Justice BOT Uganda

08/01/2021

PROCEDURE FOR OBTAINING MONEY REMITTANCE LICENSE IN UGANDA

LAWS APPLICABLE INCLUDE,
ØTHE FOREIGN EXCHANGE ACT, 2004.
ØFOREIGN EXCHANGE (FOREX BUREAUS AND MONEY REMITTANCE) REGULATIONS, 2006,
ØAMONG OTHERS.
§No one is supposed to transact money remittance business in Uganda without a license to do so from bank of Uganda.
permitted to transact money remittance business in Uganda.§Only companies limited by shares incorporated locally in Uganda are
§The following are four types or classes of money remittance license one may obtain In Uganda
a. Class A—International Money Transfer Agency License;
b. Class B—Forex Bureau and Money Remittance License;
c. Class C—Direct Entrants License; or
d. Class D—Sub – Agency License.
The requirements/considerations for each class or type of money remittance license one may obtain in Uganda are as follows,
For Class A—International Money Transfer Agency License, that the applicant has—
i. a clear license to operate in the base country;
ii. a good track record of conducting money remittance business;
iii. a recommendation from the regulatory authority in the base country;
iv. a minimum paid -up share capital of two thousand and five hundred currency points;
v. the ability to comply with all applicable anti-money laundering and combating of financing of terrorism standards and measures;
vi. acceptable Agency Agreements;
vii. a well spelt-out mode of money remittance that is formal, reliable and transparent;
viii. an acceptable operational manual;
For Class B- Forex Bureau Remittances License that the applicant has—
i. A proven track record of licensed forex bureau operations for a period of two years;
ii. A minimum paid-up share capital of two thousand and five hundred currency points;
iii. Shareholders, directors and officers who are fit and proper persons for purposes of money remittances;
iv. the ability to comply with all applicable anti-money laundering and combating of financing of terrorism standards and measures;
v. separate counters and staff dedicated to the money remittance business;
vi. an acceptable operational manual;
vii. whether the public interest will be served by the granting of the license;
For Class C—Direct Entrants License—
i. the financial condition and history of the applicant;
ii. that the applicant has a minimum paid-up share capital of two thousand and five hundred currency points;
iii. the nature of the business of the applicant;
iv. the competence and integrity of the applicant and its management;
v. the adequacy of the applicant’s business and financial plans and earning prospects;
vi. whether the shareholders, directors and officers of the applicant are fit and proper persons for purposes of transacting money remittance business;
vii. the geographical locations and branch distribution network of the proposed business;
viii. the ability to comply with all applicable anti-money laundering and combating of the financing of terrorism standards and measures;
ix. whether the public interest will be served by the granting of the license;
For Class D—Sub-Agent’s License—
i. The financial condition and history of the applicant;
ii. That the applicant has a minimum paid-up share capital of two thousand and five hundred currency points;
iii. The nature of the business of the applicant and its management;
iv. The competence and integrity of the applicant and its management;
v. The adequacy of the applicant’s business and financial plans and earning prospects;
vi. Whether the shareholders, directors and officers of the applicant are fit and proper persons for purposes of transacting remittances business;
vii. The geographical locations and branch distribution network of the proposed business (premises);
viii. The applicant’s ability to comply with all applicable anti-money laundering and combating of the financing of terrorism standards and measures;
ix. Evidence of acceptable Agency Agreements with its principal;
x. Whether public the interest will be served by the granting of the license.
A person who satisfies the requirements above and wishes to carry on money remittance business may apply to Bank of Uganda for a license to carry on that business as follows
• Choose the type or class of money remittance license that you from the above
• Mobilize funds to run the business
• Incorporate company limited by shares with URSB Uganda. “See the post on this blog on how to incorporate company limited by shares”
• Have at least ugx 50,000,000 minimum paid up share capital for the company.
• Prepare CV/RESUME for all the directors / share holders of the intending applicant.
• Prepare the application for remittance license set out in Form A in schedule 5 to Regulations mentioned above depending on the type of license you are interested in.,
• Prepare the Information sheet as set out in Form B in schedule 5 to Regulations mentioned above , specifying the class of license being applied for
• Attach all the requirements indicated above according to the particular remittance license you want on the application prepared.
• Submit the application for remittance license to Bank of Uganda.
• Bank of Uganda shall within three months after receipt of a complete application for a money remittance license consider the application.
• After considering the application bank of Uganda shall prepare a detailed report in respect of the application indicating the decision of the Bank of Uganda to—
a. grant the license, if it is satisfied that the application fulfils the requirements of the Foreign Exchange Act and the Regulations there under;
b. grant the license subject to the fulfillment of certain conditions that the Bank of Uganda deem necessary;
c. Refuse to grant the license, stating the reasons for the refusal that shall be stated in the notice of the decision or letter of refusal to the applicant.
• Bank of Uganda shall within those three months communicate the decision to the applicant.
• If the application for money remittance was considered and granted the applicant has to pay for the license fee.
• Upon payment of license fee he or she the license shall be processed for collection.
• You pick the license if it is ready for collection and commence the transactions as per the license.

