IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – AD. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
GAEWU JSC
ADJEI-FRIMPONG JSC
AMALEBOBA JSC
ACKAAH-BOAFO JSC
11TH FEBRUARY, 2026
STENA UNICON OFFSHORE …. APPLICANT/ RESPONDENT/
SERVICES GHANA LIMITED RESPONDENT
VRS
1. SPRINGFIELD EXPLORATION AND PRODUCTION LIMITED RESPONDENTS/APPELLANTS/
APPELLANTS
2. SPRINGFIELD ENERGY LIMITED
JUDGMENT
GAEWU, JSC:
My Lords, this is an appeal against the judgment of the Court of Appeal by the Respondents/Appellants/Appellants (herein referred to as Respondents) dated 16th May 2024 which affirmed the ruling of the High Court dated 30th March 2022 granting leave to the Applicant/Respondent/Respondent (herein referred to as Applicant) to enforce an arbitration award under Sections 57 & 59 of the Alternative Dispute Resolution Act, 2010 (Act 798)
The facts of the case are that, on 15th July 2019 the Applicant, an independent drilling contractor incorporated under the laws of Ghana and the operator of the drillship Stena Forth entered a contract with the 1st Respondent regarding ‘Mobile Offshore Drilling Unit and Associated Services’ in which the Applicant undertook to provide its Stena Forth to 1st Respondent and to perform all activities and provide all necessary services and equipment required in order to perform the work necessary to drill 1st Respondent’s oil wells in waters off the coast of Ghana.
The contract also contains a Parent Company Guarantee issued by the 2nd Respondent to Applicant under which 2nd Respondent unconditionally and irrevocably guaranteed to Applicant that it shall pay all sums of money due and unpaid and discharge all of 1st Respondent’s liabilities under the contract.
The contract and the parent company guarantee all provide for a comprehensive governing law and dispute settlement regime.
Clause 32.1.1 of the contract under governing law provides as follows:
“The CONTRACT shall be construed and take effect in accordance with the Laws of England. Any dispute arising out of or in connection with the CONTRACT between COMPANY GROUP and CONTRACTOR GROUP, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, such Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three (3). The seat, or legal place of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.”
Clause 10.1 under the governing law of the parent company guarantee for company also provides in similar terms as follows:
“This GUARANTEE and any non-contractual obligations arising out of it shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with the GUARANTEE, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, such Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three (3). The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.”
The contract provides at Clause 12.2.4 under compensation, payment, and audit that the Applicant shall be paid within thirty (30) days from receipt by the 1st Respondent from the Applicant of true, correctly prepared, and adequately supported invoices to a bank nominated by the Applicant. The 1st respondent was required to prepare and pre-approve the pro-forma invoices before they were to be issued by the Applicant.
According to the Applicant, it delivered the Stena Forth to the 1st Respondent for the drilling works and its other associated services from September 19, 2019, to November 22, 2019. Subsequently, Applicant was said to have issued invoices that were pre-approved by the 1st Respondent totalling US$9,709,949.75 out of which the 1st Respondent paid US$1,012,210.16 only. According to the Applicant, the 1st Respondent wrote to it on February 5, 2020, expressing its gratitude and appreciation for Applicant’s contribution to the safe and efficient drilling of its maiden exploration well, Afina-1 and informed the Applicant that it was in discussion with potential partners to raise funds and that it would use proceeds from outstanding receivables to settle Applicant’s invoices.
Following the failure and/or refusal of the 1st Respondent to pay the outstanding amount owed, the Applicant on May 29, 2020, wrote and sent a Notice of Default and Notice of Dispute indicating that 1st Respondent was in default as regards the payment of fifteen invoices totalling US$8,087,573.45 inclusive of VAT and levies and demanded payment of the outstanding amount with interest within seven days. The Applicant indicated in the default notice and dispute notice that the dispute be referred to the parties’ nominated management representatives as stated in the contract with the Applicant also reserving its right to refer the dispute to arbitration.
On June 6, 2020, the 1st Respondent wrote to the Applicant in reaction to the notice of default and notice of dispute and regarding the outstanding amount of US$8,087,573.45 that per its records the amount outstanding to be paid by it to the Applicant was UD$6,613,005.24 and not US$8,087,573.45. The reason assigned by the 1st Respondent was that, under Clause 23.5 of Section 2 of the contract, it was exempted from paying VAT and Levies under its Petroleum Agreement with the Government of Ghana and indicated also that it would be unable to meet the payment deadline because of the Covid-19 pandemic that has had serious impact on its business and fundraising efforts. As a result, the Applicant wrote and served demand notice on the 2nd Respondent under the parent company guarantee indicating that 1st Respondent was in default of its payment obligations under the contract and demanded that 2nd Respondent takes steps to remedy 1st Respondent’s default within 15 days by paying the amount of US$6,613,005.24 acknowledged by the 1st Respondent plus interest at a rate 1.75% per annum until date of final payment.
Following the failure of the Respondents to pay the amount outstanding, the Applicant on October 10, 2020, initiated arbitration proceedings against the 1st Respondent under Clause 32.1.1 of the contract (LCIA Arbitration No. 204917) and against the 2nd Respondent on December 22, 2020, under Clause 10.1 of the parent company guarantee contained in the contract (LCIA Arbitration No. 205001). The parties attended the arbitral proceedings in London and under the LCIA Rules. On August 31, 2021, the Arbitral Tribunal issued its Award in favour of the Applicant and on October 7, 2021, it also issued its Award in respect of costs to the Applicant.
The Respondents both failed and/or refused to honour and satisfy the payment of the Awards to the Applicant following which the Applicant on November 22, 2021, by originating notice of motion, applied to the Hight Court for leave to enforce the Awards pursuant to Sections 57 and 59 of the Alternative Dispute Resolution Act, 2010 (Act 798) claiming against the Respondents as follows:
(a) Leave to enforce against Respondents, the arbitration award on
merits dated 31 August 2021 made in Applicant’s favour by an arbitral tribunal comprising Messrs John Hope, Patrick Taylor, and Mariella Orelli under the London Court of International Arbitration Rules (2020), pursuant to an arbitration clause contained in Contract No. SEP/WCTP2/0001 between the Applicant and 1st Respondent dated 15 July 2019 regarding “Mobile Offshore Drilling Unit & Associated Services”(“Drilling Contract”) and a Parent Company Guarantee between Applicant and 2nd Respondent dated 15 July 2019;
(b) Leave to enforce against Respondents, the arbitration award on
costs dated 7 October 2021 made in Applicant’s favour by an arbitral tribunal comprising Messrs John Hope, Patrick Taylor, and Mariella Orelli under the London Court of International Arbitration Rules (2020), pursuant to an arbitration clause contained in Contract No. SEP/WCTP2/0001 between Applicant and 1st Respondent dated 15 July 2019 regarding “Mobile Offshore Drilling Unit & Associated Services”(“Drilling Contract”) and a Parent Company Guarantee between Applicant and 2nd Respondent dated 15 July 2019;
(c) That Respondents pay the costs of this application and of any
judgment that may be entered hereunder; and
(d) Any further order(s) this Honourable Court may deem fit.
The application was accompanied by a 49- paragraph affidavit in support sworn to and depose to by one Shirley Aforley Otu, a Lawyer and Associate of Bentsi-Enchill, Letsa & Ankomah, lawyers for the Applicant. The following documents were attached to the affidavit in support as exhibits. These are:
1. Exhibit SAO 1 – Copy of a Power of Attorney issued by Applicant to
the Deponent.
