{UAH} PETITION for AUTHORITY to CALL a SPECIAL MEETING of UNAA

Below is a petition filed in the Superior Court of Massachusetts. We have just cut pasted it from MS Word...so the formatting is off...I don't have enough time to clean it up...but it gives you an idea of the contents of the petition. 

COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX SUPERIOR COURT

CIVIL ACTION NO.___________

JOSEPH MUSOKE and OTHERS, Petitioners

PETITION     FOR AUTHORITY TO CALL a SPECIAL MEETING of UGANDAN NORTH AMERICAN ASSOCIATION, INC.

v.

BRIAN KWESIGA, MONDAY ATIGO,
JUDE SEMPUNGU, AISHA OGWANG,
REBECCA NAMWASE, TIMOTHY GABURUNGYI,
IRENE KASUJJA and UGANDAN
NORTH AMERICAN ASSOCIATION, INC.,
Respondents
________________________________________

                                                  I.          INTRODUCTION

 

1.    This is a Petition to this Court, brought by members of Ugandan

North American Association, Inc. ("UNAA") seeking authorization for members to call a Special Meeting of UNAA, pursuant to G.L c. 180, § 6A.  The Petitioners also seek an order requiring the Respondents, who are all officers of UNAA, to make UNAA books and records available for inspection by the Petitioners, pursuant to G.L. c. 180, § 18 and G.L. C 156B, § 32.  In addition, the Petitioners, pursuant to G.L c. 180, § 3, et. seq., seek an order barring the Respondents Brian Kwesiga, Monday Atigo, Aisha Ogwang, Rebecca Namwase, Irene Kasujja,Jude Sempungu and Timothy Gaburungyi from using UNAA funds or resources to respond to this Petition or to indemnify themselves for expenses used to respond to this Petition.

II.  JURISDICTION AND VENUE

2.     The Court has jurisdiction over this Petition and the power to grant the relief requested pursuant to G.L. c. 180, §6A, G.L. c. 223 § 8 (4), G.L. c. 223A, §§ 2 and 3 (a) and G.L. c 156B, § 32. (G.L. c 156B, § 32 is applicable to this Petition pursuant to G.L. c. 180, §. 10C).  The Court is authorized to declare the respective rights of the parties pursuant to G.L. c. 231A, §1 et. seq.

3.     Venue is proper in this Court pursuant to G.L c. 223.

III. THE PARTIES

4.      The Petitioners are members of UNAA and bring this Petition pursuant to G.L c. 180, §§ 3, 6A, 10C, 18 and c. 156B, §32.  The petitioners reside in various states in the United States and in other countries.  The agent of service for the petitioners is JOSEPH MUSOKE at address.

5.      Petitioners were members of UNAA at all relevant times in 2013, 2014 and are still members of UNAA. They represent more than ten percent (10%) of the members of UNAA eligible to vote at an annual meeting of UNAA.    

6.      Respondent, UNAA, is a Massachusetts non-profit corporation created and existing under the Massachusetts General Laws (Identification Number: 202772644) and has its principal place of business at 1337...MA 02476.  UNAA's agent of service is M B, located at 239...MA 02474.  

All Respondents are current officers of UNAA and they can be served at UNAA's principal place of business above or/and via UNAA's agent of service above. A true and accurate copy of the Business Entity Summary from the Corporations Division is attached to this Petition as Exhibit B, and by this reference is made a part hereof.

7.      Respondent, Brian Kwesiga, resides at 6817...TX 76137.  He has been the President of UNAA from 2013 to the present.

8.      Respondent, Monday Atigo, resides at 1724...TX 75062.  He has been the Vice President of UNAA from 2013 to the present.

9.      Respondent, Aisha Ogwang, resides at 6829 ...TX 76137.  She has been the Secretary/Clerk of UNAA from 2013 to the present.

10.    Respondent, Jude Sempungu, resides at 5916...IL 60659.  He has been the Treasurer of UNAA from 2013 to the present.

11.    Respondent, Rebecca Namwase,resides at 17...MA 01702.  She has been the Budget Director of UNAA from 2014 to the present.

