February 21, 2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana decision, authored by Mariama Owusu JSC, resolves an appeal by the 1st and 2nd Plaintiffs challenging a Court of Appeal order that referred their dispute with the Defendants to arbitration and stayed High Court proceedings. The dispute concerns Shareholders, Share Purchase, and Subscription Agreements dated 2 May 2014, with mandatory arbitration in Mauritius. Plaintiffs contend they never executed these Container Agreements, the signatures purporting to be of their officers (R. D. Mohan and Dilip Jagad) are not genuine, and they never consented to arbitrate; they invoked the US Prima Paint Rule and produced Access Bank facility letters as specimens. Defendants urged separability and Kompetenz-Kompetenz under Act 798, and argued Plaintiffs previously invoked the shareholders’ agreement. The Supreme Court held that sections 3(1) and 24 of Act 798 authorize arbitral tribunals to decide existence/validity issues and rejected reliance on Prima Paint. On forgery, the Court emphasized the Evidence Act’s proof beyond reasonable doubt standard and the need for authenticated comparison under section 141; the High Court had relied on untested documents. The Court also clarified that the Court of Appeal did not void the writ and reiterated that correct outcomes may be upheld despite erroneous reasoning. The appeal was dismissed, and the Court of Appeal’s orders were affirmed.
MARIAMA OWUSU (MS. ) JSC:
On 17th June, 2021, the Court of Appeal allowed the appeal of the Defendants/Appellants/Respondents (referred to simply as Defendants) and set aside the Ruling of the High Court dated 1st November, 2018. The Court of Appeal further made an Order referring the parties to arbitration of the dispute between them as per the arbitration clauses in the Agreements and stayed proceedings in the substantive matter at the trial High Court pending the conclusion of the arbitration proceedings.
Dissatisfied with the decision of the Court of Appeal, the 1st and 2nd Plaintiffs/Respondents/Appellants (referred to simply as Plaintiffs) filed the instant Appeal before the Supreme Court on the following grounds: A. The Court of Appeal erred in law when it held that the dispute between the parties must be referred to arbitration, contrary to the position of the law that a party must first agree to refer a dispute to arbitration.
PARTICULARS: i. The majority panel of the Court of Appeal failed to recognize that the Plaintiffs challenged the existence of both the Container Agreement and the Arbitration Agreement.
The majority panel of the Court of Appeal failed to recognize that an arbitration is a private dispute resolution mechanism and the parties must first agree to submit their dispute to arbitration.
The Court of Appeal erred in law and in fact when it failed to recognize that the Plaintiffs never intended to resolve any issue through arbitration.
B. The Court of Appeal erred in law and in fact when it failed to recognize the plaintiffs never intended to resolve any issue through arbitration PARTICULARS: i. The Plaintiffs raised enough doubt as to the very existence of the Container Agreement which had the arbitration clause.
The Separability principle is based on a fundamental intention of the parties to submit their dispute to arbitration.
The Plaintiffs provided their known signatures to demonstrate that they never apprehended their signatures to the Container Agreements.
C. The Court of Appeal erred in law when it came to the conclusion that Plaintiffs’Writ of Summons was null and void because it was issued without leave which is contrary to law.
PARTICULARS: i. The Court of Appeal failed to recognize that the 2nd Defendant to the suit is a company incorporated in Ghana.
A Writ of Summons with two defendants is in essence two separate writs of summons fused into one judicial economy.
D. The judgment of the Court of Appeal is agai