Wakilii

CMA CGM Uganda Ltd v H. Ssekatawa International Ltd (Civil Appeal No. 27 of 2013)

High Court · [2015] UGCOMMC 59 · 2015 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Chief Magistrate's Court, Mengo, which dismissed the suit and counter claim for lack of territorial jurisdiction
Decision
Matter remitted to the Magistrate's Court for retrial before another magistrate with competent jurisdiction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where parties to a commercial contract containing an exclusive foreign jurisdiction clause voluntarily submit to the jurisdiction of Ugandan courts by filing suit and counter claim, the courts have jurisdiction to determine the matter. A party seeking to enforce an exclusive jurisdiction clause must show strong reasons why the contractual forum is appropriate. Ugandan courts had jurisdiction because both parties were Ugandan companies, the contract was partly performed in Uganda, and payment was due in Uganda. Where a plaintiff's suit is dismissed, the defendant's counter claim may nevertheless proceed under Order 8 rule 12 of the Civil Procedure Rules. The High Court has power under section 18(1)(a) Civil Procedure Act to transfer suits below its pecuniary jurisdiction to the Magistrate's Court. Appeal allowed; matter remitted for retrial.

Outcome

Matter remitted to the Magistrate's Court for retrial before another magistrate with competent jurisdiction

Facts

The respondent's shipper contracted with CMA CGM Societe Anonyme in France to transport goods from Tokyo, Japan, to Kampala at a cost of USD 7,987.60. The bill of lading was executed by CMA CGM Japan KK. The cost was payable to the appellant upon delivery from Mombasa to Kampala. During transit, extra costs were incurred, giving rise to a dispute about the amount payable. The appellant instructed Damco Logistics Ltd not to release the container until payment. The respondent filed suit in the High Court Commercial Division. The appellant filed a defence, an application for a temporary injunction to restrain the respondent from dealing with the goods, and a counter claim. Justice Kiryabwire dismissed the injunction application with costs and transferred the main suit to the Chief Magistrate's Court as it was below the High Court's pecuniary jurisdiction. The Chief Magistrate dismissed both the suit and counter claim on grounds that the contract was made in Japan and Ugandan courts had no territorial jurisdiction. The appellant appealed.

Issues

  1. Whether the trial Magistrate erred in law and fact in holding that the courts in Uganda had no jurisdiction to entertain the dispute.
  2. Whether the parties should have filed the suit only in Japan where the contract was concluded.
  3. Whether the High Court erred in transferring the suit to the Magistrate's Court.
  4. Whether the trial Magistrate erred in dismissing the appellant's counter claim without hearing the parties on merit.
  5. Whether the trial Magistrate erred in dismissing Miscellaneous Application No. 326 of 2013 without considering its merits.

Orders

  • Appeal allowed on grounds 1, 2, 3, and 5.
  • Judgment and decree of the trial Magistrate set aside in respect of grounds 1, 2, 3, and 5.
  • Main suit and counter claim to be retried before another Magistrate with competent jurisdiction.
  • File to be returned to the lower court for retrial.
  • Ground 4 disallowed.
  • Order dismissing the temporary injunction upheld.
  • Costs of the appeal awarded to the appellant.

Rules and key headnotes

Civil Procedure — Jurisdiction — Submission to Jurisdiction — Voluntary Submission by Filing Suit and Counter Claim
Where parties to a contract have agreed to an exclusive foreign jurisdiction clause but voluntarily submit to the jurisdiction of Ugandan courts by filing both suit and counter claim in those courts, the Ugandan courts acquire jurisdiction to determine the matter notwithstanding the contractual clause.
Civil Procedure — Jurisdiction — Exclusive Jurisdiction Clauses — Burden on Party Enforcing Clause
Where parties have bound themselves by an exclusive jurisdiction clause, effect should ordinarily be given to that obligation unless the party suing in the non-contractual forum discharges the burden of showing strong reasons for suing in that forum. The trial court should consider all circumstances including where evidence is located, applicable law, connection of parties to the forum, genuine desire for foreign trial versus procedural advantage, and prejudice to parties.
Civil Procedure — Jurisdiction — Territorial Jurisdiction — Contract Partly Performed in Uganda
Under section 15 of the Civil Procedure Act, every suit may be instituted in a court within whose local limits the cause of action wholly or partly arises. Where both parties to a dispute are Ugandan companies, the contract was partly performed in Uganda, and payment was due in Uganda, Ugandan courts have territorial jurisdiction regardless of where the contract was concluded or what law governs the contract.
Civil Procedure — Counter Claims — Right to Proceed When Main Suit Dismissed
Under Order 8 rule 12 of the Civil Procedure Rules, where a defendant sets up a counter claim and the suit of the plaintiff is stayed, discontinued or dismissed, the counter claim may nevertheless be proceeded with. Order 8 rule 13 gives the court discretion to proceed with the defendant's counter claim if the plaintiff's suit is dismissed.
Civil Procedure — Transfer of Suits — High Court Power to Transfer to Magistrate's Court
Under section 18(1)(a) of the Civil Procedure Act, the High Court has power on its own motion without notice to the parties to transfer any suit, appeal, or other proceeding pending before it for trial or disposal to any magistrate's court competent to try or dispose of it where the suit is below the pecuniary jurisdiction of the High Court.
Civil Procedure — Res Judicata — Application Previously Heard and Dismissed
Under section 7 of the Civil Procedure Act, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court competent to try the subsequent suit and has been heard and finally decided by that court. An application for a temporary injunction that has been heard and dismissed by the High Court is res judicata and cannot be relitigated in the Magistrate's Court.

Legislation cited (15)

Cases cited (7)

  • Uganda Telecom Ltd v Rodrigo Chacon (HCMA No. 337 of 2008)
  • John Russell & Co. Ltd v Cayzer, Irvine & Co. Ltd [1916] 2 AC 298
  • Bank of Uganda v Transroad Ltd (Supreme Court Civil Appeal No. 03 of 1997)
  • Raytheon Aircraft Credit Corporation v Air Al-Faraj Limited [2005] 2 EA 259
  • Donohue v Armco Inc [2002] 4 LRC 478
  • Donohue v Armco Inc [2001] 1 Lloyd's Rep. 425
  • Twiga Chemical Industries Ltd v Viola Bamusedde t/a Triple B Enterprises (Court of Appeal Civil Appeal No. 09 of 2002)

Full judgment

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

CMA CGM Uganda Ltd v H. Ssekatawa International Ltd (Civil Appeal No. 27 of 2013) [2015] UGCommC 59 (26 March 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.