenged.
Discuss the exceptions to the principle of indefeasibility of title

The second essential feature of Torrens system is the principle of indefeasibility of the
title. This means that once a person is registered as a proprietor of an estate or interest in
land the government guarantees that his or her title cannot be diverted or attacked by the
rival claims to the land except as prescribed under the registration of titles act. This
principle of indefeasibility of title through the central to the Torrens system is not
absolute. It is subject to several exceptions, some of which are expressed within the
registration of titles act.

Section 61 of the act guarantees the indefeasibility of a registered title subject to the
following exceptionsThe effect of these exceptions is to make it necessary for purchasers
of land to look beyond the title they have. They have the effect of undermining the
curtain principle, thus, a purchaser of land must examine the land itself to determine
whether anyone is in possession, he or she must conductresearch to determine whether
there are any easements or rights of way over the land, and mustnot engage in or be party
to fraud. These obligations may not seem particularly onerous or controversial, but they
have given rise to considerable debate about the proper scope of unregistered interests
within the Torrens system some of these exceptions are explained briefly as below;

Fraud

Section 61 of the registration of titles act stipulates that the title registered proprietor is
indefeasible except in the case of fraud. It should be stressed that the fraud which must be
proved to invalidate a registered title must be the fraud of IGO person whose title it is
designed to impeach. Thus the fact that the registered proprietor bought the land from a
person who acted fraudulently in transferring the land doesn’t mean the transferee’s title
was acquired through fraud. In Musisi V Grindlays bank (u) limited and others, Masika c
said that a person registered through a fraudulent act by him or to which he is a party or
with full knowledge of the fraud.

Public rights of way;

At common law, a right of access over another’s land may be granted under the Access
to Roads Act. Section 11 of the Act provides that where a landowner fails through
negotiations to obtain leave from adjoining land owners to construct a road of access over
their land to a public high way, he or she may apply to a land tribunal for permission to
do so. The act gives the tribunal discretion to refuse or grant the application subject to
any conditions, such as payment of compensation and the course of direction of the road
as it shall deem fit. An order madeunder the act must be served on the registrar of titles
with in thirty days for the date of issue, and any person lawfully going to or from the
applicant’s land, has a right at all times to use the road.

The estate of a proprietor claiming under a prior instrument of title

The title of a registered proprietor is not indefeasible as against the interest of another
proprietor claiming the same land under a prior registered title.

The provision envisages a situation where the same land is erroneously included in two or
more certificates of title. The error may be committed by the registrars’ office, district
land board or by the parties. For example suppose that Tom sub divides his land into two
plots blackacre and whiteacre he sells whiteacre to Peter and the latter is registered as
proprietor of the land. Then he sells black acre to Paul. By mistake the certificate of title
issued to Paul includes both plot blackacre and whiteacre two years later, Paul purports to
sell both the plots to and he is registered as proprietor of both the plots. Even though
Musoke purchases in good faith, his title; is not indefeasible to the extent that it includes
whiteacre plot of land which is comprised in Peters prior certificate thus Peter may eject
Musoke from whiteacre.

Land included by wrong description

Section 61 of the registration of titles act stipulates that the title of a registered proprietor
is not absolute as regards any portion of land that may have been included in his or her
certificate of title by wrong description of parcels or boundaries the effect of the
exception is that, title to such land remains in the owner and he or she can bring an action
for ejectment under or have mistakes rectified. The title of a registered proprietor is not
indefeasible with respect to any part of their folio whoseboundaries were erroneously
misdescribed this means that the benefit of surveying mistakes (which normally arise
during the process ofconverting general law to Torrens land) is not passed to the
registered proprietor. The existing boundaries are retained. There are two situations in
which this exception might arise;

First, if a party incorrectly describesthe land with respect to which they seek registration,
and somehow manages to obtain acertificate over that land, their title is defeasible as
against the real owner of that land.

Second, a party may correctly describe her land and obtain registration of their certificate,
but thefolio issued may incorrectly describe the subject land. This will not fall afoul of
the exception; ifthe applicant becomes registered (and is not fraudulent) she will have
indefeasible title.

