THE REPUBLIC OF UGANDA
THE CENTRE FOR ARBITRATION AND DISPUTE RESOLUTION
MISC. APPLICATION NO. 21 OF 2012
(ARISING FROM CAD/ARB. No. 20 of 2011)
HANS OTTO SORENSEN ……………………………………….. APPLICANT
V.
GLOBAL LOGISTICS ENGINEERING SERVICES LTD …. RESPONDENT
RULING
This Application was filed on 31st May 2012 for orders that the mandate of the arbitrator, Mr. Rajesh Dewani, be terminated. There was also a prayer for the consequential order that a new arbitrator be appointed. The Applicant also prayed for costs of the Application.
The grounds for this Application are that the conduct of Mr. Rajesh Dewani has raised justifiable doubts as to his impartiality or competence. Secondly that a challenge raised to CADER was rejected without a hearing.
The following events set out below, are derived from the Affidavit in support of the Application deposed by one Titus Kamya, along with the supporting documentation.
Para.7 Affidavit
That after attending the first meeting our Mr. Sekabanja consulted the Applicant who wrote to CADER stating that he had not instructed M/s Sekabanja & Co Advocates (sic) as counsel to act in the arbitration as he was opposed to it. A copy of the letter is attached hereto as Annexure (sic) ‘A’.
Annexure A
Dated: The 4th of March 2012.
From Hans Otto Sorensen
In regard to this, please read the following facts to your notice.
4. Therefore I have not instructed the lawyer Sekabanja & Co to enter into any arbitration process or agreement concerning this issue on my behalf.
Para.8 Affidavit
That consequent upon receiving that letter our Mr. Sekabanja wrote to CADER and Mr. Raj Dewani withdrawing from the process. A copy of the letter is attached hereto as Annexure (sic) “B”.
Annexure (sic) B
Sekabanja & Co. Advocates Letter Head
Dated : 8th March 2012.
To: Executive Director, CADER.
RE: CAD/ARB/No.20/2011 GLOBAL LOGISTICS ENGINEERING SERVICES LTD v. HANS OTTO SORENSEN
In view of the Client’s comments, we have no instructions to proceed with the arbitration and it appears from the client that we had none in the first place. His appears to have stopped at objecting to the Arbitration we accordingly withdraw.
Para.9 Affidavit
That upon receipt of the letter the arbitration Mr. Raj Dewani wrote a letter accusing Mr. Sekabanja of perjury. A copy of the latter is attached hereto as Annexure (sic) “C”.
Annexure (sic) C
Communication from the Arbitrator
Dated – 9th March 2012.
3(a) M/s Sekabanja & Co. has appeared so far on your behalf and now claims that they have never received an instruction from you which either amounts to misrepresentation and/or perjury (Chapter 120 – Laws of Uganda, Section 99 of the Penal Code) as during the preliminary hearing, I was informed that they have been authorized to represent you and that they will produce a written evidence to that effect within 3 days.
Para.13 Affidavit
That the above statements were repeated in his letter dated the same day 23rd April 2012. Both letters are attached hereto as Annexures (sic) “D” and “E”.
Annexure (sic) ‘D’
Minutes of the proceedings of the meeting No.2 held at 1020hrs on 19th April 2012 at Plot 3/4/5/6 UMA showgrounds.
Annexure (sic) ‘E’
Minutes of the proceedings of the meeting No.2 held at 1020hrs on 19th April 2012 at Plot 3/4/5/6 UMA showgrounds.
Let me re-emphasize that under the Penal Code, it is an offence not to abide by the directives of an arbitrator.
3.5 Under Penal Code, it is an offence not to abide by the directives of an Arbitrator.
Para.14 Affidavit
That the above statements made by the Arbitrator are not true but only intended to intimidate or coerce the Applicant.
Para.15 Affidavit
That the above statements are to say the least alarming and threatening to the Applicant and even Counsel as they were uttered by the arbitrator in exercise of his quasi judicial function.
Para.16 Affidavit
That the statements are not true nor the correct statement of the law and bring impartiality and competence of the Arbitrator in question.
