Court name
Commercial Court of Uganda
Judgment date
12 June 2014

Besigye & 2 Ors v Mugasha Co-operative Savings and Credit Society Ltd (HCT-05-CV-MA-2013/254) [2014] UGCommC 74 (12 June 2014);

Cite this case
[2014] UGCommC 74

THE REPUBLIC OF UGANDA

 

IN THE HIGH COURT OF UGANDA AT MBARARA

HCT-05-CV-MA- 254 - 2013

(Arising from Bus-01-CV-MA-24- 2013)

(Orig. SDLG/DCO/A0013/10/2103)

                                                                                          

  1. BESIGYE HARRIET
  2. KYOSIMIRE JUSTINE ::::::::::::::::::::::::: APPLICANTS
  3. NDUHIURA PEREZI

VERSUS

MUSHANGA CO-OPERATIVE

SAVINGSANDCREDITSOCIETY LTD  :::::::: RESPONDENT

 

BEFORE: HON. JUSTICE DAVID MATOVU

 

RULING

 

[1]   The Applicants filed a Notice of Motion under Sections 43 (3) (6)          83 and 98 of the civil procedure Act, sections 2 (1) (4) (12) (2),         34 (2) of the Arbitration and conciliation Act, sections 2 (i) (a), 42         and items 5,12 and 31 of the schedule to the stamps Act,         sections 73 (i) (a) (2) and 8 of the co-operative societies Act         seeking revisional orders against a decision of the Grade one         Magistrate Bushenyi, the release of the 1st Applicant from civil         prison and costs of the application.

 

[2]  The facts that led to this application are as follows. On19th         June, 2011 the applicants secured a loan of Ug Shs.         4,000,000/= (four millions) from the Respondent. The applicants         made some payments to clear the loan, but failed to adhere to         the agreed terms and as at 7th October, 2013 the outstanding         loan amount was Ug Shs. 5,223,277/=.

 

[3]   This dispute was referred to Sheema District Local Government,         specifically to the office of the District Commercial Officer for         arbitration. This arbitration was conducted vide Reference No.         SDLD/DCO/A0013/10/2013 and an award was made in favour of           the Respondent on 8th October, 2013.

 

[4]   On the 18th October, 2103 the arbitrator wrote to the Chief           Magistrate Court of Bushenyi, seeking the courts assistance in           the execution of the award. The court complied and issued a           warrant of arrest in execution against the 1st Applicant who           was subsequently committed to civil prison. Dissatisfied with           the trend in this matter, counsel for the applicants filed this          application seeking revisional orders.

 

[5]     Upon perusal of the affidavit of the 1st Applicant in support of            this application and that of Mpangane Vererian in reply, this            court finds the issues for defermination in this revision as            follows:-

 

                  1. Whether the Magistrate Grade One had jurisdiction                        to enforce   an arbitral award.

 

                 2.  Whether the 1st Applicant was lawfully committed to                       civil   prison.

 

[6]      In deciding the issue as to whether the Magistrate Grade One            had jurisdiction to enforce an arbitration award, this court  will            refer to the provisions of the Arbitration Conciliation Act Cap 4            and specifically section 36 which provides as follows:-

 

              “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 it were a decree of                      the court.”

 

[7]  The above provisions of the law are very clear and          unambiguous. The next question to resolve is as to which         court can enforce Arbitral awards. This is catered for in section 2         (1) (f) of the Arbitration and Conciliation Act which provides as          follows:-

         

                       “Court” means the High Court.

 

[8]    From the above provisions of the law, it is only the High Court          which has jurisdiction to enforce an arbitration award.

         The facts in this case are similar to those of Tanzanian             Cotton Marketing Board Vs Cogecot Cotton Co SA          reported in (1995-1998) IEA 312 where the court of Appeal of         Tanzania was considering provisions of law similar to our                  section 36 and their Lordship in deciding a similar issue held         that:-

  

                “The filing of an award in court in terms of section 16                   (1) of the arbitration ordinance renders such an award                    capable of being enforced as if it were a decree of                    the court.”

In this case the court referred to was the High Court of Tanzania and the position is the same in Uganda.

 

[9]     This court therefore, finds that the Magistrate Grade I Bushenyi           had no jurisdiction to enforce the Arbitral award. All           proceedings before the Magistrate Grade I purporting to           enforce the arbitration award are hereby set aside.

 

[10] This takes us to the second issue as to whether the 1st          Applicant was lawfully committed to civil prison. With the          findings of this court that the Grade I Magistrate had no          jurisdiction to enforce an arbitral award, it therefore follows that          even the orders to commit the 1st Applicant to civil prison were          made unlawfully.

 

[11]  This court notes that the 1st Applicant was temporarily  released           by the Assistant Registrar on 16th January,2014 and will           accordingly not make any further release orders.

 

[12]  In the final result this court makes the following revisional           orders:-

 

               1. The proceedings before the Magistrate Grade I in                      Bushenyi civil miscellaneous Application No. 24 of                      2013 are hereby set aside.

 

         2.  The Respondent shall bear the costs of this                  application.

 

Dated this…12……day of …June………2014

 

 

 

David Matovu

JUDGE