GOOD SHEPHEREDsic(1) MISSION vs. SYKES AND OTHERS [1997-98] 1 GLR 978

CASES REFERRED TO

(1) Kusi v Shell Ghana Ltd [1973] 1 GLR 173.

(2) Khoury v Khoury [1962] 1 GLR 98, SC.

(3) Russel v Russel (1880) 14 ChD 471.

(4) R v Williams [1953] 1 QB 660; [1953] 2 WLR 937; [1953] 1 All ER 1068, CCA.

NATURE OF PROCEEDINGS

APPEAL by the appellant-tenant from the decision of the trial circuit court dismissing his application for stay of proceedings and reference of the dispute to arbitration under the arbitration clause of the tenancy agreement with the respondent-landlord in an action for inter alia, recovery of possession by the landlord on the ground that the tenancy agreement had been induced by fraudulent representation by the appellant. The facts are sufficiently stated in the judgments of Wood and Brobbey JJA.

[p.982] of [1997-98] 1 GLR 978

COUNSEL

Clottey Sefa for the appellant-tenant.

Odoi Sykes for the respondent-landlord.

JUDGMENT OF WOOD JA.

On 10 November 1997 we dismissed the appeal. These are my reasons for doing so:

The respondents, who are the owners of a two bed-roomed house at South East Christiansborg, leased the premises to the appellants, the Good Shepherd Mission in or about September 1989. An essential term of the lease agreement was that the appellants were to carry out certain developments on the premises within a year of the agreement and to remain in occupation of the said premises for a period of 21 years. However, barely six months after the said agreement had been entered into, the respondents, contending that a fraud had been perpetrated on them by the appellants, acting through their representative, Brother Appiah-Kubi, abrogated the agreement. According to the respondents, the parties, however, agreed that in order to liquidate an amount of ¢300,000 which the appellants had paid as rent advance, they should remain in occupation for a further period of eight years. When at the expiry of this eight-year period, the appellants refused to yield vacant possession of the premises, the respondents instituted proceedings, principally to recover possession. In addition they also claimed damages for deceit and mesne profit. After both summons for directions and additional summons have been filed by the parties, the appellants moved the court for an order for (1) stay of proceedings and (2) for reference of the said matter to arbitration on the grounds that by the lease agreement, all disputes arising from the said tenancy agreement are resolvable by arbitration. The court declined the prayer.

Being dissatisfied with the ruling, the appellants promptly appealed to this court on three grounds. At the hearing, however, the appeal was argued on only one ground. The other two were abandoned. The burden of the appellants’ argument was that once the parties have agreed on the forum for the resolution of disputes arising from the contract, the court was in duty bound to refer this particular action to arbitration. Counsel’s further contention is that arbitrators are not, in any case, excluded from determining questions of fraud that may be raised by one of the parties. Furthermore, he urged that as what the respondents have by their plead

[p.983] of [1997-98] 1 GLR 978 ngs done is merely to allege fraud, without any disclosure on the pleadings that the appellants have been convicted by a court of competent jurisdiction for fraud, theirs was a mere allegation and the court ought not to have assumed jurisdiction. It was argued that on the contrary, the court ought to have declined jurisdiction and referred the matter to the forum the parties themselves by a prior agreement had chosen, namely arbitration.

The respondents’ counsel’s answer to these arguments were equally straightforward. Counsel contends that the ruling ought not to be disturbed for two reasons. First, that their pleadings contain sufficient facts to support their allegation of fraud. They maintained that having particularised the fraud, they have done all that the law of section 27(b) of the Arbitration Act, 1961 (Act 38) requires of them and which is to state on the face of their pleadings the case of fraud clearly and with particularity. Counsel argued that it would be stretching the law too far if we demanded that the pleadings must disclose that the appellants have in fact been convicted by a court of competent jurisdiction. Secondly, it was urged that the objection to the court’s jurisdiction ought to have been taken timeously at the date of the filing of the defence. The argument therefore is that the application for stay of proceedings was filed too late when summons for directions have already been filed. Under such circumstances, counsel contended, the appellants ought to be deemed to have waived their rights existing under the arbitration clause.

