Justice Musa Ssekaana of the High Court of Kampala, this week dismissed a Civil Suit Number 04 of 2010 which was filed by Fuelex Uganda Limited against the Commissioner-General of the Uganda Revenue Authority (URA) ten years ago.
In 2010, Fuelex (U) Ltd (the plaintiff) filed this suit demanding for recovery of special and general damages for the loss of business, trading goods, unlawful confiscation of its property, unlawful seizure of its goods and tools of trade, loss of profits and costs of suits, which was inflicted on them when URA forcefully took over the fuel station at Nalukolongo, Rubaga Division in Kampala on December 21, 2009.
According to the plaintiff, at the time of what they call unlawful seizure, the fuel station also had a restaurant worth Shs 18m and a grocery worth Shs 36m, sales, and strongroom had cash Shs 154.4m and Kenya shillings 500,000, station cash sales Shs 9.8m, two trucks with fuel 30,000 liters each and four underground tanks with fuel which amount to 134,700 liters.
In his judgment, Justice Musa based on three major issues to make his final judgment in writing and these are;
“Whether the taking over and possession/occupation of the plaintiff’s fuel station by the defendant was lawful, whether the plaintiff suffer loss/damage and the available remedies available to the two parties,”
Both submissions were presented in writing by the representatives of both parties, Mr. Oscar Kamusiime represented Fuelex (U) ltd while URA was represented by Mr. George Okello.
Mr Kamusiime in the evidence that was provided by one witness claimed that the defendant using the Uganda Police Force and a section of local councilors involved the use of unwarranted excessive force while taking over the fuel station.
“They exceeded the mandate of a search warrant, lacked lawful justification for continued occupation of the plaintiff’s premises and the continued occupation of the station violated the plaintiff constitutional right,” Kamusiime said in his submission.
He cited Article 27(I) of the constitution which states that:
No person shall be subjected to-
(a) Unlawful search of the person, home or other property of that person; or
(b) Unlawful entry by others of the premises of that person.
In defense, Mr. Okello said that the search helped in discovering several documents that helped in the case, including finding out how the station was evading taxes,
The resulted into several useful discoveries for example documents, false registration plates, which all were useful in informing the Customs Audit Report (CAR),” he said
Justice Musa in his judgment said that the plaintiff’s claim was pegged on the unlawful actions of the defendant, however, the court found out that the actions of the defendant were lawful since they were conducted in accordance with the law.
Did the plaintiff suffer any loss/damage?
In addition to using excessive force, Mr. Kamusiime claims that the plaintiff suffered a loss and damage amounting millions of shillings and these were,
Restaurant worth Shs 18m and a grocery worth Shs 36m, sales, and strongroom had cash Shs 154.4m and Kenya shillings 500,000, station cash sales Shs 9.8m, two trucks with fuel 30,000 liters each and four underground tanks with fuel which amount to 134,700 liters.
“Underground tank one had 3200 liters of PMS fuel, tank 2 had 39500 liters of PMS fuel, tank 3 had 3200 liters of AGO liters and tank 4 had 31200 liters of BIK fuel,” he said.
In defense, Mr. Okello said that’ “Isuzu truck registration number UAB 971K which had fuel at first was found with ‘no fuel at’. Mercedes Benz truck registration number UAE 605N which also had 30,000 liters was found with ‘no fuel at all’
Justice Musa in his judgment said that;
“Although the plaintiff alleges that the money was taken or stolen in hard cash from the safe which was broken by wielding it open, apart from talking about it, no other corroborating is led to support it. The defendant led evidence to show that the strongroom and safe were opened and found intact at the time of verification under the supervision of the court,” he said.
“Any party is expected and bound to prove the case as alleged by him and is covered in the issues framed. He will not be allowed to succeed on the case not set up by him and be allowed at trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by the way of pleading,” he added.
Justice Musa concluded that the plaintiff never amended its plaint to show that the money was stolen or taken by the defendant’s officers and it remained a mere statement and allegation of loss/damage with no specific particulars of how it was lost.
“For example the trading stock at the grocery and restaurant. What happened to it? Was it stolen?” he asked adding that “In sum, the plaintiff’s claim fails and the suit is dismissed with costs.”