THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC APPLICATION NO 1147 OF 2014

ARISING FROM CIVIL SUIT NO 238 OF 2014

YAN JIAN UGANDA COMPANY LTD}..................................................APPLICANT

VS

SIWA BUILDERS AND ENGINEERS}..................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicants application is brought under the provisions of section 5 (1) of the Arbitration and Conciliation Act for orders that proceedings in civil suit number 238 of 2014 and stayed and the dispute is referred to arbitration and for costs of the suit to be provided for.

The Respondent who is also the Plaintiff in the main suit opposed the application.

At the hearing of the application Counsel Mudde John Bosco from Messieurs Katende Sempebwa and Company Advocates appeared for the Applicant while Counsel Nelson Walusimbi of Messieurs Walusimbi and Company Advocates represented the Respondent.

In the oral arguments Applicant’s Counsel submitted that there is a dispute between the parties arising from both parties alleging that the terms of the contract were not fulfilled or that either of the parties is in breach thereof. The parties are bound by the clause to refer the dispute for arbitration.  The arbitration agreement is valid, operative and capable of being performed. Section 5 of the ACA provides that the judge shall if a party applies after filing a defence refer the matter back to arbitration unless the agreement is null and void, inoperative or incapable of being performed. Counsel submitted that there was indeed a dispute between the parties and it is the Defendant who seeks to have the matter referred to arbitration.

Lastly Counsel made reference to Power and City Contract vs. LTL Project (PVT) Ltd HCMA No. 0062 of 2011, a ruling of Hon Justice Stephen Musota wherein he held that such a clause to refer a dispute for arbitration is a contract with an enduring and special effect.  He prayed that the matter is referred for arbitration with costs to be provided for.

In reply Counsel Nelson Walusimbi submitted that the objection of his client has grounds in the affidavit in reply, paragraph 4 thereof. The agreement paragraph 19 (1) provided the conditions for reference for amicable settlement.  Reference can be made by to the report of the mediator showing that the mediation failed due to failure to provide evidence or material documents. Clause 19 (1) on amicable settlement was not satisfied and therefore clause 19 (2) cannot be invoked. He further asked court to consider paragraphs 6, 7 and 9 of the affidavit in reply. By filing a counterclaim which is an independent suit the Applicant undermined their own right to arbitrate the matter and paragraph 10 of affidavit in reply underscores that fact. The Applicant declined to avail to the mediation process the relevant documents.

The Respondent is not financially able to pay fees of arbitrators and therefore not financial sound to refer the matter to arbitration. Consequently Counsel submitted that it is evident in the circumstances that the agreement is inoperative and incapable of being performed yet the presence of the two grounds is sufficient to have the matter dismissed. In NSSF vs. ALCON International the Supreme Court faulted Court of Appeal for having upheld trial the judge’s stay of proceedings and reference of the suit to arbitration yet the trial judge had discovered fraudulent conduct against the Respondent. It is now settled that fraud is constituted by bad faith and trickery. Elements of bad faith are evident in the matter before court because the Applicant continues to withhold documents and litigation is the only way to settle the dispute. The Applicant is not in position to meet the financial cost of litigation. He contended that the Judicature Act cap 13 enjoins the court to avoid a multiplicity of proceedings which would be the consequence of allowing the application for stay and reference and prayed that the application is dismissed with costs.

In rejoinder Counsel Mudde John Bosco submitted that the Applicant has conceded that there is an arbitration clause. Secondly clause 19 (1) thereof does not provide for parties settling the matter in court. 19 (2) provides that the final arbiter is a single arbitrator. The arbitration clause does not stop the parties from filing an action. By filing an action they have not waived their rights. It is a contract and has to be enforced. The Respondent should prove grounds in the affidavit in reply. The agreement is operative and capable of being performed.

On issue of bad faith and trickery, it is not true and there is no averment to that effect in the affidavit in reply. The Applicant is aggrieved by the acts of the Respondent so it cannot employ tricks to seek redress. There is no proof of request to provide documents.

Lastly the allegation that the Respondent is not financially sound is not reason enough to deny the parties right to arbitrate as they clause was based on freedom of contract by persons with capacity to contract. There would be no multiplicity of suits if the application is granted and the submission was incorrect as arbitration can finally determine the matter. He relied on Power and City Contractors s LTL Project (supra).

