Tabaruka & 10 Others v Middleton & 4 Others (Company Complaint 27635 of 2023) [2024] UGRSB 7 (16 April 2024)


## THE REPUBLIC OF UGANDA

# IN THE MATTER OF THE COMPANIES ACT NO. 1 OF 2012 AS

### **AMENDED**

## IN THE MATTER OF KYADONDO RUGBY FOOTBALL CLUB LTD

### COMPANY COMPLAINT NO. 27635 OF 2023

1. BRIAN TABARUKA & 10 OTHERS::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. JAMES PETER MIDDLETON - 2. JEROLINE AKUBU - 3. MICHEAL DOUGLAS KEIGWIN - 4. PETER BROWSER - 5. ANDREW OWOR :::::::::::::::::::::::::::::::::

### RULING ON THE PRELIMINARY OBJECTIONS

BEFORE: MULIISA SOLOMON, REGISTRAR OF COMPANIES

#### A. Background

1. During the proceedings held on the $2^{nd}$ day of February 2024, counsel for the Respondents Perry Muhebwe from M/S Musiime Muhebwe & Co. Advocates raised two preliminary objections to wit;


- a) The Statutory declarations were defective for being commissioned by Pheona-Wall Nabaasa. - b) The statutory declarations are defective for not conforming to the provisions of the **Commissioner for Oaths (Advocates) Act Cap 5**, on particulars required to be stated in the jurat or attestation clause. - B. <u>Submissions for the Respondents</u> - 2. While submitting on the $1^{st}$ preliminary objection; Counsel for the Respondents stated that the Statutory Declarations were commissioned by Phiona Nabasa Wall who is indicated as a partner on the letterhead of the Applicant's counsel. Counsel argued that **Section** $4(1)$ of the Commissioner for Oaths (Advocates) Act Cap 5 prohibits a commissioner for oaths from administering an oath or taking an affidavit in any proceedings or matter in which he or she is an advocate for any of the parties to the proceedings or concerned in the matter or in which he or she is *interested.* - 3. Counsel further relied on Section 4(2) of the Commissioner for Oaths (Advocates) Act Cap 5 to argue that the above provision applied to statutory declarations. Counsel submitted that this provision is mandatory and any filing made contrary to it, renders the Statutory Declaration defective and fit to be struck out. Counsel referred the court to the case of Fatumah Nakatudde and Anor vs. Makerere University Miscellaneous Cause No. 175 of 2019 to support his argument.

- 4. While submitting on the $2^{nd}$ preliminary Objection; Counsel for the Respondents relied on **Section 6 of the Oaths Act Cap 19** to argue that a commissioner for oaths has to state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken. Counsel stated that the Statutory declaration purportedly sworn by Brian Tabaruka bears the date of $10/01/2024$ ; but exhibits A, B,C1,C2,C3 show that the Statutory Declaration was sworn on $15/01/2024$ , and it does not disclose where the Statutory Declaration was sworn which is in contravention of the rules. - 5. Counsel contended that the Statutory Declaration could not have been sworn on two different dates and therefore, it is unlikely that the deponent did appear before the Commissioner for Oaths either on the $10^{\text{th}}$ or $15^{\text{th}}$ day of January 2024. - 6. On the $1$ <sup>st</sup> preliminary objection, counsel prayed that the two Statutory Declarations be immediately struck out for being defective and in contravention of the mandatory statutory provisions. - 7. On the $2^{nd}$ preliminary objection, Counsel further prayed that the Statutory Declaration be struck out for failure to clarify on which date it was made. - 8. In conclusion, counsel also prayed that the Respondents shall reserve the right to apply for examination of the commissioner for oaths to establish how and when the oath was taken should the tribunal be inclined otherwise, in regard to the 1<sup>st</sup> Statutory Declaration.


