Kisembo v Kasasira & 6 Others (Miscellaneous Cause 1 of 2024) [2025] UGHC 32 (8 January 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CV-MC-0001-2024**

**(FORMERLY HCT-01-CV-MC-0005-2024)**

**KISEMBO BEN==============================================APPLICANT**

**VERSUS**

1. **KASASIRA GODFREY** 2. **KASEREKA SIMON** 3. **MURANGA SAM** 4. **ALINAITWE PATRICK ALIAS NGURUSI** 5. **WEKESA PETER** 6. **AHARIZIRA GODFREY** 7. **RUGENDABARA COOPERATIVE SOCIETY FARMING LTD=====RESPONDENTS**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**RULING**

**REPRESENTATION:**

Applicant represented by M/S Ahabwe James & Co. Advocates.

Respondent represented by M/S Nyakaana-Mabiiho & Co. Advocates.

**BACKGROUND:**

This application is brought by way of Notice of Motion under Sections 75(a), 18A(6) and 18A(7) of the Cooperative Societies Act; Regulation 25(2)(e) of the Cooperative Societies Regulations; and Order 52 of the Civil ProcedureRules by which the Applicant seeks orders that:

1. A declaration that the 1st Respondent was not legally elected as the Chairperson of the Rugendabara Cooperative Farming Society Ltd. 2. The declaration that the 1st Respondent as Chairperson of Rugendabara Cooperative Farming Society Ltd be set aside. 3. The resolution of the 3rd, 4th, 5th and 6th Respondents appointing the 1st Respondent as a principal signatory of the bank account of Rugendabara Cooperative Farming Society Ltd was unlawful. 4. The above-mentioned resolution be set aside. 5. Fresh elections be conducted for a Chairperson of Rugendabara Cooperative Farming Society Ltd. 6. The newly elected board be dissolved and the former board reinstated. 7. An audit exercise be conducted following the illegal office bearing from 2021 to date to ascertain the true financial position of the subject cooperative society. 8. Costs of this cause be provided for. 9. Any other relief to meet the ends of justice.

The Notice of Motion is supported by the affidavit of the Applicant Kisembo Ben wherein he laid out the following grounds.

The Applicant is a member of the 7th Respondent and was previously a member of the vetting committee of the 7th Respondent at the time of the illegal declaration of the 1st Respondent as Chairperson of the 7th Respondent. The 1st Respondent was illegally elected as Chairperson on 2nd June 2021 and is conducting illegal transactions on the 7th Respondent’s bank account. The 2nd Respondent illegally declared the 1st Respondent as Chairperson while the 3rd, 4th, 5th and 6th Respondents illegally nominated as and resolved that the 1st Respondent be principal signatory to the 7th Respondent’s bank account. The 7th Respondent is a necessary party to the cause and will be affected by the orders of the court. It is fair, just and equitable that the cause be allowed.

The 1st Respondent Kasasira Godfrey swore an Affidavit in Reply to the Miscellaneous Cause by which he contended that he was the rightfully elected Chairperson of the 7th Respondent having been duly elected on 30th March 2023 at a special General Meeting convened in accordance with the relevant bye-laws, laws and regulations. Furthermore he contended that the application was bad in law having been founded on wrong provisions of the law. The election was conducted by a vetting committee established on 2nd June 2021 of which committee the Applicant is not a member.

The 1st Respondent further contended that the Applicant’s contentions were premised on issues that took place long before he was elected Chairperson of the 7th Respondent. It was further explained that the issues in question culminated in an arbitration meeting held on 7th October 2022 by which it was proposed that the society bye-laws be amended to avoid recurrence of similar disputes. It was after the passing of the amended bye-laws that the 1st Respondent was elected Chairperson on 30th March 2023. The 1st Respondent further averred that his election was done in accordance with the Cooperative Societies Act and the society bye-laws which bind all the members.

In further reply to the Application, one Mugarura Alex swore an Affidavit in Reply in his capacity as member of the vetting committee elected on 2nd June 2021. By this Affidavit, the deponent confirmed participation in the election of 30th March 2023 at which the 1st Respondent was elected Chairperson. He further averred that the election was lawfully and unchallenged and that furthermore the Applicant was no longer a member of the vetting committee at the time. It was also averred that the Applicant’s contentions were in relation to a previous election for which the 1st Respondent duly stepped aside.

