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Fred Muwema v Uganda Revenue Authority and Another (Miscellaneous Application No 549 of 2018)

High Court · [2018] UGHCCD 302 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunctive order arising from pending civil suit challenging lawfulness of travel ban
Decision
Temporary injunction granted restraining enforcement of travel ban pending determination of main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a temporary injunction should issue restraining the respondents from implementing the travel ban. The applicant established a prima facie case raising serious questions of law and fact regarding the lawfulness of the travel ban and infringement of constitutional rights. The continued enforcement of the travel ban would cause irreparable injury to the applicant's constitutional right to practice his profession under Article 40(2) of the Constitution, which cannot be adequately compensated by damages. The respondent failed to establish reasonable grounds to believe the applicant intended to permanently leave Uganda, as required by section 105 of the Income Tax Act. The balance of convenience favoured the applicant.

Outcome

Temporary injunction granted restraining enforcement of travel ban pending determination of main suit

Facts

The 1st respondent (Uganda Revenue Authority) issued a travel ban against the applicant alleging he owed outstanding tax liability of UGX 4,314,906,176. The travel ban was being implemented by the 2nd respondent (Attorney General). The applicant challenged the issuance of the travel ban by filing HCCS No. 377 of 2018, seeking a declaratory order that the travel ban was unlawful, unjustified, and an infringement of his constitutional rights under Articles 29(2) and 40(2) of the Constitution. While that suit was pending, the applicant filed this application for a temporary injunctive order to restrain implementation of the travel ban. The applicant asserted he was suffering business loss and infringement of his right to practice his profession. The respondents argued the application was res judicata in light of a Supreme Court judgment finding the applicant liable to refund the stated sum, and that the travel ban was lawfully imposed under section 105 of the Income Tax Act to compel payment before the applicant travelled outside the country.

Issues

  1. Whether a temporary injunctive order should issue restraining the respondents from implementing a travel ban on the applicant pending determination of the main suit.
  2. Whether the application was res judicata in light of a prior Supreme Court judgment.
  3. Whether the applicant established a prima facie case with probability of success.
  4. Whether the applicant would suffer irreparable injury if the injunction were not granted.
  5. Whether the balance of convenience favoured granting the injunction.

Orders

  • A temporary injunction issues restraining the respondents, their officials, servants and/or agents from implementing the travel ban on the applicant until determination of HCCS No. 377 of 2018.
  • Costs shall be in the cause.

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Three-part Test for Grant
The grant of a temporary injunction is an exercise of judicial discretion to preserve matters in status quo until final disposal of the suit. Three conditions must be satisfied: first, the applicant must show a prima facie case with probability of success; secondly, the injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury not adequately compensated by damages; thirdly, if the court is in doubt, it will decide on the balance of convenience.
Civil Procedure — Temporary Injunctions — Prima Facie Case
To determine whether there is a prima facie case for grant of a temporary injunction, the court must inquire whether there is a serious issue to be tried at trial. Where an applicant raises serious questions of law and fact that need determination at trial, the condition of existence of a prima facie case is fulfilled.
Constitutional Law — Fundamental Rights — Right to Practice Profession — Infringement
Under Article 40(2) of the Constitution, every person in Uganda has the right to practice his or her profession and to carry on any lawful occupation, trade or business. Loss suffered as a result of infringement of a constitutional right cannot be properly atoned for through compensatory damages and constitutes irreparable injury for purposes of granting a temporary injunction.
Tax Law — Travel Bans — Requirements under Income Tax Act
Under section 105 of the Income Tax Act, the Commissioner may issue a certificate to prevent a person from travelling only where the Commissioner has reasonable grounds to believe that the person may leave Uganda permanently without paying all tax due. The Commissioner must establish reasonable grounds that the person intends to permanently leave the country; failure to establish such grounds renders the travel ban unjustified.
Civil Procedure — Temporary Injunctions — Balance of Convenience
The balance of convenience literally means that if the risk of doing an injustice is going to make the applicant suffer, then the balance of convenience is favourable to the applicant and the court would be inclined to grant the temporary injunction. Where an applicant's trade has been restrained and is likely to suffer loss, the balance of convenience favours the applicant.
Civil Procedure — Temporary Injunctions — Scope of Inquiry
When granting a temporary injunction, the court should not delve much into issues raised in the main suit at that stage. The court should not attempt to resolve issues related to the main suit but should focus on the merits of the application for temporary injunction. Temporary injunctions are discretionary orders and all facts of the case must be considered and balanced judicially, with no fixed rules, keeping the vetting flexible.

Legislation cited (8)

Cases cited (4)

  • Kiyimba Kaggwa v Haji Abdu Nasser Katende [1985] HCB 43
  • Daniel Mukwaya v Administrator General (High Court Civil Suit No. 630 of 1993)
  • Tim Kabaza and 2 Others v Chatha Investments Ltd (Miscellaneous Application No. 745 of 2007)
  • Prof. Peter Anyang Nyong'o and Others v Attorney General of Kenya and Others (East African Court of Justice Case Ref. No. 1 of 2006)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Fred Muwema v Uganda Revenue Authority and Another (Miscellaneous Application No 549 of 2018) [2018] UGHCCD 302 (4 March 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.