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Brief Facts
Paul Ojambo bought a piece of land comprised in Kyadondo Block 244 Plot No.
17 at Muyenga from Walter Nsimbi in which he was registered as follows: Walter
Nsimbi as Executor of the will of the late Paul Nsimbi vide H.c Administration
Cause No. 910 of 2003.” In the will, he had been given the land by Paul Nsimbi,
his father. Walter signed the transfer forms but Paul was not yet registered as the
owner when Walter died. Now Walter’s sister Ruth Nsimbi has been registered
as the administrator of the estate of her father.

Issues

(i) Whether probate granted to Walter was capable in law to confer title to
land in issue
(ii) Whether Paul Ojambo could derive good title at law from a transaction
arising out of such grant of probate
(iii) Whether Paul Ojambo has any remedies against Ruth Nsimbi
(iv) What is the Procedure, forum and documents

Law applicable:
- R.T.A. Cap. 230
- Cpa Cap. 71
- CPR S.1 65-3 as ammended by S.I 26/98
- The evidence Act Cao. 6
- The Judicature Act Cap. 13
- Case Law

Resolution

1st Issue
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In the facts it is clear that Walter Nsimbi was properly registered as the proprietor
of the land in issue. Sect. 134 of RTA provides for procedure of succession on
death with regard to registered property. It provides that upon the receipt of an
office copy of the probate of any will, the registrar shall, on an application of the
executor to be registered as proprietor in respect of any land, enter in the
Register Book, a memorandum notifying the appointment of the executor or
administrator and the day of the death of the proprietor when the day can be
ascertained, and upon that entry being made that executor or administrator shall
become the transferee and be deemed to be the proprietor of such land, lease or
mortgage, or of such part of it as then remains unadministered, and shall hold it
subject to the equities upon which the deceased held it, but for the purpose of
any dealings therewith the executor or administrator shall be deemed to be the
absolute proprietor thereof.

The rights which accrue upon such a registration were discussed in the case of
Jonah Senteza Kanyerezi & 2 Ors Vs The Chief Registrar of Titles & Ors, High
Court Miscellaneous Cause No. 919 of 1997 where it was held that the section
aims at recognizing the right of the executor to hold property for purposes of
dealing with it.

The relationship between the Succession Act and the Registration of Titles Act
has been considered in the cases of Kawalya Kagwa V. Registrar of Titles HCCS
No. 627/74 (unreported) and Figueiredo V. Talbot (1962) E.A. 167. In Kawalya
Kagwa V. Registrar of Titles, Wambuzi C.J. said,
"As to the last question as to whether the Registrar of Titles can register any
transfers executed by the applicant as executrix, the answer must be in the
negative. I accept the very plausible arguments of Mr. Kateera, counsel for the
Applicant to the effect that provisions of the Succession Act already referred to
confer power upon an executor or administrator to dispose of all property of the
th
deceased person. However, the Succession Act was enacted on 5 February,
th
1906 and the Land Transfer and Registration of Titles Acts on 15 November
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st
1944 and 1 May 1924 respectively. The two latter Acts were later in time and
special acts dealing with special subjects of whereas the former Act is general.
Such provisions in the later Acts as are inconsistent with the provisions in the
earlier Act must curtail those provisions to the extent of the inconsistency. In
other words, whereas a non-African executor may be able to dispose of personal
and real property of the deceased person under the Succession Act, his ability so
to deal with real property is curtailed by the Land Transfer and the Registration of
th
Titles Act (See Crais on Statute Law 7 Edition page 374)."

In addition, section 92(1) RTA allows a proprietor of land to transfer it. In this
case, Walter Nsimbi was the executor and the title recognised him as such.
Therefore he could lawfully enter into valid transactions in respect to the
property.

Second Issue
This is a more contentious issue. Paul Ojambo could deal with Walter Nsimbi
within the limitations envisaged in section 143 of the RTA. Jonah Senteza
Kanyerezi & 2 Ors Vs The Chief Registrar of Titles & Ors, High Court
Miscellaneous Cause No. 919 of 1997 it was

Section 54 of the Registration of Titles Act (RTA) provides that no instrument can
pass any interest until it is registered in the manner therein provided for under the
RTA. In Ndigejjerawa v. Kizito & Anor. [1953]7 ULR 31, it was held that no
document or instrument however perfectly it fulfils the statutory provisions or
requirements is effectual to transfer any interest in land until it is registered. This
is the basis of registration of land that no interest can be claimed in land when
not registered.
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In the case of Katarikawe v. Katwiremu [1977]HCB 187 observed that before the
transfer of land, the buyer under a contract acquires only an equitable interest
and on land being transferred to him, he acquires an indefeasible registered
interest.
This, in the instant case, Davis Kamoga acquired an equitable interest in the land
when paid the first instalment on 21st May 1985.
Ismail Jaffer Alibhai & Ors v Wandaial Hajram Karia & Anor. S.C.C.A. 53/95

Order J.S.C. held that on completion of a contract of sell of immovable property,

property passes to the purchaser and the vendor holds it as trustee for the
purchaser.

