Radio One Limited T/a Radio One Kampala and 31 Others v Attorney General and Another (Originating Summons 3 of 2021) [2024] UGHCCD 51 (1 February 2024)

Full Case Text

# THE RTPUBLIC OF UGANDA IN THE HIGH COI. JRT OF UGANDA AT KAMPALA ((:lvrL DrvlsroN) ORlGlNAT|l,,lc SLIMMON NO.03 OF 2021

RADIO ONE LTD T/A RADI0 ONE KAMPALA & 31 OTHERS (Suing through UGANDA MEDIA OWNER'S ASSOCIATION) VERSUS PLAINTIFFS

#### I. ATTORNEY GENERAL

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2. KAMPALA CAPITAL CITY AUTHORITY DEFENDANTS

### BEFORE: HOI!. JUSTICE ESTA NAMBAYO JUDGMENT

The Plaintiffs (Suing through Ugarrc,r lvl,:dia Owners Association), filed this suit under Order 34 r 6 of the Civil Procedure R.ules, against the Attorney General and Kampala Capital City Authority, (hereinafter .eferrr',1 to as the l and 2nd Defendants respectively) seeking for court's determination or r llre li>llowing issues: -

- 1. Whether the 2nd defendan': has statutory mandate to levy trade license fees from the Plaintiffs in light ,:l thr: recent decisions of this Court in MC No. 243 of 2017, Uganda Law Societl, -v- Kampala Capital City Authority and Attorney General, MC No. 260 of 2C19, Pharmaceutical Society of Uganda -v- Attorney General, MC No. 02 of 2C18, NIC Bank Uganda Ltd & 24 Ors. -v- Kampala Capital City Authority and IVIC ltl c. 439 ol 2O17, Uganda Cleaning lndustry & Forwarding Association -v- Kampala Capital City Authority & Attorney General. - 2. Whether the provisions : f tlre' Trade (Licensing) (amendment of schedule) instrument No. 2 of 2017 lh at: pl"rrport to licence radio stations as set out in item 60 part A of the ;r:lredr.rle for the radio station broad casting in

municipalities and item 7 ) in parl C of those broadcasting in Kampala and Television stations operatir g :,atr:llite connections as stipulated in item 67 in part A for those operatin,l irr Mr.rnicipalities and item 72 in part C for those operating in Kampala are il e:1al and ultra vires and oppressive and amounts to double taxation.

- 3. Whether the Plaintiffs have ;r riqht to a refund of the sum they have paid for the trade licences from the ytat :tJ 2017 to 2021. - 4. Whether the 2nd Defenc:rnt should refund the Plaintiffs operating within Kampala for the trade licerr,:e tfre),have paid since 2017 until 2021.

The Defendants filed their affidavit; ir', r' :p y opposing this application

#### Representation

Learned Counsel Deus Ssengeyunr':r 'rl6rrr-.sents the Plaintiffs while Learned State Attorney Ojambo Bichacha was for the Defe no,rrrt:;. Counsel for the Plaintiffs filed their submissions as directed by Court while Counsel ll'e )r:fendants did not.

The 2nd Defendant raised preliminary p,:in:s of law in its affidavit in reply that;

- i. The Plaintiffs filed this suit withc,rrl. a representative order. - ii. That this is not a proper suit for rr 3rnating summons. - iii. This suit discloses no cause of aclicrr against the 2nd Defendant.

iv. The affidavit in support of th() rL-, )l ,.ation is incurably defective.

O.l5 r.2 of the Civil Procedure 4 ulLat provides that where issues of law and of fact arise in the same suit, and the ca',t.'s ,tf opinion that the case or any part of it may be disposed of on the issues ol tnyy 6,r'ly, it shall try those issues first and for that purpose may, if it thinks fit, postorrtt? the settlement of the issues of fact until after the issues of law have been detertt,;n,nt.

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ln the Supreme Court case of Ugi.,trtt,t Telecom Ltd -v- Zte Corporation SCCA No.03 of 2012 Court held unanimously tha ;r t, al Court has discretion to dispose of a preliminary objection either at or after the hear nr-i. l-hat the exercise of this discretion depends on the circumstances of each case.

ln this case, lfind it proper to first re,,;:1r,e the preliminary objections raised before delving into the merits of this suit.

