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The Lawyer

PICTORIAL: Ruparelia Group unveils 83 luxurious Speke Apartments at Kitante

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Conveniently located on Kitante Close, off Yusuf Lule Road, in the affluent leafy lower Kololo, Speke Apartments, Kitante features 64 one-bedroom apartments, 10 two-bedroom apartments and 9 two bedroom superior apartments.

Fresh from commissioning their multi-million dollar, Kingdom Kampala building, Ruparelia Group, yesterday, June 17th 2019, officially unveiled Speke Apartments, Kitante, a collection of 83 fully furnished apartments.

Conveniently located on Kitante Close, off Yusuf Lule Road, in the affluent leafy lower Kololo, Speke Apartments, Kitante features 64 one-bedroom apartments, 10 two-bedroom apartments and 9 two bedroom superior apartments. 

Rajiv Ruparelia, the Ruparelia Group Managing Director hosted guests to a cocktail and familiarisation tour of the project.

Speke Apartments specialises in self-catering apartments for corporate, leisure and family travellers in Kampala for short or long term lets.

Ruparelia Group Managing Director, Rajiv Ruparelia with businessman Ephraim Ntaganda at the launch.

In a side interview with this reporter, Mr Ruparelia said the serviced residences are uniquely located in “a secure, quiet, clean environment.”

He said the apartments have been built to British Standards and come with a fully fitted kitchen, double glazed sound proofed windows, led flat screen TVs with customized sets of channels, complimentary high speed Wifi internet, air conditioning, ample parking space and 24 hour security.

Residents have free access to the nearby Kabira Country Club and Speke Apartments Wampewo state-of-art health clubs.  

Long term residents get up to 49% discounts.

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Commercial Justice

“Crane Bank has no basis to sue me; court should dismiss their case,” Sudhir tells court

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Dr Sudhir Ruparelia (right) with Kampala Associated Advocates' Senior Partner, Peter C. R. Kabatsi

Ruparelia Group Chairman, Dr Sudhir Ruparelia and Meera Investments Limited, one of his real estate companies, have applied to the Commercial Court, asking it to dismiss case HCCS 493 of 2017 brought against them by Crane Bank (in Receivership).

The applicants in Miscellaneous Application No. 320 of 2019 argue that Crane Bank (in receivership) has “no locus standi to bring the suit” against them and that the case is “barred by law.”

Black’s Law Dictionary, 10th Edition, defines locus standi to mean: “The right to bring an action or to be heard in a given forum.”

In HCCS 493 of 2017, Bank of Uganda through Crane Bank (in receivership) alleges that the businessman fraudulently took out up to $92.8m (about Shs334b) and another Shs8.2 billion of depositors’ money from Crane Bank for personal gain through various payments to two construction companies and a technology company.

Dr Sudhir Ruparelia interacts with Bank of Uganda’s legal team at the Commercial Court before the hearing started.

The companies alleged to have been used by Sudhir for these payments have since vehemently rejected the above claims and produced evidence to discredit BoU’s claims.   

BoU through Crane Bank (in receivership) also alleges that the entire land where Crane Bank had branches, was transferred to Meera Investments Limited, another company owned by Sudhir and subsequently leased the land to Crane Bank.

Crane Bank now wants back the 48 freehold certificates together with duly executed transfer deeds in respect of each one of them in favour of Crane Bank or its nominee.

A receiver cannot sue or be sued

In their preliminary objections before Hon Mr. Justice David K. Wangutusi, today, July 3, 2019 Sudhir through his lawyers, Kampala Associated Advocates, argued that a receiver or an entity in receivership- in this case Crane Bank cannot sue or be sued.

Kampala Associated Advocates was represented by Senior Partner, Peter C. R. Kabatsi, Managing Partner Joseph Matsiko and Partner Elison Karuhanga.

“The suit was filed when Crane Bank Limited was in receivership. At issue therefore is; can a suit be filed when a financial institution is in receivership? Our submission is that the receiver has no locus to file the suit,” argued the lawyers.

Dr Sudhir (right) with son and Managing Director of the Ruparelia Group, Mr. Rajiv Ruparelia

Bank of Uganda on the 20th October 2016 took over the management of Crane Bank and pursuant to Sections 87 (3) and 88 (1) (a) & (b) of the Financial Institutions Act 2004 and on the 20th of January 2018 BoU placed the bank under receivership pursuant to Section 94 of the FIA.

Sudhir’s lawyers further argued that the FIA 2004 provides three ways in which BOU may takeover and resolve a financial institution in distress and these include: statutory management, receivership, and liquidation. They added that while the law allows the statutory manager and the liquidator to sue, it does not allow the receiver to sue or be sued.