The legal title remains with the vendor until transfer is effected. The equitable
title which passes to the purchaser is considered to be superior to the vendor’s
legal title, which is extinguished on payment of the purchase price by the
purchaser.

Sect. 270 Succession Act (old Law) further grants and executor powers to
dispose of the property of the deceased wholly or in part. As such Wanyama’s
acquisition of the land was valid.

* The deceased’s estate was fully distributed. Sect. 272 Succession Act that an
execution has power to dispose of the property of the deceased either wholly or
in part.

Full distribution of the estate would be evidence by an account of the distribution

under section 280 S.A i.e an executor within 6 months from the grant of probate
to exhibit in court an inventory containing a full and time estimate of all the
property in possession and within one year to exhibit an account of the estate to
which has case to his hands.
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* Bulasiyo Muwereza v. Christopher Mbusye [1977] HCB 183, Sekandi J. Held

that once land is allienated by gift, the beneficiary exercises all the rights of an
owner and the land can’t be taken away without any wrong doing on his part.
In the facts, Latina could transfer and sell the land as he had obtained under will.
 Lysaght v. Edwards (1875-76)2 Ch. D 499. Jessel M.R. that the moment you
have a valid contract for sale, the vendor becomes in equity a trustee for the
purchaser of the estate sold and the beneficial ownership passes to the
purchaser, the vendor having a right to the purchase money, a charge or lieu
on the estate for the security of that purchase money and a right to retain
possession of the estate until purchase money is paid.

- Jessel Mr. Defined a valid contract to mean a contract sufficient in form and
substance when there is no grand whatever for setting it aside as btn the
vendor and purchaser; binding on both parties.

He argued that S.3 of the Registration of Titles Act makes it a special Act in
respect of all land transactions affecting registered land so that it prevails over all
other law. He cited the decisions in Souza Figueiredo V. Talbot (1962) E.A. 167
and Kawalya Kagwa V. Registrar of Titles HCCS No. 627774

In Souza Figuetredo & Co. Ltd V. Moorings Hotel Ltd (1960) E.A. 926, it was held
that no equity could co-exist with the provisions of Sections 3 and 51 of the
Registration of Titles Act if it was inconsistent with these Sections. Sir Kenneth
O'Connor P. said at page 939,
"Of course an equity can co-exist with the provisions of S.3 and S.51 of the
Ordinance so long as the equity is not inconsistent with these Sections."
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Paul Wanyama obtained good title, equitable in nature, which according to sect.
92(2) RTA upon registration shall pass to Paul Wanyama.
3rd Issue
There can be remedies against Ruth

Costa Bwambale & Joseph Matte vs Yosafati Matte & Others, Court of Appeal,
Civil Appeal No. 58 of 2002

It was held in order to succeed in cases of recovery of land, one has to bring him
or herself within the ambit of section 176 of the Registration of Titles Act. The
section provides as follows:-
“No action of ejectment or other action for the recovery of any land shall lie or be
sustained against the person registered as proprietor under this Act, except in
any of the following cases-

(c) the case of a person deprived of any land by fraud as against the person
registered as proprietor of that land though fraud or as against a person
deriving otherwise than as a transferee bona fide for value from or through a
person so registered through fraud;

The provision of this section, have been judicially held in numerous authorities to
operate as a bar against ejectment of a registered proprietor unless the case falls
under any of the above cases. The above section has to be read together with
section 59 of the same Act. The section states as follows:-
“No certificate of title issued upon an application to bring land under this Act shall
be impeached or defeasible by reason or on account of any infirmity or
irregularity in the application or in the proceedings previous to the registration of
the certificate and every certificate of title issued under this Act shall be received
in all courts as evidence of the particulars set forth in the certificate and of the
entry of the certificate in the Register Book and shall be conclusive evidence that
the person named as proprietor of or having any estate or interest in or power to
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appoint or dispose of the land described in the certificate is seized or possessed

of that estate or interest or has that power”.

