THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 343 OF 2013
ARISING FROM ARBITRATION CASE NO CAD/ARB NO 31 OF 2012
SOROTI JOINT MEDICAL SERVICES LIMITED}..................................... APPLICANT
SINO AFRICA MEDICINES AND HEALTH LTD}.................................. RESPONDENT
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
The Applicant filed this application under the provisions of article 139, 120 (2) and (3) (a) and (c), article 212 (c) section 14 and 33 of the Judicature Act cap 13, section 98 of the Civil Procedure Act cap 71, section 16 (3) and (6) of the Arbitration and Conciliation Act cap 4 and rule 13 of the Arbitration Rules for orders that the ruling of the arbitrator usurping the directives of court, constitutional mandate of the Director of Public Prosecutions and Uganda Police Force dated 5th of April 2013 is set aside. It is also for a declaration that the arbitrator acted in excess of his power to alter the directors of the High Court judge and make conclusions on matters under investigation by the DPP and the Uganda police. It is also for declaration that the claims founded on the CT scan and fluoroscopy equipment were severed from the contract by court and as against public policy for illegality. Lastly it is for costs of the application to be provided for.
The grounds of the application are that the arbitrator exceeded the scope of his authority when he concluded in his ruling that the fluoroscopy and CT scan are legally imported and usurped the constitutional mandate of court, Director of Public Prosecutions and the Police. Secondly that the ruling overruled the directives of Honourable Justice Christopher Madrama in miscellaneous application number 452 of 2011 where the court severed the CT scan and fluoroscopy from the contract of sale and declared them an illegality and directed the director of public prosecutions to take appropriate action. Thirdly the proceedings before the arbitrator are against public policy and the laws of Uganda and fourthly that it is an illegality perpetrated by the arbitrator in overruling himself, overturning the decision of a legally constituted court and usurping the powers of a legally constituted investigation and prosecutorial bodies and the court. Fifthly that investigation directed by court is complete and three accused persons are to be charged in Mbale Chief Magistrates Court. Sixthly that the CT scan and fluoroscopy were illegally imported and no party should benefit from such an illegality. Lastly that it is in the interest of justice that this application is allowed.
The affidavit in support of the application is sworn by Dr Elijah Wakamuke. He deposes that the High Court referred the matter back for reconsideration in the previous application to set aside the arbitral award. It was the order of the High Court that the CT scan and fluoroscopy, costs and expenses arising there from are to be excluded. In the same ruling it was directed that the Director of Public Prosecutions should investigate the matter and take appropriate action. Upon receipt of the letter, the DPP wrote to the Assistant Inspector General of Police (CID) requesting for investigations. During the process of investigations, the applicants lawyers undertook to furnish the arbitral tribunal with the written communication on the position of the matter with the Director of Public Prosecutions.
The arbitral tribunal ruled that there was no illegality in the importation, transportation and installation of the said fluoroscopy and CT scan. That it was the arbitral tribunal which raised the issue in the first place and after the reference of the dispute back to the arbitral tribunal, it found that there was no illegality and proceeded to hear the case. Consequently the applicant contends that the arbitral tribunal in that ruling overruled the High Court and admitted new evidence on the basis of which it found that the equipment was now legally imported. On the advice of his lawyers Dr Elijah Wakamuke deposes that the ruling of the arbitral tribunal undermines the inherent powers and directives of the court, usurps the constitutional mandate of the court to adjudicate over disputes, the powers and discretion of the DPP and the role of the Ugandan police. The ruling of the High Court severed the CT scan and fluoroscopy from the contract of sale and the arbitration clause. Consequently it is in the interest of justice that the court intervenes in the matter. The applicant’s lawyers filed miscellaneous application number 99 of 2013, seeking leave to file a challenge to the arbitral decision, the main application number 619 of 2012, having been struck out for omission to commission an affidavit. The continued claim for usage of the illegal equipment before the arbitrator is an illegality and against public policy. The application of the applicant raises serious legal and procedural issues between the parties, the arbitrator, the powers and discretion of the directorate of public prosecutions, the Uganda police force and the findings of the court vis-a-vis the findings of an arbitrator.
