SCHOOL OF LAW
NAME: BUSINGE PIUS
REGISTRATION NUMBER: 21/U/23315
STUDENT NUMBER: 2100723315
COURSE UNIT: LAND TRANSACTIONS
DATE: 19TH APRIL 2023
QUESTION.
“The Torrens system of land registration was promoted on number rationales including its
ability to guarantee assurance of title and close out sophisticated frauds. Evidence of
application of Uganda’s Registration of Titles Act Cap. 230 (as amended), as exemplified in
decided cases and scholarly commentaries shows that the system has not fully achieved its
intended objectives. A number of efforts including promotion of ICTs in land registration
have been used to fight fraud in land dealings with limited positive results.” (Per Michael
Makumbi, LL. B II student).
In light of the above statement and with reference to the applicable law and decided cases,
make a critical discussion of fraud affecting certificates of titles and transactions in registered
land in Uganda and the efficacy of the efforts put in place to eradicate it.
Introduction
Torrens system as 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,
therefore a title which is registered is an essential feature in land transactions 1.
In Uganda, land registration is governed under the Torrens system which recognizes
ownership by Title. This system was developed by Sir Robert Richard Torrens in Australia
and it entails entry into the registry that gives landownership legal validity, guaranteed by the
State and therefore, all entries into the register are prima facie evidence of the actual status of
the land2
Torrens believed that a land register should show the actual state of ownership, rather than
just provide evidence of ownership.3 Uganda, being a British protectorate adopted the
Torrens system of land registration under the colonial legislation: Registration of Titles
Ordinance in 1922. The Registration of Titles Act is a codification of principles of the
Torrens system in Uganda. Section 59 of the same provides that the Certificate of title is
conclusive evidence of title.
Land registration, is a key element in the protection of one’s right to property; as it offers a
guarantee of security of title. Correlating registration of land records and security of title,
there is general assertion that land registration acts as a guarantee for secure land ownership;
thus policies and efforts by States are towards the furtherance of the same and such
registration offers a degree of security which emanates from the protection that comes with
formal documentation and subjection to the Central Authority of the State.
Digitalization of Land Registration in Uganda.
In 2013, Uganda embarked on the adoption of a digital system to register and record land
related information, with a primary aim, among others, to eradicate fraud in the Lands
sector4. This was done with support from a French mapping company called IGN-France
International, which developed a digital system through the incorporation of manual data
records into the digitized Land Information System, to increase transparency and minimize
the occurrence of fraud in land transactions.
This digitalization was and continues to be done through an automated Land Information
System. This system is made up of land records, human and technical resources, and
appropriate procedures and techniques to collect, analyse, maintain, disseminate, and use this
information of land records. It entails the conversion of hard copy information of status of
land into digital formats. It is aimed at the improvement of land administration, to increase
1
Black’s Law Dictionary
2
Raymond Abdulai, Edward Ochieng, “Land registration and land ownership security: An examination of the
underpinning principles of registration”, Property Management, 35, 1 (2017): 11.
3
As per University of Washington School of law professor Tim Hanstad
4
Christina Okello, “Uganda rolls out digital land registry to eradicate fraud,” RFI Africa, 01st March 2020.
https://amp.rfi.fr/en/international/20200227-uganda-rolls-out-digital-land-registry-eradicate-fraud-fake-
titles
the degree of certainty of land ownership and its security against fraudulent activity. Land
constitutes an asset of utmost importance, especially in Uganda which is a predominantly
agricultural country, but is frequently marred by lack of security through subjection to
fraudulent activity. Digitalization comes into play as an effective tool in remedying such
challenges.
Features of the Torren System in Uganda.
According to Mugambwa, the Torrens system has two features that distinguish it from other
systems of conveyance; title by registration and indefeasibility of title.
Under title by registration, interests in land are created or transferred not by execution of
documents as under common law, but by the manner stipulated in the Registration of Titles
Act (RTA)5.
Section 54 of the RTA indeed stipulates that no instrument until registered in the manner
provided in the Act shall be effectual to pass any estate or interest in land. Registration by
Title under the Registration of Titles Act (RTA) revolves around a centralized Register book,
which embodies certificates of title kept in a running form each representing a separate parcel
of land described therein and represented in the Act.6
The second principle is indefeasibility of title, which means once a person is registered as
proprietor of an estate or interest in land, the government guarantees that their title cannot be
divested or attacked by rival claims to the land, except as prescribed in the RTA. This
principle was designed to achieve two objectives; to protect title of a registered proprietor
from unregistered interests and to save persons dealing with registered land from the trouble
and expense of going behind the register book to investigate the validity of title or possible
rival claims to the land, thus simplifies the process of transfer.7
Land registration in Uganda to a large extent is done manually under the different tenure
systems. Mailo land is registered in the mailo register which uses a system of block and plot
numbers as the land unit identifier. Freehold and leasehold are registered under a different
system which uses the volume and folio numbers as units of identification. Certificates of
customary ownership are kept at the district by the District Land Board. All these processes,
however, rely solely on a manual system. A report by Ahene indicated that 60 percent of the
information in Uganda’s land registry had never been updated, and the current status of the
land registry has affected the quality of service delivery since it has failed to offer adequate
information on matters of physical planning, ownership, valuation among others and are also
prone to loss of critical data, making the process of registration cumbersome.8
5
John T. Mugambwa, Principles of Land Law in Uganda, (Kampala: Fountain Publishers, 2002), 70-71.
