[2021] UGSC 61

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: (Arach-Amoko; Mugamba; Muhangunzi; Tuhaise; Chibita; JJ. S. C.)

#### **CIVIL APPLICATION NO. 24 OF 2019**

#### **BETWEEN**

**UGANDA TAXI OPERATORS & DRIVERS ASSOCIATION............... APPLICANT** 10

#### **AND**

**UGANDA REVENUE AUTHORITY....................................**

(An Application from the Judgment of this Court in Civil Appeal No.13 of 2015)

#### **RULING OF THE COURT**

- This application is brought under Rules 2(2), 35, 42 (1) & (2) and 43 of the 15 Judicature (Supreme Court) Rules and Article 126 of the Constitution of Uganda seeking the following orders: - 1. A declaratory order that part of the Judgment and order passed in the Supreme Court vide Civil Appeal No. 13 of 2015 to wit "... Thereafter the decretal amount shall carry interest at rate of 10% p.a from the date hereof till payment in full" is contrary to the law null and void ab initio. - 2. An order setting aside the part of Judgment and order made in Supreme Court Civil Appeal No. 15 of 2013 to wit "... Thereafter the decretal amount shall carry interest at the rate of 10% p.a from the date hereof till payment in full". - 3. An order substituting the impugned part of judgment and order with "Thereafter, the decretal amount shall carry interest of 2% per month compounded until payment in full in accordance with Section 44(1) (c) of the VAT Act as Amended".

## 4. Costs of this application.

The application is supported by an affidavit sworn by the applicants' advocate, Atulinda Majda on 10^th October 2019. It is opposed by Gloria T Akatuhurira from the Legal Services and Board Affairs Department of the respondent, who swore an affidavit in reply dated 3rd April 2020.

#### **Background** $10$

$\mathsf{S}$

The background facts of this application are that the applicant, through High Court Civil Suit No.182 of 2010 sued the respondent for refund of monies retained by the respondent as Value Added Tax (VAT) since 2001 in respect of operations of taxi parks that the applicant carried out at the material time, on behalf of the then

Kampala City Council (KCC) now Kampala Capital City Authority (KCCA). By 15 2010, the respondent had retained from the applicant Uganda Shs.3, 903, 136, 565 as Value added Tax.

In the High Court, the issue for determination was "whether the plaintiff was liable to pay VAT for its services of management of taxi parks and Taxi Operators in

Kampala City." The High Court resolved the issue in favour of the respondent and 20 dismissed the applicant's suit on 25^th January 2013.

Aggrieved by the decision of the High Court, the applicant appealed to the Court of Appeal vide Civil Appeal No.15 of 2013. The Court of Appeal allowed the appeal, set aside the decision of the High Court and ordered the respondent to refund all the

VAT amounting to Shs.3,903,136,565/= collected from the applicant. With regard 25 to interest Court ordered thus:

"That amount shall carry interest at the rate of 2% per month compounded from the time it was paid until the date of this judgment. Thereafter, the decretal amount shall carry interest at the rate of 10% p.a. from the date hereof till payment in full."

$\mathbf{2}$

Dissatisfied with the decision of the Court of Appeal, the respondent, through Civil 5 Appeal No.13 of 2015, appealed to this Court, challenging the whole Judgment of the Justices of Appeal. This Court upheld the judgment and decision of the Court of Appeal, in a judgment delivered on 5^th May 2017.

The applicant then filed **Miscellaneous Application No.152 of 2017** in the Court of Appeal under Rule 36 of the Rules of that Court. Therein the applicant sought the 10 Court to correct its judgment in Civil Appeal No.15 of 2013 in respect of the alleged mistake/error arising out of an alleged accidental slip or omission with regard to the issue of payment of interest on the decretal sum. The Court of Appeal Justices dismissed the application by a majority decision of $2$ to $1$ .

- Aggrieved by the decision of the Court of Appeal, the applicant/appellant lodged 15 Civil Appeal No.7 of 2018 in this Court challenging the decision of the Court of Appeal. This Court found that the Court of Appeal rightly refused to accede to the applicant's/appellant's prayer to alter its decree that had been upheld by this Court due to lack of jurisdiction. Court dismissed the appeal with costs. - The applicant being dissatisfied with this Court's decision in Civil Appeal No.7 of 20 2018, lodged this Miscellaneous Application seeking Court to correct the alleged mistake/error arising out of an alleged accidental slip or omission with regard to the issue of payment of interest on the decretal sum.

## **Grounds of the application**

- The grounds of the application are set out in the Notice of Motion supported by the 25 affidavit sworn by Atulinda Majda and they are: - a) "By error/or oversight, the part of the impugned judgment or order of this Court contravenes S.44 (1) (c) of the Value Added Tax Act as amended in as far as it awards interest of 10% p.a. from the date of judgment until payment in full which is contrary and contravenes S.44 (1) (c) of the Value Added Tax Act as amended.