I propose to deal with this last point, ie, whether the appellants are deemed to have waived their rights under the arbitration clause first, as it seems to me to be the easier matter to dispose of. In response to the respondents’ counsel’s submission that the appellants have not acted timeously, counsel relying on Kusi v Shell Ghana Ltd [1973] 1 GLR 173 contended that the present position of the law as contained in section 8 of Act 38 is that an application for stay of proceedings may be brought at any time after the writ has been issued but before actual hearing. The Kusi case (supra) dealt with section 5 of the Arbitration Ordinance, Cap 16 (1951 Rev), the previous law on arbitration. But counsel has contended that the wording of section 8 of Act 38 is exactly the same as the section 5 of Cap 16 and therefore the Kusi case (supra) could, if anything at all, be of persuasive authority in con

[p.984] of [1997-98] 1 GLR 978 truing section 8 of Act 38 in our attempt to decide the question of the stage at which an application for stay of proceedings may be brought, where one party wishes to invoke an arbitration clause in an existing contract.

I have no doubt in my mind that the appellants’ counsel’s contention would have found favour with us if his assertion that the wording of the two pieces of legislation are the same were correct. Unfortunately, such is not the case. The two legislations—the repealed and the present—are materially different. In section 5 of Cap 16, the law clearly stipulated the time within which such applications, ie applications for stay of proceedings were to be brought. An applicant was obliged to apply for a stay of proceedings “after the writ had been filed and before the hearing.” No such time limit was set by section 8 of Act 38 and no court has power to read any such words into this present legislation. Indeed the fact that these words were excluded from Act 38 shows that the legislature did intend to leave those words out and not set any time limit at all. I will reproduce the two relevant laws. Section 5 of Cap 16 states as follows:

“5. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time, after service of the writ of summons before the date fixed for hearing apply to that Court to stay the proceedings; and that Court or Judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.”

Section 8 of Act 38 on the other hand provides:

“8. If any party to an arbitration agreement, or any person claiming through him, commences any legal proceed [p.985] of [1997-98] 1 GLR 978 ngs in any court against any other party to the agreement, or any person claiming through him, in respect of any matter agreed to be referred, any party to those legal proceedings may apply to that court to stay the proceedings, and that court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the agreement, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.”

It is therefore clear that under the present law, a party who seeks to apply for an order of a stay of proceedings under section 8 of Act 38 has no specific time limit within which to bring the said application. But then the more pertinent question raised by this appeal is this: Does it mean the application then can be brought at any time at all, even at such late stages as where the applicant has participated fully in the hearing and judgment is about to be delivered? I do not think so. I shudder to think that the mere fact that no express time limit has been fixed by the law gives an applicant the licence to submit applications for stay of proceedings tardily. In other words, such applications must be timeous. This in fact is the respondents’ counsel’s contention. Arbitration or indeed agreement to arbitrate is a purely consensual arrangement. It does follow that the parties to an agreement to refer differences to arbitration, especially when such agreements are contained in existing contracts, are also equally free to agree to its suspension or even termination. And it is precisely because they have the right to waive their rights existing under the arbitration agreement that it is illogical or inconceivable for a party wishing to enforce an arbitration agreement to be tardy, otherwise an undue delay in raising objection to the court’s jurisdiction, coupled with other positive acts, as for example participating actively in an actual hearing, etc, may be construed as having taken such steps as would amount to a waiver of his right to enforce the arbitration agreement. What of course amounts to an undue delay resulting in a waiver of an applicant’s right is a question of fact determinable on the facts of the particular case. In other words, whether or not an applicant in an application for stay of proceedings has acted

[p.986] of [1997-98] 1 GLR 978 timeously is a question of fact to be determined on the particular facts of each case. What I propose to do therefore is to determine whether in this particular case the applicant is guilty of any delay.