Objection No.1: That the Plaintifls {il(!i this suit without the representative order. Order 1 Rule I (1) of the CPR prrlri'Je; for representative suits and it states that;

" Where there are numerous psr.r'.r,ts having the same interest in one suit one or more of such persons may, with t11.1, ,2srmission of the court, sue or be sued, or may defend in such suit on behalf ol ,:'r fcr the benefit of all persons so interested. But the court shall in such case give r:,>lice of the institution of the suit to all such persons either by personal semi:e' ,:,r where, from the number of persons or any other cause such seruice is not reasor,ably practicable, by public advertisement as the court in each case may direa. "

My understanding of the above pr:',i: iorr of the law is that a representative suit applies when there are many people havlr:t : (i limon interest in a suit. One or more of those persons with the permission of the ::rurt :an sue or be sued on behalf of the others.

ln this case, the Plaintiffs filed this:;rrrt .hrough the Uganda Media Owners Association an incorporated entity, wrth legal pe ;r: rr.:litv capable of suing and being sued. I find that Order 1 rule B(1) CPR does not a1rr., y

#### Objection No. Z: That this is not a prollcr application for originating summons.

The 2nd defendant contended that :hir; ; l.16rlication seeks construction/ interpretation of a law, vide; the Trade (Licensing) (Anr,, ,(irr(]lt of Schedule) lnstrument No. 2 of 2017 and as such, it was wrong for the Plainti{f tc ii r tire matter under Originating Summons which does not give room for interpretat:rr'

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#### Order 37 Rule 5 provides that;

'Any person claiming to be intere.;.-e,'! tti;der a deed, will or other written instrument may apply in chambers by originatirrg, st.ttttt)lons for the determination of any question of construction arising under \fis ir.str,:r,,tr.rtt, and for a declaration of the rights of the person interested. "

## ln Kwesiga Monica -v- Commen:,at ltank of Africa (U) Ltd HCMA No. ll97 of 2021 (Arising from Civil Suit No.0959 <tf 2ttlB), court noted that;

"Originating Summons (OS) is one c.' ttte two modes of commencing a civil suit. A suit is commenced by this mode wher,, , h: :tispute concerns matters of law, and there is unlikely to be any substantial dis,o tt,: ttt t,zct. The affidavits are the pleadings for the case. The affidavit filed in supporl serves ,':; 'ltt, plaint, while the affidavit in reply serues as the written statement of defence. This tr:t:eoure exists in the interests of efficiency and cost It provides a simple, informal, ex,tedi;,c,,s and inexpensive method of obtaining a final judgment where no oral evidence ,s , e' 7u.;red, and the proceedings can be determined by way of affrdavit evidence. An orig'rtt,t l;tt , :;,rmmons is the appropriate procedure where the main point at issue is one of consl,u:.1;;,t of a document or statute or is one of pure law. It is not appropriate where there i.; l,'r ?,t.t to be any substantial dispute of facts that the justice of the case would demana t,t,p 5.,;tling of pleadings. The plaintiff is required to set out in the originating surrunc'rt; t concise statement of the questions which the plaintiff seeks the court to decr'o,. :r .:tswer, oa a statement of the relief or remedy claimed (where appropriat!. fhe ,?rtitt)iting summons should also contain sufftcient particulars to identifiT the cause ot 1.tt:,/i rn respect of which the plaintiff claims the relief or remedy. "

ln this case, the suit seeks deterrn rrati ,r of four (4) questions arising from the continued application of amendments in St; lu r)ry' nstrument No. 2 of 2017 against the Plaintiffs amidst a number of court dt:r,;i,rr'; that found that the Minister of Trade and Cooperative's amendments which sulrj,:rtcd professional bodies that were already paying licence to the Central Government lc a:r,:r r'r pay license under the Sl were illegal.

