ADISI vs. CONSTRUCTION & FURNITURE CO. (W.A.) LTD. OF ACCRA [1963]DLSC1837

Date	1963-06-17
Suit No.
Citation No.	[1963]DLSC1837

ADUMUA-BOSSMAN JSC

CRABBE JSC

BLAY JSC

ASAFU-ADJAYE

SNR. FOR THE APPELLANT

QUASHIE-IDUN FOR THE RESPONDENTS.

[1963]DLSC1837
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ADISI

[SUPREME COURT]

[1963] 2 GLR 42

DATE: 17TH JUNE, 1963.

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COUNSEL:&nbsp;&nbsp;

ASAFU-ADJAYE,
SNR. FOR THE APPELLANT.

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ADUMUA-BOSSMAN, CRABBE AND
BLAY JJ.S.C.

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&nbsp;

This is an appeal from a refusal of Ollennu J. (as he then was)
sitting in the High Court, Accra, to set aside an award of J. S. Manyo-Plange,
Esquire (sole arbitrator) dismissing the applicant’s claim against the
defendants.

The main grounds on which the applicant sought to impugn the award
in the High Court were (1) misconduct on the part of the arbitrator and (2)
error of law on the face of the award.

The basis of the court’s jurisdiction to set aside awards of
arbitrators is set out in a statement of Williams J. in Hodgkinson v. Fernie.1
He said:

“The law has for many years been settled, and remains so at this
day, that, where a cause or matters in difference are referred to an
arbitrator, whether a lawyer or a layman, he is constituted the sole and final
judge of all questions both of law and of fact . . . The only exceptions to
that rule, are, cases where the award is the result of corruption or fraud, and
one other, which, though it is to be regretted, is now, I think, firmly
established, viz. where the question of law necessarily arises on the face of
the award, or upon some paper accompanying and forming part of the award.
Though the propriety of this latter may very well be doubted, I think it may be
considered as established.”

Other cases in which the principles upon which the court sometimes
acts when considering applications to set aside awards is Haigh v. Haigh,2
where Turner L.J. said: “Then as to the
other grounds on which his case is rested, it is to be observed, in the first
place, that an arbitrator being a judge selected by the parties, and chosen to
decide without appeal, this court has nothing to do with any mere error in
judgment on his part. The parties have chosen him to be their judge, and have
agreed to abide by his determination; and by that determination, if fairly and
properly made, they must be content to be bound; but, on the other hand,
arbitrators, like other judges, are bound, where they are not expressly
absolved from doing so, to observe in their proceedings the ordinary rules
which are laid down for the administration of justice; and this court, when
called upon to review their proceedings, is bound to see that those rules have
been observed. The difficulty which the court has to encounter in determining a
question of this nature is not as to the principles by which its decision ought
to be governed; but in determining whether what has been done falls within the
range of the arbitrator’s judgment, or contravenes the rules which ought to be
observed in collecting the materials on which that judgment is to be
exercised.”

It seems therefore that apart from corruption or fraud a departure
from the ordinary rules for the proper administration of justice constitutes a
breach of duty on the part of the arbitrator, and may amount to such misconduct
as will justify the setting aside of an award.

“Misconduct” is, of course, used in its legal or technical sense
in which it is known in the law relating to arbitrations as denoting
irregularity, and not, as counsel for the applicant-appellant emphasized, any
moral obliquity or anything of that sort.

The misconduct alleged in this case was the employment by the
arbitrator of a recorder who was an employee of the defendants and who by
reason of her interest in the defendants’ business recorded the proceedings in
a manner prejudicial to the applicant but favourable to the defendants.

The first objection with regard to the recorder was that the
record of proceedings contained “deliberate and calculated perversion” of
statements actually made by the applicant in the course of the proceedings. But
these charges were denied by the defendants whose managing director swore to an
affidavit in which he deposed as follows: