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Uganda Civil Aviation Authority v Central Plumbing Works Uganda Limited (Miscellaneous Cause 37 of 2023)

High Court · [2024] UGHCCD 20 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under Section 34(2)(a)(v) of the Arbitration and Conciliation Act to set aside an arbitral award
Decision
Arbitral award set aside; matter may be referred to a properly constituted tribunal

Observed later treatment

Cited — treatment unverified cited in 3 (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 3 times with no adverse treatment recorded; not yet tested on the merits. Citations fading — 3 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 High Court set aside an arbitral award on the ground that the arbitral tribunal was improperly constituted. The parties had by consent amended the contractual arbitration clause to permit CADER to appoint the third arbitrator, contrary to the original agreement which specified the President of the Uganda Institution of Professional Engineers or a High Court judge as the appointing authority. Because the original agreement involved a statutory body and public funds and had been approved by the Solicitor General, the variation required Solicitor General approval under Article 119(5) of the Constitution. The court held that the failure to obtain such approval rendered the appointment of the chairperson irregular and illegal, depriving the tribunal of jurisdiction.

Outcome

Arbitral award set aside; matter may be referred to a properly constituted tribunal

Facts

In 2013, Uganda Civil Aviation Authority (a statutory body) entered into a construction works agreement with Central Plumbing Works (U) Limited for construction of extra water reservoirs at Entebbe International Airport at a contract sum of UGX 835,000,000. The agreement was submitted to and approved by the Solicitor General as required for government contracts. Clause 25.4.1 of the agreement provided that disputes would be arbitrated by three arbitrators, with the third (chairperson) to be appointed by the President of the Uganda Institution of Professional Engineers or, in the event of conflict of interest, by a Justice of the Commercial Division. A dispute arose and the respondent commenced arbitration proceedings in 2020. Each party appointed its arbitrator. Initially the respondent wrote to UIPE for appointment of the third arbitrator. Subsequently, at the applicant's insistence, the matter was registered with CADER. On 29 April 2021 the respondent proposed that the parties execute a consent nominating CADER as the appointing authority for the third arbitrator. The applicant agreed in writing on 5 May 2021, and a consent was executed on 31 May 2021. CADER appointed Ms. Belinda Lutaya Nakiganda as chairperson on 19 August 2021. The tribunal rendered an award in favour of the respondent on 25 November 2022. The applicant then applied to set aside the award, arguing that the variation of the arbitration clause without Solicitor General approval rendered the tribunal's constitution irregular and illegal.

Issues

  1. Whether the composition of the Arbitral Tribunal in CAD/ARB/14/2021 was improper and irregular in contravention of the clear provisions of the law and the Construction Works Agreement signed between the parties?
  2. Whether the Arbitral award in CAD/ARB/14/2021 is regular and enforceable?
  3. What are the remedies available to the parties?

Orders

  • The Arbitral Award made by the Arbitral Tribunal in CAD-ARB No. 14 of 2021 is set aside.
  • Each party shall meet its costs.

Rules and key headnotes

Arbitration & ADR — Setting Aside Awards — Composition of Tribunal — Non-Compliance with Contractual Appointment Procedure
An arbitral award may be set aside under Section 34(2)(a)(v) of the Arbitration and Conciliation Act if the composition of the arbitral tribunal was not in accordance with the agreement of the parties. Where parties have contractually agreed on a specific procedure for appointing arbitrators, any deviation from that procedure, even by consent, may render the tribunal improperly constituted.
Administrative Law — Government Contracts — Constitutional and Statutory Requirements for Approval
Article 119(5) of the Constitution and the Guidelines on the Negotiations and Execution of Government Contracts require that no agreement to which Government or a statutory body is a party shall be concluded, varied, or amended without legal advice and clearance from the Attorney General or Solicitor General. Any variation of such an agreement without the required approval is illegal.
Arbitration & ADR — Jurisdiction of Tribunal — Effect of Irregular Appointment on Jurisdiction
The jurisdiction of an arbitral tribunal depends on the mandate given to it by the parties in accordance with its proper establishment or composition. An arbitral tribunal constituted through improper or irregular appointment does not have jurisdiction to determine the dispute, regardless of whether the parties failed to object during the arbitral proceedings. A decision by a wrongly constituted forum is non-existent in the eye of the law and is a nullity.
Arbitration & ADR — Waiver of Objections — Public Interest Considerations
While the general position in arbitration is that a party cannot contest an arbitration and raise a jurisdictional objection for the first time if the award is unfavourable, this principle does not apply where there has been a breach of law governing agreements involving public bodies. Courts will not facilitate illegalities committed through irregular alteration of agreement clauses without approval of the Solicitor General, even where no objection was raised during arbitral proceedings.
Constitutional Law — Separation of Powers — Attorney General's Role in Government Contracts
Article 119(5) of the Constitution imposes a mandatory duty on Government and statutory bodies to obtain legal advice from the Attorney General before concluding, varying, or amending any agreement involving Government. This constitutional safeguard is intended to protect public funds and ensure government contracts comply with the law. Persons executing such agreements have a corresponding duty to ensure necessary approvals are secured and cannot plead ignorance of the requirement.

Legislation cited (4)

Cases cited (4)

  • Kinyara Sugar Works Ltd v Hajji Kasimbiraine Mohamoud (Miscellaneous Application No. 151 of 2017)
  • Agnes Muhindi and Anor v Joash Mugendo [1991] KLR 78; [1988-92] 2 KAR 155
  • Haresh Chinnubhai Shah v Rajesh Prabhakar Jhaveri & Anor [2004] (2) R.A.J 179 (Bom)
  • Union of India v Builders Corp (P) Ltd AIR 2010 (NOC) 750 (Cal); 2010(5) R.A.J. 548: 2010 (2) Arb.L.R 375

Cases citing this judgment (3)

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

Uganda Civil Aviation Authority v Central Plumbing Works Uganda Limited (Miscellaneous Cause 37 of 2023) [2024] UGHCCD 20 (25 January 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.