Are you buying or planning to buy gold in Uganda? There is need for effective due diligence investigation before wiring that money in a gold purchase transaction to avoid scam transactions and loosing your millions of dollars. Preliminary investigation will guide you on whether you are dealing with a genuine gold dealer licensed to deal in gold in Uganda; whether the shipping agent has the requisite licenses; whether the relevant documents, licenses, certificates involved in the transactions are genuine or authentic among others.
Majority of the time, buyers consult lawyers for investigations after being scammed and loosing large sums of money. Its highly recommended to do due diligence investigation to avoid being scammed. The law in Uganda regulates dealing in minerals like gold and a purchaser will be caught by the common law rule of “buyer be ware” Thus a buyer should investigate first using publically available information and should as well ask the seller to fully disclose material information in the sellers possession or known to the seller at the time of the transaction. A prospective buyer should investigate the particulars of the seller; whether the seller is a legal person and has the requisite licenses and certificates among others. The services of a lawyer experienced in such transaction is very important before any payment is exchanged.
A buyer should have a gold purchase agreement which clearly describes the parties, the shipping agents if any, the obligations of the seller; the time lines for delivery; recovery of purchase price in case of failure to deliver among others. Given the large sums of money usually involved in the gold purchase transactions, it is always prudent for a buyer to seek experienced and reliable legal representation in the transaction from an attorney in Uganda well versed in gold purchase due diligence investigations. Purchaser should consider escrow services and or collateral arrangements to secure down payments.
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2023/11/Frame-309.jpg?fit=1280%2C720&ssl=17201280adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2023-11-28 10:42:102023-11-28 10:46:39Buying Gold in Uganda; avoid a scam transaction. Effective duediligence investigation that you should do before wiring that moneyin a gold purchase transaction.
A mortgage is a legal agreement by which the mortgagee (a bank, building society or money lending company) lends money at an interest in exchange for taking title of the debtor’s property, with the condition that the conveyance of the title becomes void upon the payment of the loan.[1] Default on the side of mortgagor entitles the mortgagee the rights to appoint a receiver, take possession of the property, and lease the property or even sale off the property.[2]
The mortgage Act, 2009 which is the major law governing mortgages in Uganda defines a mortgage to include any charge or lien over repayment of an existing or future or contingent debt or other money’s worth or performance of an obligation and includes a second or subsequent mortgage and a third party mortgage.[3] A charge as used in the definition is defined as a right created by the borrower on the property to secure the repayment of a debt (principal sum and the interest thereon) in favor of the lender (mortgagee) that advanced funds to the mortgagor.[4] The creation of a charge on property gives the charge holder (mortgagee) the right to sell or transfer the property of the charge creator (mortgagee). Section 3 of the Act[5] gives powers to any person holding land under any form of tenure to mortgage his/her interest in land or part of it to secure the payment of a loan. The power to create a mortgage is exercised upon executing the duties under the law. This article will discuss the duties of both the Mortgagor and Mortgagee in creating a legal mortgage.
1.2 Duties of the Mortgagor
A mortgagor is a person who has mortgaged land or an interest in land.[6] The person who gives in his/her land as security to secure a loan is the one referred to as the mortgagor while the bank or any financial institution that advances the loan is referred to as the mortgagee. These terms are sometimes confusing and therefore they need to be understood from the beginning. The duties of the mortgagor include:
1.2.1 Duty to disclose information
The mortgagor has the duty to act honestly and in good faith and disclosing all relevant information relating to the mortgage.[7] The mortgagor has the duty to disclose to the mortgagor whether the property intending to be mortgaged is comprises matrimonial or family home and whether he/she is married for purposes of obtaining Spousal consent which is an important requirement when it comes to mortgaging matrimonial property.
1.2.2 Duty to disclose whether property subject to the mortgage comprises of a matrimonial home or Family land
To execute this duty, what constitutes family land and matrimonial home ought to be understood and by way of definition, Family land means the land that enjoys statutory proportion of a spouse who is not the owner or registered proprietor on which is situate the ordinary residence of the family and from which the family derives substance.[8]Matrimonial home on the other hand is defined as a building or part of a building in which a husband and wife or, as the case may be, wives, and their children ordinarily reside together and this includes where a building and its curtilage are occupied primarily for residential purposes. It also includes where a building is on or occupied in conjunction with agricultural land or pastoral land, any land allocated by one spouse to his or her spouse or in the case of a husband, the spouse for his or her exclusive use.[9]
Lawyers have interpreted differently the phrase “a building or part of a building in which a husband and wife….” As used in the definition of a matrimonial home under section 2 of the Act.[10] The lawyers seem to suggest that if a husband and a wife occupy one apartment on a block comprising four apartments then the whole of the block is matrimonial property. Indeed their reasoning is supported by the case of Kinzler Vs. Kinzler[11] where court found that a whole of the hotel not only the living quarters occupied by the couple to be matrimonial home since the whole hotel had only one door and one kitchen. However Judge Owiny-Dollo ( As he then was) in the case of Hellen Kipsoy Wafula V Equity Bank & Anor[12] gives the proper interpretation as he notes;
“There is one point of law I need to clarify here, as is shown above, section 2 of the Act clearly states that marital home is “a building or part of a building in which a husband and wife….the law refers to a building and in the alternative part of the building. it does not say a building or part which a husband and wife…. This is quite instructive. The plain meaning of the phrase ‘part of a building’ in the provision of the law is that it envisages a situation where a family may occupy only part of a building and as such, it is not the whole of the building so occupied that qualifies as matrimonial property.
This therefore means that if a family occupies an apartment on a block of four apartments, the whole Block is not matrimonial property but rather the part that is occupied by the family is what is termed as matrimonial property in the context of section 2 of the Mortgage Act, 2009.[13]
The mortgagor therefore has the duty to disclose to the Mortgagee that the property intended to be mortgaged is a matrimonial home or family land and this explain the reason to understand the definitions of both family land and Matrimonial home as discusses above.
