De Simone Ltd Vrs Olam Ghana Ltd [2018] GHASC 22 (28 March 2018)

De Simone Ltd Vrs Olam Ghana Ltd [2018] GHASC 22 (28 March 2018)

Once both parties have, by their conduct, waived their right to arbitration—by proceeding with litigation and not timely invoking the arbitration clause—the court cannot compel them to arbitrate under section 7(5) of the Act. The power to refer to arbitration only exists before mutual waiver; after waiver, only a fresh, mutual agreement can revive arbitration under section 7(1).

Citation
[2018] GHASC 22
Parties
Plaintiff/appellant/appellant: De Simone Limited; Defendant/respondent/respondent: Olam Ghana Limited
Court
Supreme Court
Jurisdiction
Ghana
Judgment Date
28 March 2018
Procedural Posture
Civil Appeal / Second Appeal From Court of Appeal to Supreme Court
Outcome
appeal allowed
Legal Topics
Waiver of Arbitration Rights, Interpretation of Arbitration Clauses, Court's Power to Refer to Arbitration, Alternative Dispute Resolution
Source Language
English
Arbitration Contract Law Civil Procedure Waiver of Arbitration Rights Interpretation of Arbitration Clauses Court's Power to Refer to Arbitration Alternative Dispute Resolution

Case Brief

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Parties

De Simone Limited

Plaintiff/appellant/appellant

Olam Ghana Limited

Defendant/respondent/respondent

Procedural Posture

Civil Appeal / Second Appeal From Court of Appeal to Supreme Court

Legal Issues

  1. 1 Whether parties to a contract with an arbitration clause can resort to court litigation in respect of matters covered by the arbitration clause
  2. 2 If so, what standards should apply to determine the question

Ratio Decidendi

Once both parties have, by their conduct, waived their right to arbitration—by proceeding with litigation and not timely invoking the arbitration clause—the court cannot compel them to arbitrate under section 7(5) of the Act. The power to refer to arbitration only exists before mutual waiver; after waiver, only a fresh, mutual agreement can revive arbitration under section 7(1).

Court Disposition

appeal allowed

Orders

  • The High Court is ordered to continue with the hearing of the matter from where it left off.
  • The appellant is entitled to costs in this appeal.