The application is supported by a further affidavit of D/AIP Turihamwe K Felix, attached to the special investigations unit. He avers that he was instructed by the commander of Special Investigations Unit to investigate a case of illegal importation of CT scan and Fluoroscopy as directed by the DPP upon the matter being referred to the DPP by the registrar of the Commercial Court. Upon receiving the directives, he interviewed the directors of the applicant and the respondents and forwarded his investigations to the DPP for his legal opinion. The DPP directed that the respondent and directors are charged with illegal importation, transportation and installation of the CT scan and Fluoroscopy. Secondly the director of public prosecutions directed that Issa Mayanja who was a team leader in the commissioning of the CT scan and fluoroscopy be charged with the commissioning and transportation of the equipments without authorisation of the Atomic Energy Council. Consequently the second deponent had charges preferred against the persons and forwarded the file to Mbale for sanctioning by the Resident State Attorney.
In reply to the application Mr Qiu Xue Yong, a Chinese citizen resident in Uganda and deputy General Manager of the respondent deposed to an affidavit in opposition to the application. The deposition is that the respondent’s lawyers at the commencement of the hearing would raise a preliminary point of law to the effect that the application is bad in law. This is because it was brought to set aside an additional award or reference made on 16 September 2012, in light of the dismissal of miscellaneous application number 619 of 2012 which was an application to set aside an additional award or reference and in the absence of a decision of the court in miscellaneous application number 99 of 2013, an application seeking to extend the time within which to bring an application to challenge the additional award. It was therefore outside the due process of law under the arbitration for challenging an arbitral award.
Alternatively in reply to the averments of the applicants Dr Elijah Wakamuke, the court made a reference to the arbitrator under Miscellaneous Application Number 452 of 2011 Soroti Joint Medical Services Ltd vs. Sino Africa Medicines and Health Ltd. Subsequent to the reference, the arbitrator made an additional award on 16 September 2012 that still remains unchallenged. Upon reconsideration by the arbitral tribunal, the arbitral tribunal found that the respondent had authorisation to import the CT scan and Fluoroscopy.
The additional award was duly communicated to the Director of Public Prosecutions. On 5 April 2013, the arbitral tribunal in the ruling emphasised his finding under the additional award on reference in miscellaneous application number 452 of 2011. The commencement of prosecution proceedings by the DPP is illegal and an abuse of the due process and arbitration and offends the enshrined constitutional rights of the respondent under a due process of law. The applicant’s application is a disguised application seeking to set aside an additional award or reference and is irregular. The deponent further avers that the respondent seeks the court to grant directives aimed at preventing the illegal and unconstitutional acts of the Director of Public Prosecutions and to seek compliance to the due process of arbitration. He further avers that the arbitrator in the ruling dated fifth of April 2013 did not make a new award following an order on the reference made by the honourable court but merely emphasised the additional award made on 16 September 2012. The deponent further avers that it did not matter what the finding of an arbitral tribunal is, but to set it aside required the due process of law. Furthermore the deponent avers on the basis of information of his lawyers that the High Court was a wrongful forum for the applicant to challenge the additional award on reference. The respondent was not prevented by law to bring a claim under arbitration cause number 31 of 2012, following the additional award on reference.
The reply to the applicant’s application was filed on court record on 4 June 2013 and on 5 June 2013 the respondent filed skeleton written arguments/submissions. Subsequently on 3 July 2013 the applicant’s Dr Elijah Wakamuke filed an affidavit in rejoinder. He deposes that the application was supposed to bring to the courts attention illegality premised on the arbitration cause number 31 of 2013 in which the respondent is claiming a purported usage of CT scan and fluoroscopy equipments amounting to Uganda shillings 3,000,000,000/= which had been severed from the contract for illegality by the ruling of this court on 25 November 2011. An illegality once brought to the attention of court must be acted upon and overrides all questions of procedure and law. The purported additional award was challenged and the applicant filed miscellaneous application number 99 of 2013 seeking extension of time to file an arbitral challenge which the application the respondent strongly opposed.
