STATE INSURANCE CORPORATION, TAKORADI v. BADU [1965] GLR 105
2 March 1965 · DJABANOR J · ≈ 3 min read
[1965] SLR (HC) 39Other citation styles and permanent link
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DIVISION: HIGH COURT, SEKONDI
DATE: 2 MARCH 1965
BEFORE: DJABANOR J.
NATURE OF PROCEEDINGS
APPLICATION for stay of proceedings on the ground that a contract of insurance included an arbitration clause in terms of the Arbitration Act.
COUNSEL
C. Cann for the defendant-applicant.
J. Ofori Boateng for the plaintiff-respondent.
JUDGMENT OF DJABANOR J.
This is an application by the defendants herein praying that this action be stayed on the ground that the contract of insurance includes an arbitration clause in terms of the Arbitration Act, 1961.1 Although not so stated in their affidavit it has been submitted on
[p.106] of [1965] GLR 105 their behalf that they are willing and prepared to go to arbitration upon their differences. Neither party has said that no differences have arisen.
The application was resisted on two main grounds, first, that the affidavit did not disclose that the applicants were willing to proceed with the arbitration, and secondly, that the applicants by filing a statement of defence, have taken a step in the action and are thereby precluded from relying on the arbitration clause, and therefore a stay should not be granted. This submission is founded on sound principles. But it seems to me that the plaintiff-respondent must also state that he has been willing to invoke the arbitration clause and that the defendants have not been willing. He has not stated that he has done anything about the arbitration, or taken any steps to bring it about. The arbitration clause in the contract of insurance states that either party may give notice of his intention to go into arbitration. Neither party appears to have given any such notice. In that event I do not think that the plaintiff can say that the arbitration clause has, as it were, been waived; and the courts have always refused to preclude parties to an agreement from pursuing their rights thereunder. Since the defendants too have submitted that they are willing to submit to the arbitration according to the terms of the contract I do not think I can sustain the plaintiff ‘s objection on this first ground.
The more important point raised is that the defendants by filing a statement of defence have taken a step in the action and therefore cannot rely on the arbitration clause. The plaintiff relied upon the case of
Pilchers Ltd. v, Plaza (Queensbury Ltd2) for this proposition. In that case the defendant filed an affidavit to resist an application for summary judgment under R.S.C., Order 14. When leave to sign judgment was granted he then appealed and only then raised the matter of stay of the action pending the arbitration. It was held that having taken the step of filing the affidavit in opposition he could not do so. In that action
Goddard L.J. (as he then was) expressed the opinion3 that no step is taken in an action by a defendant opposing a summons for judgment under Order 14 if he raised the matter of arbitration in the affidavit opposing the summons and at the same time took out a summons for the stay. This is what was done by the defendants in this instant case. They filed a statement of defence in which they averred that the action should be stayed because of the arbitration clause, and at the same time brought this application for stay of the action. In my view they acted properly in terms of the above cited authority.
[p.107] of [1965] GLR 105
In the result therefore, I will grant the application and stay this action pending the submission to arbitration.
No order as to costs.
DECISION
Application granted.
E.A.-A.
