THE    REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION NO. 052 OF 2014

 (Arising from HCCS No. 502 of 2012)

1. MUHIMBURA STEVEN     }
2. AZAALWA HASSAN                 }:::::::::::::::::::::::::APPLICANTS

VERSUS

1. KITASHA COFFEE BUYERS & FARMING LTD}
2. JUMA KITAKA                                                                        }
3. SARAH KITAKA                            }::::::::::::::::::::::RESPONDENTS

BEFORE: HON. LADY JUSTICE HELLEN OBURA

RULING

This application was brought under Section 98 of the Civil Procedure Act (CPA), Order 38 rule 5 (d) and Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR). The applicant is seeking for orders that the veil of incorporation of Kitasha Coffee Buyers and Farming Ltd, the 1^st respondent be lifted and the 2^nd and 3^rd respondents who are directors of the 1^st respondent be ordered jointly and severally to pay the decretal sum of Shs. 163,277,000/=.  The application also seeks for an order that costs of this application be provided for.   

The affidavits in support of this application were sworn by the applicants. However, I must point out at this juncture that each of the applicants had filed their own application but when the 2^nd applicant’s application came up for hearing, upon this court’s guidance, the 1^st applicant withdrew the application he had filed and instead filed a supplementary affidavit in support of this application which was filed by the 2^nd applicant.

The grounds of this application as stated in the two affidavits are the same save for the search done at the company registry by the 1^st applicant as stated in paragraphs 11-14 of his affidavit. In brief, the applicants deposed that the 2^nd and 3^rd respondents who are husband and wife and are shareholders and directors of the 1^st respondent company, jointly and severally conduct business in their individual capacity using the 1^st respondent as a mere shield because of its corporate personality. The applicants averred that on diverse occasions they supplied coffee to the respondent but were only paid partly leaving an outstanding balance of Shs. 163,277,000/= which the respondents refused or neglected to pay and upon them suing the 1^st respondent, the applicants obtained a judgment and decree in their favour but their effort to execute the same failed because no property that could be attached was found at the 1^st respondent’s known business premises which had been abandoned.

The 1^st applicant averred that upon him conducting a search at the company registry he discovered that the 2^nd and 3^rd respondents as directors of the 1^st respondent had made a resolution dated 29^th of April 2013 transferring their shares to a one Kasasa Ronald and Nakibuka Clare and had also appointed them as the new directors of the company. Uncertified photocopies of the resolution and Company Form 8 were attached and marked “D”.

He deposed further, that the said appointment of new directors of the 1^st respondent company was done when the 2^nd and 3^rd respondents discovered that they had lost the case and the applicants had filed an application for execution. It was averred that the new directors are the true biological children of the 2^nd and 3^rd respondents who are hiding behind the 1^st respondent to misuse it in order to defraud the public.

The 1^st applicant further averred that the improper conduct of the 2^nd and 3^rd respondents of withdrawing from the 1^st respondent company and shifting the coffee processing machinery from Plot 63, 3^rd Street Industrial Area, the only known place of business for the 1^st respondent was or is made with intentions to defraud the applicants who are the judgment creditors and denying them the fruit of their decree and judgment.

The respondents were served with this application first through their previous lawyers who declined to receive service on the ground that they no longer had instructions and advised that the respondents be served directly. Efforts to serve the respondents directly failed due to the relocation of their office. They were then served using substituted service by advertising the hearing notice in the Daily Monitor Newspaper of 12^th December 2014 and affixing a copy thereof at the Commercial Court notice board. An affidavit of service dated 15^th January 2015 stating the above mode of service was filed on 16^th January 2015. However, the respondents did not file an affidavit in reply and even failed to appear when the matter came up for hearing so the matter proceeded ex-parte and both applicants agreed to file written submissions which have been considered in this ruling.

The gist of the submissions are that the action of the 2^nd and 3^rd respondents of appointing new directors of the 1^st respondent company and them ceasing to be directors as well as relocating the office of the 1^st respondent without filing notice of change of address with the registrar of companies was fraudulent as this was intended to avoid a liability following the judgment and decree the applicants had obtained from court against the 1^st respondent company.