- b) The interest permitted and prescribed under Section $44(1)$ (c) of the Value Added Tax Act as amended is 2% per month compounded until payment in full. - c) The applicant a Company Ltd by guarantee sued the respondent for refund of monies retained by the respondent as Value Added Tax (VAT) since 2011 in respect of taxi park operations the applicant used to carry out on behalf of then Kampala City Council (KCC) and the Courts from the trial court through Court of Appeal to this Court made the following judgment and/or orders: - At High Court level, the suit was dismissed following which the i. applicant appealed to the Court of Appeal vide Civil Appeal No.15 0f 2013. - The Court of Appeal set aside the decision of the High Court and ii. ordered the Respondent to refund all the Value Added Tax (VAT) amounting to Three Billion Nine Hundred Three Million One **Hundred Thirty Six Thousand Five Hundred Sixty Five Shillings** (Ug. Shs. $3,903,136,565$ ) collected from the applicant. - The Court of Appeal further ordered the refundable amount to carry iii. interest at rate of 2% per month compounded from time it was paid until the date of judgment (15-06-2015). Thereafter the decretal amount shall carry interest of 10% p.a. from date of the judgment until payment in full. - The respondent being dissatisfied with the Court of Appeal decision iv. appealed to Supreme Court vide Civil Appeal No.13 of 2015 and this court upheld the order of the Court of Appeal in its entirety. - $\mathcal{V}_{\bullet}$ That part of the judgment and order in Supreme Court Civil Appeal No.13 of 2015 in particular upholding the Court of Appeal's decision on interest of 10% p.a from date of judgment until payment in full

$5$

contravenes $S.44(1)(c)$ of the Value Added Tax Act as amended in so far as:

- The finding of the court contravened S.44 (l) (c) of the Value Added vi. Tax Act as amended. - The judgment and order of the court stops statutory interest from vii. running and substitutes it with discretionary interest to the applicant's prejudice was wrongfully as the Act does not give court judicial discretion to depart therefrom. - d) That the application is not intended to circumvent the finality of the judgment of this court nor is it intended to make the court sit in its own appeal but to have substantive justice administered and part of the judgment or order by the court contrary to law set aside. - e) That in the circumstances it is fair, just, equitable and to grant the orders sought. - f) That it is in the interest of justice that the court amends its order to give effect to the provision of S. $44(1)$ (c) of the Value Added Tax Act as amended."

## **Representation**

At the hearing of the application, the applicant was represented by learned counsel, Mr. Mohamed Mbabazi and Mr. Abbas Bukenya while the respondent was represented by learned counsel Mr. George Okello from the Legal Services and Board Affairs Department of Uganda Revenue Authority.

### <u>Preliminary objection on a point of law</u>

Counsel for the respondent raised a preliminary point of law objecting to this application as offending the principle of res judicata.

He contended that section 7 of the Civil Procedure Act bars a Court from trying 30 any suit or issue in which the matter directly and substantially in issue has been

- directly and substantially in issue in a former suit, between the same parties litigating $\mathsf{S}$ under the same title, in a Court competent to try the subsequent suit in which the issue has been subsequently raised and has been heard and finally decided by that Court. See Mansukhal Ramji Karia & anor vs. Attorney General and 2 others, Supreme Court Civil Appeal No.20 of 2002. - Counsel submitted that this Court has already decided in Civil Appeal No.07 of 10 2018, UTODA vs. URA, that review of its confirmed order, on the alleged grounds of mistake, error, omission, resulting from an alleged accidental slip was not tenable. Court dismissed the appeal that sought to challenge the Court of Appeal refusal to review the very order with costs. - He further contended that, whereas this Court, on the face of it, appears to have 15 proceeded on the question of lack of jurisdiction of the Court of Appeal, to competently entertain the review application, this Court nevertheless dismissed the entire appeal and never held that the applicant's case could be entertained if it had been lodged directly in the Supreme Court. According to counsel, this Court never encouraged the applicant to launch a fresh case for review directly in the Court. 20

He submitted that by dismissing Civil Appeal No.07 of 2018, this Court upheld the decision and orders of the Court of Appeal in its entirety, thereby rendering the instant application *res judicata*.

He thus argued that, having finally and competently decided the matter (albeit on appeal) this Court is barred by section 7 of the Civil Procedure Act from entertaining 25 this application.

Counsel prayed that Court upholds the preliminary objection and dismisses this application with costs to the respondent for being res judicata.

On the other hand, counsel for the applicant submitted that the respondent misapplied the principle of res judicata. He contended that, whereas there have been 30 several cases between the two parties, the issue for determination has never been

determined by this Court. He thus submitted that this matter is not barred under $\mathsf{S}$ section 7 of the Civil Procedure Act.