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Court emphasized that applicati<,n ,:1 tne impugned amendments would amount to double taxation of the concerneC ''l:il't ie:; Court quashed the amendments in respect of bodies which were already pay nc, ( lrr:;e under the Central Government or under a specific law. The amended Statutor)'l-r,;:rurnent and the court decisions have been availed to court. What is left, is for this l, rt t to look at the Statutory lnstrument, the court decisions and the affidavits only an,l h:r come up with its decision. There is nothing much contentious in this case. Crir;ir,rlrrrg Summons deal with matters which are not contentious. Given the minimal evi:€ r<,r 'rquired in this case which has been filed by way of affidavit and the fact that all tt,irl i.e lispute requires is determination of whether, in view of the court decisions, the C,:f , rr:lants should continue applying the impugned provisions in Sl No.2 of 2017 on tf c )lrir'liffs, I would find this to be a fit and proper case to be brought by way of Originatir,rl :rrrrrrrons to court.

Objection No. 3: That this appliclti,rn c,)es not disclose a cause of action against the 2nd Defendant.

Order 7 rule 1 1 of the Civil ProceC.rr: Ii.rles provides that. -

#### The plaint shall be rejected in th,t t',.rlt,>wing cases-

#### (u) where it does not disclose ,, catrstt of action,'

ln the case of Kapeka Coffee 'A'ct;'it: t:.td -v- NPART, CACA No. 3,/2000, the Court of Appeal held that in determininq ,,r r-,: 16r ' a plaint discloses a cause of action, the court must look at the plaint and its an )e),r.r €r, if any and nowhere else.

ln Auto Garage and Others -v- .\\ot)t(ov (No 3), [1971] , EA 514 (CAD), Court held that;

"what is important in consider.ittir vt ttether a cause of action is revealed by the pleadings is the question as to itlt;t nqht has been violated."

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ln the case of Tororo Cement ('rl.. . Ltd -v- Frokina lnternational Ltd, Civil Appeal 5O No. 2/2001, it was held that irr c:c,,r t{- prove that there is a cause of action, the plaint must show that the plaintiff enrc',r 1 r right; that the right has been violated; and that the defendant is liable. lf the thre:r ,: lenr,rrts are present, a cause of action is disclosed.

Mr. Zackey Kalega, the Commissirr,rer. inl lrnal Trade in the Ministry of Trade, lndustry and Cooperatives states in paragrapil / 3l iris affidavit in reply that the Attorney General advised the Minister of Trade 1lqlr-11,.r7 61d Cooperatives to amend the impugned schedule in Sl No. 2 of 2O17 to rer^c,.,€ a I professional services which were already paying license fees to Government unde' t.r, rrr!;:,ective laws governing their professions and that the Minister issued instructions to lrr, i' l)arliamentary Counsel to commence the process of amendment of the lnstrumenl. -e r,:ferred this court to annexure A and C to his affidavit in reply. I have looked at lrt: si i:l annexures. The communication as stated by Mr. Zackey is correct, but there has bee r rr, ,rrnendment since 2022 when the communication was done. Since there is no anrel ir-rcnl in place to date, I find that the Plaintiff has a cause of action against the 2nd D{11r, nr'ja rt.

Objection No. 4: That the affid: i,il irr ::upport of the application is fatally/incurably defective.

Order 19 rule 3 of the CPR pro./,:l(,,; tlr,rt affidavits shall be confined to such matters as the deponent is of his or lter ,:r,rr knowledge to prove, except on interlocutory application, on which statements o' ri ; r,r her belief may be admitted, provided that the grounds thereof are stated.

ln the case of Col Dr. Kiiza Besigve ^v- . Museveni Yoweri Kaguta Election Petition No. 1of 2001, it was noted that Cou 1 r a {)xercise its discretion and sever the inadmissible parts of the affidavit.

I have looked at the affidavit of ,l: and found no offending paragraJ,lr objections, which I now over rule z nr :vciyn Ochakachon's in support of the application Tlre Defendants have failed in all their preliminary [).,i(]eed to address this case on the merits.

r4 'lP 9- Y Question 1: Whether the 2nd Def,-'rr,jirnl has statutory mandate to levy trade licence fees from the Plaintiffs in light ,r' tl',e re:ent decision of this Court.

