Wakilii

Sheriff v Thawer (Civ. App. No. 14 of 1938.)

East African Court of Appeal · [1938] EACA 91 · 1938 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Fretz, J. (Zanzibar) dismissing action to set aside attachment and sale order
Decision
Appeal dismissed; appellant barred from challenging attachment order after arbitration award upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court of Zanzibar possesses inherent jurisdiction, apart from its statutory jurisdiction, to refer matters to arbitration with the consent of all parties, including disputes arising in execution proceedings. Where parties consent to submit their differences to arbitration and an award is duly made and upheld on appeal, a party cannot subsequently bring a fresh action raising the same question against the same party.

Outcome

Appeal dismissed; appellant barred from challenging attachment order after arbitration award upheld

Facts

Respondents obtained judgment against Mohammedali Fazal Mohammed Sheriff and seized in execution his alleged share in the estate of Fazal Mohammed Sheriff by attaching a two-third share in immovable property at Malindi. The appellant, as executor of the estate, applied to raise the attachment, claiming the judgment debtor had already received his full share. All parties consented to refer the matter to arbitration. An arbitrator's award rejected the executor's application. The executor filed objections to the award, which were dismissed with costs. The executor then brought a fresh action seeking a declaration that the attached property was not the judgment debtor's property and asking that the attachment and sale order be set aside. The trial judge dismissed the action, holding that the arbitration award, upheld on appeal, barred the subsequent action.

Issues

  1. Whether the High Court of Zanzibar had jurisdiction to refer execution proceedings to arbitration by consent of the parties.
  2. Whether the appellant was barred from bringing a subsequent action to challenge property attachment after an arbitration award had been made and upheld on appeal.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Arbitration — Inherent Jurisdiction of High Court — Reference by Consent
Apart from its statutory jurisdiction in certain cases, the High Court has inherent jurisdiction to refer to arbitration with the consent of the parties not only all questions arising in any action pending before the Court but also any other question or dispute which the parties may agree should be decided by arbitration.
Civil Procedure — Arbitration in Execution Proceedings — Statutory Provisions
The provisions for arbitration in suits under the Second Schedule of the Zanzibar Civil Procedure Decree do not apply to execution proceedings.
Arbitration — Consent Reference — Validity and Effect
Where parties consent to submit their differences to arbitration and an award is duly made and upheld on appeal, a party is barred from bringing a subsequent action raising the same question against the same party.
Administrative Law — Inherent Powers of Court — Statutory Limitation
A statutory provision that references to arbitration shall be governed by specified rules save as otherwise provided by law does not alter or limit the inherent power of a High Court of Justice to act on the consent of parties and appoint an arbitrator.

Legislation cited (4)

  • Zanzibar Civil Procedure Decree s.66
  • Zanzibar Civil Procedure Decree Sch. II
  • Zanzibar Civil Procedure Rules O. XXIII r. 60
  • Indian Civil Procedure Code s.89

Cases cited (2)

  • T. Wang v Sonawangdi (52 Cal 559)
  • Darlington Wagon Company v Harding (1891) 1 QB 245

Full judgment

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

Sheriff v Thawer (Civ. App. No. 14 of 1938.) [1938] EACA 91 (1 January 1938)
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.