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WOOD, J.A.
On 10th November, 1997
we dismissed the appeal. These are my reasons for doing
so.
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.
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.
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.
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.
In response to
respondent counsel’s submission that appellants have not
acted timeously, counsel relying on Kusi v. Shell Ghana
Limited (1973) 1 GLR 173 contended that the present
position of the law as contained in Section 8 of the
Arbitration Act, 1961, Act. 38 is that an application
for stay of proceedings may be brought at any time after
the writ has been issued but before actual hearing. The
Kusi case dealt with the Section 5 of the previous law
on arbitration, the arbitration on Ordinance Cap. 16
(1951) Rev. But counsel had contended that the wording
of Section 8 of the present Arbitration Act, Act 38 is
exactly the same as the Section 5 of the Ordinance and
therefore the Kusi case could and if anything at all be
of persuasive authority in construing the Section 8 in
our attempt to decide the question of the stage at which
an application for stay of proceedings may be brought,
where one party wishes to invoke an arbitration clause
in an existing contract. I have no doubt that in my mind
that appellant counsel’s contention would have found
favour with us if this assertion that the wording of the
two pieces of legislation are the same were correct.
Unfortunately such is not the case. The two legislation
- the repeated and the present are materially different.
In the previous legislation that is the Section 5 of the
ordinance, the law clearly stipulated the time within
which such applications i.e. applications for stay of
proceedings were to be brought. An applicant was obliged
to apply for a stay of proceedings “after the writ had
been filed and before the hearing.” No such time limit
was set by the Section 8 of the Arbitration Act, Act 38
and no court has power to read any such words into this
present legislation. Indeed the fact that these words
were excluded from the Act 38 shows the legislature did
intend to leave those words out and not set any time
limit at all. I will reproduce the two relevant laws.
Section 5 of the Arbitration Ordinance Cap. 16 (1951)
Rev. States as follows:—
“If any party to a
submission or any person claiming through or under him
commences any legal proceedings in any court against any
other party to the submission, or any person claiming
through or under him, in respect of any matter agreed to
be referred, any party to such legal proceedings may at
any time, after service of the writ of summons before
the date fixed for hearing apply to that court to stay
the proceedings and that court or judge thereof if
satisfied that there is no sufficient reasonably the
matter should not be referred in accordance with the
submission, and that the applicant was, at the time when
the proceedings were commenced, and still remains, ready
and willing to do all things necessary to the proper
conduct of the arbitration, may make an order staying
the proceedings.”
Section 8 of Act 38 on
the other hand provides:—
“If any party to an
arbitration agreement, or any person claiming through
him commences any legal proceedings in any court against
any other party to the agreement as any person claiming
through him in respect of any matter agreed to be
referred any party to those legal proceedings may apply
to that court to stay the proceedings, and that court,
if satisfied that there is no sufficient reasonably the
matter should not be referred in accordance with the
agreement, and that the applicant was, at the time when
the proceedings were commenced, and still remains ready
and willing to do all things necessary to the proper
conduct of the arbitration, may make an order staying
the proceedings.”
It is therefore clear
that under the present law, a party who seeks to apply
for an order a stay of proceedings under the Section 8
of the Arbitration Act, Act 38 has no specific time
limit within which to bring the said application. But
then the more pertinent question raised by this appeal
is this: does it mean the application then can be
brought at any time at all even at such late stages as
where the applicant has participated fully in the
hearing and judgment is about to be delivered? I do not
think so. I shudder to think that the mere fact that no
express time limit have been fixed by the law gives an
applicant the licence to submit applications for stay or
proceedings tardily. In other words such applications
must be timeous. This in fact is the respondent
counsel’s contention. Arbitration or indeed agreement to
arbitrate is a purely consensual arrangement. It does
follow that parties to an agreement to refer differences
to arbitration, especially when such agreements are
contained in existing contracts are also equally free to
agree to its suspension or even termination. And it is
precisely because they have the right to waive their
rights existing under the arbitration agreement that it
is illogical or inconceivable for a party wishing to
enforce an arbitration agreement to be tardy otherwise
an undue delay in raising objection to the court’s
jurisdiction, coupled with other positive acts as for
example participating actively in an actual hearing,
etc., may be construed as having taken such steps as
would amount to a waiver of their rights to enforce the
arbitration agreement. What of course amounts an undue
delay resulting in a waiver of an applicant’s right is a
question of fact determinable on the facts of the
particular case. In other words, whether or not an
applicant in an application for stay of proceedings has
acted timeously is a question of fact to be determined
on the particular facts of each case. What I propose to
do therefore is to determine whether in this particular
case the applicant is guilty of any delay.