2. Exhibit SAO 2 – Copy of an Arbitral Award dated 31 August 2021
3. Exhibit SAO 3 – Copy of an addendum dated 21 September 2021 to
an Arbitral Award
4. Exhibit SAO 4 – Copy of a drilling contract, Contract No.
SEP/WCTP2/0001 dated 15 July 2019 between Applicant and 1st Respondent
5. Exhibit SAO 5 – Copy of Notice of Default and Notice of Dispute
dated 29 May 2021
6. Exhibit SAO 6 – Copy of the Notice of Demand dated 1 July 2020.
7. Exhibit SAO 7 – Copy of Arbitral Award on Costs dated 7 October
2021.
8. Exhibit SAO 8 – Copy of the LCIA Arbitration Rules (2014)
9. Exhibit SAO 9 – Copy of the LCIA Arbitration Rules (2020)
On 13th December 2021 one Francis Adams who described himself as the Legal Officer of the Respondents filed a 16-paragraph affidavit in opposition to the application. The grounds of opposition are that first, the arbitral award sought to be enforced is in breach of the rules of natural justice in that, the Respondents right to audi alteram partem was violated. Secondly, the Respondents claim that, at all material times to the proceedings, Respondents had a legitimate expectation that the Arbitral Tribunal shall afford Respondents adequate time to defend the claim made by the Applicant, which right, however was denied Respondents by the said tribunal. The third ground of the Respondents objection was their claim that, at the time of the commencement of the arbitration process, the LCIA Rules, which the parties herein had agreed upon at the time of the contract had materially changed and was not the one and the same rules, Respondents had agreed to for the determination of any dispute between the parties. The Applicant upon service of the affidavit in opposition caused to be filed on its behalf a supplementary affidavit on 9 February 2022 essentially denying the claims and contentions of the Respondents as untrue and lacking any legal basis and urging the court to disregard same.
We however note quite curiously that, at paragraph 15 of the Respondents affidavit in opposition filed on 13 December 2021, the Respondents were not pleased with the Applicant’s supplementary affidavit, that same was filed without leave and that the mandatory condition precedent for invoking the High Court’s jurisdiction has not been satisfied. The deposition at paragraph 15 is intriguing because the supplementary affidavit filed by the Applicant was filed on 9th February 2022 about two months after the affidavit in opposition was filed.
The High Court delivered its ruling on 30th March 2022 after hearing the parties on both their oral submissions and their written submissions filed and made several findings leading to it granting the application for leave to the Applicant to enforce the Arbitration Award in its entirety.
On the issue of whether the jurisdiction of the court was properly invoked, the High Court finds as follows:
“The Court finds as a fact that the Respondent filed their Affidavit in Opposition to the application on 13th of December 2021, after which the Applicant filed a Supplementary Affidavit in support on 9th March 2022. Therefore, contrary to paragraph 15 of Respondents’ Affidavit in Opposition, the Applicant had not filed any Supplementary Affidavit in this matter without leave prior to its Affidavit of 9th March 2022. At the time the Respondents filed their Affidavit in Opposition, there was no Supplementary Affidavit from the Applicant yet. As rightly observed by the Applicant, the Respondents failed to show what mandatory precedent it had not complied with, hence this objection is misconceived and unfounded. Again, by filing an Affidavit in Opposition to the application, Respondents have waived their right to object to the competence or otherwise of the application.”
On whether the arbitration was conducted in accordance with applicable rules, the Court determined as follows:
“…,the Court finds that even though the contract between the parties was executed on 15th July, 2019 (Exhibit SAO4) and therefore fell under the old LCIA rules of 2014, (Exhibit SAO8) the arbitral award which is dated 31st August, 2021 fell under the new LCIA rules of 2020 (Exhibit SAO9) and they were the rules applicable at the time the Applicant filed its request for arbitration against the 1st Respondent on 10th October 2020 and against 2nd Respondent on 22nd December 2020; and thus govern the arbitral award that ensued.”
The Court then posed the question: ‘Was there a material change in the LCIA rules of 2020 such that it disadvantaged the Respondents?” The court answered it as follows:
“The Court finds that whereas the LCIA Rules of (2020) provides specifically for additional powers for the Arbitral Tribunal under Article 22.1 (vii) to provide for early determination when it is called upon to determine whether or not any claim, defence, counterclaim… is manifestly outside its jurisdiction or is inadmissible or manifestly without merit; Article 14.5 of LCIA Rules, 2014 provides widest discretion to the tribunal in the discharge of its duties and state: ‘…the Arbitral Tribunal shall have the widest discretion to discharge these general duties, subject to such mandatory laws or rules of law as the Arbitral Tribunal may decide to be applicable; and at all times the parties shall do everything necessary in good faith for the fair, efficient and expeditious conduct of the arbitration, including the Arbitral Tribunal’s discharge of its general duties’.
This discretion in my opinion will therefore extend to the occasions where the tribunal deemed it necessary within the particular circumstances of a case to have an early determination. This is confirmed in paragraph 127 of the Award where it was stated; thus, ‘As to whether such a determination can be carried out by way of an early determination procedure, parties who agree to submit to LCIA arbitration, whether under the LCIA Rules (2020) or under the LCIA Rules (2014), must anticipate that the early determination is a possibility. The fact invoked by the Respondents that the LCIA Rules that were in force when the parties agreed to submit their dispute to arbitration did not specifically include LCIA Rule 22.1 does not change this. Article 14.5 of those previous LCIA Rules of (2014) gave the widest discretion to arbitral tribunals to discharge their general duties…’
Thus, the LCIA Rules of (2014) and (2020) are not at all material different. The former gave the Arbitral Tribunal widest discretion so that where necessary and within the context of a particular case, there can be an early determination whilst the latter specifically added the terminology early determination. That is why the tribunal states in paragraph 127 that the early determination procedure would have been available to a party under the LCIA Rules (2014) by virtue of Article 14.5”.’
On the issue of whether because of the early determination of the arbitration application by the Applicant, the Respondents were not given adequate time to prepare their defence, the court finds and determines as follows:
“Concerning whether they had enough time to prepare, the court finds from the procedural history of the case set out in pages 6 to 9 of Exhibit SAO 2, the Arbitral Award that the Respondents had ample time to prepare for the early determination of its claims. The court finds from paragraph 22 of the procedural history that the 1st respondent failed to respond to the Applicant’s request for arbitration. This is contrary to the Article 2 of the LCIA Rules where a respondent is required to file any response to a request for arbitration within 28 days. Indeed, under Article 15.3 of the LCIA Rules, a respondent had 28 days to file their statement of defence after receipt of the applicant’s statement of case. The Applicant filed its request for arbitration against the 1st Respondent on 10th October 2020 and its statement of case on 4th December 2020 and proposed that 1st Respondent should file its statement of defence before 8th January 2021. The 1st Respondent proposed a deadline of 26th February 2021. However, the Tribunal set a deadline of 27th January. That notwithstanding, the 1st Respondent requesting for a further seven (7) day extension which was agreed to by Applicant, yet 1st Respondent eventually served its statement of defence on Applicant on 3rd February which was out of time. The 2nd Respondent filed its statement of defence to Applicant’s request for arbitration against it on 19th March 2021. The facts show that contrary to this provision, it took the 1st Respondent almost two months to file its statement of case. The court finds that the parties had been unable to agree on the procedural timetable deadline for the Respondents to respond to the Applicant’s application for early determination. Whereas the Applicant had proposed hearing of its application for early determination a date not later than April 2021, the Respondents’ proposed date was 6th May. The court finds that as a result of the disagreement of the date to hear the application for early determination, the Arbitral Tribunal held a video conference on February 23, 2021, a day after the claimant filed an application for early determination and heard the parties on their respective positions on the points of disagreement relating to the procedural timetables for hearing the claimant’s application for early determination, the court finds that the tribunal sets out a procedural timetable for hearing the Applicant’s application for early determination and which timetable provided the dated for oral hearing as May 21, 2021….
