ola energy uganda limited v attorney general of republic of uganda reference no 6 of 2020 2024 eacj 7 11 october 2024

~ 0 -~~ ~ IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION L (Coram: Yohane B. Masara, PJ; Charles 0. Nyawello, DPJ; Richard Muhumuza, l~ ~ Richard Wabwire Wejuli & Gacuko Leonard; JJ) REFERENCE NO. 6 OF 2020 OLA ENERGY UGANDA LIMITED (Formerly 'Libya Oil Uganda Limited') ............................. APPLICANT VERSUS THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA ............................. RESPONDENT 11 th OCTOBER 2024 JUDGMENT OF THE COURT A. INTRODUCTION 1. On 1st April 2020, Ola Energy Uganda Limited, formerly known as Libya Oil Uganda Limited (hereinafter, "the Applicant) filed this Reference against the Attorney General of the Republic of Uganda (hereinafter, "the Respondent"). The Reference was brought under the provisions of Articles 5(3)(a), 6(d), 7(1 )(c), 27, 30, 75(1 )(e), 75(6), 80(1 )(f) and 151 of the Treaty for the Establishment of the East African Community (hereinafter, "the Treaty"); Articles 2(4 )(a), 3(d) and 14(1) of the Protocol on the Establishment of the East African Customs Union; Article 4 of the Protocol on the Establishment of the East African Common Market; Rules 2, 4(1 )(b) and 4(2) of the East African Community Customs Union (Rules of Origin) Rules; Rules 4, 25(1 ), (2) and (3) of the East African Court of Justice Rules of the Court, 2019 (hereinafter, "the Rules"); the Vienna Convention on the Law of Treaties, 1969 and all enabling provisions of the law. 2. The Reference seeks to challenge a post clearance audit undertaken on the Applicant by the Respondent's Agent, Uganda Revenue Authority, in respect of the period January 2014 to December 2018. 3. The Reference is supported by the Affidavit of Jean Lopy, the Accounting and Finance Manager of the Applicant company. The Applicant also lodged a Further Affidavit in support of the Reference deponed by Thomas Abade dated 28 th March 2023. Reference No. 6 of 2020 Page 2 4. The Applicant presented itself as a limited liability company incorporated in the Republic of Uganda with company number BRS-NCHC-7-19/28820, thus a resident of the Republic of Uganda. For the purposes of this Reference, the Applicant's address of service is Plot 24 Binayomba Road, Bugolobi, Kampala. 5. The Respondent is the Attorney General of the Republic of Uganda, sued on behalf of the Government of the Republic of Uganda in the capacity of the principal legal advisor of the Government. B. REPRESENTATION 6. At the trial, the Applicant was represented by Ms Faith Macharia and Mr lkoha Muhindi, learned Advocates. The Respondent was represented by Mr Geoffrey Atwine, Commissioner, Civil Litigation; Ms Charity Nabasa, Senior State Attorney and Mr Derrick Rutungu, State Attorney, all from the Attorney General's Office, Republic of Uganda. C. THE CASE FOR THE APPLICANT 7. The Applicant's case is contained in the Statement of Reference lodged in Court on 1st April 2020, Applicant's Reply to the Response dated 30 th July 2021 and in the supporting affidavits stated in paragraph 3 above. The Applicant also filed written submissions in support of its case and highlighted the same in Court on 21 st March 2024. 8. It is the Applicant's case that preceding the impugned decision of the Respondent, the Respondent's agent, Uganda Revenue Reference No. 6 of 2020 Page 3 Authority ("URA"), issued the Applicant with a notice of intention to undertake a post-clearance audit for the period January 2014 to December 2018. This was on 21st December 2018. 9. That, initially, URA's focus related to the variances between various products sold by the Applicant against what was appearing as imports in the Automated System for Customs Data. Subsequently the focus shifted to the lubricants imported by the Applicant during the period under review. 10. That, in the process, URA's analysis diverted into whether the lubricants blended in the Applicant's sister company, OLA Energy Kenya Limited (OLA Kenya), plant and subsequently imported by the Applicant qualified for preferential treatment under the EAC's Rules of Origin. This led to the preliminary finding that UGX 5,308,622,375/= was outstanding as tax due and payable on import duties on various products imported by the Applicant. 11. In response to the preliminary findings, the Applicant provided to URA evidence confirming that the products in question originated from Kenya. The evidence provided included sample certificates of origin and a detailed description of the blending process of the lubricant brands manufactured by OLA Kenya Limited. This was done in order to prove that the products met the origin threshold under the EAC Rules of Origin. 