THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

CIVIL SUIT NO 004 OF 2011 (O.S)

TESTIMONY MOTORS LTD (suing by representative action on behalf of

numerous importers of used motor vehicles in Uganda and on its own behalf)
…................................................................................ PLAINTIFF

Vs.

THE COMMISSIONER CUSTOMS}

UGANDA REVENUE AUTHORITY}….............................................. DEFENDANT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA

RULING

This ruling arises from a preliminary objection to the originating summons taken
out by the Plaintiffs against the Defendant. The background of the originating
summons is that on the 8th of April, 2011 the registrar of the commercial court
division granted an order giving permission to the Plaintiff on his own behalf and
that of and for the benefit of numerous importers of used motor vehicles in
Uganda having interest in one suit to sue for refund of monies allegedly illegally
collected by Commissioner Customs Uganda Revenue Authority in respect of used
vehicles in the financial years 2010/2011.

The order also directed that the Plaintiff is given leave to notify other importers of
used motor vehicles in Uganda of the institution of this suit by way of
advertisement on the notice boards of all the high court registries in Uganda. The
application for leave to sue on behalf of other Plaintiffs was made in
miscellaneous application number 177 of 2011. Subsequently on the 15 th of April,
2011 the applicant filed a suit under order 37 rules 6 and 8 of the Civil Procedure
Rules by way of originating summons. The application for leave to commence
Decision of Hon. Mr. Justice Christopher Madrama
1
action by originating summons was argued ex parte before me. On the 24 th of
June, 2011 I declined to issue the originating summons on the ground that the
applicants were seeking an interpretation of the East African Community Customs
Management Act which was the preserve of the East African Community Court of
Justice. In my ruling I stated as follows:

“The interpretation of the High Court should be limited to questions of

enforcement of the Act. The rationale for this is obvious. The Act overrides
domestic legislation in case of conflict. Its provisions are therefore
international or regional in application. Its domestication by enactment by
the National Parliament does not change the character of the enactment as
the East African Community law. Should the High Court of Uganda indulge
the Plaintiffs and interpret the Act?”

Subsequently, the applicant filed another application for review of the decision
refusing leave in miscellaneous application number 397 of 2011. The crux of the
previous ruling refusing leave was that the High Court should not exercise
jurisdiction in the matter. However upon the applicant’s application for review ex
parte the application for review was allowed on the 14 th of October, 2011.
Consequently the present originating summons was signed on the 14 th of October,
2011 and served on the Defendant. The Defendant accordingly opposed the
summons in its affidavit in reply. When the OS came for hearing, the Plaintiffs
were represented by Counsels Fred Muwema assisted by Siraje Ali and Terrence
Kavuma all of Muwema Mugerwa and Company Advocates while the Defendant
was represented by Counsels Mary Kuteesa and George Okello of the Legal
Services and Board Affairs Dept of Uganda Revenue Authority.

At the hearing, learned Counsels for the Defendants raised preliminary points of
law on the competence of the suit. These points for determination are:

1. Whether the dispute before court is properly brought by way of originating

summons.

Decision of Hon. Mr. Justice Christopher Madrama

2
 2. Whether the representative order was properly obtained and complied
with before the institution of this suit.

3. Whether the Plaintiffs have the same cause of action against the
Defendant.

4. Whether the Plaintiffs are properly before court

I have considered the lengthy oral and written submissions of learned Counsels
for both parties on the preliminary points of law objecting to the OS and the
replies thereto. I have also tried to peruse the authorities submitted for
consideration.

The first issue relates to the competence of the originating summons and in case
it is resolved in favour of the Defendants, there would be no need to consider the
issue of whether the Plaintiff’s action in its representative character is proper.

Whether the dispute before court is properly brought by way of

originating summons

Learned Counsels for the Defendants submitted that the dispute before court is
improperly brought by way of originating summons because originating
summonses only encompasses limited inquiries as spelt out under order 37 rules
1 – 6 which lists the instances when originating summons may be issued. In brief
originating summons are envisaged in matters to do with determination of issues
of trust, administration of estates, sale and purchase of land, mortgage,
dissolution of partnerships, and is of limited scope. The laid out categories cannot
be stretched and there is no room for doing so in the rules. He contended that
Rule 6 under which this suit was brought is equally inapplicable because it only
applies to cases where a person claims to be interested under a deed, will, or a
written instrument. He submitted that it is those persons listed who can apply to
court by originating summons to determine questions of construction arising
under the instrument and for a declaration of the rights of the persons so
interested. Learned Counsel invited the court to consider if in the context of the