The claim that the
appellant failed to act timeously is not borne out by
the record. Indeed, he cannot be accused of any undue
delay in raising the objection to the court’s
jurisdiction. On the contrary, the record shows that at
the earliest opportunity, when they filed their defence,
they raised this issue. True, the defence does not
explicitly state that the court’s jurisdiction was being
challenged neither is there any invitation to stay
proceedings. Certainly I do not think it would have been
proper to extend any such invitation to the court in the
statement of defence. But the paragraph 30 of the
defence in substance clearly demonstrates that they were
objecting to the court’s jurisdiction and were
contending that the proper forum for resolving their
differences was arbitration. By this they were serving
notice that they were not waiving any rights at all, but
rather, if anything at all insisting on their rights.
The paragraph reads:—
“Defendant also say
that the plaintiffs claim is premature having regard to
the mandatory requirement for arbitration provided in
clause 16 of the agreement.”
A twenty-three
paragraphed reply followed the defence. By the twenty
third paragraph, the respondents denied this fact by the
paragraph 30 of the defence, prompting the appellants to
include in the additional issues they filed on 20th
January, 1997, the paragraph 13 which reads as follows:—
"13 whether or not the
plaintiffs action is premature.”
Two days later, on 22nd
January, 1997, they then filed the motion which
culminated in this present appeal. In my opinion then,
the appellant had at all material time, as far as the
issue of the Court’s jurisdiction or the reference of
the matter of arbitration is concerned acted diligently,
timeously and with promptitude. In my view, there has
been no delay, let alone an undue delay on the
appellant’s part such as would amount to a waiver of
their rights under the arbitration clause. Neither would
the filing of a statement of defence, coupled with the
filing of additional issues amount to having taken a
fresh step in the action such as would lead to a waiver
of their rights. Similarly I do not think the mere fact
that they did not file the motion for stay of
proceedings along with the defence renders their
application tardy.
The next important
question raised by this appeal is whether
notwithstanding the existence of an arbitration clause,
a court may on what appellant counsel described as a
mere allegation that one party is guilty of fraud
refused to enforce it, consequently decline to stay the
action.
It necessary for a
determination of the question of fraud to revoke the
arbitration agreement. But I think the learned trial
judge was right, in the circumstances of this case, when
he delined to give effect to this arbitration agreement.
Why do I say so? The question of fraud is very germane
to this dispute which has arisen. The main complaint of
the respondents as clearly appears on the face of their
pleading is that the appellants have practiced a fraud
on them, in that they made certain fraudulent
misrepresentations they believed in and which they acted
upon to their detriment. In other words they contend
that it was these false misrepresentation which induced
them to part with the said property. Put differently, it
was their case that but for these representations, they
would never have leased the property to the appellants.
I think a reproduction of the relevant portions of their
statement of claim would make the point I have made very
clear.
2. “In mid 1989 the
plaintiffs decided to lease their premises to a good
company or registered organisation to complete its
development and put an end to the trespass upon the
property.
3. In or about
September, 1989, the “Good Shepherd Mission,” the
defendant herein was fraudulently misrepresented to the
plaintiffs by one “Brother” Kofi Appiah-Kubi as a
well-off religious organisation registered in Ghana with
external connections which engage in religious
activities in Accra.
4. The said Appiah-Kubi
also fraudulently misrepresented to the plaintiffs that
the defendant wanted to rent their premises and complete
its development within one year for use as a dwelling
house and or offices.
