[2018] UGCA 249


THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

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#### AT KAMPALA

### MISCELLANEOUS APPLICATION NO. 152 OF 2017

(Arising out of Civil Appeal No. 15 of 2013)

# Uganda Taxi Operators & Drivers Association :::::::::: Applicant **VERSUS**

Uganda Revenue Authority ::::::::::::::::::::::::::::::::::::

Coram: Hon. Justice Alfonse Owiny Dollo, DCJ Hon. Justice S. B. K. Kavuma, JA Hon. Justice Remmy K. Kasule, JA

## RULING OF HON. JUSTICE REMMY KASULE, JA

The applicant seeks an order to correct the part of the Judgment as relate to the orders of payment of interest issued in a Judgment delivered by this Court on 15^th June, 2015 in Civil Appeal No. 15 of 2013.

30 The Court is being so moved by the applicant under Rules 2(2), 36 and 43 of the Judicature (Court of Appeal Rules) Directioas. The application is supported by an affidavit of one Atulinda Majda, an advocate from Messrs Kabega, Bogezi and Bukenya Advocates, representing the applicant.

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3s The application is being opposed by the Respondent. Learned Counsel Fiona Akullo, a supervisor in the Legal serrrices and Board Alfairs Department of the Respondent, deponed to an aflidavit in opposition to the applicalion.

40 At the hearing, learned Counsel Ssekaana Musa and Kabega Musa appeared for the applicant, while the respondent was represented by Okello George and Gloria T\uinomugisha respectively Ag. Commissioner and supervisor litigation of Legal Services and Board Affairs of the Respondent.

45 By way of background, the applicant, through High Court (Kampala) Civil Suit No. 182 of 2O1O sued the respondent for refund of monies retained by the respondent as Value Added Tax [VAT) 'since 2OO4 n respect of -operations of ^e 50 applicant carried out at tl:e material time, for Kampala City Cor:ncil, now Kampala Capital City Authorily. The High Court dismissed the appiicant's suit on 25t1, January, 2013. The applicant appealed to the Court of Appeal vide Civil Appeal No. 15 of 2O13. The Court of Appeal allowed the appeal, ordered that lhe sum paid to the respondent be refunded to the applicant ald further ordered with regard to interest thus:

uThqt amount shall carry interest at the rate of 2% per month compounded from the time it utas paid until the ..?

date of this. Iudgment. Thereafter, the decretal a.mount shall carry tnterest atthe rate of 1O%o p.a. frornthe date hereof till pdgtllellt in full".

ugh Civil Appeal No. 13 of 2O15 the respondent appealed to th Supreme Court cha-llenging the whole Judgment of ttre Court of ppeal. The applicant, as respondent to the appeal, did not in arl way challenge in the Supreme Court by way of cross-appeal or o erwise the Judgment of the Court of Appeal, including the order AS S1] o the interest ordered to be payable. Instead, the applicant ported the same in its entiret5z.

Th up Supreme Court, in a Judgment delivered on 5th May, 2077 eId tJ:e decision of the Court of Appeal in all its respects and dis ssed with costs the said Civil Appea1 No. 13O of 2O15.

l0 Th applicant, through this application, is now asserting that the Ju ent of the Court of Appeal in Civil Appeal No. 15 of 2O13 had a mistake/error arising from aL accidental stp or omission w1 regard to the issue of pa5rment of interest on the decretal sum.

e plicant-tJrus-prays.for tlee eorrection of this mist or. tlie said Judgment by issuing the prayed for orders.

