Wakilii

Roko Construction Ltd v Mohammed Mohammed Hamid (Civil Appeal No. 51 of 2011)

Court of Appeal · [2012] UGCA 27 · 2012 Preliminary Objection Upheld — Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court order setting aside an arbitral award, heard on a preliminary objection to the competence of the appeal.
Decision
Appeal struck out as incompetent; High Court order setting aside the arbitral award vacated as a nullity; arbitral award restored as valid and enforceable.

Observed later treatment

Treatment recorded in citing cases followed in 2 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 2 cases and applied in 0 cases, with no adverse treatment recorded. Citations fading — 10 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that no right of appeal lies to it from a High Court decision made under the Arbitration and Conciliation Act, whether under section 16 (expressly final under s.16(7)) or section 34 (by operation of section 9 restricting court intervention). The appeal was therefore incompetent and struck out. However, noting an illegality on the face of the record, the Court held that the respondent's application to set aside the award (Civil Application No.731 of 2009) was time-barred under sections 16(6) and 34(3), rendering the High Court's order a nullity. The order setting aside the award was vacated and the arbitral award of 30.06.09 restored as valid and enforceable.

Outcome

Appeal struck out as incompetent; High Court order setting aside the arbitral award vacated as a nullity; arbitral award restored as valid and enforceable.

Facts

In July 2005 the respondent contracted the appellant to construct his residential house in Kololo at an agreed price. The parties signed the bills of quantities; the respondent disputed signing the main building agreement, which contained an arbitration clause. The appellant carried out substantial works but the respondent defaulted in payment. The appellant terminated the contract and referred the dispute to arbitration under the building agreement. When the respondent and the East African Institute of Architects failed to respond, the appellant obtained compulsory appointment of an arbitrator through CADER under the Arbitration and Conciliation Act. The arbitrator ruled on 25.01.08 that he had jurisdiction and, on 30.06.09, awarded the appellant Shs.584,430,571 plus interest and Shs.100,000,000 general damages. The respondent applied to the High Court on 21.12.09 to set aside the award, contending no arbitration agreement existed. The High Court (Kiryabwire J.) set the award aside on 09.03.2011. The appellant appealed with leave.

Issues

  1. Whether the appellant has a right in law to appeal to the Court of Appeal against a High Court order setting aside an arbitral award made under the Arbitration and Conciliation Act.
  2. Whether the respondent's application to set aside the arbitral award was competently before the High Court given statutory time limits.
  3. Whether the objection to the arbitrator's jurisdiction fell to be dealt with under section 16 or section 34 of the Arbitration and Conciliation Act.

Orders

  • Appeal struck out as incompetent for want of a right of appeal.
  • The order of the High Court setting aside the arbitral award declared a nullity and vacated.
  • The arbitral award of 30.06.09 held to remain valid and enforceable.
  • Each party to bear its own costs of the appeal.
  • Roko Construction Ltd to have the costs of the proceedings before the High Court and before the arbitrator.

Rules and key headnotes

Right of Appeal — Statutory Creation — No Appeal by Implication
A right of appeal is a creature of statute and cannot arise by mere implication; there is no right of appeal against a decision of a court of competent jurisdiction unless it is expressly provided for.
Arbitration and Conciliation Act — Right of Appeal — Section 16(7) Finality
A decision of the High Court on the arbitrator's jurisdiction, including the existence or validity of the arbitration agreement, made under section 16 of the Arbitration and Conciliation Act is final and not subject to appeal by virtue of section 16(7).
Arbitration and Conciliation Act — Section 9 — Extent of Court Intervention — No Appeal from Section 34 Decisions
By reason of section 9, a court may only intervene in arbitration matters as expressly provided by the Arbitration and Conciliation Act; accordingly no appeal lies to the Court of Appeal from a High Court decision setting aside an arbitral award under section 34, there being no provision granting such an appeal.
Jurisdiction of Arbitrator — Distinction Between Section 16 and Section 34 Applications
An objection that no arbitration agreement exists at all, so that the arbitrator lacked jurisdiction, falls to be determined under section 16 (via an application to the High Court within 30 days of the jurisdiction ruling) and not under section 34, which addresses distinct grounds for setting aside an award and presupposes the existence of an agreement.
Time Limits — Rule 7 Arbitration Rules Subordinate to the Act
Rule 7 of the Arbitration Rules cannot override the mandatory time limits in sections 16(6) and 34(3) of the Arbitration and Conciliation Act; where the statutory limitation period has expired the application to set aside an award is incompetent and time-barred.
Illegality on the Face of the Record — Duty of Court to Take the Point
Where an illegality appears on the face of the record, the court has a duty to take the point even if the litigants do not raise it, and illegality once brought to the court's attention overrides all questions of pleading; a court cannot sanction an order that is a nullity.

Legislation cited (22)

  • Arbitration and Conciliation Act Cap.4 s.4
  • Arbitration and Conciliation Act Cap.4 s.9
  • Arbitration and Conciliation Act Cap.4 s.11(4)(c)
  • Arbitration and Conciliation Act Cap.4 s.11(5)
  • Arbitration and Conciliation Act Cap.4 s.14(3)
  • Arbitration and Conciliation Act Cap.4 s.16
  • Arbitration and Conciliation Act Cap.4 s.34
  • Arbitration and Conciliation Act Cap.4 s.38
  • Arbitration and Conciliation Act Cap.4 s.71
  • Arbitration and Conciliation Act Cap.4 s.74(1)
  • Arbitration Rules First Schedule Rule 7
  • Arbitration Rules Rule 13
  • Civil Procedure Act Cap.71 s.66
  • Civil Procedure Act Cap.71 s.76
  • Civil Procedure Act Cap.71 s.81(b)
  • Civil Procedure Rules O.52 r.1
  • Judicature Act Cap.13 s.10
  • Judicature Act Cap.13 s.35
  • Judicature Act Cap.13 s.36
  • Constitution of Uganda Article 134(2)
  • Advocates Act s.61(1)
  • Arbitration Act Cap.55

Cases cited (11)

  • B.D. BILIMORIA & ANOTHER V T.D. BILIMORIA [1962] EA 198
  • Attorney General V Shah (No.4) [1971] EA 50
  • NATIONAL TELEPHONE COMPANY V POST MASTER GENERAL [1913] AC 546
  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Denis Bireje v Attorney General (Civil Application No. 31 of 2005)
  • Inspector General of Government v Orochi (Civil Appeal No. 90 of 2000)
  • B.M. Steel Ltd v Kilembe Mines Ltd (Miscellaneous Application No. 0579 of 2005)
  • Uganda Lottery Ltd v Attorney General (Miscellaneous Cause No. 627 of 2008)
  • Katamba Phillip v Magala Ronald (Arbitration Cause No. 003 of 2007)
  • PHILLIPS V COPPING [1935] I KB 15
  • BELVOIR FINANCE CO. LTD V HAROLD G. COLE LTD [1969] 2 ALLER 904

Cases citing this judgment (10)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Roko Construction Ltd v Mohammed Mohammed Hamid (Civil Appeal No. 51 of 2011) [2012] UGCA 27 (20 September 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.