{UAH} My Response to the Lawsuit

PETITIONERS' ANSWER and AFFIRMATIVE DEFENSES to RESPONDENTS' COUNTERCLAIMS

Petitioners Andrew Abe and Joseph Musoke (collectively "Petitioners"), hereby reply to the allegations by Brian Kwesiga, Monday Atigo, Jude Sempungu, Aisha Ogwang, Rebecca Namwase, Timothy Gaburungyi and Ugandan North American Association, Inc.  (collectively, "Respondents") in their Counterclaims ("Counterclaims)"), as follows:

i. The first unnumbered paragraph of the Counterclaims is not in the form prescribed by Mass. R. P. 10(b).  To the extent that first unnumbered paragraph purports to characterize the Respondents' claims, Petitioners respond that the Petition speaks for itself.  To the extent that the first unnumbered paragraph contains any allegations of a type appropriate for inclusion in a pleading, Petitioners deny them.

The first sentence of the unnumbered paragraph is denied.  Further answering, Petitioner Joseph Musoke states that, as the pleadings show, he is very active in UNAA.

ii. The second sentence of the unnumbered paragraph is admitted.

iii. The third sentence of the unnumbered paragraph is denied and Petitioners demand strict proof thereof. Further answering, Joseph Musoke states that his efforts to hold leaders accountable do not disrupt UNAA. See Exhibits 1a and 1b, Joseph Musoke's emails dated November 10, 2014 and December 17, 2014, respectively, where he explained to UNAA members, the effects of the Petition. Also see Exhibits 2a and b, emails from Brian Kwesiga thanking Joseph Musoke for holding UNAA leaders accountable by asking for financial documents.

            iv. The fourth sentence of the unnumbered paragraph is denied and Petitioners demand strict proof thereof.  Further answering, Petitioner Joseph Musoke states that the Petition speaks for itself.

v. The fifth sentence of the unnumbered paragraph is denied.  Further answering, Petitioner Andrew Abe states that in the elections of 2013, he withdrew his candidacy after a draw with Nicholas Wakou. See Exhibit 3, an email from Sam Mutyaba, the Chairman of the Election Commission acknowledging that there was a tie and Andrew Abe withdrew on his own before a runoff.

            vi. The sixth sentence of the unnumbered paragraph is denied.  Further answering, the Petitioners state that there are other Petitioners that were removed because the court clerks misinformed the Petitioners that Petitioners would have to pay $275 for each named Petitioner.  Since Petitioners did not have that much money, they removed the other Petitioners and submitted payment for just two named Petitioners.  However, the clerks later returned the payment for the second Petitioner and explained that for this kind of Petition, the $275 would be sufficient to cover all Petitioners.  Further answering, Petitioners will seek leave to amend the Petition to add other Petitioners since there is no added cost.

            vii. The seventh sentence of the unnumbered paragraph is denied.

            viii. The eighth sentence of the unnumbered paragraph is denied.  Further answering, Joseph Musoke states that his application for admission Pro Hac Vice is pending approval. See Exhibit 4, a fee waiver from the BBO.

1.                     Petitioners admit the first sentence of Paragraph 1 of the Counterclaims. Petitioners deny the second sentence of Paragraph 1 of the Counterclaims. Further answering, Joseph Musoke states that he does not waive jurisdiction and venue objections regarding the Respondents' Counterclaims.

2.                     Petitioners admit that Andrew Abe is of majority age. Further answering, Andrew Abe states that he does not waive jurisdiction and venue objections regarding the Respondents' Counterclaims.

The other allegations in Paragraph 2 are denied to the extent that they purport to characterize the status of Joseph Musoke. Further answering, Andrew Abe states that Exhibit 4 attached to this Answer speaks for itself.  

3.                     Denied.  Further answering, the purported harm attributed to the Petitioners, if any, was caused in California, by people not before this Court.

4.                     Admitted.

5.                     Admitted.

6.                     Admitted.

7.                     The reference in Paragraph 7 to information that UNAA makes public is too vague to enable Petitioners to respond to the allegations in Paragraph 7 of the Counterclaims.  Absent clarification, therefore, Petitioners do not have sufficient knowledge or information to form a belief as the truth of the allegations in Paragraph 7 of the Counterclaims.

8.                     The reference in Paragraph 8 to information that UNAA makes public is too vague to enable Petitioners to respond to the allegations in Paragraph 8 of the Counterclaims.  Absent clarification, therefore, Petitioners do not have sufficient knowledge or information to form a belief as the truth of the allegations in Paragraph 8 of the Counterclaims.  Further answering, Petitioners state that the Petition speaks for itself, and in addition, members need to meet as soon as possible to discuss financial matters arising from 2013 and 2014.

9.                     Admitted.

10.                 Admitted.

11.                 Admitted.

12.                 Denied and Petitioners demand strict proof thereof.  Further answering, Joseph Musoke states that he was one of the first people to congratulate all the winners. E.g see Exhibit 5

13.                 Denied and Petitioners demand strict proof thereof.

14.                 Denied and Petitioners demand strict proof thereof. Further answering, Petitioners deny the allegations in paragraph 14 of the Counterclaims, to the extent that they purport to characterize the views of Joseph Musoke. Further answering, Joseph Musoke states that he has been writing articles critical of the 2010 Constitution since 2010, long before any of the Respondents run for office in 2013 and has been pointing out the Constitution's weaknesses for almost 4 years. Further answering, Joseph Musoke states that the only conflict of interest he mentioned in the article referenced in Paragraph 14 of the Counterclaims, was about a member of the Election Commission (Michael Kimbugwe), who is not a Respondent in this action.

15.                 Petitioners admit that Joseph Musoke stated that elections should be restricted to members living in North America and that is what Article 3.1(a) of UNAA's 2010 Constitution provides.  Petitioners deny the second part of Paragraph 15 and demand strict proof thereof.  

16.                 Denied and Petitioners demand strict proof thereof. Further answering, Petitioners state that the Petition speaks for itself. Also see Exhibit 6, Robert Ssalongo's Affidavit, explaining that:

a.                      the draft constitution was first presented to the members at 2010 meeting and members were asked to vote on it at the same meeting.  

c.                      only 123 members voted to approve the 2010 Constitution, out of over 1,000 members eligible to vote. i.e that is not a two-third (⅔)  majority of eligible voters. See Exhibit 7, a copy of the tally card signed by all the ten (10) vote observers in 2010, including Robert Ssalongo.the quorum for a vote at UNAA's general meeting is one member.

Further answering, Petitioners state that the Respondents only filed the 2010 Articles of Amendment in April, 2015 after Petitioners had served them the documents for this action. Articles of Amendment are attached as Memorandum Exhibit 8. See also, Petition Exhibit R.

Further answering, Petitioners state that, contrary to G.L c. 180 s. 17 (which provides, in part, that "by-laws may not restrict the right of the members thereof to offer nominations from the floor at the annual meeting of the corporation") the Respondents recently appointed a new full Board with a term beginning April, 2015 to 2018 and members were not given a chance to nominate any candidates. See Exhibit 9.

Further answering, Petitioners state that Petitioners were right to file an action that highlighted Respondents' illegal/bad faith activities.  See Petition Paragraphs 28-30. Also see Exhibits 10a,10b, 10c and 10d, return of service showing that Respondents have been filing fictitious addresses with the Corporation Division, contrary to c. 180 s. 26A.  

17.  Denied and Petitioners demand strict proof thereof.  a. Further answering, Petitioners state that Respondents only informed the Petitioners once on November 4, 2014 that the requisite number to call a special Meeting had not been met.  Joseph Musoke immediately responded to the email from the Respondents and asked them to show proof that the numbers had not been met; Joseph Musoke also explained to the Respondents that the Petition was brought under G.L c. 180 s. 6A (which requires just 10% of the minimum members eligible to vote at a general meeting) rather than article 4.2 of UNAA's Constitution (which requires one-third of all members) as the Respondents seemed to assume. Joseph Musoke's email of November 4, 2014 is attached as Exhibit 11.  