1.2.3 Duty to disclose his or her marital status
An intending mortgagor has the duty to make full disclosure to the intending Mortgagee his or her marital status. This is mandatory under section 5(2) (b) of the Mortgage Act, 2009. This duty is to ensure that spousal consent is obtains in case the land to be mortgaged is a matrimonial home or family land. Who then is the Spouse of a mortgagor? A spouse is a husband or wife recognized by law. This means that for anyone to qualify as a spouse in Uganda he/she must be married in accordance with the marriage laws of Uganda. The forms of marriage recognizes in Uganda include Civil and Church marriage celebrated under the Marriage Act,[14] Customary Marriage under the Customary Marriage (Registration) Act,[15] Mohammedan Marriage under the Marriage and Divorce of the Mohammedans Act[16] and Hindu Marriage under the Hindu marriage and Divorce Act.[17] It should therefore be noted that if you are not married in accordance with the above laws you do not qualify as a spouse for purpose of giving spousal consent.
1.2.4 Legal effect of none disclosure
The Mortgagor who fails or neglects or refuses to disclose relevant information to a mortgage and which is in his or her possession commits an offence and is liable on conviction to a fine not less than 960,000 but not exceeding 2,400,000 Ugx or Imprisonment of 24 months but not exceeding 64months.[18] In Natty Ntare V Equity Bank & Anor[19] A mortgagor who lied about her marital status and that the property to be mortgaged is not matrimonial home to the mortgagee was found liable under section 4(2) of the Mortgage Act, 2009.
1.2.5 Duty to inform the Mortgagee on the intention to commence a suit
A mortgagor who intends to commence a suit or action in court in respect of the mortgaged land has the duty to notify the mortgagee. The mortgagee is informed through a notice in writing of the intentions and the nature of action which is to be commenced by the mortgagor.[20]
1.3 DUTIES OF A MORTGAGEE
A mortgagee is a person in whose favor a mortgage is created or subsists and includes any person deriving title under the original mortgage.[21] A mortgagee may mean an institution that advanced a loan to the mortgagor for example it can be a bank or a company licensed to carry out a money lending business. The Mortgagee has duties to perform before advancing a loan to an individual and these include;
1.3.1 Duty to conduct Due diligence
Due to fraud associated with land transactions, the mortgagee is under duty to carryout due diligence before advancing the loan to ensure that it does not involve legal risks. The mortgagee has the duty to conduct a search at the land registry to help to confirm the authenticity of the information on the title. The search at the registry helps to ascertain the right property ownership, identifying conditions on the land, pending rates or finding out if there is any other encumbrance on the title. The Mortgagee is also duty bound to visit the land intending to be mortgaged to see if there is any body in occupation of the land other than the mortgagor or if there are people with adverse interests on the land. This visit offers an opportunity to gather some information that the Registrar might not provide especially in regards to the history of the land.
1.3.2 The duty to ascertain whether the intended mortgager is married or not
This duty is intended for purposes of ascertaining Spousal Consent. Spousal consent is an important aspect as it provides for the security of occupancy of the spouse. As already discussed a spouse is on that is married under the marriage laws of Uganda. Where the Mortgagor discloses that he or she is married, the mortgagor is required to state the name and address of his/her spouse in a statutory declaration.[22] Similarly where the mortgagor states that he/she is married, the spouse of the person is required to make a statutory declaration to that effect. The mortgagor is then required to attach a copy of the marriage certificate or any other evidence of the marriage in the declaration.[23] In a similar way, when the mortgagor informs the mortgagee that he or she is not married, this information is given in a statutory declaration. The duty to find out whether the intended mortgagor is married extends to visiting the mortgagor’s home and surrounding areas to inquire in the marital status of the mortgagor. It also involves inquiries from local leader (LC leaders) on the marital status in the village where the mortgagor resides.[24]
1.3.3 The Duty to Ascertain Whether Or Not the Property Intended to Be Mortgaged Is Matrimonial Home or Family Land
The purpose of ascertaining whether property is matrimonial home is to enable the mortgagee obtain spousal consent which is very important issue when it comes to mortgages. Many banks have lost cases in courts of law for failure to obtain spousal consent which is a mandatory requirement when dealing with matrimonial property. This is because many intending mortgagors lie about their marital status while mortgaging matrimonial property and the bank do not carry out their due diligence to find out whether the properties subject to the mortgage is matrimonial property and therefore go ahead advance loans to such mortgagors. In the end the Mortgage is nullified by court and the banks suffer loss.[25] It is therefore paramount that banks effectively execute their duties in ascertaining that property is matrimonial property and obtain the necessary spousal consent.
