Wakilii

ROKO Construction Ltd v Mohammed Mohammed Hamid (Civil Appeal No. 0051 0f 2011)

Court of Appeal · [2015] UGCA 65 · 2015 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court ruling setting aside an arbitral award
Decision
Appeal allowed; High Court decision quashed and arbitral award reinstated

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal held that although the respondent had not formally signed the main building contract, his part performance—depositing contract money and allowing construction to proceed—rendered the contract, including its arbitration clause, binding. The tribunal therefore had jurisdiction. The respondent's challenge to the arbitrator's jurisdiction was not made within 30 days under section 16(6), and his application to set aside the award was filed outside the one-month limit under section 34(3), rendering it time barred and incompetent. The appeal was competent under section 66 of the Civil Procedure Act. The Court quashed the High Court decision and reinstated the arbitral award with costs to the appellant.

Facts

The appellant contractor and respondent entered into a construction contract on 15.07.2005 for a residential house in Kololo, Kampala at an agreed sum of shs.1,100,000,000 excluding VAT. The respondent signed the bill of quantities but disputed having signed the main building agreement, which contained an arbitration clause. The respondent paid part of the contract sum and the appellant commenced work. After repeated payment defaults, the appellant terminated the contract on 16.07.2007 and referred the dispute to arbitration. CADER compulsorily appointed a retired Supreme Court Justice as arbitrator. The arbitrator awarded the appellant shs.584,430,571 for work done plus shs.100,000,000 general damages, with interest. The respondent applied to the High Court to set aside the award, contending no concluded arbitration agreement existed. The High Court set aside the award. The appellant appealed. The matter had earlier been remitted by the Supreme Court owing to an improperly constituted Court of Appeal coram, and was reheard afresh.

Issues

  1. Whether the building contract containing the arbitration clause was validly executed and binding on the parties despite the absence of formal signature.
  2. Whether the application to set aside the arbitral award was time barred under the Arbitration and Conciliation Act.
  3. Whether the respondent waived its right to challenge the tribunal's jurisdiction by failing to apply to court within 30 days under section 16(6).
  4. Whether the appeal was properly before the Court of Appeal and competent.

Orders

  • The decision of the High Court is quashed.
  • The Arbitral award in CAD/ARB/No.11 of 2007 delivered on 30/06/2009 is reinstated.
  • The appeal succeeds with costs to the appellant in the Court of Appeal, the High Court and before the Arbitrator.

Key headnotes

Contract Law — Formation — Part Performance Supplying Want of Formal Execution
A contract that has not been formally executed by a party may nonetheless bind that party where both parties have acted upon the draft and treated it as binding, the doctrine of part performance supplying the want of formal signature.
Arbitration & ADR — Jurisdiction — Arbitration Clause in Unsigned but Binding Contract
Where a contract containing an arbitration clause is binding on the parties through part performance, the arbitral tribunal has jurisdiction notwithstanding the absence of a separately signed arbitration agreement.
Arbitration & ADR — Challenge to Jurisdiction — 30-Day Limit under Section 16(6)
A party aggrieved by an arbitral tribunal's preliminary ruling that it has jurisdiction must apply to court within 30 days of receiving notice of the ruling under section 16(6) of the Arbitration and Conciliation Act, failing which the right to challenge jurisdiction is lost.
Arbitration & ADR — Setting Aside Award — One-Month Limitation under Section 34(3)
An application to set aside an arbitral award must be made within one month from the date the applicant received the award; an application filed out of time without an extension is time barred and incompetent under section 34(3) of the Arbitration and Conciliation Act.
Civil Procedure — Right of Appeal — Orders under Statutes Other than the Civil Procedure Act
An order made by the High Court on a matter brought before it under a statute other than the Civil Procedure Act is appealable as of right to the Court of Appeal under section 66 of the Civil Procedure Act, unless the appeal is specifically excluded by law.

Legislation cited (9)

  • Arbitration and Conciliation Act (Cap.4) s.11(4)(c)
  • Arbitration and Conciliation Act (Cap.4) s.16(6)
  • Arbitration and Conciliation Act (Cap.4) s.16(7)
  • Arbitration and Conciliation Act (Cap.4) s.16(8)
  • Arbitration and Conciliation Act (Cap.4) s.34(3)
  • Constitution of Uganda Article 134(2)
  • Judicature Act s.10
  • Judicature Act s.36
  • Civil Procedure Act s.66

Cases cited (6)

  • Fr. Narsensio Begumisa and Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
  • Credit Finance Corp. Ltd. (Supra)
  • Denis Bireije v Attorney General (Civil Application No. 31 of 2005)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • National Social Security Fund and Another v Alcon International Ltd (Civil Appeal No. 15 of 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.