IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CORAM: HON. JUSITCE A.E.N MPAGI BAHIGEINE, DCJ
HON. JUSTICE A. TWINOMUJUNI, JA
HON. JUSTICE S.B.K. KAVUMA, JA
(Arising out of Civil Appeal No.02 of 2004)
NATIONAL SOCIAL SECUIRITY FUND…………..APPLICANT
ALCON INTERNATIONAL LTD……………….…RESPONDENT
This is an application by Notice of Motion stated to be filed under the following laws:-
(b) Section 98 of the Civil Procedure Act.
(c) Sections 34(2) (a)(i)(ii)(iv)(vi) and 34(b) of the Arbitration and Conciliation Act, and
(d) Section 11 of the Judicature Act.
The application seeks for the following orders that:-
2) The Court sets aside the ruling and orders of Hon. Justice Stella Arach Amoko dated 14th June 1999 in the High Court Miscellaneous Application No.417 of 2001.
3) The Court sets aside the Final Award of Justice E. Torbar in the matter of Arbitration between Alcon International Ltd vs National Social Security Fund and Edward Sentongo dated 29th March 2001 and filed in the High Court on 7th November 2001.
4) Costs be provided for.
The motion is supported by an affidavit deponed by one Vincent B. Ssekkono, stated to be the current Chairman of the applicant, deponed to on 25th August 2010.
Mr. Ssekkono narrates what he was told to be the history of HCCS No.1255 of 1998 by Mr. David Nambale, a Company Secretary of applicant. Mr. Ssekkono depones:-
3. The applicant invited bids for construction of a building to be known as Workers House at Plot 1 Pilkington Road, Kampala as an investment for the workers.
4. The applicant subsequently entered into a contract with Alcon International Limited, a company incorporated in Kenya with a registered office at Enterprise Road, Industrial Area, P. O. Box 47160 Nairobi, Kenya. A copy of the building contract is annexed hereto and marked “A”.
5. The applicant subsequently entered into a co financing loan agreement with the said contractor for erection of the said building. A copy is annexed hereto and marked “B”.
6. on 8th June 1996, the applicant and the said contractor entered into a further supplementary agreement providing an amended schedule of conditions of the building contract. A copy is annexed hereto and marked “C”.
7. The applicant subsequently terminated the building contract.
8. Consequent to the termination, the respondent filed High Court Civil Suit No.1255 of 1998 against the applicant seeking damages for beach of contract, and an application for an injunction.
9. The respondent asserted a cause of action for breach of contract by describing itself as the company with which the applicant had entered the building contract. Copies of the plaint and claim are annexed hereto marked “D” and “D1” respectively.
10. On 14th June 1999 Hon. Justice Stella Arach Amoko stayed the suit and referred the dispute to arbitration. A copy of the order is annexture “D2” hereto.
11. on 29th March, 2001, retired Justice E. Torgbor awarded the respondent damages of US $8,858,469 with interest at 6% per annum, and the award was filed in the High Court on 7th November, 2001. A copy of the award is annexed hereto and marked “E”.
12. The applicant applied to set aside the award in High Court Arbitration Cause No.4 of 2001 but the arbitration award was upheld by Hon. Justice Stella Arach Amoko on 30th September 2003. Copies of the ruling and order are annexed hereto and marked “F” and “F1” respectively.
13. The applicants filed Civil Appeal No. 02 of 2004 against the ruling of Justice Stella Arach Amoko which was dismissed by this honourable Court on 25th August 2009. A copy of the ruling is annexed hereto and marked “G”.
14. In August, 2010, Mr. David Nambale, the new corporation secretary of the applicant, brought to my attention a ruling in Civil Application No.50 of 2007 – Alcon International Limited vs Kampala Associated Advocates. A certified copy of the ruling is annexed hereto marked “H”.
15. In the said ruling, this honourable Court found as follows:
(b) that the respondents’ directors’ conduct amounted to a criminal conspiracy.
(c) that the respondent is a company incorporated in the United Kingdom and registered in Uganda.
(d) that the Kenyan company with whom the applicant signed a building contract was not a party to the appeal, the High Court Civil Suit and arbitration proceedings from which it arose.
(e) that M/s Kampala Associated Advocates acting on behalf of Alcon Kenya (the contractor named in the agreement) had no locus standi in the appeal as their client was not a party.
(b) Claiming damages for breach of a building contract to which it was not a party.
(c) Procuring an arbitration award for breach of a contact to which it was not a party.
(d) Prosecuting the suit, arbitration proceedings and the appeal by holding out as Alcon International Limited of Kenya whereas it was Alcon International of the U.K., a stranger.
