Wakilii

AIC Progetti & 2 Ors v Data Systems Engineering & Research Corporation (Miscellaneous Cause No. 184 of 2013)

High Court · [2013] UGCOMMC 201 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside arbitral award in part under section 34 of the Arbitration and Conciliation Act
Decision
Application to set aside arbitral award dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an arbitrator acted within jurisdiction in awarding damages for denying the respondent the right to replace experts, even though no express issue was framed on the matter. The dispute was pleaded, testified upon, and formed part of the joint scheduling memorandum. An arbitrator's jurisdiction extends to all matters arising from the pleadings and evidence, not merely formally framed issues. The application to set aside the arbitral award was dismissed.

Outcome

Application to set aside arbitral award dismissed with costs to the respondent

Facts

The parties entered into a Memorandum of Agreement (MOA) under which the respondent supplied experts to the applicants. The applicants terminated the MOA, which the respondent rejected. The dispute was referred to arbitration pursuant to Clause 6 of the MOA. The arbitrator awarded the respondent £71,536.38, including £50,425.006 in special damages for denying the respondent the right to replace experts who had resigned or been terminated. The applicants applied to set aside the portion of the award relating to replacement of experts, arguing that the arbitrator exceeded his jurisdiction by deciding a matter not referred to arbitration. The respondent opposed, arguing that the issue was pleaded in the Statement of Claim, addressed in witness statements, and included in the joint scheduling memorandum as a fact at variance between the parties.

Issues

  1. Whether the issue of replacement of experts was referred to arbitration.
  2. Whether an arbitrator can frame, determine and make an award on an issue not referred to arbitration.
  3. Whether an affidavit sworn by an advocate on behalf of corporate applicants without attaching proof of authority is defective.
  4. Whether an affidavit that does not disclose means of knowledge violates Order 19 rule 3(1) of the Civil Procedure Rules.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Arbitration — Scope of Arbitrator's Jurisdiction — Matters Pleaded but Not Framed as Issues
An arbitrator does not exceed his jurisdiction by determining a matter that was pleaded, testified upon, and contested by both parties during arbitration, even if that matter was not formally framed as an issue in the joint scheduling memorandum. The arbitrator's jurisdiction extends to all disputes arising from the pleadings and evidence, not merely to formally framed issues.
Arbitration — Setting Aside Award — Scope of Reference to Arbitration — Section 34(2)(a)(iv)
Under section 34(2)(a)(iv) of the Arbitration and Conciliation Act, an arbitral award may be set aside if it deals with a dispute not falling within the terms of reference to arbitration. However, where the disputed matter was pleaded, formed part of the facts at variance in the scheduling memorandum, was testified upon by both parties, and was the subject of submissions, the matter falls within the scope of reference and the arbitrator acts within jurisdiction in determining it.
Arbitration — Jurisdictional Challenge — Timing — Section 16(3) of the Arbitration and Conciliation Act
Section 16(3) of the Arbitration and Conciliation Act requires a party to raise a plea that the arbitral tribunal is exceeding its authority as soon as the matter alleged to be beyond its authority is raised during the arbitral proceedings. A party who fails to object at the appropriate stage and participates fully in the arbitration on the disputed matter cannot later challenge the arbitrator's jurisdiction when an unfavourable award is made.
Arbitration — Determining Scope of Dispute Referred — Court's Approach
In determining what dispute was submitted to an arbitrator, the court may first look at the award. If the jurisdiction is not clear from the award, the court may have recourse to outside sources including the pleadings, affidavits, witness statements, scheduling memorandum, and the arbitration agreement itself.
Affidavits — Advocate Swearing on Behalf of Corporate Party — Order 3 Rule 1 CPR
Under Order 3 rule 1 of the Civil Procedure Rules, an advocate is permitted to act on behalf of a party and may swear an affidavit on facts that have come to his knowledge in the course of representing that party. An advocate swearing an affidavit in his capacity as advocate in the firm instructed to represent the party, rather than as a purported agent of the party, is competent to do so and need not attach proof of authority from each corporate client.
Affidavits — Defective Affidavits — Severance of Offending Paragraphs — Article 126 Constitution
Where an affidavit contains paragraphs that offend Order 19 rule 3(1) of the Civil Procedure Rules by failing to disclose means of knowledge, the offending paragraphs may be severed and the remainder of the affidavit considered. Courts should take a liberal approach to defective affidavits and administer substantive justice without undue regard to technicalities in accordance with Article 126 of the Constitution.

Legislation cited (10)

Cases cited (10)

  • Mugoya Construction and Engineering Ltd v Central Electricals Ltd (Miscellaneous Application No. 699 of 2011)
  • Kaingana vs Daboubou (1986) HCB
  • Banco Arabe Espanol v Bank of Uganda [1992] 2 EA 22
  • Col. (Rtd) Besigye Kizza v Museveni Yoweri Kagutta and Electoral Commission (Election Petition No. 1 of 2001) [2001] UGSC 3
  • Wamugongo v Total (K) Ltd (1995-1998) 1 EA 332
  • National Union of Clerical, Commercial and Technical Employees vs Uganda Bookshop [1915] EA 533
  • Williams Brothers vs ED T. Agius Ltd
  • Seyani Brother & Co. Ltd v Cassia Ltd (Civil Appeal No. 128 of 2011)
  • Gandy v Caspair (1956) 23 EACA 139
  • Simbamanyo Estates v Seyani Brothers Company (U) Ltd (Miscellaneous Application No. 555 of 2002)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

AIC Progetti & 2 Ors v Data Systems Engineering & Research Corporation (Miscellaneous Cause No. 184 of 2013) [2013] UGCommC 201 (29 November 2013)
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.