Kanyeihamba’s article on fake land titles in circulation had distortions

Dec 20, 2010

IN a November 3 article, titled <i>There are more fake land titles than real ones</i>, Justice George Kanyeihamba highlighted the existence of fake land titles in circulation. While we agree with him, we find it an exaggeration and alarmist to say, without statistics, that there are more forged land

Bruce Kyerere

IN a November 3 article, titled There are more fake land titles than real ones, Justice George Kanyeihamba highlighted the existence of fake land titles in circulation. While we agree with him, we find it an exaggeration and alarmist to say, without statistics, that there are more forged land titles in circulation than real ones.

We acknowledge having even one forged title in the system is unacceptable. It is not my intention to defend the credibility (or lack of it) of an inept land administration and registration system that gives rise to this unfortunate situation. Besides, in a November 9 New Vision publication, the permanent secretary of the lands ministry explained the challenges his staff face, though he did not acknowledge the involvement of some of them in the vice but, instead, tried to exonerate them.

As Uganda Law Society, we have previously expressed similar concerns and pointed out many other complaints we have received from the public. Many of our members (advocates) representing genuine and honest clients have regularly experienced the sad state of affairs in the administration and management of our land registration processes and many have either lost money, land or time to the scam.

As such, Kanyeihamba’s concerns cannot be overstated; we share the same frustrations and appreciate his efforts to speak out against the vice.

In the same article, Kanyeihamba asserts that those involved in the scam, mainly sitting at the lands ministry and working with land thieves as “bona fide purchasers for value without notice”, are being assisted by both unsuspecting and knowledgeable lawyers. He castigates those lawyers who continue to represent clients even in the transactions in which they discover the existence of forged titles.

In essence, the article implies that the situation has been exacerbated by the connivance of lawyers. Yes, this may be true as there are a number of errant lawyers who have given the legal profession a bad name by acting fraudulently or improperly in the course of their duties. Such lawyers would indeed be presumed accomplices in the act and subjected to disciplinary action for their acts and for tarnishing the image of the entire profession.
Advocates are governed by the Advocates Act and regulations which prohibit deceit or misleading of a client and fraudulent or improper acts in the discharge of one’s professional duty.
We, thus, urge the public to report incidences of professional misconduct by advocates and any other member of the public to the Law Council, the ethics and integrity committee of Uganda Law Society and to the Police.

The public should, however, appreciate that there are many good, honest lawyers who serve their clients with integrity and these should not be lumped together with the errant ones, nor should the whole legal profession and the Law Society be portrayed in bad light because of this latter category.

This is where we take issue with some of the statements in Kanyeihamba’s article. He seems to insinuate that the Law Society condones and/or is complacent to the malpractice of some lawyers involved in shoddy land deals. We are particularly irked by the claims that he wrote to the Uganda Law Society alerting them that some of their members might be implicated in shoddy land deals and that, instead, “He alerted the suspected culprits to negotiate with me and as I write I have not heard from them...”

It is not correct for him to say he has “not heard from them” if this means us as the leadership of the Law Society. I have been to his office more than twice where we discussed this and other matters of mutual interest; first, before he wrote the letter in question, when he verbally raised the issues of fraudulent land transactions at the office of titles and he promised to forward me a list of cases that had come to his knowledge. He did send the letter containing what he called “a sample of disturbing cases involving members of the legal fraternity”.

However, except for two cases which were personal to him and involved some lawyers he had misunderstandings with, I discovered that many of the incidences he alluded to as questionable transactions, were general allegations or mere suspicions, in which he did not provide evidence or details of wrongdoing.

Nonetheless, rather than write back dismissing its contents, we again met in his office where I briefed him on what actions the Law Society had taken in similar circumstances.

Regarding the other two cases in which Kanyeihamba had a personal interest because of the misunderstandings he had with the lawyers involved, I advised him to first talk to them in order to settle their differences, failure of which I offered to mediate. He gave me a go-ahead to call the concerned advocates for a meeting with him which I did in good faith.

