Mukasa Couriers Limited v Akol and Others (Civil Appeal 14 of 2018) [2018] UGHCCD 220 (12 September 2018)

# **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA**

## **CIVIL APPEAL NO.14 OF 2018**

**(ARISING FROM HCMA NO.387 OF 2018 Itself arising from Civil Suit No. 253 of 2018)**

**MUKASA COURIERS LIMITED--------------------------------- APPLICANT/APPELLANT**

# **VERSUS**

- **1. DORIS AKOL (COMMISIONER GENERAL-URA)** - **2. HENRY SAKA (COMMISSIONER DOMESTIC TAXES)** - **3. JULIE KIWANUKA NJUBA** - **4. UGANDA REVENUE AUTHORITY……………………….………….. RESPONDENTS.**

### **BEFORE HON. JUSTICE SSEKAANA MUSA**

#### **JUDGMENT**

This is an appeal against the ruling of Her Worship Sarah Langa Sui-Deputy Registrar High Court Civil Division in which she allowed a preliminary objection that she lacked jurisdiction to hear and determine the matter before her.

The applicant filed a suit in the High Court seeking the following orders;

- A declaration that the 1st, 2nd and 3rd defendants did not take due diligence as they failed to supervise audits which led to wrongful assessment and objection decisions. - A declaration that the accounts are presented at a 12months basis and not 27 months. Hence not comparable to get a variance. - A declaration that 8% of 10,615,870,575/= is not 8,399,361,099/= but the correct figure is 849,269,646/= - A declaration that the objection was made out of time that is 103 days yet the mandatory time is 90 days.

- A declaration that the defendants' mode of assessment of VAT is illegal and baseless amounting to 110,138,733/= - A declaration that the plaintiff was wrongly assessed Income Tax Act of 284,048,087/= by the defendants' officials for the year 2015-2016 as of the plaintiff's tax position for the year in question. - A declaration that the 1st, 2nd and 3rd defendants severally and/or jointly failed to follow the law but used their methodology, principle and law outside the laid down procedure. - A declaration that the methodology employed by the defendants was wrongful and abuse of laws governing tax assessments. - A declaration that the assessed taxes in (e) and (f) are not recoverable for illegality. - An order setting aside the above said assessments. - General damages for inconvenience. - Costs of the suit

The applicant/appellant filed an application for a temporary injunction and interim application before the hearing of the application for Interim application the respondents' counsel raised several raised a preliminary objection that the court did not have jurisdiction to entertain matter. The learned trial Deputy Registrar heard the preliminary objection and allowed it. (that the court lacked original jurisdiction in this matter)

The applicant/appellant represented themselves and the respondents were represented by Tonny Kalungi and Diana Prida Praff. In the interest of time court directed the counsel for both parties to file written submissions.

The application/Appeal was brought by way of Notice of Motion under Order 50 rule 3 and Order 52 r1 &3 of the Civil Procedure Rules for Orders that;

1. The ruling of her Worship Sarah Langa Siu-Deputy Registrar High Court dated 3rd August 2018 in HCMA NO. 387 of 2018 be set aside and or Quashed as erroneous.

- 2. The said Deputy Registrar's dismissal of Miscellaneous Application No. 387 of 2018 be vacated and substituted with an Order allowing the said application. - 3. This Appeal be allowed with costs

The application was supported by the affidavit of Asaba Jalia.

In opposition to this Application the Respondents filed an affidavit in reply by Tonny Kalungi wherein he vehemently opposed the appeal by contending that the court had no jurisdiction to hear and determine the matter before it.

In this application the applicant/appellant is only challenging the Deputy Registrar on the following grounds;

- That the learned trial Deputy registrar erred in law and fact in going beyond the scope of her mandate while entertaining interim Orders when she heard and sanctioned a preliminary objection relating to the main suit. - The Learned Deputy registrar erred in law in dealing with extraneous matters beyond the application for the interim order before her. - The learned Deputy Registrar erred in law and fact in holding that the main suit involved basically mathematical and or computational matters within the realm of only the Tax Appeals Tribunal whereas not.

This learned Deputy registrar in her ruling upholding the preliminary objection noted as follows;

" *In the instant application atleast from the pleadings on court record, the gist of the matter is a tax assessment that is disputed by the applicant for among others mathematical errors on computation, non-disclosure of input incurred in production, non-consideration of the generally accepted accounting standards, alien tax regime and formula. This is purely a tax dispute and going by the Rabbo decision, original jurisdiction for such matters lies with the Tax Appeals Tribunal in accordance with Article 152(3) of the Constitution"*

The gist of the Appeal is that the deputy registrar exercised jurisdiction that is not vested in her since the preliminary objection went beyond her mandate as a Deputy registrar.

The preliminary objection that was raised by the respondents' counsel went to the root of the matter and not merely the interim application because the said application indeed arose from the main suit.

The question of jurisdiction of court is very important in determining the authority to be exercised by the court as it was explained in **Koboko District Local Government vs Okujjo Swali High Court Miscellaneous Application No. 001 of 2016** where court noted that;

"*One of the "policies of court" is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. Jurisdiction is the first test in the legal authority of a court and its absence disqualifies the court from exercising any of its powers. Jurisdiction means and includes any authority conferred by the law upon the court to decide or adjudicate any dispute between the parties or pass judgment or order. A court cannot entertain a cause which it has no jurisdiction to adjudicate upon*."

In the present case, the learned Deputy registrar was right when she entertained the preliminary objection that raised the issue of jurisdiction since the said suit out of which the interim application arose should never have been filed in the High Court in the first place.

In the result for the reasons stated herein above this application has no merit and is hereby dismissed with no order as to costs.

It is so ordered.

**SSEKAANA MUSA JUDGE 12/09/2018**