Decision of Hon. Mr. Justice Christopher Madrama

3
purposes of order 37 which intends to apply strictly to the cases listed. Counsel
contended that the matter before court is neither for interpretation of a deed,
will or instrument envisaged under this rule. The term “written instrument” as
used in this rule should be interpreted ejusdem generis. Meaning that it should be
interpreted restrictively to apply to classes of the matters preceding, i.e. wills and
deeds. It has been held that the extent of inquiry to be made on an Originating
Summons is very limited. See Bhari vs. Khan [1965] EA 95 at page 99 paragraph C,
decision of the East African Court of Appeal. At best this dispute should have been
properly brought by way of an ordinary suit in a plaint. Section 19 of the CPA is to
the effect that suits have to be commenced in the manner prescribed by the CPA.
In exceptional cases of proceedings begun otherwise than by plaint, the
circumstances therefore are clearly stated. These rules of procedure should be
complied with. They are not mere technicalities to hide under. The word
instrument does not include laws. On rules of procedure in the Khan case, it was
emphasised that the rule of procedure cannot be got rid of by a side wind. This
was emphasised by the Supreme Court in Steven Mabosi vs. URA SCCA 26 of
1995. See Utex vs. Attorney General. In the case of The Environmental Action
Network Action Ltd vs. AG and NEMA MA 39 of 2001 justice Ntabgoba PJ said at
page 11 that in representative actions parties proceed by way of a suit. In that
case learned Counsel submitted that the suit should have been by ordinary plaint.
This is buttressed by the manner in which the rules committee developed the
form to be used in OS. Form 13 of appendix B to the CPR is clear and even tells an
intending litigant how to entitle the proceedings. From these it is deducible that
the matters being brought are in only rules 1 – 5. Rule 6 simply emphasises what
the foregone rules were for. Accordingly, the purported institution of this rule is
superfluous. Counsels prayed that the court finds that the procedure adopted to
institute the suit was irregular and that the suit cannot be saved under the
provisions of rule 11 of the rules of order 37 where Court can change a matter to
proceed in an ordinary manner. Rules apply where the matter was properly
brought by OS. They prayed that the suit be struck out or dismissed for use of the
wrong procedure with costs.

Decision of Hon. Mr. Justice Christopher Madrama

4
The Plaintiff’s Counsels put in written submissions in reply and also addressed the
court orally.

In their written response learned Counsels first addressed the court on the
appropriateness of the procedure by way of originating summons. Firstly learned
Counsels argued that under order 37 rule 8 (2) a ruling was made in which the
court satisfied itself that the issues raised in the originating summons were
capable of being determined by originating summons. Consequently learned
Counsel contended that the objection raised by the Defendant challenging the
propriety of the originating summons is redundant for the reason that the court
had already satisfied by itself that the case is a proper one to be dealt with on an
originating summons. Learned Counsels also submitted that the court is functus
officio as far as its satisfaction of the procedure adopted is concerned. He
referred to Goodman Agencies vs. Attorney General constitutional petition
number 3 of 2008. They further contended that if the Defendant wished to
challenge the propriety of the order of the court to proceed by way of originating
summonses, the proper procedure was to file a separate application to review the
court’s ruling and not by a way of a preliminary objection.

Without prejudice learned Counsels submitted that order 37 rule 6 specifically

provides for determination of questions of construction arising from other written
instruments. The terms “instrument” has been said to embrace contracts, deeds,
statutes, wills, for orders in Counsel, for orders, warrants, schemes, the letters
patent, rules, regulations, bye laws, whether in writing or print or partly in both in
Black’s Law Dictionary page 869. Learned Counsels submitted that the procedure
by the way of originating summons has been held by several authorities to be the
proper procedure to be followed in questions of interpretation of statutes. These
authorities are:

a. Nakabugo vs. Francis Drake Serungjogi [1981] HCB 58

b. Talyaba Nyakana vs. Beatrice Kobusingye Civil Suit No. 6 of 1992
c. Pearl Impex vs. KCCA OS No.3 of 2011
d. Rock Petroleum vs. URA OS No. 9 of 2009

Decision of Hon. Mr. Justice Christopher Madrama

5
Lastly learned Counsels submitted that the Defendant has not shown that it will
suffer any prejudice with the use of the originating summons procedure.

In rejoinder learned Counsels for the Defendant submitted in writing and also
orally gave highlights thereof:

As far as the Plaintiffs argument that the court is functus officio because it
endorsed the originating summons on 14 October 2011 is concerned, learned
Counsels for the Defendant submitted that as far as the doctrine of functus officio
is concerned, it must be shown that the duties of the court had been fully
accomplished. The court must have duly pronounced a final judgment or order
the matter. And that the jurisdiction in the case must have been fully and finally
exercised. Authority over the subject matter must have ceased. Learned Counsel
referred to page 5 of the ruling of the court in this matter where the court held
that "that it would first determine whether the matter is properly before the
court in terms of jurisdiction and forum". The court then dismissed the
application for leave to issue the originating summons on 24 June 2011.
Thereafter in miscellaneous application number 397 of 2011 the Plaintiffs applied
for a review of the decision. The ruling on review was delivered on 14 October
2011 but did not address all the issues of whether the matter was properly before
the court in terms of the procedure used. Learned Counsel submitted that the
issue the court determined in the review was whether there was an error
apparent on the face of the record with regard to the jurisdiction of the court.
Quoting from the earlier ruling:

"I am satisfied that leave to issue the OS in my earlier ruling was refused on
erroneous grounds which are apparent on the face of the record. The error
relates to the conclusion of the court relating to its mandate to determine
the question under section 220 (1) of the East African Community Customs
Management Act. Consequently and without determining any other
questions submitted on in the application for review, the prayer of the
applicant to review the order of court dated 24th of June 2011 is granted.
An originating summons is hereby issued in civil suit number 004 of 2011 as
prayed."
Decision of Hon. Mr. Justice Christopher Madrama
6
Learned Counsel contended that the issue before court is whether the dispute is
properly brought by way of originating summons while in the previous matter, it
related to the jurisdiction of the court.