He contends that the application for extension of time in miscellaneous application number 99 of 2012 is different from the application challenging the ruling of the arbitrator on the scope of the arbitrator's jurisdiction.
The director of the respondent on 9th July 2013 filed an additional affidavit in sur rejoinder. The director contends that the award of the arbitrator in miscellaneous application number 452 of 2011 remained intact and unchallenged according to the ruling in miscellaneous application number 99 of 2013. Consequently the additional award in miscellaneous application number 452 of 2011 remains unchallenged and is enforceable as a decree of the court.
The respondents counsel submissions are a preliminary objection to the application.
The first objection is made under section 34 (3) of the Arbitration and Conciliation Act cap 4 laws of Uganda which 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 that application had 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. Counsel contends that the when the applicant’s first challenge was made on 16th September 2012. The current application Miscellaneous Application Number 243 of 2013 was filed on 3 May 2013. This was a period of 229 days which is approximately 7 months and six of days. The current application was brought contrary to the provisions of section 34 (3) of the Act. Secondly Miscellaneous Application Number 99 of 2013 between the same parties was pending hearing and was brought for extension of time to file an application challenging the award. Consequently counsel contends that the applicants application is bad in law as entertaining the same would be to rewrite the Arbitration and Conciliation Act.
Secondly the applicant quotes various articles such as article 139, 120, 212 of the Constitution, section 14 and 33 of the Judicature Act and section 98 of the Civil Procedure Act. The sections quoted are inapplicable in light of a clear procedure set out under the Arbitration and Conciliation Act. Counsel contended that section 9 of the Arbitration and Conciliation Act provides the extent of court intervention in matters governed by the Act and provides that no court shall intervene in matters governed by the Act. The scope of what can be submitted to arbitration are set out by section 2 (1) (c) of the Arbitration and Conciliation Act which defines an arbitration agreement to mean an agreement by the parties to submit to arbitration all or particular disputes which have arisen or which may arise between them in respect of a defined legal relationship.
Consequently court can only deal with the question of the scope of arbitration in an application to set aside the award under section 34 (2) (a) (ii). Furthermore section 23 provides that the Arbitration and Conciliation Act shall not apply to any proceedings, agreement or award made under the Act. Consequently the jurisdiction of the court does not override the jurisdiction of the arbitral tribunal. Counsel emphasised the jurisdiction of the court to intervene under section 9 of the Arbitration and Conciliation Act.
Finally counsel for the respondent contends that section 16 of the Arbitration and Conciliation Act which permits challenge to the jurisdiction of an arbitrator was inapplicable.
In reply the applicants counsel submitted that the application originated from arbitral proceeding number 31 of 2013 instituted against the applicant and seven guarantors demanding a user charge fee of Uganda shillings 3,650,000,000/=. During the preliminary meeting/scheduling of the hearing, the first respondents counsel raised before the arbitral tribunal a preliminary objection to the arbitral proceedings challenging the jurisdiction of the tribunal. The objection to the jurisdiction of the tribunal is to the effect that the court had made the reference not only to the arbitral tribunal but also to the DPP. The DPP had requested the police to investigate the issue of illegal importation and use of the equipment. The results of the investigation were not yet out and both parties had not been cleared by the DPP. Counsel submitted that the parties were to be cleared by the DPP and the question of illegalities pertaining to the equipment should be determined first.
The arbitral tribunal made the ruling quoted in the submissions the gist of which was that the arbitral tribunal had made an award on 16th September 2012 and there was no illegality in the importation, transportation and installation of the fluoroscopy and CT scan. It was the tribunal which ever raised the issue of illegality and later on resolved the same. Consequently "there is no illegality being and or is to be investigated by the office of the DPP for a period of over a year now and therefore this arbitral tribunal will proceed with the hearing of this matter".
