December 4, 1997
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In September 1989, the owners of a two-bedroom house at South East Christiansborg leased the property to Good Shepherd Mission, with terms requiring development within one year and occupation for twenty-one years. Six months later, the owners alleged that Good Shepherd’s representative, Brother Kofi Appiah-Kubi, had fraudulently misrepresented that Good Shepherd Mission was a registered religious organization, and they abrogated the lease while allowing eight years’ occupancy to offset a ¢300,000 rent advance. After eight years, Good Shepherd refused to vacate, prompting a Circuit Court suit for possession, deceit, and mesne profits. Relying on the lease’s arbitration clause, Good Shepherd sought a stay and reference to arbitration; the trial court refused. On appeal, a panel of the Court of Appeal presided by Mrs. G. T. Wood, with Justices S. A. Brobbey and S. G. Baddoo, held that Section 8 of Act 38 imposes no fixed time limit but requires timeous applications; appellants acted promptly. However, because respondents particularized fraud, Section 27(2) empowered the court to suspend the arbitration clause for judicial determination. The Court also found appellants failed to show readiness and willingness to arbitrate, and, adopting a prima facie standard for fraud, dismissed the appeal.
REASONS
WOOD, J.A.
On 10th November, 1997 we dismissed the appeal. These are my reasons for doing so.
The respondents, who are the owners of a two bedroomed 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 has been entered into, the respondents, contending that a fraud has been perpetrated on them, (by the appellants, acting through their representative Brother Appiah-Kubi) abrograted the agreement. According to the Respondents, the parties however agreed that in order to liquidate an amount of ¢300,000.00 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 mesue profit. After both summons for directions and additional summons have been filed by the parties, the appellant 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 appellant 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. Counsels 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 pleadings done is merely to allege fraud, without any disclosure on the pleadings that the appellant has been convicted by a court of competent jurisdiction for fraud, theirs was a mere allegation and the court ought not to have assumed jur