If this is what he terms as “alerting the suspected culprits to negotiate with him”, then one wonders where this leaves mediation as a means of conflict resolution.

Kanyeihamba seems to have totally misunderstood the intent of this initiative and, like in many other instances of this nature, the more reason some well meaning people may become reluctant to entertain, later on be involved in the settlement of such matters.
On the actions taken on the rest of the complaints we have received, I informed him (as I now do to the public) that in such a previous meeting which we had with the state minister, the commissioners of land administration, valuation and registration, and on our side attended by many other stakeholders, including bankers, advocates and association of land agents, we had already brought to the attention of the minister and his team all the misgivings of the public (including those similar to the ones highlighted by Kanyeihamba) such as the rampant forgeries, unlawful duplication and/or cancellation of genuine land titles, disappearance of records within the lands office as well as poor work ethics of the staff at the land registries.

In that meeting, we pointed out to the lands officials how the situation had been exacerbated by the prevalence of unauthorised land dealers, the so-called brokers, old registry staff who are retrenched or dismissed and other people not recognised under the law to perform the functions of land conveyancing, quack lawyers and quack surveyors all of whom connive with unscrupulous land officials in the registries to cause this mayhem.

If nothing has been done, this is not because the Law Society has not taken any steps to bring these matters to the attention of those concerned.

I wish to assure the public that as Uganda Law Society, we have engaged (even at the risk of being arrested as at one time, during Jonathan Tibisasa’s reign as commissioner land registration) and continue to engage with the authorities, in an effort to purge the evils at the land office.

The law on sales and purchases of land and the principle of bona fide purchaser

In his article, Kanyeihamba castigated legal practitioners who cite relevant laws selectively to aid land forgeries or hide their malpractices.
As Law Society and on behalf of all honest legal practitioners, we condemn such acts. Much as lawyers are engaged in such transactions to represent, serve and safeguard the (honest) interests of their clients, advocates are expected to honestly and candidly advise their clients on the correct application of the law even if this is at the risk of displeasing one’s client. It is a fundamental principle of professional ethics and conduct that a lawyer must discharge all duties owed to clients and the public with integrity and when advising a client, a lawyer must never knowingly assist in or encourage dishonesty, fraud, crime or illegal conduct or instruct the client on how to compromise or violate the law.

So fundamental a value it is to the legal profession that under no circumstances does the Law Society condone acts of fraud and or improper conduct by any section of its membership, the advocates in legal practice. In deserving cases, lawyers accused of involvement in land frauds (and/or any other misconduct) have always been made to answer before the Law Council’s disciplinary tribunal and when found guilty, severely punished.

Finally, we wish to correct the wrong impression on some points of law as raised in the article regarding the applicability of the Sale of Goods Act in land matters and on the principle of bona fide purchaser.

While discussing the concept of bona fide purchaser for value without notice, which land fraudsters exploit, Kanyeihamba stated that “Sales and purchases of property, including land, are governed by two Acts of Parliament, namely, the Sale of Goods Act and the Registration of Titles Act (the RTA) …” (emphasis ours)” and that, “Section 88 (actually S.181 is the correct provision) of the RTA, only applies if Section 22 of the Sale of Goods Act and Section 77 of the RTA are fulfilled”.

We respectfully disagree with the writer on his postulation of the law and its effect on these two points as we are of the opinion that the underlined parts of his statement are erroneous. As a result, the rest of the arguments that follow are premised on a wrong approach.
Firstly, in the sale and purchase of land there are several laws that one may be required to look at, the principal one being the Registration of Titles Act (RTA). The others are the Land Act and its amendments and the Mortgage Act as the case may be, among others, but very doubtful that these include the Sale of Goods Act. (SoGA) .

