The respondent submitted that the applicants’ contention that the Minister was authorised to grant an income tax exemption on the basis of Article 274 of the Constitution was unfounded. Article 274 does not provide for the preservation of existing powers. It only provides that existing powers must be modified to bring them in conformity with the Constitution. The respondent cited the authorities of Hon. Sam Kuteesa and others v Attorney General Constitutional Petition No. 46 of 2011 and Attorney General v Osotraco Ltd Civil Appeal 32 of 2002, to support its argument. The respondent submitted that the applicants do not explain the basis of their assertion that “pre-written constitution powers include a power to grant exemption from tax.”

The respondent asserted that Uganda law embraces the law that there can be no estoppel against a statute. If a contractual agreement is ultra vires the agreement is null, void and unenforceable.  The respondent cited the authorities of Major General David Tinyefuza v Attorney General Constitutional Petition No. 1 of 1996, KM Enterprises Ltd and others v Uganda Revenue Authority [2008] UGCommC 21, Heritage Oil & Gas Limited v URA Civil Appeal 14 of 2011, Pride Exporters Ltd v URA HCCS 503 of 2006, URA v Golden Leaves & Resorts Ltd and Apollo Hotel Corporation Ltd. MA 0783/ 2007, URA v Bwama Exporters Limited Civil Appeal 6 of 2003, Kampala Nissan Uganda Ltd. v URA Civil Appeal 7 of 2009.   The respondent submitted that the applicants’ arguments that the doctrine of estoppel should be restricted by that of legitimate expectation should not be taken seriously.

The notion that the terms of a statute may be waived by an agreement that gives rise to a legitimate expectation is contrary to the rule of estoppel against a statute. The respondent argued that the applicants’ citation of the case of Kato v Njoki (supra) was frivolous as the application of the doctrine of legitimate expectation was remote.   The respondent submitted that the doctrine of legitimate expectation cannot apply to ultra vires acts. The respondent cited the case of Re: Watson’s Application for Leave to Appeal for Judicial Review (also known as Dollingstown Football Club v The Irish Football Association) [2011] NIQB 66 where the court stated that: “It is trite law that an expectation grounded upon an ultra vires representation cannot be legitimate.”  In Rowland v Environment Agency [2005] Ch.1 the Court of Appeal stated that “English domestic law does not allow the individual to retain the benefit which is the subject of the legitimate expectation, however strong, if creating or maintaining that benefit is beyond the power of that public body.” The respondent also cited the authority of Al Fayed and others v Advocate General for Scotland 2004 S.T.C 1703 where the court affirmed that an ultra vires agreement cannot give rise to a legitimate expectation.

Other cases cited by the respondent included Wilkinson v Inland Revenue [2005] 1 W.l.R. 1718, R v North and East Devon Health Authority ex parte Coughlan [2001] Q.B, 213, R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1989] S.T.C 873, R (on the application of Corkteck Ltd.) v Revenue and Customs Commissioners [2009] S.T.C. 681, R v East Sussex CC ex parte Reptrotech [2002] 4 All E.R.58, Republic and others v Attorney General [2006] 2 EA 265, Republic v Minister for Local Government & Another, ex parte Paul Mugethi Joel [2008] eKLR 6, Republic v National Environment Management Authority ex-parte Sound Equipment Ltd [2010] eKLR 8, Republic v The Disciplinary Committee & another Ex-parte Prof. Paul Musii Wambua [2013] eKLr 5. The respondent argued that most of the above cases were cited by the applicants who distorted their interpretations to suit their case.

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