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Industrial Development Corporation of South Africa Limited v AYA Investments Uganda Limited (Civil Miscellaneous Application 1104 of 2023)

Court of Appeal · [2023] UGCA 302 · 2023 Application Granted — Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a civil appeal under the Court of Appeal Rules
Decision
Application granted; Civil Appeal No. 1190 of 2023 struck out with costs

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Holding

The Court of Appeal struck out Civil Appeal No. 1190 of 2023, which challenged the High Court's refusal to set aside an arbitral award under section 34 of the Arbitration and Conciliation Act. The court found the appeal was instituted on 3 October 2023, sixteen days after the 60-day period prescribed by Rule 83, and was therefore filed out of time and liable to be struck out under Rule 82. An informal application from the bar for extension of time was refused: extension must be sought by formal application under Rule 5 establishing sufficient cause. Obiter, the court would have held that no right of appeal lies against a section 34 ruling, an appeal being a creature of statute barred except under section 38 of the Act.

Facts

Between 2007 and 2017 the Applicant and the Respondent executed financial credit and security agreements to finance construction of the Pearl of Africa Hotel in Kampala. Following the Respondent's alleged default, the Applicant began foreclosure proceedings; the Respondent obtained restraining orders and referred the dispute to arbitration in South Africa. An arbitral award was made in the Applicant's favour and registered as a decree of the High Court. The Respondent's High Court application to set aside the award (Misc. Cause No. 58 of 2021) was dismissed with costs on 15 May 2023. The Respondent filed Civil Appeal No. 1190 of 2023 against that dismissal on 3 October 2023. The Registrar's certificate showed the High Court proceedings were availed to the Respondent on 17 July 2023, so the 60-day appeal period expired on 17 September 2023. The Applicant then applied to strike out the appeal.

Issues

  1. Whether there is a right of appeal conferred by the Arbitration and Conciliation Act or any other statute against a section 34 ruling granting or refusing to set aside an arbitral award.
  2. Whether the appeal sought to be struck out was filed out of time.
  3. Whether the arbitration proceedings were commenced in contempt of court orders such that the award conflicts with Ugandan public policy.

Orders

  • Court of Appeal Civil Appeal No. 1190 of 2023 is struck out with costs.
  • Costs of this application are granted to the Applicant.

Key headnotes

Civil Procedure — Appeals — Institution and computation of time under Rule 83 of the Court of Appeal Rules
An appeal must be instituted within sixty days after the notice of appeal is lodged, excluding any time certified by the registrar as required for preparation and delivery of the proceedings; an appeal lodged after that period is filed out of time.
Civil Procedure — Striking out appeal — Rule 82 of the Court of Appeal Rules
An appeal that has not been instituted within the prescribed time is liable to be struck out under Rule 82 on the ground that an essential step in the proceedings was not taken within the prescribed time.
Civil Procedure — Extension of time — Requirement of a formal application under Rule 5 and sufficient cause
Extension of time must be sought by a formal application under Rule 5 that establishes sufficient cause for the failure to take the step in time; an informal application made from the bar that does not establish sufficient cause cannot be granted.
Arbitration & ADR — Right of appeal against a section 34 ruling — Appeal as a creature of statute
An appeal is a creature of statute; sections 9 and 34 of the Arbitration and Conciliation Act bar court intervention, and a right of appeal against a ruling on a section 34 application lies only under section 38 where the parties have so agreed and the court grants leave.

Legislation cited (12)

  • Court of Appeal Rules r.82
  • Court of Appeal Rules r.43(1)
  • Court of Appeal Rules r.43(2)
  • Court of Appeal Rules r.44(1)
  • Court of Appeal Rules r.83
  • Court of Appeal Rules r.5
  • Court of Appeal Rules r.2(2)
  • Arbitration and Conciliation Act, Cap 4, s.9
  • Arbitration and Conciliation Act, Cap 4, s.34
  • Arbitration and Conciliation Act, Cap 4, s.38
  • Constitution of the Republic of Uganda 1995, Article 28
  • Constitution of the Republic of Uganda 1995, Article 40

Cases cited (4)

  • Senakula Musoke and Another v Nobamba and 2 Others (Civil Application No. 22 of 2019)
  • Lakeside Diary Limited v Midland Emporium Limited and 3 Others (Civil Application No. 858 of 2022)
  • Babcon Uganda Limited v Mbale Resort Hotel Ltd (Civil Appeal No. 6 of 2016)
  • Muhammed Hamid v Rolco Construction Ltd (Civil Appeal No. 14 of 2015)
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.