ESSAH v. SOFO [1972] 2 GLR 301
Division: IN THE HIGH COURT, SEKONDI
Date: 2 JUNE 1972
Before: EDUSEI J.
CASE REFERRED TO
Timitimi v. Amabebe (1953) 14 W.A.C.A. 374. [p.302] of [1972] 2 GLR 301
NATURE OF PROCEEDINGS
APPEAL by the defendant against a judgment of a district court confirming an arbitrators’ award in
favour of the plaintiff. The facts are fully set out in the judgment.
COUNSEL
R. S. Blay for the appellant. T. A. Mensah for the respondent.
JUDGMENT OF EDUSEI J.
The plaintiff sued the defendant in the District Court Grade II, Nkroful, to assign reasons for recklessly swearing the oath “Ehanu” against him. On the failure to assign good reasons for so doing the plaintiff claimed from the defendant “the sum of N¢200.00 damages for obstructing and depriving the plaintiff of his livelihood on (his) plaintiff’s farm.”
The case first came before the trial court on 26 February 1970, and it was adjourned to 11 March 1970. It was again adjourned to 25 March 1970. On 25 March 1970, it was further adjourned at the instance of both parties to 22 April 1970, and the order of the court was as follows: “Case is adjourned sine die pending settlement out of court.”
On 8 July 1970, the solicitor for the plaintiff filed a motion under Order 52, r. 14 of Schedule II to the
Courts Ordinance, Cap. 4 (1951 Rev.), praying for “an order that the arbitrators’ report be adopted, and judgment given to the plaintiff.” The defendant filed an affidavit opposing the motion and paragraph 6 of the affidavit reads as follows: “That I never at any time agreed to be bound by any other decision of the chiefs except to effect a settlement between plaintiff and defendant.” It is evident from the record of the proceedings that the parties appeared before arbitrators and the proceedings of the arbitrators which have been incorporated in the record, are entitled as follows:
“Settlement of suit No. 50/70 by arbitrators from Esiama, Kikam and Asanta as requested by his lordship Mr. J. E. Ekuban, District Magistrate Grade II, Axim, on 5 May 1970.”
The reference of a case pending in a district court to arbitrators is governed by Order 52, and rules 1, 2 and 3 of that Order are of some significance in this appeal; they are as follows:
“1. If the parties to a suit are desirous that the matters in difference between them in the suit or any of such matters should be referred to the final decision of one or more arbitrator or arbitrators, they may apply to the Court at any time before final judgment for an order of reference; and the Court may, on such application, make an order of reference accordingly. 2. The arbitrators shall be nominated by the parties in such manner as may be agreed upon between them. If the parties cannot agree with respect to the nomination of the arbitrators, [p.303] of [1972] 2 GLR 301 or if the persons nominated by them shall refuse to accept the arbitration, and the parties are desirous that the nomination shall be made by the Court, the Court shall appoint the arbitrators. 3. The Court shall, by an order under its seal, refer to the arbitrators the matters in difference in the suit which they may be required to determine, and shall fix such time as it may think reasonable for the delivery of the award, and the time so fixed shall be specified in the order.” There is no record of the fact that the parties or the court appointed the arbitrators, and the most serious omission is the provision in Order 52. r. 3, which requires the court in making an order under its seal to refer the matters in difference in the suit to the arbitrators. Nowhere in the record of proceedings did the court refer the matter to arbitrators.
It does appear that the court simply adjourned the case for the parties to try to reach an amicable
settlement. It was therefore wrong, in my view, for the court to give judgment on an award in terms of the motion filed by the plaintiff under Order 52, r. 14 of Schedule II to the Courts Ordinance, Cap. 4. The pre-conditions set out in Order 52, rr. 1, 2 and 3 of Cap. 4 to which I have already referred were not complied with and as such the court was not clothed with jurisdiction to enter judgment under Order 52, r. 14 in favour of the plaintiff in terms of the award.
Learned counsel for the plaintiff, Mr. T. A. Mensah, has urged on me that the failure of the trial court in making an order under its seal to refer the matter in dispute to arbitrators was a mere irregularity which does not affect the substance of the arbitration, and he further urged me to apply by analogy the principle set out in Order 70, rr. 1 and 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). I cannot, with respect to counsel, accede to his request, for before the trial court could have jurisdiction to accept the award of the arbitrators the pre-requisites of Order 52, rr. 1, 2 and 3 of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), should have been complied with. It is their compliance that gives the court jurisdiction to accept the award of the arbitrators. An inferior court like the district court grade II is not presumed to have any jurisdiction but that which is expressly provided by statute. It is worth observing that: “There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency … where there is no jurisdiction the proceedings are void; but where a Court of competent jurisdiction makes an erroneous order, it is appealable.” [p.304] of [1972] 2 GLR 301 See Timitimi v. Amabebe (1953) 14 W.A.C.A. 374, at p. 377. In this case the trial court had no jurisdiction, because it had not referred the matter to arbitrators under its seal, to give judgment in terms of the purported arbitrators’ award. The award is therefore void.
This is not a case where the plaintiff instituted an action to enforce an arbitration award given in
accordance with customary law. Here a cause of action (not one to enforce an arbitration award) was
pending in the court and there was no reference to arbitrators by the trial court under its seal which was a mandatory requirement and a pre-requisite to have the award filed in court as a judgment. The court’s jurisdiction to give judgment on the award arises after the court itself has referred the matter in dispute under its seal to an arbitration but this was not done in this case.
In the result I allow the appeal, set aside the judgment appealed from and order a trial de novo before the District Court Grade II, Nkroful, differently constituted. I assess the costs of this appeal at ¢30.00, and the costs of the abortive trial to abide the result of the retrial.
Court below to carry out.
DECISION
Appeal allowed.
Trial de novo ordered.