- C. <u>Submissions for the Applicants</u> - 9. While responding to the objections; counsel for the Applicants Terrace Musiitwa from M/S Nabasa & Co Advocates, argued that the preliminary objections raised by the Respondents are misconceived and inapplicable to the matter at hand. - 10. While resolving the $1^{st}$ Objection; Counsel relied on Section 4(1) of the Commissioner For Oaths (Advocates) Act Cap 5 to submit that the provision applies to only proceedings in the Magistrate's Court and the High Court whereas this tribunal is neither sitting as a High Court nor a Magistrate's court. Counsel further argued that the authority of Fatumah Nakatudde and Anor v Makerere University HCMC NO. 175 OF 2019 cited by the Respondents does not apply in this matter since in that case, they were proceedings in the High Court wherein the provisions of **Section 4** applied. - 11. Counsel further argued that Pheona Wall Nabasa who commissioned the statutory declaration has never been in personal conduct of the matter right from its inception and has never appeared on record as regards to the matter. Counsel argued that **Section 4 of the** Commissioner for Oaths (Advocates) Act Cap 5 only prohibits Counsel in personal conduct from commissioning affidavits in the same matter as was decided in the case of **Clare S. Kaweesa v Uganda** Free Zones Authority and Frederick Kiwanuka HCMA no. 454 of **2021.**Counsel prayed that the $1$ <sup>st</sup> objection be overruled.


- 12. While submitting on the $2^{nd}$ Objection; Counsel for the applicants argued that this objection is premised on **Section 6** of the Oaths Act **Cap 19** and yet the Oaths Act does not apply to Statutory Declarations which are governed by the Statutory Declarations Act Cap 22. Counsel relied on Section 1 of the Oaths Act Cap 19 which provides; that "the oaths which shall be taken as occasion shall demand shall be oaths" *set out in the First Schedule to this Act,"* to support his argument. Counsel further stated that the First Schedule of the Act sets out the oaths to be taken and the Second Schedule sets out the People to take oath. - 13. Counsel prayed that this objection be overruled. - D. <u>Submissions for the Respondents in rejoinder</u> - 14. In rejoinder to the $1^{st}$ Objection; Counsel for the Respondents disagreed with the interpretation made by the Applicants that **Section** 4 of the Commissioner for Oaths(Advocates) Act, Cap 5 only applies to proceedings before a Magistrate's court or the High Court and does not apply to this tribunal. - 15. Counsel submitted that a full reading of Section 4 of the Commissioner for Oaths (Advocates) Act, Cap 5, clearly gives a commissioner for oaths power to administer oaths, and take any affidavit for the purpose of any court or matter in Uganda including ecclesiastical matters or matters relating to the registration of any instrument. Counsel further argued that Section 4(2) of the **Commissioner for Oaths (Advocates) Act Cap 5 makes all provisions**

relating to oaths applicable to statutory declarations, with necessary modifications.

- 16. Counsel further submitted that Section 288 of the Companies Act, 2012 (As Amended) provides that evidence before the registrar shall be given by statutory declaration or viva voce in lieu of or in addition to evidence by declaration. Counsel argued that **Section 288(1) of the** Companies Act, 2012 (As Amended) was relied upon in the case of Bryan Xsabo Strategy Consultants (Uganda) Limited and 20rs vs Great Lakes Energy Company N. V Company cause no 13 of 2020. Where Justice Ssekaana noted "the registrar functions as a quasi-judicial body and is required to act judicially and evaluate the evidence against the *complaint made in accordance with Companies Act. In that case where there* was no statutory declaration on record supporting the complaint, he found *that it had been a procedural irregularity."* - 17. Counsel argued that under Section 288(1) of the Companies Act, 2012 (As Amended) statutory declarations made in lieu of evidence by affidavit shall have all the incidents and consequences of evidence by affidavit while Section 288(2) of the Companies Act, 2012 (As **Amended)** puts a registrar in the same position while taking evidence on oath, as a magistrate. Counsel submitted that it is on that basis that Section 4(1) of the Commissioner for Oaths (Advocates) Act Cap 5 applies to all statutory declarations including those filed as evidence in proceedings before this Tribunal.

- 18. Counsel for the Respondents in rejoinder further reiterated their prior submissions, where they cited **Fatumah Nakatudde & Anor. Vs. Makerere University HCMC No. 175 of 2019** where *Justice Ssekaana* struck out an affidavit which had been drawn by the Makerere University legal department and commissioned by the Director of Legal Affairs of the University. Counsel further argued that Fatumah Nakatudde & Anor. Vs. Makerere University (supra) was cited with approval in **Mpanga Farouk v Senkubuge Isaac & Anor (Election Petition No. 15 of 2021)** where the court interpreted **Section 4(1) of the** Commissioner for Oaths (Advocates) Act Cap 5 to mean that " $a$ " commissioner for oaths cannot commission his or her own documents prepared by the firm where the commissioner works or where helshe is *interested".* - 19. The respondents submitted that the decision in **Clare S. Kaweesa** (supra), does not stand since the decision in Manga Farouk (supra), was delivered on the 8th day of September 2021 whereas Clara S. Kaweesa (supra) was delivered on the 6<sup>th</sup> day of August 2021. The respondents reiterated their submissions that the statutory declarations commissioned by Pheona Nabasa-Wall are defective and ought to be struck out. - 20. While submitting on the $2^{nd}$ Objection; Counsel contended that Brian Tabaruka's statutory declaration was made on the $10<sup>th</sup>$ day of January 2024, while the exhibits attached are stated to be annexed to an


