Adyera Robert and Others v Opwonya Noah and Others (Miscellaneous Application No. 060 of 2010) [2010] UGHC 235 (30 June 2010)
Full Case Text
THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU MISCELLANEOUS APPLICATION NO. 060 OF 2010
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## BEFORE: HON JUSTICE REMMY KASULE
## JUDGMENT
The applicants seek prerogative orders of certiorari, prohibition and injunction against the respondents. They also seek general damages and costs.
The applicants' case arises out of a meeting of 5<sup>th</sup> June, 2010, at Gulu Public Primary School, Gulu Municipality, whereby the applicants were removed from office as Executive members of Acholi War Debt m uebt Claimants Association, and the respondents (or oi them.) were voted in office by way of replacement.
applicants came to court pursuant to section 36 of the Judicature Act, Cap 13, and under Rules 6, 7 and 8 of the Judicature (Judicial Review) Rules: SI 1-1 of 2009.
In his statement on oath/Affidavit dated 8\* June 2010, in support of the application, paragraph 4 thereof, the first applicant, Mr. Adyera Norbert, asserted that the Acholi War Debt Claimants' Association was registered with the registrar of companies as a Company limited by Guarantee and having no shares and that he was appointed as the Chairman/Executive Director thereof. The same assertion is made by Mr. Nyeko Paulinus in his statement on oath/Affidavit of the same date. A copy of the Memorandum and Articles of Association is annexed to the said statements of Adyera Norbert and Nyeko Paulinus. In the said Memorandum and Articles of Association, the names and signatures of the applicants, except only two: Celestino Lanek and Onek Albino, appear as subscribers, to the said Memorandum and Articles of Association of the Company.
It is therefore unexplained, given the above state of facts, how, the same first applicant, Mr. Adyera Norbert, as well as the second applicant, Mr. Nyeko Paulinus, go on to assert on oath in their supplementary statements on oath/Affidavits of 10\*. June 2010, to the effect that the Acholi War Debt
Claimants Association was fraudulently converted by the lobbying group of the $1^{st}$ , $2^{nd}$ and third respondents, from an association into a Company Limited by Guarantee; and subsequently fraudulently registered as such. Court received no explanation from the concerned applicants as to how they came to have their names and signatures to be part of subscribers to a process that was fraudulent. The absence of an explanation undermines the credibility of the two stated applicants, as witnesses of truth, to this application.
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The applicants seek relief by way of prerogative orders. On the basis of the pleadings and submissions of the applicants, the Acholi War Debt Claimants Association is a private body of individuals, later turned into a company, whose mission is to unite those persons whose livestock and/or property were destroyed during the insurgency so that they are adequately compensated.
The nature of the applicants claims against the respondents, as well as the parties themselves, being purely private in nature, it is inappropriate of the applicants to move court seeking prerogative orders by way of relief. This is because the law as to prerogative relief has been stated thus:-
" But the bodies to which in modern times the remedies of the prerogative units have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of
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subjects $\mathrm{w}\mathrm{ho}$ may have to submit their to jurisdiction": See Lord Goddard C. J in R. V National Joint Council for Dental Technicians ex parte Neate (1953) 1QB 704 at 707.
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Relief by way of prerogative orders applies to statutory bodies performing Public duties with an obligation to act judicially. The duty to act judicially arises from the public body's legal authority to make decisions or take action which affects the rights of subjects.
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Prerogative orders relief, as a remedy, does not apply to purely private, domestic organizations. Thus the remedy is not available to challenge the legality of decisions of bodies where the relationship between or amongst the parties concerned is based on a privately concluded arrangement, be it contractual or otherwise: see: PIUS NIWAGABA VS LAW DEVELOPENT CENTRE (2006) HCB VOL. 1 P.76
See also: MICHAEL OMOLE OCHARO AND OTHERS AND THE COUNCIL OF LEGAL EDUCATION: KENYA HIGH COURT MISCELLANEOUS APPLICATION NUMBER 917 OF 1996: unreported.
Given the above position of the law, as well as the parties involved in this cause, the facts and submissions relied upon by the applicants and respondents, this court holds that the dispute in issue revolves upon matters that are private in nature, involving private parties, and as such, the prerogative remedy of judicial review is not available to the applicants.
lhe applicants ou^ht . fc,nr have moved this court either by ordinary civil suit piocess, or through some other procedure P P y provided for by the law, but not through prerogative orders relief.
rr'i\_ • the. ordinary course of events, would have ^.8Tn^88ec^ the applicants application'as being misconceived. However this court is enjoined by Article 126(2) (e) of the Constitution, to, in adjudicating cases, subject to the law, to apply the principle of administering substantive justice without undue regard to technicalities.