In rejoinder to submissions of the Plaintiff that order 37 rules 6 of the CPR gives
authority to bring the proceedings by way of originating summons, learned
Counsel distinguished the authorities referred to by the Plaintiffs in the reply. As
far as the Rock Petroleum Case (supra) is concerned, it did not discuss the
propriety of the procedure of originating summons adopted in that case and is
not good authority. Secondly the definition of the words "an instrument" by
Black's Law Dictionary has a broader meaning than that submitted by learned
Counsels for the Plaintiff. The words used in order 37 rules 6 is "written
instrument". The word "instrument" depending on context, would receive various
interpretations. Learned Counsel contended that the words "or other written
instrument" should be interpreted ejusdem generis with reference to written
instruments referred to immediately preceding such as "will" or "a deed".
Learned Counsels for the Defendant is further stated that the ejusdem generis
principle is closely linked to the Noscitur a sociis principle which means that the
word or phrase is not to be construed as if it stood alone but in light of its
surroundings. Learned Counsel submitted that the authorities referred to by the
Plaintiffs Counsels never interpreted order 37 rules 6 of the Civil Procedure Rules.
He relied on my decision in Pearl Impex Uganda Ltd versus Attorney General and
Kampala City Council. He agreed with my observations in that case that in the
United Kingdom, the rules of the court expressly and in clear terms provide for
the use of originating summonses where the question is one of construction of an
Act or any instrument made under an Act. Learned Counsel concluded that the
present case before court is for interpretation of the East African Community
Customs Management Act 2004, a law made by the East African Parliament.

Ruling

The first matter to be considered is whether I am functus officio and therefore

cannot determine the issue of appropriateness of the originating summons as far
as the procedure is concerned. The facts disclosed are that the court had initially
Decision of Hon. Mr. Justice Christopher Madrama
7
refused leave to issue the originating summons on the ground that it was not
appropriate in the circumstances of the case. In the earlier application leave was
refused and at pages 5 and 6 of the ruling I stated as follows:

“Section 3 thereof provides "the directorate of Customs as established by

the Council and the Treaty shall be responsible for the initiation of policies
on Customs and related trade matters in the Community and the
coordination of such policies in the Partner States." Section 253 of the Act
provides that: “This Act shall take precedence over the Partners States’
Laws with respect to any matter to which its provisions relate.”

The sum total of the above as far as the suitability of trial of this suit by the
High Court of Uganda and for interpretation of the Act is concerned is directed
inter alia by sections 1, 2, 3 and 253 of the Act to the effect that:

a. The Directorate of Customs under the Act is established by the Council

created under the treaty forming the East African Community and the
Council is responsible for policy matters.
b. The East African Community Customs Management Act, 2004, is an Act of
the East African Community.
c. The Act is meant to apply to all the Partner States of the East African
Community and it takes precedence over national laws.

The East African Community Customs Management Act, 2004 is for all intents
and purposes a creature of the East African Community Treaty and therefore
part of international law. Its provisions have to be uniformly applied across all
the Partner States. For that reason and in theory, the interpretation of its
provisions by the High Court of Uganda would if allowed affect the application
of the law for all the Partner States a proposition which is without jurisdiction.
This in my humble finding is not only inappropriate but the High Court should
refrain from interpreting the provisions of the Act for purposes of uniform
application of the law in all the Partner States of the Community. The
jurisdiction of the High Court extends only to the boundaries of Uganda and
certain subjects matters which I need not mention here. The High Court of

Decision of Hon. Mr. Justice Christopher Madrama

8
 Kenya, Tanzania, or the courts of Rwanda and Burundi may if different
interpretations are permitted come up with different interpretations of the
same provisions that the Plaintiff would like this court to interpret. Though the
East African Community Customs Management Act, 2004 is an Act of
Parliament, it is just a domestication of International Treaty Law for
application and enforcement by national agencies of Partner States in the East
African Community. Counsel referred me to section 220 of the Act to support
his contention that the High Court has jurisdiction to interpret the Act.

Section 220 of the Act deals with enforcement of the provisions of the Act but
does not apply to questions as to interpretation of the Act. As far as
enforcement is concerned, national courts of competent jurisdiction have
jurisdiction and should freely exercise the same.”

Subsequently, the Plaintiff applied for review of the above decision and my
decision thereon is as follows:

“I am satisfied that leave to issue the OS in my earlier ruling was refused on

erroneous grounds which are apparent on the face of the record. The error
relates to the conclusion of the court relating to its mandate to determine
the question under section 220 (1) of the East African Community Customs
Management Act. Consequently and without determining any other
questions submitted on in the application for review, the prayer of the
applicant to review the order of court dated 24 th of June 2011 is granted.
An originating summons is hereby issued in Civil Suit No. 004 of 2011 as
prayed.”

I agree with learned Counsel for the Defendant that the court did not determine
all the points raised in the application for review. The court just noted that
section 220 (1) of the East African Community Customs Management Act
conferred jurisdiction on the High Court and it was erroneous to hold that the
High Court should not exercise jurisdiction. The court determined the question of
jurisdiction but can it be said that it finally determined the question of whether
the originating summons was the appropriate procedure in the circumstances of

Decision of Hon. Mr. Justice Christopher Madrama

9
the case? The submission of learned Counsels for the Plaintiff is to the effect that
by issuing the originating summons the court has finally resolved the question of
whether originating summon is appropriate procedure in their case. The rules
however vest further jurisdiction in the court to determine whether an originating
summons is the appropriate procedure after giving leave to issue the same and
after completion of pleadings.

The power of the court to decide whether to issue an originating summons is

vested in the judge under order 37 rule 8 (2) of the Civil Procedure Rules. The rule
provides that:

The person entitled to apply shall present it ex parte to a judge sitting in

Chambers with an affidavit setting forth concisely the facts upon which the
right to the reliefs sought by the summons is founded, and the judge, if
satisfied that the facts as alleged are sufficient and the case is a proper one
to be dealt with on an originating summons, shall sign the summons and
give such directions for service upon persons or classes of persons and
upon other matters as may then be necessary."

