Wakilii

Tabaruka 10 Others v Middleton 4 Others (Company Complaint 27635 of 2023)

Tribunal · [2024] UGRSB 7 · 2024 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections to statutory declarations filed in support of a company complaint under the Companies Act 2012
Decision
Statutory declarations struck out; complaint to proceed on oral evidence and legal submissions

Observed later treatment

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Holding

The Registrar upheld both preliminary objections and struck out the applicants' statutory declarations. A commissioner for oaths who is a partner in the law firm representing a party cannot commission statutory declarations for that party, as this violates Section 4 of the Commissioner for Oaths (Advocates) Act. Additionally, statutory declarations must state the place where they were sworn; failure to do so renders them defective under mandatory procedural requirements.

Outcome

Statutory declarations struck out; complaint to proceed on oral evidence and legal submissions

Facts

The applicants filed a company complaint under the Companies Act 2012 concerning Kyadondo Rugby Football Club Ltd. The respondents raised two preliminary objections to the statutory declarations filed in support of the complaint. First, the statutory declarations were commissioned by Pheona Nabasa-Wall, a partner in Nabasa & Co Advocates, the law firm representing the applicants. Second, the statutory declarations failed to state the place where they were sworn, and the exhibits attached showed conflicting dates (10 January 2024 on the declaration itself, but 15 January 2024 on the exhibit identification forms). The respondents argued these defects rendered the statutory declarations invalid under the Commissioner for Oaths (Advocates) Act and the Oaths Act.

Issues

  1. Whether statutory declarations commissioned by a partner in the law firm representing the applicants are defective under Section 4 of the Commissioner for Oaths (Advocates) Act Cap 5.
  2. Whether statutory declarations that fail to state the place where they were sworn and contain conflicting dates on exhibits are defective under Section 6 of the Oaths Act Cap 19 and Rule 9 of the Commissioner for Oaths (Advocates) Act Cap 5.

Orders

  • The statutory declarations commissioned by Pheona Nabasa-Wall are struck out for being in breach of the Commissioner for Oaths (Advocates) Act Cap 5.
  • The applicant's exhibits and statutory declaration are struck out for being in contravention of Rule 9 of the third schedule to the Commissioner for Oaths (Advocates) Act Cap 5.
  • The respondent's objections are upheld.
  • No order as to costs.
  • The striking out of the statutory declarations does not strike out the complaint per se; the tribunal will review evidence provided by the applicants viva voce and submissions on the law pursuant to Section 288(1) of the Companies Act No. 1 of 2012 as amended.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Nature and Scope
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. It raises a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Evidence — Statutory Declarations — Commissioner for Oaths — Conflict of Interest
A commissioner for oaths cannot commission statutory declarations or affidavits in any proceeding or matter in which he or she is the advocate for any of the parties, or is concerned in the matter, or in which he or she is interested. This prohibition extends to a commissioner who is a partner in the law firm representing a party, because a law firm is a partnership and all actions of the partners bind each in their individual capacity.
Evidence — Statutory Declarations — Formal Requirements — Place and Date
Every commissioner for oaths before whom a statutory declaration is made must state truly in the jurat or attestation at what place and on what date the declaration is taken. The requirement to specify both the date and the location is mandatory and goes to the substance of the document, not merely its form. A statutory declaration that fails to state the place where it was sworn is defective and must be struck out.
Civil Procedure — Form and Substance — Mandatory Requirements
The requirement for noting the date and place where a statutory declaration was sworn are matters of substance, not form. Neither Article 126(2)(e) of the Constitution nor any authority can be used to dispense with statutory requirements that are of substance rather than form. A statutory declaration is self-evident, and the statutory inclusion of details such as dates, names of persons, and names of places are mandatory if the document is to qualify for what it is intended to be.
Company Law — Registrar of Companies — Evidence Before the Registrar
Under Section 288(1) of the Companies Act 2012, evidence before the Registrar of Companies shall be given by statutory declaration or viva voce in lieu of or in addition to evidence by declaration. 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 the Companies Act. Statutory declarations made in lieu of evidence by affidavit have all the incidents and consequences of evidence by affidavit.

Legislation cited (8)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Fatumah Nakatudde and Another v Makerere University (Miscellaneous Cause No. 175 of 2019)
  • M/S Semuyaba, Iga & Co. Advocates and Another v Attorney General of the Republic of South Sudan and 2 Others (Miscellaneous Application No. 0004 of 2022)
  • Bryan Xsabo Strategy Consultants (Uganda) Limited and 2 Others v Great Lakes Energy Company N.V (Company Cause No. 13 of 2020)
  • Mpanga Farouk v Senkubuge Isaac and Another (Election Petition No. 15 of 2021)
  • Clare S. Kaweesa v Uganda Free Zones Authority and Frederick Kiwanuka (HCMA No. 454 of 2021)
  • Okidi and 4 Others v Odok W (Election Petition No. 9 of 2011)
  • J.B. Magara v Katehangwa (HCT-05-MA-0143-2000)
  • Katondwaki v Biraro [1977] HCB 33

Full judgment

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

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