Law Reports I 2001 I Volume 1 I Caltex Oil (U) Ltd v Serunkuma Bus Service Ltd

[2001] 1 EA 15 (CAT)

Caltex Oil (U) Ltd v Serunkuma Bus Service Ltd

[2001] 1 EA 15 (CAT)

Division: Court of Appeal of Uganda at Kampala

Date of judgment: 31 July 2001

Case Number: 49/00

Before: Mukasa-Kikinyongo DCJ, Twinomujuni and Kitumba JJA

Sourced by: B Tusasirwe

Summarised by: HK Mutai

[11 Practice - Evidence - Documents - Admissibility of documents - Document containing no statement

as to person who drew it up tendered for admission - Whether the document was admissible in court -
"Registering authority" - Definition - Registrar of the High Court - Registration of documents - Duties
of the registrar - Scrutiny of documents - Whether registrar is a registering authority - Whether
registrar authorised to examine documents - Sections 65 and 66(2) - Advocates Act of 1970 - Section 45
- Judicature Act, 1996 - Order XLVI - Civil Procedure Rules.
[2l Words and phrases - "Registering authority" - Definition - Whether registrar is a registering
authority - Whether registrar authorised to examine documents - Sections 65 and 66(2) - Advocates Act
of 1970.

Editor's Summary
The Respondent filed suit against the Appellant seeking general and special damages for breach of
contract. The Appellant filed an amended defence to which it annexed a document dated 1 March 1986
that purportedly evidenced an agreement between the parties. The Appellant intended to rely on the
annexure in its defence. However, the document did not on its face state either the name or the address of
the person who had drawn it up and the trial Judge was of the view that the provisions of section 66 of
the Advocates Act ("the Advocates Act") rendered the document inadmissible. After hearing counsel on
the issue, he ruled that the document was indeed inadmissible. The Appellant appealed on the ground that
the Judge's refusal to admit the document was an error in law that would prejudice it in its intended
defence. The Appellant's counsel argued, firstly, that the phrase "registering authority" in section 66(2)
referred to registrars under the Registration of Documents Act (Chapter 80) ("the Registration of
Documents Act") and did not include the registrar of the High Court and, secondly, that the document
fell within the exception found in section 65(2)(c) of the Advocates Act and if the Judge had given the
Appellant the opportunity, evidence to prove that fact could have been adduced. Section 65(2)(c)
provided that the section would not apply to persons in full-time employment of a limited liability
company who drew up or prepared instruments in the course of their duties for such a company. Counsel
i.

for the Respondent supported the Judge's holding and submitted, i"ter alia, that there

u
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could be no doubt that the registrar of the High Court was a "registering authority" within the meaning of
the phrase as used in section 66(2).
Held - The phrase "registering authority" was not limited to registrars under the Registration of
Documents Act. Registrars of the High Court were officers of the court and as such, part of their duties
included the supervision of the registries where all documents were registered in preparation for civil and
criminal litigation. They were thus obliged to scrutinise the documents that they received in order to
ensure that the documents complied with the requirements of the Advocates Act and that documents
prohibited by law were not registered.
A document prepared by a person answering to the description in section 65(2)(c) needed no
endorsement showing the name and address of the person preparing it. As such a fact would not be
evident on the face of the record and could only be established by evidence, the Judge erred in not
affording the Appellant an opportunity to show that the document was not barred from admissibility.
Accordingly, the Judge's holding was premature and the appeal would be allowed.

No cases referred to in judgment

Judgment

TWINOMUJUNI JA: This is an appeal from the decision of the High Court of Uganda in which the
Principal Judge ruled that a document on which the Appellant intended to rely for defence in High Court
Supreme Number 1087/1986 was inadmissible because of the provisions of sections 65 and 66 of the
Advocates Act 1970.
The background to the ruling in the High Court is that the Respondent filed a suit in that court for
general and special damages for breach of contract. After a series of amendments to both the plaint and
the written statement of defence, the Appellant filed an amended written statement of defence to which
he annexed a document purporting to the be an agreement dated 1 March 1986 between the parties upon
which the Appellant intended to rely in his defence against the suit.The document on the face of it did not
state who drew it up.
The Learned Principal Judge was of the view that the document was inadmissible by virtue of section
66 of the Advocates Act and after affording counsel opportunity to address him on the matter, he ruled on
10 July 2000 that the document was inadmissible. The Appellant sought for leave to appeal against the
ruling which was granted, hence this appeal.
There is only one ground of appeal, namely:
"That the Learned trial Judge erred in law in refusing to admit a written agreement the Appellant intended to
rely upon for their defence on the grounds that it offended the provisions of the Advocates Act thereby
prejudicing the Appellant in its intended defence".

