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Alcon International Limited v The Standard Chartered Bank of Uganda and Others (Appeal 2 of 2011)

East African Court of Justice · [2011] EACJ 59 · 2011 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 of jurisdiction and 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 issue of pending parallel proceedings in Ugandan courts was not a valid preliminary objection as it involved disputed facts rather than pure points of law. The First Instance Division erred by failing to determine the threshold issue of jurisdiction before striking out the Reference, and by not addressing all preliminary objections agreed upon at the scheduling conference. The matter was remitted to the First Instance Division to determine jurisdiction and the merits of the Reference.

Outcome

Matter remitted to First Instance Division for determination of jurisdiction and merits

Facts

Alcon International Limited, a Kenyan company, was contracted by Uganda's National Social Security Fund (NSSF) to construct Workers House in Kampala. After NSSF terminated the contract, arbitration proceedings resulted in an award of US$8,858,469.97 in favour of Alcon. 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 instituted 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 the Treaty and Common Market Protocol 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 it had jurisdiction to hear the matter.

Issues

  1. Whether the First Instance Division erred in striking out the Reference before determining whether it had jurisdiction to entertain the matter.
  2. Whether the First Instance Division failed to address and determine all the preliminary objections agreed upon during the scheduling conference.
  3. Whether the issue of pending parallel proceedings in the Ugandan courts constituted a valid preliminary objection.
  4. Whether the Treaty for the Establishment of the East African Community or the Protocol on the Establishment of the East African Community Common Market ousts the jurisdiction of the Court on the basis of pending proceedings in national courts.

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 is in the nature of a demurrer and 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 — Preliminary Objections — Parallel Proceedings — Not a Valid Preliminary Objection
The existence of pending parallel proceedings in another court involving disputed facts does not constitute a valid preliminary objection. Such an issue requires the ascertainment of facts and cannot be resolved as a pure point of law on the assumption that all pleaded facts are correct.
Civil Procedure — Jurisdiction — Threshold Determination Required
Jurisdiction is everything. Without it, a court has no power to make one more step. The determination of doubts about jurisdiction must precede the determination of the merits of a reference or any other issue. A court must be certain and assured of its jurisdictional position at the commencement of the trial, and it is risky and unsafe to proceed on the assumption that jurisdiction exists.
Civil Procedure — Scheduling Conference — Duty to Determine All Agreed Issues
Where issues are agreed upon during a scheduling conference for determination as preliminary objections, the court is obliged to consider and determine all such issues. A court cannot selectively address only some issues and strike out a reference without determining the remaining agreed issues, particularly the fundamental issue of jurisdiction.
Civil Procedure — Appellate Jurisdiction — Limitation to Points of Law
The appellate jurisdiction of the East African Court of Justice Appellate Division is limited to points of law, grounds of lack of jurisdiction, and procedural irregularity. Matters of fact are in principle the exclusive province of the First Instance Division. The 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.
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 an expedient way of disposing of references, it often constitutes 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 that define the issues, and counsel must assist the judge by simplification and concentration rather than advancing a multitude of ingenious arguments.

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 The Standard Chartered Bank of Uganda and Others (Appeal 2 of 2011) [2011] EACJ 59 (24 August 2011)
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.