Para.17 Affidavit
That the challenge of the arbitrator concerning his impartiality was made to and rejected by CADER without a hearing inter partes. The challenge and decision attached hereo and marked Annexures (sic) ‘F’ and ‘G’ respectively.
Para.19 Affidavit.
That the Applicant is apprehensive that an arbitrator who has such disposition toward him and his Counsel will be impartial in the circumstances.
Para.20 Affidavit
That I have doubt and so does the Applicant as to the competency and impartiality of the Abitrator.
Annexure (sic) ‘F’
Sekabanja & Co. Letterhead
Dated – 30th April 2012.
We wish to state that we have since found that circumstances exist that give rise to justifiable doubts as to Mr. Raj Dewani’s impartiality in handling this matter this far.
The grounds for justifiable doubts are:
That in his letter dated 23rd April 2012 in paragraph 3.5 he stated that under the Penal Code it is an offence not to abide by the directions of an Arbitrator.
This must have been in reference to paragraph 3.4 where the Respondent was required to advance the sum of US1708 as a commitment fee as per Arbitrator’s directive.
In a subsequent letter also of 23rd April 2012 he reiterated the same statement that it is an offence under the Penal Code not to abide by the directions of an arbitrator.
In an earlier letter of 9th March 2012 he also referred to the representations made by Mr. Sekabanja Kato as perjury contrary to the Penal Code.
The above statements are to say the least alarming and threatening to the Respondent and even counsel especially that they are uttered by an arbitrator who is executing a quasi-judicial function.
That the statements are also not true or at least not the correct statement of the law and therefore bring the competence of the Arbitrator in question.
We are therefore apprehensive that an arbitrator who has such disposition towards our client is impartial when he has a law that does not exist.
9. We therefore state that the above give rise to justifiable doubts as to the competency and impartiality of the arbitrator.
We therefore request that another arbitrator be appointed in the circumstances.
Annexure (sic) ‘G’
CADER letter head
Dated – 3rd May 2012
RE: CHALLENGE OF MR. RAJ DEWANI AS ARNITRATOR IN GLOBAL LOGISTICS ENGINEERING SERVICES v. HANS OTTO SORENSEN; CAD/ARB/NO.20 OF 2011
We acknowledge receipt of your communication dated 3rd May 2012.
We have reviewed the reasons and are not satisfied that any of the grounds cited prove the arbitrator’s incompetence or impartiality.
I now turn my mind to resolve this Application.
The heart of the Application is that the Penal Code, Chapter 120 Laws of Uganda, makes no mention of arbitration or arbitrators.
If this is true, it follows therefore that the Applicant is correct to perceive citation of the Penal Code as a calculated act of intimidation or coercion by the arbitrator.
It must be noted that the Penal Code came into force on 15th June 1950.
The Penal Code introduces the arbitrator as follows,
“Chapter 1 - Preliminary
2. Interpretation
In this Code, unless the context otherwise requires-
(u) “person employed in the public service” means any person holding any of the following offices or performing the duty of the office, whether as a deputy or otherwise-
(iv) any office of arbitrator or umpire in any proceedings or matter submitted to arbitration by order or with the sanction of any court, or in pursuance of any written law, … .”
We see from the above that the arbitrator in deemed by the Penal Code a person employed in the public service, who performs an important function within the judicial system in the Republic of Uganda.
What then, does the Penal Code say on perjury?
CHAPTER X—OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE.
94. Perjury and subornation of perjury.
(1) Any person who in any judicial proceeding or for the purpose of instituting any judicial proceeding knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding commits the misdemeanor termed perjury.
(2) For the purposes of this section—
(a) it is immaterial whether—
(i) the testimony is given on oath or under any other sanction authorised by law;
(ii) the false testimony is given orally or in writing;
(iii) the court or tribunal is properly constituted, or is held in the proper place, or not, if it actually acts as a court or tribunal in the proceeding in which the testimony is given;
(iv) the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not;
(b) the forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he or she assents to the forms and ceremonies actually used.
