In tHe Matter of an ARBITRATION BETWEEN NANA SIR OFORI ATTA, K.B.E., Omanhene of AKyem ABUAKWa AND NANA KWAKU AMOAH, OHENE OF AsAmangKese And KWAME KUMA, ODIKRo OF AKWatia.

Deane, Chief Justice.

This is an application to set aside an order made exparte on 25th March, 1930.

The order was made on the application of the Omanhene that the order of the Arbitrator be made an order of the Court and ran as follows :-

Order as prayed, it being left to the other side if so advised to move to set aside within ten days after service on them.

The Ohene and the Odikro have accordingly moved to set aside the order.

They do so on the following grounds (1) that the onus is wrongly thrown on them to have the order set aside, since the order made is in the nature of a final order and ought to have been made only on notice (2) that the English practice which requires the submission to be filed along with the award has not been followed as it should have been : there being no local practice excluding it. (3) that an appeal having been lodged against the refusal to set aside the award of the Arbitrator the order should not have been made.

Now as to No. 3; I do not think there is anything in it. An appeal need not operate as a stay, and in this matter where things have to be done under the award there does not seem to be any good reason for an indefinite stay as contended for.

If therefore the order is a good one otherwise I do not think it should be set aside on this ground.

Nor do I think that the Court if satisfied now that the order was a right and proper one should set it aside merely because the onus was wrongly shifted. It is true that in the form the order has taken it amounts to a final order and so strictly should have been made only after notice but such a defect would not go to the root of the matter and would be a matter for terms rather than for setting aside the order.

When however we come to consider the actual order I have come to the conclusion that it was made without jurisdiction and must be set aside-I say so for the following reasons-The jurisdiction of the Court to make an order in this matter which is a matter under the Arbitration Ordinance 9 of 1928, an arbitration outside the Court, is to be found in section 13 of the Ordinance which is identical in terms with section 12 of the English Arbitration Act, 1889.

That section reads "An award on a submission may by leave " of the Court or a Judge be enforced in the same manner as a "judgment or order to the same effect." If the section be read carefully it will be seen at once that what may be enforced is not an award simply but an award on a submission. The submissio