EDITH AMORKOR SYKES & ORS vs. THE GOOD SHEPHERD MISSION [1997]DLCA6990

Date	1997-12-04
Suit No.	CIVIL APPEAL NO. 32/1997
Citation No.	[1997]DLCA6990

MRS. WOOD J.A. (PRESIDING)

BROBBEY J.A. BADDOO J.A.

CLOTTEY SEFA FOR APPELLANTS. ODOI SYKES FOR RESPONDENTS

[1997]DLCA6990
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													<main id="main" class="content" style="min-height: 60rem" >EDITH AMORKOR SYKES &amp; ORS<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE GOOD SHEPHERD MISSION<o:p></o:p>(DEFENDANTS/
APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. 32/1997 &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; DATE: 4TH DECEMBER, 1997<o:p></o:p>

</div>COUNSEL: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CLOTTEY SEFA FOR APPELLANTS. ODOI
SYKES FOR RESPONDENTS. <o:p></o:p>

</div>CORAM:&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MRS. WOOD J.A. (PRESIDING), BROBBEY
J.A. BADDOO J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>WOOD,
J.A. <o:p></o:p>On 10th November, 1997 we dismissed the
appeal. These are my reasons for doing so.<o:p></o:p>&nbsp;The
respondents, who are the owners of a two bedroomed house at South East
Christiansborg leased the premises to the appellants, the Good Shepherd Mission
in or about September, 1989. An essential term of the lease agreement was that
the appellants were to carry out certain developments on the premises within a
year of the agreement and to remain in occupation of the said premises for a
period of 21 years. However, barely six months after the said agreement has
been entered into, the respondents, contending that a fraud has been
perpetrated on them, (by the appellants, acting through their representative
Brother Appiah-Kubi) abrograted the agreement. According to the Respondents,
the parties however agreed that in order to liquidate an amount of ¢300,000.00
which the appellants had paid as rent advance, they should remain in occupation
for a further period of eight years. When at the expiry of this eight-year
period, the appellants refused to yield vacant possession of the premises, the
respondents instituted proceedings, principally to recover possession. In
addition they also claimed damages for deceit and mesue profit. After both
summons for directions and additional summons have been filed by the parties,
the appellant moved the court for an order for (1) stay of proceedings and (2)
for reference of the said matter to arbitration on the grounds that by the
lease agreement, all disputes arising from the said tenancy agreement are
resolvable by arbitration. The court declined the prayer. Being dissatisfied with
the ruling, the appellant promptly appealed to this court on three grounds. At
the hearing, however, the appeal was argued on only one ground. The other two
were abandoned. The burden of the appellants argument was that once the parties
have agreed on the forum for the resolution of disputes arising from the
contract, the court was in duty bound to refer this particular action to
arbitration. Counsels further contention is that arbitrators are not in any
case excluded from determining questions of fraud that may be raised by one of
the parties. Furthermore, he urged that as what the respondents have by their
pleadings done is merely to allege fraud, without any disclosure on the
pleadings that the appellant has been convicted by a court of competent jurisdiction
for fraud, theirs was a mere allegation and the court ought not to have assumed
jurisdiction. It was argued that on the contrary, the court ought to have
declined jurisdiction and referred the matter to the forum the parties
themselves by a prior agreement had chosen, namely arbitration. Respondent
counsel’s answer to these arguments were equally straight-forward. Counsel
contends that the ruling ought not to be disturbed for two reasons.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;First, that their pleadings contain sufficient
facts to support their allegation of fraud. They maintained that having
particularised the fraud, they have done all that the law of Section 27 (b) of
the Arbitration Act, Act 38 requires of them and which is to state on the face
of their pleadings the case of fraud clearly and with particularity counsel
argued that would be stretching the law too far if we demanded that the
pleadings must disclose that the appellant has in fact been convicted by a
court of competent jurisdiction. <o:p></o:p><o:p>&nbsp;</o:p>Second, it was urged that the objection to
the court’s jurisdiction ought to have been taken timeously, at the date of the
filing of the defence. The argument therefore is that the application for stay
of proceedings was filed too late, when summons for directions have already
been filed. Under such circumstances, counsel contended, the appellant ought to
be deemed to have waived their rights existing under the arbitration clause.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;I
propose to deal with this last point, i.e., whether the appellant is deemed to
have waived his rights under the arbitration clause first, as it seems to me to
be the easier matter to dispose of.<o:p></o:p>