Wakilii

Alcon international Limited v Standard Charted Bank of Uganda and Others (Application 2 of 2011)

East African Court of Justice · [2012] EACJ 5 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Ruling of the First Instance Division striking out Reference No. 6 of 2010 on preliminary objections
Decision
Matter remitted to First Instance Division for determination on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division allowed the appeal and set aside the First Instance Division's ruling striking out the Reference. The court held that the First Instance Division erred in striking out the Reference on the basis of pending proceedings in Uganda without first determining the threshold issue of jurisdiction. The sub-issue relied upon by the First Instance Division was not a valid preliminary objection as it involved disputed facts rather than pure points of law. The court declined to assume original jurisdiction to determine the preliminary objections itself, holding that the Treaty confers no concurrent jurisdiction on the Appellate Division. The matter was remitted to the First Instance Division to determine the merits of the Reference.

Outcome

Matter remitted to First Instance Division for determination on the merits

Facts

Alcon International Limited, a Kenyan company, was contracted by Uganda's National Social Security Fund (NSSF) to construct Workers House in Kampala. NSSF terminated the contract, leading to arbitration in which Alcon was awarded US$8,858,469.97. NSSF contested the arbitral award in Ugandan courts, with the matter reaching the Supreme Court of Uganda as Civil Appeal No. 15 of 2009. While that litigation was pending, Alcon filed Reference No. 6 of 2010 in the East African Court of Justice First Instance Division against Standard Chartered Bank of Uganda, the Attorney General of Uganda, and the Registrar of the High Court of Uganda, seeking enforcement of the arbitral award and interpretation of Treaty provisions on the Court's jurisdiction over cross-border investment disputes. The First Instance Division struck out the Reference on preliminary objections without determining whether the Court had jurisdiction. Alcon appealed to the Appellate Division.

Issues

  1. Whether the First Instance Division erred in striking out the Reference before determining whether the Court had jurisdiction to entertain it.
  2. Whether the First Instance Division erred in failing to address and make findings on all preliminary objections raised.
  3. Whether the First Instance Division erred in finding that parallel proceedings in the East African Court of Justice and Ugandan courts would be absurd and cause confusion.
  4. Whether the Appellate Division has jurisdiction to dispose of preliminary objections not determined by the First Instance Division.

Orders

  • Appeal allowed with costs.
  • Ruling and Order of the First Instance Division dated 24 September 2011 set aside.
  • Reference No. 6 of 2010 reinstated.
  • First Instance Division directed to specifically determine the merits of the Reference.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Nature and Requirements — Pure Points of Law
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. It raises a pure point of law which is argued on the assumption that all the facts pleaded are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Civil Procedure — Jurisdiction — Threshold Determination — Priority over Merits
The determination of doubts about jurisdiction must precede the determination of the merits of a reference. Jurisdiction is fundamental and goes to the very root of the authority of the court to adjudicate. Without jurisdiction, a court has no power to proceed. A court must be certain and assured of its jurisdictional position at the commencement of the trial.
Civil Procedure — Appellate Jurisdiction — Scope — Concurrent Jurisdiction with First Instance Division
An appellate division does not have concurrent jurisdiction with the first instance division to assume original jurisdiction and determine issues not decided by the lower court. The appellate division's mandate is to hear and determine appeals from judgments and orders of the first instance division, not to exercise original jurisdiction on matters not determined below.
Civil Procedure — Preliminary Objections — Abuse of Process — Unnecessary Costly Detour
There is a growing tendency to commence the trial of references not on their merits but with preliminary objections on points of law. While this may appear expedient, it is often an unnecessary costly detour of the proceedings. Parties and their legal advisers are under a duty to cooperate with courts through chronological, brief and consistent pleadings which define the issues, and counsel must assist the judge by simplification and concentration rather than advancing a multitude of ingenious arguments.
Civil Procedure — Judgment — Requirements — Determination of All Issues Raised
A court's judgment must contain the points for determination, the decision arrived at, and the reasons for such decision. Where issues are raised and agreed upon during a scheduling conference, all such issues must be considered and determined by the court. A court cannot strike out a matter on one issue while leaving other fundamental issues, including jurisdiction, undetermined.

Cases cited (4)

  • Ashmore v Corporation of Lloyds [1992] 2 All ER 486
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Limited [1989] KLRI
  • Fanuel Mantiri N'gunda v Herman Mantiri Ng'unda and 20 Others (Civil Appeal No. 8 of 1995)

Full judgment

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

Alcon international Limited v Standard Charted Bank of Uganda and Others (Application 2 of 2011) [2012] EACJ 5 (16 March 2012)
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.