The claim that the appellants failed to act timeously is not borne out by the record. Indeed, they cannot be accused of any undue delay in raising the objection to the court’s jurisdiction. On the contrary, the record shows that at the earliest opportunity, when they filed their defence, they raised this issue. True, the defence does not explicitly state that the court’s jurisdiction was being challenged, neither is there any invitation to stay proceedings. Certainly, I do not think it would have been proper to extend any such invitation to the court in the statement of defence. But paragraph (30) of the defence in substance clearly demonstrates that they were objecting to the court’s jurisdiction and were contending that the proper forum for resolving their differences was arbitration. By this they were serving notice that they were not waiving any rights at all, but rather, if anything at all were insisting on their rights. The paragraph reads: “The defendants also say that the plaintiffs’ claim is premature having regard to the mandatory requirement for arbitration provided in clause 16 of the agreement.” A 23-paragraphed reply followed the defence. The respondents denied this fact by paragraph (30) of the reply, prompting the appellants to include in the additional issues they filed on 20 January 1997, paragraph (13) which reads: “(13) whether or not the plaintiffs action is premature.” Two days later, ie on 22 January 1997, they then filed the motion which culminated in this present appeal. In my opinion then, the appellants had at all material times, as far as the issue of the court’s jurisdiction or the reference of the matter of arbitration is concerned, acted diligently, timeously and with promptitude. In my view, there has been no delay, let alone an undue delay on the appellants’ part such as would amount to a waiver of their rights under the arbitration clause. Neither would the filing of a statement of defence, coupled with the filing of additional issues amount to having taken a fresh step in the action such as would lead to a waiver of their rights. Similarly, I do not think the mere fact that they did not file the motion for stay of proceedings along with the defence renders their application tardy.

[p.987] of [1997-98] 1 GLR 978

The next important question raised by this appeal is whether notwithstanding the existence of an arbitration clause, a court may on what appellants’ counsel described as a mere allegation that one party is guilty of fraud refuse to enforce it, and consequently decline to stay the action. The answer to this question may be found in section 27(2) and (3) of Act 38. It provides:

“(2) Where an agreement between any parties provides that differences which may arise in the future between them shall be referred to arbitration, and a difference which so arises involves the question whether any such party has been guilty of fraud, the Court shall, so far as may be necessary to enable that question to be determined by the Court, have power to order that the agreement shall cease to have effect and power to give leave to revoke the authority of any arbitrator or umpire appointed by or by virtue of the agreement.

(3) In any case where by virtue of this section the Court has power to order that an arbitration agreement shall cease to have effect or to give leave to revoke the authority of an arbitrator or umpire, the Court may refuse to stay any action brought in breach of the agreement.”

(The emphasis is mine.)

I think that it is plain from section 27(2) of Act 38 that where the dispute which has arisen between the parties (to an arbitration agreement) involves the question whether anyone party has been guilty of fraud, the court is under a legal obligation, (hence the use of the mandatory word “shall”) for the purposes of enabling it determine that question, order the agreement to cease to have effect. In other words, the court assumes jurisdiction and becomes the arbiter of this important question of fraud. I think what this means is that once the court finds that it is expedient or necessary that the question of fraud, be tried, it comes under a legal duty to assume jurisdiction. It does seem to me then that in applications for stay of proceedings the court would be called upon to exercise a discretion. It would certainly be impossible to set out all the various instances where the court may find it necessary for a determination of the question of fraud

[p.988] of [1997-98] 1 GLR 978 to revoke the arbitration agreement. But I think the learned trial judge was right, in the circumstances of this case, when he declined to give effect to this arbitration agreement. Why do I say so? The question of fraud is very germane to this dispute which has arisen. The main complaint of the respondents as clearly appears on the face of their pleading is that the appellants have practised a fraud on them, in that they made certain fraudulent misrepresentations they believed in and which they acted upon to their detriment. In other words they contend that it was these false misrepresentation which induced them to part with the said property. Put differently, it was their case that but for these representations, they would never have leased the property to the appellants. I think a reproduction of the relevant portions of their statement of claim would make the point I have made very clear:

“(2) In mid 1989 the plaintiffs decided to lease their premises to a good company or registered organisation to complete, its development and put an end to the trespass upon the property.

