[2024] UGHC 361

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

## CIVIL APPEAL NO. 58 OF 2022

# (ARISING FROM RUKUNGIRI CIVIL SUIT NO.061 OF 2019)

#### **BETWEEN**

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BARIKUDDEMBE OTIKO APPELLANT

#### **VERSUS**

RUKUNGIRI MUNICIPAL COUNCIL ::::::::::::::::::::::::::::::::::::

[Appeal from a Judgment of Chief Magistrate of Rukungiri Magistrate Court (His Worship Ntalo Nasulu Hussein) dated 7^th April, 2021.]

# BEFORE: HON. JUSTICE TOM CHEMUTAI

### **JUDGMENT**

This is a first Appeal. It arises from the Judgment of the Chief Magistrate of Rukungiri Magistrate's Court, in Civil Suit No.061 of 2019, whereby the Appellant's suit was dismissed with no order as to Costs.

The brief background to this appeal is that; the Appellant filed the above Civil Suit against the Respondent and sought for the following; a declaration that the charging and collecting a tax called "Market gate charges" or "loading /offloading fee" by the Respondent was illegal and unlawful, the Appellant was unfairly targeted, treated and discriminated against by the Respondent, the Appellant's Motor vehicle was illegally impounded, the Appellant also sought for an order quashing the decision of Respondent to collect the said

tax as well as an order directing the latter to refund $2,374,500/$ = to the Appellant, a Permanent injunction restraining the Respondent from prosecuting or demanding the Appellant to pay the impugned tax or demand for the same in the future, an order to release the Appellant's impounded Motor vehicle, Isuzu registration number, UAD 439G, general damages, special damages, interest and costs of the suit.

The Respondent denied the Appellant's averments in the plaint and contended that the said Market gate dues were legal. It further averred that the Appellant had refused to pay the said taxes and he was spreading false propaganda to other market users to avoid payment of the said dues.

The trial Chief Magistrate, gave his judgment in favor of the Respondent and the Appellant being dissatisfied with his decision, appealed to this Court in Civil Appeal No.58 of 2022, formerly Civil Appeal No.19 of 2021.

The Appellant's Memorandum of Appeal has four grounds of appeal which appear as follows:

- 1. The learned trial Magistrate erred in law and fact by holding that the tax known as "market gate charges" and/or "loading/offloading fees" is lawful. - 2. The learned trial Magistrate erred in law and fact when he refused to award any special damages as pleaded yet the same had been proved. - 3. The learned trial Magistrate erred in law and fact when he did not award any remedies to the Appellant thereby occasioning a miscarriage of justice.

4. The decision of the learned trial Magistrate has in the circumstances occasioned a miscarriage of Justice to the Appellant.

### Representation

The Appellant was represented by M/s Lubega & Co. Advocates while the Respondent was represented by M/s Twikirize & Co. Advocates.

### **Submissions**

Both parties filed their respective submissions and authorities thereto, which I have taken into consideration while determining the merits of the appeal.

### Consideration of the Court.

The duty of the first appellate Court has been defined in several cases. In the case of Administrator General vs Bwanika James and Others, Supreme Court Civil Appeal No.7 of 2003, Justice Oder, JSC, held:

"It is a well-settled legal principle, embodied in Rule 29 (1) of the Court of Appeal Rules, that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions: See Coghland Vs. Cumberland (1898) 1 ch. 704 (Court of Appeal of England): and Pandya V R. (1957) E. A 336)"

Reference can be made also to Fr. Narsensio Begumisa and Others v Eric Tibebaga, Supreme Court Civil Appeal No.17 of 2002 and Goustar Enterprises Ltd Vs Oumo [2006] EA 77.

I have perused the judgment of the trial Chief Magistrate, the record of the appeal, and the parties' written submissions and authorities thereto cited by Counsel.

The major contention at the trial, which is also in the appeal is that; whether the tax known as "Market gate charges" and/or "loading/offloading fees" imposed by Respondent was lawful.

The Respondent is by law mandated to manage the Rukungiri Municipal Council. It is also mandated under Article 192 of the Constitution and Section 80 of the Local Government to levy, charge, collect fees and taxes on behalf of the Central Government. The collected revenues by the Respondent are used for the management of the Municipal Council.

The trial Chief Magistrate found that the Respondent's Council meeting was held on the 17^th February and 29^th May 2017, under Minute number. RMC/C/MIN7/2016-17. The Respondent's Council approved the revenue collection and Taxation policy for the years 2016-2017. The same was adopted by the Respondent's Council. The trial Court proceeded correctly, in my view and held that the Market gate charges" and/or "loading/offloading fees" which were imposed by Respondent were lawful.

The Respondent was mandated the by law to manage a Central Market, where the Appellant was operating his charcoal business, hence it lawfully

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levied the Market gate charges so to raise revenue for the proper and smooth running of the Market. I find no merit in issue one.

Issues, 2, 3, and 4, concern the remedies, which were sought by the Appellant at the trial. When the Market gate charges or loading/offloading fees were imposed by the Respondent, the Appellant completely disregarded them and he did not pay them. This in the long run forced the Officers of the Respondent to lock up the Appellant's Stall and further confiscate his truck, registration number UAD 439G, Isuzu Elf, after he ignored several reminders from the Respondent to pay up his dues.

The parties (the Appellant and Respondent) on 27^th July, 2018, entered into a consent settlement in the following terms;

- 1. That the Defendant shall handover and/or release the Plaintiff's truck REG. No. UAD 439G Isuzu Elf together with all the goods thereon that were confiscated. - 2. That the Plaintiff shall from the date of release of the said Motor vehicle further forfeit and/or withdraw his claim of general damages accrued/incurred due to the Defendant's actions of impounding the aforementioned motor vehicle. - 3. That the remaining question to be determined by this Honourable Court is a point of law on the legality of the taxes charged and collected by the Defendant, special damages claimed and costs of the suit.

The trial Chief Magistrate correctly noted that the said settlement had not been vitiated and hence was binding on the parties. Needless to say, I have found that the Market gate charges or loading/offloading fees were lawfully

imposed by Respondent. The Appellant is not entitled to any relief sought in the plaint.

I find no error committed by the trial Chief Magistrate in the evaluation of the evidence on the record and accordingly I uphold the trial Court's judgment and orders issued therein.

I, therefore, find no merits in grounds of appeal, I accordingly dismiss the appeal.

Each party to bears its own costs. Dated at Rukungiri this -- $M$ $A$ $J$ $--$ day of---- $-2024.$ TOM CHEMUTAI **JUDGE**