I think it is convenient at this stage to reproduce the provisions of sections 65 and 66 upon which the
Learned Principal Judge relied to rule the Appellant's document inadmissible:
"65(1) Any person other than an advocate with a valid practising certificate or a person specifically authorised
by any written law so to do who, unless he proves
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[2001] 1 EA 15 (CAT) I Page 17 of [2001] 1 EA 15 (CAU)

that the act was not done for, or in expectation of, any fee, gain or reward, either directly or indirectly,
draws or prepares any instrument-
(a) relating to movable or immovable property, or any legal proceeding;
(b) for or in relation to the formation of any, limited liability, company whether private or public;
(c) for or in relation to the making of a deed of partnership or the dissolution of a partnership,
shall be guilty of an offence.
(2) This section shall not apply to-
(a) any public officer drawing or preparing instruments in the course of his duty;
(b) any person employed merely, to engross any instrument, application or proceeding; or
(c) any person in the full-time employment of a limited liability company, drawing or preparing
instruments in the course of his duty for and on behalf of such company.
(3) For the purposes of this section and section 66 of this Act the expression 'instrument' does not
include-
(a) a will or other testamentary instrument; or
(b) a letter or power of attorney; or
(c) a transfer of stock or shares containing no trust or limitation thereof.
66(1) Every person who draws or prepares any instrument to which section 65 of this Act applies shall
endorse or cause to be endorsed thereon his name and address; and any such person omitting so to do
or falsely endorsing or causing to be endorsed any of such requirements shall be guilty of an offence.
(2) It shall not be lawful for any registering authority to accept or recognise any such instrument unless it
purports to bear the name and address of the person who prepared it endorsed thereon".

Mr Innocent Kihika, learned counsel who represented the Appellant, attacked the ruling on two main
grounds:
Firstly, he submitted that the phrase "registering authority" appearing in section 66(2) of the Act does
not include a registrar of the High Court. He rightly observed that the phrase is not defined anywhere in
the Advocates Act. He pointed out that the powers of the registrar are spelt out in Order XLVI, rule 9 of
the Civil Procedure Rules and they did not include the registration of documents. In his view, the phrase
referred to registrars under the Registration of Documents Act (Chapter 80).
Secondly, he submitted that though section 65(1) of the Advocates Act made it an offence to prepare
certain documents unless one was an advocate or specifically authorised by law, section 65(2) of the
same Act created exceptions especially 65(2)(c) in which the Learned trial Judge would have found that
the disputed document fell if only he had given the Appellant the opportunity to adduce evidence to
prove the fact. In conclusion, Mr Kihika submitted that the document in question was therefore not
affected by the provisions of the Advocates Act and was admissible in evidence.
In reply, Mr Ronald Oine, learned counsel for the Respondents supported the ruling of the Principal
Judge. He submitted that there was no doubt that the agreement in question was one of the documents
referred to in section 65(1) of the Advocates Act. He
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[2001] 1 EA 15 (CAT) I Page 18 of [2001] 1 EA 15 (CAU)

