Buying and selling land cannot be concluded over a cup of tea

By Sudi Wandabusi

There have been numerous cases of people lamenting of having lost their land to fraudsters. Cases also abound of children inheriting ancestral land, innocently selling only part of it to a stranger, who then takes advantage of their ignorance to defraud them of the whole land.

Interestingly, this has befallen my illiterate and literate friends. The innumerable cases burdening our courts now has so much to do with incomplete land transactions due to ignorance of the statutory procedures uniquely applicable to land dealings.

Various laws provide for contractual transactions in this country. The Law of Contract Act at section 3 (3) provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded is in writing; is signed by all the parties thereto; and the signature of each party signing has been attested by a witness who is present when the contract was signed by such party.

There are some limited exceptions like in cases of a contract made in the course of a public auction. This section applies to all types of dealings in land including sale, bequest of land by will, inheritance of ancestral land from one’s parents, leasing and mortgaging of land.

But the most important requirements concerning land can be found in the three key land laws, the Government Lands Act (GLA), Registration of Titles Act (RTA) and Registered Lands Act (RLA).

These statutes require that all dealings in the land with the exception of certain leases and other transactions to be registered. Section 100 of the Government Lands Act states that an unregistered document shall not be admissible in evidence in a civil court.

Detailed provisions

But it is the RTA section that is more specific on this requirement, providing that no land which is subject to the Act will be transferred, transmitted, charged or dealt with except in accordance with the Act otherwise it shall be null and void and of no effect and further at section 32 that a document, which is not registered, shall be inefficient to transfer any land or any interest in the land from one person to another.

But then, what entails registration? The RLA at section 15 provides that registration shall be effected by an entry in the land register in such form as the Chief Land Registrar may from time to time direct, and by the cancellation of the entry, if any, which it replaces.

Therefore, apart from the simple contract that a buyer and seller of land sign, the law requires that a special deed be taken to the land registry for sealing and entry in the land register by the registrar.

Unless this is done, the land transaction is not complete. And as per section 27 of RLA the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. And the same law further states that the rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except under circumstances laid down under the Act.

These circumstances are very few, stringent and hard to prove in a court of law. It is on the strength of this section that crooks have succeeded in defrauding innocent but ignorant landowners.

Exposure to fraud

Many people, especially in the rural areas, either have never had their land consolidated and registered or the title is still in the name of their great grandfathers, two generations after their death.

They do not know land registration procedures but will proceed to deal in the land without the help of a lawyer, exposing himself or herself to fraud. Similarly, we have cases of a seller of land selling the same piece to more than one buyer without legally transferring it to any one of them.

It is upon every buyer, to ensure that you follow through the transaction to registration of the land in your name. It is important to engage the services of an advocate.

— The writer is a law lecturer, Inoorero University