(3) In or about September 1989, the ‘Good Shepherd Mission’, the defendants herein were fraudulently misrepresented to the plaintiffs by one ‘Brother’ Kofi Appiah-Kubi as a well-off religious organisation registered in Ghana with external connections which engage in religious activities in Accra.

(4) The said Appiah-Kubi also fraudulently misrepresented to the plaintiffs that the defendants wanted to rent their premises and complete its development within one year for use as a dwelling house or offices or both.

(5) The plaintiffs were indeed deceived by the aforesaid fraudulent misrepresentations to enter into a leasehold agreement with the Good Shephered Mission purportedly acting through Kofi Appiah-Kubi as its ‘chairman’ . . .

(9) About six months after the said agreement the plaintiffs came to realize that a fraud had been practised on them by Kofi Appiah-Kubi.

(10) Particulars of fraud

[p.989] of [1997-98] 1 GLR 978

(a) Because the plaintiffs were not prepared to lease the premises to a private individual Kofi Appiah-Kubi deceived them to lease it to the ‘Good Shephered Mission’ as a reputable registered religious organisation.

(b) Good Shephered is not a registered religious organisation with offices in Accra or anywhere else in Ghana and it is not engaged in any religious activities in Accra. It is reported to be a phoneysic(2) organisation used to solicit funds from foreign religious organisations for the enjoyment of self proclaimed ‘Brothers’ here in Ghana.”

It is pertinent to note that the appellants concede that for the respondents, it was clearly very important who they leased their property to; they admit the fact that the respondents were only intent on leasing the property to a “good company or registered organisation”, not just any organisation or company but respectable ones. I say so because by paragraph (4) of their statement of defence they unequivocally admitted paragraph (2) of the respondents’ claim. This is how the paragraph reads: “(4) Paragraph 2 of the statement of claim is admitted.” I have no doubt in my mind that the only way they could have known that the respondents were willing to deal with only reputable organizations is because they told him so and insisted on it being an essential term of the contract.

The appellants denied the charges and particulars of fraud vehemently. Under such circumstances, was it not a proper exercise of the court’s discretion when it decided that the arbitration agreement shall cease to have effect to enable the court determine these serious and pertinent issues of fraud. It seems to me from the wording of section 8 of Act 38 that generally speaking the determination of an issue of fraud, especially when it is central to the dispute, is outside the domain of the arbitrator.

It was submitted by Mr Sefa-Clottey, counsel for the appellants that the respondents did not sufficiently state the case of fraud as they were required to do under the law, ie section 27(2) of Act 38. His contention was that they were required to plead with particularity that the appellants had indeed been convicted

[p.990] of [1997-98] 1 GLR 978 for fraud, and that merely pleading the facts and even particularising the fraudulent misrepresentations was wholly inadequate and did not meet the requirement of the law.

I am afraid I do not agree with these submissions. I think counsel was carried away by the use of the word “guilty” as it appears in the legislation. But, I do not think the proper construction to be placed on the word “guilty” is “conviction.” It is a basic rule, indeed, the first basic rule of construction of statutes that words must be given their literal, ordinary or dictionary meaning in the context of the statute. The law, ie section 27(2) of Act 38 makes reference to being “guilty of fraud” in relation to agreements entered into by parties and in which additionally it is also provided that future differences which may arise (obviously in relation to the agreement) shall be referred to arbitration. It seems to me then that in the context in which “guilty of fraud” is being used, we are more concerned with the term as is understood by civil courts of justice—what some describe as civil fraud.