Where the judge signs the originating summons, the act of issuing the originating
summons is complete. It can be said that the judge is functus officio as far as the
issuance by the signing of the originating summons is concerned. A judge is
however not functus officio for purposes of determining other matters after
issuance of the originating summons for the simple reason that the rules allow
the judge to dismiss the originating summons after it has been issued for not
being appropriate in the circumstances. The judge may order for further evidence
by way of affidavits in support of the summons or make the necessary
amendments to the summons to accord with existing facts. A judge is not
precluded from taking evidence viva voce or hearing arguments. Where it appears
to the judge that the matters in respect of which relief is sought cannot be
properly disposed of in a summary manner, the judge may refuse to pass any
order on the summons and may dismiss it or refer the parties to a suit in the
ordinary course and make such orders as to costs as may appear to be just under
rule 11 of order 37. In other words objection may be taken by a party on the
Decision of Hon. Mr. Justice Christopher Madrama
10
grounds that the originating summons is not appropriate in the circumstances of
the case. Secondly, the respondent/Defendant had not yet been heard on the
question of the propriety of the originating summons which matter is handled ex
parte. However, once the summons has been issued, the Defendant can only
contend that in the circumstances it was not a proper procedure for disposal of
the issues. The court assesses the pleadings of both parties to determine this
question under order 37 rules 11 of the Civil Procedure Rules. Prior to that, the
court only considers the pleadings of the Plaintiffs. For the above reasons this
court is not functus officio to consider the question of whether originating
summons is appropriate. Moreover, the principles of natural justice and fair
hearing under article 28 of the Constitution of the Republic of Uganda, means
that the Defendant cannot be denied the right to raise the question of
appropriateness of the originating summons as soon as it comes on board.
Issuance of summons cannot conclusively determine the appropriateness of
procedure without giving a chance to the opposite party to raise points of
objection to the originating summons after being served for the first time.

The question of whether the originating summons is the most appropriate

procedure in the circumstances of this case must first be examined in light of the
claims of the Plaintiffs in the originating summons itself. Whereas during the
scheduling conference the parties agreed to frame issues differently from that
contained in the originating summonses, it is proper to first set out what the
originating summons seeks the court to determine for purposes of assessing its
appropriateness after pleadings were completed. There are two questions for
determination of the court set out in the originating summons namely:

1. Whether the directive of the Commissioner Customs Uganda Revenue

Authority to unilaterally suspend operation of the transaction value
method set out under section 122 and the fourth schedule of the East
African Community Customs Management Act, Act number 5 of 2005 with
regard to used motor vehicles is lawful.

Decision of Hon. Mr. Justice Christopher Madrama

11
 2. Whether the Plaintiffs are entitled to an account and a refund of monies
illegally collected by the Defendant from the 20 th day of April, 2010
onwards, pursuant to the said directive of the Commissioner Customs
Uganda Revenue Authority.

At the scheduling learned Counsels for both parties and the court further refined
the issues to read as follows:

1. Whether the suspension of the operation of the transaction value method

by the Defendant contravened the provisions of section 122 of the East
African Community Customs Management Act 2004.

2. If the first issue is answered in favour of the Plaintiffs, whether the Plaintiffs
are entitled to reassessment in accordance with the law.

The ground of the objection of the Defendant on the first issue is that the issues
framed for determination by the court do not fall under the provisions of order 37
rules 6 of the Civil Procedure Rules which reads as follows:

“Any person claiming to be interested under a deed, will or other written

instrument may apply in chambers by originating summons for
determination of any question of construction arising under the instrument
and for a declaration of the rights of the persons interested.”

The Defendant dwelt on whether the words "or other written instrument"
includes an Act of Parliament. Learned Counsels for the Defendants went as far as
to contend that construction under rule 6 of order 37 should be restricted to
construction of matters arising under orders 37 rules 1 to 5 of the Civil Procedure
Rules. The Plaintiffs on the other hand disagreed that such a restriction would be
put on the language of order 37 rules 6 of the CPR. The submissions of Counsels
have been set out above. Before I consider the lines adopted by both Counsels in
the arguments, it is necessary to examine order 37 rule 6 on the basis of its
language.

Decision of Hon. Mr. Justice Christopher Madrama

12
An analysis of order 37 rules 6 discloses pertinent ingredients the first of which is
that there has to be a person claiming to be interested under a deed, will or other
written instrument. Secondly the originating summons should be for the
determination of a question of construction arising under the instrument in issue.
The term "instrument" encompasses all categories of instruments mentioned
under order 37 rules 6 of the CPR. Thirdly, the question of construction must
result in a declaration of the rights of the person interested in the construction of
the instrument. Fourthly, the person applying by originating summons for
determination of questions of construction must have an interest in the outcome
of the question.