1.3.4 Duty to provide independent Advice
In instances where matrimonial home is subject to an application for mortgage, the mortgagee has the duty to provide independent advice to the mortgagor’s spouse(s) for purposes of obtaining spousal consent. This duty is deemed to be executed when the mortgagee explains the terms and conditions of the mortgage in the presence of an independent person and when the Mortgagee advises the mortgagor that he or she should ensure that his/her spouse received independent advice on the terms and conditions of the mortgage which is being applied for and the spouse signed and witnessed documents to the effect that they received independent advice.[26] Not everyone is qualified to give independent advice, independent advice can only be given by an officer of the government, a justice of the peace, an advocate, a notary public, a bank manager, a minister of any religion authorized to celebrate marriages and a medical practitioner.[27]
1.3.5 Duty to disclose information
The mortgagee like the mortgagor has the duty to act honestly and in good faith and to disclose all the relevant information relating to the mortgage. The Mortgagee who fails or neglects or refuses to disclose relevant information to a mortgage and which is in his or her possession commits an offence and is liable on conviction to a fine not less than 960,000 but not exceeding 2,400,000 Ugx or Imprisonment of 24 months but not exceeding 64months.[28]
1.3.6 Duty to notify the mortgagor in case of default
A mortgagee is under duty to server a notice of default where a mortgagor fails to meet any obligations to pay the principal sum on demand or interest after a period of 30 days from the date when the obligation to pay becomes due.[29]The notice of default stipulates the nature and extent of default made by the mortgagor, the amount that must be paid to rectify the default, and the time in which the default must be made[30] and this time must not be less than 21 days.[31]The notice must be in writing and requiring the mortgagor to rectify the default in 45 working days.[32]
1.4 Conclusion
In conclusion to minimize the risk of losing money to dishonest mortgagors who fail to disclose vital information relating to the mortgage for example those who tell lies about their marital status and whether property to be mortgaged is matrimonial property, the mortgagees have to take all reasonable steps to investigate all information relating to the mortgagors including finding out if they are married and if the property to be mortgaged forms part of matrimonial home or family land. This means mortgagees have to move an extra mile of visiting the local areas of the mortgagor to ascertain whether they are married and whether the property intending to be mortgaged is matrimonial home to avoid financial risk.
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2022/11/alit.png?fit=1280%2C720&ssl=17201280adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2022-11-17 16:06:052022-12-01 18:38:12The Law Of Mortgages In Uganda: What Are The Duties Of The Mortgagor And The Mortgagee?
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2022/06/innp.jpg?fit=1280%2C720&ssl=17201280adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2022-06-20 10:15:412022-06-20 10:15:46Highlights Of The Landlord-tenant Act, 2022
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2022/06/oil.jpg?fit=1280%2C720&ssl=17201280adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2022-06-19 11:23:142024-03-13 12:56:46Will The National Content Requirement In The Oil And Gas Sector In Uganda Benefit The Host Communities?
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2022/06/overview.jpg?fit=1280%2C720&ssl=17201280adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2022-06-19 10:30:072022-06-19 10:36:50An Overview Of The Changes Introduced By The Public Procurement And Disposal Of Public Assets (Amendment) Act Of 2021
An NGO is required to obtain both a Certificate of Registration and a Permit of operation at the first instance of registration before it commences operations. A Certificate of Registration is issued once and a Permit of Operation is issued for a period between one (1) to five (5) years as desired by the organization. Upon expiry, an NGO is required to first renew its Permit of operation before proceeding with its operations. An NGO whose permit expires, but continues to operate without renewal of its permit will be fined one hundred currency points (UGX 2,000,000) for every month of operation in default of renewal of its permit. The requirements for renewal of an NGO Permit are as indicated below; and apply to Indigenous, Regional, Continental, Foreign and International NGOs)
Checklist of the requirements for renewal of an NGO Permit in Uganda
Application for renewal Form H.
A letter requesting for registration and a permit to operate, adressed to the Executive Director, NGO Bureau, indicating the objectives of the organisation, area of operation, and number of years applied for not exceeding (5) five.
A Photocopy of the expiring permit of operation.
A copy of certified financial statements for the previous years signed by a Certified Auditor.
Minutes of the Annual General Assembly which passed resolution for renewal of permit and signed attendance list.
Annual Workplan and Itemised Budget for the number of years applied for in the Permit application.
Annual Reports of the previous years
Copies of valid identification documents (National ID or Passport) and Passport size Photos of the promoters/founder members.
Certified copy of a certificate of registration from URSB or equivalent from country of origin.
A recommendation from the District Non Governmental Organisation Monitoring Committee (DNMC) from the Headquarters where the organisation is located.
Certified copy of the Memorandum of Understanding from the district of operation.
Certified copy of Certificate of Registration from Financial Intelligence Authority (FIA).
Copy of the tax identification Number Certificate (TIN) for the organisation from URA.
Proof of payment of prescribed fees for the Operation Permit.
Copy of Internal Monitoring Tool (IRF)
For more information contact us at www.lawyers-uganda.com or mobile and whatssapp +256752024021
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2022/03/renewal-1.jpg?fit=2560%2C1440&ssl=114402560adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2022-03-16 23:12:542022-03-16 23:18:33Requirements for renewal of an NGO Permit in Uganda as of March 2022
An NGO is a legal entity that is formed for purposes of carrying out charitable activities and is ideally a Not for Profit organisation. NGOs are permitted to carry out profitable activities for purposes of supporting their charitable works. An NGO is capable of owning its own property/assets (like owning land and vehicles in its names); it can hold a bank account; it can enter into contracts; it can employ personel in its own names; it can borrow money in its own names and can sue or be sued. It has to be distinguished from a Community Based Organisation (CBO) which does not possess such attributes of a corprorate entity.
Requirements and stages involved in the registration of an NGO in Uganda.
NGOs in Uganda are registered at the NGO Bureau (National Bureau for Non Governmental Organisations.The Non-Governmental Organizations Act, 2016 mandates the NGO Bureau to register and maintain an up-to-date register of all NGOs in Uganda. NGOs are registered under five different categories namely Indigenous/local, Regional, Continental, Foreign and International.
It is at this office that documents are received in hard copies and once registered, the organisation is given an Operation Permit and Registration Certificate. A Registration Certificate is given once and the organisation uses the same certificate through out its years of operation. An Operation Permit on the other hand is given for the number of years the organisation applies for, ranging from one year to five years. The Operation Permit is renewable with in 6 months before the period stated on the permit expires.
Checklist of the requirements for registration of an NGO in Uganda
Application for registration Form A.
Application for Permit of Operation Form D
A letter requesting for registration and a permit to operate, adressed to the Executive Director, NGO Bureau, indicating the objectives of the organisation, area of operation, and number of years applied for not exceeding (5) five.