Counsel contended that the application is not res judicata for the following reasons;

- $i.$ No such application before this Court has ever been brought by the applicants in this Court, subsequent to delivery of the judgment in S. C. C. A No.13 of 20 15. - When this Court is exercising its power under Rule 2(2) and/or exercising its ii. powers of slip under Rule 35 and/or review of its judgment, the question of res judicata does not arise, nor does it bar Court from exercising its powers under its Rules, as the present application procedurally arises out of a judgment and is thereby not a new suit or a suit in itself. - The applicant had sought a review of the Court of Appeal judgment in iii. C. A. C. A No.15 of 2013 in respect of the applicable interest which is the gist of this application now before this Court.

It was counsel's submission that the Court of Appeal dismissed their appeal for lack of jurisdiction to entertain the application for review/slip rule on a judgment upheld 20 by this Court. Therefore, the applicant had to put the application before the right Court. He thus argued that the applicant is not barred/shut out by the principle of res judicata since the slip/review application was dismissed for want of jurisdiction.

# **Resolution of the Preliminary Objection**

We have carefully perused the record of appeal, the submissions of counsel for the 25 parties and the available relevant authorities and will now proceed to resolve the preliminary objection.

The law on the principle of res judicata is laid down in section 7 of the Civil Procedure Act. The section provides;

"7. Res judicata. 30

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."

$\mathsf{S}$

This Court has had occasion to consider the same objection as was raised by counsel for the respondent in numerous cases including the cases of General Parts (U) Ltd and Haruna Ssemakula vs. Non-Performing Assets Recovery Trust, Supreme Court Civil Appeal No.09 of 2005 and also in Mansukhlal Ramji Karia & anor vs.

Attorney General and 2 others, Supreme Court Civil Appeal No.20 of 2002.

In the latter case, this Court held that for res judicata to apply, the following broad minimum conditions have to be satisfied:

- 1) "There have to be a former suit or issue decided by a competent Court. - 2) The matter in dispute in the former suit between parties must also be directly 20 or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. - 3) The parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title." - In the instant case, the issue in contention regards the interest payable on the 25 refundable amount under section 44 (1) (c) of the Value Added Tax Act. From the record, the said issue was heard and determined by this Court when it upheld the decision of the Court of Appeal in Civil Appeal No.15 of 2013, in which their Lordships held:

"On the issue of the interest payable on the refundable amount which was reflected in report "B", the interest is based on section 44 (1) (c) of the Vat Act which provides:

"Interest on Overpayments and Late Refunds

Where the Commissioner General is required to refund an amount of tax to a person as a result of-

(a)A decision under section 33B;

(b)A decision of the Tax Appeals Tribunal;

(c) A decision of the High Court, the Court of Appeal or the Supreme Court.

He or she shall pay interest at the rate of two percent per month compounded on the tax to be refunded."

We find the provision of the Act clear and precise. It is our duty as a Court of law to give the provision, which embodies the intentions of Parliament on this point, full effect by applying it to the facts and the evidence before us in the instant appeal. This is also in compliance with the popular and long standing call of "No taxation without representation" which is a fundamental principle of taxation in all free and democratic societies like Uganda.

We therefore, accordingly order that all the VAT amounting to 3,903, 136, 5651 collected from the appellant be refunded. That amount shall carry interest at the rate of 2% per month compounded from the time it was paid until the date of this judgment. Thereafter, the decretal amount shall carry interest at the rate of 10% p.a from the date hereof till payment in full."

From the above portion of the Judgment, the issue on interest was determined by this Court. The principle of res judicata, therefore, applies to the instant case as the 30

$5$

issue in contention was heard and finally decided by this Court in Civil Appeal 5 No.13 of 2015.

This application, however, is an application for review of the judgment of this Court in Civil Appeal No.13 of 2015. The issue being raised is whether this Court failed to comply with section $44(1)$ (c) of the Value Added Tax Act when awarding interest to the principle sum that was ordered to be refunded to the applicant by this Court in Supreme Court Civil Appeal No.13 of 2015 when it upheld the judgment and orders of the Court of Appeal in Civil Appeal No.15 of 2013 in its entirety.

The applicants initially filed an application for review in the Court of Appeal in Miscellaneous Application No.152 of 2017 and the same was dismissed for lack of jurisdiction. The applicant being aggrieved by the decision of the Court of Appeal, 15 lodged Civil Appeal No.07 of 2018 in this Court challenging the decision of the Court of Appeal. This Court held as follows:

> "The Court of Appeal was, therefore, right to refuse to accede to the appellant's prayer to correct its decree after it had been upheld by this Court for that Court had no jurisdiction to correct it. It is trite that a decree which is passed by a court lacking jurisdiction is a nullity, so if the court had altered its decree, the corrected decree would have become a nullity.