The court finds that from the procedural history, the Respondents were involved in every step of the process and procedure that led to the early determination of the application filed by the Applicant. Even the date that the Respondents proposed (6th May 2021), for oral hearing of the early determination filed by Applicant was further extended by the tribunal (21st May 2021). It therefore does not lie in the mouth of the Respondents after taking advantage of all the procedural avenues provided by the Tribunal to make their case be heard to now turn around and cry foul”.
On the issue of whether the awards fully satisfy requirements of the law for grant of leave, the High Court stated as follows:
“From all the evidence placed before this court, Section 59(1) of the ADRA has been complied with by the Applicant. Clause 32.1.1 of Section 2 of the Drilling Contract (Exhibit SAO 4), and Clause 10.1 of the Parent Company Guarantee both provided that disputes shall be determined by arbitration with the LCIA Rules with the seat of the arbitration being in London. That the award being issued by the Arbitral Tribunal is enforceable in Ghana under Section 59 because Ghana and the United Kingdom are both signatories to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of New York on June 10, 1958. Also, the Applicants produce Exhibit SAO 2, a copy of the Arbitral Award dated 31st August 2021, as amended by the addendum Exhibit SAO 3 dated 21st September 2021 as well as a copy of the arbitral awards on costs Exhibit SAO 7 dated 7th October 2021. Importantly, the Respondents have not led any evidence to show that they are challenging the contents of the award and neither have they contended that the award does not fully satisfy requirements of the law for grant of leave for it to be registered”.
The Respondents being dissatisfied with the ruling of the High Court, filed a notice of appeal to the Court of Appeal dated 4th April 2020 and set out the following grounds contained in the notice of appeal:
GROUNDS OF APPEAL
1. The court below erred in law by holding that Respondents were granted a fair opportunity to be heard during the proceedings.
PARTICULARS OF ERROR
A. The adoption of an expedited arbitration process which Respondents did not agree to at the time of execution of the arbitration agreement, amounts to a violation of Respondents’ right to be heard.
B. The expedited arbitration process was contrary to the arbitration agreement executed by the parties.
C. Respondents’ legitimate expectation of being afforded ample time to defend the claim at arbitration was violated by the Arbitral Tribunal.
D. The arbitration process was plagued with procedural impropriety and breached of the rules of natural justice.
2. The court below erred in law by granting Applicant/Respondent leave to enforce the arbitration award.
PARTICULARS OF ERROR
a) The arbitration award was contrary to Section 59(3) of the ADR Act, Act 798(2). The court cannot grant leave for the enforcement of an award in violation of the rules of natural justice and fairness
3. Judgment is against the weight of affidavit evidence.
4. Further grounds to be filed upon receipt of the record of appeal.
The Court of Appeal after hearing the appeal, dismissed same and affirmed the ruling of the High Court. In its judgment dated 16th May 2024, the Court of Appeal held that from the record of proceedings, the award has not been annulled in the United Kingdom which was the seat of the arbitrator proceedings. That all the parties were given the opportunity to present their cases. The parties had a capacity and none of them had raised same before this court. The Court of Appeal found again that the award dealt with the issues submitted to arbitration and furthermore, the award does not contain a decision beyond the scope of the matters submitted for arbitration. It therefore finds the High Court’s decision conforms to Section 59 of Alternative Dispute Resolution Act, 2010 (Act 798) which provides for the circumstances under which a foreign arbitration award shall be impeached.
The Respondents are aggrieved by the judgment of the Court of Appeal and have appealed against it to this court in the Notice of Appeal filed on 22nd May 2024 on the following grounds:
GROUNDS OF APPEAL
i. The court below erred in law by holding that Respondents were granted a fair opportunity to be heard/hearing during the arbitration proceedings.
PARTICULARS OF ERROR
a) The adoption of an expedited arbitration process which Respondents did not agree to at the time of execution of the arbitration, amounted to a violation of Respondents’ right to be heard.
b) The expedited arbitration process was contrary to the arbitration agreement executed by the parties.
c) Respondents’ legitimate expectation of being afforded ample time to defend the claim at arbitration was violated by the Arbitration tribunal.
d) The arbitration process was plagued with procedural impropriety and breach of the rules of natural justice
ii. The court below erred in law by granting Applicant leave to enforce the arbitration award.
PARTICULARS OF ERROR
a) The arbitration award was contrary to Section 59(3) of the ADR Act, Act 798.
b) The court cannot grant leave for the enforcement of an award in violation of the rules of natural justice and fairness.
iii. The High Court’s jurisdiction was not properly invoked for the determination of the originating motion on notice.
PARTICULARS OF ERROR
a) The purported power of attorney was clearly inadmissible as
Evidence.
b) The purported power of attorney consequently failed to
provide the basis for invoking the jurisdiction of the Court to
so, act.
iv. Judgment is against the weight of affidavit evidence.
THE DETERMINATION OF THE APPEAL
In the statement of case of the Respondents, counsel submits that after the filing of the motion at the High Court, Applicant filed a supplementary affidavit in support of the application on the 9th of February 2022. And that the said supplementary affidavit was filed without the leave of the court and therefore same should not have been entertained by the High Court especially when the application before the court was one in an originating motion and not a mere interlocutory application. Counsel for the respondent relies on two South African cases. The first is James Brown Hammer (Pty) Ltd v. Simmons 963(4) SA(A) 660 E-F where it was stated as follows:
“Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the court; he must both advance his explanation of why the affidavit is out of time and satisfy the court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless, be received”.
The second case cited by counsel for the Respondents is Standard Bank of SA Ltd v. Sewpersadh & Anor. 2005(4) SA148 para. (C) para (13). Where it was held as follows:
“Clearly, a litigant who wish to file a further affidavit must make a formal application for leave to do so. It cannot simply slip the affidavit into the court file (as it appears to have been the case in the instant matter). I am of a firm view that this affidavit fails to be regarded pro non scripto”.
Based on the above two authorities, counsel submits that the supplementary affidavit filed on 9th February 2022 by the Applicant should have been struck out by the High Court by reason of the inherent defect of same.
Responding to the submission, counsel for the Applicant submits in his statement of case that in civil proceedings, it is a well-established practice that the party initiating an action, whether by a writ of summons, petition, or originating notice of motion, is afforded the opportunity as of right, to respond to allegations made by the opposing party in defence of the initiating process. For instance, in cases commenced by writ, the plaintiff is entitled to a right of reply. Similarly, in petitions, the petitioner is permitted to file a response. That an originating notice of motion, being an initiating court process, similarly grants the applicant an opportunity to respond to the respondent’s affidavit in opposition, particularly where the issues raised necessitates a documented reply.
