[2001] UGCA 32

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKoNYoGO, DCJ HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

## CIVIL APPEAL NO.49 OF 2OOO

## CALTEX OrL (U) LTD APPELLANT

# VERSUS

## M/S SERUNKUMA BUS SERVICE LTD RESPONDENT

thc Hig dated l0'h (Appeal from the ruling of h Court of Uganda (Ntabgoba, PJ) July 2000 in HCCS No.l087 of 1996)

## JUDGMENT OF TWINOMUJUNI, JA.

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1)

This is an appeal from the decision of the High Court of Uganda in which the Principal Judge ruled that a document on which the appellant intended to rely for defence in HCCS No.l087/1986 was inadmissible because of the provisions ofsections 65 and 66 ofthe Advocates Act, 1970.

The background to the ruling in the High Court is that the respondent filed a suit in that court for general and special damages for breach of contract. After a series of amendments to both the plaint and the Written Statement of Defence, the appellant filed an amended Written Statement of Defence to which he annexed a document purporting to the be an agreement dated l" March 1986 between the parties upon which the appellant intended to rely in his defence against the suit.

The document on the face of it did not state who drew it up. The leamed Principal Judge was of the view that the document was inadmissible by virtue of section 66 of the Advocates Act and after affording counsel opportunity to address him on the matter, he ruled on l0'h July 2000 that the document was inadmissible. The appellant sought for leave to appeal against the ruling which was granted, hence this appeal.

There is only one ground ofappeal, namely: -

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"That the learned trial judge erred in law in refusing to admit a written agreement the appellant intended to rely upon for their defence on the grounds that it offended the provisions of the Advocates Act theretry prejudicing the appellant in its intended defence."

I think it is convenient at this stage to reproduce the provisions of sections 65 and 66 upon which the leamed Principal Judge relied to rule the appellant's document inadmissible:

"65(l) Any person other than an advocate with a valid practising certificate or a person specifically authorised by any written law so to do who, unless

he proves that the act was not done for, or in expectation of, any fee, gain or reward, either directly or indirectly, draws or prepares any instrument,

- (a)relating to movable or immovable property or any legal proceeding; - (b)for or in relation to the formation of any limited liability company whether private or public; - (c) for or in relation to the making of a deed of partnership or the dissolution of ^a partnership,

shall be guilty ofan offence.

(2) This section shall not apply to,

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- (a)any public officer drawing or preparing instruments in the course of his duty; - (b)any person employed merely to engross any instrument, application or proceeding; or - (c) any person in the full-time employment of ^a limited liability company drawing or preparing instruments in the course of his duty for an on behalfofsuch company. - (3) For the purposes of this section and section 66 of this Act the expression "instrument" does not include,

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- (a) a will or other testamentary instrument; or - (b)a letter or power ofattorney; or

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- (c) a transfer of stock or shares containing no trust or limitation thereof. - 66.(t) Every person who draws or prepares any instrument to which section 65 of this Act applies shall endorse or cause to be endorsed thereon his name and address; and any such person omitting so to do or falsely endorsing or causing to be endorsed any of such requirements shall be guilty of an offence. - (2) It shall not be lawful for any registering authority to accept or recognise any such instrument unless it purports to bear the name and address of the person who prepared it endorsed thereon."

Mr. Innocent Kihika, leamed counsel who represented the appellant attacked the ruling on two main grounds: -

Firstly, he submitted that the phrase "registering authority" appearing in section 66(2) of the Act does not include a Registrar of the High Court. He rightly observed that the phrase is not defined anywhere in the Advocates Act. He pointed out that the powers of the Registrar are spelt out in Order 46 rule 9 of the Civil Procedure Rules and they did not include the registration of documents. In his view, the phrase referred to Registrars under the Registration of Documents Act (Cap.80)

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Secondly, he submitted that though section 65(l) of the Advocates Act made it an offence to prepare certain documents unless one was an advocate or specifically authorised by law, section 65(2) of the same Act created exceptions especially 65(2)(c) in which the leaned trial judge would have found that the disputed document fell ifonly he had given the appellant the opportunity to adduce evidence to prove the fact. In conclusion, Mr. Kihika submitted that the document in question was therefore not affected by the provisions of the Advocates Act and was admissible in evidence.