A Certified or Notarised Certificate of Incorporation from Uganda Registration Services Bureau (URSB).
Annual Workplan and Itemised Budget for the number of years applied for in the Permit application.
A copy of the Organisations Memorandum and Articles of Association or Constitution with clear provisions on AGM, Quorum for winding up resolution, Governing body, Dissolution Clause and how assets shall be distributed upon winding up, among others.
A chart showing the Organisational Structure of the NGO.
A statement indicating source of funding for the activities of the organisation.
Copies of valid identification documents (National ID or Passport) and Passport size Photos of the promoters/founder members.
A copy of Minutes of the meeting that passed a resolution for NGO registration minuted according to NGO Bureau requirements, signed attendance list and the resolution duly registered.
A statement of compliance with S.45 of the NGO Act 2016 on staffing requirements for non national staff.
A recommendation from the District Non Governmental Organisation Monitoring Committee (DNMC) from the Headquarters where the organisation is located.
Copy of the Memorandum of Understanding from the district of operation.
Recommendation from responsible Ministry or Government Department or Agency.
Proof of payment of prescribed fees for the Certificate of Registartion and Operation Permit.
Copy of Internal Monitoring Tool (IRF)
Stage one involves promotion and incorporation of the organisation as a company limited by guarantee with standard clauses for NGOs in the Articles of Association. At this stage the company is given a Certificate of Incorporation and directors are appointed, the organisations constitution (Memorandum and articles of association) are registered.
Stage two is preparation of all legal documents required for NGO registration, organisations documents like budget, workplan; securing of all necessary recomendations and MOU from the district and line Ministry.
Stage three is the application process.
For more information contact us at www.lawyers-uganda.com or mobile and whatssapp +256752024021
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2022/03/registration-1.jpg?fit=2560%2C1440&ssl=114402560adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2022-03-16 21:16:532022-03-16 21:19:27Requirements for registration of an NGO (Non Governmental Organisation) in Uganda as of March 2022
DANGERS OF USING UNREGISTERED TRADEMARKS AND BENEFITS OF REGISTRATION
What is a trade mark?. Different authorities have given the meaning of a trademark. The Trademarks Act 2010 of Uganda defines a trademark to mean: a sign or mark or combination of signs or marks capable of being represented graphically and capable
of distinguishing goods or services of one undertaking from those of another undertaking.
For every successful and time tested corporate brand (trademark), that everyone wants to associate with, behind the scenes, a lot of effort and resources have been sunk into intricate trademark development and aggressive protection. Company brands and trademarks are amongst a company’s valuable assets. A study done by the UK’s IP office reveals that an estimated 6% of most company investments are spent in company brand protection.
Branding starts and centers around your use of distinctive images, symbols, colors and styles, and caricatures, which most appropriately separate and preposition your goods, or services as unique from others on the same market, giving both a protection to your customers and also acquiring brand image and build up brand loyalty amongst your consumers.
Dangers of using unregistered trademarks
Until a name or logo is registered as a trademark, you cannot be certain that it belongs to you. If another person or business registers the mark first, you may find yourself in the highly inconvenient and very costly position of becoming embroiled in litigation and potentially having to withdraw your products, redesign your packaging and marketing literature, and pay damages or an account of profits to the registered trademark owner. Besides the quantifiable costs, you could also risk any goodwill that you may have established in the brand name over the years, over a product that you have painfully taken years to create, just because you didn’t take the extra step of registering it.
Available research from world intellectual property organisation shows that over 80% of SMEs fail to register their trademarks. The majority think that it is not important to their business, with others citing lack of time, lack of understanding of the process of registration and costs associated with registration. By failing to register their trademarks, these businesses are not only damaging their brands and reputation, but also put their businesses at risk and in the end, loose out in the market battle.
Benefits of trademark registration
When you register your trademark, you ensure that you are in a position to prevent others from using or registering a similar one and that is the key to maintaining a strong brand.
Section 34 of the Trademarks Act 2010 is to the effect that a person may not institute proceedings to prevent or to recover damages for an unregistered trademark. Section 35 saves the right of action against a person for passing off goods or services as the goods or services of another or the remedies in respect of the right of action.
Protection under section 35 is only afforded to an unregistered trademark where a mark has acquired a substantial reputation. Even then, the hurdles to be over come in order to succeed in enforcing those unregistered rights against a third party, and the associated costs, are such that many businesses are inhibited from taking the legal action, and those that do, often fail.
By registering its trademark, a business greatly improves its ability to prevent a third party from using or seeking to register conflicting marks, and to seek appropriate remedies, such as an injunction and or damages, in the case of an infringement.
Trademark registrations are also valuable, transferable assets, which can be used as negotiating tools in business transactions and as security for financial transactions. Intellectual capital is recognised as the most important asset of many of the world’s largest and most powerful companies; it is the foundation for market dominance and continuing profitability of leading companies. It is often the key objective in mergers and acquisitions.
What to consider while developing a good trademark
Before coming up with the appropriate idea of a trademark, ask yourself, what your particular brand is and what word best expresses your brand. Also imagine what typography conveys the feeling of your brand. For example, what colors are consistent with your brand’s personality?. Your trademark can include a graphic, and if so, choose graphic expression which will best complement your brand. Finally, ask yourself the hard question on whether the trademark helps distinguish your brand from the competition?.
It is important that every business, however small, urgently puts in place an effective and proactive trademark development and registration strategy to ensure that all its brands are properly protected, and that those it enters into contract with to use the those brands are not going to land them in trouble with other trademark owners.
The use of effective trademark watching and monitoring procedures is also fundamental to the maintenance of a strong and enforceable trademark in the market; it helps to identify potential sources of conflict, including potential infringers, and prevents the dilution of one’s trademarks.