The said court decisions are in resl::. t .,1;

1. Uganda Law Society -v- Kamg al;r l.apital City Authority and Attorney General, MC No. 243 ol 2O17

2. Pharmaceutical Society of Uq:'rd r Attorney General, MC No. 26O of 2O19

3. NC Bank Uganda Ltd & 24 O :;. -v- Kampala Capital City Authority, MC No. 02 of 2018,

4. Uganda Cleaning lndustry 8. I orui;rrding Association -v- Kampala Capital City Authority & Attorney General, l/ ( l,lo. tt.\9 of 2017.

ln all the said cases, Court foLrnd t'a . was not proper for the Defendants to subject bodies which were already pa;ir'; lrr ., se fees to Government or under other laws governing their respective pr<rfe.s r;ir. r r,,l r;odies to again pay license. The above court findings were not appealed. Cor,rsel lor the Plaintiff referred this court to Paragraphs 7 and 10 of Mr. Zackey Kalega's ..rff <lirvi- rr -eply where he states that;

"l know in Septembec 2021, t/iai ',)\: I o". Attorney General advised the Hon. Minister of Trade lndustty and Co-operat,vt,: to ,tr',iend the schedule and remove all professional seruices which were already p,ty;t,q ri',,t:es to Government under their respective laws governing the professionals a,td '1,..t ,tt Octobef 2022, the Minister of Trade having scrutinized the draft amendmerrt,t,;t ,,tEnt fufther advised that Radios and television seruices among others shou ld sr ni t i,t r .v . : t, excluded from amendment. "

ln a letter dated 28th October, 2112t i: l,4inister of Trade wrote to the Attorney General on the issue of amendment of t r: Trrrlr: Licensing, Amendment of Schedule, Sl No.2, 2022. fhis letter is annexure 4 1qv vir. 7 rr,l.:ey's affidavit in reply. Under paragraph 3 of the letter, the Minister states that;

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"I have discovered that; Health Centers, Private Hospitals, Nursing Homes, Maternity Homes, Clinics, Drug Stores, Manufacturers Agents, Mobile Money Services Providers, Radios and Television Services, Clearing and Forwarding Agents and Construction Companies that are already paying license fees under various Acts of Parliament that establish them should similarly be excluded in the Amendment." (underlining is mine for emphasis).

In this case, the Plaintiffs are annually licensed and regulated by the Uganda Communications Commission and the M nister clearly points it out in his communication that they should be excluded. In view of the above communication from the Minister and the court decisions, I find that subjecting the Plaintiffs to pay licence under the impugned SI No.2 of 2017 has no basis, it amounts to double taxation and it is illegal and in bad faith by the Defendants.

### **Remedies**

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#### The Plaintiffs sought for a refund of the money paid from 2017 to 2021

Counsel for the Plaintiffs submitted that the amounts wrongly collected and retained by the 2nd Defendant now amounts to a civil debt owed by the 2nd Defendant to the Plaintiffs. He relied on Article 26 of the 1995 Constitution of Uganda, the law of Restitution by Lord Goff and Gareth Jones London, Sweet and Maxwell 1993 P.548-549-Quoting from the case of Woolwich Equitable Building Society –v- Commissioner of Inland Revenue (1933) AC 70, Page 679 to 681, administrative law, 11th Edition. H. W. R WADE & C. F. FORSYTH and Mayambala Mustate & 3 Others representing over 5000 taxi owners, drivers and conductors –v- Kampela Capital City Authority, CA No. 3 of 2014 and prayed that this Court orders that the 2rd Defendant refunds Ug. Shs. 94,500,000 which is the total sum of the trading license fees paid by Plaintiffs operating in Kampala within the period claimed and that the sum ke split accordingly.