Counsel contends that the basis of the application is premised on the ruling of the arbitral tribunal that no illegality is to be investigated by the office of the DPP and the arbitral tribunal proceeded with the hearing of the case. Secondly that the issue of the illegal importation of the CT scan and fluoroscopy having been referred to the DPP by the judge can only be challenged on appeal to the Court of Appeal and not by the arbitrator. Secondly the application was brought under section 16 (3) and (6) of the Arbitration and Conciliation Act which provides that the plea that the arbitral tribunal is exceeding the scope of its authority is to be raised as soon as the matter is alleged to be beyond the scope of the authority during the arbitral proceedings. Counsel further submitted that upon the ruling of the arbitral tribunal that it has jurisdiction, an aggrieved party may apply to the court within 30 days after having received a notice of that ruling to decide the matter.
Counsel further submitted on the usurpation of the powers of the DPP and article 120 (3) (a) and (c) of the Constitution which gives the functions of that office. Furthermore the applicants counsel submitted that there was usurpation of the powers of the police granted under article 212 (c) of the Constitution. That the office of the DPP wrote to the police to investigate the matter. The matter was investigated and criminal proceedings sanctioned against the respondent’s directors. On the other hand the arbitrator ruled that there was no illegality to be investigated by the office of the DPP for a period of over a year and the arbitral tribunal will proceed with the hearing of the matter.
The applicants counsel submits that the arbitrator intentionally or deliberately ignored the communication from the DPP on the status of investigations as directed by the court. Secondly under article 120 (6) of the Constitution of the Republic of Uganda, the DPP shall not be subject to the direction or control of anybody or authority.
The applicants counsel contended that the High Court had directed that the DPP should investigate the matter and take appropriate action. Consequently the arbitrator acted outside the scope of his authority and outside its powers to pronounce himself on the investigations directed by a High Court judge. Accepting the act of the arbitrator amounts to introducing a strange procedure and rewriting the laws of Uganda on the procedure for challenging the decision and directives of a high Court judge.
In response to the preliminary objection, counsel submitted that the applicant was not challenging an additional award in the case but challenging the arbitral ruling on 5 April 2013 which was a series of the preliminary objection raised by counsel for the applicant. The application is brought under section 16 (3) and (6) of the Arbitration and Conciliation Act. Subsection 6 thereof enables an aggrieved party upon a ruling by the arbitral tribunal on the question of jurisdiction to apply to the High Court within 30 days after having received the notice of that ruling to decide the matter. In the case of King versus Electricity Commissioners (1924) 1 KB 171 an authority which acts in excess of the legal authority are subject to the controlling jurisdiction of the courts. The applicants are aggrieved by the decision of the arbitrator that he will proceed with the hearing of the matter.
The arbitral tribunal had prior notice before the ruling that the DPP had indicated that investigations were on going and at the appropriate time the suspected persons would be charged. The ruling was made on 5 April 2013 and application was filed on the 3rd of May 2013.
The applicants counsel submitted that in any case under section 16 (6) of the Arbitration and Conciliation Act the tribunal was notified about illegality of the proceedings. He ruled that he had jurisdiction to try the claim for the usage of the CT scan and fluoroscopy by the applicants. In the case of Makula International Ltd versus His Eminence Cardinal Nsubuga and another (1982) HCB 11, it was held that a court of law cannot sanction what is illegal and illegality once brought to the attention of court overrides all questions of pleadings including any admissions made thereon. Consequently the issue of illegality once raised overrides all pleadings. In the previous arbitral award and a challenge to the award in Miscellaneous Application Number 452 of 2011 the High Court held that the remainder of the contract as is concerned in the arbitrators award remains and the matter is referred back to the arbitrator for reconsideration and to adjust the award if necessary to the effect that any costs, expenditure, damages arising directly or indirectly from the importation, installation and commission of the fluoroscopy and CT scan equipment are excluded. The court made no comment with regard to the action to be taken by the state as far as the illegal equipment is concerned. The court held that the equipment cannot be used without clearance by the Council under the Atomic Energy Act.