Does the originating summons and the questions spelt out for determination or as
refined by the parties give rise to a question of construction arising under the
written instrument? What is a "question of construction"? The word
“construction” means “interpretation”. The word “construction” when put in
context means to “construe”. I have endeavoured to ascertain several dictionary
meanings of the word "construction". According to the Cambridge International
Dictionary of English, the word “construe” means to “understand the meaning
especially of other person’s actions and statements, in a particular way. On the
other hand the word “interpret” means to decide what the intended meaning of
something is. Interpretation also means to ascribe a meaning to. Chambers 21st
Century Dictionary revised edition defines the word "construction" as the process
of building or constructing. As far as grammar is concerned, the arrangement of
words in a particular grammatical relationship. It also means "interpretation". It
further defines the word "interpret" as to explain the meaning of or to consider or
understand or to convey one's idea of the meaning of. Interpretation is an act of
interpreting or the sense given as a result. It is the representing one's idea of the
meaning of something such as a piece of music. Last but not least a
comprehensive meaning of the word "construction" is given by Black's Law
Dictionary seventh edition at pages 308 and 309. The word construction means:

Decision of Hon. Mr. Justice Christopher Madrama

13
 "The act of building by combining or arranging parts or elements; the thing
so built. 2. It is the act or process of interpreting or explaining the sense or
intention of a writing (usually a statute, opinion, or instrument)....

“Construction, as applied to written law, is the act or process of

discovering and expounding the meaning and intention of the
authors of the law with respect to its application to a given case,
where the intention is rendered doubtful either by reason of
apparently conflicting provisions or directions, or by reason of the
fact that the given case is not explicitly provided for in the law."
Henry Campbell Black, Handbook on the Construction and
Interpretation of Laws 1 (1896)

"Some authors have attempted to introduce a distinction between

'interpretation' and 'construction.' Etymologically there is, perhaps,
such a distinction; but it has not been accepted by the profession. For
practical purposes any such distinction may be ignored, in view of the
real object of both interpretation and construction, which is merely
to ascertain the meaning and will of the lawmaking body, in order
that it may be enforced." William L Lile brief making and the use of
law books 337 (third edition 1914).

"There is no explanation of the distinction between interpretation

and construction [in the Blackstone], nor can it be inferred from the
matters dealt with under each head. The distinction is drawn in some
modern works, but it is not to be taken in this book because it lacks
an agreed basis. Some writers treat interpretation as something
which is only called for when there is a dispute about the meaning of
statutory words, while speaking of construction as a process to which
all statutes, like all other writings, are necessarily subject when read
by anyone. Others treat interpretation as something which is mainly
concerned with the meaning of statutory words, while regarding
construction as a process which mainly relates to the ascertainment

Decision of Hon. Mr. Justice Christopher Madrama

14
 of the intention of the legislature." Rupert Cross, Statutory
Interpretation 18 (1976).”

The purpose of construction is to ascertain the meaning and the will or intent of
the maker of the instrument in order that what is provided in the instrument may
be enforced. Construction then has implementation as one of the objectives.
Some distinction was made between interpretation and construction. As far as
can be discerned from the passage quoted from Black's Law Dictionary (supra),
interpretation is called for where there is a dispute about the meaning.
Interpretation relates to the meaning of the words used while construction
relates to ascertainment of the intention of the maker or author of the
instrument. It follows that the purpose of construing a deed, will or other written
instrument is to ascertain the meaning for purposes of implementation. Finally,
there can be no construction without interpretation of words. The distinction
between construction and interpretation may not add any value to use of the
words "any question of construction arising under the instrument". The
inescapable meaning of the above passage is that the person interested in any
question of construction would be interested in ascertaining the meaning and
intention of the maker or author of the instrument with the ultimate result of
establishing their interests under that instrument. Learned Counsel for the
Defendant further referred me to form 13 which is the general form for
originating summons under order 37 rules 8 of the Civil Procedure Rules. The
form provides

"Whereas the above named AB, who claims to be interested in the above
named matter, (the applicant is supposed to state the nature and
particulars of the claim) has applied for the determination of the following
questions…"

The nature and particulars of the claim would show the interest of the Plaintiff in
the questions to be construed under order 37 rules 6 of the Civil Procedure Rules.
It is quite easy to understand what is meant by “construction” of a will because
one is dealing with a private document whose meaning or intent needs to be
established. Often, the executor or beneficiaries would want to ascertain the
Decision of Hon. Mr. Justice Christopher Madrama
15
intention of the testator. It is also easy to appreciate what is meant by
construction of a deed. Finally, the words "any question of construction arising
under the instrument" mean that there is a controversy for determination by the
court relating to the construction of the instrument. The word "instrument" is
used to mean, a "will", "a deed" and "other written instrument" as specified
under order 37 rules 6 of the Civil Procedure Rules. A controversy by necessary
implication admits for various interpretations and which the court is called upon
to decide or determine. A question or questions for interpretation or construction
must therefore involve a dispute or controversy as to the meaning or
interpretation of a provision of or the whole of the "will", "deed" or "other
written instrument" in which the person who moved the court by originating
summons has an interest. Last but not least the word 'interpretation' has been
defined by Black's Law Dictionary to mean:

"The process of determining what something, especially the law or a legal

document, means; the ascertainment of meaning.

"Interpretation, as applied to written law, is the act or process of

discovering and expanding the intended signification of the language
used, that is, the meaning which the authors of the law designed it to
convey to others." Henry Campbell Black, Handbook on the
Construction and Interpretation of Laws 1 (1896).

"There is more to interpretation in general than the discovery of the

meaning attached by the author to his words. Even if, in a particular
case, the meaning is discoverable with a high degree of certitude
from external sources, the question whether it has been adequately
expressed remains." Rupert Cross, Statutory Interpretation 149
(1976).