12. That, following several meetings and correspondences between the Applicant and URA, on 31 st January 2020, URA issued its decision finding that the lubricants blended in OLA Kenya's plant in Kenya and imported by the Applicant did not qualify for preferential Reference No. 6 of 2020 Page 4 treatment. URA imposed a tax liability of UGX 2,488,646,440/= which it deemed to be payable by the Applicant. 13. Unsatisfied with the Respondent's decision, the Applicant, on 1st April 2020, filed this Reference alleging that the URA's decision dated 31 st January 2020 that the lubricants blended and imported from OLA Kenya did not qualify for preferential treatment is unlawful, irregular, ultra vires, null and void and offends the provisions of the Treaty, the Protocol on the Establishment of the East African Customs Union; the Protocol on the Establishment of the East African Common Market and the East African Community Customs Union Rules of Origin. 14. It is the Applicant's further case that the Respondent, through its agent, has directly discriminated against goods otherwise entitled to preferential treatment under the provisions of the Treaty as they are produced and originate from a Partner State. 15. The Applicant thus prayed for: a) A declaration that the impugned decision made by the Respondent's agent on 31 st January 2020 contravenes and infringes the provisions of Articles 5(3)(a), 6(d), 7(1 )(c), 75(1 )(e), 75(6) and 80(1 )(f) of the EAC Treaty; Articles 2(4)(a), 3(d) and 14(1) of the EAC Customs Protocol; Article 4 of the EAC Common Market Protocol and Rules 2, 4(1)(b), 4(2), 6 and Part 1 of the 1st Schedule to the EAC Rules of Origin; b) A declaration that the impugned decision made by the Respondent's agent on 31 st January 2020 is unlawful, Reference No. 6 of 2020 Page 5 irregular, ultra vires, null and void to the extent that it infringes the provisions of Articles 5(3)(a), 6(d), 7(1 )(c), 75(1 )(e), 75(6) and 80(1 )(f) of the EAC Treaty; Articles 2(4)(a), 3(d) and 14(1) of the EAC Customs Protocol; Article 4 of the EAC Common Market Protocol and Rules 2, 4(1 )(b), 4(2), 6 and Part 1 of the 1st Schedule to the EAC Rules of Origin; c) A permanent injunction do issue restraining the Respondent through its agents, servants, employees and or any other person whosoever and/or howsoever acting on their instructions in any manner whatsoever from taking any enforcement action, including the issuance of agency notices to enforce the impugned decision dated 31 st January 2020 and the subsequent demand issued on 24th February 2020; d) Costs of this Reference be borne by the Respondent; and e) Any other order that this Honourable Court may deem just and reasonable. D. THE CASE FOR THE RESPONDENT 16. The Respondent's case is contained in the Respondent's Response to the Reference filed on 1st June 2020 and in the Respondent's Affidavit deponed by Jjengo Nicholas, a Tax Auditor, filed in Court on 5th March 2022. The Respondent also filed written submissions and highlighted them in Court on 21 st March 2024. Reference No. 6 of 2020 Page 6 17. The Respondent in response to the Applicant's claims contends that the decision taken by its agent, URA, on 31 st January 2020 does not violate and infringe the fundamental principles of the Community set out in Articles 5(3)(a), 6(d), 7(1 )(c), 75(1 )(e), 75(6) and 80(1)(f) of the EAC Treaty; Articles 2(4)(a), 3(d) and 14(1) of the EAC Customs Protocol; Article 4 of the EAC Common Market Protocol and Rules 2, 4(1 )(b ), 4(2), 6 and Part 1 of the 1st Schedule to the EAC Rules of Origin. 18. It is the Respondent's belief that the Applicant's products fell squarely under Rule 7 of the EAC Rules of Origin and did not qualify for Preferential Community Tariff treatment. That its decision was not discriminatory or ultra vires the Treaty, Protocols or the Rules of Origin as alleged. 19. It is further the contention of the Respondent that in carrying the post clearance audit on the Applicant, the URA found that: 1. The Applicant had under declared the sale of hoses imported in 2013, 2014, 2015 and the extra hoses sold; 11. Some items imported by the Applicant were not wholly produced in Kenya and Oil Libya Kenya had imported Lubricants in 2016 in bulk under 21101951 HS Codes then broke down bulk purchases for smaller quantities without undergoing any sufficient working or processing as provided for under the EAC Customs Union Rules of Origin; and Reference No. 6 of 2020 Page 7 111. The above-mentioned imports originated mainly from United Arab Emirates, India and Saudi Arabia. The lubricants were imported in Kenya and exported to Uganda in the same exact nature without any sufficient working or processing as provided for under the EAC Customs Union Rules of Origin. 