Where to find help
You should seek the advice of a trademark attorney for help in developing or implementing your trademark protection strategy. The trademark attorney should be in position to guide you through the trademark selection and registration process and advice on all aspects of the protection and enforcement of your trademarks.
https://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.png00adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2021-09-14 21:24:252021-09-14 21:24:30DANGERS OF USING UNREGISTERED TRADEMARKS
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2021/09/RECOGNITION-AND-ENFORCEMENT-OF-FOREIGN-JUDGEMENTS-IN-EAST-AFRICA.png?fit=1200%2C628&ssl=16281200adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2021-09-10 15:48:232021-09-10 15:48:56Recognition And Enforcement Of Foreign Judgements In East Africa
https://i0.wp.com/www.lawyers-uganda.com/wp-content/uploads/2021/09/ALTERNATIVE-DISPUTE-RESOLUTION-IN-EAST-AFRICA.png?fit=1200%2C630&ssl=16301200adminhttps://www.lawyers-uganda.com/wp-content/uploads/2022/01/logo211.pngadmin2021-09-10 13:50:522021-09-10 13:51:21Alternative Dispute Resolution In East Africa
Buying Gold in Uganda; avoid a scam transaction. Effective duediligence investigation that you should do before wiring that moneyin a gold purchase transaction.
Are you buying or planning to buy gold in Uganda? There is need for effective due diligence investigation before wiring that money in a gold purchase transaction to avoid scam transactions and loosing your millions of dollars. Preliminary investigation will guide you on whether you are dealing with a genuine gold dealer licensed to deal in gold in Uganda; whether the shipping agent has the requisite licenses; whether the relevant documents, licenses, certificates involved in the transactions are genuine or authentic among others.
Majority of the time, buyers consult lawyers for investigations after being scammed and loosing large sums of money. Its highly recommended to do due diligence investigation to avoid being scammed. The law in Uganda regulates dealing in minerals like gold and a purchaser will be caught by the common law rule of “buyer be ware” Thus a buyer should investigate first using publically available information and should as well ask the seller to fully disclose material information in the sellers possession or known to the seller at the time of the transaction. A prospective buyer should investigate the particulars of the seller; whether the seller is a legal person and has the requisite licenses and certificates among others. The services of a lawyer experienced in such transaction is very important before any payment is exchanged.
A buyer should have a gold purchase agreement which clearly describes the parties, the shipping agents if any, the obligations of the seller; the time lines for delivery; recovery of purchase price in case of failure to deliver among others. Given the large sums of money usually involved in the gold purchase transactions, it is always prudent for a buyer to seek experienced and reliable legal representation in the transaction from an attorney in Uganda well versed in gold purchase due diligence investigations. Purchaser should consider escrow services and or collateral arrangements to secure down payments.
The Law Of Mortgages In Uganda: What Are The Duties Of The Mortgagor And The Mortgagee?
1.1 Introduction
A mortgage is a legal agreement by which the mortgagee (a bank, building society or money lending company) lends money at an interest in exchange for taking title of the debtor’s property, with the condition that the conveyance of the title becomes void upon the payment of the loan.[1] Default on the side of mortgagor entitles the mortgagee the rights to appoint a receiver, take possession of the property, and lease the property or even sale off the property.[2]
The mortgage Act, 2009 which is the major law governing mortgages in Uganda defines a mortgage to include any charge or lien over repayment of an existing or future or contingent debt or other money’s worth or performance of an obligation and includes a second or subsequent mortgage and a third party mortgage.[3] A charge as used in the definition is defined as a right created by the borrower on the property to secure the repayment of a debt (principal sum and the interest thereon) in favor of the lender (mortgagee) that advanced funds to the mortgagor.[4] The creation of a charge on property gives the charge holder (mortgagee) the right to sell or transfer the property of the charge creator (mortgagee). Section 3 of the Act[5] gives powers to any person holding land under any form of tenure to mortgage his/her interest in land or part of it to secure the payment of a loan. The power to create a mortgage is exercised upon executing the duties under the law. This article will discuss the duties of both the Mortgagor and Mortgagee in creating a legal mortgage.
1.2 Duties of the Mortgagor
A mortgagor is a person who has mortgaged land or an interest in land.[6] The person who gives in his/her land as security to secure a loan is the one referred to as the mortgagor while the bank or any financial institution that advances the loan is referred to as the mortgagee. These terms are sometimes confusing and therefore they need to be understood from the beginning. The duties of the mortgagor include:
1.2.1 Duty to disclose information
The mortgagor has the duty to act honestly and in good faith and disclosing all relevant information relating to the mortgage.[7] The mortgagor has the duty to disclose to the mortgagor whether the property intending to be mortgaged is comprises matrimonial or family home and whether he/she is married for purposes of obtaining Spousal consent which is an important requirement when it comes to mortgaging matrimonial property.
1.2.2 Duty to disclose whether property subject to the mortgage comprises of a matrimonial home or Family land
To execute this duty, what constitutes family land and matrimonial home ought to be understood and by way of definition, Family land means the land that enjoys statutory proportion of a spouse who is not the owner or registered proprietor on which is situate the ordinary residence of the family and from which the family derives substance.[8]Matrimonial home on the other hand is defined as a building or part of a building in which a husband and wife or, as the case may be, wives, and their children ordinarily reside together and this includes where a building and its curtilage are occupied primarily for residential purposes. It also includes where a building is on or occupied in conjunction with agricultural land or pastoral land, any land allocated by one spouse to his or her spouse or in the case of a husband, the spouse for his or her exclusive use.[9]
Lawyers have interpreted differently the phrase “a building or part of a building in which a husband and wife….” As used in the definition of a matrimonial home under section 2 of the Act.[10] The lawyers seem to suggest that if a husband and a wife occupy one apartment on a block comprising four apartments then the whole of the block is matrimonial property. Indeed their reasoning is supported by the case of Kinzler Vs. Kinzler[11] where court found that a whole of the hotel not only the living quarters occupied by the couple to be matrimonial home since the whole hotel had only one door and one kitchen. However Judge Owiny-Dollo ( As he then was) in the case of Hellen Kipsoy Wafula V Equity Bank & Anor[12] gives the proper interpretation as he notes;
“There is one point of law I need to clarify here, as is shown above, section 2 of the Act clearly states that marital home is “a building or part of a building in which a husband and wife….the law refers to a building and in the alternative part of the building. it does not say a building or part which a husband and wife…. This is quite instructive. The plain meaning of the phrase ‘part of a building’ in the provision of the law is that it envisages a situation where a family may occupy only part of a building and as such, it is not the whole of the building so occupied that qualifies as matrimonial property.
