THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO 99 OF 2013
ARISING FROM ARBITRATION CAUSE NO 452 OF 2011
AND
ARBITRATION NUMBER 4 OF 2011
AND
HIGH COURT COMMERCIAL DIVISION SUIT NO 415 OF 2011
SOROTI JOINT MEDICAL SERVICES LIMITED}.................................... APPLICANT
VERSUS
SINO AFRICA MEDICINES AND HEALTH LIMITED}.......................... RESPONDENT
BEFORE HON JUSTICE CHRISTOPHER MADRAMA IZAMA
RULING
The Applicant commenced this application under article 28 of the Constitution, section 33 of the Judicature Act, section 96 and 98 of the Civil Procedure Act, section 34 (3) of the Arbitration and Conciliation Act and order 52 rules 1 and 2 of the Civil Procedure Rules for enlargement of time within which to file an application to set aside an arbitral award and for costs of the application be provided for.
The grounds of the application are that the errors, mistakes and omissions of Counsel should not be visited on the litigants. Secondly that the conduct of the litigant has not been dilatory and that it is in the interest of justice that the application is granted. The application is supported by the affidavit of Dr Elijah Wakamuke which is attached.
Dr Elijah Wakamuke avers that the applicant on the 11th day of October 2012 filed an application challenging the arbitral award before the court in miscellaneous application number 619 of 2012. The application was fixed for hearing on 13 February 2013. On 8 October 2012, he appeared before the Commissioner for oaths with the clerk from Messieurs Opyene and Company Advocates to commission his affidavit in support of the application together with some other documents. He was surprised to be informed by his lawyers that the application was struck off record on the ground that the affidavit he sworn in support was not commissioned as required by law. Consequently he avers that the mistakes or omissions of counsel should not be visited on the litigants. That the applicant has a constitutional right to be heard and if the application is not granted, the applicant will be driven out of the seat of justice empty-handed. The application was made without any inordinate delay and there was no dilatory conduct on the part of the applicant. The application which was struck out raises legal and procedural issues between the parties, arbitrator and court. The High Court has unfettered discretion to grant all remedies in the interest of justice and upon showing sufficient cause. Finally that it is just and equitable that the application is allowed to enable the parties resolve the dispute.
The application was filed on 18 February 2013. In reply thereto, and on 11 March 2013, the respondents counsel filed skeleton written arguments objecting to the application.
The first objection is that the Arbitration and Conciliation Act does not empower the court to enlarge time. Section 34 (3) provides that an application for setting aside the arbitral award may not be made after one month has elapsed from the date on which the party making the application had received the arbitral award. Counsel relied on the case of Katamba Philip and 3 Others versus Magala Ronald Arbitration Cause number 003 of 2007 where honourable lady justice Irene Mulyagonja held that there was no room for enlargement of time because it is provided for by the statute.
The second objection is that failure to file the setting aside application within the prescribed time leads to automatic enforcement of the award under section 36 of the Arbitration and Conciliation Act. Section 36 provides that where the time for making an application to set aside the arbitral award under section 34 has expired, or that application having been made, it has been refused, the award shall be enforced in the same manner as if it were a decree of the court. It is the same argument that no additional time has been provided by the statute and section 34 (3) of the Arbitration and Conciliation Act gives a limitation period of 30 days within which to file an application for enlargement of time.
The respondents counsel further submitted that the provisions of the Civil Procedure Act and Civil Procedure Rules cannot be applied to the applicant’s application. He relied on the case of Soroti Joint Medical Stores versus Sino Africa Medicines and Health Ltd miscellaneous application number 98 of 2012 and Miscellaneous Application No 104 of 2012 where it was held that the rules applicable to enforcement proceedings are the Arbitration Rules made under section 71 of the Arbitration and Conciliation Act.
Thirdly counsel submitted that the court shall not intervene in matters governed by the Arbitration and Conciliation Act under section 9 thereof.
The third objection is that the affidavit in support is misleading to the court and contains obvious and deliberate falsehoods. There is the allegation that the deponent visited the Commissioner for oaths on 8 October 2012 but it is not mentioned who that Commissioner for oaths is and the place where the deponent attended to the Commissioner for oath is. Secondly the deponent avers that it was the mistake of counsel when it was the mistake of the deponent himself because he did not attend to any Commissioner for oath is in violation of the law and cannot seek to hide under an alleged omission, error or mistake of counsel. The paragraphs referred to namely paragraphs 4 and 5 of the deponent’s affidavits in support are at the crux of the applicant’s application and were deliberately made to mislead the court. Nonappearance before a Commissioner for oath is a grave violation of the law and the court should maintain its position striking out the applicant’s application. Counsel relied on the case of Kakooza John Baptist versus Electoral Commission and Yiga Matovu Supreme Court Election Petition Appeal No 11 of 2007 where honourable Justice Bart M Katureebe JSC held that the practice of the deponent of an affidavit signing and forwarding an affidavit to a Commissioner for oaths without being present was a blatant violation of the law and should not be condoned in anyway. Lastly the severance of paragraphs 4 and 5 of the affidavit in support of the application cannot save the application.