It will not assist, the cause of justice, in the judgment of this court, if this application, is just, dismissed, without this court, with the materials before it, by way of pleadings and submissions, however imperfect, dealing with the actual issue in dispute. This is the more so, because as long as the dispute remains unresolved many ordinary members of the Association are likely to continue suffering due to the unsettling of their respective claims.
The issue in dispute is the leadership of the Acholi War Debt Claimants Association.
The Association is a product of the armed conflict between the Lord's Resistance Army rebels and the Government of Uganda that went on m Acholiland, and generally in Northern Uganda, for a period of over twenty (20) years since about 1987.
In the course of this armed conflict, many ordinary members of the public in Acholiland lost their cattle, goats, pigs, poultry and other domestic animals and birds, as well as other valuable properties.
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With the return of peace to Acholiland, and generally Northern Uganda, after the armed conflict had been overcome by Government, a number of people organized themselves, as private individuals, into the Acholi War Debt Claimants' Association, with the aim of pursuing claims of compensation from the Government of Uganda for the animals and other properties lost during the conflict.
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The process of pursuing and settling claims, is currently an on going process, with the Association having filed a civil suit in this court, and the Government, through a consent settlement, having agreed to pay, and actually paying now and then, the verified claims of some individuals, through the Association. Thus any leadership wrangles in the Association, amongst the members, adversely affects the process of in turn results in This these claims. $\quad\text{ of }\quad$ settlement unnecessary suffering to the members of the Association.
The evidence available to court is that the Association was started as a body of individuals with no corporate capacity, but with a constitution that was registered with the Registrar of Instruments on or about 4<sup>th</sup> July, 2006. Later on, on/or about 6<sup>th</sup> May, 2008, the Association was registered as a co any lim<sup>i</sup> <sup>p</sup> <sup>h</sup> <sup>t</sup>\_ a oy Guarantee and having no shares, and thus became a ne a corporate body.
'T<sup>A</sup>'L 1S C0Urt has already dealt and rejected some of the PP ants denial that they were not part of those members of the Association who registered the Association as a company limited by Guarantee and having no shares.
The applicants have, since 2005, been the leaders of the Association. Under article 8 of the constitution, which was applicable before the Association became a company, the leaders of the Association were to Jaold office for three (3) years, and were individually eligible to be elected for two consecutive terms. The election was to b\_e. Aonmby.members at the Association's Annual General meeting.
When the Association became a company, according to Article 2(1) of the Articles of Association, the Association is supposed to be managed by a Board of five (5) members, elected by the General Assembly of members of the Association every two (2) years. The Board is constituted by the Executive Director, two directors, the Secretary, The Treasurer and Publicity Secretary.
The\_essence\_oT-the\_dispute\_is-that\_since\_.the—applicants were elected to office at the inception of the Association in 2005, or thereabout, there has been no election or re-election of new office bearers for, the Association either under the original constitution, or under the Articles of Association, when the Association became a company. No annual General
 m ings <sup>01</sup> othei lawful meetings of the Association have been held.
ome members of the Association dissatisfied at the y Association was., being run, a requisition for the \ CV" g al meeting of the Association -was done to the office of Resident District Commissioner, Gulu, and later to the Minister of State, Northern Uganda, Prime Minister's office, Kampala. This was during the period April and May 2010.
It was as a result of this requisition, that on 5th June, \ 2010, at Gulu Public Primary school, Gulu Municipality, a meeting of members of the Association also attended by other Central Government representatives and civic leaders of some Local Governments, where the Association operates, was held, voted the applicants out of office and elected the respondents into office as leaders of the Association. The applicants, opposed to what happened, sought relief from this court through this application.
This court has studied the minutes of the meeting of 5th June, 2010, which are annexure "C" to the first respondents' affidavit in reply.
The minutes are signed by Mr. Yusuf Okwonga Adek as chairman/Chief Petitioner and Mr. Labeja George as petitioner/secretary.
The minutes do not show that the meeting before T'M commencing its business elected the two respective gentlemen to those respective offices.