Further more the provision of section 178 of the RTA also has provision for
payment of compensation to a person who is deprived of land as a consequence
of fraud or through the bringing of the land under the operation of the Act. The
section provides as follows:-
“Any person deprived of land or of any estate or interest in land in consequence
of fraud or through the bringing of the land under the operation of this Act or by
registration of any other person as proprietor of the land, estate or interest or in
consequence of any error or misdescription in any registered certificate of title or
in any entry or memorial in the Register Book may bring and prosecute an action
for the recovery of damages against a person upon whose application the land
was brought under the operation of this Act, or the erroneous registration was
made, or who acquired title to the estate or interest through fraud, error or
misdescription; but-

(a) except in the case of fraud or of error occasioned by any omission,

misrepresentation or misdescription in the application of the person
to bring such land under the operation of this Act or to be registered
as proprietor of the land, estate or interest or in any instrument
signed by him or her, that person shall upon a transfer of the land

(b) bona fide for value cease to be liable for payment of damage which
but for the transfer might have been recovered from him or her
under the provisions herein contained; and in the last mentioned
case, and also in case the person against whom the action for
damages is directed to be brought as aforesaid is dead or has been
adjudged bankrupt or cannot be found within the jurisdiction of the
High Court, then and any such damages with costs of action may
be recovered from the Government; and
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(c) (b) in estimating the damages the value of all buildings and other
improvements erected or made subsequently to the deprivation
shall be excluded”. (emphasis added).

The above provisions are clear in that a person who is deprived of land as a
result of bringing it under the operation of the Act as happened in the matter now
before us the person who is affected is entitled to compensation. It seems to me
that on a proper reading of the provisions of this section that fraud is not
available as a ground to a person who is deprived of land that is brought under
the operation of the RTA. It seems such a person by merely occupying the land
could not be said to have an interest in land, which the law recognises or which
was capable of being registered as a charge in the Register Book. The situation
of course seems to have been changed by Article 237 of the Constitution and the
Land Act.

To order for cancellation, it had to be proved that the second appellant had
knowledge actual or constructive about the interests of any of the respondents
and ignored it

P.T.C. v. KITUMBA & LUTAAYA SCCA 36/95 If a person purchases an estate

which he knows to be in the occupation of another then the vendor, he is bound
by all the equities which the parties in such occupation may have in the land.
The capacity in which Latina acted to sell the property.
The general principle therefore is that on death of the personal ref: a grant of
letters of administration, terminates, according to A.R Mellows “The law of
Succession 3rd Ed. Butterworths, London 1977 at 376. That “upon the death of
administration, the letters of admin. lapse or terminate and all the rights he had
as an administrator came to an end.”
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- P.V. Baker “Megarry & manual on the law of Real Property 4th Ed. Steven and
Sons Ltd last surviving administrator does without completing the
administrative of the estate, the application must be made for a grant of
administration “debouis non administratis” which is a grant in respect of the
goods left unadministered.

- In A.R. mellows (Supra) at Pg. 340-2 says that a grant of debouis administratis
is made where:
a) A previous grant of letters of admin. has been made to the deceased’s
estate
b) The sole or last surviving administrator has died, leaving no remaining
personal representative.
c) Without completing the admin. of the estate or part of the estate.

- S. 201 S.A that admin is granted to the person entitled to the greatest portion
of the estate under s.28 S.A – The customary heir 1%
- Wives 15%
- Dependant relatives 9%
- Lineal Descendants 75% of whole ppty.

A.R. mellows (supra) also set out the order of priority to grant of admin.
1. Surviving space
2. Children of the deceased
3. Father and mother of the deceased
4. Bros. & Sist. Of the whole and half blood
5. Grand parents
6. Uncles and Aunts
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Walsh v. Lansdale (1882)2 Ch D.9

It was held that a registered proprietor sells land and fails to legally transfer title
to the new purchasers, the buyer aquires only equitable interests, legal interests
remain with the vendor.

Sect. 64(1) RTA that fraud vitiates a registered title, even though ideally the
estate of the registered proprietor is paramount.

In the facts, the transfer b’tn Paul Wanyama and Latina had not yet been
registered, and Ruth had knowledge of the existence of this transfer from the
information given to her by the tenant on the land.

Matovu & 2 Ors v. Ssevir & Anor. [1979] HCB 174 it was held that a person
procures registration to defeat an unregistered interest of which he is proved to
have knowledge; then such person is guilty of fraud.

Hunt v. Luck [1902]1 Ch 28 William L.J. the purchaser had actual knowledge that
the rents from property were being paid to a 3rd party by a tenant, in the
circumstances that would clearly show that the 3rd party had a right to the
property. The purchaser was deemed to have constructive notice to the rights of
the 3rd party.