On the 7th of May 2013 the applicant filed a supplementary affidavit sworn by S.D. Donge, a Commissioner for oaths. He avers that sometime in the Month of February 2013 Dr Elijah Wakamuke appeared before him with a clerk from Messrs Opyene and Company Advocates which several documents including an affidavit in support of an application challenging arbitration in MA No. 619 of 2013. He commissioned the affidavit and was surprised to be told that the application had been struck out due to a non – commissioned affidavit. On 3 May 2013 the applicant filed brief submissions.
I will first make reference to the response to the objections. As far as section 34 (3) of the Arbitration and Conciliation Act is concerned, the Applicant’s Counsel submitted that the section is discretionary and the court has discretion to extend time within which to file a challenge to the award. Counsel relied on the use of the word "May" under section 34 (1) which provides: "recourse to the court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3). The curtailing of the inherent powers of the court has been found to be unconstitutional and an abuse of the independence of the judiciary in the case of Uganda versus Susan Kigula and Others. The case of Katamba Philip and three others versus Magala Ronald ARB cause number 003 of 2007 was distinguishable because the application was brought after two months after the award had been made.
Concerning the second objection on the applicability of the Civil Procedure Rules and the Civil Procedure Act, the Applicant’s Counsel submitted that in that case the court dealt with enforcement and execution of an arbitral award and did not consider extension of time under section 34 (3) of the Arbitration and Conciliation Act. Consequently the case of Soroti Joint Medical Services versus Sino Africa Medicines and Health Ltd miscellaneous application number 98 of 2012 and miscellaneous application number 174 of 2012 are distinguishable and inapplicable to the current facts. The current application is hinged on an application that was struck out by the court for a non-commissioned affidavit and had nothing to do with the law relating to arbitration or adherence to the strict rules nor was it brought under the Arbitration and Conciliation Act.
Finally counsel submitted that the applicant has a right to be heard under article 28 of the Constitution and denying the applicant extension of time would amount to condemning it unheard on its own complaint. The challenge to the award is intended to stop an illegality of the arbitrator. Serious questions of law and procedure are raised. Finally the court has unlimited powers under article 139 of the Constitution, section 14 and 33 of the Judicature Act and section 98 of the Civil Procedure Act. Article 126 (2) (e) of the Constitution enjoins the honourable court to administer substantive justice without undue regard to technicalities.
On the third objection it was counsel’s mistake or failure to file a competent application in court. Actually no application was filed at all in law and cannot be said to be a mistake or error of the litigant. Alternatively the affidavit of Dr Elijah Wakamuke in rejoinder and the supplementary affidavit of the Commissioner for oath address the concerns of the objection.
Ruling
The first objection is that the court does not have jurisdiction to enlarge time under section 34 of the Arbitration and Conciliation Act. The respondents counsel relied on the case of Katamba Philip and 3 others versus Magala Ronald Arbitration Cause No 003 of 2007. In that case honourable Justice Irene Mulyagonja found that the period of 30 days is prescribed by statute under section 34 of the Arbitration and Conciliation Act and held that once limitation has set in; there is no room for enlargement of time because it is not provided for by the statute. Section 34 (1) provides as follows:
"Recourse to the court against an arbitral award may be made only by an application for setting aside the award under subsection (2) and (3)"
Secondly under section 34 (3) it is provided as follows:
"An application for setting aside the arbitral award may not be made after one month has elapsed from the date on which the party making the application has received the arbitral award, or if a request had been made under section 33, from the date on which the request had been disposed of by the arbitral award".
Even if discretionary language is used, the statute does not make room or give jurisdiction to the High Court for enlargement of time. I agree with the respondents counsel that the powers of the court are limited by section 9 of the Arbitration and Conciliation Act which provides that no court shall intervene in matters governed by the Act. The court can only intervene in a manner provided for by the Act. The manner provided for by the Act is specified in particular sections such as sections 5 and 6 of the Arbitration and Conciliation Act. In the case of Makula International Ltd vs. His Eminence Cardinal Nsubuga and Another [1982] HCB 11 the Court of Appeal (Now the Supreme Court) held that a court has no residual or inherent jurisdiction to enlarge a period of time fixed by statute and extension of time by the High Court Judge in that case was a nullity. (See holding No 11). This decision is binding on me.