Ruling

I have carefully considered the Applicants application together with the affidavits for and against the application as well as the submissions of Counsel and authorities cited.

The grounds of the application are that the Applicant and the Respondent entered into a building contract. Secondly the building contract has an arbitration agreement. Thirdly that it is just and fair that the matter is referred to arbitration. The application is supported by the affidavit of Zhao Guanwen, a Chinese male adult and an Assistant Manager of the Applicant to this application/Defendant to the main suit. His deposition is that on 25 January 2012 the Applicant entered into a subcontract with the Respondent in respect to its site located on block 244 plot 796 at Muyenga Tank Hill in Kampala. Clause 19 (2) and (3) of the building contract provides for arbitration of disputes under the laws of Uganda. The arbitration is supposed to take place in Kampala, Uganda.

Secondly the arbitration agreement is valid, operative and capable of being performed and there is a dispute between the Applicant and the Respondent. Consequently it is just and fair that the dispute is referred to arbitration.

In reply of the Respondent is contained in the affidavit in reply of Mr Michael Misinde, a male adult Ugandan and director of the Respondent Company. He deposes that the Applicant and the Respondent indeed on the 25^th of January 2012 entered into a subcontract to execute the works as specified in the schedule to the agreement. Under clause 19 thereof, where a dispute arises and amicable settlement proves impossible, the dispute would be resolved through arbitration under the rules of arbitration in Uganda. The Applicant is also a counterclaimant and was offered an opportunity for amicable settlement when the matter was referred for mediation but did not show any interest to have the matter settled amicably at that point. The Applicant has documents in its possession which are vital such as payment certificates which documents were not availed to the Respondent despite the mediator directing the Applicant to avail it such documents and this frustrated the mediation proceedings. On the basis of information of his Counsel he deposes that the Applicant who is a counterclaimant in the main suit ought to have filed his application within 15 days from the date of filing a defence/or counterclaim which they did not do. By filing a suit by way of a counterclaim, the Applicant undermined the prospect of arbitration. The main suit being a construction dispute mainly based on unpaid sums and costs of arbitration cannot be afforded by the Respondent. Consequently it is in the interest of justice that the application is dismissed as a ploy intended to prolong payment of the debt owed to the Respondent by the Applicant.

I agree with the Applicants Counsel that there is no dispute about the fact that the parties signed the contract which is valid and binding and clause 19 thereof provides for reference to arbitration. Clause 19 relied on by both Counsel reads as follows:

            Disputes

19. (1) The parties shall first use the utmost endeavours to diligently and in good businessman like manner settle any dispute amicably amongst themselves.

(2) If amicable settlement proves impossible then the dispute shall be finally settled in accordance with the Rules of Arbitration of the Uganda Arbitration in Kampala, by one arbitrator designated in conformity with those rules.

(3) Any arbitration hereof shall take place in Kampala, Uganda. Uganda Law shall be applied. The arbitration procedure shall conduct and the award shall be made in the English language. "

The Respondent contends that the agreement has become inoperative and incapable of been performed. Strangely he submitted that efforts at amicable settlement were frustrated by the Applicant during the scheduling conference and therefore clause 19 (2) cannot be relied upon by the Applicant. However the Respondent’s Counsel sought to rely on what allegedly happened during mediation proceedings for the submission that efforts at mediation were frustrated by the Applicant according to the report of the mediator. The report of the mediator filed in accordance with rule 15 of the Judicature (Mediation) Rules, 2013 simply wrote that mediation failed due to none attendance of the Plaintiff. The Plaintiff is the Respondent/Defendant to a counterclaim by the Applicants to this application. In as much as the mediation report which the court can read does not bear out the Respondent’s ground that the Applicant frustrated the mediation process, under rule 18 of the Judicature (Mediation) Rules, 2013, the parties to mediation shall treat as confidential information obtained from or about the parties in mediation and shall not disclose information unless required by law to disclose or the parties give consent in writing to the mediator to disclose.

Whatever happened during the mediation proceedings cannot be considered in this application unless otherwise agreed to in writing or required by the law to be disclosed. In the premises the ground of objection based on alleged frustration of the mediation proceedings cannot be considered. Similarly the allegation of fraud and bad faith has the same footing and in mediation proceedings and will not be considered in this application.