> For this reason, I find it unnecessary to go into consideration of other grounds which the appellant raised against the decision of the Court of Appeal for the question of jurisdiction is fundamental and overrides all other issues that the appellant raised in its appeal. Accordingly, I find that this appeal lacks merit and I would dismiss it with costs."

From the above portion of the judgment, it is clear that this Court dismissed the applicant's/appellant's appeal solely on the ground that the Court of Appeal lacked jurisdiction to alter a judgment that was upheld by this Court. This Court, however, did not handle/resolve the issue now before this Court as an application for review.

We will, therefore, proceed to consider and resolve the merits of the application.

#### Submissions on the merits of the application 5

$\lambda_{\rm{p}}$

# Submissions of counsel for the applicant

Counsel submitted that this application is for review of this Court's judgment in Civil Appeal No.13 of 2015. According to counsel, it is trite law that a decision of this Court is final and therefore cannot be revisited. He argued that the general rule is, however, subject to two exceptions which are the exercise of the Court's inherent powers as provided for under Rule 2(2) of the Rules of this Court and the Slip Rule provided for under Rule 35 of the same.

On the inherent powers of this Court, counsel submitted that Rule 2(2) empowers this Court with wide discretion to make such orders as may be necessary to achieve the ends of justice or prevent the abuse of its process. He cited the cases of G. Afro vs. Uganda Breweries Ltd, Supreme Court Civil Appeal No.12 of 2008, Livingstone Sssewanyana vs. Martin Aliker, Supreme Court Civil Application No.4 of 1991 and Isaya Kalya & others vs. Moses Macekenyu Ikagobya, Supreme Court Civil Application No.28 of 2015. He also cited the Supreme Court of India in the cases of Ariban Tuleshwar vs. Ariban Pishak Sharma (1979) 4 see 389 and Haridas Das vs. Smt. Usha Rani Banik & others, Civil Appeal No. 7948 of 2004.

Counsel contended that the part of the judgment sought to be reviewed and set aside expresses an error on the face of the record and a substantial point of law which strikes one in the face. In the judgment of this Court in Civil Appeal No.13 of 2015, this Court confirmed the Court of Appeal judgment and adopted all the orders that 25 the Court of Appeal made in their entirety thereby becoming orders of this Court. He submitted that the order in contention from this Court's judgment is:

> "We therefore, accordingly order that all the VAT amounting to shs.3, 903, 136, 565/=collected from the appellant be refunded. That amount shall carry interest at the rate of 2% per month compounded from the time it was paid until the date of this Judgment. Thereafter, the decretal amount shall

## carry interest at the rate of 10% p.a. from the date hereof till payment in full."

Counsel submitted that it is not in contention that the Supreme Court held in favour of the applicant when it observed that the respondent wrongfully obtained VAT from the applicant. He contended that when a Court pronounces itself on whether URA wrongfully obtained VAT from a tax payer, the Court is obligated by statute law without any reservations that the relief for such a tax payer must be provided for under section 44(1) (c) of the Value Added Tax (VAT) Act as amended. He added that the section provides that where the Commissioner General is required to refund an amount of tax to a person as a result of a decision of the High Court, Court of Appeal or the Supreme Court, he or she shall pay interest at a rate of 2% per month compounded on the tax to be refunded.

Counsel argued that, unlike other statutes, the rules of statutory interpretation with regard to tax laws, require that they be strictly applied. According to counsel, the phraseologies used in section $44(1)$ (c) are couched in mandatory terms leaving no

discretion to Court to do the contrary as this Court did while upholding the decision 20 of the Court of Appeal. He relied on Ormond Investment Co. Ltd vs. Betts (Inspector of Taxes) [1928] AC 143 at 162 and Uganda Revenue Authority vs. Siraje Hassan Kajura, Supreme Court Civil Appeal No.09 of 2015, in which this Court relied on the case of Cape Brandy Syndicate vs. Commissioner Inland Revenue, (1) (1930) 12 TC 358, on the strict interpretation of Tax laws. 25

He thus submitted that the Court's order of stopping interest is at variance with the enabling provision which amounts to an error that ought to be reviewed.

Counsel further submitted that the said Court order in Civil Appeal No.13 of 2015 is an illegality as it did not comply with section $44(1)$ (c) of the VAT Act.

He argued that it is trite law that the Court cannot sanction what is illegal and 30 therefore the said Court order must be reviewed and set aside. He referred to Makula International Ltd vs. His Eminence Cardinal Nsubuga & Anor CA No.4 of (198

HCR) and National Social Security Fund & Anor vs. Alcon International, $\mathsf{S}$ Supreme Court Civil Appeal No.15 of 2009.

On the slip rule, counsel submitted that Rule 35 of the Rules of this Court permits this Court to correct its Judgment on its own motion or upon application by an interested party if the Court is satisfied that there was an error in the Judgment.

