APPIAH v. OKYIR AND ANOTHER

JUDGMENT OF SOWAH J.

In this action counsel for the defendants submitted at the close of the case for the parties that the procedure adopted by the plaintiff in issuing out a writ of summons for the enforcement of the arbitration award is bad in law and that the only method open to the plaintiff was to have taken out an originating summons, and that his failure to do so vitiates the whole of the proceedings, consequently the action should either be dismissed or struck out as irregular or improper.

Counsel refers to section 29 of the Arbitration Act, 19611, which states as follows:

"An award on an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, judgment may be entered in terms of the award."

Counsel further refers to Order 54A, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954.

I propose firstly to deal with the submission of counsel on this point since if this contention is sustained there will be no need to go into the merits of this case and I will be obliged to dismiss or strike out the action forthwith. It is necessary to go shortly into the history of the law with regard to enforcement of an award. Under the common law the only procedure open to an applicant for the enforcement of an award by an arbitrator is by an action in our courts except where the parties have made a different agreement. By section 13 of the Arbitration Ordinance2 (now repealed), a mere summary procedure was given to an applicant for the enforcement of an award. This procedure or remedy was given in addition to the common law procedure and did not take away the common law procedure. But this procedure can only avail an applicant if the submission is in [p.203] writing, for the applicant in taking out an originating summons must produce the award or a copy verified by affidavit and must further exhibit the submissions. It therefore follows that where the submission or agreement is oral the only available procedure is by an action.

The Arbitration Act, 1961, has repealed the Arbitration Ordinance. The relevant provision as far as this case is concerned is section 29 of the Arbitration Act, referred to above. In place of the words "An award on a submission," we have now the following, "An award on an arbitration agreement." What is an arbitration agreement? The answer is in section 5 (1) of the Act: "An arbitration agreement is a contract in writing to refe