Wakilii

Shimizu-Konoike Joint Venture v Abubaker Technical Services & General Supplies Limited (Miscellaneous Application 436 of 2024)

High Court · [2024] UGCOMMC 223 · 2024 Matter Referred to Arbitration AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out civil suit and refer disputes to arbitration under International Chamber of Commerce Rules
Decision
Civil Suit No.805 of 2022 dismissed and disputes referred to arbitration under International Chamber of Commerce Rules

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) 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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. 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 High Court Commercial Division dismissed the underlying civil suit and referred all disputes between the parties to arbitration under the International Chamber of Commerce Rules. The court held that where parties have entered into a valid and binding arbitration agreement covering disputes arising from their contract, Section 5(1) of the Arbitration and Conciliation Act mandates that the court refer the matter to arbitration unless the agreement is null and void, inoperative, or incapable of being performed. The alleged release of money secured under a performance guarantee did not operate as a waiver of the right to arbitrate and did not render the arbitration agreement inoperative.

Outcome

Civil Suit No.805 of 2022 dismissed and disputes referred to arbitration under International Chamber of Commerce Rules

Facts

The Applicant, Shimizu-Konoike Joint Venture, executed a contract with Uganda National Roads Authority for the Kampala Flyover construction project. The Applicant entered into subcontracts with the Respondent, Abubaker Technical Services & General Supplies Limited, for Package 2 Works and Asphalt Works. The subcontracts required the Respondent to provide performance and advance payment guarantees issued by a bank. During performance, the Applicant alleged the Respondent failed to maintain reasonable progress and issued a notice of default. The Applicant subsequently made demand on the guarantees issued by DFCU Bank, which were paid. The Respondent filed Civil Suit No.805 of 2022 claiming breach of the guarantee contracts. The subcontracts contained an arbitration clause requiring all disputes to be resolved by arbitration under International Chamber of Commerce Rules. The Applicant applied to strike out the suit and refer the matter to arbitration.

Issues

  1. Whether the deponent has the capacity and authority to depone the Applicant's affidavit in support?
  2. Whether Civil Suit No. 805 of 2022 ought to be struck out or dismissed on account of being misconceived, premature and incompetently filed in this Court instead of a reference to arbitration under the International Chamber of Commerce Rules of Arbitration?
  3. Whether the Respondent can sustain an action in the suit against the Applicant after dismissal of the main suit against DFCU Bank Ltd, the 2nd Defendant therein for lack of a cause of action?
  4. What remedies are available to the parties?

Orders

  • The disputes between the parties are referred to arbitration.
  • The parties shall appoint arbitrators within thirty (30) days from the date of this Ruling and follow the International Chamber of Commerce Rules of Arbitration.
  • High Court Civil Suit No.805 of 2022 is hereby dismissed.
  • The costs of the Suit and the applications thereunder shall abide the outcome of the arbitration.

Rules and key headnotes

Arbitration & ADR — Arbitration Agreements — Scope — Construction — Presumption in Favour of Wide Interpretation
The construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended that any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal, and the clause should be construed with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction.
Arbitration & ADR — Referral to Arbitration — Mandatory Referral Under Section 5(1) Arbitration and Conciliation Act — Exceptions
Section 5(1) of the Arbitration and Conciliation Act mandates a court before which proceedings are brought in a matter which is the subject of an arbitration agreement to refer the matter to arbitration unless the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
Arbitration & ADR — Arbitration Agreements — Inoperative — Definition and Application
An arbitration agreement is 'inoperative' when it has no field of operation or is without effect, which covers cases where the agreement has ceased to have effect, including where parties have implicitly or explicitly revoked the agreement to arbitrate, where the same dispute has already been decided (res judicata), or where a settlement was reached before commencement of arbitration.
Arbitration & ADR — Arbitration Agreements — Incapable of Being Performed — Definition and Application
An arbitration agreement is 'incapable of being performed' when the arbitration cannot be effectively set in motion due to some obstacle which cannot be overcome even if the parties are ready, able and willing to perform the agreement, such as where the clause is too vague, an arbitrator specifically named refuses to act, or an appointing authority refuses to appoint.
Arbitration & ADR — Waiver of Right to Arbitrate — Evidence Required — Post-Dispute Conduct
The courts are slow to find repudiation or abandonment of the right to arbitrate without very clear evidence of an intention to abandon the right to arbitrate together with reliance by the other party to its detriment, and conduct such as releasing money secured under a performance guarantee after filing a defence does not operate as a waiver of the right to arbitrate where it points to a continuing dispute requiring determination in the context of contractual provisions.
Civil Procedure — Affidavits — Capacity of Advocate to Depone — Formal and Non-Contentious Matters
An advocate is not prohibited from swearing an affidavit in a matter in which he or she acts, provided the affidavit is on formal or non-contentious matters within the advocate's knowledge, and Regulation 9 of the Advocates (Professional Conduct) Regulations does not bar an advocate from giving evidence on behalf of a client but bars an advocate from appearing before a court when the advocate is a witness or potential witness in a contentious matter.
Arbitration & ADR — Limitation of Court Jurisdiction — Section 9 Arbitration and Conciliation Act — Party Autonomy
Section 9 of the Arbitration and Conciliation Act restricts the court's role in arbitration by providing that except as provided in the Act, no court shall intervene in matters governed by the Act, and this restriction epitomises the recognition of the policy of parties' autonomy which underlies the concept of arbitration, with the unlimited original jurisdiction of the High Court unable to override this statutory limitation.

