Wakilii

Omony v Aol & Others (Miscellaneous Cause 1 of 2024)

High Court · [2024] UGHC 83 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim measure of protection under the Arbitration and Conciliation Act to restrain respondents from disposing of land pending arbitral proceedings
Decision
Application for interim measure of protection dismissed with costs to 4th and 5th Respondents.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed. Applicant failed to demonstrate harm not adequately reparable by damages where the sale agreement provided for refund with interest. No evidence was adduced that respondents were incapable of paying damages. The land in question was estate property held in trust for 17 beneficiaries — granting the injunction would restrain non-parties from dealing with their shares. Estate had other properties from which any award could be satisfied. Property held in trust cannot be attached to satisfy claims against trustees personally.

Outcome

Application for interim measure of protection dismissed with costs to 4th and 5th Respondents.

Facts

Applicant purchased land from 1st-3rd Respondents in 2015 under an agreement providing that disputes would go to arbitration. The land had already been sold by another family member in 1999 and registered to different owners. High Court declared those owners as lawful owners in 2023. Applicant sought refund and commenced arbitration. Applicant discovered the estate was advertising residue land for sale and applied for interim measure of protection to restrain disposal pending arbitration. 4th and 5th Respondents were administrators of the estate of the late Oyaka Bule Yovan holding property for 17 beneficiaries. Applicant withdrew case against 1st and 2nd Respondents. 3rd Respondent did not respond.

Issues

  1. Whether the court should grant an interim measure of protection to restrain the respondents from disposing of land pending arbitral proceedings.
  2. Whether the applicant demonstrated harm not adequately reparable by damages.
  3. Whether the applicant has a reasonable possibility of success on the merits.
  4. Whether an interim measure of protection can extend to estate property held in trust for beneficiaries not party to the arbitration agreement.

Orders

  • Application dismissed.
  • Costs awarded to the 4th and 5th Respondents.
  • 3rd Respondent not awarded costs as she did not reply to the application or appear in court.

Rules and key headnotes

Interim Measures of Protection — Jurisdiction of High Court
The High Court has jurisdiction under Section 6 of the Arbitration and Conciliation Act to grant an interim measure of protection before or during arbitral proceedings, and such court orders may be enforced against third parties unlike arbitral tribunal orders which extend only to parties to the arbitration.
Interim Measures of Protection — Test for Grant
Although the Arbitration and Conciliation Act does not specify conditions for granting interim measures, the court must exercise its discretion judiciously. Guidance from Article 17A of the 2006 UNCITRAL Model Law requires the applicant to prove that harm not adequately reparable by damages is likely and substantially outweighs harm to the opposing party, and that there is a reasonable possibility of success on the merits.
Interim Measures of Protection — Irreparable Harm Not Established
An interim measure of protection will not be granted where the applicant fails to demonstrate how loss is incapable of being adequately compensated by damages, particularly where the underlying agreement provides for refund with interest in case of failed consideration and no evidence is adduced that the respondents are incapable of paying any arbitral award.
Estate Property — Interim Measures Cannot Restrain Non-Parties
Where land is estate property held in trust by administrators for multiple beneficiaries, an interim measure restraining disposal of that land would improperly restrain non-parties to the arbitration from dealing with their beneficial shares, and such a measure will not be granted.
Trust Property — Attachment Against Trustees
Property held in trust by administrators of an estate cannot be attached to recover amounts awarded personally against the administrators because they hold the property in trust for the beneficiaries and not in their personal capacity.

Legislation cited (6)

Cases cited (3)

  • Capt. Joseph Charles Roy v D&D International (U) Limited (HCMA No. 283 of 2018)
  • Gatx India PVT LD versus Ashiya Rail Infrustructure Limited and another 2014 (4) Arb LR 113
  • Administrator General v Kakooza Umaro (HCMA No. 11 of 2017)

Full judgment

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

Omony v Aol & Others (Miscellaneous Cause 1 of 2024) [2024] UGHC 83 (6 March 2024)
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.