Simbamanyo Estates Ltd v Seyant Brothers & Company (U) Ltd (Civil Appeal No 92 of 2004)

Court of Appeal · [2018] UGCA 266 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from a High Court ruling dismissing an application to set aside part of an arbitral award

Decision

Appeal dismissed; arbitral award and High Court ruling upheld

The full judgment

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Holding

The Court of Appeal dismissed the appeal, upholding the High Court's refusal to set aside an arbitral award. The court reaffirmed that a court hearing an application to set aside an arbitral award under section 34 of the Arbitration and Conciliation Act does not sit in appeal over the arbitrator's findings and cannot re-evaluate or re-appraise the evidence. The arbitrator had decided the dispute in accordance with the building contract and acted within the terms of reference. The appellant failed to identify specific instances of bias or partiality, or any misapplication of the Act. The arbitral award and the High Court ruling were upheld, with costs awarded to the respondent.

Facts

In 2001, the appellant Simbamanyo Estates Ltd and the respondent Seyant Brothers & Company (U) Ltd entered into a standard building contract for completion of construction works at Simbamanyo House on Plot 2 Lumumba Avenue. A dispute arose concerning delay in paying the first interim certificate and failure to certify a second interim certificate. The respondent sued in the Commercial Division of the High Court. By a consent order, the matter was referred to retired Chief Justice Samuel Wako Wambuzi for arbitration. On 12 August 2002, the arbitrator delivered an award requiring the appellant to pay sums under the first and second interim certificates, interest, retention monies and costs, while ordering the respondent to pay the appellant for defective work. Dissatisfied with the parts of the award favouring the respondent, the appellant applied to the High Court to set them aside, alleging the award was not made in accordance with the Arbitration and Conciliation Act, evident partiality, and that the award exceeded the scope of reference. The High Court dismissed the application with costs on 23 August 2004, prompting this appeal.

Issues

Whether the trial Judge erred in finding that the arbitrator decided the dispute in accordance with the contract between the parties.
Whether the award dealt with a dispute beyond the scope of the reference to arbitration.
Whether the arbitrator ignored or misapplied the Arbitration and Conciliation Act or the Contract Act.
Whether the trial Judge erred in finding the arbitrator applied the Act strictly by refusing to rely on a letter not incorporated into the contract.
Whether the trial Judge erred in finding there was no evidence of bias or impartiality on the part of the arbitrator.
Whether the trial Judge erred in holding that the application did not disclose tenable grounds for setting aside the award and in dismissing it with costs.
Whether the trial Judge generally misdirected herself on the law thereby reaching a wrong decision.

Orders

Appeal dismissed.
The Ruling of the High Court is upheld.
The award of the arbitrator is upheld.
The respondent is awarded the costs of the dismissed appeal as well as those of the High Court.

Key headnotes

Arbitration — Setting Aside Award — Limited Court Jurisdiction Not Sitting in Appeal

A court hearing an application to set aside an arbitral award under section 34 of the Arbitration and Conciliation Act has limited jurisdiction and does not sit in appeal; it cannot examine the award on its merits or re-evaluate the evidence considered by the arbitrator.

Arbitration — Finality of Findings — Non-Interference with Arbitrator's Appreciation of Evidence

Under section 32 of the Arbitration and Conciliation Act, findings recorded by an arbitrator based on appreciation of evidence are not amenable to interference by the courts, which cannot re-examine or re-appraise the evidence considered by the arbitrator.

Arbitration — Scope of Reference — Award Within Terms of Reference

An arbitral award may be set aside under section 34(2)(a)(iv) where it deals with a dispute not contemplated by or not falling within the terms of reference; an award confined to the building contract and matters such as monies due and workmanship is within the proper mandate of the arbitrator.

Arbitration — Evident Partiality — Burden to Identify Specific Instances of Bias

To set aside an award for evident partiality under section 34(2)(a)(vi) of the Arbitration and Conciliation Act, the applicant must point to specific instances of bias or impartiality; a generalised allegation that fails to identify specific instances will not justify setting aside the award.

Arbitration — Party Autonomy — Awards of Chosen Tribunal Not Lightly Disturbed

Where parties choose to refer their dispute to an arbitrator of their own selection, the award should not be set aside save for very good reason, such as misconduct of the arbitrator or something radically wrong and vicious in the proceedings.

Legislation cited (4)

Arbitration and Conciliation Act s.28(4)
Arbitration and Conciliation Act s.32
Arbitration and Conciliation Act s.34(2)(a)(iv)
Arbitration and Conciliation Act s.34(2)(a)(vi)

Cases cited (3)

Rashid Moledina v Hoima Growers [1967] EA 545
Rashid Moledina & Co (Mombasa) Ltd v Hoima Ginners Ltd (Civil Appeal No. 45 of 1996)
P.C. Markanda Law Relating to Arbitration & Conciliation, 5th Ed. 2003: p.382

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