20. It was stated further that URA requested the Applicant to avail the manufacturing and or processing criterion of imported goods to show the change in content from the imported products, which information was never availed. That the information was needed as the Applicant had admitted falsifying certificates of origin relating to some imported products. 21. In the Respondent's view, the Applicant failed to provide any information proving that the manufacturing or any value addition was made on the imported products. E. ISSUES FOR DETERMINATION 22. In the Scheduling Conference held in Arusha on 15th March 2023, the following issues for determination were agreed: 1. Whether the Reference is Time barred; 11. Whether the Lubricants imported by the Applicant qualify for preferential treatment under the EAC Treaty and the EAC's Rules of Origin; 111. Whether the Respondent's Decision issued on 31 st January 2020 (the impugned Decision) is discriminatory, ultra vires and in violation of the spirit Reference No. 6 of 2020 Page 8 and letter of the EAC Treaty, the EAC Customs and Common Market Protocols and the EAC Rules of Origin; and 1v. Whether the Applicant is entitled to the reliefs sought. F. COURT'S DETERMINATION ISSUE NO. 1: Whether the Reference is Time Barred 23. The issue whether the Reference was filed outside the prescribed time was prompted by the Court suo moto during the Scheduling Conference held on 15th March 2023. Counsel representing Parties herein were directed to submit on the same alongside the other issues above stated in their written submissions. We deem it appropriate to deal with the matter a priori as its determination may lead the Court to down its tools consistent with the prevailing jurisprudence of the Court. i. The Applicant's submissions 24. The Applicant strenuously stated that the Reference was filed within the time frame prescribed by Article 30(2) of the Treaty; that is, within two months. 25. Ms Macharia, Counsel for the Respondent, argued that there was a lacuna in the Treaty and the Rules as they both do not define what a "month" is in the EAC Context. As such, she sought reliance on what she referred to as the internationally accepted rule known as the 'corresponding date rule'. Reference No. 6 of 2020 Page 9 26. That, generally, according to the corresponding date rule, where a certain period has been stipulated to be a month or months, the period ends on the corresponding date in the appropriate subsequent month; that is, the day of that month that bears the same number as the day of the earlier month on which the notice was given. 27. Ms Mach aria made reference to the House of Lords decision in Dodds vs Walker [1981] 2 All ER 609 in which Lord Diplock outlined and upheld the corresponding date rule. She also made reference to the decision of the Employment Appeals Tribunal in Tanveer vs East London Bus & Coach Company Ltd UKEAT/0022/16/RN which upheld the principle consistent with the House of Lords decision. 28. Applying the corresponding date rule on the facts of this Reference, Ms Macharia sought reliance on Rule 3 of the Rules which guides the calculation of periods from the date of the occurrence of an event or taking of an action. The said Rule guides that 'the day during which that event occurs or that action takes place shall not be counted as falling within the period in question'. 29. That, consistent with Rule 3, as the impugned Decision was made on 3P1 January 2020, the two months-time started running from 1st February and ended on 1st April 2020 as per the corresponding date rule. 30. To bolster her position, Ms Macharia made reference to a number of decisions and statutes all of which defines what the corresponding date is. She referred to In the Opinion of Mr Fennely Reference No. 6 of 2020 Page 10 in the two joined decisions of Merck and Others vs Prime Crown and Others and Beecham vs Euro Pharm, Court of Justice of the European Union; the European Convention on the Calculation of Time Limits, 1972 (the Basie Convention) (specifically, Article 4(2)); The Council of Europe Treaty Series - Explanatory Reports on the European Convention on the Calculation of Time Limits; and Article 259(5)(b) of the Kenyan Constitution. 31 . Counsel for the Applicant beseeched the Court to be persuaded by the cited authorities or, in the alternative, interpret the term 'two months' in its ordinary meaning given that the Treaty and the Rules are silent. She based her assertion on Article 31 (1) of the Vienna Convention on Interpretation of Treaties; the Gregorian Calendar; The Cornell Law School Legal Information Institute and the Oxford Languages Dictionary. She also cited the English Court of Appeal decision in Okolo vs Secretary of State for the Environment and Another [1997] 4 All ER 242. 