This therefore means that if a family occupies an apartment on a block of four apartments, the whole Block is not matrimonial property but rather the part that is occupied by the family is what is termed as matrimonial property in the context of section 2 of the Mortgage Act, 2009.[13]
The mortgagor therefore has the duty to disclose to the Mortgagee that the property intended to be mortgaged is a matrimonial home or family land and this explain the reason to understand the definitions of both family land and Matrimonial home as discusses above.
1.2.3 Duty to disclose his or her marital status
An intending mortgagor has the duty to make full disclosure to the intending Mortgagee his or her marital status. This is mandatory under section 5(2) (b) of the Mortgage Act, 2009. This duty is to ensure that spousal consent is obtains in case the land to be mortgaged is a matrimonial home or family land. Who then is the Spouse of a mortgagor? A spouse is a husband or wife recognized by law. This means that for anyone to qualify as a spouse in Uganda he/she must be married in accordance with the marriage laws of Uganda. The forms of marriage recognizes in Uganda include Civil and Church marriage celebrated under the Marriage Act,[14] Customary Marriage under the Customary Marriage (Registration) Act,[15] Mohammedan Marriage under the Marriage and Divorce of the Mohammedans Act[16] and Hindu Marriage under the Hindu marriage and Divorce Act.[17] It should therefore be noted that if you are not married in accordance with the above laws you do not qualify as a spouse for purpose of giving spousal consent.
1.2.4 Legal effect of none disclosure
The Mortgagor who fails or neglects or refuses to disclose relevant information to a mortgage and which is in his or her possession commits an offence and is liable on conviction to a fine not less than 960,000 but not exceeding 2,400,000 Ugx or Imprisonment of 24 months but not exceeding 64months.[18] In Natty Ntare V Equity Bank & Anor[19] A mortgagor who lied about her marital status and that the property to be mortgaged is not matrimonial home to the mortgagee was found liable under section 4(2) of the Mortgage Act, 2009.
1.2.5 Duty to inform the Mortgagee on the intention to commence a suit
A mortgagor who intends to commence a suit or action in court in respect of the mortgaged land has the duty to notify the mortgagee. The mortgagee is informed through a notice in writing of the intentions and the nature of action which is to be commenced by the mortgagor.[20]
1.3 DUTIES OF A MORTGAGEE
A mortgagee is a person in whose favor a mortgage is created or subsists and includes any person deriving title under the original mortgage.[21] A mortgagee may mean an institution that advanced a loan to the mortgagor for example it can be a bank or a company licensed to carry out a money lending business. The Mortgagee has duties to perform before advancing a loan to an individual and these include;
1.3.1 Duty to conduct Due diligence
Due to fraud associated with land transactions, the mortgagee is under duty to carryout due diligence before advancing the loan to ensure that it does not involve legal risks. The mortgagee has the duty to conduct a search at the land registry to help to confirm the authenticity of the information on the title. The search at the registry helps to ascertain the right property ownership, identifying conditions on the land, pending rates or finding out if there is any other encumbrance on the title. The Mortgagee is also duty bound to visit the land intending to be mortgaged to see if there is any body in occupation of the land other than the mortgagor or if there are people with adverse interests on the land. This visit offers an opportunity to gather some information that the Registrar might not provide especially in regards to the history of the land.
1.3.2 The duty to ascertain whether the intended mortgager is married or not
This duty is intended for purposes of ascertaining Spousal Consent. Spousal consent is an important aspect as it provides for the security of occupancy of the spouse. As already discussed a spouse is on that is married under the marriage laws of Uganda. Where the Mortgagor discloses that he or she is married, the mortgagor is required to state the name and address of his/her spouse in a statutory declaration.[22] Similarly where the mortgagor states that he/she is married, the spouse of the person is required to make a statutory declaration to that effect. The mortgagor is then required to attach a copy of the marriage certificate or any other evidence of the marriage in the declaration.[23] In a similar way, when the mortgagor informs the mortgagee that he or she is not married, this information is given in a statutory declaration. The duty to find out whether the intended mortgagor is married extends to visiting the mortgagor’s home and surrounding areas to inquire in the marital status of the mortgagor. It also involves inquiries from local leader (LC leaders) on the marital status in the village where the mortgagor resides.[24]
1.3.3 The Duty to Ascertain Whether Or Not the Property Intended to Be Mortgaged Is Matrimonial Home or Family Land
The purpose of ascertaining whether property is matrimonial home is to enable the mortgagee obtain spousal consent which is very important issue when it comes to mortgages. Many banks have lost cases in courts of law for failure to obtain spousal consent which is a mandatory requirement when dealing with matrimonial property. This is because many intending mortgagors lie about their marital status while mortgaging matrimonial property and the bank do not carry out their due diligence to find out whether the properties subject to the mortgage is matrimonial property and therefore go ahead advance loans to such mortgagors. In the end the Mortgage is nullified by court and the banks suffer loss.[25] It is therefore paramount that banks effectively execute their duties in ascertaining that property is matrimonial property and obtain the necessary spousal consent.
