KUSI vs. SHELL COMPANY OF GHANA LTD. [1973]DLCA2397

Date	1973-11-20
Suit No.
Citation No.	[1973]DLCA2397

APALOO JA

AMISSAH JA

SOWAH J.A.

B. KWAW-SWANZY (WITH HIM MISS SOLOMON) FOR THE APPELLANT.

ATTAFUA (FOR LYNES QUASHIE-LDUN & CO.) FOR THE RESPONDENTS.

[1973]DLCA2397
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													<main id="main" class="content" style="min-height: 60rem" >KUSI <o:p></o:p>vs. <o:p></o:p>SHELL COMPANY OF GHANA LTD. <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;[1973]
1 GLR 173<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
20 NOVEMBER 1972.<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">

B. KWAW-SWANZY (WITH HIM MISS SOLOMON) FOR THE
APPELLANT.<o:p></o:p>

ATTAFUA (FOR LYNES, QUASHIE-LDUN &amp; CO.) FOR
THE RESPONDENTS.<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">

APALOO, AMISSAH AND SOWAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>Amissah
J.A. delivered the judgment of the court. This is an appeal against the
judgment of Attoh J. awarding the sum of £G3,114 9s. 10d. to the respondents on
a claim for petroleum products sold to the appellant. The case began by a writ
in April 1962. The High Court disposed of it in October 1965. Now, ten years
later the appellant asks us to order a retrial because the case was not properly
heard on its merits. What are his grounds for this request?<o:p></o:p><o:p>&nbsp;</o:p>The first
submission made on his behalf was that the sale was under an agreement, clause
(8) of which made disputes between the parties subject to an arbitration
clause. According to this agreement once there was such a clause the court’s
jurisdiction was at least postponed until the arbitration had been held. In
this case there was no arbitration. The trial court had been made aware of the
arbitration clause but had brushed it summarily aside on the ground that the
law required that an application be made by the party who wanted the
arbitration but there was no such application before it. Counsel pointed out to
us a number of parts of the record where in affidavits made by the appellant,
the arbitration clause had been raised. The court therefore, according to her,
could not validly say that there was no application before it, especially as on
the date of hearing counsel for the appellant had said by way of a preliminary
point that the matter should, under the agreement, be settled by arbitration.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>We are
prepared to accept that where a law requires that a party should apply to the
court, without stating the form it should take, the application need not be in
writing. An oral application will suffice where no prejudice is suffered by the
opponent from the nature of the application. Upon hearing the parties on this
point the learned trial judge relied on section 5 of the Arbitration Ordinance,
Cap. 16 (1951 Rev.). Indeed reference to that section fixes the vintage of this
case. That provision provides as follows: [His lordship here read the
provisions as set out in the headnote and continued:] The section gives the
court before which the action is taken a discretion to decide whether the
arbitration should come on at all. The learned trial judge took the view that
the section required that after the filing of the writ and before the hearing
the party relying on the arbitration clause should apply for a stay of
proceedings and that the appellant in this case had not. The previous history
of this case ought to be remembered. After the respondents had filed their writ
with the statement of claim in May 1962 they asked for judgment under Order 14
of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Judgment
was given them in September 1963 on the erroneous belief that the appellant had
entered no appearance. He had in fact entered appearance in December 1962 but
taken no steps to file his defence. The appellant got the judgment set aside.
But he did nothing more about his defence. After that the appellant adopted all
sorts of stratagems to delay the proceedings. We are sure that this attitude of
the appellant influenced the judge, as it would have influenced us, in refusing
the request for arbitration. The learned judge ruled that there was no
application for a stay of proceedings before him. The fact of the matter is
that there was no formal application before the hearing as requested by the
law. It seems to be suggested that there was one by implication before him.
Having looked at the record we do not feel inclined to disturb the judge’s
ruling.<o:p></o:p><o:p>&nbsp;</o:p>The other
point made was that the claim was for £G2,127 16s. 9d. but that the judge gave
judgment for £3,114 10s. which he had no power to do. We agree that a court has
power to award an amount higher than that claimed. But here there was first an
attempt to amend the </main>