also had no doubt that a registrar of the High Court is a "registering authority" within the meaning of
section 66(2) of the Act. He argued that for the document to qualify to be admitted for registration in the
High Court Registry, it had to have complied with section 66(1) of the Act which requires that the person
who drew it up affixes his/her full name and address. In his view, the alleged exception created by
section 65(2) is only intended to protect persons mentioned therein from criminal prosecution under
section 65(1) but did not exempt the compliance with section 66(1) of the Act. He further argued that the
provisions of section 66(2) of the Act did not envisage the adducing of evidence to prove that the
documents to be filed are registrable.
I will first deal with the issue as to whether a registrar or indeed the Registry of the High Court or of
any other Court is a "registering authority" within the meaning of section 66(2) of the Advocates Act.
Section 45 of the Judicature Act establishes the offices of "officers of the Courts of Judicature" to
perform special duties of the courts and such officers include the chief registrar, the registrars, deputy
registrars and assistant registrars. Section 45(2) of the Act provides that such officers shall perform such
duties as may be assigned to them under the Rules of Court. Order 46, rule 3 provides that: "All formal
steps preliminary to the trial, and all interlocutory applications, may be made or taken before the
Re gistrar" .
Pursuant to these powers, we know that in real practice, it is the duty of the registrars to supervise the
Registries where all documents are registered in preparation for civil and criminal litigation. In my
opinion, the term "registering authorities" in section 66(22) of the Advocates Act includes registrars of
the Courts of Judicature. I do not agree that the term is limited to registrars under the Registration of
Documents Act alone. It includes all peoples and authorities authorised by law to receive and register
documents in the public service or public authorities. They include, for example, registrars of companies,
lands, births, marriages and deaths etc. I have no doubt in my mind that "registering authorities" includes
the registrars of the High Court. In registering the documents it is their duty to scrutinise and ensure that
they do not register documents prohibited by the law. They cannot just register every document put
before them. They would be within their rights to reject any document that does not conform to the
provision of any law. When dealing with the matter the Learned Principal Judge had this to say:
"I now come to Mr Byenkya's point that the Registrar of the High Court when receiving the pleadings is not a
registering authority. Maybe counsel had in mind not the pleadings documents such as the agreement referred
to above; otherwise, with due respect when the High Court registrar receives a pleading, he is a registering
au-thority. But now, would he be supposed to look at annextures to find out whether they comply with the
provisions of section 65(1) of the Act? I do not see any problems in the Registrar doing so. As long as he, as a
registering authority, must scrutinise documents which come to him in that capacity, of registering, he should
reject any document whether pleading or any other document that answers to the description in section
65(1)(a) of the Advocates Act".

I do not see anything to fault in the Learned Principal Judge's above reasoning and conclusion. I
therefore, reject this leg of the Appellant's ground of appeal.
The second leg of the ground of appeal is that section 65(2)(c) of the Advocates Act created an
exception to the general rule in section 65(1) and that the Appellant was denied the opportunity to prove
that the document he sought to rely upon fell within the exception.
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[2001] 1 EA 15 (CAT) I Page 19 of [2001] 1 EA 15 (CAU)

I have already reproduced the whole of sections 65 and 66 of the Advocates Act in this judgment. For
the sake of emphasis and ease of reference, I reproduce section 65(2)(c) which states:
"This section shall not apply to-

(c) any person in full time employment of a limited liability company drawing or preparing instruments in
the course of his duty for and on behalf of such a company".

I note that the Learned Principal Judge did not refer to this provision. It seems it was not referred to by
counsel and he does not seem to have been aware of the provision. However, a proper construction of
both section 65 and 66 clearly leads to the conclusion that a document prepared by a person answering
the description in section 65(2)(c) needs no endorsement thereon of the name and address of the person
preparing it. In the instant case, this fact would not be apparent on the face of the record. It could only be
established by evidence if the admissibility of the document was challenged. Here, such an opportunity
did not arise because the Principal Judge took up the matter on his own motion as a preliminary point of
law. I agree with Mr Kihika that the Appellant was not afforded opportunity to show that the document
he sought to rely upon in his defence was not barred from admissibility by virtue of sections 65 and 66 of
the Advocates Act. The decision of the Learned trial Judge was therefore premature. Section 66(2)
prohibits the registering authority from acceptance or recognition of only those documents to which
section 65(1) applies. I find merit in this leg of the ground of appeal and therefore, the appeal must
succeed.
In the result, I would allow the appeal, set aside the order declaring inadmissible the agreement of 1
March 1996 between the parties. I would also award the costs of this appeal to the Appellant.
(Kitumba JA concurred in the judgment of Twinomujini JA.)