affidavit sworn/declared on the 15<sup>th</sup> day of January 2024. Counsel argued that the same statutory declaration could not have been taken on two different dates. Counsel submitted that the exhibit identification for all of the exhibits did not state at what place the statutory declaration was taken and this contradicted Section 7 of the Commissioner for Oaths (Advocates) Act Cap 5 and Rule 9 of the **Schedule** which states that "The forms of jurat and identification of *exhibits shall be those set out in the Third Schedule to these Rules."*

- 21. The Respondents reiterated that Section 4(2) of the Commissioner for **Oaths Act (Advocates) Act Cap 5 applies to statutory declarations, and** reserved their right to apply for a summons to ensure the commissioner for oath's appearance for examination on how the statutory declarations were taken. - E. <u>Determination by the Registrar</u> - 22. The aim of a preliminary objection is to save the time of the Court and the parties by not delving into the merits of a suit because there is a point of law that will resolve the matter summarily. - 23. In the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, the court held that "A preliminary objection consists of a point of law which has been pleaded, or which arises by *clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit"*. A preliminary objection raises a pure point of law which is usually on the assumption that all the facts pleaded by

the other side are correct. It is based on a commonly accepted set of facts as pleaded by both parties. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 24. Furthermore, in the case of M/S Semuyaba, Iga &co. Advocates and Anor Vs. Attorney General of the Republic of South Sudan and 2 Others, Miscellaneous Application No. 0004 OF 2022, Hon Justice *Stephen Mubiru* held that; "*Preliminary objections relate to points of law,*" raised at the outset of a case by the defence without going into the merits of the case. In any preliminary objection, therefore, there is no room for *ascertainment of facts through affidavit or oral evidence."*

- 25. The Respondents in their submissions raised two preliminary objections to wit; - i) The statutory declarations were defective for being commissioned by Pheona Nabasa-Wall. - ii) The Statutory declarations are defective for not conforming with the provisions of the Commissioner for Oaths (Advocates) Act, on particulars required to be stated in the jurat or attestation clause. - 26. I will resolve the preliminary objections raised starting with the $1<sup>st</sup>$ objection, and then proceed to the $2<sup>nd</sup>$ objection in that order.

Preliminary Objections

Objection 1: The statutory declarations were defective for being commissioned by Pheona Nabasa-Wall - 27. This objection is premised on the interpretation of **Section 4 of the** Commissioners for Oaths (Advocates) Act Cap 5. Counsel for Respondents cited various authorities and argued that Section 4(1) of the Commissioner for Oaths (Advocates) Act Cap 5 prohibits a commissioner for oaths from commissioning his or her own documents prepared by the firm where the commissioner works or where he/she is interested. Counsel for the Applicants on the other hand argued that Section 4(1) of the Commissioner For Oaths (Advocates) Act Cap 5 only prohibits Counsel in personal conduct from commissioning affidavits in the same matter. - 28. Section 4 of the Commissioners for Oaths (Advocates) Act Cap 5 in verbatim states:

## 4. Powers of a commissioner for oaths

1) A commissioner for oaths may, by virtue of his or her commission, in any part of *Uganda*, administer any oath or take any affidavit for the purpose of any *court or matter in Uganda, including matters ecclesiastical, matters relating* to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognisance in or for the purpose of any civil proceeding in the High Court or any magistrate's court; except that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he or she is the advocate for any of the parties to the proceeding or concerned in the matter or clerk to any such advocate or *in which he or she is interested.*