On the submission that the court cannot intervene in matters governed by the Arbitration and Conciliation Act under section 9, the arbitral tribunal acted beyond its scope or authority and it is challenging the directions of the court and thereby usurping the constitutional mandate of the DPP and the police. The role of the court is to defend and uphold the constitution of the Republic of Uganda and not condone the practice on usurpation of powers. He reiterated submissions that the DPP is not subject to the direction or control of any body or authority. He submitted that the arbitration ruling undermines the supremacy of the constitution and article 2 thereof. Consequently the application is not about setting aside the additional award but upon the powers and jurisdiction of the arbitrator to try matters under investigation directed by properly constituted court and to make a ruling usurping the powers of the DPP and the police to investigate criminal cases. Under section 98 of the Civil Procedure Act, the High Court has inherent powers to stop the proceedings before the arbitrator.
He contended that the current arbitration case number 31 of 2013 is founded on equipments which are the subject of illegality and consequent the High Court judge directed that investigations of the parties by the DPP is commenced.
Secondly the directives and findings of the judge is still valid since it has not been overturned and therefore no party can benefit from such illegality. Consequently the application should be allowed.
In rejoinder respondents counsel submitted that the applicant would like the court to ignore the findings of the arbitral tribunal on reference in the additional award that absolved the respondent of illegality in dealing with the CT scan and fluoroscopy. Secondly the DPP is aware of the additional award. The DPP cannot challenge a decision arising from the due process of the law.
He submitted that the finding on the additional award was determined finally following dismissal of miscellaneous application number 619 of 2012 and miscellaneous application number 99 of 2013.
I have carefully considered the applicants application, and the submissions of counsel.
I will start from a misconception grounded in the application that the High Court directed the DPP to investigate illegal importation of the CT scan and fluoroscopy and take appropriate action. The ruling of the High Court in the matter was attached and I will make reference to it. The ruling of the court in miscellaneous application number 452 of 2011 was delivered on 25 November 2011 and at page 28 thereof the court ruled as follows:
“In reviewing the problem posed by the double standards of the applicant I have examined article 126 of the Constitution of the Republic of Uganda which permits reconciliation between parties even in criminal offences and compensation to victims of wrongs. I have found that the Constitutional principle is inapplicable because there is no victim other than the public policy for the safety of citizens and the loss of equipment by the respondent. The only remedy in the circumstances is to refer the matter to the DPP for appropriate action under section 32 (2) of the Atomic Energy Act 2008. I accordingly refer the matter to the Director of Public Prosecutions for appropriate action.”
The ruling contains no directive to the DPP. The ruling only provides that the remedy in the circumstances was to refer the matter to the DPP for appropriate action under section 32 (2) of the Atomic Energy Act 2008. On the other hand the applicant has rightly submitted that under the constitutional mandate of the DPP, the DPP is not subject to the direction or control of any person or authority. The DPP is autonomous and all the court did was to bring the matter to the attention of the DPP. Whatever the DPP does cannot be the subject of a ruling in this matter and I will not consider it. If the DPP was to commence proceedings against anybody, he is not saddled by any directives or rulings of the High Court except in the matter in which he or she commences proceedings before the court. So it cannot be contended that the arbitral tribunal usurped the powers of the DPP. The arbitral tribunal cannot usurp the powers of the DPP. The ruling of the arbitral tribunal that it would go ahead with proceedings in arbitration does not bar the DPP from acting. There is no directive that the DPP cannot prosecute anybody. I therefore decline to comment about the ruling of the arbitral tribunal on that issue. The DPP remains autonomous and not subject to the direction or control of anybody or authority under article 120 (6) of the Constitution.
Secondly the respondent filed a petition in the constitutional court namely constitutional petition number 24 of 2013 in which it claims to be aggrieved by the decision of the DPP to institute criminal proceedings. That matter is for consideration of the Constitutional Court and the High Court will not make any comments about it.
The question before me is whether the application is properly before the court. The applicant among other things moved under section 16 of the Arbitration and Conciliation Act. Section 16 of the Arbitration and Conciliation Act permits an arbitral tribunal to rule on its own jurisdiction. It is agreed that the applicant raised the question of the jurisdiction of the arbitral tribunal and the arbitral tribunal ruled that it had jurisdiction in the matter. Consequently the applicant was aggrieved and applied to the High Court under section 16 (6) of the Arbitration and Conciliation Act. The application was filed on 3 May 2013. It is alleged in paragraph 2 of the affidavit in support of the application that the ruling of the arbitrator was made on 5 April 2013. Section 16 (6) (supra) provides as follows:
"Where the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party aggrieved by the ruling may apply to the court, within 30 days after having received notice of the ruling, to decide the matter."