5. The plaintiffs were
indeed by the aforesaid fraudulent misrepresentations to
enter into a lease hold agreement with the Good Shepherd
Mission purportedly acting through Kofi Appiah-Kubi as
its “Chairman”.
9. About six months
after the said agreement the plaintiffs came to realise
that a fraud had been practiced on them by Kofi
Appiah-Kubi.
10. Particulars of
fraud:—
(a)
Because the plaintiffs were not prepared to lease the
premises to a private individual Kofi Appiah-Kubi
deceived them to lease it to the “Good Shepherd Mission”
as a reputable registered religious organisation.
(b)
Good Shepherd is not a registered religious organisation
with offices in Accra or anywhere else in Ghana and it
is not engaged in any religious activities in Accra. It
is reported to be a phmey organisation used to solicit
funds from foreign religious organisations for the
enjoyment of self proclaimed “Brothers” here in Ghana.”
It is pertinent to note
that the appellants concede that for the respondents, it
was clearly very important who they leased their
property to they limit the fact that respondents were
only intent on leasing the property to “good company or
registered organisation”, not just any organisation or
company but respectable ones. I say so because by the
paragraph 4 of their statement of defence they
unequivocally admitted the paragraph 2 of the
respondents claim. This is how the paragraph reads
“4 Paragraph 2 of the
statement of claim is admitted.”
I have no doubt in my
mind that the only way they could have known that the
respondents were willing to deal with only a reputable
organisation is because they told him so and insisted on
it being an essential term of the contract. The
appellants denied the charges and particulars of fraud
vehemently. Under such circumstances, was it not a
proper exercise of the courts discretion when it decided
that the arbitration agreement shall cease to have
effect to enable the court determine these serious and
pertinent issues of fraud. It seems to me from the
wording of section 8 of Act 38 that generally speaking
the determination of issue of fraud especially when it
is central to the dispute, is outside the domain of the
arbitrator. It was submitted by Mr. Seta-Clottey counsel
for the appellant that the respondent did not
sufficiently state the case of fraud as he was required
to do under the law, i.e., Section 27(2) of Act. 38. His
contention was that he was required to plead with
particularity that appellant had indeed been convicted
for fraud, and that merely pleading the facts and even
particularsing the fraudulent misrepresentations was
wholly inadequate and did not meet the requirement of
the law. I am afraid I do not agree with these
submissions. I think counsel was carried away by the use
of the word “guilty” as appears in the legislation. But,
I do not think the proper construction to be placed on
the word “guilty” is “conviction.” It is a basic rule
indeed the first basic rule of construction of statutes
that words must be given their literal, ordinary or
dictionary meaning in the context of the statute. The
law (Section 27(2) makes reference to being “guilty of
fraud” in relation to agreements entered into by parties
and in which additionally it is also provided that
future differences which may arise (obviously in
relation to the agreement) shall be referred to
arbitration. It seems to me then that in the context in
which guilty of fraud is being used we are more
concerned with the term as is understood by civil courts
of justice — what some describe as civil fraud. I am not
to be understood as saying that the Section 27(2) does
not also have in its contemption criminal fraud. It is
possible and perfectly legitimate to allege a criminal
fraud in a civil action. And our Evidence Decree NRCD
323 stipulates the degree of proof on such occasions.
The relevant section is Section 13 (1) which states:—
“13(1) In any civil or
criminal action the burden of persuasion as to the
commission by a party of a crime which is directly in
issue require proof beyond reasonable doubt.”
And therefore it is
legitimate to allege the commission of “criminal fraud”
in a civil action. But, the point I would want to
emphasis is that it would be wrong to restrict the
“fraud” referred to in section 27(2) to only criminal
fraud. Indeed not all civil fraud would qualify as
criminal fraud and so lead to a conviction. I therefore
think it erroneous to urge that a party seeking to have
a court suspend an arbitration agreement can only
succeed where he averred a conviction of his opponent
D.L. Mcdonnel and J.G. Monroe, two distinguished English
text writers in their Treaties on the Law of Fraud which
is found at page 1 of their invaluable book Kerr on
Fraud and Mistake 7th Edition has spelt out what amounts
to or constitutes fraud in the eyes of the civil court.