32. Ms Macharia urged the Court to hold that, as the Reference was filed on 1st April 2020, it was within the two months limitation contemplated by Article 30(2) of the Treaty. She also implored the Court to give the term month the contextual meaning and interpret the same consistent with the other Treaty provisions. She made reference to Article 150(3) of the Treaty which requires proposals for amendment of the Treaty to be submitted to the Secretary General who shall within thirty (30) days communicate the same to the Partner States and Article 150(4) which provides for ninety (90) days for a Partner State wishing to give comments on the proposed amendment. She also made reference to Rules 21 (1 ), Reference No. 6 of 2020 Page 11 25(5), 32(1) & (2) and 33(1) all of which refer to specific number of days. 33. Thus, to her, Article 30(2) deliberately used the term "two months" leaving it open to interpretation, as they could as well have used specific number of days instead, like in the other Articles and Rules above stated. 34. During the submission highlights, Counsel Macharia maintained her position even when the Court referred her to Section 63(3) of the Laws of the Community (Interpretation) Act, 2004 relating to the reckoning of years and months. ii. The Respondent's Submissions 35. Submitting on the issue of time limitation, Counsel for the Respondent outlined the two limbs of computation of the two months as per Article 30(2) of the Treaty; namely, within two months of the enactment, publication, directive, decision or action and, in the absence thereof, within two months from the date when the enactment, publication, directive, decision or action came to the knowledge of the Applicant. 36. Counsel impressed that this Reference is premised on the first limb of Article 30(2) of the Treaty as there has not been any claim that the decision came to the knowledge of the Applicant on a date other than the 31 st January 2020. 37. On the jurisprudence of this Court regarding the interpretation of Article 30(2) of the Treaty, Counsel made reference to the decisions in The Attorney General of the Republic of Uganda & Reference No. 6 of 2020 Page 12 Another vs Omar Awadh & 6 Others, EACJ Appeal No. 2 of 2012: The Attorney General of the Republic of Kenya vs Independent Medical Legal Unit, EACJ Appeal No. 1 of 2011: and The Attorney General of the Republic of Rwanda vs Plaxeda Rugumba, EACJ Appeal No. 1 of 2012. 38. On the instant Reference, Counsel for the Respondent argued that the cause of action arose on 9th May 2019 when the Respondent's agent wrote to the Applicant informing them that the Audit had been finalised and on 19th June 2019 when an Agency Notice was issued to the Applicant's bankers. Counsel relied on paragraphs 18 and 21 of the Applicant's Affidavit in support of the Reference deponed by Jean Lopy. 39. Counsel further provided the chronology of events leading to the final Review decision by the URA on 3pt January 2020. Relying on the decision in Independent Medical Legal Unit, Counsel contended that the Applicant's assertion that the cause of action arose when they were served with the final review decision on 31 st January 2020 was a misconstruction of the chain of events. That for them, the impugned decision should be the decision made on 9th May 2019 when the audit was completed. 40. On the corresponding date rule relied upon by the Applicant, Counsel for the Respondent maintained that the Reference was filed about a year out of time considering that the Respondent's agent had issued a decision on 9th May 2019. 41. During the Submissions highlights, Ms Nabasa contended that even if they were to agree with the Applicant's version that the Reference No. 6 of 2020 Page 13 cause of action arose on 31 st January 2020, the Reference would still be out of time as the two months ended on 30 th March 2020. iii. The Court's Determination of Issue No. 1 42. As earlier stated, the Court deemed it imperative to satisfy itself on whether the Reference herein was filed within the prescribed time. Having outlined the rival submissions by Counsel for the respective parties, it behoves the Court to make a determination thereof. 43. At the outset, we do not agree with Counsel for the Respondent that the disputed decision in this Reference is the audit findings of the URA dated 9th May 2019. Evidence from both sides suggest, and we have no reason to doubt them, that the audit findings dated 9th May 2019 were not the final and could not constitute a cause of action. It is the final decision made by the URA on 31 st January 2020 which constitutes a cause of action as envisioned by Article 30(1) and (2) of the Treaty. 