THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO 3 OF 2011 (O.S)
PEARL IMPEX (U) LTD }
2. EDISON MUBANDIZI T/A }
MIRAMBI CENTRAL STORES}
3. AFRISTOCK COMPANY LTD}........................................... PLAINTIFFS
1. ATTORNEY GENERAL OF UGANDA}
2. KAMPALA CAPITAL CITY AUTHORITY}......................... DEFENDANTS
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA
2. Whether or not a foreign investor can validly be issued with a trading licence by the Kampala Capital City Authority without a certificate of remittance from bank of Uganda in accordance with section 10 (5) (6) (7) (8) and (9) Investment Code Act chapter 92 laws of Uganda.
3. Whether entry permits and trading licences issued by the above authorities without the requisite certificate of remittance from bank of Uganda are liable to cancellation.
Fred Muwema applied to amend the face of the application to read after the mention of the defendants the 5th last sentence which refers to “Foreign Traders in Uganda” and any other same references appearing on the next page items 1 and 2 being questions framed in summons to be substituted with the words “Foreign Investor engaging in trade”. After listening to arguments from both sides, I allowed the amendment to so that the terms foreign investor engaging in trade fitted within the language of the Investment Code Act section 10 (5) onwards. Counsel also prayed that the second defendant with the new successor Authority namely Kampala Capital City Authority which application was also allowed.
Counsels for the respondents asked the court to disallow the amendment of foreign Trader to read foreign Investor as far as the affidavit is concerned and this was conceded to by the plaintiff’s counsel.
Whereas second defendant issues trading licences under the Trade Licensing Act cap 101 sections 11 thereof. The same Act in section 12 (c) thereof, forbids the second defendant from granting any trading licence in contravention of any provision of any other written law.
He prayed that the court answers the second question for interpretation in the negative that they cannot issue trading licences without a certificate of remittance from BOU.
In conclusion counsel submitted that as far as the affidavit in reply by both defendants is concerned, they have not offered anything by way of reply as regards the provisions of law he has quoted. He contended that this is a matter only heard by affidavit evidence and therefore the defendants have no evidenced in rebuttal.
Counsel grounded his answer on the principal law that provides for the powers of the second defendant over or in respect of trading licences issued under the Local Governments Act cap 243 section 30 (2) thereof which provides that a district council, which includes a city council shall carry out functions set out in part 2 of the second schedule to the Act. When you look at part 2, (5) provides that the decentralised services for which a district council shall be responsible include services in relations to trading licenses.
Part 2 (5) (n) deals with trading licences. He submitted that it is worth noting that section 32 and attendant part 2 thereof are only subject to article 176 (2) of the Constitution of the Republic of Uganda and section 96 and 97 of the LGA which deal with powers of ministers over local government.
Based on the above, the plaintiff’s case is that the second defendant is a proper party to be sued and has a statutory duty to play concerning issuance of trading licences. He prayed that I answer the questions framed in favour of the plaintiffs.
Mwaka State Attorney in reply opposed the suit. Firstly he pointed out that paragraphs 4 – 10 of the affidavit in reply has no meaning without the words foreign trader (which had been severed by court). He submitted that this is because the suit concerns specific classifications which cannot be assumed. He contended that the said paragraphs without the words “foreign trader” were hanging.
As far as the question of the affidavits in reply is concerned, the respondents reply is that in order to get the full contribution of the respondent evidence has to be called regarding how department of immigration implements granting of permits, its policy and whether the provisions are mandatory or directory. It would make the matter detailed and complex.
For the second respondent counsel Richard Lubaale submitted that the second respondent is a wrong party. That Part 5 (b) of second schedule paragraph 5 and part 5 (a) paragraphs 5 of the LGA, the role of administering trading licences falls under the divisions. See part B third schedule Kampala Capital City Act. The issue of whether trading licences are issued or not is a question of fact. He relied on paragraphs 3 and 4 of the second respondents which are not denied by the plaintiffs.
In the alternative the second respondents counsel associated himself with submissions of the Attorney General and contended that section 10 (9) of the Investment Code Act does not create an obligation on the second defendant. The requirement there under is that the applicants must have an entry permit to qualify. He prayed that I dismiss the suit against the second respondent with costs.
Rejoinder of plaintiff’s counsel
As to the first defendant is concerned he submitted that the alleged complexity of the suit has not been enumerated and the court has no basis to act on complexities not demonstrated.