16/12/2020

The Employment Act provides for paid annual leave of 21 working days to all employees at the rate of 7 days for each period of continuous 4 months of service.. The employment Act stipulates that the time to take annual leave has to be agreed upon between the parties. This is only but a minimum threshold. As such, it is open for employers to provide annual leave days which exceed the statutory minimum threshold.

Section 75(b) of the Employment Act (supra) provides that an employee cannot be terminated for proposing or taking leave to which such employee is entitled. In Florence Mufumba Vs. UDB Bank (Labour Dispute Claim No.138/2014), it was held that, "where an employee is entitled to take leave and his or her employer is made aware of the dates and of the intention of the said employee to take the leave, and the employer raises no objection as to the proposed dates, once such employee takes his or her leave, the employer is estopped from denying that such leave was authorized. It follows therefore that the said employer cannot impose disciplinary action against such employee.

This information is meant for guidance only.

05/11/2020

PERIODIC TENANCY

According to “ PRINCIPLES OF LAND LAW IN UGANDA By Mugambwa Pg 90 -111”-This is a situation where a tenant at will begins to pay rent calculated on a regular periodic basis i.e. yearly; monthly, weekly or other periodic tenancy will be implied according to BWEYA STEEL WORKS LTD V NIC 1985 HCB 58.
A periodic tenancy renews from one term to another and depends on the agreement of the parties but will be terminated by proper notice served by either party as in PRUDENTIAL ASSUARANCE CO V LONDOND RESIDUARY (1992) 3 ALL ER 504.
Periodic tenancies are by nature terminable by either party giving an appropriate notice, in absence of any express agreement between the parties a weekly tenancy is terminable by 1 weeks notice, monthly tenancy terminable by 1 months notice shown in the case of QUEENS CLUB GARDENS ESTATE LTD V BIGWELL (1942) 1 KB 117 and quarterly tenancy by 3 months notice MUSUMBA V HAJI KASAKA (1971) 1 ULR 222 the exception to this rule is a yearly tenancy terminable by 6 months notice.

-Therefore to vacate premises in situation of a periodic tenant one would require notice.

WHEN A PERIODIC TENANT DEFAULTS WHEN DOES HE BECOME A TRESPASSER?
Under Section 10 (2) Of the Limitations Act states that tenancies from year to year or other period without lease in writing shall be deemed to be determined at the expiration of the 1st year or other period and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of that determination except that where any rent has subsequently been received in respect of the tenancy the right of action will be deemed to have accrued on the date of the last receipt of rent.

Therefore, once the tenant defaults they become trespassers on the day the tenancy is determined i.e. at the point when the land lord s right of action accrues.