The landmark case of Salmon v Salmon & Co. Ltd [1897] AC 22 on the principle of distinct corporate personality of an incorporated company was cited by counsel for the 1^st Applicant. He then submitted based on a passage from Gower’s Principles of Company Law 6^th Edition at pg 173 that there are three instances under which the court can pierce the veil of incorporation namely; 1) when the court is construing a statute, a contract or other document; 2) when the court is satisfied that the company is a “mere façade concealing the true facts”; and 3) when it is established that the company is an authorized agent of its members, controllers or humans.

He cited the cases of R v Graham (1984) QB.675, Re Williams Bros Ltd (1992) 2 CH.71 and Jones v Lipman [1962]1 W.L.R 832 where the respective courts found that there was fraud as the companies were mere shams and lifted the corporate veils. In Jones v Lipman (supra), the court described the company as, “a creature of Lipman, a device and a sham, a mask which he held before his face in an attempt to avoid recognition by the eyes of equity”.

Counsel for the 1^st applicant applied the above authorities to the instant case and argued that the affidavit evidence shows proof of misuse of corporate personality when the applicants supplied coffee to the 1^st respondent company and it failed to pay the balance. Further, that even when the applicants obtained a decree it could not be executed as the 2^nd and 3^rd respondents changed location of the company business away from the registered place of business and also withdrew from directorship after appointing new directors and moreover without following the law.

This improper conduct of the 2^nd and 3^rd respondents, counsel argued, show that they used the company as a cloak or as a mask to hide their faces from the creditors of the 1^st respondent. He prayed that the 2^nd and 3^rd respondents be held personally liable for the decretal sum to enable the decree holders realize the fruits of the decree.

Counsel for the 2^nd applicant on his part, quoted a passage from the 4^th Edition of Gower’s Principles of Modern Company Law at pg 126 that the veil of corporate personality can be lifted in certain circumstances such as those in which the corporate entity principle is being used as an instrument of fraud. Furthermore, that Section 20 of the Company Act, 2012 empowers the High Court to lift the corporate veil where a company or its directors are involved in fraud. He cited the case of D.K. Construction Co. Ltd & Jametex Intra Sales Ltd v Barclays Bank Uganda Ltd C.S 644 of 2000 where it was held that:

“In order to ascertain whether a company is being used as a mask the court is entitled to look at the reality of the situation, the motive for the transactions and other relevant facts must be considered before coming to the conclusion that the company is a mere facade concealing the true facts.”

Counsel for the 2^nd applicant submitted that the 2^nd respondent who is the managing director of the 1^st respondent dealt with the applicants in his individual capacity and often times made direct payments to the applicant for the supply of coffee. He argued that the 2^nd and 3^rd respondents fully aware that the applicants had obtained a judgment against them on the 12^th day of March 2013 purportedly held a meeting on the 15^th day of March 2013 wherein they sold their shares to Kasasa Ronald and Nakibuuka Claire who are their children. Further, that although they are the new directors of the company, the 2^nd and 3^rd respondents continue to run the company and directly benefit from the proceeds and are simply fronting the new directors to avoid liability incurred by them.

I have carefully considered the law relating to the lifting of corporate veil vis-à-vis the grounds of this application. I have also looked at the documents attached to the affidavit in support and the ones that were supplied later with the permission of this court as well as considered the arguments of the applicants based on the grounds of this application. I find it necessary to give a brief history of this case so as to determine this application in that context.

It is indeed true that the applicants obtained a decree from this court when they filed a summary suit against the 1^st respondent (HCCS No. 502 of 2012) for an outstanding balance of UGX 163,277,000/= from the coffee they had supplied to the 1^st respondent. The 1^st respondent applied for leave to appear and defend the suit vide M/A No. 693 of 2012. The 2^nd respondent swore the affidavit in support of that application and acknowledged that the applicants indeed supplied coffee to the 1^st respondent but contended that the coffee supplied was not fit for purpose and they were contemplating to return it. It was averred further that there was no breach of contract as there was no written agreement giving a schedule of payment and, in any event, there was no formal demand for the said outstanding balance.

