Wakilii

Fountain Publishers v Nantamu & Anor (Arbitration Cause No. 1 of 2011)

High Court · [2019] UGCOMMC 30 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to review an arbitral award on grounds of error apparent on the face of the record
Decision
Application dismissed as abuse of court process

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to review an arbitral award. Section 9 of the Arbitration and Conciliation Act limits court intervention to three instances: stay of proceedings, setting aside awards under section 34, and enforcement under section 36. Review under Order 46 CPR does not apply to arbitral awards. The proper remedy for challenging an award is an application to set aside under section 34(3), which must be filed within one month of receipt of the award. The applicant's earlier application to set aside had been dismissed as time-barred in 2011. Filing the same application eight years later seeking identical orders amounted to abuse of court process and an attempt to undermine judicial authority.

Outcome

Application dismissed as abuse of court process

Facts

In 2006, the respondents sued the applicant for breach of a publishing contract relating to primary science textbooks, claiming royalties. The matter was referred to arbitration in 2008. On 7 September 2009, the arbitrator delivered an award in the respondents' favour, ordering the applicant to pay damages of 40% of total sales before 3 October 2005, royalties of 10% on new textbooks sold thereafter, interest at 8% per annum, and costs. The award was filed in the High Court Commercial Division on 3 March 2011. On 11 March 2011, the applicant filed an application to set aside the award under section 34 of the Arbitration and Conciliation Act, which was dismissed on 13 May 2013 as time-barred. The applicant appealed, but the notice of appeal and the appeal were struck out by the Court of Appeal on 30 April 2019. On 2 May 2019, the applicant filed the present application seeking to review the arbitral award on grounds that it was delivered beyond the statutory two-month period without written extension of time.

Issues

  1. Whether the court has jurisdiction to review an arbitral award under Order 46 of the Civil Procedure Rules.
  2. Whether delay in delivering an arbitral award beyond the statutory two-month period constitutes an error apparent on the face of the record warranting review.
  3. Whether the application constitutes an abuse of court process.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Court Intervention — Limits on Judicial Review of Arbitral Awards
Section 9 of the Arbitration and Conciliation Act limits court intervention in arbitration matters to three instances: stay of legal proceedings when a matter is referred to arbitration under section 5; setting aside of an arbitral award under section 34; and enforcement of arbitral awards under section 36. Outside these provisions, courts have no jurisdiction to intervene.
Review of Judgments — Inapplicability to Arbitral Awards
Order 46 of the Civil Procedure Rules, which provides for review of court judgments, does not apply to arbitral awards. The only statutory mechanism for challenging an arbitral award is an application to set aside the award under section 34 of the Arbitration and Conciliation Act.
Setting Aside Awards — Time Limits
An application to set aside an arbitral award under section 34(3) of the Arbitration and Conciliation Act must be filed within one month from the date the party making the application received the award, or if a request for correction or interpretation was made under section 33, within one month from the date that request was disposed of. This time limit is mandatory.
Delay in Delivering Award — Not Automatic Ground for Setting Aside
Delay in delivering an arbitral award is not specified as one of the grounds for setting aside an award under section 34 of the Arbitration and Conciliation Act. Where delay is relied upon, the party seeking to set aside the award must establish the consequences of the delay, its effects on the award, and whether the party acquiesced in the delay and waived the right to challenge the award.
Abuse of Court Process — Filing Multiple Applications for Same Relief
Filing multiple applications seeking the same orders after earlier applications and appeals have been dismissed or struck out constitutes an abuse of court process. Such conduct is done in bad faith and amounts to playing lottery with the judicial process.
Finality of Litigation — Principle Against Relitigation
Litigation must come to an end. Where a party has obtained judgment in a court of justice, that party is entitled not to be deprived of that judgment without very solid grounds. Finality of litigation preserves the interest of society as a whole and ensures that the system of justice and operation of the courts are not undermined.

Legislation cited (9)

Cases cited (10)

  • Attorney General & Others v Byanyima (HCMA No. 1789 of 2000)
  • Levi Outa v Uganda Transport Company [1995] HCB 340
  • Peak Chemical Corporation Inc v National Aluminium (O.P.M No. 160 of 2005)
  • Union of India v Niko Resources Ltd (O.P.M No. 192 of 2010)
  • National Bank of Kenya Ltd v John Odawa Oluoch (Kisumu High Court Civil Case No. 205 of 1997)
  • Theluji Dry Cleaners Ltd v Muchiri & Others [2002] 2 KLR 764
  • Asea Brown Boveri Limited v Bawazir Glass Works Limited and Another (Nairobi High Court Civil Case No. 1619 of 2000)
  • Billy George Ng'ong'ah v Khan & Associates (Kisumu High Court Civil No. 471 of 1996)
  • Brown v Dean [1910] AC 373
  • Aluma & 2 Others v Okuti (HCMA No. 12 of 2016)

Full judgment

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

Fountain Publishers v Nantamu & Anor (Arbitration Cause No. 1 of 2011) [2019] UGCommC 30 (25 September 2019)
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.