After considering what a question of construction is, it is my conclusion without

answering the question of whether the terms “other instrument” used under
order 37 rule 6 includes statutes, that the questions specified by the parties are
not questions for construction of an instrument as envisaged by order 37 rule 6 of

Decision of Hon. Mr. Justice Christopher Madrama

16
the Civil Procedure Rules. On the contrary, the true intention and outcome of the
framed questions for determination is whether the acts of the Commissioner are
ultra vires the Act namely the East African Community Customs Management Act.
Specifically the court is supposed to determine the question whether the directive
of the Commissioner Customs Uganda Revenue Authority to suspend the
operation of the transaction value method set out under section 122 and the
fourth schedule of the East African Customs Management Act is lawful. Whether
or not a matter is lawful requires the testing of the action against the law. It is not
a question of construction i.e. of section 122 of the East African Community
Customs Management Act. It is a question of whether the acts of the
Commissioner are ultra vires the Act. Even if this by necessary implication involves
construction or interpretation, it concerns enforcement of the Act and not
questions of construction. A question for interpretation would presuppose that
the interested persons in the determination of the question would be seeking
from the court an interpretation that would guide them in the matter in which
they are interested. It will not be a suit to challenge the acts of an authority that is
asserted to be contrary to law. The affidavit in support of the originating
summons sworn by Twesigye Osborn paragraphs 4 to 10 is reproduced. TheY
clearly assert that the acts of the Commissioner are illegal and contrary to law.
They raise the question of whether the acts are lawful. It is necessary to set out
the said paragraphs of the affidavit in support which states as follows:

3. … "
4. That on the 13th day of July, 2010 the Plaintiff Company imported into the
country a used motor vehicle from Japan and entered the same for customs
purposes…

5. That the Plaintiff companies said declared value was unlawfully rejected by
the respondents officials and the Plaintiff company was appraised using
alternative methods of valuation which where inapplicable to this
transaction and as a result of which it paid customs duty computed on the
value of US dollars 11,200… In taxes.

Decision of Hon. Mr. Justice Christopher Madrama

17
 6. That upon inquiry the Plaintiff Company was informed by the respondent’s
officials that the operation of the transaction value method in respect of
used motor vehicles has been suspended by the Commissioner Customs
Uganda Revenue Authority on 19th of April 2010 as copy of the said
directive attached hereto as annexure "G" can refer.

7. That I am further advised by my lawyers whose advice I verily believe to be

true that the Commissioner Customs has no authority to suspend the
operation of an Act of Parliament and that therefore the purported
suspension is unlawful.

8. That as a result of the said suspension there is uncertainty and dispute

between motor vehicle importers and Uganda Revenue Authority as
regards the proper valuation methods applicable to used motor vehicle
importers thus this suit.

9. That this matter is clear and straightforward as it only requires an

interpretation of the provisions of the East African Community Customs
Management Act, Act number 5 of 2005 and will not require adducing
other evidence outside this affidavit.

10.That I depose hereto in support of the Originating Summons to determine

the proper construction of the East African Community Customs
Management Act, Act number 5 of 2005 for the purpose of determining the
following questions;
a. Whether the directive of the Commissioner Customs Uganda
Revenue Authority to unilaterally suspend the operation of the
transaction value method set out under section 122 and the fourth
schedule of the East African Community Customs Management Act,
Act number 5 of 2005 with regard to used motor vehicles is lawful.

Decision of Hon. Mr. Justice Christopher Madrama

18
 b. Whether the Plaintiffs are entitled to an account and a refund of
monies illegally collected by the Defendant from the 20th day of April
2010 onwards, pursuant to the said directive of the Commissioner
Customs Uganda Revenue Authority."

It is clear from the above that the Plaintiff asserts that the acts of the
Commissioner are illegal and in contravention of the East African Community
Customs Management Act 2004. Secondly the question of whether the
suspension of the transaction method set out under section 122 and the fourth
schedule of the East African Community Customs Management Act 2004 is not a
question of construction of the Act. No controversy is raised as to the meaning or
construction of sections 122 and the fourth schedule of the East African
Community Customs Management Act 2004. There is no question for
construction of sections 122 and the fourth schedule of the East African
Community Customs Management Act 2004. In other words, there is no doubt
about the meaning of the provisions quoted above. What is sought is the
application of the said provisions to the acts of the Commissioner to determine
whether those acts are in contravention of the said provisions. Lastly a question
of construction has to be stated in the originating summons itself and cannot be
implied. The originating summons must set out the question of construction of
the instrument. It must raise a controversy that is for determination of the court
as to the proper construction or interpretation of a provision of the whole or part
of the instrument.

The Supreme Court in the case of Ismail Serugo versus Kampala City Council and
Attorney General Supreme Court constitutional appeal number 2 of 1998 has
made a distinction between enforcement and interpretation in the context of
article 137 and 50 of the Constitution of the Republic of Uganda. As far as the
Constitution is concerned article 50 provides that a person whose fundamental
rights and freedoms are infringed or threatened may apply to a court of
competent jurisdiction for enforcement of his or her fundamental rights or
freedoms. The judgment of Mulenga JSC is that where the infringement or
threatened infringement does not call for interpretation of the Constitution, the

Decision of Hon. Mr. Justice Christopher Madrama

19
concerned party may apply to any other competent court other than the
Constitutional Court for enforcement of the rights. On the other hand article 137
of the Constitution confers jurisdiction on the Constitutional Court to hear
questions as to the interpretation of the Constitution. A clear distinction emerges
between interpretation and enforcement. Of course enforcement includes a
process of interpretation but does not require determination of questions as to
interpretation of the Constitution. The court noted that it is only the
Constitutional Court which has jurisdiction to determine questions as to
interpretation. In his judgment, Wambuzi CJ also concurred and stated:

"In my view for the Constitutional Court to have jurisdiction the petition
must show, on the face of it, that interpretation of a provision of the
Constitution is required. It is not enough to allege merely that a
constitutional provision has been violated. If therefore any rights have been
violated as claimed, these are enforceable under article 50 of the
Constitution by another competent court." (Emphasis added)

He further noted that one cannot rule out malicious prosecution, wrongful
detention or false imprisonment, matters dealt with under specific rules. Such
matters can be enforced by a competent court and should a question of
interpretation of a provision of the constitution arise, that question can always be
referred to the Constitutional Court. What a question for interpretation is in the
context of article 137 of the constitution of the Republic of Uganda was
considered by the Court of Appeal in Constitutional Reference No. 07 Of 2006
Emmanuel Nagoli Vs Attorney General and Manafwa Dealers Ltd. In that case
the high Court per Muhanguzi, J referred questions for interpretation by the
Constitutional Court pending hearing. The Constitutional Court held:

“In this court’s view, the three aforesaid issues are not merely alleging
contravention of the constitution, but do call for interpretation of the
various articles of the constitution cited therein. All three issues do call for
determination of whether the Hon. Minister’s decision or conduct
contravened articles 20, 21, 42 and 44 of the constitution. In order to do so

Decision of Hon. Mr. Justice Christopher Madrama

20
 court must determine the meaning of the specified provisions of the
constitution allegedly contravened ...” (emphasis added)

In conclusion, questions of construction under order 37 rules 6 of the Civil

Procedure Rules only arise when there is a controversy as to the meaning, scope,
purpose, intention, ambit or application of the instrument or any part thereof.
The purpose of construction is to have the correct meaning, purpose, scope,
intention, ambit etc applied in the interest of persons having an interest in the
question of construction.

It is possible to file an action for determination of points of law and under order 6
rule 28 and 29 such a point of law may be determined preliminarily before claims
for consequential relief. It is also possible to file an action for declaration that the
acts of the Commissioner are a nullity. It is further also possible to apply for
judicial review on the ground that the acts of the executive or authorised officer
under the Act are ultra vires the Act. An ultra vires act is an act not authorised by
the statute and may be challenged by judicial review of administrative action. An
application for an order of mandamus, prohibition or certiorari or injunction may
be brought by way of an application for judicial review. In other words, there is a
remedy for the challenge of the acts of the Commissioner of customs. The remedy
of judicial review under the Judicature (Judicial Review) Rules, 2009 however, are
time bound. Unless time is extended, the time for applying for judicial review is
within three months from the date when the grounds of the application first
arose. (See rule 5 of the Judicature (Judicial Review) Rules, 2009).

Secondly it was strongly submitted for the Defendant that the words "other
written instrument" in order 37 rules 6 do not include an Act of Parliament.
Learned Counsel for the Defendants maintained that the words "other written
instrument" include Acts of Parliament. My opinion on this question was
expressed in the case of Pearl Impex versus Attorney General and Kampala Capital
City Authority and I have no reasons neither have I been addressed on any
grounds to depart from it. In that case I considered whether the words "other
written instrument" may include Acts of Parliament or Statutory Instruments. This
is what I said:
Decision of Hon. Mr. Justice Christopher Madrama
21
 “My readings of rule 6 of order 37 of the Civil Procedure Rules casts doubt
in my mind as to whether rule 6 can be invoked purely for the
interpretation of an Act of Parliament without showing the interest the
applicant has in the “written instrument”. Firstly those cases never
interpreted the equivalent of order 37 rules 6 of the Civil Procedure Rules.
They should therefore be taken to refer to cases arising within the other
rules invoked which may involve a construction of a statute. I.e. the
construction of a statute may arise when a vendor or purchaser takes out
originating summons under order 37 rule 3 “for the determination of any
question which may arise in respect of any requisitions or objections, or any
claim for compensation; or any other question arising out of or connected
with the contract of sale, not being a question affecting the existence or
validity of the contract.” Such cases may involve the construction of a
statute or a pure point of law. However rule 6 of order 37 should be
considered on its merits….

Firstly, there has to be a person claiming to be interested under a deed, will

or written instrument. The operating words as far as this provision is
concerned are “written instrument”. The person claiming must claim an
interest under the written instrument. The term “written instrument” is
construed ejusdem generis as being of the nature of things such as deeds or
wills, powers of attorney or other written instruments. It is hard to conceive
whether legislature intended it to be applied to an application to interpret
a law and have not used the terms Act of Parliament or provision of any
law”. The words written instrument are not defined by the Civil Procedure
Act, neither is it defined by the Interpretation Act cap 3. On the other hand
the words “Act” or “Act of Parliament” is specifically defined under section
2 (a) to mean with reference to legislation the law made by Parliament.
Secondly the word “statutory instrument” is defined under section 14 of
the Act to mean powers conferred by an act of Parliament and exercised by
the President, a Minister or any other authority to make proclamations,
rules, regulations, by laws, statutory orders or statutory instruments, any
document by which that power is exercised is to be known as a statutory
Decision of Hon. Mr. Justice Christopher Madrama
22
 instrument. Why did legislature not use the words “Act of Parliament” or
“statutory instrument” or provision of laws?