22/09/2020

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21/08/2020

MINIMUM REQUIREMENTNS FOR TOUR OPERATORS

a. Registration
 Certificate of incorporation from URSB
 TIN Number
 Annual Performance Report number of tourists handled, sources of tourists, places visited by
tourists, average duration of stay
b. Location
 Office must be easily accessible i.e. with clear plot number, clear name of street
 Office must be clean and attractive i.e. visibly tidy and uncongested
 A clearly visible sign post or office label
 Availability of basic ICT appliances e.g. Internet, office Telephone Number stationed in the office,
Functional E-Mail Address, Functional Website
 Availability of basic utilities water, energy
c. Staff
 Should have an overall manager [MD, CEO, GM] well versed in tourism trade [an individual who
has been actively engaged in the business of packaged travel for at least three years], and with
good communication skills
 Should have a Tour Manager with a minimum of UACE [A Level] or its equivalent, additional
certificates/trainings in Tourism and should be computer literate
 Should have an accountant with a minimum qualification of Uganda Diploma in Business Studies
or its equivalent
 Reservations Officer and/or secretary and/or clerk; minimum level of UCE [O Level] and should
be computer literate
 At-least one tour guide by UTB after passing a Tour Guide’s exam
 At-least one tour-driver licensed by UTB
 Tourist service providers shall have health deliverance guidelines and shall train their staff in
health deliverance activities upon recruitment
d. Vehicles
 Preferably, at-least two comprehensively insured tour vehicles registered in the company’s
names, or proof of contracting supplier with the above tour vehicles

 A tour operator shall ensure that the company has a health and safety policy, where accidents
and emergency procedures are maintained and records are available for inspection; tourists are
accommodated in approved accommodation establishments by the central local authority and
dully registered to accommodate guests; tourists are served meals from approved
establishments meeting hygienic conditions; and tourists are transported in approved tourist
vehicles with comprehensive insurance.
e. Integrity
 Not declared bankrupt
 Not convicted of any fraudulent offence especially against tourists/clients [No history of
bankruptcy, fraud or similar breaches for the last three years]
f. Advertising
 Costed itineraries describing packages, prices, and other conditions applying to a contract, in
respect of a package e.g. means of transport, accommodation type specifying degree of comfort,
location of accommodation, meal plan, general information for visa requirements, health
requirements, any tax or compulsory charges, deadlines for payments, time and place of
intermediate stops and transport connections, spread of payments, etc
 Commitment to compensation in case promised package and conditions are not provided by the
tour operator
 any tax or compulsory charge
 all advertising should have functional name, address, telephone and e-mail address of the tour operator

06/07/2020

SPOUSAL CONSENT REQUIRED FOR A HEIR TO BE BESTOWED PROPERTY......

The High Court’s Family Division has outlawed the practice of men dispossessing their wives of matrimonial property by bestowing it to their sons in their Wills without the spouse’s authorisation.

Delivered on Friday, the judgment stems from a conflict between Herbert Kolya and his grandmother Ekiriya Mawemuko Kolya over property found in Namirembe, Kampala, comprised in LRV 1338 folio 1 Kibuga block.

Herbert’s case is that his late grandfather, Israel Kokomeko Kolya, had given a portion of his land at Namirembe to his late father, Herbert Lukanga Kolya, whereupon he constructed a house they were living in at the time of his death and other houses on the lower part of the said plot for purposes of generating rental income.

He also said his late father had informed him that the said land was bequeathed to him (Herbert Lukanga Kolya) by his late father Israel Kikomeko Kolya.


Apparently, after the death of his father, Herbert said his mother approached his grandmother Mawemuko and requested for a copy of the land title since they wanted to put a second gate and a wall fence separating the two portions of the land but she refused to surrender it, claiming that the late Israel Kikomeko Kolya’s house was her property.

This evidence, Justice Godfrey Namundi, who presided over the case, said was corroborated by the testimony of former Buganda Katikkiro Dan Muliika, who attested to the Will.

Mr Muliika confirmed that the late Israel Kikomeko Kolya executed a Will on January 2, 1997, and therein, he transferred his Namirembe property to his heir, Herbert Lukanga Kolya, where he [Herbert Lukanga Kolya] had his personal house.

In her defense, Ms Mawemuko, on oath, said how she was married to Israel Kikomeko Kolya and they had six children by the time he died in 1997. She said her husband had acquired the contested property prior to their marriage and that it had a small mud and wattle house.

Ms Mawemuko, who at the time was a midwife at Mengo hospital, said together with her husband, they built another house and she participated in making bricks and constructing the building.

When her husband died, his Will was read during his last funeral rights by Mr Muliika and therein the deceased had bequeathed the matrimonial property at Namirembe to Herbert Lukanga Kolya.

