Wakilii

Tumo Technical Services Limited v China Railway 18th Bureau (Group) Co. Limited (Civil Suit 432 of 2022)

High Court · [2023] UGCOMMC 141 · 2023 Suit Dismissed — Referred to Arbitration AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit in the Commercial Division; Defendant raised preliminary objection on the basis of an arbitration clause in the parties' agreement
Decision
Suit dismissed and matter referred to arbitration; parties to agree on an arbitrator within 30 days

Observed later treatment

Cited — treatment unverified cited in 2 (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 2 times 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 court held that where parties have included a clear and concise arbitration clause in their contract, the court must enforce it and refer the dispute to arbitration unless the clause is null and void, inoperative, or incapable of being performed. Despite delays and procedural difficulties in setting the arbitration in motion, the mere delay in signing consent forms does not render the clause incapable of being performed. The suit was dismissed to enable arbitration.

Outcome

Suit dismissed and matter referred to arbitration; parties to agree on an arbitrator within 30 days

Facts

The plaintiff instituted a civil suit seeking recovery of UGX 81,200,400 being a retention sum, general damages, interest, and costs. The suit was based on a Subcontract Agreement dated 9 August 2016 between the parties. The agreement contained an arbitration clause providing that disputes arising in connection with interpretation, construction, or implementation of the contract shall be referred to arbitration under the Arbitration and Conciliation Act. The plaintiff had attempted to initiate arbitration by filing an application with CADER on 26 October 2021 for appointment of a neutral arbitrator. CADER issued directions on 27 October 2021. However, CADER subsequently declined to appoint an arbitrator due to a court decision challenging the Executive Director's powers to appoint arbitrators. The plaintiff sent correspondence dated 28 March 2022 with a consent form to the defendant's counsel for execution, but this was ignored. The defendant raised a preliminary objection that the suit should be dismissed on the basis of the arbitration clause.

Issues

  1. Whether the suit should be dismissed for violation of the arbitration clause in the parties' Agreement.

Orders

  • The dispute between the parties is referred to arbitration.
  • The parties should agree to appoint an arbitrator within 30 days from the date of this Ruling.
  • In the event of failure to agree on an arbitrator, either party shall refer to an appointing authority under the Arbitration and Conciliation Act, Cap. 4 to appoint an arbitrator.
  • Civil Suit No. 432 of 2022 is hereby dismissed.
  • Each party shall meet its costs.

Rules and key headnotes

Arbitration Agreements — Enforceability — Court's Duty to Refer Disputes to Arbitration
Where parties have agreed to an arbitration clause in their contract, the court must enforce it and refer the dispute to arbitration unless the arbitration agreement is found to be null and void, inoperative, or incapable of being performed under section 5(1) of the Arbitration and Conciliation Act.
Arbitration Agreements — 'Incapable of Being Performed' — Test and Application
An arbitration agreement is 'incapable of being performed' when there is an obstacle which cannot be overcome even if the parties are ready, able and willing to perform the agreement, such as where the arbitration cannot effectively be set in motion, the clause is too vague, an arbitrator specifically named refuses to act or is deceased or unavailable, or an appointing authority refuses to appoint. Mere delay in agreeing on an arbitrator or signing consent forms does not render the clause incapable of being performed.
Contractual Terms — Arbitration Clauses — Party Autonomy and Binding Nature
Arbitration agreements are purely matters of contract, and the effect of section 5(1) of the Arbitration and Conciliation Act is to make contracting parties respect their agreement by disallowing any of them to refuse to perform their contract when it becomes disadvantageous. The courts are slow to find repudiation or abandonment of arbitration rights without very clear evidence of an intention to abandon the right to arbitrate together with reliance by the other party to its detriment.
Arbitration Clauses — Interpretation — Presumption of Party Intent
The construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of their relationship to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction, and should generally be interpreted expansively.

Legislation cited (3)

Cases cited (13)

  • Vehicle and Equipment Leasing (U) Ltd v Engineering Uganda Limited (Misc. Application No. 1067 of 2021)
  • International Development Consultants Limited v Jimmy Muyanja, CADER & Rajesh Dewani (Misc. Cause No. 133 of 2018)
  • Converge Systems Limited v Post Bank Limited (Misc. Application No. 839 of 2023)
  • [1993] HKCFI 14
  • [2019] QSC 173
  • Yan Jian Uganda Company Ltd v Siwa Builders and Engineers (H.C Misc. Application No. 1147 of 2014)
  • [1942] 1 All ER 337
  • [2007] UKHL 40
  • National Social Security Fund v Alcon International Ltd (CA No. 2 of 2008)
  • ATC Uganda Limited v Smile Communications Uganda Limited (Misc. Application No. 621 of 2023)
  • [2004] EWCA Civ 314
  • [2011] EWHC 910 (Ch)
  • [2007] 1 All ER (Comm) 501

Cases citing this judgment (2)

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

↓ Download PDF

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

Tumo Technical Services Limited v China Railway 18th Bureau (Group) Co. Limited (Civil Suit 432 of 2022) [2023] UGCommC 141 (24 November 2023)
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.