(3) Any person who aids, abets, counsels, procures or suborns another person to commit perjury is guilty of the misdemeanour termed subornation of perjury.
97. Punishment of perjury.
Any person who commits perjury or suborns perjury is liable to imprisonment for seven years.
Does failure to abide by the directions of an arbitrator constitute an offence under the Penal Code?
To my mind, the following provisions appear to be relevant,
CHAPTER XII—MISCELLANEOUS OFFENCES AGAINST PUBLIC AUTHORITY.
117. Disobedience of lawful orders.
Any person who disobeys any order, warrant or command duly made, issued or given by any court, officer or person acting in any public capacity and duly authorised in that behalf commits a misdemeanour and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of such disobedience, to imprisonment for two years.
Was the arbitrator wrong in pointing out the Penal provisions to the parties?
I think not.
The history of finesse in legal practice in Uganda is a checkered one.
On the greater part, advocates who officers of court, fail their calling by not being sufficiently self appraised of the state of the law, which applies to a client’s file.
In this case, I fault the Applicant’s for not having asked the arbitrator to clarify by elaborating on the provisions, which he had in mind.
I also fault the Applicant’s advocate for not having taken time to peruse the Penal Code to determine if the arbitrator was right or wrong.
The omission by the Applicant’s advocates have now resulted into this Application, which is premised on the assumption that the arbitrator misquoted the Penal Code – whereas not!
The Applicant’s advocate argued the misquotation amounted to bias and impartiality?
There is another way to look at the issue raised by the Applicant’s advocates.
Having found the arbitrator is not at fault, can we then impute that the Applicant’s advocates are in the same measure biased and impartial for not being aware of the provisions of the Penal Code vis-à-vis arbitration?
I think not.
You see arbitration is a forum where disputes on matters of facts and law are resolved.
The arbitration has the final call on the making the statement of finding on law or fact pleaded before him.
Of course, the arbitrator, being human, can make an error of law or fact. There is sufficient mechanism within the provisions of the Arbitration and Conciliation Act, Cap.4 Laws of Uganda, to revisit or lift any errors committed by the arbitrator.
The presumed misquoted was anchored to the claim that the arbitrator was biased, impartial and only sought to intimidate and coerce the Applicant.
In a nutshell, bias and impartiality, goes to show that the mind of the judicial officer (of which an arbitrator is one) is tainted by interest in the outcome of the case. Such arbitrator will therefore tinker with the legal process and not deliver a just decision. To this extent the decision will not be one from an open and fair mind, which has weighed all facts and law equally!
The case argued before me was simply that the Penal Code had no single provision which has a bearing on arbitration.
No other evidence was adduced before me to show what could have flawed the arbitrator’s mind to render him biased and impartial before the eyes of a reasonable man.
I am compelled to find that this Application is misconceived and has no merit. I therefore dismiss the Application and award costs of the Application to the Respondent.
Before taking leave of this Application, I have noted the Affidavit in support of the Application was deposed by the Advocate Titus Kamya.
The Affidavit does not show that the Advocate Titus Kamya was authorized by the Applicant client Hans Otto Sorensen to depose the Affidavit in Support of the Application.
Moreover, an advocate is burdened by Regulation to ensure that all which is stated in an Affidavit, is nothing but the truth.
The Advocates (Professional Conduct) Regulations, S.I. 267-2.
15. Affidavits to contain truth.
An advocate shall not include in any affidavit any matter which he or she knows or has reason to believe is false.
My perusal of the Penal Code has shown that it is not true that it does not have any provision bearing upon arbitration proceedings, arbitrators and persons appearing before an arbitration panel.
The consequences for swearing a false affidavit can be severe and lead to loss of the right to practice as counsel - Re Ssesanga [1969] EA 345.
As such the lack of detail in the Affidavit begs the question as to whether the Applicant, did in fact issue instructions for this Application to be filed, or it was done solely at the inclination of the Applicant’s advocates.
Dated at Kampala on the 25th day of July 2012.
……………………………..
Jimmy M Muyanja
Executive Director