“From 20th October, 2016 to 20th January, 2017 Bank of Uganda could institute a suit under Section 89 (1),(2)(e),(9) of the FIA. We shall submit that they lost that power on 20th January, 2017 when they placed the Plaintiff under receivership,” submitted the lawyers, adding: “A financial institution under receivership is therefore a closed financial institution. When a financial institution is placed under receivership the statutory manager’s powers cease from that day and for all intents and purposes the institution is closed.

Section 95 of the FIA 2004 only grants a receiver powers to:

  1. arrange a merger with another financial institution;
  2. arrange for the purchase of assets and assumption of all or some of the liabilities by other financial institutions;
  3. arrange to sell the financial institution;
  4. liquidate the assets of the financial institution.

But even then this must be done within 12 months of taking over as a receiver.

“The powers of the receiver are therefore limited, both in extent and in time. He can only exercise the four powers mentioned above and this has to be done within twelve months,” Sudhir’s lawyers submitted, adding: “Section 95 does not mention suing as one of the things he (the receiver) will do in the exercise of his powers.”

“Under the FIA, the receiver cannot file a law suit. When the legislature does not grant an express power to a statutory entity to sue then that entity simply cannot sue. This very point was determined by the Supreme Court of Uganda,” argued KAA Advocates.     

“If a party cannot be sued, it follows that that party cannot sue. We are fortified in this by the binding decision in the supreme court in the case of The Commissioner General Uganda Revenue Authority vs Meera Investments Limited SCCA 22 of 2007,” the lawyers further submitted.

Non-Ugandan citizens cannot own mailo or freehold land

KAA lawyers also submitted that BoU’s claim on Meera Investments’ land is barred by law since Crane Bank- by virtue of being majority owned by non-Ugandan citizens is a non-citizen and therefore barred from acquiring or holding mailo or freehold land in Uganda by Section 40 (1), (4), (7)(a)(d), and (8)(a) of the Land Act.  

“The majority shares in CBL are held by a company incorporated in Mauritius. A further 4% is held by Mr. Jitendera Sanghani, a British national. This would in effect mean that a total of 51.33% of the shares are held by non-citizens…..It is well settled that under no circumstances can a non-citizen hold freehold land and a number of authorities elucidate this Constitutional point.”                              

The lawyers also dismissed Crane Bank’s prayers to have the land held in trust for them by a designated nominee saying that doing so would “would defeat the express provisions of Article 237 of the Constitution” shich says that mailo land and freehold land cann only be owned by Ugandan citiznes.

“The purpose of this Court is to interpret the transaction in accordance with the law and not to side step the law with ingenious legal trusts. A trust is a creature of the doctrine of equity and the branch of law called equity and trusts. One of the maxims of equity is that: “equity follows the law and will therefore not allow a remedy that is contrary to the law”. The Court cannot construct this trust because it will be an illegal trust. A court of law cannot grant an illegal prayer,” closed the lawyers in their submissions.

Justice Wangutusi has set August 26, for a ruling on the objection.

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The Lawyer

Why would Mulyagonja leave an UGX37m IGG job to take an UGX20m judiciary position?

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Lt Col Edith Nakalema the head of the Statehouse Anti-Corruption Unit and the IGG, Mrs Irene Mulyagonja, attending the 9th Commonwealth Regional Conference for Heads of Anti-Corruption Agencies in Africa at Lake Victoria Serena, Kigo. At the event, hosted by the IGG, the president, told Mulyagonja’s guests that due to persistent failures by the IGG’s office, he had been forced to appoint, Nakalema to oversee the IGG- an embarrassment by all means.

When the hunter is hunted, then the hunting game is over-so they say; but it also appears, for the Inspectorate of Government, when an inspector is appointed to inspect the inspectorate, then it is a signal that the watchdog game for the Inspector of General of Government (IGG), Mrs. Irene Mulyagonja, is over or could soon be over.

It is therefore not surprising that she has dusted her CV and is job hunting- just in case.

When her 2nd term expires in 2020, Mrs Irene Mulyagonja Kakooza is ineligible for reappointment.

News broke, last week that the IGG, along with twenty four (24) other individuals, has been shortlisted to fill vacant positions at the Constitutional Court/Court of Appeal.

The leaked list, has since been confirmed as authentic by two sources, speaking to this reporter in confidence.

The Judicial Service Commission in March Advertised 3 openings for Constitutional Court/Court of Appeal justices and 5 openings for High Court judges. According to our sources, applicants for the Justice of Appeal/Constitutional Court will sit interviews between 20th and 24th of May 2019.