- 2) For the avoidance of doubt, a commissioner for oaths may take and receive a *statutory declaration under the Statutory Declarations Act; and accordingly,* any reference to an oath in this Act shall, with the necessary modifications, *include a reference to a statutory declaration.* - 29. The respondents cited the case of **Fatumah Nakatudde & Anor. Vs.** Makerere University HCMC No. 175 of 2019, where court struck out an affidavit which had been drawn by the Makerere University legal department and commissioned by the Director of Legal Affairs of the University. The learned judge found that since Henry Mwebe was the Director of Legal Affairs he was interested in the matter as a legal adviser to the institution. - *30.* The respondents further relied on **Mpanga Farouk v Senkubuge Isaac & Anor (Election Petition No. 15 of 2021)** where the court interpreted Section 4(1) of the Commissioner for Oaths (Advocates) Act Cap 5 to mean that "... a commissioner for oaths cannot commission his or her own *documents or documents prepared by the firm where the commissioner works* or where he/she is interested". They argued that in that case, the court noted that since Lukwago and Co Advocates drew and filed the affidavit and the affidavit was commissioned by Nampeera Juliet who worked at Lukwago & Co. Advocates, which represented the petitioner, the affidavit commissioned by her was incurably defective. - 31. The Applicants on the other hand relied on the case of **Clare S**. Kaweesa v. Uganda Free Zones Authority & Anor H. C. M. A No. 454

of 2021 where the court cited with approval the case of Okidi & 4 Others v. Odok W, Election Petition No.9 of 2011 and stated that; "the provision under Section 4(1) of the Commissioner for Oaths (Advocates) Act *Cap 5 only prohibits a commissioner for oaths to "exercise any powers given* by this section in any proceeding or matter in which he or she is the advocate for any of the parties to the proceedings or concerned in the matter $\ldots$ or in which he or she is interested. I do not read into that provision a requirement that a member of the same law firm cannot commission affidavits in a matter in which another Counsel from the same firm is in personal conduct. The *authority to commission oaths is personal to holder and is not issued to an advocate as a member of a particular firm."*

- 32. While resolving this issue, I am inclined to agree with the authority of **Mpanga Farouk v Senkubuge Isaac & Anor (Election Petition No. 15)** of 2021) relied on by Counsel for the Respondents where the court interpreted Section 4(1) of the Commissioner for Oaths (Advocates) **Act Cap 5** to mean that "..a commissioner for oaths cannot commission his or her own documents or documents prepared by the firm where the *commissioner works or where he/she is interested".* - 33. From the perusal of the pleadings on the court record, it is not in dispute that Pheona Nabasa-Wall is an advocate and Partner in Nabasa and Co. Advocates. The argument fronted by the Counsel for the applicants that the authority to Commission Oaths is personal to the holder and is not issued to the firm does not apply in these


circumstances because the client doesn't give instructions to an individual advocate but rather instructs a law firm.

- **34.**Furthermore, the documents of the Petitioners herein do not bear the name of the individual advocate that drew them but that of the firm. Similarly, it is clear that Phoena Nabasa-Wall who commissioned the statutory declarations is a partner on Nabasa & Co. Advocates as indicated on the law firm's letterhead. It is pertinent to highlight that a law firm is not a body corporate; rather it is a partnership and all actions of the partners and agents thereof, bind each in their individual capacity. Therefore, the actions of the commissioner in this case are actions of the law firm See; Mpanga Farouk v Senkubuge Isaac & Anor (Supra). - 35. Therefore, I find it unlawful for Pheona Nabasa-Wall to commission a statutory declaration sworn on behalf of the Petitioners, as it is contrary to the **Commissioners for Oaths (Advocates) Act Cap 5.** - 36. Section 4(1) of the Commissioner for Oaths (Advocates) Act Cap 5 prohibits a commissioner for oaths from "*exercising any powers given* by this section in any proceeding or matter in which he or she is the advocate for any of the parties to the proceedings or concerned in the *matter ... or in which he or she is interested"*. The fact that Pheona Nabasa-Wall is a partner in the law firm representing the Petitioners is compelling evidence that she clearly has interest in the ongoing case.

- 37. The Statutory declarations commissioned by Pheona Nabasa-Wall are therefore, struck out for being in breach of the Commissioner for Oaths (Advocates) Act Cap 5. - **38.**However, the striking out of the Statutory Declaration does not necessarily imply that the Complaint is also struck out per se, but rather the application stands on the principles of law. The tribunal will review the evidence provided by the applicants' viva voice and submissions on the law as presented by counsel pursuant to **Section** $288(1)$ of the Companies Act No.1 of 2012 as amended. - 39. The $1^{st}$ objection is thus answered in the affirmative.

