THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

COMMERCIAL DIVISION

CIVIL APPLICATION NO. ………. OF 2017

(Arising from Civil Appeal No. 19 of 2014)

(Arising from Tax Appeal Tribunal Application No. 4 of 2011)

JACKSON WABYONA ………………………………………………………….
APPLICANT

- And -

1. TULLOW UGANDA LIMITED ………………..…………………….. 1ST
RESPONDENT
2. TULLOW UGANDA OPERATIONS PTY LIMITED ……….…………….. 2ND
RESPONDENT
3. UGANDA REVENUE AUTHORITY ………………..……..…………….. 3RD
RESPONDENT

NOTICE OF MOTION

(Under Articles 126(2)(e) and 17(1)(d) and (i) of the Constitution of the
Republic of Uganda; Section 33 of the Judicature Act; Section 98 of the Civil
Procedure Act and Order 46, rules 1 & 8 of the Civil Procedure Rules)

TAKE NOTICE that this Honourable Court shall be moved on the ……….. day
of ……………………, 2017 at ………………. O’clock in the fore/afternoon or
soon thereafter as counsel for the applicant can be heard on an application
for orders that:

a) The decree/order dated 19th June, 2015 (hereinafter called “the
impugned decree/order”) entered into between the Respondents by
consent be reviewed and set aside.

b) Appeal No. 19 of 2014 against the Tax Appeal Tribunal Application No. 4
of 2011 before the Commercial Court be heard and determined by
Court in accordance with the law.

c) Costs of this application be provided for.

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TAKE FURTHER NOTICE that this application is brought under the
provisions of the law aforementioned and supported by the affidavit of
JACKSON WABYONA the applicant herein. But briefly the grounds are:
1. That the applicant is a citizen of Uganda and is aggrieved by the
illegal, fraudulent and ultra vires acts of the respondents entering
and executing the impugned decree/order resulting in the loss of
taxes estimated at over USD 460,000,000.

2. That the applicant being aggrieved by the impugned decree/order
satisfies the grounds for review of the impugned decree/order as
hereunder:

i) There was a mistake on the part of Court to allow the
respondents as parties to enter into an agreement reversing the
decision of the Tax Appeals Tribunal in Application No. 4 of 2011;

ii) The mistake of Court was as a result of not applying the statute
law and case law/jurisprudence to the issue which the parties
presented to Court viz; compromising an appeal and waiving and
collecting less tax than what has been decreed as due and
payable by the Tax Appeals Tribunal;

iii) There is an error apparent on the face of the record whereby the
material issues appealed against from the Tax Appeals Tribunal to
the Commercial Court were not determined and have never been
determined by Court.

iv) Additionally, the impugned decree/order is an illegality and a
nullity that ought to be expunged from the court record.

v) There are sufficient reasons to warrant Court to invoke and
exercise its powers of review and hereunder:

a) The impugned decree/order illegally and unlawfully waived
and/or varied the taxes due and payable by the 1st and 2nd
respondents to the Consolidated Fund contrary to the
Constitution;

b) The 3rd respondent has no or any power to waive or vary taxes
imposed by law and payable by the tax payable through
execution of the impugned decree/order.

c) The impugned decree/order caused great financial loss of
public funds to Uganda;

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d) The impugned decree/order is suspect and smacks of fraud
and illicit enrichment on the part of the respondents;
e) There is no legal nor economic nor financial nor rational basis
for taking USD 250,000,000 and losing 157,095,366 and
135,698,455 plus interest thereon at 2% per month which
were taxes assessed and found as due and payable to the
Consolidated Fund by the 1st and 2nd respondents;

f) The applicant has legitimate interest as a citizen of Uganda
who is duty bound to protect and preserve public property to
ensure that taxes assessed are duly collected and paid unto
the Consolidated Fund;

g) The applicant as a citizen of Uganda has legitimate
expectations in the 3rd respondent assessing and collecting all
taxes imposed by law that become due and payable unto the
Consolidated Fund, without any waivers or variations;

h) The applicant as a citizen of Uganda has legitimate
expectations in the 3rd respondent always upholding and
complying with the law and acting within and in accordance
with the law and not ultra vires its mandate, power and
authority.

