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Ex parte commercial judgment enforcing a cement supply credit agreement, awarding the unpaid balance, related expenses, interest, general damages, and costs.
The High Court consolidated two commercial applications, stayed them pending arbitration, and ordered status quo to be maintained, with no costs.
The court held that since there is no fraud and the petitioner is not remedyless, irretrievable loss is not established. The bank guarantee is independent from the underlying contract, and the petitioner can pursue damages against AUWSA. Injunctive relief restraining the bank from honoring the guarantees is inappropriate.
Source excerpt
The Court held that it lacked jurisdiction ratione personae over the Bank and Registrar as they were neither Partner States nor Institutions of the Community under Article 30 of the Treaty. The Common Market Protocol did not extend the Court's jurisdiction to private parties or acts prior to its entry into force. The substratum of the reference (the bank guarantee) ceased to exist after the Supreme Court of Uganda set aside the arbitral award, leaving no cause of action against the Attorney-General. Remaining issues were academic. The First Instance Division erred in denying costs to the succ…
Source excerpt
The applicant established a prima facie case of breach of contract regarding the quality of goods supplied, demonstrated risk of irreparable harm if the injunction was not granted, and showed that the balance of convenience favored preserving the status quo. Exceptional circumstances justified court interference with the Letter of Credit pending determination of the main suit.
Source excerpt
The Court lacks jurisdiction over the Reference because the 1st and 3rd Respondents are neither Partner States nor Institutions of the Community, and the acts complained of occurred before the coming into force of the Protocol, which does not apply retroactively. The Bank Guarantee ceased to exist after the Supreme Court of Uganda set aside the underlying arbitral and court decisions, leaving no live dispute or cause of action before the Court.
Source excerpt
The 1st and 3rd Respondents are not proper parties under Article 30(1) of the EAC Treaty as they are neither Partner States nor Institutions of the Community. The Claimant has no cause of action as the bank guarantee and related judgments were set aside by the Supreme Court of Uganda, leaving no live dispute. The EACJ lacks jurisdiction over acts predating the entry into force of the Common Market Protocol, as the principle of non-retroactivity applies. The Reference is dismissed for lack of merit and jurisdiction.
Source excerpt
The Court of Appeal held the respondent had no cause of action against the appellant and the contract claim was time barred, so it allowed the appeal.
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