Some of the prominent names with whom Justice Mulyagonja will be competing include: High Court Judges Lawrence Gidudu, Henry Peter Adonyo, Henrietta Wolayo, and Damalie Lwanga Nantudde and Rugadya Atwooki.

She will also be competing with Christopher Gashirabake, the Deputy Solicitor General, Justice Billy Kainamura the deputy head of the Commercial Division of the High Court, and Raphael Baku, the former deputy IGG.

Twice public rebuked by the president

The IGG whose term of office has been mired in controversy- characterized by case backlogs, increased corruption perceptions and some allegations of her covering up for her friends, has been twice subjected to public scolding by the president on a number of high profile public events- in her presence.

Mr. Christopher Gashirabake, the Deputy Solicitor General is one of the contenders for the Constitutional Court positions.

The first time the president publicly chided the IGG was during the June 6th 2018, State of the Nation Address.

“What happened to the IGG? Why don’t the victims of corruption report those incidences of corruption to the IGG,” asked an angry Museveni.

“If it is not working, why should we keep it then? The IGG should reflect on this. Are her staff credible? Why does the public not trust that institution? We need answers,” he said.

Weeks later, the president would appoint, his former aide, Lt. Col Edith Nakalema to head a Statehouse Anti-Corruption Unit.

Just last week, the president yet again publicly scolded her for failing to fight corruption, and this time said that her office has been infiltrated by wrong elements.

Ironically, Mr. Museveni was speaking at  the 9th Commonwealth Regional Conference for Heads of Anti-Corruption Agencies in Africa at Lake Victoria Serena, Kigo- an event, hosted by the IGG. The president, told Mulyagonja’s guests that due to persistent failures by the IGG’s office, he had been forced to appoint, Lt Col Edith Nakalema to oversee the IGG.

“I think she (IGG) was infiltrated, slowly by some groups,” he said adding that this is the reason he had to appoint a “watchman (Nakalema) to watch the watchman (IGG).”

This was an embarrassment to her.  

Last year, when Lt. Col. Nakalema was appointed, the IGG said she was happy to work along with her; but the insistence by the president that Nakalema had been appointed not to assist the IGG, but rather to inspect the inspectorate, seems to be the last straw that broke the IGG’s back.

To make matters worse, it was recently reported in the newspapers that Nakalema’s  Statehouse Anti-Corruption Unit, was probing some members of management and the board of the Inspectorate of Government (IG) for alleged corruption as well as illegal and irregular recruitments.

Is Mulyagonja being smart?

Mulyagonja (56) who held the position of deputy head of the Commercial Division of the High Court, before her appointment as IGG in 2012, on April 12th 2019, started her 3rd year of her second term and is ineligible for reappointment when her current term expires in 2020.

At 56 years of age, she is also 4 years shy of the official retirement age of 60 for public servants. However, judges and justices have higher retirement caps- 65 and 70 years respectively.

It is therefore not surprising that she is considering leaving her UGX37m a month job, to take on a Constitutional Court Justice job where she will earn UGX19.9 million.

According to official sources in the Judiciary, a Constitutional Court/Court of Appeal Justice earns an UGX10.5m salary. They also get an additional 40% of their basic pay as professional allowances (UGX4, 200,000) as well as a UGX5, 000,000 housing allowance. They are also entitled to UGX200, 000 as medical allowance.

But if the Uganda Judicial Officers Association (UJOA) get their salary increase wish (and president Museveni has promised it to be soon), salaries for Constitutional Court/Court of Appeal Justices could soon be increased to UGX33,000,000.

A possible higher pay, increased levels of autonomy and increased retirement age; looks like Mrs Mulyagonja could be making a smart move, but that is if she gets the job,

If she however fails to get the job, she now risks higher levels of distrust from the appointing authority (president) as well as her staff- further adding to her misery.

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Commercial Justice

Sebalu & Lule Advocates barred from representing BoU and dfcu bank against Sudhir over, unprofessionalism and conflict of interest

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Justice Paul Gadenya of the Commercial Court, has dismissed city law firm, Sebalu & Lule Advocates from representing dfcu bank in a case in which billionaire businessman Dr.Sudhir Ruparelia is suing the bank over breach of contract.

The commercial court judge found that the law firm broke several rules in the Advocates (Professional Conduct) Regulations and therefore found them in conflict.

CMS’s lawyers, Joseph Kyazze and Nasser Sserunjogi of Magna Advocates being congratulated by the Ruparelias

In miscellaneous application No.1047 of 2018 (Crane Management Services vs. Sebalu & Lule Advocates and Dfcu Bank Limited), the businessman, accused the law firm of conflict of interest and breach of the Advocates (Professional Conduct) Regulations, since the law firm that was previously CMS’ lawyers and as such in possession of confidential information would use this privileged information against CMS.