In reply, Mr. Ronald Oine, leamed counsel for the respondents supported the ruling of the Principal Judge. He submitted that there was no doubt that the agreement in question was one of the documents referred to in section 65(1) of the Advocates Act. He also had no doubt that a Registrar of the High Court is a "registering authority" within the meaning of 5.66(2) of the Act. He argued that for the document to quali\$ to be admitted for registration in the High Court Registry, it had to have complied with 5.66(1) of the Act which requires that the person who drew it up affixes his/her full name and address. In his view, the alleged exception created by section 65(2) is only intended to protect persons mentioned therein from criminal prosecution under section 65(l) but did not exempt the compliance with 5.66(l) of the Act. He further argued that the provisions of 5.66(2) of the Act did not envisage the adducing ofevidence to prove that the documents to be filed are registrable.

I will first deal with the issue as to whether a Registrar or indeed the Registry of the High Court or of any other Court is a "registering authority" within the meaning of section 66(2) of the Advocates Act. Section 45 of the Judicature Act establishes the offices of "olficers of the Courts of Judicature" to perform special duties of the courts and such officers include the Chief Registrar, the Registrars, Deputy Registrars and Assistant Registrars. Section a5Q) of the Act provides that such officers shall perform such duties as may be assigned to them under the Rules of Court. Order 46 rule 3 provides that: -

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# "All formal steps preliminary to the trial, and all interlocutory applications, may be made or taken before the Registrar."

Pursuant to these powers, we know that in real practice, it is the duty of the Registrars to supervise the Registries where all documents are registered in preparation for civil and criminal litigation. In my opinion, the term "registering authorities" in section 66(2) of the Advocates Act includes Registrars of the Courts of Judicature. I do not agree that the term is limited to Registrars under the Registration of Documents Act alone. It includes all peoples and authorities authorised by law to receive and register documents in the public service or public authorities. They include, for example, Registrars of Companies, lands, births, marriages and deaths e.t.c. I have no doubt in my mind that "registering authorities" includes the Registrars of the High Court. In registering the documents it is their duty to scrutinise and ensure that they do not register documents prohibited by the law. They cannot just register every document put before them. They would be within

their rights to reject any document that does not conform to the provision of any law. When dealing with the matter the leaned Principal Judge had this to say: -

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"I now come to Mr. Byenkya's point that the Registrar of the High Court when receiving the pleadings is not ^a registering authorify. May be counsel had in mind not the pleadings documents such as the agreement referred to above; otherwise, with due respect when the High Court Registrar receives a pleading, he is a registering authority. But now, would he be supposed to look at annextures to find out whether they comply with the provisions of 5.65(l) of the Act. I do not see any problems in the Registrar doing so. As long as he, as a registering authority, must scrutinise documents which come to him in that capacity of registering, he should reject any document whether pleading or any other document that answers to the description in 5.65(l)(a) of the Advocates' Act."

I do not see anything to fault in the leaned Principal Judge's above reasoning and conclusion. I therefore, reject this leg of the appellant's ground of appeal.

The second leg of the ground of appeal is that S.65(2)(c) Advocates' Act created an exception to the general rule in 5.65(1) and that the appellant was denied the opportunity to prove that the document he sought to rely upon fell within the exception.