Easements

Public rights of way of easements acquired by enjoyment or user over or upon or

affecting registered land constitute an exception to indefeasibility under section 61,
registration of titles act An easement is a right attached to a particular piece of land that
entitles the owner of that land either allows the use of his land by another person in a
particular manner or restrict that other person’s use of his or her land to a certain
extent. There are many types of easements such as statues, expressed grants or
reservations which are included in the titles at the time of sale and other easements which
may not necessarily be indicated in the land titles but may accommodate the right of
another person over another persons land. E.g. implied, intended, by way of
necessity...Etc. An easement of way of necessity will be implied over the land sold. The
easement arises by operation of law because it is a matter of necessity and vital to the
effective ownership of that part of the land that the owner should have access to it,
otherwise the land would not be of much use of him or her.The law is illustrated by
the case of Barclays bank D.CO.Vs Patel. In 1941 , Tebbutt, proprietor of certain land in
Nairobi , subdivided the land into three plots: A,B and C and had the three plots
registered under the Kenya Registration Of Title’s Act ( cap 281). Plot A fronted on
Langata Road, a public road, but there was no means of access to plots B and C except
via surrounding land with permission of the respective owners. In 1944, Tebbutt sold
plots B and C to Moore. Neither the transfer nor the certificates of title issued to Moore
mentioned any right of way to the two plots from Langata road over Plot A, which
Tebbutt retained. Later Tebbutt sold the plot A to the appellant again without any
reference to a right of way, indeed the certificate of title specifically declared that plot A
was not subject to any encumbrance. Subsequently plots B and C were sold t the
respondent.

Several years later the respondent brought these proceedings against the appellant
claiming a right of way necessity over a plot A. on appeal to the East African court of
appeal, it was contended for the appellant that the circumstances did not support the
existence of a way of necessity. Secondly, that in any case the respondent was not
entitled to the easement was made in the transfer in his certificates or that of the
appellant. The court found that at the time the respondent’s predecessor in the tile, M,
purchased the two plots from T, he had no legally enforceable means of access to Langata
road. Accordingly, a right of way of necessity arose by operation of law over the land
retained by T. the fact that neither certificate of title mentioned the right of way was not
material because the parties do not create an easement of way of necessity. Unlike
other easements, the easement of way of necessity arises by operation of the law and,
therefore, does not need registration.

An easement is a right over another’s land for the benefit of some other land. It is thought
that the effect of the exception is that the registered proprietor takes title subject to any
easement which has not been otherwise extinguished even though the same is not
endorsed on the certificate of title.

In personam rights

Even if a transaction is not fraudulent, it may still be possible to defeat a registered

proprietor’s title. One basis on which this may be possible is the in personam exception
to indefeasibility. Although the registered proprietor has paramount and generally
indefeasible title, he or shemay not refuse to perform contractual obligations on that
basis. The in personam exception‘relaxes the rigour of immediate indefeasibility’ to give
effect to personal obligations: These claims, legal as well as equitable, include rights
which a registered proprietorcreates, whether by contract or by conduct, in favour of
another, provided that they areenforceable and not affected by the protection which
indefeasibility gives to those whodeal with the registered proprietor on the faith of the
register. The in personam exception recognizes that indefeasibility of title will not
displace personal obligations created by the registered proprietor where they exist,
specific performance ofcontracts may be granted and trusts enforced against them.Bahr v
Nicolay provides an example of an in personam claim. In that case, conduct andevents
prior to registration gave rise to a constructive trust (Wilson and Toohey JJ, Brennan J).

Adverse possession
Title may be created not by registration but by a process ‘adverse’ to the registered title
holder(Physical occupation with an intention to possess the land). Adverse possession is
one of the many ways in which an interest may be acquired through an ‘informal’ process
that later can be formalized by registration. Once the prior title is extinguished, the holder
of possessory title can make an application forpossessory title to be registered. Adverse
possession is a paramount interest and is therefore a statutory exception to indefeasibility.
This means that the prior registeredproprietor cannot resist the possessor’s claim to
registration. Adverse possession is said to be justified by reference to economic
efficiency and certainty, inthat after a sufficiently long lapse of time, it is easier to let the
boundaries be recorded as they lie.

Adverse possession is an example of the Torrens system’s balance between ‘informality’

fairness and individual justice, the promotion of certainty and security of registered title
under

Torrens registration. If a land owner does not commence or eject proceedings against an
intruder in adverse possession within a period of twelve years, the land owner effectively
loses his or her land to the intruder.