John Katalikawe v. Katwiremes [1977] HCB 187 that fraud though not defined in
the RTA coves dishonest dealing in land as depriving a purchaser for value in
occupation of the land of his unregistered interest.

Ruth Mpagi’s actions were to deprive Paul Wanyama who bought the land from
Latina having his tenant in occupation of the land, b’se Paul Wanyama had not
yet registered his interest.
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In the facts, though Ruth’s name is registered, her interest if any is vitiated by
fraud (if proved).

*
- Sect. 176(C) R.T.A protects the registered proprietor of land against any
actions of ejectment except in cases of fraud.
- Sect. 77 RTA Any Certificate of title in the Register book procured or made by
fraud shall be void as against all parties or privies to such fraud.

In Zebiya Ndagire v. Leo Kasujja [1974] HCB 153 Allen J.

That the land transfer form or certificate contained a forgery of the signature of
the plaintiff as vendor and the transfer of the land to the defendant was obtained
by fraud. Consequently the purported transfer and any relevant entry in the
Register book was void against the Defendant.
- Sect. 64(1) RTA that estate of the registered proprietor is paramount save in
cases of fraud.

* In Katarikawe v. Katwireme [1977] HCB 187

Sekandi J. That fraud though not defined in RTA coves dishonest dealings in
land as depriving a purchaser for value in occupation of the land of his
unregistered interest.

* In Hannington Njuki v. Musisi Nyanzi H.C.C.S. No. 434/96 Ssebutinde J.

defined fraud as actual fraud, or some act of dishonestly, not what is called
constructive fraud. An unfortunate expression opt to mislead but often use for
want of a better term to denote transaction having consequences in equity similar
to those which flow from fraud.

In David Ssejaaka v. Rebecca Musoke C.A No. 12/98 that fraud must be
attributable either directly or by necessary implication to the transferee e.g the
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transferee must be guilty of some fraudulent act by somebody else or by yourself

and taken advantage of it.

* Edward Musisi v. Grindlays Bank (U) Ltd. HCB 39. Masika C.J.
A person who becomes a registered proprietor through fraudulently act by
himself or to which he is a party or with full knowledge of the fraud so as to not to
be a bonafide purchaser of value “is the person registered as a proprietor of such
land through fraud” within the meaning of section 185 (17((b) of RTA.

* Robert Lusweswe v. Kasule & Anor. H.C.C.S No. 1010/83 Odoki J.

“Therefore while the cardinal rule of regn. Of titles under the Act is that the
Register is everything, the court can go behind the fact of registration in cases of
actual fraud on the part of the transferee.”

Katalikawe v. Katwiremu [1977] HCB 187

That before the transfer of land, a buyer under a contract acquires only an
equitable interest in the land. A contract for sale of land is not perfected until an
effective transfer of title has been made.

Remedies

* Compensation
Sect. 178 R.T.A. that compensation can be paid to a person who has been
deprived of land as a result of fraud.

* Concellation of title
Sect. 177 RTA that the High Court may order the Registrar to cancel any
certificate of title or instrument or any entry upon recovery of land.
* Damages from Registrar (Gov’t)
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Sect. 185(1) RTA that the person who was not a party or privy to any fraud ie
registration of the title may seek damages from the gov’t for the acts of the
Registrar of Titles – bring an action against the gov’t
* for recovery of damages.
- Compensation from registrar
Sect. 186 (1) RTA
That the person who has sustained loss or damage may claim compensation
from the Registrar before instituting proceedings against the gov’t.

FORUM:
- Sect. 189 RTA – High Court

Documents:
Notice of intention to sue
Plaint
Summary of evidence

SUMMARY OF DEFENCE

The first defendant shall lead evidence to show that the Chief
Administrative Officer’s award to the plaint was based on the wrong legal
premises and therefore that the plaintiff is not entitled to any payment therefrom
as against the first defendant.
LIST OF WITNESSES
1. First defendant’s Wayleaves Officer
2. The Board Secretary of first defendant
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LIST OF AUTHORITIES
1. The Electricity Act Cap 135
2. The Law Reform (Miscellaneous Provisions) Act
3. The Civil Procedure Rules
LIST OF DOCUMENTS
1. Consent
2. Valuation Report
3. Survey Report

DATED at Kampala this day of 2001.

----------------------------------------------------
COUNSEL FOR FIRST DEFENDANT

LODGED in the High Court this day of 2001.

------------------------------------
REGISTRAR

Drawn & Filed by:

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KAMPALA.