Counsel for the Applicant submits further that there is no provision in the High Court (Civil Procedure) Rules, 2004, CI 47, that requires a party to seek leave of the court before filing a supplementary affidavit in support of an action commenced by an originating notice of motion. It is counsel for the Applicant’s case that CI 47 does not impose a blanket requirement for leave to be sought before filing a supplementary affidavit in all circumstances. Where a specific rule mandates that leave is sought, such as in the case of amending grounds in a judicial review application, the rules explicitly say so. For instance, Order 55 Rule 5(5) of CI 47 provides as follows:
“The applicant, may by the leave of the court, amend the grounds relied on and upon leave being granted, the applicant shall file a further affidavit setting out the grounds relied on as amended not later than 7 days after the grant of the leave, or such other time as the court may order”.
An affidavit is a voluntary declaration of facts written down and sworn to by the declarant before an officer authorised to administer oaths – See Black’s Law Dictionary 9th Edn.
Thus, basically, it is a document containing fact within the personal knowledge or belief of a person sworn on oath. The word affidavit is derived from the Medieval Latin meaning “to declare under oath”, which is a written statement voluntarily made by an affiant or deponent under an oath or affirmation which is administered by a person who is authorised to do so in law. Order 20 of the High Court (Civil Procedure) Rules of CI 47 provides for the use of affidavit wherever the rules so provide. And Order 19 Rule 1(2) provides that:
“proceedings by which an application is to be made to the court or a judge of the court under any enactment shall be initiated by a motion and where an enactment provides that an application shall be made by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application”.
Rule 4 of Order 19 of CI 47 on affidavits in support of motion provides as follows:
“Every application shall be supported by affidavit deposed to by the applicant or some person duly authorised by the applicant and stating the facts on which the applicant relies, unless any of these Rules provide that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper”.
Affidavits are commonly used in court proceedings to either support or oppose an application made by a party in a suit. Affidavits are made for different purposes such as affidavit in support or in opposition. A supplementary affidavit is essentially an additional affidavit filed to provide further evidence or clarify matters already presented in an initial affidavit. Thus, a supplementary affidavit is filed to add new information, clarify details, or correct mistakes in an affidavit already submitted. It does not replace the original affidavit but expands upon it to ensure that the court has current and accurate facts.
The practice in a court is that there are three sets of affidavits that are allowed in application proceedings, that is, supporting affidavit, answering affidavit also known as affidavit in opposition and replying to affidavit which may be presented in the form of supplementary affidavit. These processes are filed without leave of the court except where the rules of court state otherwise. Any further or additional process requires leave of the court and the court in exercising its discretion may grant or refuse same. This conventional three sets of affidavits associated with application proceedings are akin to pleadings where the statement of claim, statement of defence and reply are filed as of right provided within the timelines specified by the rules. However, other forms of pleadings are filed with leave of the court. Therefore, it is obvious that a supplementary affidavit can only be filed without leave of the court if it seeks to answer affidavit in opposition.
Again, we are of the opinion that seeking leave to file a supplementary affidavit in support of an application applies only to judicial review applications under Order 55 of CI 47 where an applicant seeks to amend the grounds relied upon and we therefore agree with the submission of learned counsel for the Applicant that it does not suggest leave is required for filing a supplementary affidavit in all cases and that the principle expressio unius est exclusio alterius, that is express mention of one thing excludes the other applies.
We also agree with learned counsel for the Applicant that counsel for Respondents’ reliance on the South African cases in support of the argument on the issue of leave is misplaced and irrelevant in the context of this case. Counsel for Respondents referred to those South African cases without showing or establishing any meaningful parallels between the civil procedures of Ghana and South Africa and whether the two has comparable statutory underpinnings.
In counsel for the Respondents’ submission that the judgment is against the weight of affidavit evidence (omnibus ground), counsel proceeded to set out the road map which this court has set for appellants in the case of Solomon Tackie, Ago Bannerman suing as the Joint Heads of the Tackie and Bannerman Thompson families v. John Nettey (Subst. by Fred Bibi Ayineh & Sampson Kofi Badu Civil Appeal No. J4/44/2019 dated 24th March 2021.
Under the omnibus ground of appeal that the judgment is against the weight of evidence, an appellant’s duty is to establish that there is some piece of evidence on record which, the court below fails to consider or that the evidence was not properly evaluated and determined in accordance with the law.
In Rukayatu Usmanu v. Zongo Naa Kungari & 16 ors Civil appeal No. J4/23/2020, judgment dated 31st March 2021, this court speaking through Dodzie, JSC (as she then was), stated as follows:
“The appellant to succeed on this ground of appeal equally has the duty to demonstrate to us that the findings of the Court of Appeal are unreasonable in view of the available evidence on record and this court ought to interfere with it to bring justice to her”.
Counsel for the Respondents submits therefore that, when the consideration of the evidence on record requires a consideration of a point of law which emanates from the consideration of the evidence on record, the said point of law must be determined by the court under the omnibus ground of appeal. Counsel cites for his authority the case of Atuguba & Associates v. Scipion Capital (UK) Ltd & Anor. Civil Appeal No. J4/04/2019 judgment dated 3rd April 2019, where this court cited with approval its earlier decision in Owusu-Domena v. Amoah [2015-2016] 1 SCGLR 790 as follows:
“Thus, where the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal argument will help advance or facilitate a determination of the factual matters”.
Under this ground of appeal therefore, it is counsel for the Respondents’ contention that the consideration of the evidence on record, particularly the affidavit in support and the power of attorney, exposed the fact that the court’s jurisdiction was not properly invoked. It is the Respondents’ case that the Applicant sued through a lawful attorney and invoked the jurisdiction of the court through a lawful representative of the power of attorney and that same ought to have been endorsed on the face of the motion paper as suing through its lawful attorney. Counsel cites Order 2 Rule 4 of CI 47 which reads:
“Order 2 – Commencement of Proceedings
Rule 4: Indorsement as to Capacity:
(1). Before a writ is filed, it shall be indorsed:
a) Where the plaintiff sues in a representative capacity with a statement of the capacity in which the plaintiff sues”.
In support of his argument, counsel for the Respondents relies on the case of Standard Bank Offshore Trust Co. Ltd v. National Investment Bank Ltd & Ors. [2017-2018] 1 SCGLR 707 where this court referred to the case of Naos Holdings PLC v. Ghana Commercial Bank [2005-2006] SCGLR 407 and held as follows:
“It must be emphasised that the capacity to sue must be present before the writ is issued; such authority must appear in the endorsement and/or statement of claim accompanying the writ; it cannot be acquired whilst the case is pending; and an amendment cannot be sought to introduce it for the first time. A writ that does not meet the requirement of capacity is null and void”.
Another issue argued by counsel for the Respondents in the statement of case is that, the power of attorney, Exhibit SAO 1, was inadmissible and exposes the fact that there was indeed no power of attorney to the attorney, Shirley Afoley Otu, who deposed to the affidavit in support of the application at the High Court, and could not have acted for and on behalf of the applicant and even depose to the affidavit. The basis for this contention is that the power of attorney, Exhibit SAO 1, was unstamped as there was no stamp duty stamp embossed on same.
Counsel for the Applicant in his statement of case in response to the Respondents’ argument under the omnibus ground of appeal, opposed and countered that the Appellants, that is the Respondents herein, cannot argue legal matters under the omnibus ground.
