“The Common Law Doctrine of Bonafide Purchaser for Value without Notice is an absolute defence in land law against an action for impeachment of one’s title or ejectment”. Discuss Suffice to note that the Common Law Doctrine of Bonafide Purchaser for Value without Notice is not an absolute defence in land law against an action for impeachment of one’s title or ejectment”. Bonafide purchaser for value without notice was defined in the case of Hajji Nasser Kitende V. Vithalidas Haridas & Co. Ltd, as one, who buys property for value without notice of another’s claim over the same property and without actual or constructive notice of any defects in, or infirmities, claim’s or equities against the sellers title. Suffice to note that for one to qualify as a bonafide purchaser, he or she must have done proper due diligence and exercised reasonable caution before entering into a transaction that would ultimately be binding upon him or her. The Court of Appeal in Hajji Nasser Kitende V. Vithalidas Haridas & Co. Ltd, outlined seven elements that a purchaser must proof before relying on the bonafide purchaser doctrine which includes the following; (a) the person holds a certificate of title, (b) he purchased the property in good faith, (c) he had no knowledge of the fraud, (d) he purchased for valuable consideration, (e) the vendors had apparent valid title, (f) he purchased without notice of any fraud and he was not a party to the fraud.1 It can be deduced from the aforementioned case that, the bonafide purchaser doctrine consist of five elements, namely; (a) Bonafide Bonafide means to act in good faith. This is a separate test which has to be passed even after proof of absence of notice. The purchaser must show that his absence of notice is genuine and honest.2 This principle was further exemplified in the case of Midland Bank Trust V Green, where Court held that the option was void against the mother who was a purchaser for money. The words in good faith related to the notice, absence of notice had to be genuine and honest.3 Similarly, in Oliver V Hinton, it was held that in order that a purchaser for value who has acquired a legal estate without notice of a prior equitable mortgage to acquire an interest in the property, it was not necessary to show that he was guilty of fraud but that it was sufficient if he was guilty of negligence so gross to render it unjust to deprive the prior mortgagee of his priority. Court further held that 1 Civil Appeal No. 84 of 2003 John T. Mugambwa, Land transactions 3 [1981] AC 513 122 2 owing to the purchaser’s gross negligence, the mortgagee was entitled to priority over the purchaser. According to Rigby LJ; “in many cases ,it is said that if a purchaser makes inquiries and receives an answer with which he ought to reasonably be satisfied, he is excused from making further inquiries. But the answer to which a purchaser may rest satisfied must be an answer to the question which under the circumstances it was reasonable he should ask. In this case he ought to have asked for the production of documents. When he was told that the vendor had the title deeds he ought to have gone on to say, let me see them.4 (b) Purchaser for value The case of Midland Bank Trust V Green (supra) defines a purchaser as a person who for valuable consideration takes any interest in land. In Caunce V Caunce, Court stated that thus a buyer, donnee (by will or intervivos), mortgagee or lessee is a purchaser. But a person who acquires land by intestate succession is not a purchaser because he acquires title by operation of law (i.e. have to apply to court for letters of administration and goes through legal processes to get a court declaration as part of the process).5 The words for value are included to show that value must be given because “purchaser” in its technical sense does not necessarily mean value given. A purchaser must purchase for value, meaning that he or she must pay for the property rather than simply be the beneficiary of a gift. Value may include money or its worth such as land. Stocks or shares.6 In Wormald V Maitland, acquiring land in contemplation of entering into a particular marriage, was considered sufficient value.7 The marriage however only extends to future as opposed to past marriage. Natural love and affection is not sufficient consideration. Thorndike V Hunt is an authority to the effect that satisfaction of an existing debt is sufficient value.8 The value need not be full value but must have been fully paid by the time the purchaser obtains the notice of the equity. Further the term purchaser includes mortgagees and lessees, who are purchasers to the extent of their interests. Midland Bank Trust V Green (supra), the House of Lords held that valuable consideration include a nominal consideration and a purchaser who provided merely a 4 [1899]2 Ch (1969) 1 ALLER 722 6 John T. Mugambwa, Land transactions 7 (1866)35 LJ Ch 8 (1859) 3 De G & J 5 nominal consideration for the purchase of a legal estate was not barred from protection merely because his consideration was not adequate .The mother had therefore bought for value.9 (c) Of a legal Interest This element implies that if the purchaser acquires a mere equitable interest is necessarily later