THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HIGH COURT CIVIL SUIT NO.0003 OF 2008 (O.S)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
UGANDA REVENUE AUTHORITY : RESPONDENT
BEFORE THE HON. JUSTICE GEOFFREY KIRYABWIRE
The brief facts of this application are that, the applicant purchased a Motor Vehicle Registration No. UAK 477C from a one Mr. Sam Tumwine. It is the case for the applicant that on the 1st of July 2008, the applicant was invited by way of a public notice in the Newspaper by Uganda Revenue Authority (hereinafter referred to as “URA”) to report to the Compliance Manager at their Nakawa head quarters for purposes of updating their records. That the applicant complied with the invitation and proceeded to respondent’s premises where upon the vehicle was impounded and a seizure notice dated 4th July 2008 issued alleging the contravention of sections 200 and 210 of the East African Community Customs Management Act 2005. On 8th July 2008, a claim was made by the applicant for the vehicle as required by section 214 of the East African Community Customs Management Act 2005 however, the respondent refused to release the vehicle on account that it was due to be the subject of undisclosed criminal proceedings. The applicant therefore contends that the vehicle registration No. UAK 477C is being held illegally by the respondents and ought to be returned to him. The applicant therefore seeks the following relief;
2. An order of certiorari quashing the seizure order issued by the defendant for the said vehicle.
3. An order of mandamus against the defendant that the said vehicle held by it is immediately released to the custody of the applicant.
4. An order of prohibition precluding the defendant from detaining impounding and/or seizing the same vehicle.
5. That the cost of the application be provided for.
The respondent in reply to the summons avers that Motor Vehicle in question Registration No. UAK 477C was imported /licensed fraudulently by using a forged URA form to wit IM4-SAD number C397 of 10th January 2008 yet the same entries were genuinely used to import printing ink for M/s Picfare Industries Ltd. It is the case for respondent that the forged Uganda Revenue Authority stamps, transit declaration documents and release orders were used to evade custom duties and that the taxes amounting to Ug. Shs. 7,163,863/= (seven million one hundred sixty three thousand eight hundred sixty three Uganda shillings) were allegedly paid to Nile bank and endorsed with the Nile bank stamp which have all been found to be fictitious. They further averred that the applicant was notified about the reasons for seizure and was on several occasions and advised to produce the importer or evidence of payment of custom duties. The respondents therefore contend that the said motor vehicle is an uncustomed and therefore without a valid number plate.
Issues that were raised by the applicant are as follows:-
2. Whether the respondent having not complied with the provisions of section 214 of the East African Customs Management Act 2005, is entitled to continue the seizure of the applicant’s motor vehicle.
The grounds for certiorari as stated above are that the applicant in response to a public announcement by the respondent took his motor vehicle to the respondent’s offices where it was immediately impounded. The respondent was then issued with a seizure notice dated 4th July 2008 alleging the contravention of sections 200 and 210 of the East African Community Customs Management Act 2005 (hereinafter referred to as “The EACCMA”). That on 8th July 2008, a claim was made by the applicant for the return of the motor vehicle as required by section 214 of the EACCMA. The motor vehicle however, was not returned to the applicant as it was said to be the subject of undisclosed criminal proceedings. The applicant therefore contends that the vehicle registration No. UAK 477C is being held illegally by the respondents and ought to be returned to him.
In response, Counsel for the respondent submitted that the motor vehicle is not being held illegally by the respondent. He submitted that the vehicle is liable to forfeiture under Section 210 of the EACCMA because it is an uncustomed good and that it was entered into Uganda using false entries. Counsel further submitted that on the 19th of August 2008 a letter, (marked annexure E) was sent to the applicant informing him that the registration of the motor vehicle was made on forged papers and that custom duty was not paid rendering the whole transaction illegal. The letter also stated that the motor vehicle was a subject of a matter pending before a court of law.
John Jet Tumwebaze V Makerere University Council and 3 Others Civil Application No. 353 of 2005 (unreported)
The orders for declaration, mandamus, certiorari or prohibition are discretionary in nature. In exercising its discretion with respect to prerogative orders, the court must act judicially and according to settled principles. In the John Jet Tumwebaze case (supra) such principles may include;
- Whether the application is meritorious
- Whether there is reasonableness
- Vigilance and not any waiver of rights by the Applicant
Judicial review is concerned not with the decision per se but the decision making process. Essentially judicial review involves the assessment of the manner in which the decision is made. The jurisdiction of court is exercised in a supervisory manner not to vindicate rights as such but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality.
It is the case for respondents that the said motor vehicle was an uncustomed good as provided for under sections 200 and 210 of the EACCMA and that it was licensed on forged documents. The applicant however has failed to show that the seizure order is ultra vires as vitiated by an error on the face of the record and that the vehicle in question had its duties paid. In both cases, the affidavits submitted by the applicant did not respond to this issue. Counsel for the applicant did refer Court to sections 214, 215 and 216 of the EACCMA which with respect in my view do not address the issue at hand; which is the payment of duty. Counsel for the applicant submitted that the Act provided that one had to be charged with an offence by reasons of which the thing was seized. Section 210 of the EACCMA is very clear that uncustomed goods are liable to forfeiture. The EACCMA does not state any where that one has to be charged and prosecuted whilst they are in possession of an uncustomed good. Instead it provides under Section 214(3) (a) that the goods have to be detained until determination of the suit. I find that there is no real connection between the criminal proceedings and the proceedings before this court. The underlying issue before me is whether the said motor vehicle is uncustomed as stated by the respondent. The evidence presented by the respondent in this regard is unshaken.
In this regard therefore, I find that there is nothing to show that there is an error on the face of the record to be corrected. The evidence adduced by Mr. Oburu Patrick in his affidavit was not contested and therefore must be taken to be true.
I accordingly disallow the prayer for certiorari.
The Applicant also seeks an order of mandamus against the defendant that the said vehicle held by it be immediately released to the custody of the applicant.
Section 37 of the Judicature Act (Cap 13) provides that the High court may grant an order of mandamus in all cases in which it appears to the High court to be just or convenient to do so.
I accordingly find that there is no illegality or irregularity in the continued detention of the Motor vehicle by the respondent.
The Applicant also seeks an order of prohibition precluding the respondent from detaining impounding and/or seizing the same vehicle.
Since I have found no fault with the procedure applied or the decisions taken and already declared that the seizure and detention of the applicants vehicle is not illegal I will not grant prohibition.
Probably from a practical point of view the other possible remedy to the applicant is to take up the invitation by the Uganda Revenue Authority to pay the necessary custom duties and thereby get the car.
As to costs, the evidence shows that URA had an internal scam that made it possible for the same declaration form to be used for different imports. This is in my view an internal systems failure within the URA for which they should take responsibility to clean up so that innocent parties are no caught up by its effects. I will therefore deny them costs and order each party to bear its own costs.
Judgment read and signed in open court in the presence of;
- Barenzi for the Applicant
- Rose Emeru – Court Clerk