Order 2 Rule 2 of CI 47 on commencement of proceedings provides that subject to any existing enactment to the contrary, all civil proceedings shall be commenced by the filing of a writ of summons. This provision goes to show that there are other modes of initiating civil proceedings other than by the filing of a writ of summons. Thus, under Order 19 Rule 1(2), proceedings by which an application is to be made to the court or a judge of the court under any enactment, shall be initiated by motion and where an enactment provides that an application shall be by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application.
Order 82 Rule 3 of CI 47 on Interpretation define ‘writ’ to include a writ of summons and statement of claim or a petition in a cause or matter. This expansive definition of a writ under CI 47 does not include originating notice of motion under any enactment under Order 19.
Counsel for the Respondents’ contention that the originating motion on notice ought to have been indorsed with the representative capacity of the deponent to the affidavit is to our mind unlikely, unconvincing, and far-fetched. Originating motion on notice is not a writ as defined under CI 47.
We therefore reject the argument that the motion ought to have been indorsed with the capacity of the deponent of the affidavit in support of the application before the High Court.
Again, under Order 19 rule 4 of CI 47 on Affidavit in Support of motion provides that, every application (be it by originating notice of motion or in a motion in pending proceedings) shall be supported by affidavit deposed to by the applicant or some person duly authorised by the applicant and stating the facts on which the applicant relies, unless any of the rules provides that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper.
In this application commenced before the High Court, we have noted that Stena Unicon Offshore Services Ghana Ltd, the applicant, is a registered Ghanaian company with full legal capacity to initiate proceedings in the courts and indeed, commenced this action in its own name. The power of attorney donated to Shirley Afoley Otu was to authorise her to depose to the affidavit on its behalf which she did.
On the question whether the applicant can argue legal matters under the omnibus ground, the trite position of the law before the case of Owusu Domena v. Amoah [2015-2016] 1 SCGLR 790, in cases such as Brown v. Quarshigah was that, where a person in his notice of appeal states that the judgment is against the weight of evidence on record, the duty of the appellate court is limited to re-evaluation of the evidence and exhibits on record; the appellant is not allowed to argue points of law under that omnibus ground. In that case, the appellant appealed the judgment of Court of Appeal to the Supreme Court on the sole ground that the judgment was against the weight of evidence. The appellant urged the Supreme Court to review the entire judgment of the High Court and the Court of Appeal on the basis that an appeal was by way of rehearing. This court stated as follows:
“This means that the jurisdiction of the appellate court is available but the rule of practice in our courts is that the plaintiff must invoke it by filing appropriate grounds of appeal, distinguishing the so-called omnibus ground from misdirection or errors of law, challenge to jurisdiction or capacity, etc. I have carefully read the authorities cited by learned counsel for the plaintiff and I am unable to find any support for the stand taken by him in those authorities. In my view, a party who only gives notice that he intends to rely on the so-called omnibus ground should not be permitted to argue points of law. In in Re Asamoah (decd); Agyeiwaa & Ors. v. Manu [2013-2014} 2 SCGLR 909 where Akamba, JSC, (as he then was), citing with approval Brown v. Quarshigah supra, stated as follows:
“This court has clarified the position as to what is entailed when an appellant places reliance upon the omnibus ground of appeal namely, the judgment is against the weight of evidence. In the view of the court, a party who only gives notice that he intends to rely on the so-called omnibus ground should not be permitted to argue points of law. The rules make specific provisions for invoking arguments on points of law, which must be adhered to. We would in this context, barring any exceptional reasons, limit discussions on this ground to any dissatisfaction on findings of fact, if any”.
Also, in the case of Republic v. Central Regional House of Chiefs & Ors. Ex-parte Gyan IX (Andoh X – Int. Party) [2013-2014] 2 SCGLR 845, this court again relying on the earlier decision in Brown V. Quarshigah stated per Akamba, JSC, (as he then was) as follows:
“…an appeal based on the omnibus ground of appeal does not permit reliance or argument on points of law. The rules make specific provisions for invoking argument on points of law which must be adhered to”.
See also the case of Tuakwa v. Bosom [2001-2002] SCGLR page 61.
However, in 2014 or thereabout, the position of the law has evolved to the effect that there are circumstances where both legal and factual grounds could be argued or canvassed under the omnibus ground of appeal. In Owusu Domena v. Amoah supra, Benin, JSC, (as he then was), stated when the appellant in that case appealed to the Supreme Court on only the one ground that the judgment is against the weight of evidence stated as follows:
“The sole ground of appeal throws up the case for a fresh consideration of all the facts and law by the appellate court. we are aware of this court’s decision in Tuakwa v. Bosom [2001-2002] SCGLR 61 on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. It has erroneously been cited as laying down the law that when an appeal is based on the ground that the judgment is against the weight of evidence, then only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments will help advance or facilitate a determination of the factual matters. This court’s decision in Attorney General v. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 at p.306 per Wood, ISC (as she then was), cited by counsel for the respondent is apt on this point”.
Having so observed, the use of the omnibus ground of appeal ought not be deployed as a flood gate for smuggling grounds of appeal not set out in the notice of appeal. In Atuguba & Associates v. Scipion Capital (UK) Ltd & Anor. [2019-2020] 1 SCGLR 55, Amegatcher, JSC, (as he then was), stated as follows:
“It is worrying that parties and counsel continue to throw the omnibus grounds to the court without regards to guidelines issued in the cases. These rulings of the court were not delivered for the fun of it. They were meant to be read by all Supreme Court practitioners and be used as a guide in formulating grounds of appeal filed in this court. It is about time counsel and parties alike appearing before this court took decisions, directions and guidelines issued by it seriously and complied strictly with them.
In this appeal, the omnibus ground was the only ground of appeal formulated and filed before us. The rules, however, provide in Rule 6(6) that the appellant shall not without the leave of the court, argue or be heard in support of any ground of appeal that is not mentioned in the notice of appeal. In this appeal, appellant did not seek the leave of this court to argue additional grounds of appeal. After service of civil form 6 after which the parties were required to write their written statements of case, the sole ground of appeal before this court was that the judgment was against the weight of evidence…”
The cases of Tuakwa v. Bosom supra, Brown v. Quarshigah supra and Re Asamoah (decd) supra, recently, have been clarified by this court and exceptions rightfully made to the general rule. Thus, in Owusu Domena v. Amoah [2015-2016] 1 SCGLR 790, Benin, JSC, delivering the unanimous judgment of this court at page 799 clarified the legal position as follows: ‘The sole ground of appeal throws up the case for a fresh consideration of all the facts and law by the appellate court. We are aware of this court’s decision in Tuakwa v. Bosom [2001-2002] SCGLR 61 on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. It has erroneously been cited as laying down the law that when an appeal is based on the ground that the judgment is against the weight of evidence, then only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments will help advance or facilitate a determination of the factual matters.
Based on the exceptions given by this court in the Owusu Domena v. Amoah case supra, the current position of the law may be stated that where the only ground of appeal filed is that the judgment is against the weight of evidence, parties would not be permitted to argue legal issues if the factual issues do not admit of any. However, if the weight of evidence is substantially influenced by points of law, such as the rules of evidence and practice or the discharge of the burden of persuasion or of producing evidence, then points of law may be advanced to help facilitate a determination of the factual matters. The formulation of this exception is not an invitation for parties to smuggle points of law into their factual arguments under the omnibus ground. The court would in all cases scrutinize such cases so argued within the narrow window provided”.
