Mohammed v Roko Construction Ltd [2017] UGSC 13

Supreme Court · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal to the Supreme Court from a Court of Appeal decision setting aside the High Court's order and re-instating an arbitral award

Decision

Appeal dismissed; Court of Appeal decision re-instating the arbitral award upheld, with costs to the respondent

The full judgment

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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 Supreme Court, on a second appeal, dismissed four of the five grounds and upheld the Court of Appeal. It held that an arbitration clause existed in the building contract and that, even though the appellant had not signed, the doctrine of part performance cured the want of signature once both parties acted on the agreement. The application to set aside the arbitral award was time-barred: under s.34(3) ACA it had to be filed within one month of receipt, and the inconsistent 90-day rule 7(1) of the Schedule could not prevail over the Act. Although the Court of Appeal wrongly relied on s.66 CPA, the appeal to it was competent under s.38(3) ACA. Appeal dismissed with costs.

Facts

The appellant engaged the respondent to complete construction of a residential house at Plot 43B Windsor Close, Kololo, for UShs.1,100,000,000 excluding VAT. The parties signed the bills of quantities, which incorporated clause 36 (an arbitration clause); the respondent also signed the Articles of Agreement and passed them to the appellant, who never returned a signed copy. The appellant paid part of the contract sum, and the respondent began and did substantial work but was not paid for all of it. After serving notices to suspend and then terminate, the respondent invoked arbitration; CADER appointed Justice Karokora as arbitrator, who heard both parties and delivered an award on 30 June 2009 ordering the appellant to pay Shs.584,430,571 plus interest, general damages of Shs.100,000,000, and taxed costs of Shs.92,507,410. The appellant filed an application to set aside the award on 14 January 2010. The High Court set it aside for want of arbitral jurisdiction; the Court of Appeal (on a re-constituted coram) quashed that and re-instated the award, prompting this appeal.

Issues

Whether there was a written arbitration agreement/clause governing the parties.
Whether the agreement's want of signature by the appellant rendered the arbitration clause invalid, or whether the doctrine of part performance cured it.
Whether the application to set aside the arbitral award was made within the time limited by s.34(3) of the Arbitration and Conciliation Act.
Whether the respondent's appeal to the Court of Appeal was competent, and under which provision it lay.

Orders

Appeal dismissed.
Decision of the Court of Appeal upheld.
Costs of the appeal awarded to the respondent.

Key headnotes

Arbitration & ADR — Arbitration Agreement — Part Performance Curing Want of Signature

Where both parties act upon and treat an arbitration agreement as binding, the doctrine of part performance cures the want of a signature and binds the non-signing party to the arbitration clause.

Contract Law — Formation — Unsigned Draft Acted Upon by Both Parties

A draft contract which one party has not signed is nonetheless a valid contract binding upon that party where both parties have acted upon it and treated it as binding.

Arbitration & ADR — Setting Aside Award — One-Month Time Limit Under s.34(3) ACA

An application to set aside an arbitral award must be made within one month of the date the applicant received the award under s.34(3) of the Arbitration and Conciliation Act; the award is received when pronounced in the party's presence and need not be in writing to be received.

Statutory Interpretation — Conflict Between Enactment and Schedule/Rule

Where a form or rule in a schedule (here the 90-day rule 7(1) of the Arbitration Rules) is inconsistent with an enactment in the Act (s.34(3) ACA), the enactment prevails over the schedule.

Civil Procedure — Limitation — No Power to Enlarge a Statutory Time Limit

A court has no residual or inherent jurisdiction to enlarge a period of time laid down by statute; an order purporting to extend such time after it has expired is a nullity and must be set aside.

Arbitration & ADR — Appeals — Competence of Appeal Under s.38(3) ACA

An appeal against a court decision under the Arbitration and Conciliation Act lies to the Court of Appeal under s.38(3) ACA where the parties have agreed and leave is granted, not under s.66 of the Civil Procedure Act, since s.9 ACA excludes general court intervention except as the Act provides.

Legislation cited (15)

Arbitration and Conciliation Act s.9
Arbitration and Conciliation Act s.11(4)(c)
Arbitration and Conciliation Act s.34(1)
Arbitration and Conciliation Act s.34(3)
Arbitration and Conciliation Act s.34(4)
Arbitration and Conciliation Act s.35
Arbitration and Conciliation Act s.36
Arbitration and Conciliation Act s.38(3)
Arbitration and Conciliation Act s.72
Arbitration Rules, First Schedule, rule 7(1)
Civil Procedure Act s.66
Contract Act Cap 73 s.3(1)
Contract Act Cap 73 s.3(2)(a)
Contract Act Cap 73 s.3(4)
Constitution of Uganda Article 134(2)

Cases cited (7)

Masembe v Sugar Corporation and Another (Civil Appeal No. 1 of 2000)
Kifamunte Henry v Uganda [1997] LLR 72 (SCU)
Credit Finance Corporation Ltd v Ali Mwakasanga [1959] EA 79
Roko Construction Ltd v Kakira Sugar Works Ltd (Arbitration Cause No. 7 of 2007)
Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
Uganda Lottery Ltd v Attorney General (Miscellaneous Cause No. 627 of 2008)
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666

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