[2025] UGHC 459


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CR-015-2024** 5 **(ARISING FROM ISI-36-CV-CS-166-2017) (ORIGINATING FROM ARBITRATION CAUSE NO.067/2017)**

- **1. APURINARI REAGAN** - **2. ARIBUNGIRE VICTORIA …………………………………..……………….…. APPLICANTS** - 10 **3. MUGUMYA FELIX**

### **VERSUS**

# **RUHIIRA CO-ORPERATIVE SAVINGS AND CREDIT SOCIETY LTD ….. RESPONDENT**

15 **BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

#### **REPRESENTATION**

The Applicants were represented by M/S Kahara & Advocates, while the 20 Respondent was represented by Ahimbisibwe & Agaba Co. Advocates.

#### **BACKGROUND**

The Applicants brought this application basing on: Section 33 of the Judicature Act; Section 83 & 98 of the Civil Procedure Act; Sections 2(1), (2), (4), (12), & 25 34(2), of the Arbitration and Conciliation Act; Sections 2(1)(a), 42, 73(1)(a), (2) and 8 of the Co-operative Societies Act; and Order 22 Rule 23 & Order 52 Rules 1,2,3, of the Civil Procedure Rules, seeking orders that;

- 1. That the execution orders issued by the Grade One Magistrate of Isingiro at Isingiro in ISI-36-CV-MA-067/2017, enforcing an arbitral award be set aside - 30 for want of jurisdiction. - 2. That ISI-36-CV-MA-067/2017, be set aside for illegality and material irregularity. - 3. That the warrant of arrest and detention in execution arising from ISI-36- MA-067/2017, be canceled/vacated for having been issued by the magistrate - 35 in exercise of jurisdiction not vested in him. - 4. Costs of this application be provided for.

The application is supported by an affidavit deponed by the Applicant.

# **GROUNDS**

The grounds of this application as stated in the notice of motion are;

- 1. That by agreement dated 26th April, 2016, the 1st applicant acquired a loan from the respondent SACCO, payable within 12 months. - 5 2. That in or about the month of February 2017, and upon the un-supported allegations, that the applicant defaulted on the payment of the said loan, the Respondent instead of exhausting the right modes of recovery as stated in the loan agreement, sought to appoint an arbitrator to resolve the dispute. - 10 3. That the Respondent without seeking the Applicants' consent nor basing on any arbitral agreement/clause in the loan agreement went ahead and referred the matter for arbitration before a one Ndagijimana James. - 4. That the said arbitrator neither issued arbitral summons nor notified the Applicants in anyway whatsoever on the ongoing process before him. - 15 5. That an award for the sum of UGX7,953,900/= plus UGX150,000/= as arbitration costs dated 14th July 2017, was awarded to the Respondent by the said arbitrator. - 6. That the Respondent forthwith applied to the Grade One Magistrate of Isingiro at Isingiro Magistrates Court for the enforcement/execution of the - 20 said award. - 7. That the Grade One Magistrate of Isingiro went ahead to enforce the said award in disregard of his powers/jurisdiction to do so. - 8. That the Magistrate forthwith issued orders of arrest and detention of all the Applicants in civil prison in execution of the said arbitral award in 25 Arbitration Cause No. 067/2017. - 9. That in the interest of justice, the orders in ISI-36-CV-MA-067/2017, be revised and set aside for having been issued by the Grade One Magistrate of Isingiro without jurisdiction.

### 30 **RESPONDENT'S REPLY**

Through an affidavit in reply, Naboth Anyijusya - the Credit Manager of the Respondent averred that; the Applicants were served with a notice to show cause why execution should not issue in 2017 which they ignored, and that the Applicants failed to prove that they fully paid the loan obtained from the

35 Respondent. That arbitration was the only mode of recovery available to a Cooperative Society and the Magistrate Grade One had jurisdiction because the amount involved was UGX8,103,900/= only. And that there is no reasonable cause portrayed by the Applicant for the Magistrate's orders to be set aside.

# **SUBMISSIONS**

The parties filed written submissions which I have considered.

# **Applicant's submissions**

- 5 counsel framed two issues as follows; - 1. Whether the Magistrate Grade One had jurisdiction to enforce an arbitral award No. 67 of 2017, in ISI-36-CV-MA-166/2017? - 2. What are the remedies available to the parties? - 10 Counsel submitted that Section 35(1) of the Arbitration and Conciliation Act, provides that an arbitral award shall be recognized as binding and upon application in writing to the court shall be enforced subject to this section. He cited the case of Besigye Harriet & 2ors Vs Mushanga Co-operative Savings and Credit Society (HCT-05-CV-MA-254/2013. Counsel argued that the only court - 15 with jurisdiction to enforce an arbitral award is the High Court, and therefore the Grade One Magistrate of Isingiro while enforcing Arbitral Award No.67 of 2017 in ISI-36-CV-MA-166/2017, did so in exercise of jurisdiction not vested in him, and prayed that the proceedings and orders of the said Magistrate to be set aside with costs. - 20

#### **Respondent's submissions**

Counsel for the respondent submitted that according to Section 34(3) of the Arbitration and Conciliation Act, a party can apply to Court for setting aside an arbitral award within 30 days from the date of the award but that the 25 Applicants brought this application more than 6 years after the award. That the Applicants did not appeal to the Board within 2 months after the arbitral award as stipulated by Section 75(9) of the Cooperatives Act Cap 107.