Clearly, an appellant who has set out the sole ground of appeal under the omnibus ground of appeal that the judgment is against the weight of evidence may argue legal issues under the omnibus ground if only the legal arguments would help advance or facilitate a determination of the factual matters or the factual aspects of the case during an appeal. The legal arguments must help in determining whether the facts as narrated and interpreted in the trial court were assessed correctly, and whether the appropriate legal standard of proof was applied. However, where in the notice of appeal an appellant has set out the omnibus ground of appeal that the judgment was against the weight of evidence and states other grounds alleging error of law then such an appellant ought not be permitted to argue some other points of law not stated in the notice of appeal under the omnibus ground of appeal.
The next issue raised by counsel for the Respondent is that the power of attorney is inadmissible in evidence unless the stamp duty thereto is duly paid, and the power of attorney embossed with the stamp duty stamp. This in our opinion has two elements to it.
Firstly, in our view whether the power of attorney was stamped or not is a factual issue which ought to have been raised and brought up in the trial High Court in order that the Applicant could have reacted to same. We note that, this issue was not raised at the trial High Court and the trite law is that one cannot introduce matters of fact on appeal which if raised in the trial High Court would have afforded opportunity for the opponent to adduce evidence on.
In Antie & Adjuwaa v. Ogbo [2005-2006] SCGLR 494 where this court per Wood, JSC, (as she then was), underscored this principle and clarified that an appellate court should refrain from allowing new matters to be introduced during appeal if they were not raised in the initial trial and stated as follows:
“But even more importantly, as already stated, I have examined the grounds of counsel’s objection, as well as the entire evidence, and found to my dismay that in any event, the respondent never complained that he was deficient in pigin English and therefore that factual issue never arose for the trial court’s determination. As the records show, it was the court which, suo moto raised issues about pigin English and used that wrongly in my view as a ground for rejecting the document in evidence. This approach flew directly in the face of two firmly established principles; firstly, the age old principle in a long line of cases including Dam v. Addo & Bros [1962] 2 GLR 200, Bisi v. Tabiri (alias Asare) [1987-88] 1 GLR 401 and Kwame v. Serwaa [1993-94] 1 GLR 429, in that a court must not proprio motu set up a case for a party which he himself has not put up and secondly, the principle that an appellate court must not permit to be raised for the first time, factual issues that were not raised at the trial.
We therefore agree with the submission of counsel for the Applicant that the issue of stamping regarding the power of attorney, Exhibit SAO 1, ought to have been raised in the Respondents’ affidavit in opposition to the application for leave to enforce the arbitration award. Neither did the Respondents raise this issue in their written submission filed in opposition to the Applicant’s application for leave. Respondents’ processes at the High Court together with Applicant’s are together the documents reviewed to arrive at its decision. The admissibility of Exhibit SAO 1 was never raised or contested by Respondents in any of their processes filed at the High Court or raised orally before the High Court. There is no mention of the admissibility or otherwise of Exhibit SAO 1 in the trial High Court’s ruling because the power of attorney was not contested in any of the processes before it. The issue of the admissibility of power of attorney on which basis Shirley Afoley Otu deposed to the affidavit in support was only raised for the first time before the Court of Appeal, not arising from the grounds of appeal in the notice of appeal, but quietly smuggled into the Respondents’ written submission under 39 at page 11 of the ROA volume 3. While we appreciate the law, that where evidence is legally inadmissible per se, with or without objection, the same ought to be discarded by the court, the facts here are different since by the provision of the Stamp Duty Act, 2005 (Act 689), if the matter had been raised the trial court could have ordered the stamp duty to be paid if a reasonable explanation had been offered by the Applicant.
Furthermore, the issue whether objection of its admissibility can be raised on appeal, Section 6 of the Evidence Act, 1975 (NRCD 323) on objection to evidence is instructive. It reads as follows:
“1) In every action, and at every stage thereof, any objection to the admissibility of evidence by a party affected thereby shall be at the time the evidence is offered.
2) Every objection to the admissibility of evidence shall be recorded and ruled upon by the court as a matter of course.
3) Where a document is produced and tendered in evidence and rejected by the court, it shall be marked by the court as having been so tendered and rejected.”
In the case of Aryeh & Akakpo v. Iddrisu [2010] SCGLR 891, this court applied Section 6(1) of NRCD 323 that a party should object to evidence at the time it was tendered. It was held that:
“if I looked on and allowed the inadmissible evidence to pass without objecting, it would form part of the court records and the trial judge would be entitled to consider it in evaluating the evidence on record for what it is worth.”
Therefore, where a party fails to raise an objection to the admission of an evidence, it may form part of the record. However, S. 8 of NRCD 323 gives power to the court to exclude evidence. It reads:
“Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.”
It must, however, be bornein mind that, an appeal or review based on erroneous admission of evidence may succeed only where it was established that the erroneous admission or exclusion had occasioned a substantial miscarriage of justice.
Section 5 of NRCD 323 provides for circumstances in which the court must take into consideration evidence which has been wrongly admitted or excluded.
Section 5 -Erroneous Admission or Exclusion of Evidence.
1. No finding, verdict, judgment, or decision shall be set aside, altered or reversed on appeal or review because of the erroneous admission of evidence unless the erroneous admission of evidence resulted in a substantial miscarriage of justice.
2. In determining whether an erroneous admission of evidence resulted in a substantial miscarriage of justice the court shall consider:
a) Whether the trial court relied on that inadmissible evidence; and
b) Whether an objection to a motion to exclude, to strike out the evidence could and should have been made at an earlier stage in the action; and
c) Whether the objection or motion could and should have been
so stated as to make clear its ground or grounds; and
d) Whether the admitted evidence should have been excluded on
one of the grounds stated in connection with the objection or motion; and
e) Whether the decision would have been otherwise but for that
erroneous admission of evidence.
3. No finding, verdict, judgment, or decision shall be set aside, altered or reversed on appeal or review because of the erroneous exclusion of evidence unless –
(a) The substance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by other means; and
(b) The court which decides on the effect of the error also determines that the excluded evidence should have been admitted and that the erroneous exclusion of evidence resulted in a substantial miscarriage of justice.”
It can be gleaned from Section 5 of NRCD 323 supra that it deals with three broad areas. The first part of Section 5(1) applies to erroneous admission of evidence. The second part which is Section 5(2), provides for statutory conditions for determination of what constitute a substantial miscarriage of justice, and the third part, Section 5(3) deals with erroneous exclusion of evidence.
In the case of Oppong v. Anarfi [2011] 32 GMJ 118, this court determined what constitute a substantial miscarriage of justice and sets out the conditions which must be satisfied as follows: “the Evidence Act Section 5(2) sets out the circumstances under which a judgment will be set aside on account of an erroneous admission of evidence.
5(2) In determining whether an erroneous admission of evidence resulted in a substantial miscarriage of justice, the court shall consider:
a) Whether the trial court relied on that inadmissible evidence;
and
b) Whether an objection to, or a motion to exclude or to strike
out, the evidence could and should have been made at an earlier stage in the action; and
c) Whether the objection or motion could and should have been
so stated as to make clear the ground or grounds of the objections of the objection or motion; and
d) Whether the admitted evidence should have been excluded on
one of the grounds stated in connection with the objection or motion; and
e) Whether the decision would have been otherwise but for the
erroneous admission of evidence”.
It is therefore evidently clear that the only criterion for a reversal is where the erroneous admission must have resulted in a substantial miscarriage of justice. In this case, the purported erroneously admitted evidence did not affect the merits of the claim contained in the Arbitration Award that was being enforced.