3. That the grounds in (2) hereof have a factual foundation and legal
arguments as hereunder:

(i) The impugned decree/order compromised Civil Appeal No. 19
of 2014 by reversing and/or varying TAT Application No. 4 of
2011 through the agreement of the parties without hearing
the same which act is illegal and fraudulent as hereunder:

(a) Civil Appeal No. 19 of 2014 was on issues of law that
cannot be a subject of consent or compromise between the
respondents agreeing to state the law by agreement or
otherwise acting outside the law and altering a statute;

(b)Only the appellate court in this case the Commercial Court
has the jurisdiction to reverse a decision of the Court below
i.e. Tax Appeal Tribunal after hearing the appeal and
reaching a decision on the issues of law presented before it
by the parties;

(c) The parties cannot consent to reverse a judgment of a
competent Tribunal or Court.

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(ii) The 3rd respondent as the successful party and Decree-holder
in Tax Appeal Tribunal Application No. 14 of 2011 had no or
any mandate to execute, sign or endorse the impugned
decree/order which had the effect of waiving or varying the
taxes imposed by law on the 1st and 2nd respondents and were
due and payable to the Consolidated Fund.

(iii) The execution, signature and endorsement of the impugned
decree by the 3rd respondent’s officials viz Commissioner
General is ultra vires the Constitution, Uganda Revenue
Authority Act, the Income Tax Act and the Tax Appeals Tribunal
Act with especial reference to the mandate, authority and
power of the Commissioner General and accordingly the
impugned decree/order is a nullity/null and void.

(iv) There is suspicion of corruption and apparent foul play
involving back door deals, connivance and collusion in causing
loss of public funds with especial reference to the turn-about
of the 3rd respondent who made the initial assessment of USD
475,924,120 and later upheld the assessment in the objection
decision of USD 472,748,128 that it later defended before the
Tax Appeals Tribunal. The impugned decree/order is clearly
suspect and ought to be subjected to investigation by way of
review.

4. That for the ends of justice and as a matter of great public and
general importance involving loss of approximately USD
460,000,000 of taxes due and payable to the Consolidated Fund, it
is just and proper to re-open the appeal and review the impugned
decree/order that waived and varied taxes imposed by law with the
object of setting aside the decree/order in Commercial Court Civil
Appeal No. 19 of 2014.

5. That the result of the review will be to recover the taxes lost and
uncover the corruption and fraud involved in entering the impugned
decree/order between the 3rd respondent on one hand and the 1st
and 2nd respondents on the other.

DATED at Kampala this …………… day of …………………….., 2017.

__________________________________
NYANZI, KIBONEKA & MBABAZI
ADVOCATES
COUNSEL FOR THE APPLICANT

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GIVEN under my Hand and Seal of this Honourable Court this ................ day
of ..........................................., 2017

___________________________
REGISTRAR

DRAWN & FILED BY:

NYANZI, KIBONEKA & MBABAZI
ADVOCATES
PLOT 103 BUGANDA ROAD
P.O. BOX 7699
KAMPALA.

MM/ln/notmot.wabyona.tullo ug

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

COMMERCIAL DIVISION

CIVIL APPLICATION NO. ………. OF 2017

(Arising from Civil Appeal No. 19 of 2014)

(Arising from Tax Appeal Tribunal Application No. 4 of 2011)

JACKSON WABYONA ………………………………………………………….
APPLICANT

- And -

1. TULLOW UGANDA LIMITED ………………..…………………….. 1ST
RESPONDENT
2. TULLOW UGANDA OPERATIONS PTY LIMITED ……….…………….. 2ND
RESPONDENT
3. UGANDA REVENUE AUTHORITY ………………..……..…………….. 3RD
RESPONDENT

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION

I, JACKSON WABYONA of C/o Nyanzi, Kiboneka & Mbabazi Advocates, P.O.
Box 7699, Kampala do hereby make oath and sincerely state as hereunder:

1. That I am a male adult Uganda of sound mind, the applicant herein and
therefore make this affidavit in that capacity.

2. That I am the applicant in this matter and a holder of National ID No.
008121243 NIN CM66006104Y0TH signifying that I am a citizen of
Uganda. A copy of my National ID is hereto annexed and marked
Annexture “A”.

3. That I am aggrieved as a citizen of Uganda with the duty to protect and
preserve public property, combat corruption and misuse or wastage of
public property.

4. That I know taxes imposed by the law are supposed to be assessed and
collected by the 3rd respondent and paid unto the Consolidated Fund as
public property held in trust for the people of Uganda.

