Wakilii

Mukasa v Nansikombi & Anor (Miscellaneous Application No 196 of 2015)

High Court · [2016] UGHCFD 20 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application arising from civil suit for enforcement of memorandum of understanding and cancellation of registration
Decision
Application dismissed as incompetent and cannot be maintained in law

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed as incompetent. Court held that the power of attorney relied upon did not authorize the attorney to file court proceedings on behalf of the donor, and the power of attorney was not duly executed as it lacked the required certificate of an attesting witness beneath the donor's mark as mandated by section 148 of the Registration of Titles Act.

Outcome

Application dismissed as incompetent and cannot be maintained in law

Facts

The applicant and respondents were parties to Civil Suit No. 346/2003 concerning ownership of land comprised in Kyadondo Block 204 Plot 127. The suit was determined in favour of the respondents. Following the applicant's notice of appeal, the parties entered into a memorandum of understanding to cease litigation, vest the property in the names of Cissy Mukasa and Nansikombi Mary, and sell it with proceeds to be shared. The applicant abandoned the appeal in compliance with the agreement. The respondent subsequently used the decree from the original suit to cancel the applicant's name from the land register and substitute their names, and failed to sell the property as agreed. The applicant sought enforcement of the memorandum of understanding and cancellation of the respondents' registration. The application was brought by Cyprian Sebunjo purporting to act as the applicant's attorney under a power of attorney.

Issues

  1. Whether Cyprian Sebunjo had authority under the power of attorney to file the application on behalf of the applicant.
  2. Whether the power of attorney was duly executed in compliance with section 148 of the Registration of Titles Act.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Powers of Attorney — Authority to Institute Proceedings — Scope of Powers
Authority under an instrument of powers of attorney is construed from the deed itself and must be exercised within and as authorized by the donor. Where a power of attorney contains no clause authorizing the attorney to file court proceedings, the attorney has no authority to institute an application on behalf of the donor.
Registration of Titles — Execution of Powers of Attorney — Formal Requirements
Under section 148 of the Registration of Titles Act, where a party affixes a mark instead of signing, a certificate of an attesting witness must be inserted beneath the mark. A power of attorney that lacks the required certificate of an attesting witness beneath the donor's mark is not duly executed and is defective.
Competence of Proceedings — Applications Founded on Defective Authority
An application filed by a person purporting to act under a power of attorney that does not authorize the filing of court proceedings and is not duly executed is incompetent and cannot be maintained in law.

Legislation cited (5)

Cases cited (1)

  • Mumtaz Kassam & Another v Ebrahim Kassam & Another [2008] HCB 19

Full judgment

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

Mukasa v Nansikombi & Anor (Miscellaneous Application No 196 of 2015) [2016] UGHCFD 20 (8 July 2016)
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.