In Council of Civil Service Unions v Minister for the Civil Service (supra) the court was of the view that the Minister had shown that her decision had in fact been based on considerations of national security that outweighed the applicant’s legitimate expectation of prior consultation. In re Preston (supra) the court held: “that a taxpayer cannot complain of unfairness, merely because the commissioners decided to perform their statutory duties under section 460 to make an assessment and to enforce a liability to tax. The Court cannot in the absence of exceptional circumstances decide to be unfair that which the Commissioners by taking action against have determined to be fair.” In order to apply the principle of legitimate expectation, the Tribunal has to determine whether there was unfairness in the decision of the respondent, and whether there are exceptional circumstances.   The respondent merely enforcing its statutory duty to impose a liability to pay tax on the applicants may not be unfair especially where the liability is set by statute.

There are a number of court decisions as to the effect of ultra vires acts on the application of the principle of legitimate expectation. In Al Fayed and others v Advocate General for Scotland [2004] S.T.C 1703, the court noted: “…under our domestic law a legitimate expectation can only arise on the basis of a lawful promise, representation or practice. There can be no legitimate expectation that a public body will continue to implement an agreement it has no power to do so. In our opinion, the petitioners could not have had a legitimate expectation that the respondents would have adopted a course of action which was outwith their powers, and continued to maintain a contract which was unlawful. While the petitioners may well have had an expectation, it was not, in the particular circumstances of this case and according to our common law, a legitimate expectation. Accordingly, we consider that the petitioner’s case based on a breach of legitimate expectation must fail.”

In R v Inland Revenue Commissioners ex parte MFK Underwriting Agents Limited [1989] S.T.C. 873 at 892, the court stated that: “Every ordinary sophisticated taxpayer knows that the Revenue is a tax-collecting agency, not a tax-imposing authority. The taxpayers’ only legitimate expectation is, prima facie that he will be taxed according to statute, not concession or a wrong view of the law. … ‘One should be taxed by law, and not be untaxed by concession’.” The same court at p. 895 stated that: “It was argued for the applicants in the present case that unfairness amounting to an abuse of power could arise in any circumstances in which the Revenue had created a legitimate expectation in the mind of the taxpayer about how his affairs would be approached if, after he acted on that expectation, the Revenue resiled from the undertakings it had previously given. Such conduct would be unfair and an abuse of power and subject to estoppel within the principles laid down in Preston. ‘Legitimate expectation’ has been considered in a number of authorities. … The correct approach to ‘legitimate expectation’ in any particular field of public law depends on the relevant legislation. In R v A-G, ex p Imperial Chemical Industries plc (1986) 60 TC 1, the legitimate expectation of the taxpayer was held to be payment of the taxes actually due.

No legitimate expectation could arise from an ultra vires relaxation of the relevant statute by the body responsible for enforcing it. There is in addition the clearest possible authority that Revenue may not ‘dispense’ with relevant statutory provisions… … I accept without hesitation that (a) the Revenue has no dispensing power, and (b) no question of abuse of power can arise merely because the Revenue is performing its duty to collect taxes when they are properly due.” In Republic v National Environment Management Authority ex-parte Sound Equipment Limited [2010] eKLR, the court stated that (p. 8-9): “A legitimate expectation cannot arise where the respondent had acted contrary to, i.e. the law… The law can not allow an individual to retain a benefit which is the subject of the legitimate expectation, if creating or maintaining the benefit is beyond the power of the public body or officer.”

In Republic v The Disciplinary Committee & another Ex-parte Prof. Paul Musili Wambua [2013] eKLR, the court stated: “I would add that for an applicant to cite legitimate expectation, the promise made must be within the jurisdiction of the party making it. An illegal promise cannot be relied upon to form a claim for legitimate expectation.” In Regina v Secretary of State for Education and Employment, Ex parte Begbie 2000 1 W.L.R. 1115, the court in dismissing the appeal held that: “the courts would not give effect to a legitimate expectation if it would require a public authority to act contrary to the terms of a statute.” The above authorities are self-explanatory and do not need any further comments from the Tribunal. The Tribunal has had the opportunity to read the above authorities. It notes that the said authorities are from court decisions outside Uganda. The applicants are apprehensive of the use of authorities from abroad. The said decisions are mostly persuasive.

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