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COMMERCIAL DIVISION
JACKSON WABYONA .
APPLICANT
- And -
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 . Oclock in the fore/afternoon or
soon thereafter as counsel for the applicant can be heard on an application
for orders that:
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.
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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.
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.
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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;
3. That the grounds in (2) hereof have a factual foundation and legal
arguments as hereunder:
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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.
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.
__________________________________
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
MM/ln/notmot.wabyona.tullo ug
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THE REPUBLIC OF UGANDA
COMMERCIAL DIVISION
JACKSON WABYONA .
APPLICANT
- And -
1. That I am a male adult Uganda of sound mind, the applicant herein and
therefore make this affidavit in that capacity.
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.
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:
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.
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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.
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:
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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 Tribunals decision.
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.
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.
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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;
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.
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.
BEFORE ME
__________________________________
A COMMISSIONER FOR OATHS
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THE REPUBLIC OF UGANDA
COMMERCIAL DIVISION
JACKSON WABYONA .
APPLICANT
- And -
SUMMARY OF EVIDENCE
(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
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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.
(v) There are sufficient reasons to warrant Court to invoke and exercise
its powers of review and hereunder:
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
LIST OF DOCUMENTS
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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.
LIST OF AUTHORITIES
_________________________________
COUNSEL FOR THE APPLICANT
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