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Babcon Uganda Limited v Mbale Resort Hotel Limited (Civil Appeal 6 of 2016)

Supreme Court · [2017] UGSC 83 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision striking out an appeal against a High Court order setting aside part of an arbitral award, with a preliminary objection to the Supreme Court's jurisdiction.
Decision
Preliminary objection upheld and appeal dismissed with costs; the Court of Appeal's decision stands.

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Holding

The Supreme Court upheld a preliminary objection that it lacked jurisdiction. When the High Court hears an application to set aside an arbitral award under section 34 of the Arbitration and Conciliation Act, it exercises 'other jurisdiction' conferred by statute, not its original jurisdiction; the original jurisdiction had been exercised by the arbitral tribunal. Consequently an appeal does not lie as of right to the Supreme Court under section 6(1) of the Judicature Act. Section 9 of the Act bars court intervention except as provided, so the general right of appeal under section 66 of the Civil Procedure Act could not be invoked. Section 34 also permits varying, not merely wholly setting aside, an award. The appeal was dismissed with costs.

Facts

The respondent engaged the appellant under a construction contract worth Shs 666,337,984 to build an annex to the Mbale Resort Hotel. The respondent terminated the contract, and the dispute was referred by consent to a sole arbitrator, Hon. Justice Karokora (Rtd). On 18 April 2010 the arbitrator made an award in the appellant's favour totalling about Shs 1,712,880,153. On the respondent's application, the High Court (Commercial Division) set aside the portions relating to special damages (Shs 1,272,700,875) and general damages (Shs 100,000,000). The respondent appealed to the Court of Appeal, which, on a preliminary objection, held the appeal incompetent because no right of appeal lay, struck it out, and substituted a dismissal of the setting-aside application. The appellant appealed to the Supreme Court, where the respondent again objected that no right of appeal lay to that Court.

Issues

  1. Whether an application to the High Court under section 34(1) of the Arbitration and Conciliation Act is adjudicated in the exercise of the High Court's original jurisdiction as envisaged in section 6(1) of the Judicature Act.
  2. Whether a party dissatisfied with such a decision has an automatic right of appeal to the Supreme Court.
  3. Whether the right of appeal under section 66 of the Civil Procedure Act extends to decisions made under section 34 of the Arbitration and Conciliation Act.
  4. Whether the High Court erred in setting aside (varying) only part of the arbitral award.

Orders

  • The preliminary objection on the point of law is upheld.
  • The decision and orders of the Court of Appeal are upheld.
  • The appeal is dismissed with costs.

Key headnotes

Arbitration & ADR — Setting Aside an Award — Nature of the High Court's Jurisdiction under s.34 ACA
A High Court hearing an application to set aside an arbitral award under section 34 of the Arbitration and Conciliation Act exercises 'other jurisdiction' conferred by statute, not its original jurisdiction; the original jurisdiction having been exercised by the arbitral tribunal.
Civil Procedure — Appeals — Right of Appeal to the Supreme Court under s.6(1) Judicature Act
An appeal lies as of right to the Supreme Court under section 6(1) of the Judicature Act only where the Court of Appeal has confirmed, varied or reversed a High Court decision given in the exercise of its original jurisdiction; a decision under section 34 of the Arbitration and Conciliation Act does not satisfy this requirement.
Arbitration & ADR — Court Intervention — s.9 ACA and the General Right of Appeal under s.66 CPA
By virtue of section 9 of the Arbitration and Conciliation Act, no court may intervene in matters governed by the Act except as provided in it; the general right of appeal under section 66 of the Civil Procedure Act cannot be invoked where a specific statute governs the proceedings.
Arbitration & ADR — Setting Aside — Power to Vary Part of an Award
Section 34 of the Arbitration and Conciliation Act does not prohibit a court from varying an arbitral award; the court has discretion to set aside only part of an award.
Statutory Interpretation — Aids to Construction — Reliance on a Commission of Inquiry Report
A court may look at and rely on a commission of inquiry report as persuasive material to establish the purpose and object of legislation, even where the report was not formally tendered in evidence.

Legislation cited (12)

  • Judicature Act Cap 13 s.6(1)
  • Judicature Act Cap 13 s.6(2)
  • Judicature Act Cap 13 s.14(1)
  • Arbitration and Conciliation Act s.2
  • Arbitration and Conciliation Act s.9
  • Arbitration and Conciliation Act s.34
  • Arbitration and Conciliation Act s.38
  • Civil Procedure Act s.66
  • Advocates Act s.62(1)
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 139
  • Constitution of Uganda Article 151

Cases cited (9)

  • Mohammed Mohammed Hamid v Roko Construction Ltd (Civil Appeal No. 1 of 2013)
  • SCCA No of 2010 Kituma Magala & Co Advocates v. Celtel (U) (unreported)
  • Mausukhulal Manji Karia (2005JULSR 157)
  • Mukula International v. His Eminence Cardinal Nsubuga and Another
  • Denis Biregye v Attorney General (Civil Application No. 31 of 2006)
  • Seyani Brothers & Co (U) Ltd v Simbamanyo Estates Ltd (Application No. 31 of 2009)
  • Joseph Bayego v The Registrar of Titles (Civil Appeal No. 20 of 1994)
  • Paul Semwogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Fox Odoi-Oywelowo & Another v Attorney General (Constitutional Appeal No. 8 of 2003)
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.