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Rock Petroleum (U) Ltd v URA (HCT-00-CC-MA 8 of 2009)

High Court · [2009] UGCOMMC 47 · 2009 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Exparte application for Originating Summons in a representative suit seeking refund of excise duty and construction of statute
Decision
Application dismissed for procedural defects

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the procedure adopted was incorrect. Proceedings by Originating Summons are not commenced by preliminary application such as a Notice of Motion. The applicant did not qualify under Order 37 rules 1, 3, 4, 5, and 6 to take out Originating Summons. Based on the nature of the complaint, the appropriate remedy was an application for judicial review under the Judicature (Judicial Review) Rules 2009. Application dismissed.

Outcome

Application dismissed for procedural defects

Facts

Rock Petroleum (U) Ltd had been granted permission by court order dated 7 April 2009 to sue Uganda Revenue Authority in a representative suit on behalf of itself and numerous importers of diesel and petrol in Uganda. The representative action sought refund of monies allegedly illegally collected by URA as Excise Duty in the 2007-2008 Financial Year. Pursuant to that permission, the applicant on 8 May 2009 filed an exparte application by Notice of Motion under Order 37 rules 6 and 8, Order 48 rules 1 and 3 of the Civil Procedure Rules seeking orders that Originating Summons issue against URA and that costs be provided for. Notice of institution of the application was advertised in the Daily Monitor on 22 May 2009. The ground for the application was that the applicant and other importers paid excise duty in 2007-2008 and sought proper construction of the Excise Tariff (Amendment) Act No. 5 of 2008 regarding legality of the tax imposition and collection and their right to a refund.

Issues

  1. Whether the procedure adopted by the applicant for taking out Originating Summons was correct.
  2. Whether the applicant and the parties it represents qualified to take out an Originating Summons under Order 37.
  3. Whether the appropriate remedy was an application for judicial review rather than Originating Summons.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Originating Summons — Correct Procedure — Commencement by Preliminary Application
Proceedings by Originating Summons under Order 37 of the Civil Procedure Rules are not commenced by a preliminary application whether by Notice of Motion or Chamber Summons. The Originating Summons itself is presented exparte to a judge sitting in chambers with an affidavit setting forth the facts upon which the relief sought is grounded.
Civil Procedure — Originating Summons — Persons Qualified to Take Out — Order 37 Rules 1, 3, 4, 5, and 6
Only persons indicated in Order 37 rules 1, 3, 4, 5, and 6 of the Civil Procedure Rules are qualified to take out Originating Summons proceedings. An applicant seeking refund of tax paid and construction of a statute does not fall within the categories of persons who may proceed by Originating Summons.
Civil Procedure — Appropriate Remedy — Judicial Review — Construction of Statute and Refund of Tax
Where the nature of the complaint concerns the legality of tax imposition and collection by a statutory body and seeks construction of a taxing statute, the appropriate remedy is an application for judicial review under the Judicature (Judicial Review) Rules 2009, not proceedings by Originating Summons.

Legislation cited (6)

Full judgment

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Rock Petroleum (U) Ltd v URA (HCT-00-CC-MA 8 of 2009) [2009] UGCommC 47 (18 June 2009)
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.