I am not to be understood as saying that section 27(2) of Act 38 does not also have in its contemplation criminal fraud. It is possible and perfectly legitimate to allege a criminal fraud in a civil action. And, our Evidence Decree, 1975 (NRCD 323) stipulates the degree of proof on such occasions. The relevant section is section 13(1) of NRCD 323 which states: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue require proof beyond reasonable doubt.” (The emphasis is mine.) And therefore it is legitimate to allege the commission of “criminal fraud” in a civil action. But, the point I would want to emphasise is that it would be wrong to restrict the “fraud” referred to in section 27(2) of Act 38 to only criminal fraud. Indeed, not all civil fraud would qualify as criminal fraud and so lead to a conviction. I therefore think it erroneous to urge that a party seeking to have a court suspend an arbitration agreement can only succeed where he averred a conviction of his opponent.

D L Mcdonnel and J G Monroe, two distinguished English text writers in their “Treaties on the Law of Fraud” which is found in their invaluable book Kerr on Fraud and Mistake (7th ed), p 1 have spelt out what amounts to or constitutes fraud in the eyes of the civil court. They write:

[p.991] of [1997-98] 1 GLR 978

“Fraud in the contemplation of a civil court of justice may be said to include properly all acts, omissions, and concealment which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconcern advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud. Fraud in all cases implies a wilful act on the part of any one whereby another is sought to be deprived, by illegal or inquitable means of what is entitled to.”

In my view then, “guilty of fraud” does not mean “convicted of fraud.” Although I am a proponent of the “purposive approach” to the interpretation of statutes and have in a few cases used that to construe legislation, I do think we will be stretching the meaning of “guilty” too far if we insisted on interpreting it to mean “convicted.” On the contrary, applying the basic or primary rule of interpreting statutes we will find no absurdity. The meaning of the section is plain and unambiguous. The “guilty” referred to in the section does not necessarily mean conviction. I would interpret it to mean where anyone is “accused” of or blamed or held for fraud or where an allegation of fraud is made against another. It does follow that when the respondents fully pleaded the fraud in the various paragraphs I have referred to and set out the particulars of fraud, they had done all that was required of them to raise on their pleadings a prima facie case of fraud. Put in other words, they have by their pleadings raised a serious case of fraud. Consequently, the learned trial judge was right when he concluded that on the particulars of facts of the case, the arbitration agreement ceased to have effect to enable the court determine the issue of fraud.

The application for an order for stay or proceedings was undoubtedly brought under section 8 of Act 38. Under that section it was not merely enough for the appellant to raise the existence of the agreement and expect a reference of the matter to arbitration. The law requires that to succeed in obtaining the relevant orders, the applicant must also demonstrate that: (1) at the time when the proceedings were commenced he was; and (2) even up to the date of the application he is still ready and wil

[p.992] of [1997-98] 1 GLR 978 ng to do all things necessary to the proper conduct of the arbitration. It is only then that if the court is satisfied that there is no sufficient reason why the matter ought not to go to arbitration, exercise its discretion in the applicant’s favour. I have already quoted section 8 of Act 38 in extensor.

I have examined the affidavit in support of the motion for stay of proceedings. I find nothing showing the appellants’ readiness and willfulness to co-operate towards the proper conduct of the arbitration. On this ground alone, the learned judge was right in refusing the application. But even more importantly, the court thought the issue of fraud was so critical it does justify a refusal. In other words, it was a sufficiently good enough reason why the court ought to assume jurisdiction. In the circumstances, I think the order of refusal was right and ought not to be interfered with.

JUDGMENT OF BROBBEY JA.

The respondents owned a plot of land at Christiansborg, Accra. It had an uncompleted building on it. The land and the building will hereinafter be referred to as the disputed property. According to their pleadings, they decided to lease it to a company or a registered organisation. The appellants, represented by one Reverend “Brother” Kofi Appiah-Kubi entered into a written agreement with the appellants for the lease of the property.

Not long after the lease agreement has been executed, a dispute arose. In sum, the dispute was that Appiah-Kubi had perpetrated fraud on the respondents by representing that the Good Shephered Mission was a registered religious body when in truth and in fact it had not been registered at all. The respondents therefore sued the appellants in the circuit court for recovery of possession, damages for deceit, mesne profits and “any, other reliefs disclosed by the pleadings.”

