Wakilii

Bacon Uganda Ltd v Mbale Resort Hotel Ltd (Civil Appeal No. 87 of 2011)

Court of Appeal · [2015] UGCA 57 · 2015 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court (Commercial Division) decision made under section 34 of the Arbitration and Conciliation Act partially setting aside an arbitral award
Decision
Appeal struck out as incompetent for want of jurisdiction; costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that section 9 of the Arbitration and Conciliation Act ousts the general jurisdiction of the courts in matters governed by the Act, and that no appeal lies to the Court of Appeal against a High Court decision under section 34; the only avenue of appeal is under section 38 with agreement and leave. The appeal was therefore incompetent and struck out. The court unanimously agreed the appeal be struck out with costs. Kakuru JA (with a differing rationale) additionally held that under section 34 the High Court has power only to set aside the whole award or dismiss the application, not to vary it, and would have set aside the High Court's variation as an illegality made without jurisdiction.

Outcome

Appeal struck out as incompetent for want of jurisdiction; costs to the respondent

Facts

The parties entered into a building contract for the construction of a hotel project in Mbale, with the respondent as owner and the appellant as contractor. During execution the relationship broke down and the respondent expelled the appellant from the site and seized some of its plant and equipment. In accordance with their written agreement the dispute was referred to arbitration before Retired Justice Alfred Karokora, who made an arbitral award. Dissatisfied, the respondent applied to the High Court (Commercial Division) under section 34 of the Arbitration and Conciliation Act to set aside the award. Kiryabwire J partially set aside the award, striking out portions relating to special damages of Shs 1,272,700,857 and general damages of Shs 100,000,000 while leaving the rest intact. The appellant, dissatisfied, appealed to the Court of Appeal. The respondent raised a preliminary objection that no appeal lay against a High Court decision under section 34 of the Act.

Issues

  1. Whether an appeal lies to the Court of Appeal against a decision of the High Court made under section 34 of the Arbitration and Conciliation Act.
  2. Whether section 9 of the Arbitration and Conciliation Act ousts the general jurisdiction of the courts, including the Court of Appeal, in matters governed by that Act.
  3. Whether the High Court had jurisdiction under section 34 of the Act to vary (partially set aside) an arbitral award as opposed to setting aside the whole award or dismissing the application.

Orders

  • Appeal struck out with costs.
  • Per Kakuru JA (minority reasoning): ruling of the High Court in Civil Application No. 256 of 2010 set aside and substituted with an order of dismissal; appellant to pay one half of costs at the Court of Appeal and one half at the High Court.

Rules and key headnotes

Arbitration — Ouster of Court Jurisdiction — Section 9 of the Arbitration and Conciliation Act
Section 9 of the Arbitration and Conciliation Act expressly ousts the general jurisdiction of the courts in matters governed by the Act, barring the courts, including the Court of Appeal, from intervening except where authorised by the Act itself.
Arbitration — Right of Appeal — Decisions under Section 34
No appeal lies to the Court of Appeal against a decision of the High Court made under section 34 of the Arbitration and Conciliation Act; the only recourse to the Court of Appeal in arbitration matters is under section 38(3), which requires that the parties have agreed to appeal and that leave to appeal be granted.
Arbitration — Powers of the High Court under Section 34 — Setting Aside versus Variation
Under section 34 of the Arbitration and Conciliation Act the High Court may only set aside an arbitral award or dismiss the application; it has no power to vary or partially set aside an award. Power to confirm, vary or set aside an award exists only under section 38, on a determination of a question of law.
Statutory Interpretation — Ouster Clauses — Requirement of Express Words
For a statute to oust the jurisdiction of the court it must say so expressly, though ouster may be inferred where the inference from the words of the statute is irresistible.
Civil Procedure — Illegality — Court's Duty to Address Illegality Once Brought to its Attention
An illegality, once brought to the attention of the court, overrides everything else including pleadings, and a court may address it at any time even where the point was not pleaded or argued; a judgment made without jurisdiction is null and void ab initio.

Legislation cited (12)

Cases cited (15)

  • Seyani Brothers & Co (U) Ltd v Simbamanyo Estates Ltd [unreported]
  • Denis Bireijje v Attorney General (Civil Application No. 31 of 2005)
  • Pius Niwagaba v Law Development Centre (Civil Appeal No. 18 of 2006)
  • Makula International vy His Eminence Cardinal Nsubuga and anor
  • Joseph Bayego v Registrar of Titles (Civil Appeal No. 20 of 1994)
  • David Kayondo v Cooperative Bank Ltd (Civil Appeal No. 19 of 1991)
  • Oscroft v Benabo [1967] 2 All ER 548
  • Anisminic Ltd v Foreign Compensation Commission [1969] AC 148
  • Charles Twagira v Attorney General (Civil Appeal No. 4 of 2007)
  • Makula International vs Emmanuel Cardinal Nsubuga 1982 [HCB] P.11
  • Zaabwe v Orient Bank (Civil Appeal No. 4 of 2006)
  • Belex Tours and Travel Ltd v Crane Bank (Civil Appeal No. 71 of 2009)
  • Fr. Narcensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)

Full judgment

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Bacon Uganda Ltd Vs Mbale Resort Hotel Ltd (Civil Appeal No. 87 of 2011) [2015] UGCA 57 (23 June 2015)
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.