The Notice of Motion is opposed by M/s Tumusiime, Kabega & Co. Advocates, counsel for the respondent whose main defence to the motion is that:-
(b) Civil Application No.149 of 2010 is subjudice.
2. That I have read Mr. Vincent B. Ssekkono’s affidavit in support of the above application and respond thereto as follows.
3. That I have no personal knowledge of and I have never met or ever had any dealing with either Mr. Vincent B. Ssekkono or Mr. David Nambale in all my life.
4. That the applicant invited tenders for the construction of Workers’ House, Kampala and Alcon International Ltd submitted bids and won the tender to complete the Workers’ House, Kampala and signed contract therefore, annexed hereto as “A”.
5. That I as Managing Director of Alcon International Ltd signed the contract, annexture “A” for and on behalf of the Contractor.
(e) the Co-financing loan was received by the applicant from the respondent and all the repayments were made to the respondent in Kampala;
(g) the applicant complained to the Police in Uganda and caused me and Rajesh Kent to be prosecuted for the alleged theft of curtain walling moneys as Managing Director and Director, respectively of the respondent, in Uganda, annexture “F”;
12. That contrary to what is contained paragraph 17 of the applicant’s affidavit, the respondent filed HCCS No.1255 and a Claim in Arbitration in 1999 and has since then defended Arbitration Cause No.4 of 2001, High Court Civil Appeal No.2 of 2004, Court of Appeal and Civil Appeal No.15 of 2009, Supreme Court for its dues for work done for the applicant and not paid for, for unpaid loans extended to the applicant, for plant materials, tools and equipment which the applicant grabbed on the site, loss of profit and costs.
(b) the arbitral proceedings between Alcon International Ltd vs. NSSF and Anor, were concluded and an Award was made on 21st March 2001;
(c) the applicant herein filed Miscellaneous Application No.417 of 2001 (NSSF and Anor vs Alcon International Ltd) to remove the arbitrator and abandoned the application;
(d) the applicant filed in the High Court Arbitration Cause No.4 of 2001 (NSSF and another versus Alcon International Ltd) and it was heard and dismissed with costs;
(e) the applicant filed Civil Appeal No.2 of 2004, Court of Appeal (NSSF and Anor vs Alcon Internationality) which was heard and dismissed with costs and;
(f) the applicant has filed Civil Appeal No.15 of 2009 in the Supreme Court of Uganda (NSSF and Anor Alcon International Ltd) which is pending for hearing.
When the application came before us for hearing, Mr. Enos Tumusiime, learned counsel for the respondent raised preliminary objections to the application.
The first objection raised the issue of resjudicata. The second objection was that the matters on which the applicant seeks judgment are already pending before the Supreme Court of Uganda but the hearing was put off in that court on the application of the applicant to allow it time to first seek for a remedy in this court. The matters are contained in Supreme Court Civil Appeal No.15 of 2009 which had been fixed for hearing on 22nd October 2010 but was decauselisted as aforementioned.
This ruling is not a resolution of matters listed by the applicant in the Notice of Motion as the reasons that give rise to the application. This ruling is only an answer to the preliminary objections raised by the respondent. If resolved in favour of the respondent, then the application will have failed and will be dismissed. If resolved in favour of the applicant, the court will proceed to hear the merits of the application and dispose of it accordingly.
There is a matter which was not directly argued before us in court but which is raised in the conferencing notes filed by the respondent. Learned counsel for the respondent argued that the provisions of the Court of Appeal Rules, the Judicature Act and the Arbitration and Conciliation Act relied upon by the applicant as giving this court jurisdiction to hear the application now before us are not applicable and therefore the Court has no jurisdiction to entertain it. This appears to us to raise an objection that the court has no powers to entertain this matter and being a jurisdiction issue, the court must pronounce itself on it before dealing with other matters raised in the preliminary objection by counsel for the respondent. Though the applicant was given ample notice of this objection, it was not addressed either in the applicant’s conferencing notes or during the hearing of the preliminary objection
We shall therefore first address it before dealing with other matters raised in the preliminary objection. The issue is this:-
(v) Any one of the above;
Confer jurisdiction on this court to entertain this Civil Application No.149 of 2010? In this regard, we consider each of them in turn.
Rule 2(2) Court of Appeal Rules:
This rule gives this court powers:
(b) Where the matter being raised could have been disposed of during the disposal of the appeal in this court but was never raised.
