INCORPORATION OF REGISTERED TRUSTEES IN UGANDA

 Registered trustees in Uganda

Incorporated Trust.

Incorporated trust: These are incorporated under the Trustees Incorporation Act Cap 165 which provides for incorporation of the trustees of certain bodies and associations of persons. These are registered in the ministry of lands and Commissioner Land registration.

 

Section 1 of the Trustees Incorporation Act Cap 165 states that trustees or a trustee may be appointed by any body or association of persons established for any religious, educational, literary, scientific, social or charitable purpose, and such trustees or trustee may apply to the minister for a certificate of registration of the Trustees of such body or association of persons as a corporate body.

 

PROCEDURE FOR SETTING UP A TRUST.

 

Rule 2 of Trustees Incorporation rules SI 165 – 1 provides that the application for a certificate of registration as a corporate body shall be submitted to the commissioner for Land Registration in Form 1 in the first schedule to the rules.

The fees for making the application for a certificate of registration as a corporate body is shs.20,000/= pursuant the Trustees Incorporation Rules SI 165 – 1.

 

The minister having regard to the nature and objects of such body or association, may then grant such certificate accordingly subject to such conditions that he deems fit to insert in the certificate. The fees for issuance of a certificate of incorporation is shs.10,000/= pursuant to the first schedule of the Trustees Incorporation Rules SI 165 – 1. Section 4 of the Act provides that before a certificate of Incorporation is granted, the trustees or a trustee shall have been effectually and lawfully appointed to the satisfaction of a Minister

 

Section 3 of the Act states that the application shall be signed by the persons making it and shall contain particulars specified in the schedule to the Act which include; the objects of the body or association of persons, the rules and regulations of the association of persons, together with the date of, parties to every deed, will, or other instrument, constituting the body or association of persons, a statement and short description of the land, or interest in the land possessed by or belonging to or held on behalf of the body or association of persons, names, residences of the trustees, date of their appointment, qualification, tenure and avoidance of office, the mode of appointing new trustees, proposed device of the common seal, regulations for its custody.

 

The minister may orders relating to the incorporated trust on the application of any interested party under section 15. The application shall be in form II in the first schedule to the rules. The fees for this application are shs.10,000/=

Any person aggrieved by the orders may within 30 days apply to the High court in accordance with rules of court.

 

 

INCORPORATION OF PRIVATE LIMITED LIABILITY COMPANY IN UGANDA

 Incorporation of a private Limited Company in Uganda

Local company.

1.   Search of the name at the company registry; Search fees is shs.25,000/=.

 

2.   Reserve the name to be used; This is done by filling a name reservation form. Name reservation fees is shs.20,000. Section 36 of the Companies Act provides that the registrar may, on written application reserve a name pending registration of company. Reservation shall remain in force for 30 days or such period not exceeding 60 days as the registrar may allow.

 

3.   Filing company registration form contained in the second schedule; Section 18 – the Company shall be registered by filling in the particulars contained in the registration form in the second schedule to this Act and if satisfied that the provisions of the Act have been complied with, shall register the company. Section 19(3) of the Act states that on registration of the company, the registrar shall issue a certificate of incorporation signed by him or her that the company is incorporated. Rule 6 of the Companies (General) Regulations, 2016 states that the certificate of incorporation shall be in Form 1 in the schedule.

 

4.  Filing the memorandum and articles of association (if any); Regulation 5 of the Company (General) Regulations, 2016 states that the application for registration is accompanied with the memorandum and articles of association.

 

After the company has been registered, the following forms must be filed (Company returns)

 

1. Notice of situation/place, Form 18 pursuant to regulation 25 of the Companies (General) Regulations 2016. Section 116 states that this notice shall be given with-in 14 days after the date of incorporation of the company or change as the case may be.
2. Particulars of directors and secretaries. Form 20 pursuant to regulation 26(2) of the Company regulations within 14 days.
3. Return of allotment; Company form 10 (within 60 days) pursuant to regulation 18 of the Companies Act.
4. Form of Annual return for a company limited by shares (to be filed once every year).

 

  Payment of stamp duty and registration fees.

 

-      Name reservation is shs.20,000/=

-      section 2, item 41 Memorandum and articles of association – shs.10,000, Item 10 – Articles of Association shs.10,000.

-      Search fees are shs.25,000.

-      Registration fees of nominal capital 1m-5m = 50,000/=. 

-    Registration fees of nominal capital exceeding 5m = 1% of share capital (See schedule to the Finance Act 2013 for registration fees).

-      Stamp duty is 0.5% of share capital with share capital above 5m.

Checklist of incorporation of a private limited liability company.

