Canaf Group Inc v Attorney General & Anor (Miscellaneous Cause No. 27 of 2012)

Observed later treatment

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.

Holding

The High Court dismissed the application for mandamus, prohibition and injunction to enforce a consent arbitral award. The award amounted to an unenforceable agreement to agree because the parties were required to revise the underlying Mineral Exploration and Feasibility Study Agreement within thirty days but failed to do so. The court held that an order of mandamus could not compel parties to reach consensus on contract terms and that a private contract between the applicant and the second respondent could not override Parliament's statutory command to fully privatise Kilembe Mines Limited under the Public Enterprise Reform and Divestiture Act.

Outcome

Application dismissed with costs to the respondents

Facts

Canaf Group Inc, a Canadian company, entered into a Mineral Exploration and Feasibility Study Agreement in 2004 with Kilembe Mines Limited. Under the agreement, Canaf would finance prospecting work and, upon a positive feasibility study, acquire a 70% interest in the project. Kilembe Mines did not obtain the required licences for over two years of the three-year exploration period. The applicant commenced arbitration claiming damages. The parties then entered a consent arbitral award in October 2008 permitting the applicant to resume work subject to revised terms of the agreement to be concluded within thirty days. No revision was done. The Attorney General applied to set aside the award but the application was dismissed on procedural grounds. The applicant then filed suit to enforce the award and obtained a temporary injunction restraining privatisation. That suit was dismissed as having been filed by a non-existent entity. Meanwhile, the government commenced privatisation of Kilembe Mines under the Public Enterprise Reform and Divestiture Act. The applicant then filed this application for judicial review seeking mandamus and prohibition.

Issues

1. Whether the arbitral award was enforceable as a final award or amounted to an unenforceable agreement to agree.
2. Whether the consent arbitral award was illegal for having been entered without the Attorney General's consent contrary to article 119(5) of the Constitution.
3. Whether the court had jurisdiction to grant mandamus and prohibition to compel enforcement of the arbitral award and restrain the privatisation of a public enterprise scheduled for divestiture under the Public Enterprise Reform and Divestiture Act.
4. Whether the original Mineral Exploration and Feasibility Study Agreement had expired by the time the arbitral award was signed.
5. Whether the applicant had established a clear legal duty and specific right justifying the grant of mandamus.

Orders

• Application for mandamus, prohibition and injunction dismissed.
• Costs awarded to the respondents.

Rules and key headnotes

Legislation cited (33)

• Judicature (Judicial Review) Rules 2009 r.3(1)(a)
• Judicature (Judicial Review) Rules 2009 r.3(2)
• Judicature (Judicial Review) Rules 2009 r.5
• Judicature (Judicial Review) Rules 2009 r.5(3)
• Civil Procedure Act s.98
• Civil Procedure Act s.35
• Judicature Act s.14
• Judicature Act s.14(2)
• Judicature Act s.33
• Judicature Act s.37
• Arbitration and Conciliation Act s.2(1)
• Arbitration and Conciliation Act s.30
• Arbitration and Conciliation Act s.30(1)
• Arbitration and Conciliation Act s.30(2)
• Arbitration and Conciliation Act s.30(3)
• Arbitration and Conciliation Act s.31
• Arbitration and Conciliation Act s.32
• Arbitration and Conciliation Act s.32(1)
• Arbitration and Conciliation Act s.32(4)
• Arbitration and Conciliation Act s.33
• Arbitration and Conciliation Act s.33(4)
• Arbitration and Conciliation Act s.33(6)
• Arbitration and Conciliation Act s.34
• Arbitration and Conciliation Act s.36
• Constitution of Uganda article 2
• Constitution of Uganda article 26
• Constitution of Uganda article 119
• Constitution of Uganda article 119(5)
• Constitution of Uganda article 244
• Constitution of Uganda article 244(3)
• Public Enterprise Reform and Divestiture Act s.22
• Public Enterprise Reform and Divestiture Act s.22(1)(c)
• Public Enterprise Reform and Divestiture Act s.22(3)

Cases cited (9)

• Nsimbe Holdings Ltd v Attorney General and IGG (Constitutional Petition No. 2 of 2006)
• Goodman Agencies Ltd v Attorney General (Miscellaneous Application No. 34 of 2011)
• Tropical Commodities Suppliers Ltd v ICB (In Liquidation) (Miscellaneous Application No. 647 of 2002)
• Makula International versus Cardinal Nsubuga [1982] 11
• Livercot Impex Ltd and Uganda Investment Authority v Attorney General and Another (Miscellaneous Application No. 173 of 2010)
• Scammell v Ouston [1941] 1 All ER 14
• Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
• Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER Page 935
• May & Butcher Ltd v R [1934] 2 KB 17

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.

• Kobusingye v Uganda Land Commission (Miscellaneous Cause No. 28 of 2013)

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