^e respondent opposes the application on the ground that no 1]C mistake/error was ever made by this Court and as such there sll thing for it to correct-

sel for the applicant submitted that the Judgment of t-his awarded interest to the appJicant and that this interest was ta tory interest provided for by Section aa\$) of the VAT Act, hi interest by law continues to run from the date of payment frh VAT rrntil such a time as to when it is refunded. Therefore, o o

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counsel argued, it was an error due to an accidental slip or omission when this Court ordered in its Judgment that the amount of VAT to be refunded was to carry interest at the rate of 2% per month compounded from the time it was paid until the date of the Judgment. Counsel further contended that the part of the order stating that after the date of Judgment the decretal sum shall carry interest at the rate of 10% p.a. from the date of Judgment till payment in full, ought also to be deleted because it would amount to a double award of interest to the applicant since the interest of 2% per month compounded on the sum of VAT to be refunded has by law to continue to be paid until the whole amount of VAT is refunded.

According to counsel, it was necessary for this Court to correct this mistake, the result of an accidental slip/omission in the Court Judgment, so as to prevent the respondent from refusing to pay interest of 2% per month compounded on the sum of VAT to be refunded even beyond the 15^th June, 2015 the date of delivery of 100 the Judgment, until the whole amount is refunded in full. Counsel thus prayed for the application to be allowed.

Counsel for the respondent, in opposing the application, submitted that, in awarding interest as set out in the Judgment of 15^th June, 2015, this Court exercised its judicial discretion in making the 105 orders that it made and as such there was no error made due to an accidental slip correctable by this Court under Rules 2(2), 36 and 43 of the Judicature (Court of Appeal Rules) Directions. If the applicant had been dissatisfied with the part of the Judgment as to interest payment, then the applicant ought to have appealed 110

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cross appealed to the Supreme Court against that part of the gment as related to payment of interest. Instead the applicalt, respondent in Supreme Court Civil Appeal No. 13 of 2O15, , in opposing that appeal in the Supreme Court, fully embraced supported the entire Judgment, including the orders as to rest pa5rment. The applicant, Counsel contended, was thus pped from questioning arry part of the Judgment of this Court 5e June, 2015 in Court of Appeal Civil Appeal No. L5 of 2Ol3 r having fully defended the same as having no mistal<e at all e opposing Civil Appeal No. 13 of 2O15 in the Supreme Court. e the Supreme Court had, in agreement with the applicant in application (respondent in Supreme Court Civil Appeal No. f 2OLS), confirmed the orders contained in the Judgment of Court dated 15e June,20L5 in Civil Appeal No. 15 of 2013, plicant in this application cannot now be heard applying for s that wouid in effect make this Court of Appea-i reverse the s that the Supreme Court had already confirmed. This Court not have the jurisdiction to do so.

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1 b C c ndent's Counsel fi-rrther submittea that ds a'Judgmbnt- r, the respondent had already made part payment to Counsel e decree hoider, now the appiicalt, of the decretaL sum on sis of tlee orders made by this Court in its Judgment of 15tL 2015 in Civil Appeal No. 15 of 2OL3. As such the applicant ing to bring this litigation to an end by now making this ation, purporting to vary the orders of the same Judgment d on 15th June, 2015, which orders had also been ed by the Supreme Court. The applicant was thus tting abuse of Court process by pursuing this application

and this must not be allowed by this Court. Therefore the 140 applicant's application ought to be dismissed.

In resolving this appeal this Court notes that **Rule 36** of the Judicature (Court of Appeal Rules) Directions provides:

### "36. Correction of Errors

(1) A clerical or arithmetical mistake in any Judgment of the Court or any error arising in it from an accidental slip or omission may, at any time, whether before or after the Judgment had been embodied in a decree, be corrected by the Court concerned, 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 Judgment was given.

$(2)$ An order of the Court may at any time be corrected by the Court, either of its own motion or on the application of any interested person, if it does not correspond with the Judgment or ruling it purports to embody or, where the Judgment or order has been corrected under sub rule (1) of this rule with the Judgment or order as so corrected".

