Wakilii

Busenvi Enterprise Limited v Makindye Ssabagabo Municipal Council (Civil Suit No. 400 of 2019)

High Court · [2022] UGHCCD 93 · 2022 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection raised by defendant seeking referral to arbitration in a civil suit for breach of contract
Decision
Preliminary objection dismissed; matter to proceed to hearing on merits

Observed later treatment

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

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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

Held that a preliminary objection seeking referral to arbitration cannot be determined as a pure point of law without examining evidence. Under sections 5 and 9 of the Arbitration and Conciliation Act, the court must consider whether the arbitration agreement is valid, operative, and capable of being performed, and whether the dispute falls within matters agreed to be arbitrated. This requires a formal application with supporting evidence, not a preliminary objection. The objection was overruled with leave to file a formal application.

Outcome

Preliminary objection dismissed; matter to proceed to hearing on merits

Facts

On 24 July 2017, the plaintiff entered into a contract with the defendant for upgrading St. Noah Road in Bunamwaya, Kampala from murram to bitumen standard at a contract price of UGX 1,089,317,897. The plaintiff claimed the defendant defaulted on payments during contract implementation, causing loss and damages. The plaintiff sued for specific performance, breach of contract, special damages of UGX 685,992,329 (comprising outstanding balance, penalty, interest on loan, and losses), general damages, aggravated damages, interest and costs. The contract contained an arbitration clause at clause 25 of the General Conditions. The parties had attended mediation and obtained partial consent with a payment schedule. The matter had been in court for over two years before the defendant raised the preliminary objection.

Issues

  1. Whether this suit should have been referred for arbitration.
  2. Whether court can refer a matter for arbitration upon a preliminary objection.

Orders

  • The objection is overruled.
  • The matter proceeds for hearing.
  • Costs of the objection stay in the cause.
  • Counsel for the Defendant may file a formal application for determination by this court if he holds the view that this matter should be referred for arbitration.

Rules and key headnotes

Arbitration — Referral to Arbitration — Procedure for Application
An application for referral to arbitration under sections 5 and 9 of the Arbitration and Conciliation Act must be made by formal application, not by way of preliminary objection, because the court must examine evidence to determine whether the arbitration agreement is valid, operative, and capable of being performed, and whether the dispute falls within matters agreed to be arbitrated.
Preliminary Objections — Nature and Scope — Pure Points of Law
A preliminary objection must raise a pure point of law argued on the assumption that all 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.
Arbitration — Court Intervention — Requirements under Arbitration and Conciliation Act
Under section 5 of the Arbitration and Conciliation Act, a court shall refer a matter to arbitration if a party applies after filing a statement of defence, unless the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed, or that there is no dispute between the parties regarding matters agreed to be referred to arbitration.

Legislation cited (2)

Cases cited (5)

  • Vantage Mezzanine Fund II Partnership v Simba Properties Investments Co Ltd & Anor (Miscellaneous Application No. 201 of 2022)
  • Power and City Contractors Ltd v LTL Project (PVT) Ltd (Miscellaneous Application No. 62 of 2011)
  • Yan Jian Uganda Company Ltd v Siwa Builders & Engineers (Miscellaneous Application No. 1147 of 2014)
  • Yaya v Obur and Ors (Civil Appeal No. 81 of 2018)
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 697

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Busenvi Enterprise Limited v Makindye Ssabagabo Municipal Council (Civil Suit No. 400 of 2019) [2022] UGHCCD 93 (1 July 2022)
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.