PINE SPRINGS LIMITED VRS. UNIVERSITY OF GHANA AND ANOTHER (CM/MISC/0044/2023) [2024] GHAHC 64 (26 February 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE COMMERCIAL DIVISION, HELD IN ACCRA ON MONDAY, THE 26TH OF FEBRUARY 2024, BEFORE HIS LORDSHIP FRANCIS OBIRI ‘J’ PINE SPRINGS LIMITED ----- CLAIMANT/RESPONDENT SUIT NO. CM/MISC/0044/2023 VS UNIVERSITY OF GHANA & ANOR - RESPONDENTS/APPLICANTS ----------------------------------------------------------------------------- ----------------------------------------------------------------------------- RULING On 17th October 2022, the Respondents/Applicants (hereinafter called the Applicants) filed an application for the enforcement of arbitral award between the parties. The motion is supported by affidavit and exhibits. The Claimant/Respondent (hereinafter called the Respondent) filed affidavit in opposition on 7th July 2023. The motion was subsequently argued for and against by counsel for the parties. In this case, an arbitral award was published between the parties on 12th July, 2022. The arbitral award has not been set aside by any court. The Respondent in its affidavit in opposition contended, that the arbitrator had no jurisdiction in respect of the arbitral proceedings. Counsel for the Applicants contended otherwise. It is settled law, that an arbitrator cannot arbitrate on a matter which section 1 of the Alternative Dispute Resolution Act, 2010 (Act 798) prohibit or proscribe. See: KOFI OTOPA (SUBSTITUTED BY MATILDA ASANTEWAA) v AMANKWA OTOPABIA [2022] 177 GMJ 190 CA It is also trite law, that if a party or an adjudicating authority has no jurisdiction to entertain an action, then whatever the Court or the adjudicating authority will do will be a nullity. That is why the court itself can raise the issue of jurisdiction suo motu and determine it. See: BIMPONG BUTA v GENERAL LEGAL COUNCIL [2003-2004] 2 SCGLR 1200 ANTHONY SAKYI v GA SOUTH MUNICIPAL ASSEMBLY [2022] 178 GMJ 216 CA The issue of a court’s jurisdiction is very central to every case. This is because; an adjudicating authority cannot behave like an octopus and stretch its tentacles to grab jurisdiction where it has not been conferred with by statute or charter. Jurisdiction is the authority a court or an adjudicating authority has to determine a case between parties. It may be restricted or extended by statute or like manner. See: YEBOAH v MENSAH [1998-1999] SCGLR 492 EDUSEI v ATTORNEY-GENERAL [1996-1997] SCGLR 1 To that extent, jurisdiction is determined by the real issues between the parties. See: ANIN v ABABIO & OTHERS [1973] 1 GLR 509 I have already indicated, that an arbitrator cannot entertain an action which section 1 of Act 798 prohibits. However, if the contention of the Respondent is that the arbitrator lacked jurisdiction to entertain the matter because it borders on the environment which is listed under section 1 of Act 798, then the Respondent ought to have issued Writ of Summons in that respect, plead it and give particulars of same. So that when the matter is set down for trial, the Respondent can lead evidence based on the particulars to support it. That is the procedure prescribed by law when one intends to impeach an arbitral award on grounds of lack of jurisdiction as contended by the Respondent. The law is settled, that if the law has fixed or prescribed a procedure for which something is to be done, then one has to go by that procedure alone. Otherwise, the court will be bereft with jurisdiction to entertain the said matter. See: TULARLEY v ABAIDOO [1962] 1 GLR 411 SC REPUBLIC v HIGH COURT, GENERAL JURISDICTION 5, ACCRA EX PARTE THE MINISTER FOR INTERIOR & ANOTHER (ASHOK KUMAR SIVARAM - INTERESTED PARTY) [2018] 122 GMJ 63 SC REPUBLIC v HIGH COURT, KUMASI EX PARTE KWABENA MENSAH [2019] 132 GMJ 86 REPUBLIC v HIGH COURT, SEKONDI EX PARTE PERKOH II [2001-2002] 460 CA I am of the view that the Respondent has not taken any proper step to question the validity of the arbitral award. It is also trite law, that one takes his arbitrators for better or for worse. There is no application praying the court to stay the execution of the arbitral award or not to order for the enforcement of the arbitral award. Once an arbitration award has not been set aside, it operates as estoppel per rem judicata against the person whom the award was published. I am of the view, that since the award which is dated 12th July, 2020 has not been set aside or stayed, the Applicants herein should be granted leave to enforce the arbitral award and same is granted. I order accordingly. No order as to cost. SGD. FRANCIS OBIRI (JUSTICE OF THE HIGH COURT) COUNSEL JUSTIN AMENUVOR FOR THE RESPONDENT/APPLICANT KIN HUSSEIN FOR THE CLAIMANT/RESPONDENT AUTHORITIES 1. KOFI OTOPA (SUBSTITUTED BY MATILDA ASANTEWAA) v AMANKWA OTOPABIA [2022] 177 GMJ 190 CA 2. BIMPONG BUTA v GENERAL LEGAL COUNCIL [2003-2004] 2 SCGLR 1200 3. ANTHONY SAKYI v GA SOUTH MUNICIPAL ASSEMBLY [2022] 178 GMJ 216 CA 4. YEBOAH v MENSAH [1998-1999] SCGLR 492 5. EDUSEI v ATTORNEY-GENERAL [1996-1997] SCGLR 1 6. ANIN v ABABIO & OTHERS [1973] 1 GLR 509 7. TULARLEY v ABAIDOO [1962] 1 GLR 411 SC 8. REPUBLIC v HIGH COURT, GENERAL JURISDICTION 5, ACCRA EX PARTE THE MINISTER FOR INTERIOR & ANOTHER (ASHOK KUMAR SIVARAM - INTERESTED PARTY) [2018] 122 GMJ 63 SC 9. REPUBLIC v HIGH COURT, KUMASI EX PARTE KWABENA MENSAH [2019] 132 GMJ 86 10. REPUBLIC v HIGH COURT, SEKONDI EX PARTE PERKOH II [2001- 2002] 460 CA 5