Counsel thus prayed that Court recalls and corrects the judgment in Civil Appeal 10 No.13 of 2015 to give effect to the intention of the legislature in section 44 $(1)$ (c) of the Vat Act as amended by deleting the words;

"... until the date of this Judgment. Thereafter, the decretal amount shall carry interest at the rate of 10% p.a from the date hereof till payment in full."

and replacing them with the words; 15

> "until payment in full in accordance with Section 44(1) (c) of the VAT Act as Amended".

He thus prayed that the applicant be granted costs to the application.

## Submissions of Counsel for the respondent

Counsel for the respondent submitted the applicant did not specify whether he 20 wished to bring this application either under Rule 2 (2) or Rule 35 (1) of the Rules of this Court or both. He argued that that omission ought to attract the striking out of the Motion and dismissal of the application and prayed that Court does so.

Counsel, however, proceeded to submit on the issues raised with the assumption that the applicant wished to rely on both Rules.

Counsel submitted that the wording of the applicant's Notice of Motion brings out the applicant's core grievance to be that the Supreme Court erred in law in various respects, in upholding the orders and decision of the Court of Appeal, with regard to interest. According to counsel, that kind of complaint is beyond the purview of Rules

$2(2)$ and 35 of the Rules of this Court. 30

Counsel contended that the applicant alleged that this Court by its decision in $\mathsf{S}$ S. C. C. A No.13 of 2015; (i) contravened section 44(1) (c) of the Value Added Tax Act (ii) stopped statutory interest from running, (iii) substituted statutory interest with discretionary interest, (iv) the acts in (ii) and (iii) were wrongful.

$\tilde{\pi}$

He further submitted that the applicant's pleadings in the Notice of Motion question the decision and orders of this Court, as if it were an appeal against it. He contended 10 that since the applicant argues that the said order of this Court contravenes section 44(1) (c) of the VAT Act, it means that it is illegal, unlawful, or conflicts with established law. He added also that when the applicant contends that this Court substituted "statutory interest" with "discretionary interest", it means that the appellant's case is beyond the kind of matters entertainable under Rule 2 (2) and 35 15 of the Rules of this Court.

Counsel disagreed with the applicant's submission that section $44(1)$ (c) is couched in mandatory terms. He argued that this application does not avail an opportunity for a proper discernment of the import of the section, in light of several principles of statutory interpretation. He added that the section also does not prescribe the consequences of non-compliance therewith, for example by way of sanction.

On the Applicant's submission that the impugned judgment is illegal for noncompliance of section $44(1)$ (c), counsel for the respondent submitted that the said judgment has never been proved null and void after being passed.

- On Rule 2(2) of the Rules of this Court, counsel submitted that this Rule gives Court 25 wide powers but only in a proper case. According to counsel, the present matter is not a proper one. He added that, in all cases where Court has invoked its inherent powers to revisit its judgment, Court was satisfied that review was appropriate. In other-words, the decisions were justified because the circumstances of a substantial - and compelling character had been established to the Court's satisfaction. 30

- Counsel relied on this Courts decisions in Otim Moses vs. Uganda, Criminal $\mathsf{S}$ Application No.14 of 2018, Fang Min vs. Dr. Kaijuka Mutabazi Emmanuel, Civil Application No. 06 of 2009, Orient Bank Ltd vs. Fredrick Zaabwe and anor, Civil Application No.17 of 2007. He thus submitted that this application is not any different from these cases wherein this Court declined to revisit its earlier decisions. - He further argued that the issues raised by the applicant in this application should 10 not have been raised under Rule 2(2) or Rule 35(1) of the Rules of this Court. According to counsel, the issues in contention ought to have been preserved for consideration in an appeal or cross appeal, however, neither course was pursued by the applicant. - On the slip rule under Rule 35 (1) of the Rules of this Court, counsel submitted that 15 the rule goes beyond what the applicant submits on. He argued that whereas the applicant submitted that the rule permits the Court to correct the judgment "if it is satisfied that there was an error in the judgment", a Court would only do so, if in so correcting, "it would be giving effect to what its intention was when the Judgment was given." 20

Counsel thus submitted that the intention of this Court was in accord with the applicant's/respondent's prayers in Civil Appeal No.13 of 2015 to uphold the judgment and orders of the Court of Appeal given in Civil Appeal No.15 of 2013.

In conclusion, counsel noted that the respondent duly computed and fully satisfied the decree of this Court, when it paid interest of Ugs.24,100,143,169/ $=$ , in addition 25 to the principal award/VAT refund of Ugs.3,903,136,565/=, deponed by Ms. Akatuhurira. He prayed for dismissal of the application and costs of the application, with a certificate for two counsel.