As far as the issue of proceeding as an ordinary suit is concerned he submitted that there is no need to call witnesses to talk about provisions of law. Secondly the third parties who may be affected by the court are not responsible to issue entry permits. Lastly the second defendant he submitted that the respondents have not given the government position on the provisions of section 10 of the Investment Code Act and their silence would only leave the court to consider only arguments advanced by the plaintiffs in submissions. He prayed that I grant the suit with costs.
I have carefully considered the pleadings in the originating summons and the affidavits filed in support and opposition as well as submissions of counsel and the law. I am inclined to consider the questions raised for interpretation as currently framed in the originating summons on grounds stated below but while doing so I will demonstrate the limitations, if any of the remedies sought by the plaintiffs:
2. The interpretation can be a guide on the concern of the plaintiffs of whether trading licences and entry permits can be issued to foreign investors without certificates of remittances from Bank of Uganda as provided for under section 10 of the Investment Code Act cap 92 Laws of Uganda 2000 edition. In answering this question I will also consider whether the questions raised in the Originating Summons can be answered in the manner anticipated by the plaintiffs as affirmative or negatives answers.
3. There is no need to call or adduce any further evidence for purposes of interpretation on the questions raised in the originating summons.
Counsel Mwaka State Attorney who represented the Attorney General submitted that at that time they had not been represented and he argued that this was not a good case to be tried by originating summons and should be tried in an ordinary suit. I will deal with this question when answering the questions for interpretation raised in the originating motion itself. As far as the potential effect of the decision of the court is concerned, nobody can be prejudicially affected by any correct interpretation of the law. As far as the immigration department is concerned, it is sufficient to engage the Attorney General as a defendant under section 10 of the Governments Proceedings Act cap 77 laws of Uganda 2000 edition and article 119 (4) (c) of the Constitution of the Republic of Uganda which provides that the Attorney General shall represent Government in all proceedings brought against the Government. The Attorney General’s input on the questions sought to be interpreted should have been sufficient. Last but not least an issue was raised as to whether the second respondent is a proper party to this suit. I shall deal with that question later in this judgment.
As far as the declarations which may affect third parties not before the court is concerned, interpretation of law will not only affect third partieswho are not parties to this suit but it will affect the way the law is implemented in future wherever, if at all, it had hitherto (an assumption) been implemented differently. This is not illegal or contrary to the rules of fair hearing which is a principle of fundamental justice. Not everybody who will be affected by a law interpreted by court need to be a party. Representation by the Attorney General is sufficient as far as legislation affecting the public is concerned. Moreover declaratory orders are by their nature orders which may be granted with or without consequential relief being sought. The question of any consequential relief is corollary to the interpretation of the questions raised. Declaratory reliefs are provided for under order 2 rule 9 of the Civil Procedure Rules which provide:
“9. Declaratory judgment
“Declaration of right in that rule must be read in the sense in which it has always previously borne, that is to say, a declaration of some right which the plaintiff maintains that he has against the person or persons whom he has made parties to his suit …” page 574 “.. the claim for a declaration is not in itself a claim for relief …”
It is clear that declarations under order 2 rules 9 may give rise to a separate action for consequential relief if it has not been claimed in the originating summons or plaint itself as in the current suit. This is made clearer in Halsbury’s laws of England 3rd edition volume 22 paragraph 1610 pages 746 – 747 which provides:
Last but not least the effect of a bare declaration was considered in the case of Gray vs. Spyer  2 CH page 22. In this case the plaintiff who was a landlord sought a declaration that his notice to quit was effectual. He however did not pray for an order for vacant possession. On the other hand, the defendant/a tenant who had an agreement for a lease sought by counterclaim a declaration that they had a tenancy from year to year. He however sought no order for specific performance for executing a formal lease. The court on appeal dismissed both prayers for declarations and observed that the action was useless since both parties who were entitled to relief did not ask for vacant possession or specific performance respectively.
It follows that interpretative declarations sought by the plaintiffs in this action if granted cannot automatically lead to enforcement to the prejudice of any third party not in court. Such third parties would have a chance if at all the declarations are granted whenever anyone wants it to be enforced against them to be heard in the enforcement action as no consequential relief has been sought in this matter nor can one be granted on the basis of the affidavit in support of the originating summons. No third party has been named. As I have noted the representation by the Attorney General is sufficient to take care of the Public Interest so long as they perform their statutory role of being guardians of the public interest under the Government Proceedings Act. I would therefore without much ado proceed with the questions sought to be interpreted and the question of whether the second Respondent is a property party to any declaration sought or question to be interpreted will be handled in answering the relevant interpretative question.