1.3.4 Duty to provide independent Advice
In instances where matrimonial home is subject to an application for mortgage, the mortgagee has the duty to provide independent advice to the mortgagor’s spouse(s) for purposes of obtaining spousal consent. This duty is deemed to be executed when the mortgagee explains the terms and conditions of the mortgage in the presence of an independent person and when the Mortgagee advises the mortgagor that he or she should ensure that his/her spouse received independent advice on the terms and conditions of the mortgage which is being applied for and the spouse signed and witnessed documents to the effect that they received independent advice.[26] Not everyone is qualified to give independent advice, independent advice can only be given by an officer of the government, a justice of the peace, an advocate, a notary public, a bank manager, a minister of any religion authorized to celebrate marriages and a medical practitioner.[27]
1.3.5 Duty to disclose information
The mortgagee like the mortgagor has the duty to act honestly and in good faith and to disclose all the relevant information relating to the mortgage. The Mortgagee who fails or neglects or refuses to disclose relevant information to a mortgage and which is in his or her possession commits an offence and is liable on conviction to a fine not less than 960,000 but not exceeding 2,400,000 Ugx or Imprisonment of 24 months but not exceeding 64months.[28]
1.3.6 Duty to notify the mortgagor in case of default
A mortgagee is under duty to server a notice of default where a mortgagor fails to meet any obligations to pay the principal sum on demand or interest after a period of 30 days from the date when the obligation to pay becomes due.[29]The notice of default stipulates the nature and extent of default made by the mortgagor, the amount that must be paid to rectify the default, and the time in which the default must be made[30] and this time must not be less than 21 days.[31]The notice must be in writing and requiring the mortgagor to rectify the default in 45 working days.[32]
1.4 Conclusion
In conclusion to minimize the risk of losing money to dishonest mortgagors who fail to disclose vital information relating to the mortgage for example those who tell lies about their marital status and whether property to be mortgaged is matrimonial property, the mortgagees have to take all reasonable steps to investigate all information relating to the mortgagors including finding out if they are married and if the property to be mortgaged forms part of matrimonial home or family land. This means mortgagees have to move an extra mile of visiting the local areas of the mortgagor to ascertain whether they are married and whether the property intending to be mortgaged is matrimonial home to avoid financial risk.
[1] Oxford Dictionary
[2] Rights of the Mortgagee under section 20 of the Mortgage Act, 2009
[3] Section 2 of the Mortgage Act, 2009
[4] www.keydifferences.com/difference-between-mortgage-and-charge.html
[5] The Mortgage Act, 2009
[6]Section 2 of the Mortgage Act, 2009
[7] Section 4 of the Mortgage Act, 2009
[8]Section 38A (4) of the Land Act, Cap 227 as Amended
[9] Section 2 of the Mortgage Act, 2009
[10] Mortgage Act, 2009
[11] [1985] Fam Law 26 CA
[12] HCCS No. 153 of 2013
[13] Hellen Kipsoy Wafula V Equity Bank & Anor (HCCS No. 153 of 2013)
[14] Cap 251
[15] Cap 248
[16] Cap 252
[17] Cap250
[18] Section 4(2) of the Mortgage Act, 2009
[19] HCMA No. 16 of 2015
[20]Section 13 of the Mortgage Act, 2009
[21] Section 2 of the Mortgage Act, 2009
[22]Regulation 3 of the Mortgage Regulations, 2012
[23]Regulation 3 of the Mortgage Regulations, 2012
[24]Julliet Dushabe Twongyeire Vs. Orient Bank and 2 others ( HCCSNo. 131 of 4014)
[25] ibid
[26] Section 6(1) of the mortgage Act, 2009
[27] Section 6(2) of the Mortgage Act, 2009
[28] Section 4(2) of the Mortgage Act, 2009
[29] Section 19(2) of the Mortgage Act, 2009
[30] Section 19(3) of the Mortgage Act, 2009
[31] Section 19(2) (a) and (b) of the Mortgage Act, 2009
[32] Section 19(1) of the Mortgage Act, 2009
Highlights Of The Landlord-tenant Act, 2022
Will The National Content Requirement In The Oil And Gas Sector In Uganda Benefit The Host Communities?
An Overview Of The Changes Introduced By The Public Procurement And Disposal Of Public Assets (Amendment) Act Of 2021
Requirements for renewal of an NGO Permit in Uganda as of March 2022
An NGO is required to obtain both a Certificate of Registration and a Permit of operation at the first instance of registration before it commences operations. A Certificate of Registration is issued once and a Permit of Operation is issued for a period between one (1) to five (5) years as desired by the organization. Upon expiry, an NGO is required to first renew its Permit of operation before proceeding with its operations. An NGO whose permit expires, but continues to operate without renewal of its permit will be fined one hundred currency points (UGX 2,000,000) for every month of operation in default of renewal of its permit. The requirements for renewal of an NGO Permit are as indicated below; and apply to Indigenous, Regional, Continental, Foreign and International NGOs)
Checklist of the requirements for renewal of an NGO Permit in Uganda
For more information contact us at www.lawyers-uganda.com or mobile and whatssapp +256752024021
Requirements for registration of an NGO (Non Governmental Organisation) in Uganda as of March 2022
What is an NGO?
An NGO is a legal entity that is formed for purposes of carrying out charitable activities and is ideally a Not for Profit organisation. NGOs are permitted to carry out profitable activities for purposes of supporting their charitable works. An NGO is capable of owning its own property/assets (like owning land and vehicles in its names); it can hold a bank account; it can enter into contracts; it can employ personel in its own names; it can borrow money in its own names and can sue or be sued. It has to be distinguished from a Community Based Organisation (CBO) which does not possess such attributes of a corprorate entity.