Item/Particulars	Fees (UGX)
Company search	25,000
Reservation of Company name	20,000
Registration fees for companies with nominal capital not exceeding 1 million.	50,000
Registration fees for companies with nominal capital exceeding 1 million.	1% of the nominal share capital
Stamp duty for Companies with share capital above 5 million	0.5% of the nominal share capital
Registration fees for Memorandum and Articles	10,000
Post Incorporation documents
Notice of situation of place (form 18) to be filed within 14 days after the date of incorporation	20,000
Particulars of directors and secretaries (form 20) to be filed within 14 days after the date of incorporation.	20,000
Return of allotment (form 10) to be filed within 60 days after date of incorporation	20,000

 This is exclusive of the labour for drafting the Memorandum and Articles of association and incorporating the company.

 

Note: Does the mere filling in the particulars in registration form in the second schedule suffice to incorporate a company? According to Nerima, the company is incorporated on registration of the memorandum and articles of association on being satisfied that all provisions of the companies Act have been complied with, the registrar issues a certificate of incorporation (Company Form 1).

 

In case they ask you to incorporate a company limited by guarantee, the documents filed are the same, except that the memorandum and articles are a mandatory requirement.

INCORPORATION OF A FOREIGN COMPANY

 Incorporation of foreign companies.

Section 251 defines a foreign company as a company incorporated outside Uganda which, establish a place of business in Uganda and companies incorporated outside Uganda which have established a place of business in Uganda and continue to have a place of business in Uganda. Section 252 of the Act states that a foreign company which establishes a place of business within Uganda shall, within 30 days after the establishment of the place of business, deliver to the registrar;

-      certified copy of the charter, statutes or memorandum and articles of association of the company, where not in English a certified translation.

-      a list of directors and secretary of the company; form 24 pursuant to regulation 29 of the Company (General) Regulations 2016.

-      statement of all subsisting charges, the kind set out in section 105(2); form 13 pursuant to section 23 of the Company (General) Regulations 2016.

-      name and postal addresses of one or more persons resident in Uganda authorized to accept on behalf of the company service of process; form 25 pursuant to regulation 29 of the Company (General) Regulations 2016.

-      the full address of the registered office of the company; form 26 pursuant to regulation 29 of the Company (General) Regulations 2016.

 

Upon registration of the above documents, the registrar issues a certificate of registration as a foreign company under the Companies Act (Company form 28) pursuant to regulation 30 of the Companies (General) Regulations.

 

Fees;

-      Registration of certified copy of memorandum or equivalent; section $ 250.

-      Any other document (forms) $ 55.

-      Registration of mortgage/charge 50,000/=.

 

MAINTENANCE IN FAMILY MATTERS IN UGANDA

 

Maintenance.

 

section 76(1) who may apply for maintenance; any person who has custody of a child and who is

-          mother.

-          father.

-          guardian

may make an application for maintenance order.

-          A child in respect of whom a declaration of parentage has been made may also make an application for maintenance through next of friend.

 

section 76(5) an application for maintenance order shall be made by complaint on oath to a family and children court where the applicant resides and summons shall be served on father or mother of the child.

 

Section 76(7) on appearance or proof that summons was served on him or her seven days or more before the hearing, court shall make an order for payment to the applicant of a monthly sum or order lump sum (section 76(9)), funeral expenses if the child died before making the order, costs incurred in obtaining the order.

 

Section 76(8) maintenance shall include feeding, clothing, education and general welfare of the child.

 

Section 77 warrant to attach earnings or levy the distress for the recovery of maintenance money.

 

section 78 variation of maintenance orders; court may make an order increasing or reducing the amount of money previously ordered to be paid, order may be enforced against the estate of a deceased person who has been declared the father or mother.

 

section 80 appointment of custodian; the court on being satisfied that the applicant is not fit and proper person to have custody, is dead or has become of unsound mind or is in prison, it will appoint a person who is willing to have custody of the child to be the custodian of the child.

 

section 81; misapplying maintenance order; the grant of custody may be varied in the best interests of the child.

 

section 82; cessation of order; on child attaining 18 years.

 

section 84; maintenance during divorce, separation or nullity by both parents.

 

Application.

Rule 19(1) of the Children (Family and Children Court) Rules SI 59 – 2 provides that a person seeking for a care order, supervision order, an interim care order, interim supervision order, a search and production order, an exclusion order, recovery order, maintenance order, contribution order, custody order shall apply to court supported by an affidavit and any reports or documents to be relied upon shall be attached to the application. One of these reports include the welfare report as provided for under section 20(2) of the Act in case one is applying for a supervision or care order. Section 19(3) provides that an application under subrule (1) of this rule shall be as specified in Form 1 in the schedule to these Rules.