The questions the plaintiffs want determined are the following:
After careful perusal of the relevant provisions on the first question, we need to commence analysis by establishing the meaning of the term foreign investor. Under section 1 (f) of the Investment Code Act cap 92 laws of Uganda "foreign investor" is to be construed in accordance with section 9. Section 9 subsection 1 defines a foreign investor in the following terms:
(a) A person who is not a citizen of Uganda;
(c) A partnership in which the majority of partners are not citizens of Uganda.
Section 10 (1) of the Act provides that a foreign investor shall not operate a business enterprise in Uganda otherwise than in accordance with an investment licences issued under the Act. However subsection 5 of section 10 of the Act provides that a foreign investor who is intending to engage in trade only shall not be required to comply with subsection 1. This is among the provisions namely section 10, (5) – (9) that that the plaintiffs want this court to interpret. The provisions under section 10 (5) – (9) are:
(a) Incorporate a company with the Registrar General as is required by law;
(b) Deposit a sum of one hundred thousand United States dollars or its equivalent in Uganda shillings at the Bank of Uganda, which shall be specifically used for importation or direct purchase of goods for the business.
(6) Upon compliance with subsection (5), the Bank of Uganda shall issue a certificate of remittance to the foreign investor.
(7) A foreign investor who obtains a certificate of remittance under subsection (6) shall lodge an application, in writing, to the immigration department which shall contain the certificate of remittance and other information that may be required by the department.
(8) Subject to compliance with the provisions of this section and the immigration laws, the immigration department may issue an entry permit to the foreign investor.
(9) A foreign investor who obtains an entry permit under subsection (8) shall lodge an application, in writing, to the local authority where the business will principally be carried out for a trade license.”
These provisions provide that a foreign investor who intends to engage in trade only shall firstly (a) incorporate a company with the registrar of companies; (b) deposit a sum of 100,000 United States dollars or its equivalent in Uganda shillings with the Bank of Uganda which money is to be specifically used for importation or direct purchase of goods for the business of the foreign investor. The purpose of the deposit of 100,000 United States dollars or its equivalent in Uganda shillings is for the business of the foreign investor as clearly stipulated. In other words the Bank of Uganda ensures that the foreign investor who wishes to invest in Uganda as intended by legislature under the Investment Code Act has the capital cover to be licensed to do so. The Bank of Uganda would only issue a certificate of remittance to a foreign investor if (a) the foreign investor has incorporated a company with the registrar of companies in Uganda and (b) the person has deposited with the Bank of Uganda an amount of 100,000 United States dollars or its equivalent in Uganda shillings.
It is necessary to highlight the words "trade only" used in section 10 (5) of the Investment Code Act. It means that subsection 5 applies to those foreign investors who wish to engage in trade only. The word "trade" or term trade only is not defined by the Act. The Interpretation Act cap 3 laws of Uganda do not define the word "trade".
Stroud’s Judicial Dictionary Sweet and Maxwell 2000 edition defines the term “trade” very widely as follows:
"Trade" is not only etymologically but in legal usage a term of the widest scope. It is connected originally with the word "tread" and indicates a way of life or an occupation. In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may mean a skilled craft. Although it is often used in contrast with a profession the word "trade" is used in the widest application in the appellation "trade unions". Professions have their trade unions (National Association of Local Government Officers v. Bolton Corporation  A.C. 166).
It is not essential to a "trade" that the persons carrying it on should make, or desire to make, a profit (per Coleridge C.J., Re Law Reporting Council 22 Q.B.D. 279, which see also, inf.; but see per Halsbury C., and Lord Davey, sup.).
Trustee savings banking was a "trade" within art. 1 of the Industrial Disputes Order 1951 (No. 1376) (R. v. Industrial Disputes Tribunal, ex p. East Anglian Trustee Savings Bank  1 W.L.R. 1093).
The business of a jobbing builder was held to be a trade within a covenant not to use premises for the purposes of trade (Westripp v. Baldock  1 All E.R. 279).
"Trade, profession or employment" (Landlord and Tenant Act 1954 (c. 56), s.23(2)). The holding of a Sunday school (free of charge) does not amount to a trade, profession or employment within the meaning of this section (Abernethie v. Kleiman (A. M. & J.)  1 Q.B. 10). Taking in lodgers and making virtually no profit by so doing was held not to be a "trade, profession or employment" within the meaning of this section (Lewis v. Weld crest  1 W.L.R. 1107).’