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5. That in exercise of my duties as a citizen, I did come across a
decree/order dated 19th June, 2015 (hereinafter referred to as “the
impugned decree/order”) entered into by the 1st and 2nd respondents
on one hand and the 3rd respondent on the other in Commercial Court
Civil Appeal No. 19 of 2014 arising from Tax Appeals Tribunal
Application No. 4 of 2014. A copy of the decree/order dated 19 th June,
2015 is hereto annexed and marked as “B”.

6. That upon scrutiny of the impugned decree/order, I realised and
understood that the parties (the 3rd respondent on the one hand and
the 1st and 2nd respondents on the other hand) had compromised the
appeal by the 3rd respondent accepting to collect less taxes of USD
250,000,000 in full and final settlement of the Tax Appeals Tribunal
assessments in TAT Application No. 4 of 2011.

7. That upon reading the ruling of 16 th July, 2014 delivered in Tax Appeals
Tribunal Application No. 4 of 2011, I found that the Tribunal had made
the following orders:

i) The applicants pay capital gains tax of USD 407,095,366
basing on the evidence adduced before the Tribunal being
the amount after the pre investment relief. The total
amount of capital gains tax before the pre-investment relief
was USD 542,793,821.

ii) The applicants will deduct the statutory 30% paid from the
USD 407,095,366 and the balance outstanding shall attract
an interest of 2% per month from the date of this ruling till
payment in full.

iii)The applicants are entitled to a re-investment relief of USD
135,698,455.

iv)The applicants shall furnish the respondent with evidence of
re-investment in an asset of a like kind to the time of the
above mentioned amount in paragraph 3 within three
months from the date of this ruling. The said re-investment
in an asset of a like kind should have been made in the
period between 21st February 2012 and 21st February 2013.
In the event the applicant does not comply with this order
the said relief or that amount of relief which has not been
proved will crystallise into capital gain tax on the expiration
of the said period and will attract interest of 2% per month
till payment.

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v) Under S. 19(c) of the Tax Appeal Tribunal Act the portion in
respect of the re-investment relief is remitted to the
respondent to effect as stated herein above.

vi)The Tribunal orders that the applicants pay two-thirds (2/3)
of the costs of this application to the respondent.

Copies of the Tax Appeals Tribunal Ruling and Decree in TAT
Application No. 4 of 2012 are hereto annexed and marked Annextures
“C” and “D” respectively.

8. That by compromising Civil Appeal No. 19 of 2014 before Commercial
Court, the parties through agreement reversed and/or varied the Tax
Appeals Tribunal decision resulting into loss of taxes due and payable
unto the Consolidated Fund as hereunder:

a) USD 157,095,366 being the difference between the assessed
taxes by the Tax Appeal Tribunal of USD 407,095,366 and the
settlement amount of USD 250,000,000;

b) USD 135,698,455 that would crystalise as capital gain tax on 16th
October, 2014 upon the 1st and 2nd respondent failing to comply
with the order requiring them to furnish evidence of re-investment
in an investment in an asset of a like kind to the tune of USD
135,698,455.

c) Interest of 2% per month on USD 157,095,366 from 16 th July,
2014 till payment in full.

d) Interest of 2% per month on USD 135,698,455 from 16th October,
2014 till payment in full.

e) 2/3 costs payable to the 3rd respondent.

9. That I have calculated and found the total loss of taxes resultant from
the decree/order as 471,612,020.72 computed as hereunder:

a) USD 157,095,366 being the difference between the assessed taxes
by the Tax Appeal Tribunal and the settlement amount;

b) USD 135,698,455 being the amount that would crystalise as capital
gain tax;

c) USD 97,399,126.92 being 2% interest per month on USD
157,095,366 from 16th July, 2014 to 16th February, 2017.

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d) USD 75,991,134.8 being 2% interest per month on USD
135,698,455 from 16th October, 2014 to 16th February, 2017;

e) USD 5,427,938 being 2/3 costs awarded by the Tax Appeals Tribunal.

10. That the impugned decree/order causing such loss is suspect and
symptomatic of fraud, illicit enrichment and corruption involving
collusion and connivance of the respondents to compromise the appeal
and reverse the Tax Appeals Tribunal’s decision.

11. That additionally, the impugned decree/order has the effect of
the 3 respondent waiving and varying the taxes imposed on the 1 st
rd

and 2nd respondents by the applicable tax laws which taxes are due
and payable to the Consolidated Fund upon assessment by the lawful
authority.

12. That the 3rd respondent has no or any such mandate under the
Constitution or any law to waive and vary taxes imposed on a tax
payer by the relevant law.