Other Courts have similar powers for correction of errors vested in them by law. Rule 35 of the Judicature (Supreme Court Rules) 160 **Directions** is word for word and textually the same with the reproduced Rule 36 of this Court. Section 99 of the Civil **Procedure Act, Cap. 71** that regulates civil proceedings in the High Court and Magistrates Courts vests the same powers in those $400$ Courts. 165 $-1$

It has to be appreciated that clerical or arithmetical mistakes and/or errors in Court decisions that are due to accidental slips or omissions are very different in nature and effect from those errors in Court decisions that constitute grounds of appeal to the appellate Courts and where the appellate Court may confirm, vary or reverse the decision of the lower Court from which the appeal arises.

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A derical/arithmetical error due to accidental slip or omission is one that is due to inadvertence, is apparent and self-evident on the face of the Court record and does not involve a re-appraisal of evidence so as to find it out. It happens accidentally due to inattention in the preparation of the Court decision. It is thus correctable by way of review by the very Court that made the said error.

By way of contrast, an error that constitutes a ground of appeal to 180 a higher Court is one based on the reasoning by the one raising it that the law and or the facts of the case before the Court were not properly considered and or applied by that Court; and by reasonthereof, the decision or part of the decision, the subject of the appeal, ought not to be allowed to stand as the same is erroneous. 185 See Mulla: The Code of Civil Procedure, 16^th Edition, pp 4105 and 4117.

In this application this Court is being moved by the applicant in effect to set aside part of its order as regards the payment of Interest made in the Judgment delivered on 15^th June, 2015 in Civil Appeal No. 15 of 2013. In that Judgment this Court ordered "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".

The applicant prays this Court to change the above quoted order by substituting the words: 200

> "Shall carry interest at the rate of 2% per month compounded from the time it was paid until the date of this Judgment",

with the words that:

"that amount shall carry interest at the rate of 2% per month compounded until it is refunded",

and then delete from the Judgment altogether the order:

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

Section 44(1) of the VAT Act, Cap. 349 as amended by VAT Act No. 2 of 2002 provides that:

"44. Interest on overpayments and late refunds

(1) Where the Commissioner General is required to refund an amount of tax to a person as a result of $a$ decision of the reviewing body as defined in Section 28 of the Tax Appeals Tribunal Act, he or she shall

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pay interest at a rate of five percentage points higher than the prevailing official bank rate of the Bank of Uganda on the amount of the refund for the period commencing from the date the person paid the tax refunded and ending on the last day of the month the refund is made.

I note that **Section 44(1)** of the **VAT Act** applies to a case where $\mathbf{V}$ the Commissioner General of Uganda Revenue Authority is required to refund an amount of tax to a person:

"as a result of a decision of the reviewing body as defined in Section 28 of the Tax Appeals Tribunals Act".

Section 28 of the Tax Appeals Tribunals Act, Cap 345, defines the **"reviewing body"** to mean: 230

> in the case of an application for review to a $\lq$ tribunal, the tribunal;

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(b) in the case of an appeal to the High Court, the High Court."

t follows therefore that Section 44(1) of the VAT Act covers a **situation** where the issue or dispute as to refund of any amount of tax by the Commissioner General, URA, to any person, commences in the Tax Appeals Tribunal, or where the decision of the Tax Appeals Tribunal is appealed to the High Court. Section 44(1) of **the VAT Act** cannot therefore be said to be controlling the overall power of the High Court, let alone the Court of Appeal, or any other Court of law, to award interest in the exercise of that Court's

discretion, in any cause that originates within the origrnal jurisdiction of the High Court.