The applicants filed affidavit in reply and subsequently written submissions were filed on the basis of which this court made a ruling on 12^th March 2013 by which the application for leave to appear and defend the suit was dismissed and judgment entered for the applicants. A decree was extracted and a warrant of attachment and sale of movable property was issued on 18^th June 2013. A return of the warrant was filed on 24^th July 2013 stating that it was never executed because the only property, that is, the coffee the plaintiffs had shown the court bailiff had already been sold by the time the warrant was issued and the coffee processing machine was a hired one.

The bailiff also informed the registrar that he could not apply for a warrant of arrest of the directors because the plaintiff (applicants) supplied coffee to the company and the directors had changed business and shifted their office to an unknown place. The applicants then brought this application for lifting the corporate veil of the 1^st respondent company to make the directors personally liable for the judgment debt.

As argued by counsel for the applicants, corporate veil can be lifted in instances where the company is merely being used as a shield to defraud public. In the cases cited by counsel for the 1^st applicant the corporate veils were lifted for various reasons. In Re Williams Bros Ltd (1932) 2ch.71, a company was insolvent but the directors continued to carry on its business and purchased its goods on credit. It was held that if a company continues to carry out business and to incur debts at a time when there is, to the knowledge of the directors, no reasonable prospects of the creditors ever receiving payments of these debts, it is in general a proper inference that the company is carrying on business with intent to defraud.

In the instant case, the applicants supplied coffee to the 1^st respondent company with the hope that the same would be fully paid for but only part payment was made leaving an outstanding balance which is now the decretal sum. Instead of the 1^st respondent paying for the same, it is alleged that some fraudulent acts like changing directorship of the company and shifting the company place of business without complying with the requirement of filing a notice of change of address by the company have been done to avoid payment of that sum.

Evidence of the alleged change of directors is contained in a certified copy of Company Form No. 8 being the Notification of Change of Directors or Secretary or in their Particulars dated 29^th April 2013,  a Resolution to sell shares of the 2^nd & 3^rd respondents to Kasasa Ronald and Nakibuka Clare respectively dated 29^th April 2013 both having been filed on 3^rd May 2013; Company Form No. 3 being the Return of Allotment of Shares to the said Kasasa Ronald and Nakibuka Clare filed on 27^th June 2013, Company Form No. 7 being the Particulars of Directors and Secretaries that was originally filed on 1^st June 2007 indicating that the 2^nd respondent was the Managing Director and the 3^rd respondent was the General Manager of the 1^st respondent and the Form of Annual Return of a Company Having a Share Capital made up to the 27^th day of April 2011 being the fourteenth day after the date of the Annual General meeting for the year 2012. This return was filed on 18^th February 2013 and it indicated that the 2^nd and 3^rd respondents are the shareholders and directors of the 1^st respondent company.

I must point out at this juncture that the above certified copies of the company documents were provided later when this court brought to the attention of the applicants that what was originally attached to the affidavit of the 1^st applicant were not duly certified by Uganda Registration Services Bureau (URSB). That anomaly was discovered by this court in the process of preparing the ruling and counsel for the 1^st applicant undertook to avail certified copies of those documents with a cover letter from URSB within three days from the date of that communication. However, this was not done within the three days as undertaken but the documents were subsequently provided more than one month later and moreover without the official covering letter. Of course, without the official covering letter those documents would be suspect.

Be that as it may, I have carefully examined those documents and I find that, first of all they were presented at the URSB by M/S Jingo, Ssempijja & Co. Advocates the same law firm that represented the 1^st respondent in M/A No. 693 of 2012 arising from HCCS No. 502 of 2012. Secondly, a lay person’s comparison of the signature of the 2^nd respondent as it appears in those company documents and in the affidavit in support of M/A No. 693 of 2012 sworn by him shows a very close similarity between the two implying that he is the same person who also signed the company documents.