in time than the preexisting equitable interest and on the dicta of Ndigejjerawa Vs Kubulwamwana, Rice Vs Rice, as between competing equitable interests, the first in time will normally prevail.10 Thus in Cave V Cave, Court held that the legal mortgage in favour of the first equitable claim was of the same quality as that of the subsequent equitable mortgagees and having been prior in time, took priority over the mortgagees’ claim.11 The case of Phillips V Phillips, laid down the principle that as between equitable interests, the defense of bonafide purchaser for value without notice would not prevail where the circumstances were such as to require that this court should determine the priorities between them. The classes where the defence applied were other than that. There are a few qualifications to this rule however. (i) Thus if the purchaser has a better right to a legal interest as in the case of a legal interest being transferred to a trustee to hold on trust for him, he will have priority. (ii) If the purchaser subsequently acquires a legal estate, he shall be exonerated even if by then he has notice of the equitable interest. As between himself and the prior equitable owner, there is equal equity, and the legal estate will prevail. Except that if he knowingly acquires such title in breach of trust, he will not be protected. (iii) “Mere equities” are also subject to such purchaser’s equitable right. These interests fall short of being actual interests in land and in the main, are rights to equitable relief in respect to property. They were listed by Lord Westbury as equities to set aside a transaction for fraud or mistake in Cave V Cave (Supra)12 (d) Without Notice 9 (supra) 7 ULR 31, (1853) 2 DREW 73 11 (1880) LR 15 Ch 12 (1862)4 De G.F 10 The Black’s law dictionary 10th edition defines notice as a person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording.13 According to Prof. Bakibinga, the rationale of the doctrine is to prevent a buyer of superior title from setting it up against earlier owners of inferior interests which affect the property. The effect of this is that the buyer of the legal estate with notice of the prior equitable interests affecting the estate takes it subject to prior equitable interests in this regard; “Equity looks at the substance rather than the form” Notice can be Actual, constructive or imputed. And it is based on the maxim "he who comes to equity must come with clean hands".14 Basically, there are three types of notice, namely; (i) Actual Notice A purchaser had actual notice if he/she knew of any rights affecting the land because he had been told of the rights or had found out for himself/herself.15 In regard to the relevance of the doctrine of notice. Section 64 of the Registration of Titles Act Cap.230 provides for the doctrine and it states that a buyer of land shall hold that land subject to such encumbrances as notified to the registrar.16 This principle is further given light in the case of Sempa Mbabali V w k Kidza and Others, where Odoki J held that the defendants plea of bona fide purchaser could not stand because they knew all along that that part of land they had purchased was for burial grounds and also the seller had sold them the land before his share of the land had been ascertained. This therefore means that his hands were not clean.17 (ii) Constructive Notice Constructive notice was defined in the case of Williamson V Brown, as where a purchaser has knowledge of any fact sufficient to put him in inquiry as to the existence of some right or title in conflict with that he is about to purchase he is presumed either to have made the inquiry and ascertained the extent of such prior right or to have made the inquiry and ascertained the extent of The black’s law dictionary 10th edition, by Bryan A. Garner David J. Bakibinga Equity and trust in Uganda 15 Tonny Okwenye real property law in Uganda 16 Registration of Titles Act Cap.230 17 (1985) HCB 46 13 14 such right or to have been guilty of a degree of negligence equally fatal to his claim.18 In Uganda Post Telecommunication V AKM Lutaaya, Karokora JSC, held that the occupation of land by a third party constitute constructive notice to the purchaser of any equitable rights the occupier might have in the land.19 Correspondingly, in Jones V Smith, Court stated that a purchaser has constructive notice of a fact if he: (1) Had actual notice that there was some encumbrance and a proper inquiry would have revealed what it was, or (2) Has whether deliberately or carelessly abstained from making those inquiries which a prudent purchaser would have made. However, the same case maintained that this doctrine ought to be limited because it answers that which is contrary to the fact.20 It is prudent to bear in mind that a prudent purchaser is bound to inspect the land and investigate the title. With land inspection, the object is to discover whether there are any adverse interests to avoid Consequences such as adverse possessors taking priority over one’s title.21 In Hunt V Luck however, it was held that such purchaser does not have constructive notice of the rights of the tenant’s land lord. It was stated; “the law is that if a purchaser has notice that the vendor is not