13. That the 3rd respondent’s mandate, authority and duty is to
collect the tax imposed by the applicable law upon assessment.

14. That I know the Commercial Court as the appellate Court in
respect of Tax Appeals Tribunal decisions had a statutory duty to hear
and determine the appeal and make such orders as are appropriate
including affirming, setting aside or remitting the case for
reconsideration.

15. That I have looked at the objection decision given by the 3 rd
respondent in respect of the 1st and 2nd respondents’ objection to the
initial assessment and clearly there is a dramatic turn-about by the 3 rd
respondent that is suspect and smacks of fraud and corruption. Copy
of the objection decision by the 3 rd respondent’s Commissioner
General dated 24th January, 2011 is hereto annexed and marked “E”.

16. That there is no legal nor economic nor financial nor rational
basis on record to justify why the 3 rd respondent accepted to take less
taxes of USD 250,000,000 instead of more taxes USD 407,095,366
together with USD 135,698,455 plus interest at 2% per month that had
been assessed by the Tax Appeals Tribunal in TAT Application No. 4 of
2011 as due and payable as taxes.

17. That in entering the impugned decree/order to collect less taxes
of USD 250,000,000 instead of what had been determined by the Tax
Appeal Tribunal there were mistakes that we made as hereunder:

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i) There was a mistake on the part of Court to allow the
respondents as parties to enter into an agreement reversing the
decision of the Tax Appeals Tribunal in Application No. 4 of 2011;

ii) The mistake of Court was as a result of not applying the statute
law and case law/jurisprudence to the issue which the parties
presented to Court viz; compromising an appeal and waiving and
collecting less tax than what has been decreed as due and
payable by the Tax Appeals Tribunal;

18. That additionally, the impugned decree/order is an error
apparent on the face of the record as hereunder:

i) There is an error apparent on the face of the record whereby the
material issues appealed against from the Tax Appeals Tribunal to
the Commercial Court were not determined and have never been
determined by Court.

ii) Uganda Revenue Authority arrogated itself the mandate,
authority and power to waive or vary the taxes imposed by the
law.

19. That there are sufficient grounds upon which Court can invoke its
powers to review the impugned decree/order and set it aside as
hereunder:

(i) The impugned decree/order waived and/or varied the taxes due
and payable by the 1st and 2nd respondents to the Consolidated
Fund contrary to the Constitution;

(ii) The 3rd respondent has no or any power to waive or vary taxes
imposed by law and payable by the tax payable through
execution of the impugned decree/order.

(iii) The impugned decree/order caused great financial loss of public
funds to Uganda;

(iv) The impugned decree/order is suspect and smacks of fraud and
illicit enrichment on the part of the respondents;

20. That for the ends of justice and as a matter of great public and
general importance involving loss of approximately USD 460,000,000
of taxes due and payable to the Consolidated Fund, it is just and proper
to re-open the appeal and review the impugned decree/order that

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waived and varied taxes imposed by law with the object of setting
aside the decree/order in Commercial Court Civil Appeal No. 19 of 2014.

21. That the result of the review will be to recover the taxes lost and
uncover the corruption and fraud involved in entering the impugned
decree/order between the 3rd respondent and the 1st and 2nd
respondents.
22. That I swear this affidavit in support of the application to review
and set aside the impugned decree/order in Appeal No. 19 of 2014
dated the 19th day of June, 2015.

23. I CERTIFY that whatever is stated herein above from paragraphs
1 to 23 both inclusive is true and correct to the best of my knowledge.

SWORN at Kampala by the said }
JACKSON WABYONA this ………….}
day of ………………………….., 2017 } ____________________________
DEPONENT

BEFORE ME

__________________________________
A COMMISSIONER FOR OATHS

DRAWN & FILED BY:

NYANZI, KIBONEKA & MBABAZI
ADVOCATES
PLOT 103 BUGANDA ROAD
P.O. BOX 7699
KAMPALA

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

COMMERCIAL DIVISION

CIVIL APPLICATION NO. ………. OF 2017

(Arising from Civil Appeal No. 19 of 2014)

(Arising from Tax Appeal Tribunal Application No. 4 of 2011)

JACKSON WABYONA ………………………………………………………….
APPLICANT

- And -

1. TULLOW UGANDA LIMITED ………………..…………………….. 1ST
RESPONDENT
2. TULLOW UGANDA OPERATIONS PTY LIMITED ……….…………….. 2ND
RESPONDENT
3. UGANDA REVENUE AUTHORITY ………………..……..…………….. 3RD
RESPONDENT