She insisted she didn’t agree with the Will because her husband gave away the matrimonial home, which she had contributed greatly to during construction since Israel Kimomeko Kolya had insufficient funds back then.


In his analysis, Justice Namundi said it is imperative for the court to first determine whether the disputed property is a matrimonial property as claimed by Ms Mawemuko.

To settle this, the judge referenced two previous judgments by Ugandan courts. The first was by High Court Judge Billy Kainamura in the case of Basheijja Vs Basheija and another of 2013. He ruled that classified property falls under five clusters and held that the home of the couple, irrespective of when it came into existence, amounts to matrimonial property.

The second case referred to by Justice Namundi is the divorce case of Kagga Vs Kagga, where Justice Eldad Mwanguya, then of the High Court, observed: “Our courts have established a principle which recognises each spouse’s contribution to the acquisition of property and this contribution may be direct, where the contribution is monetary or indirect, where a spouse offers domestic services.

When distributing the property of a divorced couple, it is immaterial that one of the spouses was not financially endowed as the other as this case clearly showed that while the first respondent was that financial muscle behind all the wealth they acquired, the contribution of the petitioner is no less important than that made by the respondent.”

With that, and having factored in the evidence on-court record, Justice Namundi came to the conclusion that the contested house in Namirembe was matrimonial property.



Fast forward, Justice Namundi looked into Israel Kikomeko Kolya’s Will and therein he stated: “My land and main home is mentioned above at Namirembe, I give it to my heir, but my wife has to stay there until she dies or unless when she remarries then the heir is free to own the whole property.”

His view, the statement above, the deceased exalted the heir above the widow, Justice Namundi observed.

“A cultural practice that where the heir inherits matrimonial home denying [ the] widow’s proprietary rights is discriminatory in nature, “Justice Namundi ruled. “According to Article 32 (2) of the Constitution, customs, cultures and traditions that are against the dignity, interest or welfare of women are prohibited.”

He added: “Since the Will purportedly made by the late Israel Kikomeko Kolya is defective, court takes it that the deceased died intestate.”

Herbert’s claim that it was illegal for his grandmother to obtain letters of administration without attaching the Will was also dismissed. Under Section 25 of the Succession Act cap 162, the judge ruled, all the property in an intestate devolves upon the personal representative of the deceased upon the trust of those persons entitled to the property under this Act.

“The defendant being [a] widow (surviving spouse), she was the most appropriate person to apply for letters of administration,” Justice Namundi ruled and dismissed Herbert’s case with costs.

23/06/2020

Are oral contracts enforceable in Uganda? A case study of Bad Black’s conundrum.