44. Having so ruled, we proceed to consider whether the Reference, having been filed on 1st April 2020, was within the time prescribed by Article 30(2) of the Treaty. Indeed, if we realise that the matter before us was filed outside the time stipulated in Article 30(2) of the Treaty, we will down our tools and will not be in a position to consider or determine the merits or otherwise of the allegations contained in the Statement of Reference. This is because time limitation is a jurisdictional issue. 45. Jurisdiction to us is sacrosanct. Without it, we cannot portend to exercise any of the powers bestowed upon us by the Treaty. In the Reference No. 6 of 2020 Page 14 case of Attorney General of the United Republic of Tanzania vs African Network of Animal Welfare, EACJ Appeal No. 3 of 2011, the Court stated: "Jurisdiction is a most, if not the most, fundamental issue that a Court faces in any trial. It is the very foundation upon which the judicial edifice is constructed; from which springs the flow of the judicial process. Without jurisdiction, a Court cannot take even the proverbial first Chinese step in its judicial journey to hear and dispose of the case." 46. The above decision is just one of the many decisions by this Court where the Court has categorically stated that it considers determination of the issue of jurisdiction paramount. It is the first and fundamental question that we determine before going into the merits or otherwise of the matter before us. 47. This Court, in the case of The Attorney General of the United Republic of Tanzania vs Anthony Calist Komu, EACJ Appeal No. 2 of 2015 delineated three types of jurisdictions: ratione personae, ratione materiae and ratione temporis. It explained them as follows: "Lack of ratione personae would arise where one of the parties is devoid of the requisite capacity or locus standi to appear before a court. On the other hand, court's ratione materiae may be questioned on the basis of the invoked subject matter, an international court having no ratione materiae to try a matter where the treaty or convention Reference No. 6 of 2020 Page 15 under which it derives its mandate does not grant it jurisdiction over designated actions. In the case of the Treaty for the Establishment of the East African Community, such ratione materiae is outlined in Articles 30, 31 and 32 thereof. Ratione temporis, on its part, refers to time-frame prescribed for the institution of cases in a court." 48. This Court's jurisdiction ratione personae ·and ratione materiae have not been questioned in this Reference. We do hold that the Applicant, being a resident within the EAC Partner States has locus standi before this Court. Equally, the subject matter of the Reference is an alleged violation of the Treaty against which this Court is vested with jurisdiction to deal with. It is only the jurisdiction regarding the time frame, commonly referred to as time limitation or jurisdiction ratione temporis that is at stake. 49. Article 30(2) of the Treaty provides: "The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be." (Emphasis added) 50. To satisfy the Court that the Reference was made within time prescribed under Article 30(2) of the Treaty, the Applicant has to succinctly state in the Reference the date when the decision or action complained of took place or when it came to his knowledge. Reference No. 6 of 2020 Page 16 51. The Appellate Division of this Court, while dealing with the issue of computation of time in The Attorney General of the Republic of Kenya vs Independent Medical Legal Unit (Supra) held that time would start to run "two months after the action or decision was first taken or made." This position was reaffirmed in the case of The Attorney General of the Republic of Uganda & Another vs Omar Awadh & 6 Others (Supra) where it was held that "the starting date of an act complained of under Article 30(2) is not the day the act ends, but the day it is first effected". 52. In the latter case, the Court went further to state as follows: "The principle of legal certainty requires strict application of the time-limit in Article 30(2) of the Treaty. Furthermore, nowhere does the Treaty provide any power to the Court to extend, to condone, to waive, or to modify the prescribed time limit for any reason (including for 'continuing violations')." (Emphasis added) 53. As stated above, the Applicant, through his Counsel, maintains that the Reference was filed within the prescribed time, the same having been filed on 1st April 2020, a date corresponding to the date when the cause of action started to accrue; namely, 1st February 2020 as per Rule 3 of the Rules. 