On the issue of jurisdiction counsel argued that since Section 35(1) and (2) of 30 the Arbitration and Conciliation Act does not define "Court," recourse can be had to Section 1(2) of the Interpretation Act which puts the context in a Court of Judicature. Counsel further contended that the Applicant are not entitled to any of the remedies sought for because of inordinate delay and relied on the holding in **Annet Zimbiha vs Attorney General CS No.109 of 2011** to the effect

35 that under the doctrine of laches, it would be unjust to give a plaintiff a remedy where he omitted to do that which may fairly be regarded as equivalent to a waiver of it**.** Counsel prayed for the application to be dismissed with costs.

### **Applicants' rejoinder**

Counsel contended that this application challenges the forum used in enforcing the arbitral award but not challenging the award itself. Counsel reiterated their earlier submissions.

# **DETERMINATION**

In principle a High Court can exercise powers of revision where it appears that a Magistrate's courts in its decision (a)exercised a jurisdiction not vested in it in law;(b) failed to exercise a jurisdiction so vested; or(c)acted in the exercise of its 10 jurisdiction illegally or with material irregularity or injustice, as is provided in

**SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282**.

The High Court exercises its revisionary power by satisfying itself of the correctness, legality or propriety of any finding, order or any other decision 15 of the Magistrate's court as was stated in **MABALAGANYA V. SANGA (2005) E. A 152**. When a case for revision has been made out, the High Court in exercise its unlimited powers in **SECTION 98 OF THE CIVIL PROCEDURE ACT CAP 282** may make such orders as the court considers fit as was stated in **FAUSTINE NTAMBARA VS BENON SUBUJISHO SUPREME COURT CIVIL APPEAL NO. 08 OF** 20 **2021 2025] UGSC 19 (14 MAY 2025).**

It should be noted that revision decisions of the High Court made under **SECTION 83 OF THE CIVIL PROCEDURE ACT, CAP. 282** are final and are not appealable to the Court of Appeal as was held by the Supreme Court of Uganda 25 in **FAUSTINE NTAMBARA vs BENON SUBUJISHO SUPREME COURT CIVIL APPEAL NO. 08 OF 2021 2025] UGSC 19 (14 MAY 2025).** It is therefore important that an application for revision strictly focuses on the grounds for revision in the application guided by **SECTION 83 OF THE CIVIL PROCEDURE ACT, CAP. 282.**

It is trite that revision by the High Court under **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282** applies to decisions of a Magistrates court but not the decision of the Local Council Courts or decisions of administrative bodies, because **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282** states that:

"The High Court may call for the record of any case which has been determined under this Act by **any magistrate's court…….." (bold emphasis mine)**

It means that it is important that there is a decision or an order of a Magistrate's court that is brought to the High Court for revision on the grounds stipulated in **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282.**

5 The decision that is subject for revision is the decision of the Magistrate in respect to enforcement of an arbitration award.

The applicant and the respondent both agree that there was an arbitration award made by one James Ndagijimana as an arbitrator *(paragraph 10 of the* 10 *affidavit in support, paragraph 9 & 10 of the affidavit in reply and at page 4 the 2nd last paragraph of the respondent's submissions*). The law in **SECTION 57 OF THE EVIDENCE ACT CAP 8** states that there is no need to prove admitted facts. An arbitration award is admitted by both parties, it means it is a fact that is proved on court record.

The evidence on court record shows that the decision made by Magistrate Grade 1 was an order by way of arrest and detention of the Applicants in civil prison in execution of an arbitral award in Arbitration Cause No. 067/2017, which the applicant says is in disregard of the Magistrate's powers/jurisdiction.

It is trite that the procedure for enforcement of an arbitration award is by making an application to court as is provided in **SECTION 35 (1) OF THE ARBITRATION AND CONCILIATION ACT CAP 5.**

## 25 **SECTION 35 (1) OF THE ARBITRATION AND CONCILIATION ACT CAP 5** provides;

*"35. Recognition and enforcement of arbitral award*

*(1) An arbitral award shall be recognised as binding and upon application in writing to the court shall be enforced subject to this section."( bold emphasis mine)*

**SECTION 2 (1) OF THE ARBITRATION AND CONCILIATION ACT CAP 5**, defines the word "Court" in the Act to mean the High Court.

In my analysis of the above, I note that the application to enforce the 35 arbitration award was made to the Magistrates Court and not the High Court which is a breach of the law in **SECTION 35 (1) OF THE ARBITRATION AND CONCILIATION ACT CAP 5** read hand in hand with the definition of "court" in The Act to mean High court as stipulated in **SECTION 2 (1) OF THE ARBITRATION AND CONCILIATION ACT CAP 5**.

I find that the Magistrate Grade 1 exercised jurisdiction not vested in him in law by enforcing an arbitration award. In this regard a case has been made out for revision under SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282.

- In conclusion, I make the following revisional orders: - $\mathsf{S}$ - The proceedings before the Isingiro Magistrate Grade 1 enforcing an $1.$ arbitral award in Arbitration Cause No. 67 of 2017, in Civil Suit ISI-36-CV-CS-No.166/2017 is set aside. - The respondent shall pay the applicant's costs of this application $\overline{2}$ .

**SARAZ**

**NSHIMYE ALLAN PAUL M. JUDGE** 30-06-2025

> $\overline{a}$ $\mathcal{A}$

$10$

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