In an affidavit sworn by Rajiv Ruparelia, one the directors of CMS, the real estate firm contended that Sebalu & Lule Advocates had overtime received instructions from CMS “including instructions to cause a thorough review of the applicants then existing tenancies which form the foundation” of the main suit.

The Ruparelias address the media outside the Commercial Court

In the main suit (HCCS No.109 of 2018), CMS sued dfcu for severally breaching various tenancy agreements in respect to 13 properties in Kampala and Mbale. CMS is demanding for USD385,728 and UGX2,998,558,624 as rental arrears. This is before interest, general damages, interest on general damages and costs of the suit.    

 “In view of the advocate-client relationship between the applicant (Crane Management Services Ltd) and the 1st respondent (Sebalu & Lule advocates), the latter’s continued participation as defence counsel for the 2nd respondent (Dfcu bank) herein, which is the defendant in High Court Civil Suit (HCCS) No. 109/2018 against the applicant/plaintiff, is prejudicial to the applicant’s head suit,” CMS’s petition reads in part. 

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CMS prayed that court issues a permanent injunction restraining the law firm from “appearing in and or acting as counsel for dfcu Limited in HCCS No 109 and all applications arising therefrom.”

Unprofessional and conflicted

Delivering his ruling, Justice Paul Gadenya said that Crane Management Services (CMS) had successfully proved that the law firm are “in possession of confidential information which is relevant, current and related to the head suit in HCCS No 109 of 2018 what would make them conflicted to act as counsel for the 2nd respondent against the applicant.”

“For the record, the engagement of the 1st respondent (Sebalu & Lule) as counsel for the 2nd respondent (dfcu) violated Regulation 4, 9 and 10 of the Advocates (Professional Conduct) Regulations,” he further ruled, in a ruling read for him by the Commercial Court registrar Festo Nsenga.

“The application is allowed with the following orders: an injunction shall issue against the 1st respondent from representing the 2nd respondent in all matters in HCCS 109 of 2018. The respondents will pay the costs of this application,” he ordered.

Rule No.4 of the Advocates (Professional Conduct) Regulations stipulates that advocates shouldn’t prejudice former clients.

Rule 9 forbids an advocate from “appearing before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear.”

Rule 10 stops advocates from using their privileged relationship with their clients to their own personal advantage. It requires advocates to disclose to their clients any personal interest that they may have in transactions being conducted on behalf of those clients.

In yet another big blow to Sebalu Lule & Advocates, the judge also agreed with CMS’s lawyers that the law firm can also not represent Bank of Uganda and or Crane Bank in Civil Suit No. HCCS 493 of 2017 (Sudhir Ruparelia vs. MMAKS Advocates, AF Mpanga Advocates (Bowmans Uganda), Crane Bank Limited (In Receivership) and Bank Of Uganda)  since CMS, the Ruparelia Group and Crane Bank are “one and the same.”

Sebalu & Lule were hired by Bank of Uganda to replace MMAKS Advocates, AF Mpanga Advocates (Bowmans Uganda), who were kicked off the case by Commercial Court Justice Hon Justice David K Wangutusi in December 2017, also over conflict of interest and breach of the Advocates (Professional Conduct) Regulations.

In yet another big blow to Sebalu Lule & Advocates, the judge also agreed with CMS’s lawyers that the law firm can also not represent Bank of Uganda and or Crane Bank in Civil Suit No. HCCS 493 of 2017 (Sudhir Ruparelia vs. MMAKS Advocates, AF Mpanga Advocates (Bowmans Uganda), Crane Bank Limited (In Receivership) and Bank Of Uganda)  since CMS, the Ruparelia Group and Crane Bank are “one and the same.”

Sebalu & Lule were hired by Bank of Uganda to replace MMAKS Advocates, AF Mpanga Advocates (Bowmans Uganda), who were kicked off the case by Commercial Court Justice Hon Justice David K Wangutusi in December 2017, also over conflict of interest and breach of the Advocates (Professional Conduct) Regulations.

The dismissal of the three top law firms which are expected to be personifications of professionalism, is not only a commercial loss as the cases are believed to be worth several billions in professional fees, but is also a major reputational blow to the two law firms, each of which is affiliated to international law firms.

MMAKS Advocates is a member of Africa Legal Networks (ALN), an independent alliance of leading law firms in Africa while Bowmans Uganda is part of Bowmans Law one of Africa’s biggest law firms.

Sebalu & Lule is part of DLA Piper Africa Group.

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