“Where parties bind themselves by an exclusive jurisdiction clause, effect shall ordinarily be given to that obligation.”Clarifies the High Court-Commercial Division.

Waboga David
Oct 22
5 min read

Facts

The Applicants, Towerco of Africa (Uganda) Ltd, Towerco of Africa Ltd, and Hassanein Hiridjee, sought to stay proceedings in HCCS No. 313 of 2025 and have the dispute referred to the English Courts pursuant to exclusive jurisdiction and choice of law clauses contained in:

The Investment Agreement;
the Shareholders’ Agreement; and
the Call Option Agreements, all executed on 6 May 2022.

The Respondents—Geoffrey Donnels Oketayot, Ronald Onzia, and George Arthur Ssamula—had earlier filed a civil suit in Uganda seeking declaratory reliefs arising out of these same agreements.

The Applicants invoked clauses 26.1–26.2, 34.1–34.2, and 8.7 respectively, which submit all disputes to the exclusive jurisdiction of the Courts of England under English law.

They contended that the High Court of Uganda lacked jurisdiction.

The Respondents argued that the clause had been waived by conduct, that the agreements were tainted by fraud, economic duress and undue influence, and that they were implemented in Uganda under Ugandan law, thus domestic jurisdiction applied.

Issues for Determination

Whether the affidavits in support and rejoinder were competent.
Whether the High Court had jurisdiction to hear and determine HCCS No. 313 of 2025.
What remedies were available.

Legal Representation

Applicants: M/s Kirunda & Co. Advocates and M/s OS Kagere Advocates.
Respondents: M/s Muwema & Co. Advocates and Solicitors.
Deponents cross-examined: Ms. Sara Adong (Applicants) and Mr. George Arthur Ssamula (Respondents).

Submissions

Applicants

The Applicants argued that the court lacks jurisdiction due to the unambiguous exclusive jurisdiction clauses in the Agreements, which mandate resolution by English courts under English law.

They contended that jurisdiction challenges are preliminary points of law, requiring no merits evaluation (Desai v Warsama [1967] 1 EA 351). The Respondents are estopped from litigating in Uganda, having benefited from the Agreements (e.g., as directors, inducing investment, and receiving share payments) and waived rights via a October 31, 2024, release clause.

Compliance with Ugandan statutory requirements (e.g., UCC proceedings) does not waive the clauses. The affidavits are competent, based on the deponent's professional knowledge as counsel.

Respondents' Submissions

The Respondents opposed, arguing the application requires factual evaluation beyond a pure point of law, rendering the supporting affidavits incompetent (lacking personal knowledge under Order 19 Rule 3(1) CPR and deponent's invalid practicing certificate under Section 20(1) Advocates Act).

The jurisdiction clauses were waived by conduct (e.g., performing obligations under Ugandan law like share registration and licensing, per Section 66 Contracts Act), submission to UCC proceedings, and subjection to Ugandan regulatory oversight.

The clauses are void due to fraud, economic duress, and undue influence in procuring the Agreements—arguable grounds constituting "strong reasons" to breach the forum selection (Maersk Agency Uganda Limited v Derrick Munywevu & Another HCMA No. 1177 of 2021; ICCO Cooperation Uganda v Trivision Uganda Limited HCMA No. 64 of 2018).

These vitiating factors cannot be resolved without full trial evidence, and parties cannot oust the High Court's constitutional jurisdiction (Article 139(1) Constitution).

Court’s Findings

1. Competence of the Affidavits

The Court rejected the Respondents’ objection that the deponent (Ms. Sara Adong) lacked a valid practicing certificate and personal knowledge.

“The failure to have a valid practicing certificate does not bar an Advocate from swearing an affidavit as a witness in that capacity or invalidate the said affidavit.”

Citing Collin Kasule v Fina Bank (U) Ltd (Civil Revision No. 05 of 2015), the Court clarified that the absence of a practicing certificate does not render an affidavit defective.

It further held that Adong had sufficient knowledge as an Advocate representing the Applicants; hence, the affidavits were competent.

2. Jurisdiction of the Court

The Court reaffirmed that while Article 139(1) of the Constitution grants the High Court unlimited jurisdiction, exclusive jurisdiction clauses are ordinarily enforced unless strong cause is shown otherwise.

“Where parties bind themselves by an exclusive jurisdiction clause, effect shall ordinarily be given to that obligation.”