CUSTODY OF CHILDREN IN FAMILY MATTERS IN UGANDA

 CUSTODY

Section 1(q) of the Children Act as amended defines a custodian as a person in whose care a child is physically placed. Custody concerns the legal rules governing the right of children regarding who to live with.

Any harm that the child has suffered or is likely to suffer or is at the risk of suffering; and where relevant, the capacity of the child's parents, guardian or any other person involved in the Care of the child, and in meeting the needs of the child.

In Rwabuhemba Tim Musinguzi v Harriet Kamakume Court of Appeal Civil Application No.142 Of 2009, Held; Parents have a fundamental right to care and bring up their children. This is a constitutional right. Of course it is not considered in isolation. The welfare of the child is a consideration to be taken into account, and at times may be the paramount consideration. A parent can only be denied the right to care for and raise her children when it is clear and has been determined by a competent authority, in accordance with law, that it is the best interest of the child that the child be separated from the parent

For one to get granted custody there are a number of factors that have to be considered.

Welfare of the child

 S.73 (3) of the Act, the court shall primarily consider the welfare of the child. Section 3 of the children Act, as amended provides that the guiding principle is the child’s welfare which is paramount. It provides that the welfare principle shall be the guiding principle in making any decision based on this Act.

In Hassan Mariam Mohammed (1977) HCB 43; it was held that the welfare of the children is a paramount consideration and the matter of custody is best determined after hearing both parties and custody should not be granted until both parties have been heard.

 

Children of tender years

 It is presumed that children of tender years that is 7years and below should live with their mother as opposed to the father.

Teopista Kayongo v Richard Sekiziyivu (1978) HCB 240. It was held that as concerns children of tender years, such children should normally stay with their mother unless she is not a fit and proper person. And where the custody of the children is taken away from their mother, the mother should be free to visit her children as often as she pleases.

Better financial status

 Hofman v Hofman (1970) E.A. 100 court held that although the father’s superior financial position over the mother was irrelevant in custody cases, it could not be ignored, if it could be proved that the father could use his superior financial position to cater for the welfare of the child better than the mother whose financial inferiority would stand in her way, the overriding factor is the interests of the child and if the father could use them to enhance the welfare of the child, it could be taken into consideration.

Conduct of the parties

 Nyakairu v Nyakairu court held that in applying the welfare principle court had to consider other ancillary circumstances e.g. such matters as; who of the spouse was to blame for the breakup of the marriage, who of the spouses was more financially equipped to look better after the interests of the children and which spouse could provide a more comfortable home. Court held that immorality on the father was not sufficient justification for interfering with the common law right of custody of children unless such immorality was very flagrant or was coupled with other habits injurious to the children.

Variation of custody.

According to Section 85of the Act, where the court is satisfied on information from a parent  or an official of a local government council that the parent who has custody of the child is wilfully neglecting or mistreating the child, custody shall be granted to the other parent[CT1] .

The Queen v Gungail (1893) 2 QB 233 at 243, the court is placed in a position of reason. In its prerogative to act as a supreme parent of the children and must exercise its jurisdiction in a manner which a wise affectionate and careful parent would act for the welfare of the child

Custody maybe joint or sole following Section 73(1), the court may on the application of a sole applicant or joint applicants, grant custody of a child on such conditions as may be determined by the court. Sec.73 (2) Provides that the court may at any time revoke the grant of custody to one person and make the grant to another person, institute or organization. Sec.73 (3) of the Act provides that the in reaching its decision under sub section (1) and (2), the court shall primarily consider the welfare of the child.

Procedure:

Rule 19(3) of the Children (Family and Children Court) Rules provides that an application for a custody order shall be specified in Form 1 in the schedule to the rules and rule 19(1) provides that the application shall be supported by an affidavit, and any reports or documents to be relied upon shall be attached to the application.

 

Interim Custody.

Section 73A of the Children Act as amended provides for interim custody order. 73(1) a probation and social welfare officer, mother father or guardian of a child may apply to the family and children court for an interim custody order pending the determination of custody of the child by court. 73(2) of the Children Act as amended provides that the application for an interim custody shall be supported by affidavit of the applicant. 73(3) of the Children Act as amended provides that the court may issue an interim custody order may, where the court is satisfied that,

(a)  The child is suffering or likely to suffer harm if the order for the interim custody is not issued.

(b)  The order is in the best interest of the child.

(c)  An interim custody order may, where appropriate, contain any direction, prohibition or award.

Custody by Agreement.

S. 73B of the Children Act as amended provides for custody by agreement.

73B (1) of the Children Act as amended explains that the parents of a child may enter into a written agreement to determine which of them shall have custody of the child. 73B(2) of the Children Act as amended provided that court may recognise an agreement made between the parents of a child giving the custody of the child to one of the parents, except where court finds that enforcing the agreement would not be in the best interest of the child.