I have already reproduced the whole ofsections 65 and 66 Advocates Act in this judgment. For the sake of emphasis and ease of reference, I reproduce S.65(2)(c) which states:

# "This section shall not apply to,

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- (a) - (b) - (c) any person in full time employment of a limited liability company drawing or preparing instruments in the course of his dufy for and on behalf of such ^a company.t'

I note that the learned Principal Judge did not refer to this provision. It seems it was not referred to by counsel and he does not seem to have been aware of the provision. However, a proper construction of both section 65 and 66 clearly leads to the conclusion that a document prepared by a person answering the description in S.65(2)(c) need no endorsement thereon of the name and address of the person preparing it. In the instant case, this fact would not be apparent on the face ofthe record. It could only be established by evidence if the admissibility of the document was challenged. Here, such an opportunity did not arise because the Principal Judge took up the matter on his own motion as a preliminary point of law. I agree with Mr. Kihika that the appellant was not afforded opportunity to show that the document he sought to rely upon in his defence was not barred from admissibility by virtue of sections 65 and 66 of the Advocates Act. The decision of the leamed trial judge was therefore premature. S.66(2) prohibits the registering authority from acceptance or recognition of only those documents to which 5.65(1) applies. I find merit in this leg of the ground of appeal and therefore, the appeal must succeed.

In the result, I would allow the appeal, set aside the order declaring inadmissible the agreement of I't March 1996 between the parties. I would also award the costs of this appeal to the appellant.

st .) Dated t^,. at Kampala this day of ........ ²⁰⁰¹.

u Amo NI I PPEAL

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#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

#### CIVIL APPEAL NO. 49 OF 2000

$10$

### CALTEX OIL (U) LTD::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### M/S SERUNKUMA BUS SERVICE LTD. :::::::::::RESPONDENT

### (An appeal from a ruling of Justice H. Ntabgoba, Principle Judge made on the 10^th day of July, 2000 in High Court Civil Suit No. 1087 of 96)

#### JUDGEMENT OF L. E. M. MUKASA-KIKONYOGO, DCJ

I read in draft the judgment written by Twinomujuni, JA and I agree with 20 the reasons he gave for the decision he reached. I do not have much to add. I only wish to briefly comment on the learned trial judge's finding namely that the written agreement which the appellant intended to rely on was inadmissible because it offended Sections 65 and 66 of the The brief facts of the case were ably stated by Advocates Act. Twinomujuni, JA I need not narrate them too.

For easy reference I will also reproduce the provisions of both the aforesaid sections. Section 65 (1) of the Advocates Act reads that :

"Any person other than an advocate with a valid practising certificate or a person specifically authorised by any written law so to do, who, unless he proves that the act was not done

Jor, or in expectdtion oJ ang fee, gain or reward., either d.irectly or indirectlg, dranas or prepares anu instrument

- a) relating to moaable or immoaable propertg or ang legal proceeding; - b) Jor or in relation to the Jornation oJ ang linited cornpang uhether priuate or public - c) Jor or in relation to the naking of a deed of partnership or dissolution of a partnership, shall be guiltg of an olJence. - l0

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- This section shall not apply to 2. - a) ang public olficer dranaing or preparing instruments in the course of dutg; - b) ang person emploged merelg to engross dnu instruntent, application or proceedings; or - c) dng person in the full time emplogment oJ a limited liabilitg cotnpclng drauing or preparing instrumertts in the course of his dutg for and on behalf of such compang.

- 20 - For the purposes of this section and section 66 of this Act, the expression uinsttttment" does not include: - a) a uill or othet testdmentary instrument; or - b) q letter or pouer oJ attorneg; or - c| a transfer oJ stock or shares containing no trust or limitation thereof.

Section 66 states

'Eoery person uho dranps or prepdres ang instrurnerrt to which section 65 of this Act applies shall endorse or

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cduse to be endorsed thereon his name and ad.d.ress; and ang such person omitting so to do or falselg endorsing or causing to be endorsed ang of such requirements shdll be guiltg of an offence.