The court affirmed its jurisdiction, starting from the principle that the High Court's jurisdiction is unlimited unless constitutionally limited (Article 139(1); Koboko District Local Government v Okujjo Swali HCMA No. 1 of 2016: "jurisdiction is the first test in the legal authority of a Court, and its absence disqualifies the Court from exercising any of its powers").

Exclusive clauses are generally enforceable (Uganda Telecom v Rodrigo Chacon t/a Andes Alps Trading HCMA No. 337 of 2008: clause providing for English law and courts was "clear and certain," ousting Ugandan jurisdiction).

The clauses here were "clear" and unambiguous: e.g., Investment Agreement Clause 26.2: "each of the Founders and the Investor irrevocably agrees that the Courts of England shall have exclusive jurisdiction to settle any dispute... and that accordingly any proceedings... shall be brought in such Courts." Similar provisions in other Agreements.

However, applying the "strong cause" test (Maersk Agency Uganda Limited v Derrick Munywevu & Another, supra: "When faced with a suit brought in breach of an exclusive jurisdiction clause... the starting position is that the Court will stay its proceedings unless the Plaintiff is able to show ‘strong cause’ or ‘strong reason’ (such as bias or countervailing circumstances) why he should be allowed to breach his promise to sue exclusively in another forum").

The court found waiver arguments immaterial ("the fact that the agreement was negotiated, performed and possibly breached in Uganda is immaterial" per Uganda Telecom, supra), but fraud allegations decisive.

Citing Beiersdorf East Africa Limited & Another v Dembe Trading Enterprises Limited Misc. Appeal No. 45 of 2022 and ICCO Cooperation Uganda v Trivision Uganda Limited (supra): "Where there is an express selection, the choice should be respected so long as it was made bonafide... unless... [b] There is an element of fraud or duress or undue influence involved in the signing of the agreement." Also, Maersk (supra): "a forum selection clause may be unenforceable if the inclusion of the clause in the agreement was the product of fraud."

The plaint's claims (paras. 10(i) & (xii)) of fraud procuring the Agreements and clauses warranted investigation: "the above remedies warrant this Court’s investigation into the legality of the contracts... the allegations of fraud, economic duress and undue influence... are strong reasons for this Court to allow the Respondents to institute a suit against the Applicants in another forum."

The Court reviewed the impugned clauses:

Clause 26.2: “Each of the Founders and the Investor irrevocably agrees that the Courts of England shall have exclusive jurisdiction to settle any dispute... and that accordingly any proceedings... shall be brought in such Courts.”

Justice Rubagumya found these clauses to be clear and unambiguous, establishing an exclusive jurisdiction agreement.

The Court rejected the Respondents’ arguments of waiver and duress, holding that:

“The fact that the agreement was negotiated, performed and possibly breached in Uganda is immaterial.”

Allegations of fraud, duress, and undue influence could not by themselves displace the jurisdiction clause without full proof—issues more suitable for the chosen forum.

Accordingly, the Court found that Civil Suit No. 313 of 2025 had been improperly instituted in Uganda in breach of the exclusive jurisdiction agreement.

Holding

The High Court held that:

The affidavits in support and rejoinder were competent.
The exclusive jurisdiction clause in favour of the English Courts was valid and enforceable.
The High Court of Uganda lacked jurisdiction to entertain Civil Suit No. 313 of 2025.
All proceedings arising therefrom were to be referred to the English Courts in accordance with the agreements.
Costs were awarded to the Applicants.

Key Takeaways

⚖️ Exclusive Jurisdiction Clauses are Enforceable
Ugandan courts will respect parties’ express choice of foreign jurisdiction unless strong reasons such as fraud or bias are demonstrated.
📜 Valid PC Not a Bar to Swearing Affidavit
An advocate without a valid practising certificate may still depone an affidavit as a witness; the defect does not invalidate the affidavit.
🏛️ Contractual Autonomy Recognised
Parties are free to choose both governing law and forum; courts will not lightly override such autonomy.
🚫 Waiver by Conduct Must Be Unequivocal
Merely performing a contract in Uganda or complying with domestic requirements does not amount to waiver of an exclusive foreign jurisdiction clause.
🔍 Fraud and Duress Require Proof
Mere allegations of fraud or duress are insufficient to defeat a jurisdiction clause at an interlocutory stage—they must be proved at trial in the proper forum.