6
Ibid., 69.
7
Ibid., 72.
8
27 Ahene R, “Measures to Improve Access to Land Resources and Related Benefits in Uganda,” FIG-World
Bank Conference, Washington DC, 2009 https://www.oicrf.org/-/measures-to-improve-equal-access-to-
land-resources- and-related-benefits-in-ugan-1
In Uganda, the process of ensuring tenure security through registration has suffered various
constraints and various persons still live in a state of tenure insecurity. This is evidenced
through cumbersome and complex registration processes and the various inefficiencies that
arise from manual means of registration. It has been because of this phenomenon that there
has been a concerted effort to digitalize the process of land registration in Uganda.
Fraud
Fraud was defined on the Black’s law dictionary as a knowing misrepresentation of the truth
or concealment of a material fact to induce another to act to his or her detriment. 9
The Registration of Titles Act of Uganda doesn’t define specifically fraud, but in the case of
Fredrick Zabwe v Orient Bank and others10, it was defined as a false representation of a
matter of fact whether by words or conduct, by false or misleading allegations or
concealment of that
In Kampala Bottlers Limited v Damanico (U) Limited and other11, Wambuzi explained that
Fraud attributable to the transferee is either actual, implied or constructive. Fraud must be
attributable either directly or by necessary implication, that is the transferee must be guilty of
some fraudulent act or must have known of such act by somebody else and taken advantage
of it.
An analysis of fraud and the Torrens system in Uganda has argued that fraudulent practices in
land transactions involve both registered and unregistered land interests. However,
registration of title offers greater security of tenure12 therefore whereas Uganda’s corpus juris
recognises the principle of indefeasibility of title, fraud is an exception to this rule. In
Lusweswe V Kasule and Coulbally13 the defendants’ title was cancelled on the ground that
they had obtained it fraudulently while the plaintiff was in prison.
Land registration has been defined as a system whereby ownership and land related rights are
recorded by a government entity. The records provide evidence of title, facilitate transactions
and prevent fraud. Land Information Systems (LIS) were defined as systems made of land
records; human and technical resources; and appropriate procedures and techniques to collect,
analyze, maintain, disseminate, and use this information. Such are collected through sporadic
or systematic land registration, where the choice is dictated by the purpose of the data,
available technology and funding channels. Therefore, even in the era of digitalisation, the
nature of technology used by a State is dependent on such factors that guide the choice made
in regards to their policy implementation.
In Uganda, the computerized Land Information System (LIS) was developed and funded by
IGN- France International. They offer great benefits to not only land users but also the
9
Black’s Law dictionary, 8th edition.
10
SCCA No. 4 of 2006
11
CA No. 22 of 1992.
12
Simon L, The Torrens System in Uganda: How it Facilitates or Militates against Fraud in Land Transactions,
SSRN, 12th May 2021 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3842450
13
CS No. 1010/83
governments that incorporate system of registration of land records. Land information
systems guarantee security of tenure, support land and property valuation for taxation
purposes, facilitate the development and monitoring of land markets, promote reformation of
rural land and reduce land related disputes. Computerization of these systems standardizes
collection and processing of land information, speeds up the process of registration of title,
decreases the cost and space for storing land records and facilitates access to and distribution
of land related data. The Land Information system was developed to remedy the challenges
faced by the manual system by promoting more efficient service delivery in the different land
Registries, support the different land administration institutions in land governance and
administration, provide checks into the work done by land officers to limit fraud perpetrated
by them and also fraud perpetrated by outsiders who managed to use the weaknesses in
accessibility of the manual system to their advantage. However, the system is not one
completely free from challenges since some issues that reflect in the manual system still
persist in the digital system. Certain processes are still lengthy, the digital records were
translated from the manual records that were already marred with wrong information and
fraud continues to be perpetrated in new forms.
Digitalization and its effect on Fraudulent land Registrations
Digitalization of land registries in different countries has been made possible through the
development of Land Information Systems. A Land Information System (LIS) according to
UNECE14 refers to a tool for legal, administrative and economic decision making which
consists of a database containing spatially referenced land related data for a defined area on
one hand, and procedures and techniques for systematic collection, processing and
distribution of data on the other hand.