It further provides that the decision of the court shall be final and shall not be subject to appeal. So the question is whether the arbitral tribunal has jurisdiction.
The application was filed on time. I have carefully considered the lengthy submissions and materials advanced by the parties in this matter. The gist of the objection which is evident from the chamber summons is contained in the orders sought. The applicant challenges the ruling of the arbitrator usurping the directives of court, constitutional mandate of the Director of Public Prosecutions and Uganda police dated fifth of April 2013. A declaration that the arbitrator acted in excess of his power to order the directives of the High Court judge and the conclusions on matters under investigation by the DPP and the Uganda police. A declaration that the claim founded on the CT scan and fluoroscopy equipment where severed from the contracts by court and is against public policy for illegality.
The question of jurisdiction deals with powers to handle a case. For purposes of definition I will refer to Osborn's Concise Law Dictionary 11th Edition at page 238 where the word "jurisdiction" is defined as follows:
"(1) The power of the court or judge to entertain an action, petition or other proceeding.
(2) the district or limits within which the judgments or orders of the court can be enforced or executed. The territorial jurisdiction of the High Court of justice…"
Jurisdiction therefore deals with the powers to handle a case or to entertain an action or proceeding. In relation to an arbitral tribunal, the question of jurisdiction is contractual. This is evident from section 5 (1) (b) of the Arbitration and Conciliation Act which provides that there may be reference back to arbitration except in cases where there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration. For matters to be referred to arbitration section 2 (1) defines an "arbitration agreement" to mean:
"an agreement by the parties submitted to arbitration certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not."
So the question before the tribunal under section 16 would be whether the tribunal has any powers to entertain the dispute. The arbitral tribunal also has powers to consider whether the dispute is or could be subject to arbitration proceedings. In fact one of the grounds for the challenge of an arbitral award under section 34 (2) includes the ground that the award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains matters beyond the scope of the reference to arbitration. An particularly under (b) of section 34 (2) of the Arbitration and Conciliation Act, the award may be set aside by the court if it finds that the subject matter of the dispute is not capable of settlement by arbitration under the laws of Uganda or that the award is in conflict with the public policy of Uganda.
Section 34 of the Arbitration and Conciliation Act deals with the grounds for setting aside an arbitral award and not jurisdiction. The application seems to suggest and indeed deals with the question of whether the arbitral award is capable of settlement by arbitration under the laws of Uganda or whether the award is in conflict with the public policy of Uganda. It does not deal with the question of jurisdiction of the arbitral tribunal which is primarily determined by the arbitration agreement.
I have further considered the reference back to arbitration. In the previous proceedings namely in miscellaneous application number 452 of 2011 the arbitral tribunal had ruled that the importation and commissioning of the CT scan and fluoroscopy equipment was illegal under the Atomic Energy Act. The court agreed with the arbitral tribunal in its ruling. Subsequently the court referred the matter back after an application to set aside the award to the arbitral tribunal to sever any costs or damages arising from the importation of the equipment. It is alleged that the arbitral tribunal made an additional award in which it decided that the importation of the equipment was lawful after being given additional information after the reference. The applicant applied to set aside the additional award on the same grounds and that application was struck out because the affidavit in support was not commissioned and the application was therefore rendered incompetent. Subsequently in miscellaneous application number 99 of 2013, the applicant applied for extension of time to file a challenge to the arbitral award out of time. The court dismissed the application for reasons contained in that ruling. Parallel to that application, by the time the current application was filed, this application was also pending. It was subsequently argued. The question of the additional award seems to have been determined in the previous applications and the court cannot revisit the applications or attempts to file an application to set aside the additional award.