I am therefore persuaded that the decision of honourable Justice Irene Mulyagonja in the case of Philip Katamba (supra) is correct. Moreover the applicants counsel has not provided any grounds for departing from the ruling of the High Court. The judgement of a court of coordinate jurisdiction is binding and can only be departed from on few grounds. In the case of Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 at page 300 Lord Greene MR gives the grounds upon which a court may depart from the decision of a Court of Co-ordinate jurisdiction. He said:
“On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (i) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (ii) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords. (iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”
None of the grounds quoted above have been submitted on by the applicants counsel. The decision of lady justice Irene Mulyagonja is binding and I see no grounds for departing from it. Moreover there is an appellate court decision on the matter which is binding on the High Court. The court has no jurisdiction to enlarge the time prescribed by section 34 of the Arbitration and Conciliation Act. The court’s jurisdiction is restricted to enlarging time prescribed by the rules. Consequently the first objection succeeds.
Secondly I will consider paragraphs 4 and 5 of the affidavit in support to the application. Paragraph 4 of the affidavit of Dr Elijah Wakamuke avers that the deponent appeared before a Commissioner for oath to commission the affidavit. Secondly in paragraph 5 he avers that he was surprised when he was informed by his lawyers that the application was struck off on the ground that the affidavit was not commissioned as required by law. It is a question of fact that the affidavits were not commissioned. The court examined the affidavits and referred it to both counsels to verify. Both counsels present in court and, who had copies of the applicant’s application with the defective affidavit, confirmed that they were not commissioned. All copies of the affidavits were not commissioned by any Commissioner for oaths. That being the case, it was a very important feature of the affidavit that it was signed by Dr Elijah Wakamuke. This was not in dispute. I have additionally read the supplementary affidavit of S.D Donge Opar that he remembers commissioning an affidavit of Dr Elijah Wakamuke in MA 619 of 2012. It is inconceivable how the affidavit or application can have a court cause number at the time of commissioning it unless the affidavit was taken after filing in court in an effort to cure the defect. Be that as it may, the averment does not cure the fact that the affidavits were not commissioned at all at the time the application which had been issued by the registrar and served on the opposite side was heard. All the affidavits were examined in court and the submissions of the applicants counsel are on court record both in audio and typescript proving beyond a shadow of doubt that he was praying for the court to permit the applicant to be heard despite the fact that the affidavits were not commissioned.
Under the Oaths Act cap 19 laws of Uganda and particularly section 6 thereof, the Commissioner for oath is required to state the date and place where the oath is taken. This is signified by his signature and stamp. Section 6 provides as follows:
“Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”
Consequently it cannot be asserted that the affidavit was commissioned when there was no signature of the Commissioner, when it was not dated nor was there a stamp of the Commissioner when the applicant’s application was struck out. Furthermore, there could not have been any mistake of counsel because the deponent alleges that he went before the Commissioner for oath and the said Commissioner for oath claims to remember commissioning the affidavit. How come the signature of the deponent Dr Elijah Wakamuke did not have the requisite stamp of the Commissioner for oaths and the signature? The ground of mistake of counsel is incompetent.
Having argued that the affidavit had been commissioned, a position that is obviously false, the respondent cannot seek the inherent jurisdiction of the court if any to enlarge time. By relying on a falsehood the court cannot consider the applicants application which seeks to pervert the course of justice through fabrication of evidence which is an offence under the law namely the penal code Act cap 120 (See sections 94, 99 (b) and 100 of the Penal Code Act).
Last but not least, the applicant’s application was made by notice of motion under the provisions of order 52 of the Civil Procedure Rules. In the case of Soroti Joint Medical Services (supra) as cited by learned Counsels, I held that under section 71 of the Arbitration and Conciliation Act particularly subsection 2 thereof, it is provided that until the rules committee make rules of court to replace them, the rules specified in the first schedule to the Act shall apply to arbitration in Uganda. Section 71 (2) of the Arbitration and Conciliation Act is couched in mandatory language. Furthermore section 71 of the Arbitration and Conciliation Act gives the mandate for making rules under the Act to the Centre for Alternative Dispute Resolution.
The Arbitration Rules are found in the first schedule to the Act and prescribe the procedure for moving the court for any matters specified in the Act. Inasmuch as the court has inherent jurisdiction and it may be argued that the use of the Civil Procedure Rules does not take away that jurisdiction, the use of mandatory language by section 71 of the Arbitration and Conciliation Act should not be ignored.
Under section 14 of the Judicature Act, the inherent jurisdiction of the High Court is subject to law. Particularly section 14 (2) provides that:
“Subject to the Constitution and this Act, the jurisdiction of the High Court shall be exercised,
-
In conformity with the written law, including any law in force immediately before commencement of this Act; ...”
Section 71 of the Arbitration and Conciliation Act is part of the written law to which the inherent powers of court are subject.
All proceedings are commenced under the Arbitration Rules unless and until the rules committee makes rules to replace them.
In the premises the applicant’s application is dismissed with costs.
Ruling delivered in open court this 14th day of June 2013
Christopher Madrama Izama
Judge
Ruling delivered in the presence of
Kasadha David for the applicant
Mugabi Enoth not in court
Sam Sakwa director of applicant in court
Dr. Epodoi in court
Charles Okuni: Court Clerk
Christopher Madrama Izama
Judge
14th June 2013