In further reply to the Application, one Aharizira Godfrey (6th Respondent) swore an Affidavit in Reply in capacity as Secretary of the Board of the 7th Respondent and also contended that the 1st Respondent was the lawfully elected Chairperson of the 7th Respondent and was the legally mandated principal signatory to the 7th Respondent bank account.

In further reply to the Application, the 2nd Respondent Kasereka Simon swore an Affidavit in Reply by which he contended that it was not true that the 1st Respondent was illegally elected. He further contended that the 1st Respondent had been validly elected after a waiver of Section 40(b) of the Society bye-laws had been granted. It was after this waiver that the 1st Respondent had been validly elected having been previously barred by Section 40(b) of the bye-laws. It was therefore contended that the election was lawfully conducted and that the 1st Respondent is the lawfully recognized Chairperson of the 7th Respondent.

**Applicant’s Submissions:**

Counsel for the Applicant submitted that the 1st Respondent never applied for the position of Chairperson and that furthermore he had not appeared before the vetting committee of the 7th Respondent contrary to Section 18A(6) of the Cooperative Societies Act. His election was therefore illegal to that extent.

Counsel further submitted that under Regulation 25(2)(e) of the Cooperative Societies Regulations, a person shall not be elected to the Board of a Cooperative Society if they carry out any business similar to that of the cooperative society. Counsel further argued that the 1st Respondent had previously been dropped as a candidate for Chairperson as he was running a business similar to that of the society.

It was further contended that the 1st Respondent had been made a signatory to the 7th Respondent bank account during the pendency of a directive by the Registrar of Cooperatives requiring the 1st Respondent to step aside as Chairperson of the society.

Counsel prayed for Court to set aside the election of the 1st Respondent and to also find that the society board was illegally elected and should be dissolved and the board of 2nd June 2021 be reinstated.

**Respondents’ Submissions in Reply:**

Counsel for the Respondents submitted in reply that the Applicant’s complaint was primarily against the 1st Respondent and that the complaint against the 3rd to 6th Respondents was unclear and ought to be dismissed for lack of a cause of action.

It was further contended that the Application was misconceived as there is no Section 75(a) in the Cooperative Societies Act. Section 75 instead provides in general for appeals against decisions of the Board and yet there is no decision of the Board evident in the instant application. The matter in issue relates to a decision arising from a General meeting and furthermore there is no minute or resolution of the Board cited in this matter.

Counsel for the Respondents further contended that Section 18A(6) of the Cooperative Societies Act relates to the term of office for Board members and had nothing to do with the electoral process. It was further argued that the 1st Respondent’s lack of application for the position was not fatal as there is no specific requirement to apply and that furthermore he had previously submitted documents for the position which documents were taken into consideration. It was further argued that there was no injustice, unfairness, partiality or prejudice occasioned to any person by the consideration of the 1st Respondent for the position despite having not applied.

It was further argued that the 1st Respondent had been duly elected long after the Applicant ceased to be Chairperson of the Vetting Committee but that the Applicant had never come to terms with this position. Furthermore Counsel for the Respondents maintained that a waiver had been granted by the Registrar of Cooperatives in terms of Section 40(d) of the bye-laws and that furthermore the bye-laws had been subsequently amended. Counsel further argued at length that the exclusion of the 1st Respondent in previous elections was on account of Section 40(d) but this was never elaborated upon. Subsequent amendment ensured that the 1st Respondent was no longer affected by reference to growing of crops and value addition.

In summary Counsel for the Respondents argued that the Application was premised on bad faith and lacked evidence of that the 1st Respondent was involved in activities excluding him from being elected as Chairperson of the 7th Respondent.

**Applicant’s submissions in Rejoinder:**

By way of rejoinder Counsel for the Applicant argued that the Respondents’ written submissions had been filed without leave outside of the time set by court and prayed that the submissions be struck off the court record.

Notwithstanding the above, Counsel for the Applicant contended that the inclusion of the 3rd to 6th Respondents was on account of the fact that they had participated in a resolution making the 1st Respondent a signatory to the 7th Respondent’s bank account.