in possession of property he must make inquiries of the person in possession and find out what his rights are. If he does not, whatever title he acquires shall be subject to the title of the tenant in possession” the only inquiry which the mortgagees had to make was so as to protect themselves against any rights the tenants might have in the subject matter of the mortgage. In any case, any inquiry would have only revealed that the tenants gave money to one Woodrow, it would not have revealed the rights of the plaintiff.22 (iii) Imputed Notice Notice which is neither actual nor constructive may be imputed to the buyer through actual notice to the agent. It's established in agency law that that notice to an agent is notice to the principal.23 In Sejjaka Nalima V Rebecca Musoke, Odoki j a held that the appellant was not bona fide 18 (1914) HCA 46-18 CLR Civil Appeal No. 36 0f 1995 20 (1841) 1hare 43 21 John T. Mugambwa, Land transactions 22 (1901) 1 Ch 428 23 John T. Mugambwa, Land transactions 19 purchaser without notice owing to the fact that Musoke and Co. Advocates who were acting as her agents had known of the alleged fraud concerning the disputed property.24 (e) Successor in Title The case of Wilkes V Spooner defined successor in title as the purchaser of land from one who has purchased it for value, without notice either actual or constructive of a restrictive convenant is not bound by the convenant, though he himself had notice of it. In this case, it was held that under the circumstances, the landlord was not affected by the constructive notice of the father’s convenant and could grant to the son the right to carry on the business of a general butcher. According to Farwell J: “ it is a rule that a man who is a purchaser with notice himself from a person who bought without notice may shelter himself under the first purchaser otherwise it would be a clog on the sale of estates.”25 This rule was modified by statue in Lwanga V Registrar .of Titles, where Court relied on Section 189 of the Registration of Titles Act Cap.230 and held that RTA provided that the title of a bonafide purchaser for value could not be impeached and a person who had been registered through Fraud could pass good title to a bonafide purchaser provided he was not party to the fraud.26 A purchaser who has ,before completion of his purchase received notice of an outstanding equitable interest must, in order to get a good title from his vendor take care to see that that interest is destroyed.27 This was extensively discussed in the case of Pilcher V Rawlins, where Court held that they took free from the trust as bonafide purchasers for value without notice. Per James LJ “Such a purchaser’s pleas for valuable consideration without notice is an absolute, unqualified, unanswerable defence and unanswerable plea to the jurisdiction of this court. Such a purchaser when he has put in his plea, may be interrogated and tested to any extent as to the valuable consideration which he has given in order to show the bonafides or malafides of his purchase, and also the presence or absence of motive. But when once he has gone through the ordeal, and has satisfied the terms of the plea, then, this court has no jurisdiction whatever to do anything but let him depart in possession of that legal estate, that legal right, that legal advantage”. “When once you have arrived at the conclusion that the purchaser is a bonafide purchaser for valuable consideration without notice, the court has no right, to ask him, and has no right to put 24 Civil Appeal No.12 0f 1985 [1911]2 KB 473 26 [1980] HCB 24 27 John T. Mugambwa, Land transactions 25 him to contest the question, how he is going to defend himself, or what he is going to rely on. He may say, honestly and justly, “I am not going to tell you”. “I ‘m therefore of the opinion that whatever be the accident by which the purchaser has obtained a good title, and in respect of which he has paid his money, and is in possession of the property, he is entitled to the benefit of that accident.”28 In the same respect, Kazora V Rukuba, Court held that the respondent was a bonafide purchaser for value notwithstanding that he was aware of the existence of the appellant’s caveat, because the alleged sale to the appellant, which the caveat purported to protect, was not shown to exist. There was no evidence about the sale to support the caveat.29 In conclusion, having discussed the Common Law Doctrine of Bonafide Purchaser for Value without Notice with relevant authorities, it can be deduced from the above discussion that, the Common Law Doctrine of Bonafide Purchaser for Value without Notice is not an absolute defence in land law against an action for impeachment of one’s title or ejectment”. The case of Phillips V Phillips (supra) is to the effect that as between equitable interest the defense of bonafide purchaser for value without notice would not prevail where the circumstances were such as to require that this court should determine the priorities between them. However, there are exceptions to this rule. Secondly, if a person has any of the following notices discussed in this essay, he or she cannot plea the defense of the bonafide purchaser doctrine. In Sejjaka Nalima V Rebecca