Wakilii

Makubuya & 4 Others v Bugaya & 4 Others (Originating Summons 16 of 2024)

High Court · [2024] UGHCFD 73 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Originating summons by executors seeking court directions and approval to sell estate land where beneficiaries' consent was withheld
Decision
Executors granted authority to survey and sell estate land in accordance with the testator's will, subject to beneficiary consent or further court directions; matter to return for progress report on 28 March 2025

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that where beneficiaries withhold consent to the sale of estate property and where questions arise concerning the interpretation of the testator's will and the executors' powers, originating summons under Civil Procedure Rules O.37 r.1(f) and (g) is the proper procedure, notwithstanding the general rule that applications for court directions under Succession Act s.267(3) should be by notice of motion. The court granted the executors authority to conduct a comprehensive survey, identify occupants and claimants, and sell portions of the land in accordance with the testator's will, subject to beneficiary consent or further court directions where consent is withheld.

Outcome

Executors granted authority to survey and sell estate land in accordance with the testator's will, subject to beneficiary consent or further court directions; matter to return for progress report on 28 March 2025

Facts

The late Ainea Kwatabalyawontate Ssalongo was the registered owner of approximately 945 acres of ranch land in Bulemezi comprising Blocks 808 Plots 1 and 8, Block 811 Plot 1, and Block 789 Plot 2. The five plaintiffs were appointed executors and granted probate to the testator's will, which set out percentage shares of proceeds to be divided among beneficiaries. Upon beginning to administer the estate, the executors discovered that the 1st defendant, who had been caretaker of the land, had sold portions of it to multiple unknown occupants without proper authority, obtaining over UGX 2,000,000,000 from these sales. The 1st defendant claimed he had sold the land with the testator's knowledge. The executors proposed to negotiate with the occupants to regularize their occupation, obtain titles, and remit proceeds to beneficiaries as directed by the will. Nineteen beneficiaries consented to the sale but thirteen withheld consent. The executors brought originating summons seeking court approval to proceed with the sale and distribution of proceeds in accordance with the will.

Issues

  1. Whether originating summons is the proper procedure under the Succession Act s.267(3) where beneficiaries withhold consent to sale of estate property, or whether the matter should proceed by notice of motion.
  2. Whether the executors can proceed to sell the land comprised in Bulemezi Block 808 Plot 1, Bulemezi Block 808 Plot 8, Bulemezi Block 811 Plot 1 and Bulemezi Block 789 Plot 2.
  3. Whether the executors have the power and authority under the will of the late Ainea Ntate Kwatobalyawo Ntate Ssalongo to divide the suit land and distribute it to the beneficiaries.

Orders

  • Originating summons granted.
  • Plaintiffs to ensure a comprehensive survey is undertaken of the suit land (Bulemezi Block 808 Plot 1, Bulemezi Block 808 Plot 8, Bulemezi Block 811 Plot 1 and Bulemezi Block 789 Plot 2) to determine acreage and document persons who hold/own any part of the land.
  • The 1st Defendant to participate in the survey process and cooperate with the executors in identifying persons on the land and the nature of their holding.
  • Plaintiffs to declare to beneficiaries all occupants who have approached them to purchase portions of the land and the purchase price offered, following which the Plaintiffs shall execute the sale subject to beneficiary consent.
  • Plaintiffs to determine which portion of the land is vacant with no kibanja claimants/occupants and report to beneficiaries in an agreed forum.
  • Parties to comply with the wishes of the testator under clause 9.2(x) of the will and endeavor to have the land handled in accordance with the first paragraph of clause 9.2(x), failing which the land may be sold and proceeds shared among beneficiaries enumerated in the second paragraph of clause 9.2(x).
  • Plaintiffs authorized to execute the sale of the land and do all acts necessary to organize/manage the suit property and facilitate the sale where beneficial to the estate.
  • All costs of processes relating to management and/or sale of the land to be borne by the estate.
  • Where beneficiary consent to sale is withheld, the Plaintiffs to revert to court for further directions.
  • Parties to revert to court on 28 March 2025 at 9:30 a.m. wherein Plaintiffs shall provide a report on implementation of the order.

Rules and key headnotes

Civil Procedure — Originating Summons — Proper Procedure for Executor Applications Under Succession Act
Where beneficiaries withhold consent to the sale of estate property under Succession Act s.267(3) and where questions arise concerning the interpretation of a testator's will and the executors' powers of sale and distribution, originating summons under Civil Procedure Rules O.37 r.1(f) and (g) is the proper procedure to bring all issues before the court in a single proceeding, notwithstanding the general rule that applications for court directions should be by notice of motion under O.52 rr.1, 2 and 3.
Succession & Estates — Executors' Powers — Sale of Estate Property — Beneficiary Consent
Where a testator's will directs the sale of estate property but some beneficiaries withhold consent, executors must bring the matter to court under Succession Act s.267(3) for directions. The court may authorize the sale where the withdrawal of consent is unreasonable and where the sale is necessary to give effect to the testator's intentions. Executors are entitled to court orders enabling them to perform their duties in accordance with the will without being encumbered by unreasonable beneficiary objections.
Succession & Estates — Estate Administration — Duty to Implement Testator's Wishes
The duty of executors is to administer an estate in accordance with the testator's will. To encumber executors in the performance of their duties would undermine the intention of the testator. Where the testator has directed the sale of estate property, the court will grant executors the necessary authority to carry out that directive, subject to compliance with statutory requirements concerning beneficiary consent.
Land & Property — Estate Land — Unauthorized Sales by Caretaker — Regularization
Where a caretaker of estate land has made unauthorized sales to occupants during the testator's lifetime or pending grant of probate, executors may be authorized by the court to survey the land, identify all occupants and the nature of their holdings, negotiate with them to regularize their occupation through proper transfers, and remit the proceeds to the estate for distribution to beneficiaries in accordance with the will.

Legislation cited (6)

Full judgment

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Makubuya & 4 Others v Bugaya & 4 Others (Originating Summons 16 of 2024) [2024] UGHCFD 73 (28 August 2024)
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.