Wakilii

Serufusa v Zirimenya and Others (Civil Appeal No. 16 of 2013)

Court of Appeal · [2022] UGCA 271 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the High Court sitting in its appellate jurisdiction concerning cancellation of a land title
Decision
Appeal allowed; first appellate court judgment set aside; transfer of the suit land held ultra vires and void

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Holding

On a second appeal, the Court of Appeal allowed new points of pure law to be raised. It held that a power of attorney must be construed strictly within its four corners; the donee's powers (limited to mortgage, sale or pledge) did not authorise an outright transfer of the land to the second respondent, rendering the transfer ultra vires. The court further held that a power of attorney terminates on the donor's death, so the transfer effected three months after the donor died was illegal and void. It also held that a son and lineal descendant is a beneficiary with locus standi to protect the estate without letters of administration. The appeal succeeded.

Facts

The appellant and 14 others were children and beneficiaries of the late Chrisestom Wasswa, who died intestate on 6 May 2006. The first respondent, also a child of the deceased, held a power of attorney executed in 2004 empowering him to mortgage, sell or pledge the deceased's land at Buye, Kyandodo (Block 216 plot 2899). On 22 August 2006, three months after the donor's death, the first respondent executed transfer forms transferring the suit land into the names of his mother, the second respondent, resulting in cancellation of the deceased's name from the register. There was no indication the transfer arose from any sale. The appellant claimed the transfer was unauthorised and that the power of attorney had lapsed on the donor's death. The respondents contended the land had been bought by the second respondent and the deceased and was given to the second respondent. The Chief Magistrate ruled for the appellant; the High Court on first appeal reversed, finding the appellant lacked locus standi and had not proved fraud. The appellant appealed to the Court of Appeal.

Issues

  1. Whether a power of attorney can be used to do things beyond what it expressly provides.
  2. Whether a power of attorney can be used after the death of the donor.
  3. Whether the appellant, as a lineal descendant of the deceased, had locus standi to institute the suit without first obtaining letters of administration.
  4. Whether the new grounds of appeal, not raised in the courts below, could be entertained on a second appeal.

Orders

  • The judgment of the lower Court is hereby set aside.
  • The respondents shall pay the costs of the appeal and in the Court below.

Key headnotes

Power of Attorney — Strict Construction — Acts in Excess of Authority
A power of attorney must be construed strictly within its four corners; an attorney who acts in excess of the authority conferred, such as transferring land where the instrument only authorised mortgage, sale or pledge, acts ultra vires and the act is void.
Power of Attorney — Termination on Death of Donor — Posthumous Acts Void
A power of attorney terminates upon the death of the donor; an agent can only act for a living principal, and any act done under the power after the donor's death (save where the agent has no actual knowledge of the death) is illegal and void.
Locus Standi — Beneficiaries — Lineal Descendants Without Letters of Administration
A son and lineal descendant of an intestate is a recognised beneficiary under section 27 of the Succession Act and has locus standi to institute proceedings to protect or preserve the estate without first obtaining letters of administration.
Second Appeal — New Points of Law — Discretion to Entertain
Although appellate courts will generally not entertain entirely new issues on appeal, an appellate court has discretion to consider a new point first raised on a second appeal where it involves a question of pure law and all the facts necessary to address it are before the court.
Second Appeal — Scope — Restriction to Matters of Law
Under section 72 of the Civil Procedure Act, a second appeal lies to the Court of Appeal only on grounds of law; the court is precluded from questioning findings of fact supported by evidence and may interfere only where there was no evidence to support a finding of fact.

Legislation cited (7)

  • Civil Procedure Act s.72
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 32(2)
  • Judicature (Court of Appeal Rules) Directions Rule 86(1)
  • Civil Procedure Rules Order 1 r.10(2)
  • Succession Act s.27
  • Succession Act s.28
  • Succession Act s.191

Cases cited (12)

  • John Ken Lukyamuzi v Attorney General and Electoral Commission (Supreme Court Civil Appeal No. 2 of 2007)
  • Abdu Mugenyi v Getu Tumuhairwe (Supreme Court Civil Appeal No. 27 of 1994)
  • Kobusinge v Nyakana (Supreme Court Civil Appeal No. 5 of 2004)
  • Mitwalo Magyeno v Medadi Mutyaba (Supreme Court Civil Appeal No. 11 of 1996)
  • Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Kaiman v Graham, 2009 ONCA 77, 245 O.A.C. 130
  • Gold Trust Bank (U) Ltd v Josephine Zalwango Nsimbe (High Court Civil Suit No. 226 of 1992)
  • Fredrick Zaabwe v Orient Bank Ltd and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Midland Bank Limited v Reckitt [1933] AC 1
  • Bryant, Powis, and Bryant Limited v La Banque du Peuple [1893] AC 170
  • Jacobs v Morris [1902] AC 816
  • Israel Kabwa v Martin Banoba Musega (Civil Appeal No. 52 of 1995)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.