Based on the above, the Respondents ground 3 fails and we proceed to dismiss same.
We now proceed to analyse Respondents’ ground ‘1’ that the court below erred in law by holding that Respondents was granted a fair opportunity to be heard during the arbitration process. According to the Respondents giving particulars of error under this ground that the adoption of an expedited arbitration process which Respondents did not agree to at the time of execution of the arbitration agreement, amounts to a violation of Respondents’ right to be heard. In arguing this ground under the error of law, the Respondents contend that Applicant, by executing an agreement for arbitration executed same with the understanding that the said arbitration will be conducted under a specific LCIA Rule, which rule affords Applicant an opportunity to adequately prepare its case before the arbitration. And the Respondents say that it is within this context that it admitted to arbitration without any expedited/early determination.
According to the Respondents, a reading of a copy of the arbitral award dated 31st to the arbitral award, Exhibit SAO 3, and copy of the arbitral award on cost dated October 7, 2021, Exhibit SAO 7, will disclose that Respondents were handicapped by the process disclosed to be early determination, by which process Respondents were denied ample time to prepare their defence in accordance with the rules, Applicant had earlier consented to arbitration for. The Respondents contend therefore that this said rules of arbitration employed therefore disabled them from a fair and procedural adequate arbitration which protects Respondents right to a fair hearing as mandated by the rules of judicial determination affecting the rights of others.
And that the Respondent did not have the required time they needed to prepare for the arbitration, gather their evidence, and to prepare an answer to the case of the Applicant. Counsel for the Respondents have also criticized the findings of the court below that the new rules of LCIA and the old rules anticipated that there would be early determination of the suit.
Counsel for the Applicant in his statement of case filed for and on behalf of the Applicant submits in response to Respondents contentions above that the court below, that is the Court of Appeal, did not err when it held that Respondents were given ample time and opportunity to present their case in the arbitration proceedings. And that the arbitration was conducted in accordance with the rules agreed upon and anticipated by the parties under their arbitration agreements.
As earlier noted, the Applicant and the 1st Respondent expressly agreed in the arbitration clause, Clause 32.1.1 of Section 2 of the Drilling Contract, that is Exhibit SAO 4, that any dispute would be referred to and finally resolved by arbitration under the LCIA rules. Also, the Applicant and the 2nd Respondent expressly agreed that any dispute will be referred to and finally resolved by arbitration under the LCIA Rules. See Clause 10.1 of the Parent Company Guarantee under Exhibit SAO 4.
From the evidence, at the time the parties signed Exhibit SAO 4, the LCIA Arbitration Rules in force at the time, were the LCIA Arbitration Rules (2014) (LCIA Rules 2014), that is Exhibit SAO 8. However, the procedural rules that were applied by the Arbitral Tribunal to resolve the arbitration agreement between the parties herein in force were the LCIA Arbitration Rules (2020) (LCIA Rules 2020) contained in Exhibit SAO 9. That is, at the time the Applicant filed its request for arbitration against the 1st Respondent on 10th October 2020 and against the 2nd Respondent on December 22, 2020, the applicable LCIA Rules were LCIA Rules 2020.
It is because of this that the Respondents in their submission claim that Exhibit SAO 8 did not include early determination which has wrongly been labelled in the notice of appeal as expedited arbitration process.
It is evident from the record of proceedings that the parties herein did not expressly specify in Exhibit SAO 4 that in the event of any dispute arising between them, only the 2014 LCIA Rules would apply. To Counsel for the Applicant, this omission is interpreted as an intent to apply the LCIA Rules in force at the time the arbitration is commenced and that had the parties intended to apply the rules in force at the time the agreement was executed and not the rules in force at the time the arbitration commenced, the parties would have clearly stated this in Exhibit SAO 4. In Sundra Rajoo, Law, Practice and Procedure of Arbitration (2nd Edition, Lexis Nexis, 2016) cited to us graciously by Counsel for Applicant, addresses the circumstances when arbitral institutions amend their rules and their procedure. At page 243 of the book, the author notes that although amendment of rules between making an agreement and commencing arbitral proceedings may cause difficulties, without an explicit reference to the old rules only, the court will apply the rules in effect when arbitration began. The author stated at page 243 as follows:
“However, a reference to the arbitration rules of an arbitral institution may cause difficulty if the rules of that institution are varied between the making of the agreement and the commencement of the arbitration. In the absence of any indication in the contract as to whether present or future rules are referred to the courts, will generally assume that the parties intended to incorporate the rules as they stand when the arbitration is commenced”.
Russell on Arbitration (24th Ed), (Sweet & Maxwell 2015) also affirms this view. It is noted at paragraph 5-093 as follows:
“Institutional rules are modified from time to time and the question of which set of rules is applicable to the arbitration may then arise. The institution’s rules may themselves deal with the question of which version is to apply. Further, parties sometimes provide expressly in their contract either for the institution’s rules in force at the time of making the contract to apply to any subsequent dispute or for the rules in force at the time the arbitration is commenced to apply. The former approach should be treated with caution because later versions of the rules are generally introduced to make improvement or reflect changes in relevant laws. It may be that arbitration under the earlier rules is not appropriate or feasible in light of such developments. In the absence of express provisions, the court will interpret a reference to institutional rules as a reference to the rules in force at the time of commencement of the arbitration”.
Another authority has been cited to us in which the English Courts have dealt with similar cases where the parties’ contract refers to arbitration rules that had changed by the time of their dispute. In one such case, China Agribusiness Development Corp. v. Balli Trading [1998] 2 Lloyd’s Rep 76, it was held that the reference to an arbitration institution and its institutional rules in the parties’ agreement was a reference to that arbitration institution or its successor institution and applicable rules. In the China Agribusiness Development Corp v. Balli supra, the parties entered a contract for the sale of steel coils. The contract contained an arbitration agreement referring disputes to the Foreign Trade Arbitration Commission of the China Council for the Promotion of International Trade (FETAC) under FECTA’s provisional rules. A dispute arose by which time FETAC had been renamed the China International Economic and Trade Arbitration Commission (CIETAC).
The parties underwent an arbitration facilitated by CIETAC and under the CIETAC rules in force at the time of arbitration, rather than the FETAC provisional rules stipulated in the contract. When the buyer attempted to enforce the award, the seller resisted on the ground that the arbitral procedure was not in accordance with the parties’ agreement. Specifically, the fee arrangement was different under the two set of rules. The court refused to set aside leave to enforce the award. It held that the parties had agreed to the rules of FETAC or a successor institution that were in effect when the arbitration began. In this case the difference in fee arrangement between the two set of rules did not sufficiently prejudice the losing party to justify non-enforcement.
Counsel for the Applicant submits, and we agree that, where arbitration rules are varied or amended, the courts interpret the reference to institutional rules as those in force at the time of the commencement of the arbitration unless there is specifically an express provision in the contract specifying otherwise. In this case before us, at the time the dispute arose and the applicant filed and referred the matter to the LCIA, the relevant rules in force were LCIA Rules 2020 which rules had revised and replaced the 2014 version of the rules. The LCIA Rules 2014 were not in force as at the date of the dispute, it could not have been the parties’ intention that their dispute will be settled by the defunct 2014 rules. Any such reliance would have required the express agreement of the parties which was completely absent in this agreement.