Subsequently the question of jurisdiction should be confined to the powers of the arbitral tribunal to entertain proceedings. The subsequent proceedings before the arbitral tribunal can be entertained provided that the applicants are given a chance to raise the arguments as a defence to the claim in the arbitral proceedings. An arbitral tribunal can consider any points of law. All it does is to entertain the dispute. The arbitral tribunal has ruled that it has jurisdiction to entertain a claim for the use of the equipment. The basis of the claim is a purported licence by the Atomic Energy Council that permits the use of the equipment or its importation. The ruling of the court does not bar the Atomic Energy Council from giving a permit to the importer of the equipment. They have powers under the Act to grant any permit and the matter falls under the exclusive mandate of the Atomic Energy Council. The Atomic Energy Act provides under section 9 thereof as follows:
“9. Functions of Council.
(1) The functions of the Council are—
(a) to define the exposures of ionising radiation that are excluded from the application of this Act on the basis of their not being amenable to regulatory control;
(b) to issue authorisations and grant exemptions for the possession and use of radiation sources;”
The question of whether the Council subsequently issued any authorisation is a matter to be addressed by the Atomic Energy Council. For emphasis I will quote my ruling in full for the portion that does not bar the Atomic Energy Council from acting in the matter. I wrote that:
“As far as the remainder of the contract is concerned the arbitrators award remains and the matter is referred back to the arbitrator for reconsideration and to adjust the award if necessary to the effect that any costs, expenditure, damages arising directly or indirectly from the importation, installation and commission of the Fluoroscopy and CT scan equipment are excluded. The court shall make no comment with regard to the action to be taken by the state as far as the illegal equipment is concerned. I just need to state that such equipment cannot be used without clearance by the Council under the Atomic Energy Act. Under the Act “Council” means the Atomic Energy Council established by section 4. The composition of the Counsel is established by section 5 of the said Act.”
The court held that it would not make any comments about the steps to be taken by the state or the DPP for the matter. The state includes the action to be taken by the police. Furthermore the court indicated that the equipment cannot be used without clearance by the Council under the Atomic Energy Act 2008. If the Atomic Energy Council subsequently gave a permit to the respondents, I do not think it would be contrary to the policy of the court. What is important is that the equipment is cleared by the atomic energy Council. As far as importation without a permit is concerned, the court has already agreed with the arbitrator that the contract based on an illegality cannot be enforced.
I have carefully considered the submissions that there is an illegality brought to the attention of the court. There is insufficient information in the application about the award which was the subject of two applications which applications failed. Where there has been an award, attempts should be made to set it aside. Those attempts were made and applications were dismissed. The applicant is asking the court to revisit its own decision. I would therefore confine my ruling to the question of jurisdiction. It is my finding that jurisdiction is a question of the contract between the parties. A ruling of the arbitral tribunal cannot bar the DPP from carrying out its constitutional mandate. Consequently grounds (b) and (c) of the chamber summons are matters which were the subject matter of previous two applications which were dismissed as challenging the additional award. It cannot come back in the guise of a challenge to the jurisdiction of the arbitral tribunal when in actual fact it is a challenge to the arbitral award under section 34 of the Arbitration and Conciliation Act. Finally the question of whether the DPP exercised its jurisdiction constitutionally is the subject matter of the constitutional petition and should abide the decision of the Constitutional Court. Furthermore the High Court has not directed the DPP to do anything neither does the High have jurisdiction to direct the DPP to carry out its constitutional mandate. It is erroneous to premise the application on a purported directive of the High court to the DPP. The High Court merely brought the matter arising from the previous proceedings to the attention of the DPP for “appropriate action” and whatever action the office of the DPP takes is within its exclusive mandate.
In the premises, the application lacks merit. Grounds (b) and (c) are matters to be channelled to the arbitral tribunal for consideration. They are not matters of jurisdiction but are matters going to the merits of the claim before the arbitral tribunal.
The challenge to the jurisdiction of the arbitral tribunal therefore fails. The question of costs arising from this application is referred back to the arbitral tribunal for determination.
Ruling delivered this 4th day of October 2013 in open Court
Christopher Madrama Izama
Ruling delivered in the presence of:
Moses Kizza for the respondent
Okello Sam representative of the applicant
Charles Okuni; Court Clerk
Christopher Madrama Izama
4th October 2013