Musoke (supra), Odoki j a held that the appellant was not bona fide purchaser without notice owing to the fact that Musoke and Co. Advocates who were acting as her agents had known of the alleged fraud concerning the disputed property. Also, in Uganda Post Telecommunication V AKM Lutaaya (supra), Karokora JSC, held that the occupation of land by a third party constitute constructive notice to the purchaser of any equitable rights the occupier might have in the land. Thirdly, a bonafide purchaser’s title can be impeached where fraud is alleged and that he or she happens to be a party to the alleged fraud. In Cave V Cave (supra) trustee fraudulently used trust money to purchase land which was conveyed into his brother’s name. Afterwards he acted as a solicitor for his brother and the first defendant in raising money on the estate as a legal mortgage. He thereafter used the same land to complete various equitable mortgages with the other defendants. On discovery of his fraud by the beneficiaries, the present suit was entered to impeach the mortgagee’s interests.it was held that the legal mortgage in favour of the first equitable claim was of the same 28 29 (1872) 7 Ch App 257 Court of Appeal No.13 Of 1992 quality as that of the subsequent equitable mortgagees and having been prior in time, took priority over the mortgagees’ claim. It is therefore, my averment that the bonafide purchaser doctrine is not an absolute defence. Covenants implied in a lease against the Land Lord and Tenant A lease is a right to possess land for a certain maximum period indeterminate periods are the preserve of freehold estates. The attraction of a lease is fairly obvious. Not everybody can afford to buy land or wishes to take on the commitment involved in ownership: the opportunity to have a right to land for a fixed period is then really important.30 Section 3 (5) (c) of the Land Act Cap.227 defines a lease as a form of tenure whereby one person grants another exclusive possession of land usually but not necessarily in return for monetary consideration. 31 It should be noted that a lease is essential as a contract between the lessor and the lessee and obeys the basic rules of contract, to say offer, acceptance and consideration.32 In the case Chris Akena Onapa Vs Mohammed Hussein Rashid Punjani, Court held that Hussein could not legally claim a lease since he did not accept the offer to renew the lease that was communicated to him in a letter that he did not receive until he came to Uganda to repossess his property.33 The consideration is normally the premium (a lump sum payment made at the beginning of the lease) and ground rent normally paid annually. When a lease is validly created, the lessee can create an interest in the nature of a lease. In such a case, the lessee becomes the sub-lessor and the one granted the sublease becomes the sub lessee. For ease of reference, the initial lease by virtue of which the lessee acquires an interest is referred to as the Head lease.34 [However, irrespective of whether a leasehold is legal or equitable, there is no doubt that it is one of the most versatile concepts known to the law of real property. Even the terminology of leases reflects the many purposes to which they may be put. The ‘term of years’, ‘tenancy’, ‘sublease’ and ‘leasehold estate’ are all terms in common use, and all of them describe the existence of a ‘landlord’ and ‘tenant’ relationship.35 There are various definitions of a lease, both in statute (for example, Section 3 (5) (c) Land Act Cap.227) and in common law, but one of the most commonly cited is that of Lord Templeman in Street v Mountford. The Hose of Lords held that the agreement was a lease. Lord Templeman, in delivering judgement, stated that “My Lords, there is no doubt that the traditional distinction between a tenancy and a licence of land lay in the following; grant of land for a term at a rent with exclusive 30 [Roger J. Smith, Introduction to Land Law Uk Edit (z-lib.org) the Land Act Cap.227 32 John T. Mugambwa, Principles of Land Law in Uganda 33 Civil Appeal No.5 of 1995 34 John T. Mugambwa, Principles of Land Law in Uganda 35 Martin Dixon] Principles of Land Law (Principles (z-lib.org) 31 possession.” “Any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasize the fact that the grantee is entitled to exclusive possession and is a tenant. In the present case it is conceded that Mrs. Mountford is entitled to exclusive possession and is not a lodger. Mr. Street provided neither attendance nor services and only reserved the limited rights of inspection and maintenance and the like set forth in clause 3 of the agreement. On the traditional view of the matter, Mrs. Mountford not being a lodger must be a tenant.”36 For an interest to be recognised as a lease, the aforementioned essential requirements must be satisfied. I shall now discuss each of the essentials below. To begin with, (a) Exclusive Possession A lease, on the other hand, is properly regarded as a proprietary interest in the land itself and it may be assigned to, and become binding on, any subsequent owner of the reversion.37 Section 3 (5) (c) of the Land Act Cap.227 defines a lease as a form of tenure whereby one person grants another exclusive possession