MUKASA-KIKONYONGO DCJ: I read in draft the judgment written by Twinomujuni JA and I agree
with the reasons he gave for the decision he reached. I do not have much to add. I only wish to briefly
comment on the Learned trial Judge's finding namely that the written agreement which the Appellant
intended to rely on was inadmissible because it offended sections 65 and 66 of the Advocates Act. The
brief facts of the case were ably stated by Twinomujuni JA. I need not narrate them too.
For easy reference I will also reproduce the provisions of both the aforesaid sections. Section 65(1) of
the Advocates Act reads that:
"1. Any person other than an advocate with a valid practising certificate or a person specifically authorised
by any written law so to do, who, unless he proves that the act was not done for, or in expectation of
any fee, gain or reward, either directly or indirectly, draws or prepares any instrument-
(a) relating to movable or immovable property or any legal proceeding;
(b) for or in relation to the formation of any limited company whether private or public;
(c) for or in relation to the making of a deed of partnership or dissolution of a partnership, shall be
guilty of an offence.
2. This section shall not apply to:
(0) any public officer drawing or preparing instruments in the course of duty;
(b) any person employed merely to engross any instrument, application or proceedings;
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[2001] 1 EA 15 (CAT) I Page 20 of [2001] 1 EA 15 (CAU)

(c) any person in the full time employment of a limited liability company drawing or preparing
instruments in the course of his duty for and on behalf of such company.
3. For the purposes of this section and section 66 of this Act, the expression 'instrument' does not
include:
(a) a will or other testamentary instrument; or
(b) a letter or power ofattomey; or
(c) a transfer of stock or shares containing no trust or limitation thereof".

Section 66 states:
"Every person who draws or prepares any instrument to which section 65 of this Act applies shall endorse or
cause to be endorsed thereon his name and address; and any such person omitting so to do or falsely
endorsing or causing to be endorsed any of such requirements shall be guilty of an offence.
2. It shall not be lawful for any registering authority to accept or recognise any such instrument unless it
purports to bear the name and address of the person who prepared it endorsed thereon".

The sole ground of the appeal was that: "the Learned trial Judge erred in law in refusing to admit a
written agreement the Appellant intended to rely upon for its defence on the ground that it offended the
provisions of the Advocates Act thereby prejudicing the Appellant in its intended defence".
I do not agree with the submission of Mr Kihika, counsel for the Appellant, that the registrar of the
High Court is not "a registering authority" for the purposes of receiving pleadings, because that is not
one of the duties or the powers given to him under Order 46, rule 9 of the Civil Procedure Rules and
section 45(2) of the Judicature Statute. In complete agreement with the Learned trial Judge, Justice
Twinomujuni JA and counsel for the Respondent, in my view the terms "registering authority" in section
66 of the Advocates Act extend to the registrars of the Courts of Judicature. Similar to any other registrar
appointed under any other law, for example the Registration of Documents Act, the registrars of those
courts have a duty to scrutinize the documents received by them such as pleadings or annextures to
ensure that they comply with the requirements of The Advocates Act. I have no quarrel with the trial
Judge's finding to that effect.
I, however, differ on the second part of his finding namely that
"the written agreement the Appellant was intending to rely on being an instrument relating to movable
property namely motor vehicles belonging to the Appellant it contravened the provisions of sections 65 and
66 of the Advocates Act and as such was inadmissible".

As it was rightly noted by Twinomujuni JA in the lead judgment the trial Judge did not address his mind
to the provisions of the Act which provides for exceptions. Section 65(2)(c) reads that:
"This section shall not apply to

(c) Any person in the full time employment of a limited company drawing or preparing instruments in the
course of his duty for and on behalf of such company".

It is true the document complained of did not indicate the name or names of the person or persons who
drew it up. That notwithstanding, the Appellant should have been given opportunity to adduce evidence
 (0 show who drew up the document. I do not accept the submission of Mr Oine, counsel for

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[2001] 1 EA 15 (CAT) 1 Page 21 of [2001] 1 EA 15 (CAU)

Respondent that the provisions of section 66(2) of the Advocates Act do not envisage adducing evidence
to show who prepared the document. In the instant case the only way of ruling out the categories of
persons listed under the exceptions, was to allow the Appellant to adduce evidence as submitted by its
counsel, Mr Kihika. In agreement with Twinomujuni JA the decision to reject the written agreement as
inadmissible by the Learned trial Judge was premature. Since both Twinomujuni JA and Kitumba JA
concur, this appeal is allowed. The ruling of the High Court is hereby set aside. The Appellant will be
awarded costs both in this Court and the High Court.
For the Appellant:
MrI Kihaka
For the Respondent:
MrR Dine

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