(c) As in this case, the applicant seeks to set aside judgments of other lower courts arrived at in proper exercise of their powers and upheld by this court [Resjudicata]
(d) Where the same matter are pending in the Highest Court of the land for final disposal [subjudice]
We note that Civil Application No.50 of 2007 which was decided when the appeal was still pending in this Court did not make any alteration as to the parties to the suit. However, even if it had done so, the applicant had opportunity to challenge the ruling of this court and three years down the line it has not done so. The applicant could have raised some of the matters raised in this application before the hearing of Civil Appeal No.2 of 2004 in this Court. It did not do so. Therefore, we must hold that the applicant had opportunity to raise these matters in the Court of Appeal. The court is now Functus Official and Rules 2(2) Court of Appeal Rules is not applicable.
Rules 36, 43 and 44 Court of Appeal Rules.
For ease of reference, we reproduce the three rules of this Court hereunder as follows:-
Rule 36: Correction of errors.
(2) An order of the court may at any time be corrected by the court, either of its own motion or on the application of any interested person, if it does not correspond with the judgment or ruling it purports to embody or, where the judgment or order has been corrected under subrule (1) of this rule, with the judgment or order as so corrected.”
(2) A notice of motion shall be substantially in form A in the First Schedule to these Rules and be signed by or on behalf of the applicant.
(b) to applications made by consent of all parties, which may be made informally by letter.
Rule 44: Supporting documents.
(2) The court sets aside the ruling and orders of the High Court in the H.C. Mis. Appl. No.417 of 2001.
(3) The Court sets aside the Final Award of an Arbitration Tribunal filed in the High Court on 7th November 2001 which was in favour of the respondent.
Rules 43 and 44 are rules of procedure giving guidelines as to the form applications before this court should take and the supporting documents that should be filed to support the applications. These rules do not give this court any powers to entertain applications arising from appeals where the Court of Appeal is functus officio as in the instant case.
Section 98 Civil Procedure Act
This section provides:-
Section 34 of the Arbitration and Conciliation Act.
This section sets out circumstances in which an arbitral award may be set aside.
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration; except that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside;
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Ace from which the parties cannot derogate, or in the absence of an agreement, was not in accordance with this Act;
(vi) the arbitral award was procured by corruption, fraud or undue means or there was evident partiality or corruption in one or more of the arbitrators; or
(vii) the arbitral award is not in accordance with the Act;
First of all, sections (1) and (2) of the Act (supra) are not applicable to the arbitral proceedings in which the award was made. Therefore, they are superfluous in this application.
Secondly, it will be recalled that the relevant arbitral award in this case was filed in the High Court on 7th November 2001. The applicant then filed application No. 4 of 2001 to set aside the Award. The High Court considered the application and ruled in favour of the respondent. The applicant appealed to this Court against that ruling in Civil Appeal No.o2 of 2004. When that appeal was dismissed on 25th August 2009, the applicant filed in Supreme Court Civil Appeal No.15 of 2009 which is still pending in that Court. It is clear beyond any doubt that any application to set aside the arbitral award in the High Court and the Court of Appeal would be resjudicata. To the extent that the matter is also pending in the Supreme Court, the matter is subjudice and for both reasons it cannot be entertained by this court.
Section 11 of the Judicature Act
The section provides:-
(b) Some orders sought are resjudicata.
(c) All the orders sought are pending consideration in the Supreme Court Civil Appeal No.15 of 2009 and would be considered subjudice in any other Court other than the that court.
It was stated in the body of this application that it was brought under Rules 2(2), 36, 43 and 44 of the Judicature (Court of Appeal) Rules Directions, Section 98 of the Civil Procedure Act, Sections 34(e)(i)(ii)(iv)(vii) and 34(b) of the Arbitration and Conciliation Act and section 11 of the Judicature Act.
We have examined each of the above provisions and we have come to the conclusion that none of them gives this court jurisdiction over matters that the applicant could have raised when he had the opportunity to do so in this court e.g. matters allegedly raised by the courts ruling in Civil Application No.50 of 2007. Furthermore, these provisions do not give this Court jurisdiction to entertain matters arising from an appeal where the court is already functus officio. Finally, the provisions do not give this Court powers to entertain an application that seeks orders to consider matters that this court and other lower courts have already pronounced themselves on [res judicata] or are pending to be pronounced upon by the Supreme Court of Uganda [subjudice]. Application No.149 of 2010 is therefore incompetent and is hereby struck off with costs to the respondent.
Dated at Kampala this…06th …day of …May…2011.
Hon. Justice A.E.N. Mpagi Bahigeine
DEPUTY CHIEF JUSTICE.
Hon. Justice A. Twinomujuni
JUSTICE OF APPEAL.
Hon. Justice S.B.K. Kavuma
JUSITCE OF APPEAL.