Before a further and deeper analysis of the above provisions, it is necessary to first comment about the intention of Parliament in enacting the Investment Code Act cap 92 laws of Uganda 2000 edition. The preamble to the Act provides that it is "An Act to establish a code to make provision in the law relating to local and foreign investments in Uganda by providing more favourable conditions for investments, to establish the Uganda Investment Authority and to provide for other related matters."
In addition, the provision for the deposit of 100,000 United States dollars or its equivalent in Uganda shillings with the bank of Uganda on the face of it ensures that a foreign investor who wishes to engage in trade only has the requisite capital at a minimum deposited with the bank of Uganda hence attracting foreign capital to fulfil one of the objectives of the Act.
The question the plaintiffs want interpreted cannot be determined without an examination of other laws that deal with investment, business and immigration. These include the EAC and COMESA treaties which deal with the promotion of trade and business in the region. Needless to say domestic or national legislation should be interpreted in a manner that preserves the obligations of Uganda under International Treaties which override Domestic conflicting domestic Legislation. Suffice it here to examine two treaties that are concerned with business and trade in the East African and COMESA regions.
The question of whether foreign investors from members of the COMESA states and who are not citizens of Uganda and have interest in engaging in trade only as envisaged by section 10 subsection 5 of the Investment Code Act of Uganda should have an enabling environment for foreign cross-border and domestic investment as envisaged under the COMESA treaty is relevant. This is a matter of policy best determined by the Uganda Investment Authority.
It must be noted that a foreign investor as widely defined above cannot operate a business without an investment license issued by the Uganda Investment Authority under section 10 (1) of the Investment Code Act except where the foreign investor wishes to engage in trade only as provided for under section 10 (5) thereof.
Before I conclude this matter, there are some pertinent matters that must be set out before the first question of the originating summons is resolved. The first matter is that there are two relevant authorities that deal with the control of immigration and the question of investment by foreigners.
In view of the above matters I will attempt to answer the first question of “Whether or not a foreign investor engaging in trade only can validly be issued with an entry permit by the directorate of immigration without a certificate of remittance from bank of Uganda in accordance with section 10 (5) (6) (7) and (8) of the Investment Code Act chapter 92 laws of Uganda.” The underlying issue is whether an entry permit should be issued to a foreigner without a certificate of remittance from the Bank of Uganda. Section 10 (8) gives the immigration authority discretion whether to issue an entry permit to a foreign investor who has complied with the section by (a) registering a company and (b) depositing a minimum of USD 100,000 or its equivalent in Uganda shillings with the Bank of Uganda. The issuance of the entry permit is subject to immigration laws and as we noted above, the implementation of the immigration laws lies in the hands of the board created under the Citizenship and Immigration Act cap 66 2000 laws of Uganda and Immigration Act chapter 63 laws of Uganda.
The question of issuance of entry permits to any alien should be handled on individual basis and its merits assessed on a case by case basis. Secondly the Uganda Investment Authority may participate in helping a foreign investor who has arrived in Uganda and who is to be registered in accordance with the immigration laws to obtain an entry permit.
Consequently it is my finding that the authorities namely the Uganda Investment Authority, are responsible for implementing the law and formulation of policy under the Investment Code Act and should ensure that the Act is implemented. They can determine who a foreign investor is, which question is material in any controversy under the Act. As far as entry permits are concerned, the effectiveness of the law and implementation of its objectives depends on enforcement of the provision that a foreign investor who wishes to engage in trade only is required to open an bank account with the Bank of Uganda and deposit a minimum of United States Dollars 100,000 or its equivalent in Uganda shillings and obtain from the Bank of Uganda a certificate of remittance. This provision of law has ramifications on regional common market policies due to the citizen based definition of a foreign investor. Because of this the enforcement of a certificate of remittance prior to issuance of an entry permit should be left at the hands of the relevant authorities. Moreover no single case of the issuance of an entry permit without a certificate of remittance has been produced in evidence before the court and I agree with the Attorney Generals counsel that a general declaration in terms suggested by the plaintiffs is inappropriate for the reasons I will outline below.
The question whether a foreign investor wishes to engage in trade only is a question of fact that has to be determined by the immigration department for the reasons that I will give herein below. This ensures that it is a factor to be taken into account when deciding under section 10 (8) of the Investment Code Act whether to issue an entry permit to an alien or not.