of land usually but not necessarily in return for monetary consideration.38 As a basic proposition, a lease will exist when the occupier of land has been granted exclusive possession of the premises. This is a question of fact, to be decided in each case by reference to the surrounding circumstances, the course of any negotiations prior to the grant of the right of occupation, the nature of the property and the actual mode of occupation of the occupier. Further, the landowner cannot avoid granting a lease by merely calling the arrangement between the parties ‘a licence’, even if this is expressly stated. Labels are not decisive. Generally, it is not the parties’ intentions (whether expressly stated or not) that are relevant, but the substance of the rights they have created by their agreement (Street V Mountford (1985); overruling Somma V Hazlehurst (1978) on this point).39 It should be pointed out that the fact that the landlord/lessor retains a right to access for certain purposes or occasions does not necessarily mean that the lessee has no exclusive possession. However, there are certain exceptional situations where the occupier of land will have exclusive possession of the property but, for special reasons, no lease will exist. These are cases where the grant of exclusive possession is preferable to some other bona fide 36 (1985) AC 809 Martin Dixon] Principles of Land Law (Principles (z-lib.org) 38 the Land Act Cap.227 39 [Martin Dixon] Principles of Land Law (Principles (z-lib.org 37 relationship between the parties.40 Section 103 (a) of the Registration of Titles Act Cap.230 gives the lessor the power to enter into the premises of the lessee for inspection. The section thereof states that, in every lease made under this Act there shall be implied in the lessor and his or her transferees the following powers that he or she or they may with or without surveyors, workers or others once in every year during the term, at a reasonable time of the day, enter upon the leased property and view the state of repair of the property.41 There are divergent views on whether or not a grant of exclusive possession is in itself conclusive evidence of a lease. For instance, in the case of Errington V Errington and Another, Court noted that though the defendants were granted exclusive possession, they were mere licensees because the parties in question had no intention to create a tenancy.42 This case therefore shows that the intention to create a lease must accompany the grant of exclusive possession for there to be a lease. In Uganda, the preferred position is that which asserts that the existence of exclusive possession is conclusive evidence of a lease. Section 3(5) (c) of the Land Act Cap 227 defines a leasehold as a form of tenure under which one person grants another person exclusive possession of land”.43 (b) Duration Another essential ingredient in a lease is that the exclusive possession granted to the tenant must be for a defined and certain period of time. This means not only that the lease must start at a clearly defined moment, but also that the length of the term granted must be certain. At the commencement of the lease, it must be possible to define exactly the maximum duration of the lease, even if it is possible to end the lease at some time before this. Any lease, or rather any intended lease that fails to satisfy this condition is necessarily void.44 For example, in Lace v Chandler, a lease for the duration of the Second World War was held void as being of uncertain maximum duration.45 The Ugandan position on this point is set out in the Land Act Cap 227 Section 3(5) (c), which is to the effect that the duration of the lease is usually, but not necessarily defined. 46 This means that it is not mandatory to have the duration of the lease defined. On the other hand, the practice more often than not is that the duration of the lease is usually defined. This is because of the fear of land 40 John T. Mugambwa, Principles of Land Law in Uganda the Registration of Titles Act Cap.230 42 (1950) 1KB 290 43 Land Act Cap 227 44 Martin Dixon, Principles of Land Law 45 (1944) ALLER 305 46 Land Act Cap 227 41 owners to create interests in their land whose termination is uncertain. At the end of the period agreed upon between the lessee and lessor, the lessee has to give up vacant possession of the property.47 In Christopher Sebuliba V Attorney General, the suit property was leased to the ministry of defense. The lease expired but defense soldiers continued occupying the premises despite the landlord’s notice to quit. The ministry of lands advised that of defense to give vacant possession to the lessor but the later continued in occupation until a court order was made. The appellant sued the Attorney General. Court held that the appellant was entitled to be paid rent at the current market price.48 Furthermore, a lease may be created by contract or operation of law as provided for under Section 3(5) (a) of the Land Act Cap.227.49 Accordingly in Mayanja Nkanji Vs National Housing Corporation, there is no requirement in Uganda that a lease should be in writing. 