[2012] UGSC 22

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

### AT MENGO

CIVIL APPLICATION NO. 31 OF 2009

(ARISING OUT OF SUPREME COURT CIVIL APPEAL NO. 15 OF

$2009)$

IN THE MATTER OF

THE CENTRE FOR ARBITRATION

& DISPUTE RESOLUTION :::::::::::::::::::::::APPLICANT

#### AND

1. N. S. S. F

2. W. H. SSENTOOGO

<pre>T/A SSENTOOGO & PARTNERS:::::::::::::: APPELLANTS</pre>

#### **AND**

ALCON INTERNATIONAL LTD:::::::::::::::::::RESPONDENT

25^th February, 2010 at 9.30 a.m DATE:

Dr. Byamugisha with Mr. Kabugo for the appellants.

Mr. Muyanja for the applicant.

N. S. S. F represented by two officials.

Mr. Ssentoogo present.

Respondent absent though served.

Certify that this is a Copy of the Or HE COURT OF UG

## Mr. Muyanja Jimmy

Application for leave to be granted for the applicant to appear in this matter as a friend of the court because it raises matters of great importance.

Grounds of application are that both parties did not guide the High Court and Court of Appeal on the appellate jurisdiction of respective courts.

Both parties did not guide the court on the absence of the agreement between the parties affirming the right of either parties to appeal against the order refusing to set aside the award.

The parties did not guide the Court of Appeal on distinction between an application setting aside an award on an appeal against the award on points of law.

I apologize for not numbering pages on the record.

At the heart of this application is the contract (annex A) close 36 $(4)$ reproduced in the opinion.

The award of such Arbitrator shall be final and binding on the parties.

The law of Arbitration is the first law which has been provision for appeals against an award on points of law.

This power of appeal vested in the parties is very distinct from the right given to the parties to set aside an award.

The application before the High Court (Annex B) only prayed for setting aside an award. It is the contention of the applicant that no appeal can arise from the refusal to set aside an award as in this case.

$\frac{1}{15}$

$\mathsf{Z}$

Leave to appeal to Court of Appeal granted in October, 2003. It is my contention that High Court is vested with power to set aside the award. High Court could not move further under S. 9 of the Arbitration and Conciliation Act.

The Act does not give court power to grant leave.

Civil Procedure Rules only apply to proceedings before the court.

I join S.9 Arbitration Act with S.2 of CPA which deal with primary jurisdiction.

$2^nd$ ground is that the parties did not have an affirmative agreement between them to appeal against the award on matters of law. I refer to Section 38 1(b) of Arbitration and Conciliation Act only allows appeals where parties have so agreed only.

Section 38 (3) (a) also requires an agreement on right to appeal

Section 34 only gives court power to set aside the award. The only appeal which can be is under S. 38 on point of law.

I wish to refer to my opinion which is attached to the affidavit.

$\ensuremath{\mathrm{I}}$ pray that $\ensuremath{\mathrm{I}}$ be permitted to appear before the court as a friend of the court.

$\frac{1}{15112}$

$\overline{3}$

#### Dr. Byamugisha

I oppose the application on two main grounds.

- (1) Counsel has not shown that he will able to assist court. - (2) Amicus Curie must be invited by the court and not by application see Attorney General Vs Silver Springs (1992) KLR 46.

I submit there is no need for the court to allow amicus curie because the Parties are in a position to argue the appeal.

The point in an affidavit by Mr. Kabugo which gives chronology of the appeal. The arbitration arose out of suit not a contractual obligation. The law applicable at the time was the old Arbitration Act.

The origin of the arbitration is the suit not the agreement. I refer to authority No. 3 setting aside an award where Arbitrator has misconducted himself.

Refer to page 8 on procedures and rights of appeal provided in CPA Judicature Act and constitution.

I refer to Memorandum of Appeal (R.13) grounds 1 and 2. We are challenging that the trial judge was wrong to refer the matter to arbitration without reference to the $2^{nd}$ party to the case.

Para 10 of the affidavit to the motion. Where applicant wants to tell the court where the courts have gone wrong.

That is not the role of the court. I submit that my learned friend is not competent to advise the court.

I pray that the application be dismissed.

$\frac{1}{17}$ $\frac{1}{5}$ $\frac{1}{12}$

$\Delta$

#### Mr. Muyanja

I refer to paras 4 and 7 of affidavit in support of the application which indicate that proceedings do not indicate that the parties will not address this court on the jurisdiction of the court on appeal against order refusing setting aside the award.

Neither the statute nor the cases cited consider this issue.

I refer to R.9 which is the order staying the suit and referring the matter to arbitration.

#### **ORDER**

We find no merit in this application which is dismissed with no order as to costs.

B. J. ODOKI CHIEF JUSTICE

T Certify that this is a true CODY TEME COURT OF UGANDA