The issuance of an entry permit as envisaged under the Investment Code Act very much depends on the definition of a foreign investor under the Act Vis a Vis whether a foreign investor is a natural person or a corporate personality created by law as we shall determine presently. The Investment Authority has the mandate to determine in any other case not defined under section 9 of the principal Act who a foreign investor is. The immigration authority must be satisfied firstly that the alien is a foreign investor and secondly that he or she intends to engage in trade only. What is of further interest is that the certificate of remittance is given to the company which will carry out the business.
For a company to be a foreign investor, it needs only to have 50% shares held by a non citizen or non citizens. Yet entry permits are given to individuals in such a company. For the benefit of the public four non Ugandan citizens can come together and contribute 25,000 USD each to their registered company in order to fulfil the requirements of section 10 (5) of the Investment Code Act for purposes of deposit of USD 100,000 or its equivalent in Uganda shillings which deposit of money is for use in the business as capital.
There is no doubt in my mind that such a business of trade only as envisaged in section 10 (5) (a) is run by a company incorporated with the Registrar General. It follows that the Bank of Uganda gives the certificate of remittance to a company registered according to the requirements of section 10 (5) (a) of the Investment Code Act. This has absurd ramifications because of the facts outlined below that an entry permit is given to an individual.
It is therefore technically incorrect to make a declaration that a person who wishes to engage in trade only and who is given an entry permit must have produced a certificate of remittance in his or her names. This is because the company incorporated with the Registrar General meant to carry out the business is a separate legal personality and is the company which should deposit the money for the business with Bank of Uganda.
Therefore the certificate of remittance will technically be in the names of a corporate personality. Further absurd scenarios arise from the inherent contradiction between section 10 (5) (a) and section 10 (8) which makes the issuance of an entry permit conditional upon prove of a certificate of remittance indicating compliance with the requirement or deposit USD 100,000 of its equivalent in Uganda shillings.
Among the absurd ramifications of the law is the scenario where a foreign investor who wishes to engage in trade only indicates to the immigration authorities that he or she wishes to engage in trade only and is advised to comply with section 10 (5) (a) and (b) of the Investment Code Act. Upon incorporation of a company, he or she becomes a minority shareholder. The company technically is not a foreign investor. Can this initially foreign investor now get an entry permit? The underlying question is whether the company is obliged to deposit the 100,000 US $ or its equivalent in local currency? In the second scenario the foreign investor teams up with 10 others and they contribute USD 10,000 each to the company to make up the 100,000 USD and obtain one certificate of remittance. Can they not go (all ten of them) and obtain entry permits pursuant to one certificate of remittance in the name of their company?
I must add that it is the duty of the Uganda Investment Authority to ensure that the policy and the law is consistent with Uganda’s strides towards regional integration and common markets as far as the intended flow of investment capital as envisaged under the COMESA treaty and the Treaty creating the East African community and its common market is concerned.
For the above reasons, the interpretation given by court above of section 10 (5) and 10 (8) of the Investment Code Act is sufficient and a blanket declaration cannot be made. The law should be enforced by the immigration department and the Uganda Investment Authority while ensuring that the objectives of the Act are met. It is clear that the law requires that a foreign investor engaging in trade only to first obtain a certificate of remittance from the bank of Uganda. However because of what I have outlined above, the implementation of the law cannot be so straight forward and therefore the above interpretation of the law should suffice until the law is made clearer.
As far as the second question is concerned, the question is “whether or not a foreign investor engaging in trade only can validly be issued with a trading licence by the city Council of Kampala without a certificate of remittance from bank of Uganda in accordance with section 10 (5) (6) (7) (8) and (9) investment code act chapter 92 laws of Uganda.”
An answer to this question depends on the interpretation of section 10 (9) of the investment code act. They said subsection 9 of section 10 provides as follows: "a foreign investor who obtains an entry permit under subsection (8) shall lodge an application, in writing, to the local authority where the business will principally be carried out for a trade licence."
The second respondent submitted that it is not the right party to this suit and to this question. This section only requires the local authority which issues a licence to be satisfied on one question that is whether an entry permit has been granted by the immigration authority. It is the duty of the immigration department to ensure that the provisions of subsection 5 of section 10 of the Investment Code Act with regard the incorporation of the company and the deposit of money with the bank of Uganda have been complied with prior to the issuance of an entry permit. As we have noted above, there are latent contradictions between sections 10 (9) and section 10 (5) of the Investment Code Act.