73B (3) court shall only recognise an agreement under subsection (1) if it is satisfied that there was no duress or fraud involved in making the agreement.

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Variation of custody.

 [CT1]Applicable to our facts.? 

ESTABLISHMENT OF LEGAL PARTNERSHIPS/LAW FIRMS IN UGANDA

 ESTABLISHMENT OF LEGAL PARTNERSHIPS/LAW FIRMS IN UGANDA

Law firms are usually established as partnerships because partnerships have less legal compliance requirements and offer flexibility to partners in their day-to-day work. Partners bind the firm without the need to act through resolutions like companies.

Section 2(2) of the Partnership Act states that a partnership shall not exceed 50 members. Under section 2 of the Act a profession is defined to mean a profession regulated by the laws of Uganda.

Section 64 of Advocates any person other than an advocate not to practice. Advocate is defined as someone entered on the roll.

section 71 of the Advocates Act advocates not to act as agents for unqualified person.

 

FORMALITIES IN RELATION TO THE FIRM.

1. THE FIRM NAME.

To establish a law firm, an advocate requires a firm name. The firm name is registered under the Business Names Registration Act and the rules made thereunder. Procedure similar to that of registering a partnership name.

 The partners can use their names or a generic name. The generic name must be acceptable by the Law Council.

Regulation 5(1) of The Advocates (Use of Generic Names by Law Firms) Regulations S.I No. 16 of 2006 provides that a generic name shall not be used or registered with the Registrar General, or any other authority until clearance is obtained from the Law Council.

 A generic name is defined under Regulation 2 of the Advocates (Use of Generic Names by Law Firms) Regulations S. I No. 16 of 2006 as a name other than the name of a partner of a law firm. There are restrictions on registering a generic name.

 Regulation 3 of the Advocates (Use of generic names by Law Firms) Regulations, 2006 provides that a generic name shall include the word ‘advocates’ at the end. 

Regulation 3 (5) of the Advocates (Use of Generic Names by Law Firms) Regulations, 2006 also provides that a generic name shall not make any reference, actual or derived, to and symbolic, cultic, political, religious, sectarian, discriminatory or specialty classification. The parties want to establish a firm with BORN AGAIN LEGAL as the name. The name is religious and therefore not in accordance with section 3 (5) of the Regulations.

2. INTERPOL CERTIFICATE OF GOOD CONDUCT

section 12(1)(h) provides that the registrar shall refuse to issue or renew a practicing certificate of any advocate who on the date of his application has been convicted of a criminal offence involving moral turpitude and sentenced to imprisonment for a term of one year or more, without the option of a fine.

3. OPENING UP OF AN ACCOUNT

According to Section 40 of the Advocates Act the Law firm is required to have a separate account for the firm and another for the clients. 

4. INSPECTION AND APPROVAL OF THE FIRM PREMISES

Then the premises from which the firm shall conduct its business is to be inspected by the law council.

Regulation 3 of the Advocates (inspection and Approval of Chambers) Regulations S. I No. 15 of 2005 makes it mandatory for chambers to be inspected yearly. Regulation 5 of the same Regulations provides for the requirements to be met before approval (1) An advocate’s chambers shall be well maintained with a professional appearance and must have—(a) a suitable desk for an advocate; 

 (b) a separate room for each advocate and another for a clerk, secretary and cashier; (c) a secretarial desk and computer or typewriter; (d) a reception with chairs or benches for clients; (e) a bookshelf; (f) a chest of drawers or a filing cabinet; (g) a reasonable collection of reference law books including a full set of the Revised Laws of Uganda 2000; (h) access to a toilet and sanitary facilities; and (i) books of accounts. 

(2)  The headed paper of every law firm shall bear the names and qualifications of each partner, advocate and legal assistant in the firm. 

(3)  A law firm with generic names shall only be approved if consent is sought from the Law Council prior to the registration of that name.

(4)  The consent referred to in sub-regulation (3) shall be in writing. 

(5)  Trading shall not be carried on in any chambers. 

(6)  The Law Council may refuse to approve any chambers that do not meet any of the requirements set out in these Regulations and may order the closure of those chambers until the chambers meet the required standards set out in these Regulations. After the inspection is completed, a certificate to that effect shall be issued by the Law Council.

(7)  Regulation 6 provides that;(1) A firm of advocates whose chambers have been approved shall be issued with a certificate of approval of chambers. (2) A certificate of approval of chambers shall remain valid for one year. The firm shall pay a fee of 62,000/-for the inspection of the premises according to the Advocates (Council Fees) Regulations 2004.