SUMMARY OF EVIDENCE

The applicant is a citizen of Uganda and is aggrieved by the illegal,
fraudulent and ultra vires acts of the respondents entering and executing the
decree/order dated 19th June, 2015 in Commercial Court Appeal No. 19 of
2014 resulting in the loss of taxes estimated at over USD 460,000,000. The
applicant satisfies the grounds for review of the impugned decree/order as
hereunder:

(i) There was a mistake on the part of Court to allow the respondents
as parties to enter into an agreement reversing the decision of the
Tax Appeals Tribunal in Application No. 4 of 2011;

(ii) The mistake of Court was as a result of not applying the statute law
and case law/jurisprudence to the issue which the parties presented
to Court viz; compromising an appeal and waiving and collecting

12
less tax than what has been decreed as due and payable by the Tax
Appeals Tribunal;

(iii) There is an error apparent on the face of the record whereby the
material issues appealed against from the Tax Appeals Tribunal to
the Commercial Court were not determined and have never been
determined by Court.

(iv) Additionally, the impugned decree/order is an illegality and a nullity
that ought to be expunged from the court record.

(v) There are sufficient reasons to warrant Court to invoke and exercise
its powers of review and hereunder:

a) The impugned decree/order illegally and unlawfully waived
and/or varied the taxes due and payable by the 2 nd and 3rd
respondents to the Consolidated Fund contrary to the
Constitution;

b) The 3rd respondent has no or any power to waive or vary taxes
imposed by law and payable by the tax payable through
execution of the impugned decree/order.

c) The impugned decree/order caused great financial loss of public
funds to Uganda;

d) The impugned decree/order is suspect and smacks of fraud and
illicit enrichment on the part of the respondents;

e) There is no legal nor economic nor financial nor rational basis for
taking USD 250,000,000 and losing 157,095,366 and
135,698,455 plus interest thereon at 2% per month which were
taxes assessed and found as due and payable to the
Consolidated Fund by the 2nd and 3rd respondents.

LIS F OF WITNESSES

1. Jackson Wabyona – Applicant
2. Any other with the leave of Court.

LIST OF DOCUMENTS

1. All documents and annextures and references in the Record of Appeal
in Civil Appeal No. 19 of 2014.

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2. Memorandum of Understanding between the Government of Uganda,
Uganda Revenue Authority, Tullow Uganda Ltd and Tullow Uganda
Operations Pty Ltd dated 15th March, 2011.

3. Correspondences between and among the parties and legal opinions
regarding the mandate of Uganda Revenue Authority to execute the
consent to compromise the appeal including text messages, emails
and whatsapp.

LIST OF AUTHORITIES

1. The 1995 Constitution of the Republic of Uganda as amended.
2. The Judicature Act Cap 13.
3. The Civil Procedure Act Cap 71.
4. The Income Tax Act as amended
5. The Tax Appeal Tribunal (Procedure) Rules, 2012.
6. The Civil Procedure Rules SI 71-1.
7. Hassanali V City Motor Accessories Ltd [1972] EA 423.
8. Mohammed Allibhai V Bukenya and Anor SCCA No. 56 .of 1996.
9. Ladak Abdulla V Isingoma and Ors SCCA No. 8 of 1995.
10. Yusuf V Nockrach (1971) EA 104.
11. Bulasio Konde V Bulandinda Nankya Civil Appeal No.7 of 1980.
12. Edith Nantumbwe Kizito & 3 Others v. Miriam Kuteesa: Court of
Appeal Civil Application No. 294 of 2013.
13. KM Enterprises Ltd and others v Uganda Revenue Authority
[2008] UGCommC 21.
14. Kampala Nissan Uganda Ltd. v URA Civil Appeal 7 of 2009.
15. American Procurement Company Ltd v Attorney General & Anor
(CIVIL APPEAL NUMBER 0035 OF 2009).
16. Sinba (K) Ltd & 4 Ors Vs Uganda Broadcasting Corporation (CIVIL
APPEAL NO: 03 OF 2014).

DATED at Kampala this ……………. day of …………………………., 2017.

_________________________________
COUNSEL FOR THE APPLICANT

DRAWN & FILED BY:

NYANZI, KIBONEKA & MBABAZI
ADVOCATES
PLOT 103 BUGANDA ROAD
P.O. BOX 7699
KAMPALA.

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