They write “Fraud in the contemplation of a civil court
of justice may be said to include properly all acts,
omissions, and concealment which involve a breach of
legal or equitable duty, trust or confidence, justly
resposed sic, and are injurious to another, or by which
an undue or unconscient as asic advantage is taken of
another. All surprise, trick, cunning dissembling and
other unfair way that is used to cheat any one is
considered as fraud. Fraud in all cases implies a
wilful act on the part of any one whereby another is
sought to be deprived, by illegal or inequitable means
of what is entitled to.”
In my view then guilty
of fraud does not mean “convicted of fraud.” Although I
am a proponent of the “purposive approach” to the
interpretation of statutes and have in a few cases used
that to construe legislation, I do think we will be
stretching the meaning of “guilty” too far if we
insisted on interpreting it to mean “convicted.” On the
contrary, applying the basic or primary rule of
interpreting statutes we will find no absurdity. The
meaning of the section is plain and unambiguous. The
“guilty” referred to in the section does not necessarily
mean conviction. I would interpret it to mean where any
one is “accused” of or blamed or held for fraud or where
an allegation of fraud is made against another. It does
follow that when the respondent fully pleaded the fraud
in the various paragraphs I have referred to and set out
the particulars of fraud, they had done all that was
required of them to raise on their pleadings a prima
facie case of fraud. Put in other words, they have by
their pleadings raised a serious case of fraud.
Consequently the
learned trial judge was right when he concluded that on
the particulars of facts of the case, the arbitration
agreement cease to have effect to enable the court
determine the issesic of fraud.
The application for an
order for stay or proceedings was undoubtedly brought
under section 8 of Act 38. under that section it was not
merely enough for the appellant to raise the existence
of the agreement and expect a reference of the matter to
arbitration. The law requires that to succeed in
containing the relevant orders, the applicant must also
demonstrate that:
(1) at the time when
the proceedings were commenced he was and
(2) even up to the date
of the application he is still ready and willing to do
all things necessary to the proper conduct of the
arbitration.
It is only then that if
the court is satisfied that there is no sufficient
reason why the matter ought not to go to arbitration,
exercise its discretion in applicant’s favour. I have
already quoted the section 8 in extenso.
I have examined the
affidavit in support of the motion for stay of
proceedings. I find nothing showing the appellants
readnesssic and willfulness to co-operate towards the
proper conduct of the arbitration. On this ground alone,
the learned judge was right in refusing the application.
But even more importantly the court thought the issue of
fraud was so critical it does justify a refusal. In
other words it was a sufficiently good enough reason why
the court ought to assume jurisdiction. In the
circumstances, I think the order of refusal was right
and ought not to be interfered with it.
MRS. G. T. WOOD,
JUSTICE OF APPEAL
JUDGMENT OF BROBBEY, J
.A.:
The respondents owned a
plot of land at Christiansborg, Accra. It had an
uncompleted building on it. The land and the building
will hereinafter be referred to as the disputed
property. According to their pleadings, they decided to
lease it to a company or a registered organisation. The
appellant, represented by one Reverend “Brother” Kofi
Appiah-Kubi entered into a written agreement with the
appellants for the lease of the property.
Not long after the
lease agreement has been executed, a dispute arose. In
sum, the dispute was that Appiah-Kubi had perpetrated
fraud on the respondents by representing that the Good
Shepherd Mission was a registered religious body when in
truth and in fact it had not been registered at all.
The respondents
therefore sued the appellants in the Circuit court of
recovery of possession, damages for deceit, mesne
profits and "any other reliefs disclosed by the
pleadings.”
While the suit was
pending, the appellant filed a motion at the trial court
to stay proceedings pending in that court. His main
reason for the motion was that the written agreement
contained an ouster clause which provided that any
dispute between the parties concerning the leasehold
should first be referred to an arbitrator before it
could be pursued in a court.
The appellant therefore
contended that until the parties had exhausted their
remedies at arbitration, the action could not proceed in
the Circuit Court.
