Wakilii

Rutayisire and Anor v Uganda Revenue Authority (Miscellaneous Cause No. 236 of 2020)

High Court · [2021] UGHCCD 10 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking an order of certiorari to quash decision to prosecute applicants in criminal proceedings
Decision
Decision to prosecute the applicants quashed; criminal proceedings against the applicants vitiated

Observed later treatment

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Holding

Held that the decision to prosecute the applicants was irrational and procedurally improper. The respondent acted contrary to the principle of corporate personality by charging a general manager and non-resident director for offences allegedly committed when they were out of jurisdiction, rather than charging the company itself. The respondent failed to conduct thorough investigations to establish whether the applicants were the directing mind and will of the company. Certiorari issued quashing the decision to prosecute.

Outcome

Decision to prosecute the applicants quashed; criminal proceedings against the applicants vitiated

Facts

On 7 January 2020, URA officials raided Leaf Tobacco & Commodities (U) Ltd and impounded vehicle UAQ 987L alleging false customs declaration. The clearing agent wrote on 8 January 2020 stating the customs entry was for a different vehicle (UAZ 979P) and that URA agents demanded a 30% bribe. URA sent the lead officer on forced leave. URA subsequently issued criminal summons against former directors of the company and later amended the charge sheet to substitute the applicants (general manager and non-resident director). Both applicants were out of Uganda during the alleged offence period: the 1st applicant was in Canada from 24 December 2019 to 10 January 2020; the 2nd applicant was in Dubai. The applicants challenged the decision to prosecute them personally rather than the company.

Issues

  1. Whether the application raises issues amenable for judicial review?
  2. Whether the procedure of taking the decision to prosecute the Applicants was illegal, irrational and procedurally improper?
  3. What remedies are available to the parties?

Orders

  • Application allowed.
  • An order of certiorari issues quashing the decision of the respondent to prosecute the Applicants in HCT-00-AC-CO-012 of 2020 Uganda (URA) v Mweru Rodgers & 3 Others before the Anti-Corruption Division on grounds of irrationality and abuse of due process.
  • Costs of the application awarded to the applicants.

Rules and key headnotes

Judicial Review — Amenability — Prosecutorial Discretion
Prosecutorial discretion can be subjected to judicial review where there is dishonesty, mala fides or exceptional circumstances involving bad faith, lack of integrity or moral turpitude.
Company Law — Corporate Personality — Criminal Liability — Directing Mind and Will
A company has separate legal personality distinct from its directors and officers. Before criminal liability can be attributed to individuals within a company, there must be a thorough investigation to establish whether the person was the directing mind and will of the company or merely a servant or agent. The decision to prosecute individuals rather than the company itself must be justified by evidence that the individuals constituted the directing mind and will of the company.
Company Law — Criminal Prosecution — Procedure
Where a respondent has cause to prefer criminal charges against a company, the proper procedure is to serve summons on the company under section 49 of the Magistrates Courts Act and the company would appear under section 53 of the same Act. There is no justifiable cause for lifting the veil of incorporation to pursue directors for offences committed by the company unless those directors are shown to be the directing mind and will responsible for the criminal acts.
Administrative Law — Irrationality — Prosecutorial Decision
A decision to prefer criminal charges against individuals who were out of jurisdiction at the time of the alleged offence, without any evidence establishing their direct involvement, is irrational and an arbitrary exercise of prosecutorial power. Such a decision cannot be justified and points to abuse of power.
Administrative Law — Procedural Fairness — Prosecutorial Powers
Public authorities exercising prosecutorial powers must comply with the duty to follow proper legal procedure and principles to ensure fairness. Where a statute confers power to make decisions affecting individuals, courts will require not only the prescribed statutory procedure to be followed but will readily imply additional procedural safeguards as necessary to ensure fairness.
Administrative Law — Rationality — Purpose and Motive
No administrative power is given without a reason or purpose. Whatever the decision maker's choice in exercising discretionary powers, the purpose and reasons must be aligned to what is authorised by the Constitution and enabling laws and must be rationally justified in a democratic society. Failure to align purpose with lawful authority breaches the principle of rationality.

Legislation cited (19)

Cases cited (14)

  • Petnum Pharmacy Limited v National Drug Authority (Miscellaneous Cause No. 56 of 2018)
  • R v Director of Public Prosecutions, Ex Parte Kebeline [1999] UKHL 43
  • Salomon v A Salomon and Co Ltd [1897] AC 22
  • Uganda Law Society v Kampala Capital City Authority (Miscellaneous Cause No. 243 of 2017)
  • Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
  • Ho Kang Peng v Scintronix Corp Ltd [2014] 3 SLR 329
  • Tesco Supermarkets Ltd v Nattrass [1972] AC 153
  • Tesco Stores Ltd v Brent London Borough Council [1993] 2 All ER 718
  • Re Supply of Ready Mixed Concrete (No.2) [1995] 1 AC 456
  • Meridian Global Funds Ltd v Securities Commission [1995] AC 500
  • ACP Bakaleke Siraji v Attorney General (Miscellaneous Cause No. 212 of 2018)
  • Winfred K. Masiko and Others v DPP and Others (Civil Miscellaneous Application No. 15 of 2009)
  • Lloyd v McMahon [1987] AC 625
  • Pharmaceutical Manufacturers Association of South Africa v President of the Republic of South Africa 2000 (2) SA 674 (CC)

Full judgment

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Rutayisire and Anor v Uganda Revenue Authority (Miscellaneous Cause No. 236 of 2020) [2021] UGHCCD 10 (19 March 2021)
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.