50 Similarly, in absence of an express agreement, a lease may be implied in a situation where one enters into possession of another’s land, pays rent, and it is accepted by the other person, to say the land owner.51 In the same vein, it was held in the case of Jivraj V Dudley Whelpadele that payment and acceptance of rent provided the requisite evidence that the defendant and plaintiff regarded each other as landlord and tenant and therefore signifies creation of a lease.52 For a lease to be recognised under the Registration of Titles Act Cap. 230, it must satisfy the requirements under Section 101 and 109 of the Registration of Titles Act Cap.230. The aforementioned sections provides that a lease or sublease of three or more years has to be registered under the Registration of Titles Act Cap. 230. If addition, registration of any lease puts it in the category of legal interests in land that enjoy the protection guaranteed by section 54 of the Registration of Titles Act Cap. 230.53 In Poptal V Lakhai and Co, a sublease for one year, renewable at the tenant’s option was held to be a lease in excess of 3years and therefore subject to the legal requirements of registration.54 Procedure for creating a lease is provided for under Section 101 and 139 (1) of the Registration of Titles Act Cap.230. The above mentioned provisions laid down the following 47 John T. Mugambwa, Principles of Land Law in Uganda S.C.C.A.13 of 1991; [1992] v KALR 64 49 Land Act Cap.227 50 (1972) 1 ULR 37 51 John T. Mugambwa, Principles of Land Law in Uganda 52 3 ULR, 193 53 Registration of Titles Act Cap. 230 54 (EA) Ltd,1960 EA 437 48 procedures; Search the register for encumbrances), Ensure the intending lessor has capacity to lease (s/he must be a proprietor) if the consent is necessary, it should be sought. Pay fees including stamp duty, Register the lease with registrar and at this moment the duplicate certificate of title should be surrendered to the registrar to effect registration of the lease as an encumbrance on the title.55 In Kalori Kaggwa V Estheri Kityo. A lease is in effect on the date of execution and not registration.56 Moreover, the case of Walsh V Lonsdale, gives the position on leases that are not registered. If the formalities were not met, at common law, the contract would be specifically enforced and may result into a claim for damages. At equity, equity would treat as done that which ought to be done. In that case a lease capable of enforcement by specific performance creates a lease. Therefore, the agreement in the case of Walsh V Lonsdale led to the creation of a 7year equitable lease. 57 The above principle applies to unregistered leases created under the Registration of Titles Act. From the case of Figueredo and Co. Ltd V Moorings Hotel Co. Ltd it can be deduced that the unregistered instruments in land do not lead to creation of legal estates in land.58 Therefore, unregistered leases under the Act are not void ab initio, since they amount to equitable lease. Additionally, the rights and duties of the parties under a lease are determined by an amalgam of agreement, common law and statute. Nearly all leases contain ‘covenants’ whereby the landlord and tenant promise each other to do, or not to do, certain things in relation to the land and its environment. The covenants implied in a lease against the Land Lord at common law includes the following; (1) Quiet Enjoyment Most of our attention is directed towards obligations to repair but, first, mention should be made of the landlord’s covenant for quiet enjoyment, implied into every lease. The language of the covenant is misleading. It is not focused on preventing noise. Rather, it is the core obligation of the landlord to ensure that the tenant can occupy the premises for the duration of the lease. Any conduct that excludes the tenant or substantially interferes with the tenant’s enjoyment of it (by 55 Registration of Titles Act Cap. 230 (1992-93) HCB 130 57 (1882) 21 CHD 9 58 (1960) EA 926 56 cutting off the water supply, for example) will constitute a breach. As has been stressed, ‘quiet’ cannot be equated with absence of noise. However, there is no reason why noise cannot activate the covenant. If the landlord makes so much noise in adjoining premises that the tenant cannot sleep, that is likely to be a breach of the covenant (as well as falling foul of the tort of nuisance).59 However, if an act of interference is a result of unlawful acts of 3rd parties the land lord is not liable, as was the case in Shah Champshi and others V Attorney General of Kenya (The plaintiff had a lease from Government .A 3rd party blocked the plaintiffs access road and in an action against Government, liability was not established against it.60 Suffice to note that a lessor is only liable for his or her own actions that amount to breach of quiet enjoyment. This is a point of law established in the case of Opunya V Mukasa, where Court held that the act of removing a roof from the premises to forcibly evict the tenant was a breach of the convenant of quiet enjoyment.61 (b) Fitness for Human Habitation At common law, the landlord is under no implied duty to repair, save in one respect: in the case of a furnished letting, the landlord impliedly undertakes that the property shall be fit for human habitation at the commencement of the tenancy but there is no liability