Counsel further maintained that the involvement of the 1st Respondent in previous elections of 20th May 2021 and 2nd June 2021 could not serve to validate his candidature in the most recent elections and that his participation was in contravention of Section 18A(6) and 18A(7) of the Cooperative Societies Act.

It was further contended that the 1st Respondent having been dropped as Treasurer in 2017 over conflict of interest was not qualified to stand for the position and that furthermore the amended bye-laws had not been tendered in court to prove that he was no longer in conflict of interest.

**ANALYSIS:**

I have taken note of the arguments of learned Counsel for the Applicant regarding the Counsel for the Respondents’ filing of submissions outside of the time-frame specified by the Court. I do agree that indeed the Respondents did file their submissions out of time without leave of court. However, given the contentious nature of this matter, I will exercise discretion under Section 96 of the Civil Procedure Act to allow the submissions but the Respondents shall be penalized with costs for the late filing.

Based upon the pleadings and submissions in this matter I find that this Court is faced with determination of the following issues:

1. Whether the application has been properly filed before this Court. 2. If the first issue is resolved in the affirmative then whether the 1st Respondent was lawfully elected as Chairperson of the 7th Respondent. 3. Whether there was a lawful resolution by the 3rd, 4th, 5th and 6th Respondents appointing the 1st Respondent as principal signatory to the 7th Respondent’s bank account. 4. Remedies available to the parties.

As concerns whether the application has been filed properly before this Court, the Applicant relied upon Sections 75(a), 18A(6) and 18A(7) of the Cooperative Societies Act and Regulation 25(2) of the Cooperative Societies Regulations.

Counsel for the Respondents contended that Section 75(a) of the Cooperative Societies Act did not exist and that Section 75 of the Act provided in general terms for appeals against decisions of the Board for which elections being decisions of the general assembly could not qualify.

As concerns appeals it is well settled that the right of appeal is a creature of statute and that there is no such thing as an inherent right of appeal (see **Lukwago v Attorney General – SCCA No. 6 of 2014**).

Section 75 of the Cooperative Societies Act which is now Section 144 under the current edition of the Laws of Uganda provides that a person aggrieved by the decision of the Registrar under Section 73 (now Section 141) or by virtue of any other provisions of the Act may apply to Court for redress.

While Counsel for the Respondent correctly contended that the Applicant placed reliance on a non-existent Section 75(a) I am mindful of Section 100 of the Civil Procedure Act whereby this Court may at any time, upon such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceedings in a suit; and all necessary amendments shall be made for the purpose of determining the real question of issue raised by or depending on such a proceeding.

In this matter it is clear to me that the reference to Section 75(a) was a careless error by Counsel for the Applicant which error is easily rectifiable because the question here is whether the relevant section in its correct form relates to the issue this Court seeks to determine. In my view the Section in its correct form is relevant and once amended to reflect Section 75(1) becomes automatically relevant to resolving the issue of whether this application is correctly before this court. Therefore in accordance with Section 100 of the Civil Procedure Act and for purposes of resolving this issue the reference to Section 75(a) of the Cooperative Societies Act in the Applicant’s pleadings is accordingly amended to reflect Section 75(1) of the Cooperative Societies Act.

In further consideration of Section 75(1) as cited above, I find that the argument by Counsel for the Respondent that the section relates to appeals to Court against decisions of the Board erroneous. In making this argument Counsel failed to take into account the 2020 amendment which removed the reference to appeals to Court against decisions of the Board and substituted it by creating a right of application to court against decisions of the Registrar under Section 73 (now Section 141) or any other provisions of the Act.

The matter before this Court is therefore by virtue of Section 75(1) [now 144(1)] an application and not an appeal. This being the case the question then becomes whether the question of election of the 1st Respondent was effectively a decision of the Registrar under the provisions of the Cooperative Societies Act. This is because an application under Section 75(1) of the Cooperative Societies Act can only arise from a decision of the Registrar in accordance with the provisions of the Cooperative Societies Act. I have perused the Cooperative Societies Act and duly noted that both the Act and Statutory Instrument are generally silent when it comes to the procedure of election of a Chairperson for a Cooperative Society. This is probably because such matters would ideally be considered internal processes for the relevant society and would most likely be the subject of society bye-laws. Unfortunately though neither the Applicant nor Respondents saw fit to present the bye-laws in evidence in this matter.