Are oral contracts enforceable in Uganda? A case study of Bad Black’s conundrum.
VOID OR UNENFORCEABLE?
A few weeks ago, social media was awash with pictures of a demand notice cm intention to sue by Shanitah Namuyimba alias Bad Black through her advocates alleging that Bad Black and Precision media as an agent of Ministry of Health entered into an oral agreement for a paid audio-visual advert to aid in the fight against COVID- 19. Both the Ministry of Health and Precision Media responded that they had no commercial contractual obligation with Bad Black but only had a social arrangement with her to do the advert on a voluntary basis and she was subsequently appreciated with UGX 6 million. She however maintains that there was an oral contract for her to be paid UGX 500 million.
In light of this, does the law of contract offer her any remedy? Is her oral contract (if there was any) void or unenforceable?
In simple terms, a contract is an agreement enforceable at law. A party who wishes to establish that a legally binding agreement (contract) has been formed between them and another party shoulders the burden to prove on a balance of probability a number of elements. These elements were summarized by Justice Yorokamu Bamwine (as he then was) in Greenboat Ent. Ltd versus City Council of K’la HCCS No. 580 of 2003. He stated “for a contract to be legally enforceable, there must be; capacity to contract, intention to contract, consensus ad idem, valuable consideration, legality of purpose and sufficient certainty of terms. If in a given transaction any of them is missing, it could as well be called something other than a contract.”
From the above elements, the outstanding one is the sufficient certainty of terms. This means that the agreement must be expressed in a form that is sufficiently certain for the courts to be able to enforce. The much needed panacea in the Bad Black case stems from this element and leads us to the question, is her claim of UGX 500 million in the alleged oral agreement enforceable by courts?
S. 10(2) of the Contracts Act 2010 states that a contract may be oral or written or partly oral or partly written.
An oral contract is generally just as binding as a written one. However, the same section under subsection 5 stipulates that a contract whose subject matter exceeds 25 currency points (500,000) must be in writing. One school of thought holds that the word ‘shall’ in this section is directory rather than mandatory because the section doesn’t state the implications of not having such a contract in writing. Even though there is a dearth of authorities on this provision, the few authorities have interpreted the provision as being mandatory. In John Kagwa versus Kolin Insaat Turizin & ors HCCS 0138/2012 Justice Musalu Musene held that the word shall in S.10 (5) is mandatory. He contended further that the provision that such a contract must be in writing is coached in plain English which can be understood by anyone who has gone to school. The judge went on to state that the rationale behind the legislation was to prevent persons or group of persons from conspiring to claim huge sums of money from others under dubious deals. Therefore, non-compliance with the provision renders the contract unenforceable.
Bad Black’s claim which is based on an oral contract is for UGX 500 million which definitely exceeds UGX 500,000. So does this mean that her alleged oral contract is void or unenforceable? Does it make any difference though?
Black’s law dictionary 9th edition at page 374 defines an unenforceable contract as a valid contract that because of some technical effect can’t be fully enforced; a contract that has some legal consequences but may not be enforced in an action for damages or specific performance in the force of certain defences (emphasis mine). Like Justice Percy Night Tuhaise stated in David May v Busitema Mining C/E ltd C**A No. 92 of 2010, it therefore, means that an unenforceable contract is not necessarily invalid or void. The unenforceability of a contract in law is attributed to matters of public policy or the purpose of the law. This means that the contract is not void but simply that no action could be brought upon it.
In conclusion, even though Bad Black’s alleged oral contract with Precision media and Ministry of Health is not void, it is unenforceable in courts of law because it falls short of one formality i.e. being in a written form and courts of law can’t act on guesswork and wishful thinking particularly where it is in black and white that such contracts must be in writing. The only remedy she may have is to request the Ministry of Health to act ex aequo et bono (according to what is equitable and good) since her audio-visual message had a positive impact on the targeted audience.

Denis Twijukye

VOID OR UNENFORCEABLE?A few weeks ago, social media was awash with pictures of a demand notice cm intention to sue by Shanitah Namuyimba alias Bad Black through her advocates alleging that Bad Bla…

22/06/2020

Employment Contracts
What do you know about Employment Contracts in Uganda? We have information on a casual employment contract, temporary employment contract, fixed-term job contract at workplace in Uganda

Must I have an Employment Contract if I work?

Yes. It is a legal requirement in Uganda for the employer to provide an employment contract for each employee whom he or she employs.

What should be in the contract?

The employment contract should clearly state the terms and conditions of employment such as duration of employment, place of work, hours of work, wages, termination, etc.

What should I do when I get my contract?

The employee should read the employment contract thoroughly before signing. In case an employee does not understand any particular aspect of the employment contract, legal guidance should be sought from the worker’s union or from any other legal expert. If the employee is not in agreement with any part of the employment contract he or she has the right to request for changes to be made by the employer before he or she signs it.

What if something in the contract is not correct, according to the labour laws?

All employment contracts must be in line with the provisions of the labour laws of Uganda. If this is not the case then that particular provision of the employment contract is rendered null and void.

Example of a contract

Please note that the employment contract below is an example. Contracts may vary from one workplace to another or from one job to another.

This Contract is made on this ….. day of …… (Month and Year)

BETWEEN

Name and Address of Company:……….. (Hereinafter Called “Employer”)

AND

Name and Address of Employee:……..… (Herein called “Employee”).

1. Appointment
The Employee shall, subject to the General Terms and Conditions of Employment of Employer unless altered or amended by this Agreement, serve employer well and faithfully as …………………………..(position) reporting to the ………….. (CEO/Officer) of ……….(company name) for a period of ……….(days/months/years) with effect from ………... The Employee shall use the best endeavours to promote the interests of the Employer.