Anthony Kakooza elaborated on two instances in which fraud occurs. The first is where a
person acquires an interest in land by means of their own fraud. It is easy to obtain justice
here, since such a person cannot acquire good title by means of their own fraud, “Land Law
Reform in Uganda: Exploring the Loose ends,” 15
In John Katarikawe v Katwiremu and others16, the plaintiff bought land from the first
defendant and later discovered that it had been transferred to the second defendant after his
sale agreement was concluded. The issue was whether the transfer to the second defendant
was fraudulent and the Court held that if a person procures registration to defeat an existing
unregistered interest on the part of another person of which he is proved to have knowledge,
such person is guilty of fraud.
In the second instance, an innocent person acquires an interest in land by means of fraud of a
third party. Courts have dealt with this matter and in the case of Fredrick Zaabwe v Orient
14
United Nations Economic Commission for Europe
15
Uganda Christian University Law Society Workshop, 18th January 2008, 5.
https://www.studocu.com/row/document/uganda-christian- university/bachelor-of-law/kakooza-land-law-
reform-in-uganda-2008/23447288
16
(1977) HCB 187
Bank and others17 where the defendant proceeded to sell the applicant’s property subject to a
mortgage to the buyer, yet there was a caveat lodged on the property by the Applicant at the
time of the sale.
The Court relied on the holding in David Sejjaka Nalima v Rebecca Musoke18, that the
principle that a bonafide purchaser for value cannot have their transfer defeated by fraud only
applies where the purchaser was not a party to the fraud or had no knowledge of the fraud at
the time of purchase.
Section 7719 of the states that any certificate of title, entry or cancellation in the Register book
procured fraudulently is void against the parties to the fraud. However, cancellation of
certificate of title is only upon strict proof of fraud, and the burden of proof lies on the person
alleging fraud. Section 10120 provides that whoever desires a court to give judgment as to any
legal right or liability dependent on the facts they assert must prove the existence of those
facts.
In Kampala Bottlers Limited v Damanico (U) Limited21 where the Appellant brought an
action for trespass against the Respondent, who claimed that it had been granted a five-year
lease on the property. The Appellant however argued that the title was obtained fraudulently.
It was held that fraud must be attributable either directly or by necessary implication, that the
transferee must be guilty of some fraudulent act or must have known of such act by
somebody else and taken advantage of it.
Fraud is either perpetrated or prevented by the manual and digital mode of registration of
land records respectively. In this essay, I will focus more on the digital mode of registration
with brief references to the manual mode.
1. There won’t be need for a special certificate of title
Section 70 of the RTA gives anyone who has custody of a title and knows the circumstances
surrounding its loss or destruction or becoming obliterated a right to apply for a special
certificate of title.
This section has been misused by fraudsters to obtain special certificates of title over other
people’s properties which they transfer to their names and then sell to third parties as we can
see in cases such as Ndyabahika V Agaba and Anor22.
Digitalization of the land registry removes need for a special certificate of title because the
presence of a digital copy which can be retrieved any moment means that the circumstances
of the loss of the duplicate of title as enumerated under Section 70 will be eliminated. This
will thus cure fraud that has been facilitated by this provision.
17
SCCA No.4 of 2006
18
[1986] UGSC 12
19
Registration of Titles Act
20
Uganda Evidence Act
21
[1993] UGSC 1
22
HCCS No. 49 of 2017
2. It will eradicate double titling of land
There is fraud usually committed within the land registry during the process of issuing
duplicate certificates of title. This occurs when the land registries act on forged documents
submitted by the clients to erroneously issue more than one title on the same piece of land.
This kind of fraud is usually hard to detect.
This indeed was the occasion in the case of St. Mark Educational Centre limited vs
Makerere University where two certificates of title were issued on the same piece of land.
The Court of appeal noted that the fraud committed was not the type a purchaser or even his
advocate could discover during an ordinary search at the registry.
Therefore, digitalization of the land registry will eradicate fraud which is as a result of double
titling because with the new system, it is always easy to ascertain the existence of another
title on the land and thus not issue another title on the same land.
3. It could cure Forging of land titles.
It has been claimed that corrupt land officials sometimes conspire with fraudsters to issue
forged titles which look authentic and at times even have the seal of the land office. Innocent
purchasers are then defrauded by the help of these forged titles.
Therefore, digitalization of the land registry will cure forgery of land titles and thus eliminate
fraud. Specifically, the new system puts in places measures to guard against forged titles. For
example, there is a barcode which when scanned reveals information about the land. Further,
the land title is linked to the NIN23 of the registered proprietor. All these are informative in
accessing the authenticity of the title.