However, notwithstanding the absence of the bye-laws, it can also be reasonably assumed from certain provisions of the Cooperative Societies Act and the attendant regulations that the election of the Chairperson falls outside the decision making authority of the Registrar.

Regulation 17(1) of the Cooperatives Societies Regulations provides that the supreme authority in a registered society shall be vested in the general meeting of members at which every member has the right to attend and vote.

Regulation 20(e) provides that the annual general meeting of a registered society shall elect members of the committee for the ensuing year.

Section 1 of the Cooperative Societies Act defines committee to mean the governing body of a registered society to which the management of its affairs is entrusted and includes a board of directors.

From the provisions above, one can reasonably deduce that it is the general meeting of the members of a Cooperative Society which is the appointing authority of the members of the governing body of the Cooperative Society which body includes the post of Chairperson. From this deduction, it is apparent to me that the Application is left without a clear foundation. This is because by the Applicant’s own pleadings, he primarily takes exception to the declaration of the 2nd Respondent that the 1st Respondent is the legally elected Chairperson of the 7th Respondent.

As is evident from the provisions of the Act and Regulations cited above, the 2nd Respondent is not legally mandated to declare the Chairperson of the Cooperative Society except where specifically provided in the bye-laws which bye-laws this Court has not had the benefit of examining in evidence. To that extent, I do find that without specific evidence that the 2nd Respondent was effectively the appointing authority of the 1st Respondent as Chairperson of the 7th Respondent, there is no clear cause of action in this matter.

Even if this Court were to assume that the 2nd Respondent was the appointing authority of the 1st Respondent to be Chairperson of the 7th Respondent, the automatic question would arise as to where the 2nd Respondent derived the authority as no such authority is apparent in the Act or Regulations. The Applicant would also need to specifically adduce evidence in this regard in order to prove that the 2nd Respondent was not the legally mandated appointing authority before this Court could proceed to nullify the appointment of the Chairperson.

It is well settled that in order for a plaintiff (in this case the Applicant) to be able to sustain a cause of action, the plaintiff or applicant must have enjoyed a right; the right must have been violated, and; the defendant (in this case respondent) must be liable (see **Auto Garage v Motokov [1971] EA 314**).

Furthermore in **Al Hajj Nasser N Ssebagala v AG & Others – Constitutional Petition No. 1 of 1999,** the Constitutional Court held *inter alia* that a cause of action means every fact, which if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of court. In the instant application, it was incumbent upon the applicant to prove the fact that it was on the basis of the 2nd Respondent’s legal mandate that the 1st Respondent was established in the office of Chairperson of the 7th Respondent. No such evidence was brought before this Court whether in terms of the provisions of the Act, Regulations or Bye-laws.

This leaves this Court with no basis upon which to determine that the Applicant had a right and if so whether it had subsequently been violated. In order for the Applicant to claim a violation of a right in this matter, it must first be demonstrated that the one against whom he claims a violation had a legal mandate and subsequently in the exercise of the legal mandate, he acted illegally to the detriment of the Applicant’s right(s). To allege that the 2nd Respondent acted illegally without either proving he had the mandate to act or that he lacked the same entirely is to put the cart before the horse. The mandate must first be established before the legality of the acts flowing from the mandate can be questioned. If the mandate is lacking altogether then the legality of the acts leading to the violation become moot unless the mandate of the 2nd Respondent itself was in issue which in this case it was not.

In light of the foregoing I do find that while there is no legal bar to the form of this application, the substance of the application discloses no cause of action upon which this Court can rely to grant the reliefs or remedies sought. The acts attributed to the 2nd Respondent with regard to declaring the 1st Respondent Chairperson of the 7th Respondent were not proved to arise from a legal mandate. The application therefore fails for lack of a cause of action.

The first issue having been resolved in the negative, I find no reason to traverse the subsequent issues as they were dependent on the first issue being resolved in the affirmative.

**ORDER:**

This application is accordingly dismissed with costs to the Respondents

I so order.

Ruling delivered this 8th day of January 2025.

**David S. L. Makumbi**

**JUDGE**