This application relates to the Judgment of this Court in Civil Appeal No. 15 of 2Ot3 which arose out of the Judgment of the High Court (Kampala) in Civil Suit No. 182 of 2O1O which suit was commenced in the said High Court. The litigation that gave rise to Civil Suit No. 182 of 2O1O therefore never commenced in the Tax Appeals Tribunal and as such Section 44lLl of the VAT Act does not apply to it. This litigation commenced in the High Court of Uganda exercising its original jurisdiction. The applicarit is thus not justified to assert that the Court of Appeal committed a clerical or arit}-metical mistake or an accidental slip or omission by not applyrng the terms set by Section 44171 of the VAT Act when awarding interest on the sum to be refunded by the respondent to the applicant, Section aa\$l of the VAT Act was and is not at all applicable to the circumstances of the original High Court Civil Suit No. 182 of ZOLO, which later gave rise to Court ofA eal Civil eal No. 75 of 2OL3 arrd ultimateiy to Supreme Court Civil Appeal No. 13 of 2O15.

The applicant's Counsel has also urged this Court to carry out a correction of the Judgment in Court of Appeal Civil Appeal No. 15 of 2O13 pursuant to this Court's inherent jurisdiction as per Rule 2(21 of the Ruies of this Court. The Rule states:

"Nothing in these Rules shall be taken to limit or otherwise affect the inherent potaer of the Caurt, or the High Court, to make s-uch ord.ers as mcLU be necessaryfor attaining the ends oJjustice or to preaent abuse ofthe

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process of any such Court, and that power shall extend to setting aside Judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any Court caused by delay."

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I am unable to accede to the prayer of counsel for the applicant since, as I have already held, Section $44(1)$ of the VAT Act does not apply to the circumstances of this case and as such there is no mistake to be corrected. There is thus no justification for resorting to the exercise of the inherent jurisdiction of the Court under **Rule 2(2)** of the Rules of this Court.

Their Lordships of this Court, in their wisdom and in the judicial exercise of their discretion, awarded the interest in the terms they considered most appropriate in their Judgment of 15^th June, 2015 in **Civil Appeal No. 15 of 2013**. It is significant that the applicant never appealed to the Supreme Court against that award. Indeed when the respondent appealed against the whole decision in **Civil** Appeal No. 15 of 2013, the applicant never cross-appealed, but instead proceeded to oppose the appeal by supporting the Judgment appealed against in its entirety. This resulted in the majority Judgment of the Supreme Court of 4 to 1 confirming the Court of Appeal Judgment including the orders as relate to $\phi$ ayment of interest.

By pursuing this application, the applicant is purporting to question what he ought to have done by way of appeal or crossappeal to the Supreme Court, as to whether or not Their Lordships of the Court of Appeal acted properly and within the law when they $454$ $17$

aril/arded the interest in ttre terms tteat they did in their Judgment of 15tt June, 2015. Having not appealed, and afso now that the Supreme Court has con-firrned the said Judgement of the Court of Appeal, the applicant has no cause whatsoever to pursue this application.

It is my considered view that by lodging and pursuing this application, the applicant is rendering litigation over this matter to 30s be endless. This ought not to be allowed. The Uganda Supreme Court in Miscellaneous Application No. 07 of 2O13 British American Tobacco Uganda -vs- Sedrach Mwijabuki & 4 Others, re-emphasized the holding, in Lakhamshi Brothers Ltd -vs-R. Raja & Sons (1966) EA 313 where the Court stated atpage 314:

³¹⁰ "There is a principle which is of the uery greatest importance in the administration of justice and that pinciple is this: It is iru the interest of all persons that there should be an end to litigation. This Court is nou the final Court of Appeal and whenthis Court deliuers its Judgrnent, that Judgment zs, ln so

litigation. It determines trl respect of the parties to the particular proceedings their final legal positiory subject as I haue said, to the limited application of the slip rule". 315- as'the pafticala,r"ltntceedirLgs are utncented,-tlte end of the

The above holding squarely applies to the circumstances of this application that seeks to undo what the Supreme Court has already confirmed with the very participation of the applicant. 320

For ali the above reasons I lind no merit in tJ:is application. I disrniss the same with costs to the respondent.

Datecl" at Kampala tfris.....,LJ.... day of 2018 fv\cL-

U Mmulling E Remmy Kasule

Justice of Appeal

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