### **Applicant's submissions in Rejoinder**

On the respondent's submission that the applicant is barred from raising the issue in 30 contention because it was not pursued by cross appeal in this Court vide Civil Appeal No.13 of 2015, counsel submitted that mistakes of counsel should not be visited on

the applicant as it was fully dependent on the expertise and advice of counsel. See; $\mathsf{S}$ Katureebe, JSC, in Tropical Africa Bank Limited vs. Grace Were Muhwana, Civil Application No.03 of 2012.

Counsel argued that this Court is not precluded from making a slip order even when counsel for the applicant could have made an application but did not. He relied on

the cases of Vallabhadas Karsandas Raniga vs. Mansukhlal Jirraj [1965] EA 700, 10 and Uganda Development Bank Ltd vs. Oil Seeds (U) Ltd, Supreme Court Miscellaneous Application No.15 of 1997, among others.

He submitted that upon the applicant's discovery of the mistake during computation of the amount of interest payable, the applicant instructed counsel to move Court to

rectify the mistake. He added that the application was filed in the Court of Appeal 15 vide Miscellaneous Application No.152 of 2017 and the subsequent appeal arising therefrom vide Civil Appeal No.07 of 2018, on advice of counsel, which was another error on the part of counsel.

On the issue of a party being bound by its pleadings, counsel submitted that despite the fact that the applicant pleaded for interest in the High Court, it does not take 20 away the power of Court to give reliefs set out in the VAT statutes. According to counsel, the VAT Act overrides a general legislation like the Civil Procedure Act (CPA) when it comes to the award of interest under the VAT Act. He added that the CPA does not take away this Court's power to review or exercise jurisdiction under Rule 2(2) and 35 of the Rules of this Court, to affect the purpose/intention of section 25 44 $(1)$ of the VAT Act.

He further submitted that when Court is exercising those powers, it does not sit as if it is dealing with an appeal within an appeal since review and slip applications are distinct from an appeal.

Counsel disagreed with the respondent's submission that counsel for the applicant 30 did not demonstrate what error was done by this Court in the award of interest or

indicate circumstances warranting Court to intervene/revisit its judgment under Rule $\mathsf{S}$ $2(2)$ and 35 of the Rules of this Court.

He contended that the correction became necessary in the circumstances of this application and following the dictates of section $44(1)$ of the VAT Act. He added that this Court by oversight or omission overlooked the provisions of the VAT statute which had not been brought to its attention by either party during the hearing of the appeal, and that because of that it is clothed with jurisdiction to correct the same, leaving the respondent to benefit from that omission to the detriment of the

applicant.

Counsel submitted that the issue of interest under section $44(1)$ is not a question of

judicial discretion within the wording of the section but a mandatory directive to 15 confer relief within the boundaries of the section and not outside it.

He prayed that Court finds it fair and proper to grant the application in the manner prayed, for attainment of substantive justice.

#### **Consideration of the merits of the application**

This is an application for review of a previous decision of this Court. It is brought 20 under Rules 2(2) and 35 (1) of the Rules of this Court.

This Court has considered the application of these Rules in numerous decisions including; Isaya Kalya & 2 others vs. Moses Macekenyu Ikagobya Supreme Court Civil Application No.28 of 2015; Orient Bank vs. Fredrick Zaabwe & Anor,

Supreme Court Civil Application No.17 of 2007; Sewanyana vs. MartinAliker, 25 Supreme Court Civil Application No.04 of 1991 and Criminal Application No.14 of 2018, Otim Moses vs. Uganda.

In all the above quoted cases and others, the Court has clearly stated that its decision on any issue of law or fact is final and a losing party cannot seek for its reversal

since the Court cannot sit to hear an appeal against its own decision. 30

From law and practice, however, there are circumstances that arise when the Court $\mathsf{S}$ may be called upon to revise its own decisions. These are provided for by Rules 2(2) and Rule 35 (1) of the Judicature (Supreme Court Rules) Directions S. I 13-11 herein referred to as the Rules of this Court.

When considering these exceptions, this Court in *Criminal Application No.14 of* 2018, Otim Moses vs. Uganda held: -

"it is clear that while rule 2(2) of the Rules extends to substantive errors of the judgment on the part of the Court, rule 35(1) of the Rules is restricted to accidental errors or omissions on the part of the Court. These provisions summarise the instances when the Court can on its own motion or when called upon to do so give a second look at its decision not in appeal but in review. Specifically rule 2(2) shows that the Court may review its judgment for purposes of: (i) achieving the ends of justice; (ii) preventing abuse of process of the Court; and (iii) setting aside its judgment that has been proved null and void after it has been passed.

20 $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

> As noted earlier the position of the law is that a party is not entitled to seek review of a judgment of the Supreme Court merely for the purpose of a rehearing so as to seek a fresh decision of the case. This would tantamount to an appeal. In principle, a judgment pronounced by this Court is final. and departure from this principle is justified upon Circumstances of a substantial and compelling character being established to the Courts *satisfaction. Such circumstances may include where;*

- $(a)$ Clearly a wrong has been done and it is necessary to pass an order to correct it in the interests of justice. - $(b)$ The decision embedded in the judgment has been proved to be null and void in law; that is, it particularly violates provisions of the law.

