KORANTENG vs. NADECO LTD [1964]DLHC1919

Date	1964-07-09
Suit No.
Citation No.	[1964]DLHC1919

ARCHER J.

A. K. PUPLAMPU FOR THE APPLICANTS.

P. F. O. ANTERSON FOR THE RESPONDENT.

[1964]DLHC1919
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													<main id="main" class="content" style="min-height: 60rem" >KORANTENG<o:p></o:p>&nbsp;vs. <o:p></o:p>NADECO LTD <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 488<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
9TH JULY, 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

A. K. PUPLAMPU FOR THE APPLICANTS.<o:p></o:p>

P. F. O. ANTERSON FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
applicants in this application seek an order o this court to set aside the
award of the umpire in an arbitration on three grounds that is to say; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) The
arbitrators did not deliver to any party to the arbitration or to the umpire a
notice in writing that they could not agree in accordance with the provisions
of section 12 (2) of the Arbitration Act, 19611 <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) The
umpire who purported to enter on the reference in lieu of the arbitrators
exceeded the terms of reference in making his award and misconstrued the
provisions of the insurance policy regulating the relationship between the
respondent and the applicants; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(c) The
umpire in his award drew inferences which were not warranted by the evidence
adduced at the arbitration. Alternatively the applicants ask that the award
should be remitted to the umpire for his reconsideration.<o:p></o:p><o:p>&nbsp;</o:p>On the
first day of the hearing, preliminary objection was taken by learned counsel
for the respondent on the ground that the application was out of time as the
award was published on 21 February 1964, and referred to Order 72, r. 13 of the
Supreme [High] Court (Civil Procedure) Rules, 1954.2 Learned counsel for the
applicants correctly pointed out that the arbitration was not a reference by
the court and that Order 72, r. 13 was inapplicable. The court however pointed
out that the appropriate order was Order 64, r. 13 which lays down a period of
six weeks after an award within which an application may be made to set aside
or remit the matter for reconsideration. The umpire who had stated 7 May 1964
in his affidavit as the date of publication was invited by the court to file a
further affidavit to correct the date of publication of the award. Accordingly
the umpire altered the date from 7 May 1964 to 21 February 1964. The new date therefore
rendered the application by the defendant out of time. The court however
exercised its discretion in the matter and allowed extension of time. After
hearing the submissions of both counsel, I reserved my judgment and I now
propose to deliver it.<o:p></o:p><o:p>&nbsp;</o:p>I shall
first of all deal with the ground that no written notice was given to any party
or to the umpire as required by section 12 (2) of the Arbitration Act, 1961.
That section reads as follows: [His lordship here read the section as set out
in the headnote and continued:] The court has not seen the insurance policy
incorporating the arbitration agreement and neither learned counsel was able to
reveal that a “contrary intention” as provided by section 12 (2) of the
Arbitration Act, 1961, appears in the insurance policy. In that case the words
of the section must be construed. Unfortunately the section does not lay down
any particular form of written notice; it does not even state that the notice
should be signed by both parties and it is therefore reasonable and correct to
assume that the section contemplates individual or separate notices in writing
to be given by each of the arbitrators. As there is no statutory form for the
written notice, I am of the opinion that any communication in writing addressed
by the arbitrators whether jointly or individually to the umpire which suggests
that the arbitrators cannot agree is sufficient written notice under section 12
(2) of the Arbitration Act, 1961. Indeed there is authority in Winteringham v.
Robertson3 that the non-agreement of the arbitrators who had submitted their
views to the umpire was equivalent to disagreement and that put an end to the
authority of the arbitrators and gave the umpire jurisdiction.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Acquaah the umpire in this arbitration, in paragraph 2 of this first affidavit
stated that when the two arbitrators forwarded their awards to him, he found
that one arbitrator had decided in favour of one party, and the other
arbitrator had decided in favour of the other party. He informed the solicitors
for the parties by telephone that the two arbitrators had disagreed and that he
had assumed jurisdiction. In my view the two awards sent to the umpire by</main>