b. Further answering, Petitioners state that 13 members were enough to call a Special Meeting because the 2014 Convention Report released by the Respondents shows 117 members for 2014. See Exhibit 12 showing that $2,800 was raised from new members (there were 56 new members at $50 each) and $1,220 from renewing members (there were 61 renewing members at $20 each).  On information and belief, Petitioners state that over 30 of the 117 members do not qualify to vote because of residency and age restrictions. Therefore, the 13 members that requested for a Special Meeting were more than 10% of the members eligible to vote at a general meeting of UNAA. Exhibit 12 is available at

https://unaa.memberclicks.net/assets/docs/san%20diego%20profit%20and%20loss%20report%204-12-15.pdf

 

  18. Denied. Further answering, Petitioners state that they do not have sufficient knowledge to form a belief as to when UNAACauses was formed and if such formation was mysterious. Further answering, on information, Petitioners state that UNAACauses was created by the majority of elected leaders of UNAA as a result of the Respondents' refusal to accept the decisions of UNAA's Board.  See Petition Exhibit L, the resignation letter of the majority of Board members. Also see Exhibit 13,the resignation of Kenneth Ddamba, UNAA Rep in New England region and Exhibit 14,a report from the 1st town-hall meeting held on Nov, 2, 2013. In Exhibits L, 13 and 14, UNAA leaders explain that the Respondent's disregard for UNAA's constitution drove the majority of elected leaders to resign or boycott UNAA activities.    

  19.       Denied. Further answering, Petitioners state that they do not have sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 19 of the Counterclaim.

20. Denied. Further answering, Petitioners state that they do not have sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 20 of the Counterclaim.

21. Denied. Further answering, Petitioners state that they do not have sufficient knowledge or information to form a belief as to the allegations contained in Paragraph 21 of the Counterclaim.

22. Denied and Petitioners demand strict proof thereof.  Further answering, Joseph Musoke states that he was the first person to pay for the 2014 annual meeting and he showed up at the meeting. See Petition, Paragraph 18.

23. Pursuant to Mass. R. Civ. P. 12(b)(6) and (7), Petitioners move to dismiss the allegations made in Paragraph 23 of the Counterclaims; therefore no response to Paragraph 23 of the Counterclaims is required. If, and to the extent a response is later deemed required, Petitioners deny the allegations in Paragraph 23 and demand strict proof thereof.  Further answering, Joseph Musoke states that the Petition speaks for itself. Attached to this Reply is Exhibit 15, an email from Joseph Musoke to Brian Kwesiga, showing that Federal law (26 U.S Code Sec. 6104) requires Respondents to provide financial reports on demand.  See also several emails from Brian Kwesiga thanking Joseph Musoke for keeping UNAA leaders accountable by asking for financial records (attached as Exhibit 2 above).

24. Admitted.

25. Denied. Further answering, Petitioner Andrew Abe states that in the elections of 2013, he withdrew his candidacy after a draw with Nicholas Wakou with each candidate getting 13 votes. See Exhibit 3 above.

26. Denied and Petitioners demand strict proof thereof.

27. Denied and Petitioners demand strict proof thereof. Further answering, Petitioners state that the Petition speaks for itself. Attached to this Reply, is Exhibit 16, Brian Kwesiga's email dated June 17, 2014 applauding Petitioner Andrew Abe's efforts to get financial records and encouraging Andrew Abe to go to court if documents were not forthcoming.

28. Denied and Petitioners demand strict proof thereof.

29. Denied and Petitioners demand strict proof thereof. Further answering, Petitioners state that the Petition speaks for itself and they gave the Respondents more than five (5) months to call a Special Meeting but the Respondents refused.

AFFIRMATIVE DEFENSES

First Affirmative Defense

  The Respondents' claims are barred in whole or in part because of the Respondents' bad faith conduct.

Second Affirmative Defense

  The Respondents' claims are barred in whole or in part because all actions taken by the Petitioners were performed in good faith.

Third Affirmative Defense

The Respondents have failed to state a claim upon which relief may be granted.  

