A Joint Owner Of Property Has a Right to Seek Partition of Land Without Requiring Consent From Other Co-owner(s), Especially When His or Her Right To The Property Is Significantly Impeded By The Actions Of Fellow Co-owner(s):




The applicant and another co-owned land as tenants in common; he filed a motion subdivision of the land so that he secures a title deed in his sole name, an injunction restraining the respondents from interfering with the applicant’s proprietary rights in the land, general damages for violation of the applicant’s right to property and costs. The applicant contended that as a tenant in common, he has the right to unilaterally seek severance of the title without consent of the other non-severing tenant in common, yet the later in violation of his constitutional right to property opposed the sub-division.


Article 50 of the Constitution allows individuals to seek redress in the High Court if their rights are violated. Article 26 which protects the right to property entails three distinct principles namely peaceful possession and enjoyment of property; deprivation of property only subject to specified conditions; and state control for the general interest. Interference with property rights must have a legitimate public interest objective, not just a legitimate one.

The right to property allows owners to use and enjoy their property freely. This includes the rights to acquire, enjoy, and dispose of property, all of which are legally protected. This encompasses the authority to exclude others, protection against trespassing, and the right to peaceful enjoyment and active use without infringing on others’ rights. Interference with the right to peaceful enjoyment and possession of property may be the subject of an action for enforcement.

When assessing a claimed violation of the right to property under Article 26, it’s essential to determine if it involves existing property rights or possession; whether there has been unlawful interference; and if so, under which of the three principles of article 26 does the interference fall; Additionally, consideration must be given to whether the interference serves a legitimate public interest, and if it’s proportionate, balancing public interest with individual rights.

An action for enforcement of the right to property should be premised on an interference within one of the three principles, such as; unlawful compulsory acquisition, expropriation, or deprivation of property; unlawful restriction or control of use of the property; or interference that with its possession or enjoyment that cannot be justified.

The applicant contended that although legally his ownership of title to the land remained intact, in practice the possibility of the applicant exercising his right to the suit property had been significantly reduced by the actions of the respondents. To this court stated that the application was premised on the principle of peaceful possession and enjoyment of property, which applies where a measure or conduct has the effect of interfering with the use or enjoyment of property, but falls short of being a taking, and is not intended to control the use of property.


  1. Whether the application related to an existing property right or
  2. Whether there was unlawful interference with that right or
  3. If so, under which of the three rules of article 26 does the interference fall to be considered or the nature of interference?
  4. Whether the interference serves a legitimate objective in the public or general interest.
  5. Whether the interference is


Court found that in the absence of verified fraud, the applicant was entitled to the enforcement of his right to property by way of partitioning off his share from the suit land.

  1. Regarding issue 1, court found the applicant to be a co-owner of the land based on the title deed showing joint ownership. That under Section 59 of the RTA, a certificate of title is conclusive evidence of ownership. Under Section 56 RTA joint owners are presumed to hold the property as joint tenants, with rights of survivorship, and this is true where the four unities of possession, interest, title, and time exist. However, this presumption can be rebutted by evidence indicating a tenancy in common such as a lack of one or more of the four unities; use of words of severance in the conveyance such as “between” or “equally”; words and conduct of the parties that they intend to take the estate as tenants in common, that it was not, or ceased to be, the common intention of the parties to hold the property jointly; contributions towards the purchase price in unequal proportions; commercial partners, etc. In the instant case, the lease agreement led to a joint ownership, but subsequent actions altered the nature of ownership to a tenancy in common due to unequal shares and dispositions. In any event, alienation by one joint tenant of his or her interest in the property to a third-party destroys the unities of time and title. As the co-ownership lacked the necessary unities, it constituted a tenancy in common rather than a joint tenancy. The applicant thus had an existing right as a tenant in common.
  2. Under survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his death. If multiple co-owners remain, the joint tenancy remains in existence, while if only one owner survives, the entire interest in the property passes to the survivor. Survivorship restricts freedom of alienation of property as all of the interest of a deceased co-owner passes to the other co-owner(s) on his death. The intestacy rules have no effect on this neither does a will. Upon death of a co-owner in a tenancy in common, the deceased’s interest in the property passes to his or her estate.
  3. Regarding Issues 2 and 3, it was held that each tenant in common holds the right to access and enjoy the property equally, sharing any generated income. They cannot physically divide the land for exclusive use. Joint tenancy is severed through mutual agreement or actions indicating a change in ownership intention. Severance converts joint tenancy to tenancy in common or terminates co-ownership, depending on circumstances. Whereas with a joint tenancy severance does not put an end to co-ownership but means survivorship ceases to exist, severance of a tenancy in common terminates the co-ownership. Tenants in common whether created so at the outset or have come about following severance of joint tenancy lack survivorship rights and can transfer their interest freely by will or under intestacy, but must not interfere with co-owners’ rights. Tenants in common are entitled to alienate their property rights (by sale or transfer), and without consent of other co owners. A purchaser from a tenant in common slips into the tenancy in common, as they’re substituted for the original tenant in common. In the case at hand, the applicant claimed denial of access and enjoyment by the respondents who alleged fraudulent ownership. Without evidence of interference, the applicant’s title stood as conclusive evidence of co-ownership.
  4. As a general principle, courts can partition property physically or through sale and tenants in common and joint tenants can petition court for a partition.
  5. As for issues 4 and 5, court held that any interference with property rights must serve a legitimate public interest and strike a fair balance between public interest and individual rights. Partition is the legal division of property among co-owners, typically granted upon request unless exceptional circumstances exist. In absence of statutory guidance under Uganda’s jurisprudence, any co-owner may seek partition. Courts generally compel partition unless specific reasons justify refusal, such as malicious intent or undue hardship. When determining oppression, courts consider the applicant’s conduct and fairness to other co-owners. In this case, lack of evidence of oppressive conduct by the applicant and the availability of other remedies led to the rejection of opposition to partition. Article 26 recognizes undue restrictions on alienation as unwarranted. Partition may occur either physically or through sale, depending on zoning rules and property characteristics. In this case, physical partition was feasible, aligning with Article 26 and section 59 of the RTA.


  1. The decision clarified the process of severance, emphasizing that joint tenancy can be converted into a tenancy in common through actions or agreements indicating a change in ownership intention. This emphasizes the significance of mutual agreement or evidence of intention in altering property rights.
  2.   The court affirmed the status of co-owners of land, acknowledging that the applicant held a distinct and independent interest in the property as a tenant in common. This reaffirms the principle that co-owners, whether joint tenants or tenants in common, possess enforceable rights in the jointly owned property.
  3. The court reaffirmed the conclusive nature of a certificate of title under section 59 of the Registration of Titles Act (RTA). This highlights the importance of a title deed as prima facie evidence of ownership of land in the absence of fraud.
  4. The decision highlights the right of co-owners to peaceful possession and enjoyment of the property, as guaranteed under Article 26 of the Constitution. Any interference with these rights must be justified and proportionate to serve a legitimate public interest.
  5. The court recognized the right of a co-owner to seek partition of jointly owned property, whether through physical division (partition in kind) or sale (partition by sale) as a remedy of terminating co ownership. This principle aligns with the equitable distribution of property interests and ensures that co-owners can exercise their property rights effectively. It also confirms that co-owners should have the opportunity to sever their interests and pursue their individual property rights.
  6. By ordering partition in favor of the applicant, the court reaffirms its commitment to enforcing property rights and ensuring access to legal remedies for individuals whose rights have been infringed upon. This promotes the rule of law and protects individuals against unlawful deprivation of their property.

Prepared By

Nalwanga Resty

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