STATE INSURANCE CORPORATION, TAKORADI vs. BADU [1965]DLHC1852

Date	1965-03-02
Suit No.
Citation No.	[1965]DLHC1852

DJABANOR J.

C. CANN FOR THE DEFENDANT-APPLICANT.

J. OFORI BOATENG FOR THE PLAINTIFF-RESPONDENT.

[1965]DLHC1852
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													<main id="main" class="content" style="min-height: 60rem" >STATE INSURANCE CORPORATION, TAKORADI<o:p></o:p>&nbsp;vs. <o:p></o:p>BADU <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1965] GLR 105<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:
2 MARCH 1965.<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">

C. CANN FOR THE DEFENDANT-APPLICANT.<o:p></o:p>

J. OFORI BOATENG FOR THE PLAINTIFF-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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>This is an
application by the defendants herein praying that this action be stayed on the
ground that the contract of insurance includes an arbitration clause in terms
of the Arbitration Act, 1961.1 Although not so stated in their affidavit it has
been submitted on their behalf that they are willing and prepared to go to
arbitration upon their differences. Neither party has said that no differences
have arisen.<o:p></o:p><o:p>&nbsp;</o:p>The
application was resisted on two main grounds, first, that the affidavit did not
disclose that the applicants were willing to proceed with the arbitration, and
secondly, that the applicants by filing a statement of defence, have taken a
step in the action and are thereby precluded from relying on the arbitration
clause, and therefore a stay should not be granted. This submission is founded
on sound principles. But it seems to me that the plaintiff-respondent must also
state that he has been willing to invoke the arbitration clause and that the
defendants have not been willing. He has not stated that he has done anything
about the arbitration, or taken any steps to bring it about. The arbitration
clause in the contract of insurance states that either party may give notice of
his intention to go into arbitration. Neither party appears to have given any
such notice. In that event I do not think that the plaintiff can say that the
arbitration clause has, as it were, been waived; and the courts have always
refused to preclude parties to an agreement from pursuing their rights
thereunder. Since the defendants too have submitted that they are willing to
submit to the arbitration according to the terms of the contract I do not think
I can sustain the plaintiff‘s objection on this first ground.<o:p></o:p>The more
important point raised is that the defendants by filing a statement of defence
have taken a step in the action and therefore cannot rely on the arbitration
clause. The plaintiff relied upon the case of Pilchers Ltd. v, Plaza
(Queensbury Ltd2) for this proposition. In that case the defendant filed an
affidavit to resist an application for summary judgment under R.S.C., Order 14.
When leave to sign judgment was granted he then appealed and only then raised
the matter of stay of the action pending the arbitration. It was held that
having taken the step of filing the affidavit in opposition he could not do so.
In that action Goddard L.J. (as he then was) expressed the opinion3 that no
step is taken in an action by a defendant opposing a summons for judgment under
Order 14 if he raised the matter of arbitration in the affidavit opposing the
summons and at the same time took out a summons for the stay. This is what was
done by the defendants in this instant case. They filed a statement of defence
in which they averred that the action should be stayed because of the
arbitration clause, and at the same time brought this application for stay of
the action. In my view they acted properly in terms of the above cited
authority.<o:p></o:p><o:p>&nbsp;</o:p>In the
result therefore, I will grant the application and stay this action pending the
submission to arbitration.<o:p></o:p>No order
as to costs.<o:p></o:p>

<o:p>&nbsp;</o:p></main>