FOOD SPECIALITIES (GHANA) LTD v. RAMIA
1989
SUPREME COURT
GHANA
CORAM
- AMUA-SEKYI
- EDWARD WIREDU JJ.S.C.
- OFORI-BOATENG J.A.
- WUAKU
- ADADE AG CJ
Areas of Law
- Alternative dispute resolution
- Civil Procedure
- Contract Law
1989
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court addressed a landlord-tenant dispute between Edward Ramia and his corporate tenant, Food Specialities (Ghana) Ltd, arising from a rent review under their tenancy agreement for Ramia House. Although the agreement contemplated a single qualified certified surveyor as arbitrator, the parties appointed two chartered surveyors, Stephen Bediako and Harry Sawyerr, who issued an award significantly increasing the rent. After the High Court refused to remit the award, the Court of Appeal entered a consent order returning the matter to the arbitrators, and later granted Ramia leave to replace his own arbitrator based on alleged loss of confidence. On appeal, multiple Justices held that under the Arbitration Act, 1961 (Act 38), such first-instance applications lie in the High Court, and further discussed the invalidity of two-member arbitrations lacking an umpire and the binding nature of consent orders. The Supreme Court allowed the appeal and set aside the Court of Appeals order.
JUDGMENT OF ADADE AG. CJ.
I have had the advantage of reading beforehand the opinions of my brothers Amua-Sekyi JSC and Ofori-Boateng JA. Both have sketched the facts of this case in great detail, and I do not need to repeat them here.
It is incontrovertible that the Court of Appeal is not the proper forum to go, in the first instance, to seek a change or withdrawal of an arbitrator for whatever reason. The court lacked the jurisdiction to entertain the application which resulted in the ruling of 26 February 1989, now on appeal before us.
But there is an even more fundamental issue than the jurisdiction of the Court of Appeal, going to the root of the arbitration itself. The issue has been brought about by the fact that instead of the two parties respecting the agreement to appoint a single arbitrator, as provided in the tenancy agreement of October 1982, they chose to resort to two arbitrators, thus inviting a consideration of section 12 (1) of the Arbitration Act, 1961 (Act 38),which provides that:
"(1) Unless a contrary intention is expressed therein, [ie in the written agreement], every arbitration agreement shall, where the reference is to two arbitrators, be deemed to include a provision that the two arbitrators shall appoint an umpire immediately after they are themselves appointed."
(The emphasis is mine.) In other words in all two-member arbitrations, the appointment of an umpire is mandatory, unless a contrary intention is expressed in the relevant agreement. So that if the parties expressly state that they want the dispute to be settled by a two member arbitration without an umpire, the law will respect their wishes. In the absence of such clearly expressed statement tile law expects that the two arbitrators will appoint an umpire before embarking upon the reference. Otherwise the arbitration will be deemed to be improperly constituted. Tile idea of having an umpire or a third arbitrator is to avoid a stalemate in the event of a disagreement. In court-appointed arbitrations the position is regulated by Order 72. r [p.327] 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which reads:
"(4) If the reference be to two or more arbitrators, Provision shall be made in the order for a difference of opinion among the arbitrators, by the appointment of an umpire, or by declaring that the decision shall be with the majority, or by empowering the arbitrators to appoint an umpire, or otherwise as may be agreed upon between the parties,-