Wakilii

Testmony Motors Ltd v Commissioner Customs Uganda Revenue Authority (Civil Suit No. 4 of 2011)

High Court · [2012] UGCOMMC 49 · 2012 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Plaintiff filed a representative action by originating summons under Order 37 rules 6 and 8 of the Civil Procedure Rules. Defendant raised a preliminary objection to the competence of the suit.
Decision
Originating summons struck out. Plaintiff at liberty to file a suit by plaint in the ordinary manner.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an originating summons is not the proper procedure for challenging the lawfulness of an administrative act as ultra vires an Act of Parliament. Order 37 rule 6 of the Civil Procedure Rules permits originating summons only for determination of questions of construction arising under a deed, will, or other written instrument. A question of construction requires a genuine controversy as to the meaning, scope, or intention of the instrument. The plaintiff's case did not raise a question of construction of the East African Community Customs Management Act 2004, but rather challenged the Commissioner's directive as unlawful. The court held that the words 'other written instrument' in Order 37 rule 6 must be interpreted ejusdem generis as referring to private documents of the nature of deeds and wills, and do not include an Act of Parliament. Originating summons struck out with no order as to costs. Plaintiff at liberty to file a suit in the ordinary manner.

Outcome

Originating summons struck out. Plaintiff at liberty to file a suit by plaint in the ordinary manner.

Facts

Testimony Motors Ltd, on behalf of itself and numerous importers of used motor vehicles in Uganda, sought to challenge a directive by the Commissioner of Customs suspending the transaction value method for valuation of used motor vehicles under section 122 of the East African Community Customs Management Act 2004. On 8 April 2011, the plaintiff obtained leave to sue by representative action. On 15 April 2011, the plaintiff filed an originating summons under Order 37 rules 6 and 8 of the Civil Procedure Rules. On 24 June 2011, the court refused leave to issue the originating summons on the ground that the High Court should not interpret East African Community law, a matter for the East African Court of Justice. Following a review application (Miscellaneous Application No. 397 of 2011), the court allowed the review on 14 October 2011, holding that section 220(1) of the Act conferred jurisdiction on the High Court. The originating summons was signed on 14 October 2011 and served on the defendant. The plaintiff sought declarations that the Commissioner's directive was unlawful and claimed refund of monies allegedly illegally collected. The defendant filed a preliminary objection on grounds that the dispute was improperly brought by originating summons and that the representative order was not properly obtained.

Issues

  1. Whether the dispute before court is properly brought by way of originating summons.
  2. Whether the court is functus officio in respect of the procedure adopted after granting leave to issue the originating summons.
  3. Whether Order 37 rule 6 of the Civil Procedure Rules permits proceedings by originating summons for interpretation of an Act of Parliament.
  4. Whether the words 'other written instrument' in Order 37 rule 6 include an Act of Parliament.
  5. Whether the questions framed by the plaintiff constitute questions of construction arising under a written instrument.

Orders

  • The originating summons is struck out.
  • No order as to costs.
  • The plaintiff is at liberty to file a suit for declarations of the legality or illegality of any act of the Commissioner of Customs and for consequential relief.

Rules and key headnotes

Civil Procedure — Originating Summons — Scope and Application of Order 37 rule 6
An originating summons under Order 37 rule 6 of the Civil Procedure Rules may be issued only for determination of questions of construction arising under a deed, will, or other written instrument. A question of construction presupposes a genuine controversy as to the meaning, scope, purpose, intention, or ambit of the instrument or any part thereof. It is not sufficient to allege that an Act has been contravened or that an administrative act is unlawful.
Civil Procedure — Originating Summons — Interpretation Ejusdem Generis of 'Other Written Instrument'
The words 'other written instrument' in Order 37 rule 6 of the Civil Procedure Rules must be interpreted ejusdem generis as referring to documents of the same nature as deeds and wills, namely private documents creating rights or liabilities. An Act of Parliament or statutory instrument does not fall within the meaning of 'other written instrument' for purposes of Order 37 rule 6.
Civil Procedure — Functus Officio — Court Not Precluded from Determining Appropriateness of Procedure After Issuance
Where a court signs an originating summons ex parte under Order 37 rule 8(2), the court is not functus officio as regards the appropriateness of the procedure. Order 37 rule 11 permits the court, after hearing both parties, to refuse to pass any order on the summons and dismiss it or refer the parties to a suit in the ordinary course if the matters in respect of which relief is sought cannot properly be disposed of in a summary manner. The defendant cannot be denied the right under article 28 of the Constitution to raise objections to the propriety of the originating summons after being served.
Administrative Law — Ultra Vires Acts — Proper Procedure for Challenge
A challenge to an administrative act as ultra vires an Act of Parliament is not a matter for determination by originating summons under Order 37 rule 6. It does not raise a question of construction of the enabling statute. The proper remedies include filing a suit for declarations of legality or illegality with consequential relief, or applying for judicial review under the Judicature (Judicial Review) Rules 2009.
Statutory Interpretation — Distinction Between Construction and Enforcement
There is a clear distinction between enforcement of statutory provisions and interpretation or construction of those provisions. Enforcement includes applying known provisions of law to particular facts to determine whether an act is lawful or unlawful. Construction or interpretation involves resolving a controversy as to the meaning, intention, scope, or ambit of the statutory language itself. A suit seeking to enforce statutory provisions by declaring an administrative act unlawful does not raise a question of construction merely because it cites statutory provisions.

Legislation cited (14)

Cases cited (14)

  • Bhari v Khan [1965] EA 95
  • Steven Mabosi v Uganda Revenue Authority (Supreme Court Civil Appeal No. 26 of 1995)
  • Utex vs. Attorney General
  • Environmental Action Network Action Ltd v Attorney General and NEMA (Miscellaneous Application No. 39 of 2001)
  • Goodman Agencies v Attorney General (Constitutional Petition No. 3 of 2008)
  • Nakabugo v Francis Drake Serungjogi [1981] HCB 58
  • Talyaba Nyakana v Beatrice Kobusingye (Civil Suit No. 6 of 1992)
  • Pearl Impex v Kampala Capital City Authority (Originating Summons No. 3 of 2011)
  • Rock Petroleum v Uganda Revenue Authority (Originating Summons No. 9 of 2009)
  • Ismail Serugo v Kampala City Council and Attorney General (Supreme Court Constitutional Appeal No. 2 of 1998)
  • Emmanuel Nagoli v Attorney General and Manafwa Dealers Ltd (Constitutional Reference No. 7 of 2006)
  • Attorney-General v HRH Prince Ernest Augustus of Hanover [1957] 1 All ER 49
  • Bourne (Inspector of Taxes) v Norwich Crematorium Ltd [1967] 2 All ER 576
  • Pearl Impex Uganda Ltd v Attorney General and Kampala City Council

Full judgment

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Testmony Motors Ltd v Commissioner Customs Uganda Revenue Authority (Civil Suit No. 4 of 2011) [2012] UGCommC 49 (18 May 2012)
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.