ISLAMIC UNIVERSITY IN UGANDA
LAND LAW COURSE WORK
COURSE: LLB 11
SEMESTER: 1
COURSE UNIT: LAND LAW 1
REG: 210- 053012- 02715
LECTURER: LYDIA MATTE
QUESTION: the protection of equitable interest in unregistered land is far weaker than the protection given to equitable interests in registered title. However, the registration of titles Act was only meant to provide a temporary system and at least unregistered title is fast disappearing.
Discuss
REFERECENCE
THE 1995 CONSTITUTION (AS AMENDED
LAND ACT OF 1998.
REGISTRATION OF TITLES ACT CAP 230
MORTGAGE ACT
PRINCIPLE OF LAND LAW BY JOHN T MUGABWA
SOURCE OF LAND BY JOHN T MUGABWA
MEGGARY AND WADE THE LAW OF REAL PROPERTY
CASE LAW
Legal interest is right in Rem whilst an equitable interest is a right in personam. Therefore both principles are summed up in a cardinal maxim in which it expressed the true difference between legal and equitable rights “legal rights are good against all the world; equitable rights are good against persons except a bona fide purchaser of the legal estate for value without notice,& those claiming under such purchase”
Equitable interest is the right in property such as that of a life tenant or the beneficiaries of trust that tantamount the real right but not legal right. An equitable owner was therefore never quite in the impregnable position of the legal owner. Because he never had an absolutely indefeasible title but the rules relating to notice and the system of conveyance founded upon them protected equitable interests therefore they became much more than rights in personam against trustees[1]. And in instances of fraud, equity did not deny the legal owner (trustee) the land but prevailed upon trustee to carry out the trust in accordance with the grantors instructions. Hence there was duality of ownership with the trustee owing a legal fee simple estate in land and young children an equitable estate in fee simple[2] Equity regards as done that which ought to be done.
The torren system was developed by Robert torren aimed in providing simple secure and fair registration of land & a central registry of land thus introduced in Uganda by the registration of titles Act (R.T.A) so that one owes it legally by law.
The registration of titles automatically applies to all mailo land included in any final mailo certificate and all lands alienated in freehold of leasehold and any transaction relating to such land[3] where as unregistered land is which title is not registered but established by the title of deeds of a particular property therefore customary land tenure is not registered under the Act[4]
How the protection of equitable interest in unregistered land is far weaker than the protection of equitable interest in registered title.
As a general rule, where a legal interest is created first it will not be affected by subsequent equitable claims. In absence of fraud a registered title prevails over a person takes a better title than a person who purchased the same land earlier but did not register his or her interest. The case of Ndigejjerawa v Kizito and Kubulwamwana[5] Held that Kubulwamwana’s equitable interest had priority because it was created earlier than that Ndigejjerawa’s interest. The court said that prior lodgment for registration of instrument of transfer, which was not in registrable form, could not give Ndigejjerawa a better claim to land than Kubulwamwana. It might have been different if Ndigejjerawa’s document were in a registrable form
Registered person protects the purchaser not affected by notice actual or constructive of any trust or legal interest, any rule of law or equity contrary not withstanding[6]
In unregistered land, currently in Uganda, no one can transfer an estate or interest unless it is registered as acquired by the R.T.A by the registrar. No instrument is effectual until registered. No instrument until registered in the manner herein provided shall be effectual to pass any estate or interest in any land or to render the land liable to any mortgage; but upon registration the estate or interest comprised in the instrument shall pass[7] In the case of Ndigejjerawa v Kizito and Kubulwamwana[8] Ainley j judgment: “… No instrument or document can be registered unless it fulfills the requirements and no instrument is effectual to transfer any interest in land unless it has been registered…” reference[9] held: 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.
Registered land can be disposed off by the owner under any proof that he holds the legal title, section 92 (2) which provides that after registration of land, transfer of the estate and interest of the proprietor can be disposed under any power. In the case of Lumu v Lindo Musoke[10] the plaintiff was the registered proprietor of the subject land and entered a contract to sell the land to the defendant, the plaintiff duly executed the necessary document for transfer of the land but a caveat was lodged by a third party, Held: that the agreement did not transfer any interest in the disputed land to the defendant but it gave him contractual right to claim for damages for specific performance if the plaintiff refused to execute in his interest the statutory transfer because of equitable interest.
In absence of default and fraud a registered proprietor are protected against action of ejectment that may be sustained on them by the law[11]as compared to the unregistered land, therefore since one has a title it is a conclusive evidence of ownership& ejection will be in violation of Article 26(1) which is a protection from deprivation of property. In the case of Lwanga v Registrar of title court held: Salongo was a bona fide purchaser for value thus under our current section 176 of R.T.A his title could not be cancelled not withstanding that he acquired his title from a forger, Therefore the case potrays the applicability of principle of indefeasibility in the way that a certificate is conclusive evidence of the title.
[1] For example, a trustee could be instructed to use the proceeds of land for the welfare of the grantor’s young children after the grantor’s death. Such arrangement had further advantage of avoidance of feudal dues on inheritance. See cheshire & burn’s modern law of real property, supra, pp.38-42
[2] Effectively the trustee was a manager whilst young children enjoyed the benefits
[3] Section 9(1), R.T.A
[4] Certificates of customary ownership of land are ‘recorded’ under section 69 the land Act , 1998, chap 2
[5] (1952-6) 7 ULR 31
[6] Section 136 of the Registration of title Act (R.T.A)
[7] Section 54 of the R.T.A
[8] (1952-6) 7 ULR 31
[9] Section 54 of the R.T.A
[10] [1974]HBC 19
[11] Section 176 of R.T.A