For the above reasons, I would accept the certified copies of the company documents as originating from the URSB and rely on them in determining this application. I would therefore agree that indeed the 2^nd and 3^rd respondents have changed the directorship and shareholding of the company by appointing new directors and selling their shares to them. I have particularly noted the timing of the event as drawn to this court’s attention by the applicants. The ruling of this court dismissing the 1^st respondent’s application for leave to appear and defend the suit and entering judgment for the applicants was delivered on 12^th March 2013 and the decree was issued on 20^th March 2013. The applicant’s counsel filed an application for execution of the decree on 19^th May 2013 and a warrant of attachment and sale was issued on 18^th June 2013.

On the other hand, the Company Form No. 8 notifying the registrar of companies of the change of directors and giving their particulars as well as the resolution to sell shares of the 2^nd & 3^rd respondents were prepared on 29^th April 2013 and filed on 3^rd May 2013.

According to the return of warrant filed by the court bailiff on 17^th July 2013, by the time he proceeded to the 1^st respondent’s business premises the coffee in the store had already been sold and the 1^st respondent’s business offices had relocated to an unknown location. It is also noteworthy that this court had earlier granted an informal application to serve the respondents by substituted service for the same reason that their offices had been relocated and the applicants did not know where they shifted to. For that reason, the applicants have not been able to find the 1^st respondent’s new business premises and consequently, the decree has never been executed. The fundamental question that comes to mind is, whether the change of shareholding/directorship of the 1^st respondent company and the relocation of its business premises is a mere coincidence or it was intended to defeat the applicants’ claim. I will answer this question shortly after dealing with another matter of concern as I do below.

I must point out that counsel for the 1^st respondent attempted to adduce evidence from the bar that were never contained in the affidavit in support of this application. To that end, he even tried to smuggle some documents through the back door by attaching them to his submission to prove that the 1^st respondent has no property of its own but the 2^nd and 3^rd respondents would use their properties to secure its loans or debentures. This was a strange procedure unknown to this court and for that matter I ignored those documents.

Despite the above observations, it is clear that the 1^st respondent is unable to pay the applicants and there are steps taken by the 2^nd and 3^rd respondents who are persons behind that company to frustrate the applicants from receiving the fruit of their decree. I find those actions of the 2^nd and 3^rd respondents not innocent given the timing. It could not have been a mere coincidence. That was, in my view, fraudulent trading as was stated in R v Graham (1984) QB.675. In that case it was held that a person is guilty of fraudulent trading if he has no reason to believe that the company will be able to pay its creditors in full by the dates when the respective debts become due or within a short time thereafter.

In Salim Jamal & 2 Others v Uganda Oxygen Ltd & 2 Others (1997) II KALR 38 the Supreme Court held that corporate personality cannot be used as a cloak or mask for fraud. Where this is shown to be the case the veil of incorporation may be lifted to ensure that justice is done and the court does not look helplessly in the face of such fraud.

The evidence brought before this court as discussed above proves that the 2^nd and 3^rd respondents are using the 1^st respondent company to trade well knowing that it will not fully pay its creditors. In effect they are using it as a mask to defraud the applicants of the proceeds of their coffee which they supplied and were not fully paid for. Therefore this court cannot look helplessly in the face of that fraud and allow the 2^nd and 3^rd respondents to get away with it.

In the circumstances, I would in the interest of justice allow this application by lifting the veil of incorporation of the 1^st respondent company and it is accordingly lifted. Since there is proof that the 2^nd and 3^rd respondents were its shareholders and directors when the debt was incurred and subsequently when the judgment was obtained and the decree issued, they should become liable for that decretal sum.

In the result, it is ordered that the 2^nd and 3^rd respondents shall jointly and severally pay the sum of UGX 163,277,000/= plus interest at 22% and costs of the suit pursuant to the decree in HCCS No. 502 of 2012 given under the hand and seal of this court on the 20^th day of March 2013.

Costs of this application are awarded to the applicants.

I so order.

Dated and signed this ….day of November 2015.

Hellen Obura

JUDGE