THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
HCT - 00 - CC - MC - 30 - 2009
CLASSY PHOTO MART LTD ::::::::::::::::::::::::::::::::::::::::: APPLICANT
CUSTOMS UGANDA REVENUE AUTHORITY :::::::::::: RESPONDENT
R U L I N G:
The facts of this case are fairly straightforward. The Applicant in July 2009 imported into the country 1,050 cartons of photographic paper duty was assessed and taxes of Ug.Shs.26,520,926/= paid. However, the Respondent queried the assessment made by the Applicant’s clearing agent and the Respondent reassessed the taxes by uplifting its value to Ug. Shs. 33,002,729/=. This is because the Respondent rejected the Applicant’s self assessment based on cartons and submitted values based on rolls. The Applicant then appealed against the uplifted value by letter dated 30th July 2009 to the Commissioner Customs. On the 21st October, 2009, the Commissioner Customs of the Respondent replied stating that it had reviewed the appeal but declined to change the revised assessment. The Applicant now seeks orders that a declaration be made that the Respondent’s decision was illegal, of no legal consequence, an abuse of discretionary powers and ultra vires the powers of the Respondent under the relevant customs law.
The Applicant also further prayed for orders of certiorari, quashing the Respondent’s decision, prohibition against taking further action on the impugned decision and mandamus to release the said goods.
Mr. T. Kavuma appeared for the Applicant while Mr. H. Arike appeared for the Respondent. Both oral submissions and skeleton arguments were used.
At the hearing of the motion, Counsel for the Respondent raised a preliminary objection that the application before court was premature. It is the case for the Respondent that before applying for Judicial Review, the Applicant must have exhausted the appeal procedures under the East African Community Customs and Management Act (hereinafter referred to as “EACCMA”). Counsel for the Respondent submitted that S. 230(1) of the EACCMA requires a person dissatisfied with the decision of the Commissioner to appeal to a Tax Appeals Tribunal (TAT) established under Section 231(2). Counsel for the Respondent submitted that the Applicant had not appealed to TAT but applied to court for Judicial Review.
Counsel for the Respondent submitted that an Applicant for Judicial Review should first exhaust whatever other rights he has by way of appeal. In this regard he referred me to the holding of Lord May LJ in the case of
He further submitted that Judicial Review is not available where an alternative remedy exists and that Judicial Review is a collateral challenge. Where Parliament has provided by statute appeal procedures, as in a taxing statute it will only be very rarely that court will allow a collateral process of Judicial Review to be used to attack an appealable decision. In this regard, I was referred to the decision of Lord Scarman in
Counsel for the Respondent therefore prayed that the application be dismissed.
Counsel for the Applicant in reply prayed that the preliminary objection be dismissed. He submitted that Section 230(1) of the EACCMA provides
under Section 229 may appeal to a Tax Appeals Tribunal…”
Counsel for the Applicant submitted that based on its wording and the use of the word “may”, Section 230 (1) was not mandatory in its application.
Counsel for the Applicant further submitted that under Article 139(1) of the Constitution of the Republic of Uganda 1995, the High Court has unlimited original jurisdictions in all matters which includes matters such as the present application. Counsel for the Applicant submitted that Section 230 of the EACCMA sought to curtail the constitutional powers of this court which was void.
He submitted that similar objections to that of the Respondent in this application were raised in the case of
but the objections were dismissed.
Counsel for the Applicant submitted that this court had ever reviewed the decision of the Commissioner Customs in the case of
He further submitted that Section 36 of the Judicature Act which allows for the grant of prerogative powers does not make them an alternative remedy and so there is no basis for that argument.
I have heard and considered the submission of both Counsel for which I am grateful.
In the case ofJoshua Kasibo (supra), I held that the grant of prerogative orders is discretionary in nature. I further held that in exercising its discretion with respect to prerogative orders, the court must act judicially and according to settle principles.
I take this opportunity to reaffirm my above stated position in this application. One cardinal principle of prerogative orders is that they look to the control of the exercise and abuse of power by those in public offices, rather than at providing final determination of private rights which is to be done in normal civil suits.
In the case of Micro-Care (supra), Justice Bamwine relying on cases cited by Counsel for the Applicant raised other principles that need to be taken into when granting prerogative orders.
The first is that an Applicant for Judicial Review should first exhaust whatever other rights he has by way of appeal. He further held that Judicial Review is a collateral process which should rarely be used to attack an appealable decision. In such a situation the Applicant’s pleadings must show that the alternative remedy is not adequate or for other sound reason.
Counsel for the Applicant has tested these principles against the original jurisdiction of the High Court as provided for in the Constitution of Uganda. In this regard, the decision in Meera Investments Ltd (supra) is instructive. In that case the taxpayer contested assessments made with regard to Corporation and VAT taxes. It was the argument of the Uganda Revenue Authority then as it is in this application that the correct procedure was for the taxpayer to appeal to TAT. In the Meera Investments Ltd case (supra) Justice G. Kanyeihamba (JSC as he then was) agreed with agreed with holdings of Justice G. Okello (JA as he then was) when he stated
I take the view then that great care should be taken in preparing an application forJudicial Review. I agree that Section 230 of the EACCMA is not mandatory but that does not in itself low the bar required in the courts exercise of judicial discretion. I can do no better than re echo the words of Bamwine J. in the Micro-Care case (supra) when he said
That being the case, I uphold the preliminary objection and the application must fail for this reason on account of being premature in law. It is struck out with costs.
Judgment read and signed in open court in the presence of;
- T. Kavuma for Applicant
- C. Ouma for Respondent
- Mr. Amin for Applicant
- Rose Emeru – Court Clerk