Wakilii

Eyre Malik Agar v Gen. Moru Jijiyo and 3 Others (Miscellaneous Application No. 53 of 2023)

High Court · [2023] UGCOMMC 18 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside arbitral award and garnishee orders arising from Arbitration Cause No. 3 of 2023
Decision
Arbitral award and garnishee orders set aside. Funds ordered returned to applicant with provision for interest if not complied with within two days.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court found the arbitral award dated 11 July 2019 and all related proceedings fraudulent. Key witnesses testified they were not in Uganda during purported arbitration hearings. The arbitrator's passport showed no Uganda entry stamps for the claimed hearing date. The price calculation contained mathematical errors suggesting fabrication. Service of process was defective as the purported process server was not a judicial officer and had died. Court set aside the arbitral award and garnishee orders, directing return of US$ 454,976 to the applicant's account within two days with commercial interest.

Outcome

Arbitral award and garnishee orders set aside. Funds ordered returned to applicant with provision for interest if not complied with within two days.

Facts

The 1st and 2nd respondents filed an arbitration cause to enforce an award dated 11 July 2019 for US$ 592,222.2 allegedly arising from non-payment for goods supplied in 2008. A garnishee nisi was issued against the applicant's KCB account. After an initial application to set aside was withdrawn, a garnishee absolute was granted on 20 March 2023, transferring US$ 454,976 to the 3rd respondent's account. The applicant filed this application contending he had no knowledge of any transactions with the respondents, was never served with arbitration documents, and the entire proceeding was fraudulent. Evidence revealed the 2nd respondent only first came to Uganda in April 2022, yet claimed to have testified at arbitration hearings in May 2019. The arbitrator's passport contained no Uganda entry stamps for the hearing dates. The purported process server was not a judicial officer and had died in 2022. Mathematical errors in the contract documents suggested fabrication.

Issues

  1. Whether the arbitral award in Arbitration Cause No. 3 of 2023 was fraudulent and ought to be set aside.
  2. Whether the garnishee order absolute granted on 20 March 2023 should be set aside.
  3. Whether execution of the garnishee order should be reversed and funds returned to the applicant's account.

Orders

  • Miscellaneous Application No. 53 of 2023 allowed.
  • Arbitral award in Arbitration Cause No. 3 of 2023 set aside.
  • All garnishee proceedings arising from Miscellaneous Application No. 13 of 2023 and Arbitration Cause No. 3 of 2023 set aside.
  • 3rd Respondent to transfer US$ 454,976 from Account Number 07173840010 to Applicant's KCB Account Number 2201976066 within two days.
  • Failure to comply attracts interest at commercial rate from date of ruling until full transfer.
  • 1st and 2nd Respondents to pay costs of the application to the Applicant.
  • No costs order against 3rd Respondent.

Rules and key headnotes

Setting Aside Arbitral Awards — Fraud — Burden of Proof
An arbitral award procured through fraud may be set aside where the applicant demonstrates that the arbitration proceedings did not take place, witnesses could not have been present as claimed, and documents supporting the award contain material inconsistencies and fabrications.
Service of Process — Personal Service — Requirements for Effective Service
For service to be deemed proper and effective under Order 5 r.16 CPR, there must be proof of service by a serving officer or process server, including the time and manner of service and the name and address of the person identifying the person served. Service effected by a person who is not a competent process server is invalid.
Affidavit of Service — Defects — Failure to Identify Person Served
Failure to record the name and address of the person identifying the person to be served renders the affidavit of service incurably defective and does not amount to effective service.
Garnishee Proceedings — Setting Aside — Fraud in Underlying Judgment or Award
Courts cannot condone fraud or allow garnishee proceedings arising from a fraudulent arbitral award to stand. Where an arbitral award is shown to be fraudulent, all execution proceedings including garnishee orders must be set aside as founded on illegality.
Witness Credibility — Contradictions in Testimony
Where key witnesses provide testimony under oath that fundamentally contradicts documentary evidence and affidavit evidence on the record, the court is entitled to reject the claim that the events described in the documents occurred.

Legislation cited (8)

Cases cited (4)

  • Surgipharm (U) Limited Versus Uganda Investment Authority and Graphics System (U) Limited High Court Civil Division Miscellaneous Cause No 65 of 2021
  • Makula International Versus His Eminence Cardinal Nsubuga (1982) HCB 24
  • MB Automobiles vs. Kampala Bus Service [1966] EA 400
  • Owani vs. Bukenya Salongo [1976] HCB 62

Full judgment

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

Eyre Malik Agar v Gen. Moru Jijiyo and 3 Others (Miscellaneous Application No. 53 of 2023) [2023] UGCommC 18 (25 April 2023)
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.