Wakilii

MSS XSABO Power Limited and Others v Great Lakes Energy Company NV (Miscellaneous Application 1567 of 2022)

High Court · [2022] UGCOMMC 101 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal from dismissal of application for variation of interim measures order made in support of ongoing arbitration proceedings
Decision
Application for leave to appeal dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that there is no right of appeal, whether direct or with leave, from High Court decisions on interim measures of protection made in judicial assistance to arbitration proceedings. The Arbitration and Conciliation Act is a self-contained code that deliberately limits appeals to matters of law arising out of arbitral awards where parties have agreed that an appeal shall lie. Orders on interim measures do not fall within the appealable categories under section 76 of the Civil Procedure Act, and the Act does not provide for appeals from such orders.

Outcome

Application for leave to appeal dismissed with costs to the respondent

Facts

The applicants and respondent entered into investment agreements for a solar power project in Uganda. The respondent became a shareholder in the project company after expending monies. A dispute arose when the applicants accused the respondent of inflating construction costs by approximately US$6,000,000. The applicants rescinded the investment agreement and revoked the respondent's share allotment. The respondent commenced arbitration at the London Court of International Arbitration and obtained an interim measures order from the Commercial Division restraining the applicants from accessing funds in the project company's bank accounts pending arbitration. The applicants' subsequent application to vary that order to withdraw £59,649 for arbitration fees was dismissed on 26 September 2022. The applicants then filed a notice of appeal and sought leave to appeal that dismissal.

Issues

  1. Whether the applicants have a right to appeal the dismissal of their application for variation of an interim measures order made in support of arbitration proceedings.
  2. Whether leave to appeal should be granted from an interlocutory order made by the High Court in judicial assistance to parties in the course of arbitration.
  3. Whether The Arbitration and Conciliation Act permits appeals from High Court orders granting or refusing interim measures of protection in support of arbitration.

Orders

  • Application for leave to appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Arbitration & ADR — Appeals from Arbitration-Related Orders — Statutory Limits on Appellate Rights
The right of appeal is a creature of statute and must be given expressly by statute; there is no inherent, inferred or assumed right of appeal.
Arbitration & ADR — Interim Measures of Protection — Non-Appealability of Orders
Under The Arbitration and Conciliation Act, there is no right of appeal, whether direct or with leave, from High Court orders granting or refusing interim measures of protection in support of arbitration proceedings, as such orders do not fall within the categories of appealable orders specified in section 76(1) of the Civil Procedure Act.
Arbitration & ADR — Appeals — Requirement of Party Agreement
The Arbitration and Conciliation Act permits appeals to the Court of Appeal only where the parties have agreed that an appeal shall lie on matters of law arising out of the arbitral award, coupled with leave to appeal granted by either the High Court or the Court of Appeal.
Arbitration & ADR — Court Intervention — Principle of Restricted Intervention
The Arbitration and Conciliation Act is a self-contained code; by virtue of section 9, it is clearly intended that challenges to the arbitration process and orders made by the High Court for the preservation of that process must be made under the Act, and except as provided in the Act, no court should intervene in matters governed by the Act.
Arbitration & ADR — Party Autonomy — Finality of Arbitral Process
Underlying the concept of arbitration as an alternative dispute resolution mechanism are the principles of party control and restricted court intervention; when parties choose to resolve their disputes privately outside the public court system through arbitration, they should be left to that choice and not be subject to court intervention except as needed to determine validity of the arbitration agreement or to ensure standards of basic procedural fairness.
Civil Procedure — Appeals — Appealable Orders in Arbitration Context
Section 76(1)(a)-(e) of the Civil Procedure Act expressly limits appealable orders in arbitration proceedings to: orders superseding an arbitration where the award has not been completed within the allowed period; orders on an award stated as a special case; orders modifying or correcting an award; orders staying or refusing to stay a suit where there is an agreement to refer to arbitration; and orders filing or refusing to file an award in arbitration without court intervention.
Arbitration & ADR — Interim Measures — Remedy for Improper or Burdensome Orders
If a party believes an interim measures order was granted improperly or is no longer needed, or that the protection is too broad or too burdensome, the remedy is to file a motion asking the court to vacate, vary or review the order, but not to appeal it.

Legislation cited (19)

Cases cited (10)

  • Mohamed Kalisa v Gladys Nyangire Karumu and Two Others (Supreme Court Civil Reference No. 139 of 2013)
  • Hamam Singh Bhogal T/a Hamam Singh & Co. v. Jadva Karsan (1953) 20 EACA 17
  • Baku Raphael v Attorney General (Supreme Court Civil Appeal No. 1 of 2005)
  • Attorney General v. Shah (No. 4) [1971] EA 50
  • Lane v. Esdaile (1891) A.C. 210
  • Ex parte Stevenson (1892) 1 Q.B. 609
  • Nyutu Agrovet Limited v. Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] eKLR
  • Synergy Industrial Credit Limited v. Cape Holdings Limited (2019) eKLR
  • Gold and Resource Developments (NZ) v. Doug Hood Ltd [2000] 3 NZLR 318
  • MSS Xsabo Power Limited and Four Others v Great Lakes Energy Company NV (Miscellaneous Application No. 1069 of 2022)

Full judgment

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

MSS XSABO Power Limited and Others v Great Lakes Energy Company NV (Miscellaneous Application 1567 of 2022) [2022] UGCommC 101 (12 December 2022)
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.