4. Illegal removal of caveats
Sections 140 and 202 of the Registration of Titles Act empower the registrar to remove a
caveat by issuing to the Caveator a notice to show cause why the caveat should not be
removed. Usually, this notice is sent to the Caveator by post. However, in most cases, the
notices are never posted. Moreover, majority of Ugandans do not own postal addresses and
use fictitious postal addresses or postal addresses that do not actually belong to them.
This situation has been exploited by fraudsters because as long as there is a receipt from post
office, it amounts to sufficient evidence to entitle the registrar to remove the caveat on expiry
of the 60 days notwithstanding the fact that in reality the caveator may not have received the
notice thus extinguishing their interest without their knowledge. This was indeed the
situation in the Supreme Court case of Saul Kisiribombo Rumanda Vs Emmy Tumwine
where it was found that the Respondent’s caveat had been irregularly removed by the
Appellant in connivance with officials in the Ministry of land.
Digitalization will eliminate this fraud because the system is linked to the emails and
telephone numbers of people thus in case of a notice to show cause why a caveat should not
23
National Identification Number
be removed, the interested party will easily be notified through those instantaneous
communications thus closing the gap that has been exploited by fraudsters.
Whereas Digitization will greatly minimize the instances of fraud as discussed hereinabove,
fraud shall continue to thrive. There are instances of fraud which necessitate additional steps
to be taken in order to eliminate fraud as seen below.
a) Administrators transferring land without the consent of the beneficiaries
At times, administrators of estates transfer land that belongs to an estate of a deceased to
themselves in their personal capacity or to third parties without the consent of all the
beneficiaries or even without the involvement of all the administrators. This fraud is
exacerbated by the fact that it is almost impossible to ascertain all the beneficiaries of an
estate and the duty to ascertain these thus lies on the prospective purchaser. Fraudsters thus
exploit the uncertainty in such situations to commit fraud. This for example was seen in the
case of Silver Byaruhanga Vs Fr. Emmanuel & Anor, where one of the administrators
where there were joint administrators dubiously got himself registered as the proprietor of
land which he subsequently sold to a third party.
b) Concealment of the true consideration for the transaction.
In the case of Betty Kizito David Kizito & ors , the supreme court held that understating the
value of the land so as to evade taxes is a form of fraud.
Digitalization of the land registry has no effect on this form of fraud and thus in absence of
specific measures to address it, it will continue to thrive.
c) Forging powers of attorney with intention to defraud.
The proprietor of land is empowered under Section 14624 to create power of Attorney.
However, at times, these powers are either misused or actually forged.
For example, in Konda Mathias Zimula vs Byarugaba Moses & Anor, the defendant had
taken the plaintiff’s duplicate certificate of title, used forged powers of attorney purported to
have been signed by the plaintiff to transfer the suit property into her names and later on into
the names of the first defendant.
Digitalizing the land registry will not eliminate this type of fraud because it is committed
before approaching the land registry.
The Digitalization has inherent flaws that maybe exploited by fraudsters.
According to David Luyombya in a paper titled ‘The state of digitization of the land registry
operations in Uganda’, people have reported that during digitalization, the block numbers of
land were mixed up, instruments were scattered and fixed on wrong digitized files and the
files were misplaced. This implies that the conversion process was handled haphazardly.
Further, that people still experience delayed feedback while some complained about the
24
Registration of Titles Act
difficulty in understanding the language used with the digitized system. Lastly, that some
people reported that they had to travel long distances to get to the land registry when they
wanted to check any land-related information, which implies that the digitized system did not
provide the capability for data-sharing over a wide area network (WAN).
All the above vulnerabilities and challenges in the digitalized system can potentially be used
by fraudsters for fraudulent purposes. Thus, a lot remains to be done to improve the system to
ensure that digitalization does not maintain or create new forms of fraud.
Conclusion
In conclusion, the digitalization of the land registry is an important intervention to fight fraud
in land transaction because it will improve land security and make land transactions quick
and transparent. However, digitalization will not completely eliminate fraud because some
forms of fraud occur outside the land registry. Thus, additional measures and steps have to be
taken to compliment the digital process if fraud is to be eliminated.
Recommendations
The government should adopt some of the following measures to compliment digitalization in
order to effectively confront fraud.
1. To curb forging or misuse of powers of attorney to commit fraud, it should be a legal
requirement has the donor of the powers of attorney appear at the respective registry
for identification and to confirm the sale before effecting the transfer of property.
2. The ministry should adopt the use of blockchain technology which has been argued to
be the most reliable and secure for land registration and management. Blockchain has
the potential to greatly reduce property fraud because its nature does not allow
alteration of records once entered and it requires collusion from all network users.
Further, Blockchain offers a unique code for each property and this code is linked to a
smart key which is only held by the owner.
3. Last but not least, it should be made a requirement that before an administrator can
transfer land into his names, he or she should authority from the administrator
general. This will eliminate fraudulent transfer of title by trustees into their names.