Interest of any tenant of the land

Section 61 states that the interest of any tenant whose possession is not adverse prevails
over the title of a registered proprietor even though his or her interest is not entered as an
encumbrance on the register’s book. The effect of the exception is that the processor’s
claim under the tenancy is not registered. For example interest of a lawful or bonafide
occupant would prevail over the title of the registered proprietor under this provision.
Also in Uganda post and telecommunication v AKM Lutaaya it was held that the
respondent’s registered lease hold was subject to the appellant’s title acquired by
possession with the consent of the land lord prior to the lease hold.

Tenant must be deemed to include atleast every tenant who is in actual occupation and
holds under some land lord, and that every interest in the land of such a tenant, which
grows out of, and is not discoverable form, from his right to continue in occupation as a
tenant, is protected by the terms of his provision against the claims of a proprietor under a
certificate of title. Because of this exception, a person who deals in land without physical
inspection of the land to ascertain whether another person is in possession does so at his
or her won peril. It should be stressed that for his exception to apply the person must be
lawfully in possession as a tenant and not as a squatter.

Lease, license or other authority granted by the minister

A lease, license or other authority granted by the minister or a government department or

office or public authority in respect of which no provision for the registration is made,
constitutes an overriding right over the land affected. For example, under the road act
(cap 345), the minister is given power to declare any land a road reserve and where the
land is so reserved, construction of building any other structures in or with in a prescribed
distance thereof is prohibited.

Under the same act, power is given to the road authority to dig and take away materials
required for the construction of roads from any part of the road reserve without payment
to any one. Since there is no provision for the registration of road reserves under the
registration of titles act, the ministerial power overrides a registered title.

Unpaid rates, taxes and charges

Section 61 of the registration of titles act states that a registered proprietor takes the land
subject to any outstanding rates or charges which, without reference to the provisions of
the registration of titles act, are declared under a written law challengeable on the land in
favor of the government or the public body. For example section 95(1) of the water statue
1995, provides that the rates, charges or fees levied under the act and any interest and
penalty payable thereon, is a charge or fees levied under the act and any interest and
penalty payable thereon is a charge against the land in respect of which the rates, charges
or fees are levied. Thus where after buying a house the new owner should ensure that the
charges are paid otherwise the water authority might cause the land to be sold in order to
recover the moneys due to it. Obviously the owner could recover the money from the
person, who was primarily responsible but as far as the national water and sewerage
cooperation is concerned and the charges are attached to the land. Searching the register
book will not of course reveal outstanding debts to the corporation.

Registrars power as an exception to indefeasibility

The registrar is given certain powers which within limits constitute further exception to
the principle of indefeasibility of title. The powers are granted under section 92 of the
land act 1998.81 under this provision, the registrar is empowered to correct errors and
supply omissions in the register book and certificate title. The section provides that where
a certificate of title contains a misdescription of land or boundary or if it was wrongly or
illegally obtained or retained, the registrar may dispense with production and amend the
registry and, where necessary, issue a special certificate without reference to the district
land tribunal within a period of sixty days. Where a certificate of title is cancelled the
person in whose favor it is cancelled is prohibited from transferring the land until the
appeal period expires or pending the results of the appeal against the registrar’s decision.

QUESTION THREE; with reference to the land act cap 227 and the constitution of
the republic of Uganda, explain the following.

a) a lawful occupant

b) a bonafide occupant

BACKGROUND

The land reform decree, 1975, empowered mailo owners to evict customary tenants from
there land if the land owners required the land for economic development. Also, under
the general law of torts, subject to the limitation act (cap70) a land owner was entitled to
evict at anytime a person who occupied his or her land without the landowner’s consent.
Hence, potentially thousands of ordinary people who were in occupation of mailo land as
well as customary tenants or squatters were at risk of possible evictions by land owners.
During the deliberations that led to the promulgation of the 1995 constitution, many
representatives in the constituent assembly were apprehensive that land owners might
evict these people en masse, and this might lead to social unrest. To forestall the problem,
article 237 (8) of the constitution provides that all persons in ‘lawful’ or ‘bonafide’
occupation of mailo land, free hold and customary land shall enjoy security of tenure
until parliament enacted an appropriate legislation regulating the relationship between
such occupants and the registered proprietors. The provision was intended to be
temporary measure pending the enactment of the appropriate legislation within a period
of two years of the first session of parliament. Because the debate of this matter was
contentious, and threatened the making of the constitution the constituent assembly left it
to parliament to define the terms ‘lawful’ and ‘bona fide’ occupant.
A LAWFUL OCCUPANT

Under Section 30 (1) of the land act the term lawful occupant has three meanings.