54. Incidentally, the corresponding date rule that the Applicant relies on, is the same that applies within the EAC. In Ruzizi S.A vs The Attorney General of the Republic of Burundi, EACJ Reference Reference No. 6 of 2020 Page 17 No. 7 of 2019, this Court, faced with an akin situation, stated as follows: "In the EAC context, when the Treaty or any law of the Community refers to a "month", that reference relates to the calendar month. This is in accordance with Laws of the Community (Interpretation) Act, 2004. Section 63(3) and (4) of the said Act provide as follows: "(3) A reference in an enactment to a month is to be construed as a reference to a month as directed by the Gregorian calendar. (4) If a period indicated in an enactment begins on any date other than the day of any of the twelve months of the calendar year it is to be reckoned from the date on which it is to begin to the date in the next month numerically corresponding, less one, or if there is no corresponding date, to the last day of that month. For example, a month beginning on 15th January ends on 14th February: a month beginning on 31 st January ends on 28 th February (or 29 February in a leap year)." (Emphasis added) 55. Applying the above interpretation of a month to the facts of this case, when the Reference was filed on 1st April 2020, it was late by a day. This is due to the fact that time started reckoning on 1st of February 2020 and ended on 31 st March 2020 as per Section 63(4) and (5) of Laws of the Community (Interpretation) Act, 2004. Reference No. 6 of 2020 Page 18 56. Section 63(5) of the cited law amplifies calculation of more than one month in the following terms: "If the indicated period is one of the two, three or more months, it is to be reckoned from the date on which it is to begin to the date in numerically corresponding, less one, in the second, third or other successive month after that or, if there is no such corresponding date, to the last day of that month. For example, a period of six months beginning on 15th August ends on 14th February: a period of six months beginning on 30 th or 31 st August ends on 28 th February (or 29 February in a leap year)." (Emphasis added) 57. Several authorities were referred to us by the Applicant purporting to justify the 1st of April 2020 as the last day within the two months limitation. We had the opportunity to review them and do not think they vary the position obtained in the EAC. For example, in the House of Lords decision in Dodds vs Walker (Supra) Lord Diplock confirmed the decision of the Court of Appeal of England which had dismissed the Appellant's notice issued a day late. The Court held as follows: "In calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule was that the period ended on the corresponding date in the appropriate subsequent month, irrespective of whether some months were Reference No. 6 of 2020 Page 19 longer than others. Thus, where a landlord gave notice of termination under the 1954 Act on the last day of a 30- day month, the four calendar months prescribed by s 29(3) of the 1954 Act for service of an application for a new tenancy expired on the 30 th of the fourth succeeding month even if it was a 31-day month. Accordingly, the four-month period within which the tenant had to apply for a new tenancy expired on the 30 th January and his application made on 31 st January was out of time." 58. A cursory look at the above House of Lords decision would lead to a conclusion that the position is not any different from what Section 63(4) and (5) of Laws of the Community (Interpretation) Act, 2004 provides. In fact, one may be tempted to say that Dodds would still have been in time under the EAC law because the day of notice, 30 th September, would be excluded from the reckoning. 59. The day of the event in this Reference refers to the date the Notice of final assessment was made by the URA, that is 3pt January 2020. If Dodds case was the authority to be applied in this case, the Applicant would still have been late when they filed the Reference on 1st April 2020, as the corresponding date would be 31 st March 2020. Nevertheless, the corresponding date principle has to be construed in the context applicable in the EAC. 60. The same can be said regarding the European Convention on the Calculation of Time-Limits (the Basie Convention). Article 4(2) provides as follows: Reference No. 6 of 2020 Page 20 "Where a time-limit is expressed in months or in years the dies ad quern (the day from which the time-limit expires) shall be the day of the last month or of the last year whose date corresponds to the dies a quo (the day from which the time-limit runs) or, when there is no corresponding date, the last day of the last month." 