Mohammed v Roko Construction Ltd (Miscellaneous Cause 18 of 2017)

Supreme Court · [2019] UGSC 3 · 2019 Application Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Supreme Court for review of its own judgment in Civil Appeal No. 14 of 2015 under s.82(b) of the Civil Procedure Act and Rule 2(2) of the Supreme Court Rules.

Decision

Application partly allowed; the judgment in Civil Appeal No. 14 of 2015 recalled and the passage holding that an arbitral award need not be in writing expunged, with the remainder of the judgment and orders upheld.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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

On an application under s.82(b) of the Civil Procedure Act to review its judgment in Civil Appeal No. 14 of 2015, the Supreme Court held there was no conflict with Babcon Uganda Ltd v Mbale Resort Hotel: both decisions hold there is no automatic right of appeal from a High Court arbitration decision, leave being required, and the Mohammed appeal was competent only because leave had been sought. The Court accepted one genuine error — its statement that an arbitral award need not be in writing — as contravening s.31(4) ACA, and recalled the judgment to expunge that passage. The complaint about Rule 7(1) and s.34(3) failed. The application partly succeeded; each party to bear its own costs.

Facts

The applicant contracted the respondent to construct his house at Kololo for UGX 1,100,000,000 excluding VAT. The applicant paid part of the sum but, having signed only the bills of quantities and not the contract, refused to pay for substantial completed work. The respondent terminated the contract, invoked arbitration, and a sole arbitrator (Hon. Justice Karokora) awarded the respondent UGX 584,430,571 plus interest and general damages. The High Court set the award aside for want of jurisdiction; the Court of Appeal reinstated it; and the Supreme Court, in Civil Appeal No. 14 of 2015 (5 May 2017), upheld the Court of Appeal and dismissed the appeal. A day earlier, the Court had decided Babcon Uganda Ltd v Mbale Resort Hotel Ltd (Civil Appeal No. 6 of 2016) on a similar question of whether a High Court decision in arbitration is appealable to the Court of Appeal. The applicant then sought review, alleging the two judgments conflicted and that the Mohammed judgment contained errors apparent on the face of the record.

Issues

Whether the Court's judgment in Civil Appeal No. 14 of 2015 contained errors of law apparent on the face of the record warranting review under s.82(b) of the Civil Procedure Act.
Whether the judgment conflicted with the Court's decision in Babcon Uganda Ltd v Mbale Resort Hotel Ltd on the right of appeal in arbitration matters, contrary to stare decisis.
Whether the Court erred in stating that an arbitral award need not be in writing to be recognized.
Whether the Court misinterpreted ss.34(3) and 71 of the Arbitration and Conciliation Act and Rule 7(1) of its First Schedule on the time for setting aside an arbitral award.

Orders

The application partially succeeds; the substantial part of the application fails.
The judgment in Civil Appeal No. 14 of 2015 is recalled to rectify the error that an arbitral award need not be in writing to be recognized.
The passage stating that an arbitral award need not be in writing is expunged from the judgment.
The rest of the judgment and orders in Civil Appeal No. 014 of 2015 are upheld.
Each party to bear its own costs.

Key headnotes

Civil Procedure — Review of Judgment — Error Apparent on the Face of the Record under s.82(b) Civil Procedure Act

Under s.82(b) of the Civil Procedure Act, a court may review its own judgment to rectify an error of law apparent on the face of the record, and may make such order on the decree or order as it thinks fit.

Arbitration — Appeals — No Automatic Right of Appeal to the Court of Appeal from a High Court Arbitration Decision

There is no automatic right of appeal to the Court of Appeal from a decision of the High Court made in arbitration matters under s.34 of the Arbitration and Conciliation Act; an appeal lies only where leave of court is first obtained under s.38(3) of that Act, the High Court not exercising original jurisdiction in such matters.

Arbitration — Form of Award — Requirement that an Arbitral Award be in Writing under s.31(4)

An arbitral award must be made in writing and signed by the arbitrator under s.31(4) of the Arbitration and Conciliation Act; a holding that an arbitral award need not be in writing to be recognized is erroneous.

Statutory Interpretation — Conflict between Subsidiary Legislation and Principal Act — Rule 7(1) and s.34(3) Arbitration and Conciliation Act

Rule 7(1) of the First Schedule to the Arbitration and Conciliation Act (90 days to object to a filed award) is inconsistent with s.34(3) of the Act (one month from receipt of the award to apply to set it aside), creating uncertainty over the applicable time limit that the legislature should rectify.

Precedent — Stare Decisis — Reconciling Apparently Conflicting Decisions by Distinguishing Material Facts

Two decisions are not in conflict, and stare decisis is not breached, where their differing results are explained by a material factual distinction; an apparent inconsistency dissolves once the underlying provisions and facts are properly distinguished.

Legislation cited (18)

Civil Procedure Act s.82(b)
Civil Procedure Act s.66
Judicature Act s.14
Judicature Act s.14(2)(b)
Arbitration and Conciliation Act s.3
Arbitration and Conciliation Act s.9
Arbitration and Conciliation Act s.11(4)
Arbitration and Conciliation Act s.16
Arbitration and Conciliation Act s.31(4)
Arbitration and Conciliation Act s.34
Arbitration and Conciliation Act s.34(3)
Arbitration and Conciliation Act s.35
Arbitration and Conciliation Act s.38
Arbitration and Conciliation Act s.38(3)
Arbitration and Conciliation Act s.71
Arbitration and Conciliation Act, First Schedule, Rule 7(1)
Supreme Court Rules Rule 2(2)
Supreme Court Rules Rule 35(1)

Cases cited (16)

Edison Kanyabwera v Pastori Tumwebaza (Civil Appeal No. 6 of 2004)
Babcon Uganda Limited v Mbale Resort Hotel Ltd (Civil Appeal No. 6 of 2016)
Makula International Ltd vs. His Eminence Cardinal Nsubuga and Another
Kilembe Mines v B M Steel (Miscellaneous Cause No. 2 of 2005)
Uganda Lottery v Attorney General (Miscellaneous Cause No. 627 of 2008)
Katamba Phillip & 3 Ors v Magala Ronald (Arbitration Cause No. 3 of 2007)
Beatrice Kabusingye v Fiona Nyamana and George Ryakana (Civil Appeal No. 5 of 2004)
Livingstone M. Sewanyana v Martin Aliker (Miscellaneous Application No. 40 of 1991)
Masaka District Growers Co-operative Union Vs Mumpiswakoma Co-operative Society Ltd and others (1968) EA at page 640
Credit Finance Corporation Ltd VS Ali Mwakasanga (1953) EA
Orient Bank Ltd v Fredrick Zaabwe & Anor (Civil Application No. 17 of 2007)
Fang Min v Dr. Kaijuka Mutabazi Emmanuel (Criminal Application No. 6 of 2009)
Obote William v Uganda (Criminal Application No. 1 of 2017)
Punjab Vs Davinder Singh Bhullar and others 2012 Cr. Supreme Court of India (decision on 7 December 2011)
Giridharilal and others VS Pratap Rai Mehta and another 1st June 1989
Vishram Aragwal (appellants) Vs State of UP (Respondent) Supreme Court of India Cr. Appeal No.1323 of 2004

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.