- 40. Counsel for the Respondents relied on **Section 6 of the Oaths Act Cap** 19 to argue that a commissioner for oaths has to state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken. - 41. Counsel for the Respondents contended that Brian Tabaruka's statutory declaration was made on the 10<sup>th</sup> day of January 2024, whereas the exhibits attached are stated to be annexed to an affidavit sworn/declared on the 15<sup>th</sup> day of January 2024. Counsel argued that the same statutory declaration could not have been taken on two


Objection 2: The Statutory declarations are defective for not conforming with the provisions of the Commissioner for Oaths(Advocates)Act, on particulars required to be stated in the jurat or attestation clause.

different dates. Counsel stated that the exhibit identification for all of the exhibits did not state at what place the statutory declaration was taken and this further contravened **Section 7** of the **Commissioner for** Oaths (Advocates) Act and Rule 9 of the Schedule.

42. Rule 9 which under Section 7(2) of the Commissioner for Oaths (Advocates) Act Cap 5 is deemed to have been made under the powers conferred by Section 7(1) states that;

"*The forms of jurat and identification of exhibits shall be those set out in the Third Schedule to these Rules."*

- 43. The form requires that the date and location and/or place where the Statutory Declaration is sworn should be properly indicted. - 44. *Section 6 of the Oaths Act, cap 19,* provides that:

"Every Commissioner for Oaths, or Notary Public before whom any oath or *affidavit is taken or made under this Act shall state truly in the jurat or* attestation at what place and on what date the oath or affidavit is taken or made."

45. Further, Section 5 of the Commissioner for oaths (Advocates) Act, *Cap.* 5 provides that:

"Every Commissioner for oath before whom an oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the affidavit or oath is taken or made." **Emphasis mine.**

46. I have reviewed exhibits A, B, C1, C2 and C3 attached to the statutory declaration and they do not conform to the format in the Third


Schedule to the Commissioner for Oaths (Advocates) Act Cap 5 because they do not state where the statutory declaration was taken, despite being variously endorsed by the Commissioner for Oath.

- 47. Counsel for the Respondents objected to the Applicant's application on the ground that the statutory declaration in support thereof, and attached exhibits do not conform to rule 9 of the third schedule to the **Commissioner for Oaths (Advocates) Act Cap 5.** The rule prescribes that the forms of jurat and of identification of exhibits shall be those set out in the Third Schedule to the rules. - 48. From the above provisions, it is clear that the requirement is mandatory and that both the date and the location must be specified. I am not persuaded by the argument of counsel for the applicants that the provision is limited to oaths of office indicated in the First Schedule. - 49. In the case J. B. Magara vs. Katehangwa HCT-05-MA-0143-2000 the Hon. Justice P. K. Mugamba (as he then was) stated that; "the affidavit in question does bear a date in the jurat. It also contains the stamp of the *Commissioner for Oaths Zagyenda Joseph of some post office number K'la. To* my mind that is no indicator of where the affidavit was sworn. The same *Commissioner for Oaths would obviously use the same stamp if the affidavit* was sworn in Kisoro because all he could be showing would be his identity rather than the place where the affidavit was sworn. I agree with counsel for


the respondent that the affidavit offends against Section 6 of the Oaths Act *and is therefore defective."*

- 50. I must refer also to **Section 43 of the Interpretation Act** which states: "*Where any form is prescribed by any Act, an instrument or document* which purports to be in such form shall not be void by reason of any deviation from that form which does not affect the substance of the instrument or document or which is not calculated to mislead." - 51. Furthermore, Allen J (as he then was) in *Katondwaki vs\_Biraro* [1977] **HCB 33** held inter alia that "when dealing with rules of procedure it is no longer necessary to follow the strict requirement concerning form. The irregularities of the form may be ignored or cured by amendment if they have occasioned no prejudice." - 52. I am at one with that proposition but, must note that the requirement for noting the date and the place where the statutory declaration was sworn are matters of substance not form. - 53. A statutory declaration is self-evident hence, the statutory inclusion of details such as dates, names of persons and names of places are mandatory if the document has to qualify for what it is intended to be. Neither Article 126 (2) (e) of the Constitution nor any authority for the time being can be used to wish away the statutory requirement because it is of substance rather than form. - 54. With reference to the evidence on record, the Commissioner for oath did not state the place where the statutory declaration was taken and


this amounted to an irregularity that will render the statutory declaration defective.

- 55. The Applicant's exhibits and statutory declaration are hereby struck out for being in contravention of Rule 9 of the third schedule to the **Commissioner for Oaths (Advocates) Act Cap 5.** - 56. For the above reasons, the Respondent's objections are upheld with no order made as to costs.


**Registrar**

16/04/2024