THE REPUBLIC OF UGANDA
THE CENTRE FOR ARBITRATION AND DISPUTE RESOLUTION
CAD/ARB/NO.11 OF 2009
UGANDA POST LTD ……………………………………….. APPLICANT
R.4 INTERNATIONAL LTD ………………….…………… RESPONDENT
The arbitration clause in both the tenancy agreements reads as follows,
Any disputes arising from this Tenancy Agreement other than interpretation shall be referred to Arbitration. Each party shall appoint an independent arbitrator which two arbitrators will appoint a third neutral arbitrator. From the avoidance of doubt, the UNCITRAL Rules shall apply. The arbitration shall be done at Kampala, Uganda and the language of arbitration shall be English. The award granted by the Arbitration Tribunal shall be FINAL and BINDING.”
The 26th August 2009 Supplementary Affidavit evidences the fact that notice of appointment was communicated to the Respondent .
Mr. Ernest Sembatya Kaggwa informed us that he was not opposed to the Application in principle. In the same breath, he immediately exfoliated his stand without compunction when he elaborately argued that it was incumbent upon CADER to outline the scope of the arbitral tribunal’s authority. He maintained the same position after I had invited him to read Sections 16(2) and 16(3) Arbitration and Conciliation Act, Cap.4 (hereinafter referred to as the ACA).
He illustrated this by reference to three other tenancy agreements between the parties [Annex R1 (10th June 2005), Annex R2 (10th May 2005) and Annex R3 (30th June 2006)], which did not have arbitration clauses. It was for this reason he submitted that the arbitration proceedings should relate to period before 1st August 2008.
Under Section 11 ACA, CADER is only tasked with putting in effecting the compulsory appointment of an arbitrator where the case is made out that the respondent has either refused or neglected to perform it’s duty.
Section 16 ACA empowers the arbitral tribunal to determine it’s own jurisdiction.
Again Section 16 ACA, vests the parties with the complementary power to address the arbitral tribunal it’s jurisdiction.
That said only the arbitral tribunal has power to determine the scope of it’s jurisdiction under Section 16(6) ACA.
The jurisdiction question is so critical that it constitutes a ground upon which the arbitral award either can be set aside – Section 34(1)(iv) ACA or cause continuance of the arbitral proceedings or invoke further action from the tribunal – Section 34(4) ACA.
Moreover any attempt to delimit the arbitral tribunal’s jurisdiction may invite the criminal charge for threat of injury to the arbitrators under Section 93 Penal Code, Cap.120, given that they are deemed persons in public employment under Section 2(u)(iv) Penal Code.
I therefore appoint the retired Principal Judge (emeritus) Hon. Herbert Ntabgoba as the second arbitrator in this matter.
Should Hon. Herbert Ntabgoba decline this appointment under Section 12(1) ACA on grounds of impartiality then retired Supreme Court Judge (emeritus) Hon. Alfred Karokora or Mr. Stephen Musisi shall be deemed appointed in sequential order to act second arbitrator.
The parties and the arbitrators are reminded that all monies regarding the arbitration should be submitted through CADER.
Costs of this Application shall be borne by the Respondent.
|Hon. Rtd Principal Judge J. Ntabgoba
Kampala Associated Advocates
5th Floor Workers House
Pilkington Road, Kampala
Delivered on 1st September 2009.