Requirements and stages involved in the registration of an NGO in Uganda.
NGOs in Uganda are registered at the NGO Bureau (National Bureau for Non Governmental Organisations.The Non-Governmental Organizations Act, 2016 mandates the NGO Bureau to register and maintain an up-to-date register of all NGOs in Uganda. NGOs are registered under five different categories namely Indigenous/local, Regional, Continental, Foreign and International.
It is at this office that documents are received in hard copies and once registered, the organisation is given an Operation Permit and Registration Certificate. A Registration Certificate is given once and the organisation uses the same certificate through out its years of operation. An Operation Permit on the other hand is given for the number of years the organisation applies for, ranging from one year to five years. The Operation Permit is renewable with in 6 months before the period stated on the permit expires.
Checklist of the requirements for registration of an NGO in Uganda
Stage one involves promotion and incorporation of the organisation as a company limited by guarantee with standard clauses for NGOs in the Articles of Association. At this stage the company is given a Certificate of Incorporation and directors are appointed, the organisations constitution (Memorandum and articles of association) are registered.
Stage two is preparation of all legal documents required for NGO registration, organisations documents like budget, workplan; securing of all necessary recomendations and MOU from the district and line Ministry.
Stage three is the application process.
For more information contact us at www.lawyers-uganda.com or mobile and whatssapp +256752024021
DANGERS OF USING UNREGISTERED TRADEMARKS
DANGERS OF USING UNREGISTERED TRADEMARKS AND BENEFITS OF REGISTRATION
What is a trade mark?. Different authorities have given the meaning of a trademark. The Trademarks Act 2010 of Uganda defines a trademark to mean: a sign or mark or combination of signs or marks capable of being represented graphically and capable
of distinguishing goods or services of one undertaking from those of another undertaking.
For every successful and time tested corporate brand (trademark), that everyone wants to associate with, behind the scenes, a lot of effort and resources have been sunk into intricate trademark development and aggressive protection. Company brands and trademarks are amongst a company’s valuable assets. A study done by the UK’s IP office reveals that an estimated 6% of most company investments are spent in company brand protection.
Branding starts and centers around your use of distinctive images, symbols, colors and styles, and caricatures, which most appropriately separate and preposition your goods, or services as unique from others on the same market, giving both a protection to your customers and also acquiring brand image and build up brand loyalty amongst your consumers.
Dangers of using unregistered trademarks
Until a name or logo is registered as a trademark, you cannot be certain that it belongs to you. If another person or business registers the mark first, you may find yourself in the highly inconvenient and very costly position of becoming embroiled in litigation and potentially having to withdraw your products, redesign your packaging and marketing literature, and pay damages or an account of profits to the registered trademark owner. Besides the quantifiable costs, you could also risk any goodwill that you may have established in the brand name over the years, over a product that you have painfully taken years to create, just because you didn’t take the extra step of registering it.
Available research from world intellectual property organisation shows that over 80% of SMEs fail to register their trademarks. The majority think that it is not important to their business, with others citing lack of time, lack of understanding of the process of registration and costs associated with registration. By failing to register their trademarks, these businesses are not only damaging their brands and reputation, but also put their businesses at risk and in the end, loose out in the market battle.
Benefits of trademark registration
When you register your trademark, you ensure that you are in a position to prevent others from using or registering a similar one and that is the key to maintaining a strong brand.
Section 34 of the Trademarks Act 2010 is to the effect that a person may not institute proceedings to prevent or to recover damages for an unregistered trademark. Section 35 saves the right of action against a person for passing off goods or services as the goods or services of another or the remedies in respect of the right of action.
Protection under section 35 is only afforded to an unregistered trademark where a mark has acquired a substantial reputation. Even then, the hurdles to be over come in order to succeed in enforcing those unregistered rights against a third party, and the associated costs, are such that many businesses are inhibited from taking the legal action, and those that do, often fail.
By registering its trademark, a business greatly improves its ability to prevent a third party from using or seeking to register conflicting marks, and to seek appropriate remedies, such as an injunction and or damages, in the case of an infringement.
Trademark registrations are also valuable, transferable assets, which can be used as negotiating tools in business transactions and as security for financial transactions. Intellectual capital is recognised as the most important asset of many of the world’s largest and most powerful companies; it is the foundation for market dominance and continuing profitability of leading companies. It is often the key objective in mergers and acquisitions.
What to consider while developing a good trademark
Before coming up with the appropriate idea of a trademark, ask yourself, what your particular brand is and what word best expresses your brand. Also imagine what typography conveys the feeling of your brand. For example, what colors are consistent with your brand’s personality?. Your trademark can include a graphic, and if so, choose graphic expression which will best complement your brand. Finally, ask yourself the hard question on whether the trademark helps distinguish your brand from the competition?.
It is important that every business, however small, urgently puts in place an effective and proactive trademark development and registration strategy to ensure that all its brands are properly protected, and that those it enters into contract with to use the those brands are not going to land them in trouble with other trademark owners.
The use of effective trademark watching and monitoring procedures is also fundamental to the maintenance of a strong and enforceable trademark in the market; it helps to identify potential sources of conflict, including potential infringers, and prevents the dilution of one’s trademarks.
Where to find help
You should seek the advice of a trademark attorney for help in developing or implementing your trademark protection strategy. The trademark attorney should be in position to guide you through the trademark selection and registration process and advice on all aspects of the protection and enforcement of your trademarks.
Angualia Daniel
Managing Partner
M/s Angualia Busiku & Co. Advocates
Plot 3 Parliament Avenue, Raja Chambers
www.lawyers-uganda.com
Email: angualia@lawyers-uganda.com
Mobile Telephone: +256774477656
(Trademarks, company and investment law)
Recognition And Enforcement Of Foreign Judgements In East Africa
Alternative Dispute Resolution In East Africa