61. There is no provision in the Basie Convention akin to Rule 3 of the Rules or Section 62(1 )(a) of the Laws of the Community (Interpretation) Act, 2004 both of which exclude the day an event or act occurs from the reckoning. This may justify the inclusion of one more day at the end. Be it as it may, the EAC law above stated is self-explanatory. The literal interpretation of the law in the EAC is that the corresponding date rule applies as specified in Section 63 of Laws of the Community (Interpretation) Act, 2004, that is the day in the next month or months corresponding with the date on which it is to begin, less one. 62. Counsel for the Applicant urged the Court to hold that the rule only applies to dates other than the first day of the month as the framers of the law used the phrase "any date other than the day of any of the twelve months". We decline the invitation to hold so as by doing so we will be applying the statute discriminatively. In the absence of any mention of the first day in the cited provisions, it would be both improper and inappropriate for the Court to import the said interpretation to the statute. The Court should apply the law as is, unless by doing so an injustice occurs. We see none in this case. Reference No. 6 of 2020 Page 21 63. In Ruzizi S.A vs the Attorney General of the Republic of Burundi (Supra), Counsel for the Applicant while confirming that the Applicant was notified of the impugned decision on 18th February 2019, added that, as the Reference was filed on 18th April 2019, which was 59 days after the notification, the same was within the prescribed period. The Court did not agree with the said interpretation. It stated inter alia that: "The Reference under consideration was filed one day beyond the period specified in the Treaty. That one day strips this Court jurisdiction to hear and determine the Reference on its merits." 64. In this Reference, the cause of action arose on 31 st January 2020 when the Respondent's agent, URA, informed the Applicant of its final decision regarding the outstanding taxes. As per the law, time started reckoning on 1st February 2020 ending on 31 st March 2020, which is one day less that the corresponding date. 65. Guided by the above, we hold that this Reference was lodged in Court a day after the two months limitation provided for under Article 30(2) of the Treaty had elapsed. That delay strips this Court of the jurisdiction ratione temporis to hear and determine the Reference on its merits. As we have said hitherto time and again, this Court has no power to extend times limited by the Treaty. 66. Lack of jurisdiction ratione temporis strips this Court of the legal basis to exercise its jurisdiction ratione materiae. We have to down our tools. The rest of the issues cannot be canvassed any further as doing so would be a travesty of justice. We say so despite the Reference No. 6 of 2020 Page 22 significance of the issues laid down in this Reference whose determination would have laid a significant jurisprudential milestone of the Court in dealing with Treaty violation questions. 67. On the question of costs, Rule 127(1) of this Court's Rules provides that costs shall follow the event unless the Court, for good reason, decides otherwise. This rule was emphatically reinforced in the Case of The Attorney General of the Republic of Burundi vs The Secretary General of the East African Community & Another, EACJ Appeal No. 2 of 2019. 68. However, in the instant Reference, we deem it appropriate to depart from the principle that costs follow the event. In the exercise of our discretion, we believe that this is a good case befitting a direction that each party shall bear its own costs. G. CONCLUSION 69. For the foregoing reasons, this Court lacks jurisdiction to determine the Reference on its merits. 70. The Reference is hereby dismissed in its entirety for being time barred. 71. We direct that each party shall bear its own costs. 72. It is so ordered. Reference No. 6 of 2020 Page 23 Dated, signed and delivered at Arusha this 11 th day of October 2024. >-- ,,,.~~~ Hon. Justice Yohane B. Masara PRINCIPAL JUDGE *Hon. Justice Dr Charles 0. Nyawello DEPUTY PRINCIPAL JUDGE }--P,zj., ______________J _~ ---------------- Hon. Justice Richard Muhumuza JUDGE Wabwire Wejuli E ·············~ ·························· Hon. Justice Dr Leonard Gacuko JUDGE *[Hon. Justice Dr. Charles 0. Nyawello's term of office at the EACJ came to an end with effect from 20th May 2024 but he signed this Judgment in terms of Article 25(3) of the Treaty]. Reference No. 6 of 2020 Page 24