Wakilii

Motor Centre (EA) Ltd v Ssemberege (Miscellaneous Application No. 766 of 2015)

High Court · [2016] UGCOMMC 3 · 2016 Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of judgment and decree arising from HCCS No. 0369 of 2011
Decision
Matter remitted to the referee for reconsideration of the award in light of allegations of fraud, double payments and omissions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A court cannot review the award of a referee appointed under section 27(c) of the Judicature Act through an application under Order 46 of the Civil Procedure Rules, which applies only to decrees or orders made by the court itself. The proper procedure for challenging a referee's award is under Order 47 rule 14 or rule 15 of the Civil Procedure Rules. Where allegations of fraud or material omissions are raised, the court may remit the matter to the same referee for reconsideration under Order 47 rule 14.

Outcome

Matter remitted to the referee for reconsideration of the award in light of allegations of fraud, double payments and omissions

Facts

The applicant filed an application to set aside and review the judgment and decree passed in HCCS No. 0369 of 2011, which arose from a commercial dispute over accounts. The parties had appointed auditors who reached partial agreement on an amount of UGX 6,056,000 owing to the respondent but disagreed on the remainder. The court appointed FELBright & Co. as independent referee under section 27(c) of the Judicature Act to reconcile the contentious matters. The referee's report, dated 21 August 2015, found the applicant owed the respondent UGX 47,710,000. The court recognised this award and proceeded to determine damages, interest and costs in its judgment of 28 August 2015. The applicant sought review on grounds that the referee's report contained misleading findings, omissions of payments, double counting, and that the respondent's claim was tainted with fraud. The respondent opposed the application, asserting that all disputed payments had been properly analysed by the referee and that no new evidence had been discovered.

Issues

  1. Whether a court can review the findings and award of a referee appointed under section 27(c) of the Judicature Act using the review jurisdiction under Order 46 of the Civil Procedure Rules.
  2. Whether the application disclosed grounds for setting aside or remitting an arbitrator's or referee's award under Order 47 of the Civil Procedure Rules.
  3. Whether the award of interest by the court was manifestly excessive or otherwise improper.

Orders

  • The previous judgment recognising the referee's award is set aside.
  • The allegations contained in the notice of motion and supporting affidavits are remitted to Messieurs FELBright & Co. Certified Public Accountants for reconsideration.
  • The referee shall decide whether the award should be modified on the basis of the allegations of double payments and omissions within one month from the date of remittance.
  • The court will recognise whatever decision is reached by the referee pursuant to reconsideration.
  • The order of interest by the court will be applied on the revised amount determined by the referee.
  • The costs of this application shall abide the outcome of the reconsideration of the award.

Rules and key headnotes

Civil Procedure — Review of Judgments — Scope of Order 46 — Whether Court Can Review Award of Referee
Order 46 of the Civil Procedure Rules applies only to the review of decrees or orders made by the court itself, not to awards made by referees, arbitrators or umpires appointed under section 27(c) of the Judicature Act. A court cannot review what it did not decide, and where the court merely recognises and adopts a referee's award without independently deciding the substantive matter, Order 46 does not apply.
Arbitration & ADR — Reference to Referee — Award Under Section 27(c) of Judicature Act — Procedure for Challenging Award
An award made by a referee appointed under section 27(c) of the Judicature Act is enforceable as a judgment of the court. The proper procedure for challenging such an award is under Order 47 of the Civil Procedure Rules, which provides for setting aside an award (rule 15), remitting an award for reconsideration (rule 14), or modifying or correcting an award (rule 12).
Arbitration & ADR — Grounds for Setting Aside Award — Order 47 Rule 15 Civil Procedure Rules
Under Order 47 rule 15 of the Civil Procedure Rules, an award can be set aside only on the grounds of: corruption or misconduct of the arbitrator or umpire; fraudulent concealment or wilful misleading or deceiving of the arbitrator by either party; or the award having been made after a superseding order or after expiration of the allowed period, or being otherwise invalid.
Arbitration & ADR — Remitting Award for Reconsideration — Order 47 Rule 14 Civil Procedure Rules
Under Order 47 rule 14 of the Civil Procedure Rules, the court may remit an award or any matter referred to arbitration for reconsideration by the same referee, arbitrator or umpire upon such terms as the court thinks fit. This power arises where an objection is made to the legality of the award which is apparent upon the face of it. Allegations of fraud, double payments or material omissions may constitute grounds for remitting the matter to the referee for reconsideration.
Civil Procedure — Interest — Award of Interest — Discretion of Court
Award of reasonable interest on a principal amount is at the discretion of the court under section 26 of the Civil Procedure Act. Where the principal amount awarded by a referee is subject to reconsideration, the quantum of interest awarded by the court will be affected accordingly. A manifestly excessive award of interest is a ground for appeal, not for review.

Legislation cited (12)

Cases cited (1)

  • Kajumba Muganga v Microcare Health Clinic (High Court Civil Suit No. 342 of 2009)

Full judgment

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Motor Centre (EA) Ltd v Ssemberege (Miscellaneous Application No. 766 of 2015) [2016] UGCommC 3 (12 January 2016)
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.