The respondents however
contended that since they had alleged fraud on the part
of the appellant, the ouster clause could not be invoked
to stay proceedings in the trial court.
After arguments before
the trial Circuit Court, the trial Judge upheld the
counterclaim of the respondent. The appellants then
appealed against that ruling.
In this court, the
appellant argued only one ground which was that the
trial Judge erred in refusing the stay on account of
fraud because the law required that that kind of fraud
should be established proved as in a criminal case but
that was not done. He contended that mere allegation of
fraud was not enough. In his view the appellant should
have been proved guilty of fraud by a Court of Competent
Jurisdiction before fraud could be used to avoid the
effect of an arbitration. For his counterclaim, counsel
relied on the Arbitration Act, 1961 (Act 38) Section
27(2) and Khoury v. Khoury (1962) 1 GLR 98. Act. 38,
Section 27(2) provides that
“(2) Where an agreement
between any parties provides that differences which may
arise in the future between them shall be referred to
arbitration, and a difference which so arises involves
the question whether any such party has been guilty of
fraud, the court shall, so far as may be necessary to
enable that question to be determined by the Court, have
power to order that the agreement shall cease to have
effect and power to give leave to revoke the authority
of any arbitrator or umpire appointed by or by virtue of
the agreement.”
The argument of counsel
for the appellant was that the use of the word “guilty”
in the subsection implied that the person accused of
fraud should be proved to have been actually convicted
by a Court of Competent jurisdiction before Section
27(2) could be applied. That, with respect, could not be
correct. To uphold that interpretation would amount to
imputing into Section 27(2) the word “proven” or
“established”. That would change the entire meaning of
that Section 27(2).
It is obvious from the
most cursory reading of Section 27(2) that it does not
contain the condition imposed by counsel for the
appellant. At no part of Act 38, Section 27(2) is it
stated that fraud should be proved. If the legislature
intended that fraud should be established or proved.
Section 27(2) would have stated so in no uncertain
terms.
On a plain reading of
Act 38, Section 27(2) does not specify the standard of
proof when fraud is alleged to oust the terms of
arbitration. It is significant to point out that counsel
for the appellant had no authority for his proposition.
Khoury v. Khoury (1962) 1 GLR 95, which he relied upon
is distinguishable from the instant case on two grounds;
firstly, the claim in that case was very comprehensive
and all-embracing. It covered all disputes whatsoever
arising. Secondly it did not deal with fraud at all
which is the fundamental issue in this case.
The position at Common
Law is that the person alleging fraud to oust the
jurisdiction of arbitration should be able to establish
a prima facie case of fraud: See Russell on Arbitration,
7th Edition at page 84. In that book Russell v. Russell
(1880) 14 Ch.D. 471 was cited to support that
proposition. In that case an application to stay court
proceedings to enable parties resort to arbitration
failed because the applicant did not establish prima
facie case of fraud.
By analogy it can be
said that the same standard may be applied in
considering the standard required in Section 27(2).
This reasoning is
buttressed further by the fact that the wording in Act
38, Section 27(2) is almost the same as the wording of
the English equivalent of the Arbitration Act, 1950 (14
Geo. 6, C. 27), Section 24(2). That section 24(2) reads
as follows:—
“24(2) where in
agreement between any parties provides that disputes
which may arise in the future between them shall be
referred to arbitration, and a dispute which so arises
involves the question whether any such party has been
guilty of fraud, the High Court shall, so far as may be
necessary to enable that question to be determined by
the High Court, have power to order that the agreement
shall cease to have effect and power to give leave to
revoke the authority of any arbitrator or umpire
appointed by or by virtue of the agreement.”
In the editorial note
to this Section 24(6) in Halsbury’s Statutes, 4th
edition, volume 2, page 600 it is stated that:—
“No exhaustive
definition of the term “fraud” can be given and the
court has never ventured to lay down any general
proposition of what constitutes fraud. Generally it
connotes an element of deliberate deception as opposed
to honest mistake.”
The case of R.Y.
