SUPREME COURT DELIVERS A LANDMARK DECISION ON CONSTRUCTIVE TRUST, VALIDITY OF A POWER OF ATTORNEY AND ATTESTATION REQUIREMENTS

SUPREME COURT DELIVERS A LANDMARK DECISION ON CONSTRUCTIVE TRUST, VALIDITY OF A POWER ATTORNEY AND ATTESTATION REQUIREMENTS

PATRICK KAUMBA WILTSHIRE VS. ISMAIL DABULE SCCA NO.03 OF 2018

Delivered on 31^st October 2024.

Omongole and Co. Advocates represented the Respondent and the Appellant was represented jointly by Nambale, Nerima & Co Advocates and Candia & D.W.Oundo Advocates.

BRIEF BACKGROUND

Ismael Dabule purchased the suit land in 1976 from Mrs. Georgia Pantelakos. He registered the property in his name and in 1979 before he went into exile he deposited the certificate of title in Libyan Arab Bank and granted powers of Attorney to his wife (the late Jane Kogere Wiltshire) to manage the suit property. The wife applied for a special Certificate of Title when she wanted to secure a loan and she was registered as a proprietor on a special title before she died.

Ismail Dabule returned from exile and he got his duplicate certificate of Title from Libyan Arab Bank. He applied for letters of Administration to continue with a case against his wife in respect to the same property and the same was granted. He sought to cancel the special Certificate of Title of the deceased and the Appellant lodged a caveat. Ismail Dabule filled HCCS no.155 of 2010 against the Appellant for vacation of a caveat and Judgment was entered in his favour at High court. The Appellant then appealed to Court of Appeal, which up held the judgment and orders of the High court. Appellant appealed to Supreme Court which also dismissed his Appeal again with costs.

Supreme Court’s Judgment.

1. The deceased (Jane Kogere Wiltshire) did not hold a legal title to the suit property as her property but as a trustee for the benefit of the respondent.
2. Constructive trusts are imposed by courts of Equity irrespective of the intention of the settlor where justice and good conscience require it. It is equitable for court to impose a constructive trust where the owner came back and wants to use his property.
3. The formal requirements for attestation and registration of a power of attorney do not take away the evidence that the respondent trusted his spouse to manage the suit land which was registered in his names and confirmed  by the deceased in a statutory deposed by the deceased.
4. The respondent could not be the beneficiary and the trustee at the same time and therefore the estate reverted back to him as the beneficiary. In those circumstances he was not approbating and reprobating as such. He was handling his own property issues just as the deceased did on his behalf.

Relevance of the decision.

• Where property is held in trust and the trustee dies, that property passes to the legal representative of the trustee who may continue with the arrangement or renounce it.
• Actions of an agent are binding on the principal where the actions are authorized or incidental to main authorized objective but where they are not authorized, they may not be binding on third parties depending on whether there was ostensible authority.
• Registration of documents does not cure any defect or confer its validity. The purpose of registration is to notify the public and where it emanates from a foreign country, the purpose is for authentication.
• The validity of a power of Attorney depends on the capacity and authority of the donor and the place where the document is made does not affect its validity.

Editors

• Omongole Richard – Managing Partner
• Andrew Mugisha – Legal Assistant