12.    Respondent, Irene Kasujja resides at 2923...TX 75052.  She has been the Director of Development for UNAA from 2014 to the present.

13.    Respondent, Timothy Gaburungyi, resides at 11...CT 06811.  He has been the Director of Communication for UNAA from 2014 to the present.

                                                            IV.     FACTS

A.      Background

14.    UNAA is a national non-profit with its principal principal place of business in Arlington, Massachusetts and it is the largest formal association of Ugandans in the Diaspora.  Massachusetts normally had the highest numbers of UNAA members. The objectives of the organization are to "Promote the Social, Cultural and Economic Development of the Ugandan Community in North America and beyond."  A true and accurate copy of the Articles of Organization is attached to this Petition as Exhibit A, and by this reference is made a part hereof.

15.    At the annual UNAA convention held in Washington DC, in 2010, about two thousand (2,000) members attended the convention and the leaders of UNAA at that time, asked the members to vote to approve the new bylaws and Articles. Those by-laws became fully operational in 2013.  A true and accurate copy of the 2010 Constitution and bylaws  ("2010 Constitution") is attached to this petition as Exhibit B, and by this reference is made a part hereof.

16.    On the Labor Day weekend of 2013, UNAA had its annual convention in Dallas, Texas and Respondents Brian Kwesiga, Monday Atigo, Jude Sempungu and Aisha Ogwang were elected to their current leadership positions.  Respondents Timothy Gaburungyi, Irene Kasujja and Rebecca Namwase were later appointed to their positions in UNAA by Respondent, Brian Kwesiga.  All leaders of UNAA appear on the Annual Report.  A true and correct copy of the 2013 Annual Report filed with the Corporations Division of the Commonwealth is attached as Exhibit E and by this reference is made a part hereof.

17.    During 2014, Petitioners demanded for minutes of UNAA pertaining to the approval of the hotel contract for the San Diego convention.  Petitioners also sent several demands for financial books relating to the 2013 Dallas convention but the Respondents ignored the demands and have yet to inform the Petitioners how the Petitioners can inspect those records and books.  True and accurate copies of mails from Petitioners to Respondents are attached as Exhibit F1-10, and by this reference, are made part hereof.

18.    On July 29, 2014, the Respondents informed the members of UNAA that all documents relating to the 2013 convention would be available for inspection at the 2014 convention in San Diego.  See the July 29, 2014 email  attached as Exhibit G.. The Petitioners attended the San Diego convention in August, 2014 but no documents were presented and there was no annual meeting.  [see Exhibit H, infra].  

19.    UNAA's by-laws require an annual general meeting but no general meeting of UNAA has been held since August, 2013.

20.    On November 4, 2014, the Petitioners, who are more than ten percent (10%) of UNAA members eligible to vote at a general meeting, sent a formal Petition ("November Petition") to the Respondents demanding that the Respondents must call a Special Meeting of UNAA to discuss UNAA's financial situation and the validity of the 2010 UNAA constitution, among other things.  The Petitioners sent the November Petition via email and a hard copy was mailed to UNAA's agent in Massachusetts at 239...MA 02474.  A true copy of the November Petition is attached to this Petition as Petition Exhibit I, and by this reference is made a part hereof.

Respondent Aisha Ogwang acknowledged receipt of the November Petition on November 4, 2014.  A true and accurate copy of Respondent Aisha Ogwang's email to Respondents is attached as Petition Exhibit J and by this reference is made a part hereof.  

B.    Notice of Intention to Petition this Court

21.    The Petitioners have sent several written notices to the Respondents (and all UNAA members) informing them of the Petitioners' intent to petition this Court for authority to call a Special Meeting of UNAA and to enforce inspection rights.

C.    The 2010 Constitution

22.    During the 2010 annual convention/meeting, UNAA members were presented the draft 2010 Constitution for the first time and they were asked to approve it at the same 2010 meeting.  In addition, contrary to requirements of G.L. c. 180, §. 17, the new 2010 Constitution was not sent to the secretary of state for approval as conformable to the law.  (see Exhibit R, an email dated 10/01/2014, from Marissa N. Soto-Ortiz, the Assistant Director and Attorney-Corporations Division, saying that she had reviewed UNAA filings and did not see any restated articles of organization or articles of amendment).