It appears that Mr. Yusuf Okwonga Adek self made himself chairman of the meeting by virtue of being Chief petitioner, and Mr. Labeja George became secretary by virtue of being a petitioner for the meeting. They were not elected by the meeting to the two respective offices. This is contrary to law. A person who assumes the functions of the chairperson of a general meeting without being designated by or appointed or elected under the Articles of the company has no legal powers and his/her acts and decisions are void and ineffective: See CATESBY V BURNETT (1916) 2 Ch. 325. The minutes also show that other people, not necessarily members of the Association deliberated and influenced the business of the members at the meeting. Minutes 9, 10 and 11 are examples of this. The deliberations of the meeting concerning the business of the meeting and its decisions ought to have been left to only the members of the Association.
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Lastly, the minutes do not show, in any way, how; and at what stage of the meeting, were the elections of the respondents into office, and the ousting of the applicants from office, were held.
It is in minute 13 of the minutes headed: Acceptance remarks and closing speech by chairman elect, Engineer Noah Opwonya, that reference is made to the chairman LCV 250 Hon. Kitara Makmot and his deputy speaker, Mr. Patrick Lumumba, for their having conducted "the most free and good election, free of corruption and rigging" The above
remarks are hardly any evidence as to how the elections were held by the meeting, and with what results.
For the above reasons, this court holds that the meeting of 5<sup>th</sup> June, 2010, at Gulu Public Primary School, cannot be a valid basis whereby the applicants were voted out of office as leaders of the Acholi War Debt Claimants Association, and the respondents were voted into office to lead the Association.
It is a fact, not in any way controverted by the applicants, that the term of each one of them to serve in the office, each one holds in the Association, expired a long time ago. Therefore each of the applicants, is in the office of the Association, each one holds, by default. Such a situation, which amounts to violation of the Articles of Association of the Association as a company (and even the original constitution of the Association, in respect of those applicants who purport to deny the existence of the Association as a company), as well as the Companies Act, Cap.110, cannot be allowed to be continued by the applicants to the detriment of the other members of the Association.
It is within the powers of this court under section 135 of the Companies Act, Cap 110, for this court to order, that a meeting of members of the Acholi War Debt Claimants 755 Association be held; so as to resolve the issue of leadership of the Association.
This court has to resort to this course of action because the applicants have failed to call such meetings in the past.
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As to the respondents, this responsibility cannot be carried out by them due to the fact that this court has already found and held that the meeting of 5<sup>th</sup> June, 2010, whereby each one of them was voted in office, was, due to various reasons already pointed out, not proper.
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Accordingly this court makes the following orders:
- That a general meeting of all eligible members of the $1.$ Acholi War Debt Claimants Association be held on the 31<sup>st</sup> day of July, 2010, starting at 10.00 a.m at Gulu Public Primary School, Gulu Municipality; or some other appropriate venue, should the one of Gulu Public Primary school, not be available. - That the main agenda of the said meeting shall be the $2.$ following: - $\mathbf{i}$ . Prayer
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- ii. Election of the Chairperson of the meeting who shall conduct the election of office bearers of the Board of the Association, and thereafter submit a report to this court. - Election of the Secretary of the meeting who shall iii. minute the minutes of the meeting. - Election of the members of the Board of the iv. Association, under the supervision of the elected chairperson of the meeting; and under the recording of minutes by the elected secretary of the meeting.
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elected from th SeCreta17 °f the meeting, shall be e ^ernbeis of the Association present at e meeting on 31.<sup>t</sup> July> enmrperson and secretaiy, shall not be eligible to Stand for any of the-elective offices on the Board of the Association. -The Registrar, High Court, Gulu, shall p rvise the election of the chairperson and secretary the meeting, and shall then leave the meeting to carry out the rest of its business of the agenda.
- The applicants and the respondents shall each avail one representative to the Registrar, High Court, Gulu, for purposes of preparing for this meeting including giving notice to members, publicity, securing the venue of the meeting as well as the requisite security. - The meeting shall be attended and decisions thereof taken by only members of the Association, except as herein above stated, in respect of the Registrar, High Court, Gulu, and the Registrar's supporting staff. - The elective offices shall be those constituting the Board of the Association as per Article 2 of the Articles of Association, namely: - i. Executive Director - ii. Two Directors - iii. The Secretaiy - iv. The Treasurer - v. The Publicity Secretaiy.
- 6. Voting at the election shall be as set out in the Articles of Association. - 7. Any other elections necessary to be carried out by the Association shall be arranged and carried out by the Board that will have been put in place on 31st July, 2010. - 8. In the meantime, until a new Board is. put in place, court issues an order ceasing any operations of the bank accounts of the Association as well as any other *<sup>t</sup>* activities of the Association. - 9. The Association shall meet the requisite costs and expenses required for the meeting.
As to costs of this cause, each party is to bear its own. costs.
**30th June, 2010**