February 28, 2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana judgment concerns enforcement in Ghana of a foreign arbitral award issued by the Federation of Cocoa Commerce (FCC) in London, arising from twelve cocoa trade contracts that expressly made the FCC Rules a contractual condition. After the Appellant’s alleged breach, the Respondent obtained an FCC award and sought High Court leave to enforce it in Ghana. The High Court refused, but the Court of Appeal reversed, finding an arbitration agreement by incorporation and rejecting any suggestion of compulsion. On further appeal, the Supreme Court held that Act 798 permits arbitration agreements to be in writing by incorporation and that the FCC Rules, including the arbitration clause, were incorporated into the contracts. Interpreting section 59 disjunctively, the Court ruled that awards from the United Kingdom, a New York Convention contracting state, are enforceable in Ghana without being listed in L.I. 261. The appeal was dismissed.
KOOMSON JSC:
INTRODUCTION:
The Applicant/Appellant/Respondent (hereinafter referred to as ‘Respondent’) on 10th
January, 2022 filed an application for leave of the High Court to enforce an arbitral award of
the Federation of Cocoa Commerce, London dated 7th September, 2015. The
Respondent/Respondent/Appellant (hereinafter referred to as ‘Appellant’) filed an Affidavit
in Opposition to the Respondent’s application on 30th January, 2023.
FACTS OF THE CASE
In the Respondent’s Affidavit in Support, it states that the Respondent commenced
arbitration proceedings against the Appellant by a claim submitted on 15th January, 2014.
The arbitration was before the Federation of Cocoa Commerce (FCC) tribunal in London, UK
in relation to twelve (12) contracts between the parties. Respondent states that all twelve
(12) contracts were subject to the FCC Rules. The contracts made reference to FCC Rules
and agreed that any dispute arising between the parties shall be referred for determination
by the FCC Tribunal, London.
The Respondent states that the Appellant breached the contracts and having agreed to
submit to arbitration, the Respondent submitted and claimed damages of £5,701,695.88 and
€94,234.00 before the FCC Tribunal. The Tribunal gave its award on 3rd November, 2014 in
favour of the Respondent for the sums of £2,720,822.90 and €43,359.00 plus interest at
Libor plus 2% with the date of default being 3rd January, 2014. The Appellant who was
dissatisfied with the award filed an appeal against it on 20th November, 2014.
The Appellant states that the Respondent had earlier filed similar applications in February
2016 and June 2019 before the High Court, Commercial Division (differently constituted)
which were all dismissed by the Court. The Appellant further stated that Respondent pursued
an appeal in respect of the second ruling at the Court of Appeal but abandoned same because
the Respondent found no merit in the appeal. The appeal was struck out for non – compliance
with CI 19 and the Respondent brought an application to re-instate the appeal which was
subsequently withdrawn.
For the Appellant, there was no arbitration contract between the parties and the arbitration
award that the Respondent is seeking to enforce is contrary to the governing Alternative
Dispute Resolution Act 2010 (Act 798). On the basis of the foregoing, the Appellant asserted
that the application had no merit and same was misconceived and ought to be dismissed
with