Williams (1953) 2 QB 600 was then cited to support that
proposition. That case actually decided that the acts
complained of as constituting fraud should be
“deliberate and intentional.”
It follows from the
foregoing that in the instant case for the purpose of
determining whether or not the court action should be
allowed to proceed because of the allegation of fraud,
that fraud does not have to be proved beyond reasonable
doubt. All that is required at this stage is to
establish a prima facie case of fraud.
The argument of counsel
for the appellant may apply where evidence has been
taken already and the court has to decide on whether or
not fraud has been established. In that event, fraud,
being a criminal allegation, may be proved beyond
reasonable doubt even though it is alleged in a civil
case. This is the law as stated in the Evidence Decree,
1978, NRCD 323, Section 13(1).
The question to be
resolved in this appeal is whether or not a prima facie
case of fraud was made out by the respondents.
At the trial court, the
respondents insisted as per their pleadings and
affidavits and arguments that they intended to lease the
property to a registered company or orgnisation. They
averred that the Good Shepherd Mission was not a
registered organisation. They contended further that
Appiah-Kubi deceived them into believing that the
appellant was a registered organisation. As at the time
of hearing this appeal all that the appellant had done
was to oppose the averment by orally alleging that the
appellant was a registered organisation. If it was,
what prevented it or its solicitor’s from exhibiting
its registration certificate or disclosing particulars
of the registration so as to enable the respondent to
verify from the appropriate authority whether or not it
had been officially registered? No reason was disclosed
on the face of the record by the appellant.
The most crucial point
is that the respondents were alleging the appellant,
i.e. that the Good Shepherd Mission was not a registered
Organisation.
The appellant was
asserting that it was a registered organisation. The
onus was obviously placed on the appellant to have
disclosed particulars of their alleged registration.
This is clearly borne out by the Evidence Decree, 1975
(NRCD 323) section 14 which provides that
“Except as otherwise
provided by law, unless and until it is shifted a party
has the burden of persuasion as to each fact the
existence or non-existence of which is essential to the
claim or defence he is asserting.”
The marginal note to
this Section states that the Section covers “allocation
of burden of persuation.” By this Section it was
apparent that it was the appellant who had the duty to
have adduced evidence essential to sustain its assertion
that it was a registered organisation.
This view is further
supported by Section 11(1) of NRCD 323 which also
provides that
“For the purposes of
this Decree, the burden of producing evidence means the
obligation of a party to introduce sufficient evidence
to avoid a ruling against him on the issue.”
The marginal note on
this subsection also states that the section covers the
definition of the burden of producing evidence.
Quite obviously, if the
appellant in the instant case failed to adduce evidence,
the ruling that is was not a registered organisation
would be given against it. That is the more reason why
it was duty bound to have described particulars on its
registration. The fact that no single information about
its registration can be seen on the entire appeal record
obviously leads to the inescapable conclusion that on
the face of the pleadings, affidavits, arguments before
the trial court and indeed on the face of the appeal
record before this court, there is nothing to show that
the appellant is a registered organisation.
If that is the case
then the statement in the lease agreement that
“The Good Shepherd
Mission, a religious organisation registered in Ghana.”
Is false. If that
statement is false and yet Appiah-Kubi succeeded in
getting the respondents to grant the lease hold on his
representation that the Good Shepherd Mission was a
registered organisation, then he deliberately and
internationally deceived them into entering into that
agreement on a false representation.
On the face of the
appeal record before this court, a clear prima facie
case of fraud was made out against the appellant.
The trial circuit was
therefore justified in refusing the application to stay
the proceedings to enable the parties to go to
arbitration.
I entirely agree with
the opinion expressed by the President of this panel
concerning the timing issue raised by the respondents’
counsel. These were my reasons for dismissing the appeal
at the close of arguments on the 10th of November, 1997.
S. A. BROBBEY
JUSTICE OF APPEAL
BADDOO, J.A.
I agree.
S. G. BADDOO
JUSTICE OF APPEAL
COUNSEL
CLOTTEY SEFA FOR
APPELLANTS.
ODOI SYKES FOR
RESPONDENTS. |