In the first place the incorporation of the company with the registrar general is mandatory. What is the use of incorporation of the company except for the purposes of carrying on trade only as envisaged by subsection 5 of section 10 of the Investment Code Act? Consequently, when a business company has been incorporated it follows that it is that company which would carry out the business and be entitled to a trade licence. It is the company which ought to open an account with the Bank of Uganda and it also follows logically in my view that it is the company which will apply for a trade licence. On the other hand an entry permit is issued to an individual.
This latent contradiction needs to be resolved by the Uganda Investment Authority by harmonising the two provisions. An assessment of the provision simply means that the term "foreign investor" who has obtained an entry permit under section 10 (9) of the Investment Code Act means that the entry permit could have been issued to a registered company.
There is absurdity in this proposition. A company which is a foreign investor obtains permits for its individual directors and employees. Entry permits under section 2 (k) of the Uganda Citizenship and Immigration Control Act cap 66 means a permit granted under section 54 of the Act. There are four classes of entry permits granted under the fourth schedule to the Act. Class D of the fourth schedule to the Ugandan Citizenship and Immigration Control Act and regulation 5 five thereof deals with business and trade. It provides "A person intending to carry on the business of trade on his or her own account, or as partners in the firm in Uganda, or who satisfies the board that – (a) if a licence is required to enable him or her to engage in the trade or business, he or she is in possession of such licence or be able to obtain one; and (b) he or she has in his or her own right at his or her full and free disposition such sum as may be prescribed by the responsible Minister in respect of any particular trade or business."
In conclusion, there is no obligation on the part of the local authority in the grant of an entry permit and therefore they have no obligation to ensure that US $ 100,000 or its equivalent in local currency has been deposited with the bank of Uganda. Section 10 (9) restricts the duty of the Local authority on ascertaining that an entry permit has been granted by the Immigration department. Once an entry permit is produced, they need not ask further questions. They may exercise their discretion to grant licenses which theoretically may go to a company registered in Uganda that does not even require an entry permit.
It is my further finding that as far as the policy implications of the suit on interpretation touching on issuance of licenses is concerned the second respondent is a proper party to the suit. It is directly or indirectly a beneficiary and concerned with the management of the questions of licenses generally. A City Council is the highest local council authority in the district with the division councils though separate legal entities falling within it.
Unlike other kinds of suits, a suit for interpretation seeks guidelines and is not a claim for damages but compliance with law. For the reasons given above the second question as to whether or not a foreign investor engaging in trade only can be validly issued with a license by the relevant local authority without a certificate of remittance from the Bank of Uganda in accordance with section 10 of the Investment Code Act will be answered as follows:
There is no requirement for a local authority to satisfy itself that a certificate of remittance has been issued by the Bank of Uganda under section 10 (9) of the Investment Code Act. The only requirement provided by the law is for the local authority responsible for issuing a license of the carrying out of the business of trade only to a foreign investor to satisfy itself that the foreign investor or its directors have entry permits issued by the Immigration department and that the entry permits are valid.
As far as the third question as to whether entry permits and trading licenses issued by the above authorities is concerned without the requisite certificate of remittance from the bank of Uganda, the question has been cast too widely and cannot be answered on its terms. Suffice it to say that an entry permit issued to a foreign investor without compliance with section 10 (5) as far as the foreign investor engages in trade only shall be liable to cancellation by the Immigration Board upon it being satisfied that there has been a breach of the provisions of section 10 (5) and (8) of the Investment Code Act. As noted above, where the certificate of remittance has been issued to the company by the Bank of Uganda, the entry permit may be issued to members of the company and their directors. How the law is to be implemented requires an examination of each case on its merits.
As far as trading licenses are concerned, once it is established that an entry permit ought not to be granted before the immigration authorities, then it follows that where an entry permit is cancelled, the relevant business licenses based on the entry permit would be liable to cancellation using the procedure for cancellation of licenses under the Local Governments Act.
This being a public interest case which has revealed that there is a latent problem with the law; each party shall bear its own costs of this suit.
Judgment delivered in open court on the 8th of July 2011
Hon. Mr. Justice Christopher Madrama
Judgment delivered in the presence of:
Kakembo Timothy from Muwema and Mugerwa Advocates for the plaintiffs,
Richard Lubaale for second defendant,
No body for Attorney General
Ojambo Makoha Court Clerk
Hon. Mr. Justice Christopher Madrama
8 July 2011