23.    In 2010, UNAA had more than two thousand (2,000) members but less than two hundred (200) members voted to approve the 2010 Constitution. Therefore, the legal requirement for a two thirds (⅔) majority vote was not met (G.L. c 180, §.7).  Furthermore, a petition was not sent to the state secretary to explain why that legal requirement for a two-thirds (⅔) majority vote was not met (G.L. c. 180, §.7A).  

24.    Though UNAA was a Massachusetts corporation in 2010 and has been a domestic Massachusetts non-profit corporation since 2005, Articles 1:2, 2:5 and 11:9 of the 2010 Constitution provide that UNAA is a Texas corporation.  UNAA is not registered in Texas.

25.    Contrary to requirements of G.L c 180, § 6A,the 2010 Constitution has several provisions that are inconsistent with state law.  For example, Article 5:1 of UNAA's constitution provides to the effect that all Board members have to be appointed by the Executives, members are not allowed to nominate candidates for Board positions and members are not allowed to participate in the vote to approve the Board contrary to requirements of G.L. c 180, § 17.  Contrary to the requirements of G.L. c. 180, §. 18, Article 3.6 of UNAA's constitution allows the Council (management) to expel members without a general membership vote.

26.    The 2010 Constitution has no saving or severability clause. If this Court declares that any Article of the 2010 Constitution is unlawful, all Articles would fail.

D. Books and Records

27.    Article 11:7 of UNAA's 2010 Constitution provides that members can inspect records and books upon written request to the Secretary.  The Secretary would have 30 days to respond.  Article 10:1 of the 2010 Constitution provides email as one of the ways of contacting UNAA leaders.  On several occasions, Petitioner Joseph Musoke requested Respondents Aisha Ogwang and Brian Kwesiga for minutes pertaining to the approval of the major expenses for the convention in 2014 San Diego but both respondents refused to provide him with those minutes. [See Exhibits K, Petitioners' emails sent to Respondents].

Respondents' ongoing refusal to provide Petitioners access to books and records is contrary to requirements of G.L. c 180, § 18 and G.L. c 156B, § 32 (as allowed by G.L. c 180, §. 10C).

E. The Tax Returns

28.    After repeated monthly reminders by Petitioner Joseph Musoke and a threat to go to the IRS, Respondents released the 2013 State and Federal tax returns.  [see Exhibits M (1) and (2)].  Petitioner Musoke immediately pointed out that the tax returns had suspect information and asked Respondents to explain it away but Respondents ignored his requests and blocked him from sending emails to other members on the official UNAA listserv.  For example, Petitioner Joseph Musoke pointed out that at the 2013 annual meeting, members were informed that the then treasurer, Moses Bukenya, had allegedly stolen almost $25,000 from UNAA. [See Exhibit N]. However, when the Respondents filed the tax returns, they indicated that that money was now a loan.[see Exhibit M1: Form 990, schedule L and M(2): Form PC, Question 24 (D) and Appendix B].  Respondents refused to explain how the alleged theft had turned into a loan.  

Respondents also refused to refer the matter to the police.  By refusing to respond to or obey the lawful and reasonable demands of the Petitioners for records and books of UNAA, the Respondents have violated their duty of obedience to members, contrary to G.L. c 156B, § 32 and G.L. c. 180, § 18.

29.    In the 2012 tax return, UNAA reported that it was indebted to several of its leaders.  [see Exhibit O].  However, when the Respondents filed the 2013 tax return, there is no mention of what happened to the debts reported on the 2012 tax return.  If the 2012 debts had been paid off in 2013, that should have been listed in the expenses of 2013.  If the debts had been forgiven, then that would have been listed as income for 2013.  By falsely reporting on Form PC that UNAA had not been indebted to any of its leaders, the Respondents misled UNAA members and also intentionally violated the law requiring truthful reporting.