2. Place of work:……………………………………..

3. Job description
3.1 Job Title:…………………………………………………………
3.2 Duties:……………………………………………………………
……………………………………………………………
……………………………………………………………
……………………………………………………………
……………………………………………………………

4. Payment
4.1 Salary/Wage
The Employee will receive remuneration for services amounting to a gross salary of U Shs………. (amount in words) per week/month.

4.2 Allowances
The employee shall be entitled to:
(a) Transport allowance of:
(b) Housing allowance of:
(c) Medical allowance of:

4.3 Overtime pay
Where hours in excess of eight hours per day or forty eight hours per week are worked, they shall be remunerated at the minimum rate of one and a half times of the normal hourly rate if the overtime is on the normal working days, and at two times the hourly rate where the overtime is worked on gazetted public holidays.

In accordance with the Laws of Uganda, the Employer shall deduct government taxes and NSSF contributions from the Employee’s due salary.

5. Business Expenses
Expenses incurred by the Employee in connection with the business activities of the Employer shall be reimbursed by the Employer against vouchers. The reimbursement of business costs will be according to the Employer’s policy, with which the Employee is obliged to familiarise herself or himself.

6. Hours of Work
The Employee will be required to work 48 hours per week excluding lunch and tea breaks. The normal hours of duty may be changed by Management to suit the requirement of the work programmes. The Employee may be required to work overtime from time to time.

7. Leave
The Employee shall be entitled to an annual paid leave of 21 working days. This leave has to be taken within the respective calendar year. However, the right to this leave may be postponed for serious reasons, with prior written permission being given by the CEO. Leave will be taken at a time mutually convenient to both employer and the Employee.

7. National Social Security Fund (NSSF)
Membership of the NSSF is compulsory. The Employer will contribute to the Fund at the current stipulated rate of 10% of the Employee’s gross salary. The Employee will contribute the current stipulated amount of 5% of his gross salary.

8. Termination of Contract
This Contract may be terminated by either party at the end of any calendar month by giving notice in writing to the other party as set out in the Regulations or paying in lieu of notice. Termination may be effected under the following circumstances:

Failing to fulfill obligations under this agreement having first been given notice of the default and having continued in default.
Exercising unreasonable slowness or delays in carrying out obligations under this agreement having confirmed in default.
In the event of such termination, the Employer will pay the Employee for the work as approved by the CEO and the HR/Administrator prior to effective date of termination.
If the conditions of work are extremely unfavorable for the employee.
If the employee wishes to resign for any other reason, he/she is free to proceed on condition that he/she notifies the management one month in advance.

9. Other terms of employment:

10. Alteration of the Contract
This Employment Contract comprises the totality of all contractual relations between the Employer and the Employee. It replaces all previous offers, promises and contracts in verbal or written form between the parties. No alteration in the Terms of the Contract shall be binding unless made in writing and signed by both parties.

11. Applicable Law and Jurisdiction
The Terms of this Contract shall be interpreted, the relations between the parties who are signatories thereto shall be determined, in accordance with the Laws of Uganda.

12. Final Provisions
All issues not mentioned in this Contract will be covered in accordance with the Labour Laws of Uganda.

The Employee shall devote their entire professional capacity to the interests of the Employer, and will refrain from any activity which might be harmful to such interest.

The Employee may not disclose to third parties any confidential information, knowledge or documentation relating to transactions, organisational or business matters, production processes, products, developments or research findings of the Employer, both during or following termination of the Employer-Employee relationship, and may not provide third parties with the opportunity of obtaining this information.

In addition, the Employee is obligated to maintain secrecy about confidential information with which they are entrusted in connection with their work by the Employer, prospective customer, or other outside parties, or which they learn about in any other way.

In witness whereof, the parties have signed this Contract in duplicate on this ……. day of ……………………………………………………...

………………………………………. ………………………………………
Name:………………………… Name:………………….
CEO Employee
on behalf of …….(company name)

Witnesses:
1. Name and signature:…………………………………….

2. Name and signature:…………………………………….