First, it means persons occupying land by virtue of the Busuulu and Envujjo law of 1928
or the respective Toro and Ankole landlord and tenant laws of 1937. Effectively these are
customary bibanja (plots) owners on mailo land and native free hold land.

Secondly the term lawful occupant means a person who entered the land with the consent
of the registered owner and includes a purchaser. “the term purchaser technically denotes
a person to whom land is expressly transferred by action of the parties rather than by
operation of law for example a person who acquires land by interstate succession is not a
purchaser because she acquired there title by operation of law” A registered owner is a
person who is registered as proprietor of the land under the "Registration of title Act".
The Later act provides for the registration of mailo, free hold and lease hold land, but
does not make provision for the registration of customary land or land vested in the
government. Therefore the Second definition refers to a person who entered into
occupation of mailo, free hold or lease hold land with the consent of the land owner.The
key requirement of the provision is that the person must have entered into possession
with the consent of the registered owner of the land.

The third meaning of lawful occupant is a person who was in occupation of certain land
under customary tenure but his tenancy was not disclosed or compensated for by the
registered owner when he or she applied for a public lease over the land. Under Section
24 of the Public Land act 1969 an applicant for a lease was required to disclose whether
or not the land was occupied by customary tenants and if it was so, whether they had
consented to the alienation of the land.

Its is submitted that in context of the act and the prevailing policy objectives, the term
lawful occupants was meant to apply to only persons who were in occupation of
registered land with the consent of the owner without grant of any specific tenancy but in
expectation that that they would remain on the land for an indefinite period .A possible
example is a licensee protected by the principle of proprietary estoppel. This may arise in
a situation, where a land owner knowingly allows or encourages another person to build
on the land there by creating an expectation in the mind of that person that he or she will
grant him or her an interest in the land.

There are circumstances where the occupier of the land is considered a no lawful
occupant for example a squatter, a license which is excluded by s.30 (4) of the land act,
which expressly states that a person who is on the land on the basis of a license from the
owner shall not be taken as a lawful occupant.

BONA FIDE OCCUPANT

The term bona fide occupant has two meanings

First, it refers to a person who before the coming into effect of the 1995 constitution had
occupied or improved certain land without being challenged by the registered owner of
the land or by the agent of the owner. Unlike a lawful occupant, a bona fide occupant
entered the land without the consent of the land owner, so essentially a bona fide occupier
is a tress passer or a squatter. l.

The term bonafide occupant applied to a person who had been in occupation for atleast
twelve years before coming into effect of the 1995 constitution, however there’s no time
limit for adverse possession For example, suppose Zaake is the owner of the Subject land
in 1985, Kasoma settled on the land without Zaake's consent and has remained there
since unchallenged by Zaake. Kasoma would not qualify as a bona fide occupant because
in1995 he had not been in occupation of the land for twelve years. However, Kasoma
could claim ownership of the land by adverse possession under the limitation act, if by
1997 he were still in the occupation of the land.The period of twelve years of occupation
corresponds with the twelve year limitation period prescribed by the limitation act (cap
70) for recovery of land. It is stressed that the provision requires that the person must
have been on the land, unchallenged by the registered owner for a complete period of
twelve years.

The Second meaning of bona fide occupant is a person who had been settled on land by
the government or its agent including a local authority. Unlike the first definition, in this
instance, there is no requirement that the person must have settled on land for a particular
minimum period. The main object of this provision was to protect from eviction hundreds
of landless people. The reason for this requirement was to avert possible legal challenge
of the provisions on the grounds that it deprives the people of their property without
compensation contrary to Article 26(2) of the constitution. Compensation must be paid
within a period of five years from the date the act came into effect.