In any case, the preamble to LCIA Rules 2014 provides as follows:
“Where any agreement, submission or reference howsoever made or evidenced in writing (whether signed or not), provides in whatsoever manner for arbitration under the rules of or by the LCIA, the London Court of International Arbitration, the London Court of Arbitration or the London Court, the parties thereto shall be taken to have agreed in writing that any arbitration between them shall be conducted in accordance with the LCIA Rules or such amended rules as the LCIA may have adopted hereafter to take effect before the commencement of the arbitration and that such LCIA Rules form part of their agreement (collectively, “the Arbitration Agreement”). These LCIA rules compromise this Preamble, the Articles, and the Index, together with the Annex to the LCIA Rules and the Schedule of Costs as both from time to time may be separately amended by the LCIA (The LCIA Rules)”.
It is therefore quite clear that the Respondents by agreeing to the LCIA Rules at the contract formation stage have also consented to any subsequent modifications of those rules being effective and applicable to any arbitration proceedings, save the absence of any specific agreement that the rules in force at the contract commission should remain applicable.
Article 22 on Additional Powers of LCIA Rule 2020 provides that a tribunal has power of early determination of manifestly weak claims, counterclaims, and issues. This power, specifically under Clause 22.1 (VIII) provides that:
“The arbitral tribunal shall have the power, upon the application of any party or (save for sub-paragraph (x) below). Upon its own initiative, but in either case, only after giving the parties a reasonable opportunity to state their views and upon such terms (as to cost and otherwise) as the Arbitral Tribunal may decide: …
(VIII): “to determine that any claim, defence, counterclaim, cross-claim, defence to counterclaim or defence to cross-claim, is manifestly outside the jurisdiction of the Arbitral Tribunal or is inadmissible or manifestly without merits; and where appropriate to issue an order or award to that effect (an Early Determination)”.
Article 14.5 of LCIA Rule 2014 provides as follows:
“The Arbitral Tribunal shall have the widest discretion to discharge these duties, subject to such mandatory law(s) or rules of law as the Arbitral Tribunal may decide to be applicable; and at all times the parties shall do everything necessary in good faith for the fair, efficient and expeditious conduct of the arbitration including the Arbitral Tribunal’s discharge of its general duties”.
Thus, LCIA Rule 2014 under Article 14.5 even though did not mention early determination under Clause 22.1 VII of LCIA Rule 2020, gave Arbitral Tribunals the widest discretion to discharge their general duties including the duty to avoid unnecessary delays and expense and the duty to provide an efficient and expeditious means for the final resolution of disputes.
We therefore agree with counsel for the Applicant that the 2020 revision of LCIA Rules which introduced an explicit provision for early determination does not in our view constitute a material alteration from the agreement outlined in the drilling contract, Exhibit SAO 4.
We now turn to the consideration of the question whether Respondents were given ample time to prepare their defence. From the record of proceedings, the Applicant filed for request for arbitration against the 1st Respondent on 10th October 2020 and its statement of case on 4th December 2020 and proposed that 1st Respondent must file its statement of defence before any procedural hearing could take place, but in any case, before January 8, 2021. The 1st Respondent proposed a deadline of 26th February 2021, but the tribunal set a deadline of January 27, 2021, for 1st Respondent to file its statement of defence. On January 22, 2021, 1st Respondent requested a further 7-day extension which was agreed to by Applicant. 1st Respondent, however, finally served its statement of defence on Applicant on February 3, 2021. That is one week after the expiration of the time limit set by the Arbitral Tribunal. On the other hand, the 2nd Respondent filed its statement of defence to Applicant’s request for arbitration against it on March 19, 2021. On February 5, 2021, the Applicant indicated that it was considering making an application for early determination on the ground that it considered 1st Respondent’s defence as manifestly without merit. Applicant subsequently filed the application for early determination of its claims against 1st and 2nd Respondents on February 22, 2021, and April 8, 2021, respectively. At all material times, it is noted that the Respondents had three and a half months’ notice of Applicant’s application for early determination and extensively engaged in the proceedings. 1st Respondent filed a response to the application for early determination against it but notably the 2nd Respondent elected not to file a response. The 1st Respondent filed its response for early determination on 1st April 2021. The 2nd Respondent informed the Arbitral Tribunal on April 16, 2021, that it will not file any further submission in response.
One could see clearly from the procedural history set out in Exhibit SAO 2, that is the Award, that the Respondents did not make any application to file further written submissions prior to the hearing of the application for early determination. The Respondents at the hearing of the application for early determination abandoned their defences and sought to rely on an entirely new defence based on the doctrine of contractual estoppel. It means that despite the extended time granted by the tribunal for Respondents to file their statements of defence, they sought to amend their statement of defence to rely on different defences at the hearing. Respondents did not serve an amended statement of defence, nor did they seek permission to do so prior to the hearing. They only made an application at the hearing and despite their default in notifying the tribunal about their intention to abandon their defences for a new defence, the tribunal generously and graciously granted them permission to file amended defences.
At the oral hearing of the Applicant’s application for early determination, Respondents actively participated and were represented by a legal counsel, Messrs Koye Akoni and Ben Wolfe. Further from the records, Respondents representatives, Nana Osei Addae and Ms. Akasemi Ollor, were also present at the hearing. It is noted that the Respondents did not object to the application for early determination and did not raise any objections during the hearing. Rather, they responded and defended against the application on its merits.
From the above facts, as discussed in the procedural history of the arbitration, it is obvious that Respondents were afforded more than ample opportunity and time to defend Applicant’s claims against them. They accepted and took the opportunity to defend, and they also declined several of those opportunities. Respondents also actively participated in the arbitration proceedings and even had a representative from Ghana at the oral hearing. Respondents also had legal representation representing their legal interest in the arbitration. We therefore reject the Respondents contention that they were not afforded adequate time to prepare their defence but rather they were granted a fair opportunity to be heard and were heard during the arbitration proceedings
We now come to the last ground of appeal that the court below erred in law by granting Applicant leave to enforce the arbitration award. The Respondents in their submission gave two particulars of error committed by the court below as:
1. That the arbitration award was contrary to Section 59(3) of Act 798 and;
2. The court cannot grant leave for the enforcement of an award in violation of natural justice and fairness.
Section 59(3) on the Enforcement of Foreign Awards provides as follows:
“Despite subsection (1), the court shall not enforce a foreign award if (b) the parties against whom the award is invoked was not given sufficient notice to enable the party to present the party’s case”.
We have already determined that the Respondents were given adequate time and opportunity to present their case at the arbitration which they did and were heard and were also represented by counsel of their choice. Respondents are not disputing their indebtedness to the applicant. They did not do so during the arbitration nor in the High Court nor in the Court of Appeal proceedings.
The Respondents have failed to show that the arbitrators lacked substantive jurisdiction to make the award and the Respondents must demonstrate any legally valid reasons that will prevent the enforcement of the arbitral award.
In conclusion, the appeal against the Court of Appeal decision dated 16th May 2024 which affirmed the ruling of the High Court dated 30th March 2022 hereby fails, and the same is dismissed accordingly.
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS)
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
(SGD.) K. T. ACKAAH-BOAFO
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SEAN K. POKU ESQ. FOR THE RESPONDENTS/APPELLANTS/APPELLANTS.
ACE ANAN ANKOMAH ESQ. FOR THE APPLICANT/REPONDENT/
RESPONDENT WITH NANIA OWUSU-ANKOMAH ESQ. AND KWAME OWUSU NKANSAH ESQ.