While the suit was pending, the appellants filed a motion at the trial court to stay the proceedings pending in that court. Their main reason for the motion was that the written agreement contained an ouster clause which provided that any dispute between the parties concerning the leasehold should first be referred to an arbitrator before it could be pursued in a court. The appellants therefore contended that until the parties had exhausted their remedies at arbitration, “the action could not proceed in the circuit court. The respondents however contended that since they had

[p.993] of [1997-98] 1 GLR 978 alleged fraud on the part of the appellants, the ouster clause could not be invoked to stay proceedings in the trial court. After arguments before the trial circuit court, the trial judge upheld the counterclaim of the respondents. The appellants then appealed against that ruling.

In this court, the appellants argued only one ground which was that the trial judge erred in refusing the stay on account of fraud because the law required that that kind of fraud should be established or proved as in a criminal case but that was not done. They contended that a mere allegation of fraud was not enough. In their view the appellants should have been proved guilty of fraud by a court of competent jurisdiction before fraud could be used to avoid the effect of an arbitration. For his counterclaim, counsel relied on the Arbitration Act, 1961 (Act 38) s 27(2) and Khoury v Khoury [1962] 1 GLR 98, SC. Act 38, s 27(2) provides that:

“(2) Where an agreement between any parties provides that differences which may arise in the future between them shall be referred to arbitration, and a difference which so arises involves the question whether any such party has been guilty of fraud, the Court shall, so far as may be necessary to enable that question to be determined by the Court, have power to order that the agreement shall cease to have effect and power to give leave to revoke the authority of any arbitrator or umpire appointed by or by virtue of the agreement.”

The argument of counsel for the appellants was that the use of the word “guilty” in the subsection implied that the person accused of fraud should be proved to have been actually convicted by a court of competent jurisdiction before section 27(2) of Act 38 could be applied. That, with respect, could not be correct. To uphold that interpretation would amount to imputing into section 27(2) of Act 38 the word “proven” or “established.” That would change the entire meaning of section 27(2) of Act 38.

It is obvious from the most cursory reading of section 27(2) of Act 38 that it does not contain the condition imposed by counsel for the appellant. At no part of Act 38, s 27(2) is it stated that fraud should be proved. If the legislature intended that fraud should be established or proved, section 27(2) of Act 38 would

[p.994] of [1997-98] 1 GLR 978 have stated so in no uncertain terms. On a plain reading of Act 38, s 27(2) it does not specify the standard of proof when fraud is alleged to oust the terms of arbitration. It is significant to point out that counsel for the appellants had no authority for his proposition. Khoury v Khoury (supra) which he relied upon is distinguishable from the instant case on two grounds: first, the claim in that case was very comprehensive and all-embracing. It covered all disputes whatsoever arising. Secondly, it did not deal with fraud at all, which is the fundamental issue in this case.

The position at common law is that the person alleging fraud to oust the jurisdiction of arbitration should be able to establish a prima facie case of fraud: see Russel on Arbitration (7th ed), at p 84. In that book Russel v Russel (1880) 14 ChD 471 was cited to support that proposition. In that case an application to stay court proceedings to enable parties resort to arbitration failed because the applicant did not establish a prima facie case of fraud. By analogy it can be said that the same standard may be applied in considering the standard required in section 27(2) of Act 38.

This reasoning is buttressed further by the fact that the wording in Act 38, section 27(2) is almost the same as the wording of the English equivalent of the Arbitration Act, 1950 (14 Geo 6, c.27), s 24(2) which reads:

“24. (2) Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred to arbitration, and a dispute which so arises involves the question whether any such party has been guilty of fraud, the High Court shall, so far as may be necessary to enable that question to be determined by the High Court, have power to order that the agreement shall cease to have effect and power to give leave to revoke the authority of any arbitrator or umpire appointed by or by virtue of the agreement.”

