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Government of the Republic of Rwanda v Liberty Construction Company Ltd (HCT-00-CC-MA-477-2011)

High Court · [2012] UGHC 481 · 2012 Application Partly Allowed — Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under s.34(4) Arbitration and Conciliation Act to suspend proceedings to set aside arbitral award and remit matter back to arbitrator for reconsideration
Decision
Matter remitted to the arbitrator for reconsideration on specified issues

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an arbitral award may be remitted back to the arbitrator under s.34(4) of the Arbitration and Conciliation Act notwithstanding the functus officio rule. The arbitrator's failure to extend time under s.31(1) and the typographical error in naming the claimant as the Embassy rather than the Government of Rwanda were not grounds to set aside the award. The court remitted the award for reconsideration on the respondent's counterclaim for special damages and the award of US$ 2,500 per month as rent for alternative accommodation.

Outcome

Matter remitted to the arbitrator for reconsideration on specified issues

Facts

The Government of Rwanda and Liberty Construction Company Ltd entered into a construction contract and agreed to submit disputes to arbitration. An arbitral award was pronounced on 2 March 2011 by Hon. (Rtd) Justice H. Ntabgoba. At the outset of arbitration the arbitrator ordered that the party named as the Embassy of the Republic of Rwanda be substituted by the Government of the Republic of Rwanda. However, the final award was issued in the name of the Embassy. The respondent filed an application to set aside the arbitral award on grounds including that the award was in the name of a nonexistent party, the arbitrator failed to extend time under s.31(1) of the Arbitration and Conciliation Act, and the arbitrator made no award on the respondent's counterclaim for special damages. The applicant then brought this application under s.34(4) of the Arbitration and Conciliation Act seeking to suspend the proceedings to set aside and remit the award back to the arbitrator for reconsideration.

Issues

  1. Whether the arbitrator is functus officio and therefore cannot resume the arbitration under s.34(4) of the Arbitration and Conciliation Act.
  2. Whether the application is out of time and contrary to the provisions of s.33 of the Arbitration and Conciliation Act.
  3. Whether the award is so defective that it cannot be reconsidered by the arbitral tribunal under s.34(4) of the Arbitration and Conciliation Act.
  4. Whether it is appropriate for this court to refer the award back to the arbitrator to correct errors and make any further award under s.34(4) of the Arbitration and Conciliation Act.

Orders

  • The award made by Hon. (Rtd) Justice H. Ntabgoba on 2 March 2011 is remitted back to the arbitrator for reconsideration on: (a) the respondent's counterclaim for special damages, and (b) the award of US$ 2,500 per month to the applicant as rent for alternative accommodation.
  • Such reconsideration to take place within two months.
  • Each party to pay their advocate's costs of this application.
  • The hearing of M.A No. 171 of 2011 is suspended for two months and the application will be called up for mention on 16 May 2012 at 9:00 a.m.

Rules and key headnotes

Functus Officio Rule — Remission of Award under s.34(4) ACA — Resumption of Arbitration after Final Award
Upon pronouncement of a final arbitral award the arbitrator becomes functus officio, but the court has statutory authority under s.34(4) of the Arbitration and Conciliation Act to remit the award back to the arbitrator for reconsideration. After such an order the arbitrator may resume the arbitration and becomes functus officio again only after the remedies under s.34(4) and (5) are exhausted.
Scope of Remission under s.34(4) ACA — Powers of Arbitral Tribunal on Remission
The mandate given to the arbitrator under s.34(4) of the Arbitration and Conciliation Act to resume arbitration is broader than the power under s.33 which is limited to correction of computational, clerical or typographical errors. Under s.34(4) the arbitral tribunal may evaluate evidence, correct errors of any kind, and make an additional award in order to eliminate the grounds for setting aside the arbitral award.
Substitution of Parties — Misnomer in Arbitral Award — Effect on Validity
Where an arbitrator orders substitution of a party's name from the Embassy of Rwanda to the Government of Rwanda on grounds of justice, fairness and good conscience under s.28(4) of the Arbitration and Conciliation Act, the failure to reflect that substitution in the title of the final award is a slip or typographical error that does not vitiate the award. The order of substitution is final and binding where parties have agreed that the arbitral award is final and not appealable.
Time for Making Award — Extension of Time under s.31(1) ACA — Waiver by Participation
Where an arbitrator fails to extend time for making an award within two months as required by s.31(1) of the Arbitration and Conciliation Act, a party who participates in the arbitration to conclusion without objection waives the right to challenge the award on that ground. Under s.4 of the Act a party who knows of non-compliance with a requirement and proceeds without objection is deemed to have waived the right to object.
Scope of Judicial Intervention — Setting Aside Award versus Re-evaluation of Evidence
Courts will not take upon themselves the task of re-evaluating evidence before an arbitrator. A court called upon to set aside an arbitral award has no jurisdiction to substitute the award with one of its own where no right of appeal is provided in the Arbitration and Conciliation Act or in the arbitration agreement. Setting aside an award for errors or omissions does not empower the court to make substantive findings on the merits and replace the arbitrator's decision.
Remission versus Setting Aside — Grounds and Discretion of the Court
Where without misconduct a mishap or misunderstanding has caused certain aspects of the dispute to not be considered or adjudicated upon as fully as the parties were entitled to expect, remission rather than setting aside is the appropriate remedy. Remission should be ordered where it would be inequitable to allow the award to take effect without further consideration by the arbitrator. An award should be set aside rather than remitted only where there has been a serious miscarriage of justice such as bias, fraud, or conduct giving rise to a reasonable likelihood that the arbitrator could not fairly determine the issues.

Legislation cited (13)

Cases cited (8)

  • Joseph Sekitoleko v Gapco (U) Ltd (Miscellaneous Application No. 202 of 2002)
  • Kilembe Mines v BM Steel Ltd (Constitutional Court Miscellaneous Cause No. 002 of 2005)
  • Shell (U) Ltd v Agip (U) Ltd (Supreme Court Civil Appeal No. 49 of 1995)
  • NSSF & WH Sentoogo v Alcon International (Court of Appeal Civil Appeal No. 2 of 2008)
  • Lombard Banking Kenya Ltd v Shah Bhaichand Bhagwanji [1960] 1 EA 969
  • Dwarka Nath v Kedar Nath AIR 1951 Pat 445
  • Simbamanyo Estates Ltd v Seyani Brothers Company (Miscellaneous Application No. 555 of 2002)
  • Chevron Kenya Ltd v Daquare Transporters Ltd (Miscellaneous Application No. 490 of 2008)

Full judgment

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Government of the Republic of Rwanda v Liberty Construction Company Ltd (HCT-00-CC-MA-477-2011) [2012] UGHC 481 (13 March 2012)
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.