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Mugabo v Saava & 2 Ors (Miscellaneous Cause No. 65 of 2012)

High Court · [2012] UGHC 282 · 2012 Application Stayed — Referred to Arbitration AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Miscellaneous application before High Court Land Division, determined on preliminary objection
Decision
Application stayed and dispute referred to arbitration

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where parties have agreed to an arbitration clause in their contract, the court is mandated under sections 5 and 40 of the Arbitration and Conciliation Act to stay proceedings and refer the dispute to arbitration unless the arbitration agreement is null and void, inoperative, or incapable of being performed. Application stayed and parties referred to arbitration.

Outcome

Application stayed and dispute referred to arbitration

Facts

The applicant sought a vesting order in respect of land. The parties had entered into a memorandum of agreement dated 9 June 2011 which contained an arbitration clause providing that any dispute arising from the agreement shall be referred to an independent arbitrator agreeable to both parties whose decision shall be final. When the application came before the court, counsel for the first respondent raised two preliminary objections. The second preliminary objection was that under sections 5(9) and 40 of the Arbitration and Conciliation Act, once parties agree to a mode of dispute resolution in an agreement, they should strictly act in pursuance of that clause and the court must refer the matter to arbitration. The applicant opposed the objection, arguing that the Arbitration and Conciliation Act does not supercede the Constitution and that the applicant had made several unsuccessful attempts to resolve the matter with the respondent.

Issues

  1. Whether the application is effective given that the land is registered in the names of individuals rather than the estate against which the application was brought.
  2. Whether the court should stay proceedings and refer the parties to arbitration under the Arbitration and Conciliation Act where the parties' agreement contains an arbitration clause.

Orders

  • Preliminary objection upheld.
  • Proceedings stayed.
  • Dispute referred to arbitration as per the agreement between the parties.
  • Costs in the cause.

Rules and key headnotes

Arbitration & ADR — Arbitration Clauses — Mandatory Referral to Arbitration
Where parties have agreed to an arbitration clause in a contract, the court is mandated under sections 5 and 40 of the Arbitration and Conciliation Act to stay proceedings and refer the dispute to arbitration unless the arbitration agreement is null and void, inoperative, or incapable of being performed.
Arbitration & ADR — Arbitration Clauses — Enduring Effect
An arbitral clause in a contract has an enduring and special effect. Even if parties decide to adopt a different dispute resolution mechanism for a particular dispute that arises under a contract, the arbitration clause continues in force and is not thereby totally repudiated unless there is a solid reason for doing so.
Civil Procedure — Preliminary Objections — Stay of Proceedings for Arbitration
Sustaining a preliminary objection by referring a matter to arbitration as per the agreement of the parties disposes of all matters in the dispute to achieve the ends of justice and avoids multiplicity of proceedings and abuse of court process as required under section 33 of the Judicature Act and section 98 of the Civil Procedure Act.

Legislation cited (8)

Cases cited (3)

  • NSSF v Alcon International Ltd (Civil Appeal No. 2 of 2008)
  • Power & City Contractors Ltd v LTL Project Ltd (HCT-09-CV-MA-0062-2011)
  • David St. John Sutton: Russel On Arbitration, 22nd edition, Sweet & Maxwell, paragraphs 2-119, page 80

Full judgment

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

Mugabo v Saava & 2 Ors (Miscellaneous Cause No. 65 of 2012) [2012] UGHC 282 (13 December 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.