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#### Analysis

ln Gapco (U) Ltd -v- A.5. Transl,t,r'tr,rE (li) Ltd CACA No. 18,/2004, court noted that: -

'Special damages must be spe:iii, ar,, p'i,:;ded and proved, but that strictly proving does not mean that proof must alway: t:t' ,lct.!tnentary evidence. Special damages can also be proved by direct evidence; for e.ta, ),t,it', oy evidence of a person who received or paid or testimonies of experts conversant ut"' L), matter"

# ln Haji Asuman Mutekanga - r {quator Growers (U) Ltd, SCCA No.7/1995, it was held that;

"Special damages and loss of ,t Ltl r rittst be specifically pleaded, they must also be proved exactly, that is to say, on h),? ,;,rl.t"ce of probability."

ln this case, Exhibits G1 to G21 t:r lrt ,rfirri.:vrt in support of the Originating Summons are trade license Certificates showrrrq rr rnri r; paid, all adding up to Ug. Shs. 94,500,000. The 1st Defendant admits rn paragrag-l, (. l, li ,) and 10 of its affidavit in reply that there was an error and that the Plaintiffs slr: rlr: irr, r,,rcluded from the amendment. This was in 2022. Unfortunately, this anomaly har; rc b rr,rr rectified to date. The 1st court decision to declare the amendments to be r- l -a \/ r, i r'yas rnade in February, 2019. I believe this was sufficient notice to the DefenoaItr to ectify their error. lt is unfortunate that the Defendants instead of rectifying li'e r er ':)r across board, they continued to subject the Plaintiffs and others who had nct t:r,e 1 :r court to payment of the illegal licence. lt would appear that only those who went ic) (oi ! have been excluded from double payment of the license fees. I find this seli.r i'; : r rlication of the law by the Defendants to be abusive as it is intended to che,r il e rl,rintiffs. The Plaintiffs need protection from the Defendants' exploitative conduct

Counsel for the Plaintiffs prayed i -r ,r,st lrrtion of the amounts paid by the Plaintiffs. He relied on the case of Mayambalr Alu:tafa and 3 others representing over 5000 taxi

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ownerS Drivers and conductors -v- Kzttrtpala Capital City Authority CA No. 3 of 2014; where court ordered that the rvf rr,lc lnrotrnt paid illegally be refunded to the claimants. He also cited the book of; Thl !;t'.,r ,tt' Restitution by Lord Goff and Gareth Jones London, Sweet and Maxwell l!r!t.] p 5.t8 -549- Quoting from the case of Woolwich Equitable Building Socity -v- Cr.r rn..iss;orter of lnland Revenue (1933) AC 70

## Per Lord Goff and lord Browne,- ,1,,t\*'i;:on that;

"money paid by a citizen to an.y'1 tt,'r: ,ir.,thortty in the form of taxes or other levy paid pursuant to an ultra vires der,t,;. ,.' . ' ,' ' Authority is recoverab/e by the citizen as of right."

I agree with the above court fir'{- i t:. J1 ,rr,o do hereby enter judgement for the Plaintiffs in the following terms: -

- l. A declaration be and is i,r r€,)), r'.:de that the 2nd Defendant had no statutory mandate to levy trade lir:r rr,:,:r t.:.r; from the Plaintiffs. - 2. A declaration be and is I rrr:tr1 r'rade that the Plaintiffs are entitled to a full refund of all the monev ie,,,i,-'tr iigainst them by the 2nd Defendant as trade licence fees from the yeiir )r ;l(,' ',' lo 2O21. - 3. lt is hereby ordered th.r': ir,: ;l'd )efendant refunds to the Plaintiffs a sum of Ushs. 94,500,000/= [ nrr-r:y -r)r.' million five hundred thousand shillings only] being the collective anrour'i r:,:ll,:r:ted by the 2nd Defendant as trade licenses. - 4. Each of the Plaintiffs slro rir:i l:,: paid the specific amount paid to the 2nd Defendant upon presen:l :,r:, ' o : l)roof of payment. - 5. The 2nd Defendants pay cli;t:; cf tl'is suit.

I so order

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Dated, signed and delivered by mail at Kampala, this 1st day of February, 2024.

$\mathbb{C}$ Esta Nambayo

**JUDGE** $1^{st}/2/2024$ .

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