GH - MOHAMMED ODAYMART & ORS vs ANN BORTELEY BORQUAYE

The instant application, filed by the defendant/applicant herein, seeks an order of the court to strike out the writ of summons filed on the 3rd day of November 2016, and dismiss the entire action as per grounds indicated in the accompanying affidavit.

The plaintiffs are opposed to the application on legal grounds.

On the 3rd day of November 2016, the plaintiffs issued a writ against the defendant for a declaration that the arbitral award made on the 23rd day of May 2016 is null and void.

The plaintiffs have also asked for injunction to restrain the defendant and her privies from enforcing or executing the arbitral award.

The plaintiffs’ writ was issued together with a statement of claim.

It is this writ of summons and the accompanying statement of claim that the defendant seeks to have struck out.

In arguing the application, counsel referred to section 58 of the Alternative Dispute Resolution Act, 2010, Act 798 and submitted that the jurisdiction of the court has been wrongly invoked by the plaintiffs and that the action ought to have been instituted by an application instead of a writ.

Counsel therefore invited the court to dismiss the suit.

Counsel for the plaintiff responded that the plaintiffs are not challenging the award and that the plaintiffs are seeking a declaration that there has been no award at all and hence, the issuance of the writ is not incompetent.

The marginal notes to section 58 of Act 798 gives an indication as to the subject matter of the section.

It states “challenge of award. ” Indeed, the plaintiffs are by their writ not seeking to challenge the award made by the arbitrator.

The plaintiffs, instead, seek a declaration that the award made by the arbitrator is a nullity having regard to averment in the statement of claim.

In paragraphs 4, 5 and 6 of the statement of claim, the plaintiffs have averred that:

4. That arbiter referred the issued to the Lands Valuation Board and accepted the report of the said board without affording the Plaintiffs the opportunity to cross examine the Valuer.

5. Based on this valuation report the arbiter made his award and referred same back to the law courts.

6. The Plaintiffs say that the whole arbitration process has been vitiated by undue process of law and cannot stand as a valid arbitration award.

The above averments seem to have been sharply contradicted by the depositions contained in the affidavit in support of the instant application wherein the defendant deposed at paragraph