UNICHEM (GHANA) LIMITED & ANOR VS METROPOLIS HEALTHCARE (MAURITIUS) LTD. & ANOR

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