KUSI vs. SHELL COMPANY OF GHANA LTD. [1973] 1 GLR 173

CASE REFERRED TO

Wuta-Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102.

[p.174] of [1973] 1 GLR 173

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court in which the trial judge refused to order stay of proceedings in accordance with an arbitration clause. The facts are sufficiently set out in the judgment of Amissah J.A.

COUNSEL

B. Kwaw-Swanzy (with him Miss Solomon) for the appellant.

Attafua (for Lynes, Quashie-ldun & Co.) for the respondents.

JUDGMENT OF AMISSAH J.A.

Amissah J.A. delivered the judgment of the court. This is an appeal against the judgment of Attoh J. awarding the sum of £G3,114 9s. 10d. to the respondents on a claim for petroleum products sold to the appellant. The case began by a writ in April 1962. The High Court disposed of it in October 1965. Now, ten years later the appellant asks us to order a retrial because the case was not properly heard on its merits. What are his grounds for this request?

The first submission made on his behalf was that the sale was under an agreement, clause (8) of which made disputes between the parties subject to an arbitration clause. According to this agreement once there was such a clause the court’s jurisdiction was at least postponed until the arbitration had been held. In this case there was no arbitration. The trial court had been made aware of the arbitration clause but had brushed it summarily aside on the ground that the law required that an application be made by the party who wanted the arbitration but there was no such application before it. Counsel pointed out to us a number of parts of the record where in affidavits made by the appellant, the arbitration clause had been raised. The court therefore, according to her, could not validly say that there was no application before it, especially as on the date of hearing counsel for the appellant had said by way of a preliminary point that the matter should, under the agreement, be settled by arbitration.

We are prepared to accept that where a law requires that a party should apply to the court, without stating the form it should take, the application need not be in writing. An oral application will suffice where no prejudice is suffered by the opponent from the nature of the application. Upon hearing the parties on this point the learned trial judge relied on section 5 of the Arbitration Ordinance, Cap. 16 (1951 Rev.). Indeed reference to that section fixes the vintage of this case. That provision provides as follows: [His lordship here read the provisions as set out in the headnote and continued:] The section gives the court before which the action is taken a discretion to decide whether the arbitration should come on at all. The learned trial judge took the view that the section required that after the filing of the writ and before the hearing the party relying on the arbitration clause should apply for a stay of proceedings and that the appellant in this case had not. The previous history of this case ought to be remembered. After the respondents had filed their writ with the statement of claim in May 1962 they asked for judgment under Order 14 of the Supreme [High]

[p.175] of [1973] 1 GLR 173

Court (Civil Procedure) Rules, 1954 (L.N. 140A). Judgment was given them in September 1963 on the erroneous belief that the appellant had entered no appearance. He had in fact entered appearance in December 1962 but taken no steps to file his defence. The appellant got the judgment set aside. But he did nothing more about his defence. After that the appellant adopted all sorts of stratagems to delay the proceedings. We are sure that this attitude of the appellant influenced the judge, as it would have influenced us, in refusing the request for arbitration. The learned judge ruled that there was no application for a stay of proceedings before him. The fact of the matter is that there was no formal application before the hearing as requested by the law. It seems to be suggested that there was one by implication before him. Having looked at the record we do not feel inclined to disturb the judge’s ruling.

The other point made was that the claim was for £G2,127 16s. 9d. but that the judge gave judgment for £3,114 10s. which he had no power to do. We agree that a court has power to award an amount higher than that claimed. But here there was first an attempt to amend the writ so as to show that the amount was £G4,114 10s. instead of the original amount claimed. That amendment was infelicitously phrased. And counsel for the respondents has here conceded his inability to understand it. He however asks us to amend the writ, properly this time, so as to do justice between the parties. That this court has the power to amend writs even at this stage cannot be doubted.

But that power is sparingly exercised, as hardship would otherwise be occasioned thereby. The power was exercised in Wuta-Ofei v. Dove, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102. We think that in this case no such hardship would be caused. The appellant was made aware that the amount involved was £G4,114 10s. He paid £G1,000 out of that. In one of the judgments given against him in the trial court, which he managed to have set aside, this amount was clearly stated. We would in the circumstances, therefore, allow the amendment.

In all the proceedings it appears that the appellant never came to court, being quite content to send his counsel. We are not prepared to give him the opportunity of leading the court and the respondents on the endless chase once more. We think the case was proved against him and there the matter must rest.

The appeal should be dismissed.

DECISION

Appeal dismissed.

S.O.