  Fourth Affirmative Defense

Respondents have failed to state a cause of action for malicious prosecution. Respondents' claim for malicious prosecution is unclear, ambiguous, and unsupported by evidence.

Fifth Affirmative Defense

Respondents have no reasonable likelihood of producing evidence to support counts of malicious prosecution.

Sixth Affirmative Defense

Respondents' claim for malicious prosecution is barred because the Petitioners have/had reasonable belief in the possibility that their claims in the Petition may be held valid.  A reasonable belief in the possibility that the claim may be held valid is sufficient to give probable cause for the initiation of civil proceedings. See Allen v. Codman, 139 Mass. 136 , 138.

Seventh Affirmative Defense

Respondents' claim for malicious prosecution is barred because the facts alleged by the Respondents do not show that Petitioners' purpose for filing the Petition was unlawful. To subject a person to liability for wrongful civil proceedings, the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based. See Rosenblum v. Ginis, 297 Mass. 493, 497.

Eighth Affirmative Defense

The Respondents' claim for malicious prosecution should be barred because the Respondents have not alleged any facts that show that all the Petitioners' claims in the Petition have terminated in favor of the Respondents. The plaintiff in a malicious prosecution action must also show that the action brought "has been terminated in [his] favor." Wynne v. Rosen, 391, Mass. 797, 798 (1984).

Ninth Affirmative Defense

The Respondents' allegations in the Counterclaims do not show that the Respondents suffered any damages.  A claim for malicious prosecution requires the record to demonstrate genuine issues of material fact on the plaintiff's damages. See Foley v. Polaroid Corp., 381 Mass. 545, 552 (1980).

Tenth Affirmative Defense

This Court lacks subject matter jurisdiction over the Respondents' Counterclaims against the Petitioners.

Eleventh Affirmative Defense

Venue for the Respondents' Counterclaims is improper in this court. None of the Petitioners resides in Massachusetts.

Twelfth Affirmative Defense

Respondents' Counterclaims are barred by Federal law.  Specifically, 26 U.S Code Sec. 6104 which requires non-profit corporations to provide documents for inspection by members on demand.

Thirteenth Affirmative Defense

Respondents' damages, if any, were caused in whole or in part by their own actions.

Fourteenth Affirmative Defense

Respondents' cause of action for interfering with the business of UNAA is unclear, ambiguous, and unsupported by evidence.

Fifteenth Affirmative Defense

To the extent that Respondents' Counterclaim for "interfering with the business of UNAA" means that the Respondents are trying to state a claim for tortious interference with advantageous business relations by improper means, Respondents state that this Court lacks jurisdiction to hear that claim because any acts complained of would have occurred in California.

Sixteenth Affirmative Defense

To the extent that Respondents' Counterclaim for "interfering with the business of UNAA" means that the Respondents are trying to state a claim for tortious interference with advantageous business relations by improper means, Respondents state that this Court is an improper venue to hear that claim because the applicable law is California law, none of the principal actors in UNAACauses resides in Massachusetts, and none of those actors is involved in this action, any enforcement of the judgement would be done in other states, the Respondents have asked for a jury trial for their Counterclaims, thus, the people of Massachusetts would be burdened with determining matters that had nothing to do with Massachusetts.

Seventeenth Affirmative Defense

  Additional facts may become known during the course of discovery and investigation that will support affirmative defenses currently unknown to the Petitioners.  To preserve such affirmative defenses, the Petitioners hereby incorporate by reference all of the affirmative defenses set forth in Mass. R. Civ. P. 8(c) and reserves the right to assert additional affirmative defenses as discovery or investigations proceed.

PRAYER FOR RELIEF

            Petitioners request the Court to enter judgement in favor of the Petitioners and against the Respondents on all Counterclaims of the Respondents/Defendants.  Petitioners further request that the Court grant them costs, expenses and fees, together with any further relief the Court deems just and proper.

 

Respectfully Submitted,

 

Joseph Musoke*
           

CERTIFICATE OF SERVICE

I hereby certify that on this

day a true copy of the above

document was served upon the attorney

of record for the Respondents by mail.

Date:__________