Legislation cited (19)

Cases cited (23)

  • Greenwatch (U) Limited v Attorney General and Another [2003] 1 EA 83
  • Friecca Pharmacy Limited v Anthony Natif (Miscellaneous Application No. 498 of 2019)
  • Uganda Development Bank v Kasirye, Byaruhanga & Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Electro-Maxx Uganda Ltd v Oryx Oil Uganda Ltd (High Court Miscellaneous Application No. 251 of 2020)
  • Bank One Limited v Simbamanyo Estates Limited (Miscellaneous Application No. 645 of 2020)
  • Huthy Dat Mutumba v Pamco Real Estate Agency Limited (Miscellaneous Application No. 1277 of 2020)
  • Henry Kaziro Lwandasa v Kyas Global Trading Co. Ltd (High Court Miscellaneous Application No. 865 of 2014)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Miscellaneous Application No. 10 of 2021)
  • Babcon Uganda Limited v Mbale Resort Hotel Ltd (Supreme Court Civil Appeal No. 06 of 2016)
  • Tumo Technical Services Limited v China Railway 18th Bureau (Group) Co. Limited (Civil Suit No. 432 of 2022)
  • Converge Systems Limited v Post Bank Limited (Miscellaneous Application No. 839 of 2023)
  • Heyam and Another v Darwins Ltd [1942] 1 All ER 337
  • Premium Nafta Products Ltd and Others v Fili Shipping Company Ltd and Others [2007] UKHL 40
  • Fiona Trust and Holding Corporation v Privalov [2007] 4 All ER 951
  • Omugabe Mbabazi Sam v Tumwesigye Dan (High Court Miscellaneous Application No. 10 of 2023)
  • Baku Raphael Obudra & Another v Attorney General (Supreme Court Civil Appeal No. 1 of 2005)
  • Uganda Revenue Authority v Rabbo Enterprises (U) Ltd & Anor (Supreme Court Civil Appeal No. 12 of 2004)
  • Lakeside Dairy Limited v International Centre for Arbitration and Mediation Kampala and Midland Emporium Limited (Miscellaneous Cause No. 21 of 2021)
  • Coppee-Lavalin SA/NV v Ken-Ren Chemicals and Fertilizers Ltd [1994] 2 All ER 465
  • Broken Hill City Council v Unique Urban Built Pty Ltd [2018] NSWSC 825
  • Lucky-Goldstar International (HK) Ltd v NG Moo Kee Engineering Ltd [1993] HKCFI 14
  • Bulkbuild Pty Ltd v Fortuna Well Pty Ltd & Others [2019] QSC 173
  • National Social Security Fund v Alcon International Ltd (Court of Appeal Civil Appeal No. 2 of 2008)

Cases citing this judgment (1)

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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Shimizu-Konoike Joint Venture v Abubaker Technical Services & General Supplies Limited (Miscellaneous Application 436 of 2024) [2024] UGCommC 223 (4 July 2024)
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