In the editorial note to this section 24(6) of the Act of 1950 in Halsbury’s Statutes (4th ed), Vol 2, p 600 it is stated that:

“No exhaustive definition of the term ‘fraud’ can be given and the court has never ventured to lay down any general proposition of what constitutes fraud. Generally it connotes

[p.995] of [1997-98] 1 GLR 978 an element of deliberate deception as opposed to honest mistake.”

The case of R v Williams [1953] 1 QB 600, CCA was then cited to support that proposition. That case actually decided that the acts complained of as constituting fraud should be “deliberate and intentional.”

It follows from the foregoing that in the instant case, for the purpose of determining whether or not court action should be allowed to proceed because of the allegation of fraud, that fraud does not have to be proved beyond reasonable doubt. All that is required at this stage is to establish a prima facie case of fraud. The argument of counsel for the appellant may apply where evidence has been taken already and the court has to decide on whether or not fraud has been established. In that event, fraud, being a criminal allegation, may be proved beyond reasonable doubt though it is alleged in a civil case. This is the law as stated in the Evidence Decree, 1975, (NDCD 323), s 13(1).

The question to be resolved in this appeal is whether or not a prima facie case of fraud was made out by the respondents. At the trial court, the respondents insisted as per their pleadings and affidavits and arguments that they intended to lease the property to a registered company or organisation. They averred that the Good Shephered Mission was not a registered organisation. They contended further that Appiah-Kubi deceived them into believing that the appellants were a registered organisation. As at the time of hearing this appeal, all that the appellants had done was to oppose the averment by orally alleging that they were a registered organisation. If they were, what prevented them or their solicitors from exhibiting their registration certificate or disclosing particulars of the registration so as to enable the respondents to verify from the appropriate authority whether or not they had been officially registered? No reason was disclosed on the face of the record by the appellants.

The most crucial point is that the respondents were alleging that the appellant, ie the Good Shephered Mission, was not a registered organisation. The appellants were asserting that they were a registered organisation. The onus was obviously placed on the appellants to have disclosed particulars of their alleged

[p.996] of [1997-98] 1 GLR 978 registration. This is clearly borne out by section 14 of NRCD 323 which provides that:

“14. Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.”

The marginal note to this section states that the section covers “Allocation of burden of persuasion.” By this section it was apparent that it was the appellants who had the duty to have adduced evidence essential to sustain their assertion that they were a registered organisation. This view is further supported by section 11(1) of NRCD 323 which also provides that: “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” The marginal note on this subsection also states that the section covers the definition of the “Burden of producing evidence.”

Quite obviously, if the appellants in the instant case failed to adduce evidence, the ruling that they were not a registered organisation would be given against them. That is the more reason why they were duty bound to have described particulars on their registration. The fact that no single information about their registration can be seen on the entire appeal record obviously leads to the inescapable conclusion that on the face of the pleadings, affidavits, arguments before the trial court and, indeed, on the face of the appeal record before this court, there is nothing to show that the appellants are a registered organisation. If that is the case then the statement in the lease agreement that: “The Good Shephered Mission, a religious organisation registered in Ghana” is false. If that statement is false, and yet Appiah-Kubi succeeded in getting the respondents to grant the leasehold on his representation that the Good Shephered Mission were a registered organisation, then he deliberately and intentionally deceived them into entering into that agreement on a false representation. On the face of the appeal record before this court, a clear prima facie case of fraud was made out against the appellants. The trial circuit court was therefore justified in

[p.997] of [1997-98] 1 GLR 978 refusing the application to stay the proceedings to enable the parties to go to arbitration.

I entirely agree with the opinion expressed by the president of this panel concerning the timing issue raised by the respondents’ counsel. These were my reasons for dismissing the appeal at the close of arguments on 10 November 1997.

JUDGMENT OF BADDOO JA.

I agree.

COUNSEL

Appeal dismissed.

Endnotes

1 (Popup – Footnote) same in original.

2 (Popup – Footnote) same in original.