thereafter. Fitness for human habitation broadly means that neither the tenant nor his family should be endangered in respect of life, limb or health in the ordinary course of their occupation of the dwelling. The premises that the landlord is letting out must be fit for human habitation.62 In Cruse V Johnson, Court held that the above is always the case where the premises are rented furnished, and the obligation only stands at the beginning of the lease.63 (c) No derogation from the grant The landlord impliedly promises that he will not derogate from his grant. This is a general principle applying not only to leases, but to other grants as well. It is based on the commonsense notion that a grantor should not be allowed to give with one hand and take back with the other. So the landlord may not grant a lease for a particular purpose and then use his adjacent land in such a way as to render that purpose impossible. For the convenant to be implied; (i) the purpose of the land must 59 Roger J. Smith Introduction to Land Law Uk Edit(z-lib.org) 1959) EA 630. 61 (1964) 62 Bryn Perrins, Understanding Land Law(z-lib.org) 63 (1932) ALLER, 781 60 be in contemplation of both the tenant and the landlord. (ii) Both parties must have contemplated the purpose at the time the lease is entered into. (iii) The Land lord must have retained part of the land and leased part of it.64 In Robinson V Kilvert, Court held that since the drying of paper was a special purpose not contemplated by the parties, the landlord was not liable for breach of convenant.65 Correspondingly, the convenant implied against the tenant are as follows; (a) That the tenant shall pay rent as and when it is due and all rates and taxes Rent is strictly a consequence of a lease rather than a prerequisite. The tenant has a duty to pay rent service to his lord, the amount of the rent being what is agreed between the parties (almost invariably cash, but possibly kind). However, as mentioned above, precisely because rent is a characteristic of the landlord and tenant relationship, the court may infer from the payment of rent that there must be a lease or tenancy in existence.66 In Uganda, the payment of rent by the tenant is provided for under Section 102 (b) of the Registration of Titles Act Cap.230 which stipulates that in every lease made under this Act there shall be implied the following covenants with the lessor and his or her transferees by the lessee binding the latter and his or her executors, administrators and transferees that he or she or they will pay the rent reserved by the lease at the times mentioned in the lease.67 (b) That the tenant shall deliver up vacant possession of the premises In the case of NYK Logistics (UK) Ltd V Ibrend Estates BV, Court examined the meaning of vacant possession and noted that at the moment vacant possession is required to be given, the property must be empty of people and chattels and the landlord must be able to enjoy exclusive occupation and control. In short he must ensure that any other person who came onto the land with his consent leaves the premises at the end of the tenancy.68 In Kamanyire V Standard Bank (U) Ltd, the tenant will be liable for the costs the landlord incurs in ejecting whoever remains on the land if they entered upon the land with the consent of the tenant.69 64 Bryn Perrins, Understanding Land Law(z-lib.org) (1889)41 ChD 88 66 Bryn Perrins, Understanding Land Law(z-lib.org) 67 the Registration of Titles Act Cap.230 68 (2011) EWCA Civ 683 69 (1977) HCB 82 65 (c) That the tenant shall use the premises in a tenant like manner This means that the tenant should not commit voluntary waste (damage caused deliberately, or through negligence like altering the premises without the landlord’s consent). Or permissive waste (an omission that may result in dilapidation of the property.70 Lord Denning, in the case of Warren V Keen, stated that ‘the tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, where necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, willfully or negligently; and he must see his family and guest do not damage it; and if they do, he must repair it’. And ‘if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, the tenant is not liable to repair it.71 In the same vein, Section 102(b) of Registration of Titles Act implies the same convenant in favor of the lessor. For the purpose of registered land, in case the lessee fails to abide by the requirements of Section 102(b) of Registration of Titles Act, the lessor has powers under Section 103 (b) of the Registration of Titles Act Cap.230 to re-enter the premises. Re-entry puts an end to the lessee’s rights of exclusive possession and therefore terminates the lease.72 In conclusion, it is important to bear in mind that the covenant between a landlord and a tenant is contractual in nature. However, this contractual relationship can be terminated through the follow means; Surrender which is provided for under Section 108 of Registration of Titles Act, merger, Effluxion of time and Forfeiture which is illustrated under Section 103 (b) of Registration of Titles Act. BY YAYA L. JARJOU 70 John T. Mugambwa, Principles of Land Law in Uganda (1954) QB 15 72 Registration of Titles Act Cap.230 71