Automated Summary
Key Facts
The applicant, International Development Consultants Limited, challenged the appointment of an arbitrator by Jimmy Muyanja (Executive Director of CADER) in CADER Misc. Appn. No. 67 of 2017. The court ruled that Muyanja acted ultra vires by entertaining the application, as the power to appoint arbitrators is vested in CADER's governing council under Section 68(a) of the Arbitration & Conciliation Act. The appointment of Rajesh Dewani as arbitrator was declared null and void, and a mandamus was issued for the council to reappoint an arbitrator. The application for damages was denied.
Issues
- The court determined the 1st respondent’s actions (as Executive Director of CADER) were ultra vires, as the ACA vests appointment powers exclusively in the CADER Council. The 1st respondent’s exercise of these powers without delegation rendered the proceedings illegal and amenable to judicial review.
- The court granted certiorari to quash the proceedings, declarations invalidating the appointment, and mandamus to direct the CADER Council to reappoint an arbitrator. Damages were denied, and costs were shared as the matter was of public interest.
- The court evaluated whether Section 9 of the Arbitration and Conciliation Act (ACA) ousts its jurisdiction to entertain the judicial review application. The applicant argued that constitutional provisions (e.g., Article 42) override ACA’s ouster clause, while respondents contended that the ACA limits court intervention. The court affirmed jurisdiction, citing constitutional supremacy and the illegality of the 1st respondent’s actions.
- The court assessed the 3rd respondent’s status as a necessary party. The applicant claimed the 3rd respondent must be joined to restrain arbitral proceedings, while his counsel argued he was not a public body and the application was incompetent. The court ruled the 3rd respondent was indispensable due to the direct impact on his appointment and actions.
- The court found the 1st respondent acted unlawfully by usurping the CADER Council’s authority. The ACA prohibits delegation of appointment functions to the Executive Director, making the appointment of the 3rd respondent void.
Holdings
- The court found that the 1st respondent acted unlawfully by entertaining the application to appoint an arbitrator without proper authority, violating the principle of 'delegatus non potest delegare', and declared the appointment null and void. The ruling and orders were amenable to judicial review due to illegality.
- The court determined that it has jurisdiction to entertain the judicial review application, as the jurisdiction is established by the Constitution and the Judicature Act, and the applicant's challenge is based on the 1st respondent's unlawful actions under the Arbitration and Conciliation Act.
- The court held that the 3rd respondent was a necessary party to be joined in the application because his rights (as the appointed arbitrator) would be directly affected by the judicial review, and his presence was required to avoid condemning him unheard.
Remedies
- The court ordered that each party shall bear its own costs, as the matter is of public interest and the dispute remains unresolved.
- An order of certiorari is issued to quash the proceedings, ruling, and orders of the 1st respondent in CADER Misc. Appn. No. 67 of 2017, which were found to be null and void due to the 1st respondent's unlawful actions.
- The court did not award special or general damages as the applicant failed to establish a case for compensation.
- An order of mandamus is issued directing the Governing Council of the Centre for Arbitration and Dispute Resolution to appoint arbitrator(s) in the CAD/ARB/67/2017: INTERNATIONAL DEVELOPMENT CONSULTANTS LTD vs AECOM RoA LTD.
- A declaration is issued that the 1st respondent cannot exercise the functions of an 'appointing authority' under the Arbitration and Conciliation Act to appoint Arbitrators and Conciliators.
- A declaration is issued that the 1st respondent's appointment of the 3rd respondent as an Arbitrator pursuant to the ruling and orders of the 1st respondent in CADER Misc. Appn. No. 67 of 2017 is null and void and of no legal effect.
Legal Principles
The court applied judicial review principles to declare the 1st respondent's actions ultra vires and null and void, emphasizing that administrative bodies cannot sub-delegate statutory powers (delegatus non potest delegare). The ruling highlighted the supremacy of constitutional jurisdiction over statutory ouster clauses, affirming that decisions made without proper authority are invalid.
Precedent Name
- Koluo Joseph Andrew & Others v. Attorney General and Ors.
- Fr. Francis Bahikirwe Muntu & 15 Ors. v. Kyambogo University – Misc. Application No. 643 of 2005 (Unreported)
- Departed Asian Property Custodian Board vs Jaffer Brothers Ltd
- R vs Aston University Senate ex p Roffey
- R vs Secretary of State for Health ex p Furneaux
- Suisse Security Bank and Trust Limited v Francis BS
Cited Statute
- Arbitration and Conciliation Act
- Constitution of Uganda
- Judicature Act
- Judicature (Judicial Review) Rules, 2009
Judge Name
Hon. Justice Ssekaana Musa
Passage Text
- "The right to apply for judicial review is now Constitutional in Uganda. Article 42 gives one, before an administrative official or body, a right to be treated fairly with a right to apply to a court of law regarding an administrative decision taken against such a one. The right to just and fair treatment cannot be derogated according to Article 44..."
- "The function of appointing arbitrators and conciliators is one of the key and core functions for which the Act was enacted. Any attempt to delegate such an important function would be ultra vires the Act."
- "delegatus non potest delegare which is to the effect that a person or body to whom parliament has delegated the exercise of statutory powers and functions cannot in turn delegate the exercise of such powers and function to another person or body."