Wakilii

Byamukama & Anor v Rwomwiju (CIVIL SUIT No. 514 OF 2001)

High Court · [2001] UGHCCD 2 · 2001 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Originating summons seeking court order to compel defendant co-executrix to sign transfer instruments, or in the alternative, for Commissioner of Land Registration to register second plaintiff as proprietor based on transfer signed by first plaintiff alone
Decision
Second plaintiff registered as proprietor on transfer signed by first plaintiff alone; defendant co-executrix not required to sign

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where co-executors are appointed and one has carried out all duties of estate administration for years while the other remained uninvolved, section 274 of the Succession Act permits the active executor to exercise powers alone and bind both executors. A contract of sale made by one executor in those circumstances may be specifically enforced. The court ordered the Registrar of Titles to register the purchaser as proprietor based on transfer signed by the first plaintiff alone, as the defendant co-executrix had been uncooperative since 1993.

Outcome

Second plaintiff registered as proprietor on transfer signed by first plaintiff alone; defendant co-executrix not required to sign

Facts

The deceased Ambrose Rwomwiju died testate in the early 1990s, appointing the first plaintiff and defendant as co-executors. Probate was granted to both in 1993, but the first plaintiff carried out all administration duties alone. In 2000, estate property (LRV 695, Folio 20, Block 250, Kyaddondo, plot 31, Bbunga) was subject to a mortgage held by International Credit Bank Limited (in Liquidation) with receivers about to sell. The amount due was UGX 27,928,898 as at 31 January 2000. On 15 February 2000, the first plaintiff sold the property to the second plaintiff for UGX 167,500,000. The second plaintiff took possession and carried out extensive renovations. The property was registered in the names of both executors, but the defendant refused to sign transfer instruments. Proceeds from the sale discharged the mortgage and purchased another property at Kisugu. The defendant resided in America during the transaction and had not participated in estate administration since 1993.

Issues

  1. Whether the defendant co-executrix could validly prevent the second plaintiff from acquiring title to property sold by the first plaintiff acting as co-executor.
  2. Whether the originating summons procedure was appropriate for the dispute.
  3. Whether the second plaintiff was an innocent purchaser for value entitled to specific performance.
  4. Whether section 274 of the Succession Act permits one of several executors to bind co-executors by exercising powers alone.

Orders

  • The Registrar of Titles (Commissioner for Land Registration) is ordered to register the name of the second plaintiff, Christopher David Wilson, as proprietor of LRV 696 Folio 20, Kyaddondo Block 250, plot 31 at Bbunga Hill, Kampala, with transfer instruments signed only by the first plaintiff as executor of the estate of the late Ambrose Rwomwiju.
  • Each party to bear its own costs.

Rules and key headnotes

Powers of Co-Executors — Section 274 Succession Act — Exercise by One Executor
Where several executors are appointed under a will, section 274 of the Succession Act Cap 139 provides that in the absence of any direction to the contrary, the powers of all may be exercised by any of them who has proved the will or taken out administration.
Co-Executors — Liability for Acts of Co-Executor — Neglect of Duties
Where one co-executor has unnecessarily left all duties of estate administration into the sole hands of the other co-executor for years, the inactive co-executor cannot escape liability for acts done by the active co-executor in the course of administration.
Specific Performance — Contract by One Co-Executor — Binding Effect
A contract made by one of several co-executors in the course of estate administration binds all co-executors where the powers were exercised in accordance with section 274 of the Succession Act, and the court may grant specific performance of such contract.
Originating Summons — Appropriate Use — Simple Questions
The procedure by originating summons is intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve serious questions. It is appropriate for the summary determination of points of law or construction or the obtaining of specific directions.
Affidavit Evidence — Unchallenged Averments — Effect
Where a respondent fails to file an affidavit in reply to an originating summons, the averments contained in the applicant's affidavits remain uncontroverted and, unless there is reason to disbelieve them, must be acted upon.

Legislation cited (1)

Cases cited (4)

  • Samwiri Massa & Rose Achen (1978) HCB 297
  • Kulsumbai Gulamhusein Jaffe & Ramiji And Another v Abdul Hussein Mohamed Rahim [1957] EA 699
  • In re Giles [1890] 43 Ch D 391
  • In re Gasquoine, Gasquone v Gasquone [1894] 1 Ch D 470

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Byamukama & Anor Vs Rwomwiju (CIVIL SUIT No. 514 OF 2001) [2001] UGHCCD 2 (5 November 2001)
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.