Secondly clause 19 (1) of the agreement clearly makes it a prerequisite for the parties to try amicable settlement prior to making a reference of the dispute to an arbitrator for arbitration. Such amicable settlement cannot be part of an attempt in a suit. Amicable settlement presupposes an effort between the parties without the matter having been filed in court as the second procedure under clause 19 is the contractual requirement to commence arbitration proceedings where amicable resolution of the dispute has failed. It is the Respondent who filed the main suit in this application.

Secondly the Respondent’s Counsel submitted that the Applicant refused to provide information by way of documents during the mediation process. Again that information cannot be used in this application in light of the requirement for confidentiality under rule 18 of the Judicature (Mediation) Rules 2013. In any case parties are compellable to produce documents during arbitration proceedings or during court proceedings and therefore refusal to provide any documents is not by itself a sufficient ground to allege frustration of either the civil action in court or arbitration proceedings. Under section 19 of the Arbitration and Conciliation Act (A.C.A Act) the parties may determine the rules of procedure. Furthermore under section 18 (3) of the A.C.A. Act powers may be exercised for the production of documents as in any other civil proceeding before a court of law.

Section 5 of the Arbitration and Conciliation Act which is the relevant provision envisages an action commenced in a court of law. It provides for reference by a judge or magistrate before whom proceedings have been brought and which is the subject of an arbitration agreement. In other words the objection of the Respondent on the ground that the Applicant filed a counterclaim to its suit cannot stop the Applicant from applying for reference of the dispute for arbitration. In any case any party served with summons to file a defence is entitled to include a counterclaim under Order 8 rule 2 of the Civil Procedure Rules. Order 8 rule 2 of the Civil Procedure Rules provides that a Defendant in an action may set off, or set up by way of counterclaim against the claims of the Plaintiff, any right or claim whether the setoff or counterclaim sounds in damages or not and the setoff or counterclaim shall have the same effect as a cross action so as to enable the court to pronounce final judgment in the same action. This would prevent multiplicity of proceedings. References to arbitration may also be made during the scheduling conference under Order 12 of the Civil Procedure Rules which empowers the court among other things consider whether the dispute  should be resolved through any form of ADR which includes arbitration. The filing of a defence and counterclaim is not a bar to filing an application or applying for reference of the dispute to arbitration.

Section 5 of the Arbitration and Conciliation Act, employs mandatory language and provides in subsection 1 thereof as follows:

"(1) A judge or magistrate before whom proceedings are being brought in a matter which is the subject of an arbitration agreement shall, if a party so applies after the filing of a statement of defence and both parties have been given a hearing, refer the matter back to arbitration."

It is an express statutory provision that the application may be brought after the filing of a written statement of defence. However as noted above, the provision employs mandatory language in that the court shall if a party so applies after the filing of a statement of defence, and after hearing the parties, refer the matter back to arbitration. The grounds for refusal of a reference to arbitration are also provided for in subsections (a) and (b). The first ground is that the arbitration agreement is null and void, inoperative or incapable of been performed. The second is that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.

The second ground is inapplicable since it is agreed that there is a dispute between the parties and the Respondent filed a suit while the Applicant filed a counterclaim in the same suit against the Plaintiff/Respondent. What needs to be considered is whether the agreement has become inoperative or incapable of been performed. There is no submission or contention that the agreement is null and void so what needs to be considered in the narrow sense is only whether it is inoperative or incapable of been performed.

As far as the word "inoperative" is concerned, the Respondent agrees that the agreement is operative in the sense that the Respondent did rely on clause 19 (1) for the submission that amicable settlement was frustrated by the Applicant and therefore the Applicant could not go for arbitration which is a second stage in the procedure agreed upon. Consequently there is only one limb of section 5 (1) (a) which may be considered in this application. That is whether the agreement is incapable of being performed.