- 2. It shall not be lawJul for ang registering authority to dccept or recognise ang such instrument unless it purports to bear the name and address of the person utho prepared it endorsed thereon" - The sole ground of the Appeal q'as that l0

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"the learned trial judge erred in lanl in refusing to admit a uritten agreement the appellant intended to relg upon for its defence on the ground that it offend.ed the provisions of the Adaocates Act therebg prejudicing the appellant in its intended defence"

I do not agree with the submission of Mr. Kihika, counsel for the appellant, that the Registrar of the High Court is not "a registering authoritg" for the purposes of receiving pleadings, because that is not one of the duties or the powers given to him under O 46 r 9 of the Civil Procedure Rules and sectiott a5 @) oJ the Judicoture Statute. In complete agreement with the learned trial judge, Justice Twinomujuni, JA and counsel for the Respondent, in my view the terms &regtstering authoritg" in Section 66 oJ the Aduocates Act extend to the Registrars of the Courts of Judicature. Similar to any other Registrar appointed under any other law for example The Registration o;f Documents Act, the Registrars of those courts have a duty to scrutinize the documents received by them such as pleadings or annextures to ensure that they comply

with the requirements of The Adtocates Act. I have no quarrel with the trial judge's finding to that effect.

I, hou'ever, differ on the second part of his finding namely that

"the utritten agreement the appellant raas intendlng to relg on being an instntment relating to moaable propertu namelg motor aehicles belonging to the appellant it contra oened. the provisions of sections 65 and 66 of the Adoocates Act and as sucft utas inadmissible."

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As it was rightly noted by Twinomujuni, JA in the lead judgment the trial judge did not address his mind to the provisions of the Act which provides for exceptions. Section 65 2 (c) reads that

n?ihis section shall not dpplg to

a)

b)

c) Ang person in the full time emplogment of d limited compang dranaing or preparing instraments in the course of his dutg Jor and. on behalf oJ such contpang"

It is true the document complained of did not indicate the name or names of the person or persons who drew it up. That notwithstanding, the appellant should have been given opportunity to adduce evidence to show who drew up the document. I do not accept the submission of Mr. Oine, counsel for Respondent that the provisions of Section 66 l2l of the Advocates Act do not envisage adducing evidence to show who prepared the document. In the instant case the only way of ruling out the categories of persons listed under the exceptions, was to allow the appellant to adduce evidence as submitted by its counsel, Mr. Kihika. In agreement with Twinomujuni, JA the decision to reject the written agreement as inadmissible by the learned trial judge was premature.

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Since both Twinomujuni, JA and Kitumba, JA concur, this appeal is allowed. The ruling of the High Court is hereby set aside. The appellant will be awarded costs both in this Court and the High Court.

Dated at Kampala this....................................

Lugz L. E. M. MUKASA-KIKONYOGO DEPUTY CHIEF JUSTICE

$10$

## THE REPUBLIC OF UGANDA

I

## IN THE COT]RT OF APPEAL OF UCANDA AT KAMPALA

## CORAM: HON. LADY .l ITSTICE, t..ll. M. M U KASI\-Kl KONYOGO, l)C.f HON. JUSTICE A. TWINOMUJUNI,. I. A HON. LADY. IUSTICE C. N. B. KITT]MBA.. I. A

## CIVIL APPI]AI- NO.{g OF 2OOO

CALTEX OrL (U) LTD APPEALLANT

# VERSUS

### M/S SERT]NKT]MA BI.]S SERVICE LTD I{ESPONDENT

(r\ppcal from thc judgment and tlccrcc of the High 1'ur11 ef Uganda (Ntahgoha, P.l) tlate d l0'r' ,Iuly 2000 in H. C. C. S. No.l 0tl7 of I 996)

## JUDGMENT OF KITUMBA. J. A

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I have read in draft the judgment of Twinomujuni, J. A and entirely agree with it and the orders proposed therein.

Dated at Kampala this day of .....:J w l00l

k\$ ltLlnl ^a JT]STICE OF APPEAL