- Under Rule 35, known as the slip rule where some arithmetical $(c)$ or obvious mistake is clear on the record. - It is shown that enforcement of the decision will amount to an $(d)$ abuse of due process."

Those being the legal principles, the issue to resolve in this application is whether there are substantial and compelling circumstances that justify the Court to review 10 its decision in Supreme Court Civil Appeal No.13 of 2015.

We will first handle the application as brought to Court under Rule 2(2) of the Rules of this Court.

This Court was emphatic in Otim Moses vs. Uganda, (supra), that a judgment pronounced by this Court is final and a departure from this principle is justified upon 15 circumstances of substantial and compelling character being established to the Court's satisfaction.

Has the applicant fulfilled his duty to persuade this Court that the circumstances of this case warrant the Court's exercise of its inherent powers and discretion to review its previous decision?

The ground cited for the instant application for review is that when this Court confirmed the Court of Appeal decision, there was an error made by the Court of Appeal which this Court confirmed. The said error was that the Court of Appeal decision did not comply with the provisions of section 44 (1) (c) of the Value Added

Tax Act as amended. 25

> We reproduce the whole position of the Court of Appeal judgment which was confirmed by this Court:

"On the issue of the interest payable on the refundable amount which was reflected in report "B", the interest is based on section 44 (1) (c) of the Vat Act which provides:

$\mathsf{S}$

"Interest on Overpayments and Late Refunds

Where the Commissioner General is required to refund an amount of tax to a person as a result of-

(a) A decision under section 33B;

- (b) A decision of the Tax Appeals Tribunal: - (c) A decision of the High Court, the Court of Appeal or the Supreme Court,

He or she shall pay interest at the rate of two percent per month compounded on the tax to be refunded."

We find the provision of the Act clear and precise. It is our duty as a Court of law to give the provision, which embodies the intentions of Parliament on this point, full effect by applying it to the facts and the evidence before us in the instant appeal. This is also in compliance with the popular and long standing call of "No taxation without representation" which is a fundamental principle of taxation in all free and democratic societies like Uganda.

We therefore, accordingly order that all the VAT amounting to 20 3,903,136,565/- collected from the appellant be refunded. That amount shall carry interest at the rate of 2% per month compounded from the time it was paid until the date of this judgment. Thereafter, the decretal amount shall carry interest at the rate of 10% p.a from the date hereof till payment in full." 25

We find that the Court of Appeal was aware of the provisions of section 44 $(1)$ (c) of the VAT Act and went ahead to quote the same and apply it in its judgment. This Court agreed with that position and confirmed the judgment. Both parties were represented by counsel but the issue at hand was not raised at the Court of Appeal nor at the Supreme Court on appeal.

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The judgment of this Court was executed and the applicant, who was the judgment $\mathsf{S}$ holder then, was fully paid the judgment debt.

The instant application is for this Court to substitute part of its judgment with a proposed wording that wholly changes the meaning and impact of this Court's previous decision.

- This Court has stated the legal position in which it may review its decision under 10 Rule 2(2) in Otim Moses vs. Uganda (supra), and Isaya Kalya and others vs. Moses Macekenyu Ikagobya (supra). We wish to refer also to the persuasive case of Independent Medico Legal Unit vs. Attorney General of the Republic of Kenya, Application No.2 of 2012 where the East African Court held: - "The purpose of review is not to provide a back door method by which 15 unsuccessful litigants can seek to re-argue their cause ...

As the expression "error apparent on the record" has not been definitively defined by statute, etc, it must be determined by the Courts sparingly and with great caution.

The "error apparent" must be self-evident; not one that has to be detected 20 by a process of reasoning.

> No error can be said to be an error apparent where one has to "travel beyond the record" to see the correctness of the judgment - see paragraph 2 of the Document on "Review of Jurisdiction of the Supreme Court of India''(Supra)

> It must be an error which strikes one on mere looking at the record, and would not require any long drawn process of reasoning on points where there may conceivably be two opinions - see Smti Meera Bhanja v. Smti Nirmala Kumari (Choudry) 1995 SC 455. A clear case of "error apparent" on the face of the record" is made out where, without elaborate argument, one could point to the error and 24 say here is a substantial point of law

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which stares one in the face, and there could reasonably be no two opinions entertained about it - see Thugabhadra Industries Ltd v. The Government of Andra Pradesh 1964 AIR 1372; 1164 SCR (5) 174; also quoted in Haridas Das v. Smt. Usha Rani Banik & Drs, Appeal (civil) 7948 of 2004.