The Respondent has advanced two arguments to support the contention that the agreement is incapable of being performed. The first ground is barred by rule 18 of the Judicature (Mediation) Rules 2013 on the ground of confidentiality of proceedings before the mediator. As earlier written, the ground of frustration on the basis of failure to provide documents to the Respondent is untenable. Before taking leave of the matter however the Respondent relied on the case of National Social Security Fund and another versus Alcon International Ltd Supreme Court Civil Appeal Number 15 of 2009 delivered on 8 February 2013. The holding relied on by the Respondents Counsel is based on ground 3 of the memorandum of appeal which dealt with error in referring the matter to arbitration. The decision of Odoki CJ is that there was no doubt that no party to the arbitration agreement apply to the court to refer the dispute to arbitration. It had been argued that the court invoke its inherent jurisdiction to make the difference but section 5 of the Arbitration and Conciliation Act ought to have been applied because it is a specific and express statutory provision dealing with such cases. Secondly he held that both parties were not given a hearing to consider the propriety of referring the matter to arbitration. Consequently the trial judge prematurely referred the matter to arbitration thereby depriving the court of an opportunity to determine the propriety thereof under section 5 of the Arbitration and Conciliation Act. Thirdly the Respondent was not a party to the arbitration agreement. He further held that the Court of Appeal, having discovered the fraudulent conduct against the Respondent erred in upholding the decision of the trial judge to stay proceedings for purposes of reference to arbitration.

Clearly the decision in NSSF and another versus Alcon International (supra) is distinguishable. I agree with the Applicant’s Counsel that there is no allegation of any fraudulent conduct in the affidavit of the Respondent. Secondly the question of documents cannot be raised on the grounds I have discussed above. Thirdly in this application, the Applicant has applied as provided for under section 5 of the Arbitration and Conciliation Act for reference of the dispute to arbitration while in the NSSF and another versus Alcon International case (supra) there was no such application. That application for reference can be considered on the merits.

Finally the Respondent’s Counsel submitted that the Respondent cannot afford the costs of arbitration and therefore the arbitration clause is incapable of being performed. This submission is based on the paragraph 11 of the affidavit in opposition to the application which deposes as follows:

"The Respondent Company is not financially sound to have this matter referred for arbitration since in such proceedings the parties have to meet the costs of arbitration which the Respondent is not in possession at this time to meet."

The Applicant’s Counsel submitted that the ground is not sufficient to avoid the contract. He relied on the case of Power and City Contractors versus LTL Project (PVT) HCMA No. 0062 of 2011 and the judgment of Honourable Justice Musota Stephen. In that case the honourable judge held that an arbitration agreement has a binding effect on the parties thereto. I wish to add that an arbitration agreement under the Arbitration and Conciliation Act has to be considered in the context of the said Act. An arbitration agreement is defined under section 2 (1) of the Arbitration and Conciliation Act to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined relationship, whether contractual or not. Secondly section 9 of the same Act provides that except as provided under the Act, no court shall intervene in matters governed by the Act. It would be premature to suggest that failure to pay the costs of arbitration is a frustrating event. The Respondent commenced an action in the Commercial Division of the High Court. Secondly the Respondent instructed lawyers to act on its behalf. Thirdly there is no evidence to suggest that any costs of an arbitrator could not be afforded by the parties. The statement in the affidavit in reply is vague and cannot form the basis for the court to determine whether the Respondent is impecunious and incapable of meeting its financial obligations to a particular arbitrator in a particular arbitration proceeding. Last but not least the grounds for holding that a contract has been frustrated apply to an arbitration clause. The Respondent has not raised any grounds to vitiate the agreement so as to render it incapable of being performed or inoperative as a consequence thereof. The Respondent should seek the assistance of the Centre for Alternative Dispute Resolution as far as its circumstances are concerned. They are responsible for the policy of implementation of the Act and for prescribing any fees as envisaged in rule 14 (2) of the Arbitration Rules found in the First Schedule of the Arbitration and Conciliation Act.

In the premises the Applicant’s application has merit and is hereby granted.

The dispute in this suit is sent for arbitration in accordance with clause 19 (2) and (3) of the agreement between the parties.

As far as the prayer for costs of this suit/application is concerned, the issue is referred to the arbitrator/arbitrator's to be chosen by the parties for determination.

The dispute having been so referred for arbitration using the procedure chosen by the parties in the contract, the parties can only come back to court by way of any application enabled by the Arbitration and Conciliation Act and the stay of proceedings of the suit serves no useful purpose. In the premises the prayer for stay of proceeding fails and the suit abates. All matters including the costs occasioned by the proceeding in the High Court shall be dealt with by the single arbitrator to be chosen by the parties.

Ruling delivered the 2^nd day of February 2015.

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Mudde John Bosco for the Applicant

Betunda Yusuf holding brief for Nelson Walusimbi for the Respondent

Zhao of the Applicant Company in court

Charles Okuni: Court Clerk

Christopher Madrama Izama

Judge

2^nd February 2015