30.    Petitioners informed the Respondents via email and via the November Petition, that state law required Respondents to call a Special Meeting upon application by at least ten percent of the members eligible to vote at the general meeting. [see Exhibit I above].  Petitioners also informed Respondents that the law required the Respondents to provide the records and books. [ibid.]  By ignoring the information in this section, the Respondents have knowingly violated G.L. c 156B, § 32 and G.L. c 180, § 18.

F.   No Annual Meeting

31.    UNAA has not had an annual meeting since the Labor Day weekend of 2013.  However, on November 10,2014, Respondent, Brian Kwesiga, knowingly filed a falsehood on the 2013 annual report by claiming that the last annual meeting of UNAA was held on August 31, 2014.  [see Exhibit P]. Respondent Brian Kwesiga was in San Diego and was fully aware that no such meeting ever took place.  Previously, on March 24, 2014, Respondent Brian Kwesiga had again knowingly lied on an annual report when he claimed that UNAA had an annual meeting on November 1, 2012 [see Exhibit Q].  

32.    On July 29, 2014, Respondents informed members of UNAA that they would provide details of financial information and related contracts to the members at the annual meeting, which was scheduled for August 31st in San Diego. [see Exhibit G attached hereto].

The annual meeting did not place and on September 16, 2014, Board Member, Moses Wilson, informed the members that the 2014 annual meeting had been cancelled for lack of quorum. See Petition Exhibit H attached to this Petition.

By knowingly certifying that the false information he provided on the annual returns was true and correct, Respondent Brian Kwesiga violated his duty of care to UNAA because UNAA could be subject to penalties. The false information also harms members because the false information makes them believe that an annual meeting actually took place.

G.   Further Demand is Futile

33.    Petitioners cannot seek redress from the UNAA Board because the Board is not functioning.  The 2010 Constitution provides that UNAA shall have seven (7) Board members (see Article 5:1), the quorum for Board meetings is forty percent (40%) [see Article 5:8] and the quorum for Board decisions is two thirds (⅔) of the Board members [see Article 5:9].  However, five members of the Board resigned in August 2014 and the Respondents accepted the resignation effective August 25, 2014. [see Exhibit L, the resignation letter of the 5 Board members].  Therefore, further demands to Respondents or to the Board would be futile.

34.    The facts alleged in this Petition, make it clear that the members of UNAA should get a chance to meet as soon as possible at a Special Meeting to discuss the matters raised above.  The facts above also make it clear that the Respondents are unwilling to call a Special Meeting of UNAA.  In addition, it is clear from the facts alleged above, that the Respondents intentionally violated the law repeatedly and they unreasonably refused to call a Special Meeting.  Therefore, the Respondents should not be allowed to use UNAA resources to defend or indemnify themselves for expenses they may incur to respond to allegations made in this Petition [see G.L c 180, §.3].  In addition, Respondents should pay the Petitioners' costs (see Beers v. Tisdale, 33 Mass. App. Ct. 621, 624-25 (1992).

H.   Relief Requested

WHEREFORE, Petitioners request that this Court:

1. Issue a Summons and an Order of Notice requiring the Respondents to show why the Petitioners' requests in this Petition should not be granted by this Court;

2. Issue a writ of mandamus or injunction ordering the Respondents to make UNAA records and books available for inspection by the Petitioners;

3. Issue an order authorizing the Petitioners to call a Special Meeting of UNAA;

4. Issue an order or permanent injunction stopping the Respondents from using UNAA funds or resources to respond or indemnify themselves for expenses used to respond to this Petition;

5. Issue an order declaring that the 2010 Constitution is not effective because it has provisions that are not permitted by state law and it was not passed according to procedures required by G.L c 180, §§.17 and 17A.

6. Award to the Petitioners reasonable costs and attorneys' fees; and

7. Grant such other and further relief as this Court deems just.

Dated February 22, 2015                  Respectfully Submitted,

 

–––––––––––––––––––––

Joseph Musoke,

  address

 Phone: number

 Email:.com

 FOR THE PETITIONERS

 

 

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