In summary, it must be a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish - see Sarala Mudgal v. Union of India M. P. Jain, page 382, Vol. I.

Review of a judgment will not be considered except where a glaring omission or a patent mistake or like grave error has crept into that judgment through judicial fallibility - see Document: "Review of Jurisdiction of the Supreme Court of India" (Supra)

This power of review has been allowed if the order sought to be reviewed is based on: a decision per incuriam; or an incorrect set of facts or assumption of law; or non-consideration of a contention made; or if a judgment is inconsistent with the operative portion or an interim order which was granted subject to the outcome of the appeal to clarify an ambiguity."

In the instant application, has the applicant demonstrated that there was a clear case of error apparent on the face of the record where without any elaborate argument one could point to the error on a substantial point of law or fact that calls for correction? Counsel for the applicant does not point out such error.

Counsel raised elaborate arguments as to why he considers the Court of Appeal 25 decision to be wrong and therefore this Court should not have confirmed it. He submitted that the decision of the Court of Appeal which this Court upheld "amounts to an illegality in as far as it goes against the spirit of the law." He contended that the decision of this Court "has the effect of amending section 44 (1) (c) of the VAT

Act as amended". These are submissions that challenge the merits of this Court's 30 decision.

- The applicant's submissions do not point out an error apparent on the face of the $\mathsf{S}$ record. The applicant is stating that he was not satisfied with the decision. This we find to be a disguised appeal of the Court's decision which falls outside the parameters of Rule 2 (2) of the Rules of this Court. We would dismiss the application on this ground. - We shall now proceed to consider the application under Rule 35 of the Rules of this 10 Court.

This Court stated the law governing application of the slip rule in Fang Min vs. Dr. Kaijuka Mutabazi Emmanuel (Supra) as follows;

"The law governing the slip rule is rule 35 (1) of the Supreme Court Rules.

It reads thus: 15

> "A clerical or arithmetical mistake in any judgment of the court or any error arising in it from accidental slip or omission may, at any time, whether before or after the judgment has been embodied in an order, be corrected by the court, either of its own motion or on the application of any interested person so as to give effect to what was the intention of the court when the judgment was given."

> This court had in Orient Bank Case (supra), stated the scope of the application of this rule. There, the court stated as a general rule that

> "the decision of this court on any issue of fact or law is final, so that the unsuccessful party cannot apply for its reversal- ------

- - - under rule 35 (1), this court may correct inter alia any error arising from accidental slip or omission in its judgment, in order to give effect to what was its intention at the time of giving judgment."

To buttress that point, this court quoted with approval an explanation by Sir Charles Newbold, P. in Lakhamishi Brothers Ltd. - vs - R. Raja and Sous (1966) EA 313 at p. 314 where he said:

"J would here refer to the words of this court given in the Ranaiga case (1965) EA at p. 703 as follows:

'A court will, of course, only apply the slip rule where it is satisfied that it is giving effect to the intention of the court at time when judgment was given or in the case if a matter which was overlooked, where it is satisfied beyond doubt, as to the order which it would have made had the matter been brought to its Attention."

Applying the above stated legal principles to the instant application, the applicant had a duty to demonstrate to this Court that there was a clerical or arithmetical mistake in the judgment of this Court or an error arising from an accidental slip or omission. As stated by counsel for the applicant, the intention of this Court in Civil Application No.13 of 2015 was to confirm the judgment and orders of the Court of Appeal in its Civil Appeal No. 15 of 2013.

For this Court to review its previous decision under Rule 35 of the Rules of this Court, it has to be convinced that there was a clerical or arithmetical mistake or error

arising from an accidental slip or omission. What counsel for the applicant attempts 20 to demonstrate is that the Court should have held differently from what it held. The alteration proposed by the applicant gives a different meaning and effect to the Court's decision. We are not satisfied that the applicant pointed out the errors or clerical mistake to justify review of the Court's previous decision.

We find that this was an effort by the applicant to disguise what is in effect an appeal 25 to the decision of this Court.

The application does not fall under the slip rule in Rule 35 of the Rules of this Court. In the result, the application is hereby dismissed with costs. The decision and orders of this Court in Civil Appeal No.13 of 2015 are upheld.

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Dated at Kampala this ....................................

Hon. Justice Stella Arach-Amoko JUSTICE OF THE SUPREME COURT

$\cdots$ Hon. Justice Paul Mugamba

JUSTICE OF THE SUPREME COURT

Hon. Justice Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

$\cdots$ **Hon. Justice Percy Night Tuhaise** JUSTICE OF THE SUPREME COURT

$\begin{array}{c}\n\bullet & \bullet & \bullet & \bullet \\ \bullet & \bullet & \bullet & \bullet & \bullet\n\end{array}$ Hon. Justice Mike Chibita JUSTICE OF THE SUPREME COURT

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