IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
COMMERCIAL COURT DIVISION
(Arising from HCT-00-CC-CA-0012-2007)
Uganda Revenue Authority::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Applicant
Golden Leaves Hotels & Resorts Ltd:::::::::::::::::::::::::::::::::::::::::::::::::::::::: Respondents
Apollo Hotel Corporation Ltd
1. The applicant is seeking stay of execution of the decree issued by the Tax Appeals Tribunal No. 10 of 2006 pending the disposal of an appeal, HCT-00-CC-CA-0012-2007, made to this court against the said decree. This application is stated to be made under Sections 27 and 28 of the Tax Appeals Tribunal Act, Section 98 of the Civil Procedure Act, and Order 52 rules 1 and 3 of the Civil Procedure Rules.
2. The grounds upon which this application is made as far as I can gather from the notice of motion is that firstly the appeal has high chances of success. Secondly that the respondent is threatening to execute and recover the sum allowed on the taxed bill of costs. Thirdly that execution of the orders of the Tax Appeals Tribunal will render the appeal nugatory. And lastly that it is in the interests of justice that this application is granted.
3. The application was supported by an affidavit sworn by Mr. Moses Kazibwe Kawumi. It is fairly short and I can reproduce the relevant paragraphs below.
‘2. That on the 18/10/2007, the Tax Appeals Tribunal disposed of TAT Application No. 10/2006 in favour of the Respondents herein and ordered that the present applicant to halts any steps in recovering refunds made to the first respondent, and make any refunds due and pay costs of the application (copy of the Ruling and Decree are hereto attached and marked “A” & “B” respectively). 3. That the applicant being dissatisfied with the ruling/decree of the Tax Appeals Tribunal has appealed vide HCCA No……..of 2007 (copy of the Notice of Appeal hereto is attached and marked ‘C’) 4. That the Respondents have filed/taxed the Bill of Costs in the matter (attached hereto is the bill of Costs filed and marked ‘D’) 5. That the appeal has a very high likelihood of success and execution of the said decree will render the Appeal nugatory and prejudicial to the Applicant’s interests. 6. That I verily believe that sufficient cause has been shown warranting the stay of execution proceedings in the main suit. 7. That it is in the interests of justice to stay execution proceedings in the main suit.’
4. In response to the application Mr. Enoch Barata, from Birungyi, Barata & Associates, acting for the respondents, swore two affidavits in reply. In effect he was stating that the only executable portion of the original decree was the order for payment of costs, and not the rest of the decree which were essentially declaratory orders. Secondly that the respondents would be in a position to pay, if ordered to refund costs allowed in the suit, were they to be paid now by the applicant. This was on information from one of the officers of the first respondent.
5. At the hearing of this application learned counsel for the applicant, Mr. Peter Muliisa, and learned counsel for the respondent, Mr. Birungyi, basically re-echoed the position of the parties set out in their respective pleadings.
6. There are specific provisions that govern stay of decisions made by the Tax Appeals Tribunal and these are contained in Section 28(1). It states,
‘28. Operation and implementation of a decision subject to review or appeal. Where an application for review of a taxation decision has been lodged with a tribunal or an appeal against a decision of a tribunal has been lodged with the High Court, the reviewing body may make an order staying or otherwise affecting the operation or implementation of the decision under review or appeal, or a part of the decision, as the reviewing body considers appropriate for the purposes of securing the effectiveness of the proceeding and determination of the application or appeal.’
7. The appellate court is granted authority to stay in whole or in part a decision of the tribunal, or to make a decision that affects the operation or implementation of the decision under appeal. The ground upon which this should be made is stated to be ‘for the purposes of securing the effectiveness of the proceeding and determination of the appeal’. Where a ground is specifically provided in specific legislation regard must be had to the specific provision rather than the general provisions found in other laws. For instance we need not turn to the general provisions of the Civil Procedure Code on the grounds for allowing stay of decrees when there are specific provisions in the Tax Appeals Tribunal Act that deal specifically with the grounds for stay. To the extent that Uganda Revenue Authority v Tembo Steels Limited HCT-00-CC-MA-0021-2007 decided by my brother, Lameck Mukasa, J., (relied upon by Mr. Birungyi) may be in agreement with this position I would apply it to this case.
8. The duty is on the applicant who wishes to obtain an order for stay of execution to prove the relevant ground or grounds which he puts forth for the issue of the order. Those grounds must be consistent with the ground or grounds provided for in the relevant law, which in this case is Section 28(1) of the Tax Appeals Tribunal Act.
9. The fact that an appeal may be rendered nugatory is a matter that, in my view, comes within the purview of securing the effectiveness of the proceeding, and the determination of an appeal. An appeal that is rendered nugatory is a worthless appeal to the appellant and a mockery of justice, bringing into disrepute the machinery of justice. It is the duty of this court, in order to secure the effectiveness of appellate proceedings before it, and the meaningful resolution of the dispute on appeal, to stay execution of the decision appealed from, if it is shown that not granting a stay or other order, will result in rendering such appeal nugatory by the time it is decided.
10. But what material has been put before this court to show that to be the case? I see none. The only material available by way of proof are paragraphs 5 and 6 of the affidavit of Mr. Moses Kazibwe Kawumi which only state,
‘5. That the appeal has a very high likelihood of success and execution of the said decree will render the Appeal nugatory and prejudicial to the Applicant’s interests. 6. That I verily believe that sufficient cause has been shown warranting the stay of execution proceedings in the main suit.’
11. There is nothing in these paragraphs to show that this appeal will be rendered nugatory if the applicant now paid the costs of the successful party below. All the applicant has done is to regurgitate the words ‘this appeal has a very high likelihood of success and execution of the said decree will render the appeal nugatory’ without more. I am afraid this is not proof. The applicant just stated the ground it intends to rely upon without providing proof to support it. This is not good enough.
12. I have perused the affidavit of Mr. Moses Kazibwe Kawumi, time and again, and I am afraid I find no proof there to support any possible ground or justification for stay of execution of the decision appealed from. That of course is not to suggest that no such possible grounds may exist. It is only that in this case none have been articulated. For the above reasons I find that this application has no merit, and it is dismissed accordingly with costs.
Signed and dated this 21st day of December 2007