Secondly, rule 6 of order 37 envisages a tangible interest under an

instrument such as a power of attorney. It is therefore inconceivable to
read under the words “any other written instrument” an Act of Parliament
or Statutory Instrument. There must be a kind of right or interest conferred
by the document or written instrument giving a standing to the applicant to
invoke order 37 rule 6. …

… Notwithstanding my finding that order 37 rule 6 does not directly cater

for direct applications for the interpretation of legislation (An Act of
Parliament of Statutory Instrument)…”

My conclusion in that case was that there would be no prejudice to the Defendant
if the matter was dealt with by Originating Summons which was convenient to
dispose of the case where there was no dispute of fact. That conclusion was not
based on my interpretation but on the convenience of the parties. In this case,
there has been an objection in which learned Counsel for the Defendant relied on
the interpretation I gave to order 37 rule 6 and particularly the words “or any
other instrument”. I cannot detract from my earlier ruling but would lend
additional support to it. The word "instrument" further defined by Halsbury’s
Laws of England 4th Ed volume 13 paragraphs 139 where it is stated:

“The word ‘instrument’ as applied to writing may have a still wider scope,
and may include documents which affect the pecuniary position of parties
although they do not create rights or liabilities recognised in law; but
usually it applies to a document under which some right or liability,
whether legal or equitable, exists.”

The words "any person claiming to be interested under a deed, will or other
written instrument" import within it some right or liability, whether legal or
equitable. Locus standi is given by the tangible interest claimed under the deed,
will or other written instrument. As far as interpretation within the context of
order 37 rule 6 of the terms "or other written instrument" is concerned, I further
Decision of Hon. Mr. Justice Christopher Madrama
23
agree with learned Counsels for the Defendants and confirm my earlier ruling on
the matter in the case of Pearl Impex Uganda Ltd versus Attorney General and
Kampala City Council (supra). According to Halsbury's laws of England fourth
edition volume 44 (1) paragraph 1491 an uncertain meaning is recognised by its
associates. That means that to establish the meaning of the word "or other
instrument", one has to look at its associate words which are "will" and "a deed".
Those associates are private documents. An Act of Parliament or a statutory
instrument would not fit in. As far as the tenets of interpretation of statutes in
context is concerned, contextual interpretation was considered in the case of
Attorney-General v HRH Prince Ernest Augustus of Hanover [1957] 1 All ER 49 at
page 53 Viscount Simonds of the House of Lords said:

“For words, and particularly general words, cannot be read in isolation;

their colour and content are derived from their context. So it is that I
conceive it to be my right and duty to examine every word of a statute in its
context, and I use context in its widest sense which I have already indicated
as including not only other enacting provisions of the same statute, but its
preamble, the existing state of the law, other statutes in pari materia, and
the mischief which I can, by those and other legitimate means, discern that
the statute was intended to remedy.”

The House of Lords took into account the relevant preamble of the Act in
interpreting its provisions. Similarly in the case of Bourne (Inspector of Taxes) v
Norwich Crematorium, Ltd [1967] 2 All ER 576 at page 578 STAMP J of Chancery
division held that:

English words derive colour from those which surround them. Sentences
are not mere collections of words to be taken out of the sentence, defined
separately by reference to the dictionary or decided cases, and then put
back again into the sentence with the meaning which you have assigned to
them as separate words, so as to give the sentence or phrase a meaning
which as a sentence or phrase it cannot bear without distortion of the
English language.

Decision of Hon. Mr. Justice Christopher Madrama

24
The head note of order 37 rules 6 of the Civil Procedure Rules clearly provides
that it deals with "Summons by persons interested in deeds or wills." A Statute or
an Act of Parliament if it was intended to be included in the provision as an
instrument ought to have been mentioned in the head note or side note of the
provision. It would be strange indeed if the rules committee provided the heading
as "a will or deed" and left out an Act of Parliament or Statutory Instrument. The
words "or any other instrument" derives its colour or meaning from the words
"will" or "deed". It therefore follows that it cannot refer to an act of Parliament or
a Statutory Instrument. My holding in the case of Pearl Impex Uganda Ltd versus
Attorney General and Kampala City Council (supra) was therefore correct.

It is therefore my conclusion that the questions raised by the Plaintiffs are not
questions of construction of any other instrument. Secondly, I have no doubt that
the words "or other instrument" under order 37 rule 6 do not include an Act of
Parliament. The words "or other instrument" has to be construed ejusdem generis
as referring to things such as wills, deeds and other such private documents. It
does not refer to a Statutory Instrument or an Act of Parliament.

Where there is no question of construction of an instrument, the originating

summons in this suit is inappropriate for handling the questions framed therein.
In the premises, the Plaintiff is at liberty to file a suit for declarations of the
legality or illegality of any act of the Commissioner of customs and for
consequential relief (i.e. under order 2 rule 9 of the Civil Procedure Rules).

As far as remedies are concerned, the intended action of the Plaintiff is of public
interest and may affect numerous persons in Uganda. The objection of the
Defendants relates only to the appropriateness of the procedure by originating
summons and does not deal with the substance of the suit. In the premises, I do
not agree with learned Counsels for the Defendant that the court should not
apply the provisions of order 37 rules 11 of the Civil Procedure Rules. The court
will not hear the Plaintiffs under the procedure of originating summons. The
originating summons is struck out with no order as to costs.

Decision of Hon. Mr. Justice Christopher Madrama

25
Ruling delivered in open court the 18th of May 2012.

Hon. Mr. Justice Christopher Madrama

Ruling delivered in the presence of:

George Okello counsel for the defendant

Defendants representative Jane Ashaba Kanya in court

Plaintiffs representative Osborne Twesigye in court

Siraje Ali and Terence Kavuma for the Plaintiffs.

Hon. Mr. Justice Christopher Madrama

18th May 2012

Decision of Hon. Mr. Justice Christopher Madrama

26