Section 2 of this Act (RTA) excludes from land transactions, the application of any law with respect to registered land which conflicts with the RTA. The Sale of Goods Act is described as “An Act relating to the sale of goods” and the expression ‘goods’ in the SoGA “includes all chattels personal, other than things in action and money, and all emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”.

As such, the definition of goods under the Sale of Goods Act clearly excludes and does not include “land”. Consequently, we are of the opinion that this law (the Sale of Goods Act) does not apply to the sale and purchases of land and to apply the provisions of the Sale of Goods Act in the sale of land is to imply that land sales are governed by the same rules governing the sale of goods, which is not the case. The SoGA does not apply to land any more than the RTA applies to the sale of a car, clothes or foodstuffs in a market.

Secondly, Section 77 RTA (and 22 SoGA) cannot be the qualifying points for the application of S.181 (the defence of bona fide purchaser for value without notice).

The doctrine of bona fide purchaser for value without notice (of the fraud) is embedded in the RTA which is the principal law governing sale and purchase of registered land. By definition, “a bona fide purchaser for value without notice” is an innocent party, one with no involvement in the fraud and in simple terms, the doctrine provides that where an innocent person has paid for land not knowing about any fraud affecting the land, and which may have been committed by previous persons in respect of the same land, such a person gets a good title when registered and his title cannot be impeached. For someone to be protected under this doctrine, the person must have paid for the land, must not have known about another interest in the land, and must not have committed fraud himself or known about it. If he cannot satisfy court with the above he cannot be protected or, as the judge put it, he cannot “hide behind Section 88 (correct section is S. 181) of the RTA which protects a bona fide purchaser…”

Section 77 RTA makes void any certificate of title, or transaction procured or made by fraud, as against all parties privy to the fraud. It applies to parties involved in the fraud – the guilty, but not to those unaware of the fraud.
Section 181 (which the judge wrongly stated as S 88) protects a bona fide purchaser for valuable consideration of land from any actions brought on the grounds that the proprietor through whom he claims was registered as proprietor through fraud.

Indeed, in the Fredrick Zaabwe V Orient Bank & Ors, which the Rtd judge cites, Katureebe, JSC stated that Section 181 of RTA applies where the purchaser was not party to the fraud or he had no knowledge of the fraud at the time of purchase.

Section 77 RTA deals with guilty parties while Section 181 RTA protects innocents and as such the two sections are mutually exclusive, i.e, the application of one, excludes the other. It would, therefore, be wrong for one to state that Section 181 RTA applies only if Section 77 RTA has been fulfilled. In the same vein, for this protection to arise, the party to be protected need not satisfy the requirements of Section 22 of the SoGA, which we have already argued doesn’t apply to sales of land.

The decision of the Supreme Court in the above case was based on the fact that the judges, including Justice Kanyeihamba, found fraud to have been committed but not on the application of Section 22 of the SoGA as implied by the judge in his article. I wish to assure the Rtd judge that unlike those who knowingly involve themselves in fraudulent land transactions, honest and prudent lawyers, know that Section 181 RTA applies without the need for Section 22 of the SoGA being complied with and that Section 22 SoGA has no bearing whatsoever on the sale of land and to state otherwise would be to ask the lawyers to misapply the law.
If anybody does not find our view of the law on these two points agreeable, we are ready to submit the matters to the courts for proper interpretation.

The law, when properly applied, is intended to protect the innocent parties who find themselves with a title upon or in respect of which fraud was previously committed without their knowledge or involvement. Those who have committed fraud are protected by, among others, Section 77 and other penal legislation.

One would do well to call upon courts to ensure that the requirements of Sections 77, 179 and 181 are complied with and to ensure that fraudulent land sales and purchases are not countenanced. Fraudulent registrations may continue to be registered by the land office and the protection would only be afforded by courts which have a duty to impeach such fraudulent transactions.

The call for a commission of inquiry is welcome, but such must be based on a proper understanding of the law.

President the Uganda Law Society

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