|
MARGARET
INSAIDOO J (MS).
RULING
PREFACE:
Before my ruling/ I would like to
state that I have just noticed an
application that has been placed
on the file this morning/ for an
Order for Stay of Proceedings
pending Interlocutory Appeal.
I
have also seen a Notice of Appeal
against the Ruling on the
Preliminary Objection received by
counsel prior to the application
for referral to Arbitrator being
moved by Counsel for 1st
Defendant. I shall nonetheless
proceed to read my ruling after
which the parties may advise
themselves as to the appropriate
steps to take.
This is an application by the
first defendant praying that the
court directs the plaintiff to
resort to arbitration to settle
their differences and for the
court to stay proceedings for that
purpose.
A
preliminary legal objection was
raised by the third defendant who
opposed the application. This was
refused by the court and the court
proceeded to listen to the
arguments by both counsels for the
1st defendant/applicant
and the 3rd
Defendant/Respondent. Upon serious
consideration however, I am faced
with the issue of whether or not I
am functus officio. I resorted to
the definition in Black's Law
Dictionary which defined the
expression in the following terms:
"A task performed. Having
fulfilled the function, discharged
the office, or accomplished the
purpose, and therefore ~f no
further force or authority.
Applied to an officer whose term
has expired and who has
consequently has no further
official authority;"
It is a fact that on 30th
May 2006, in granting an
application by the 3rd
Defendant praying the court to
grant it leave to takeover
possession of the Tamale
Polytechnic site, this court
refused an application by the
plaintiff to refer the matter to
arbitration. Although this time,
it is the 1st defendant
who is applying for a referral to
arbitration, in all fairness I
cannot consider the application
because, I have already dealt with
the same issue. Unfortunately,
what the applicant is seeking to
do is in effect asking the court
to review its decision made almost
a year ago. It is regrettable that
none of the parties in this matter
who were desirous of proceeding to
arbitration applied for a review
then; neither did they appeal
against the said ruling. Several
rights and issues have
crystallized since then.
RULING
PREFACE:
Before my ruling/ I would like to
state that I have just noticed an
application that has been placed
on the file this moming/ for an
Order for Stay of Proceedings
pending Interlocutory Appeal.
I have also seen a Notice of
Appeal against the Ruling on the
Preliminary Objection received by
counsel prior to the application
for referral to Arbitrator being
moved by Counsel for 1st
Defendant. I shall nonetheless
proceed to read my ruling after
which the parties may advise
themselves as to the appropriate
steps to take.
This is an application by the
first defendant praying that the
court directs the plaintiff to
resort to arbitration to settle
their differences and for the
court to stay proceedings for that
purpose.
A preliminary legal objection was
raised by the third defendant who
opposed the application. This was
refused by the court and the court
proceeded to listen to the
arguments by both counsels for the
1st defendant/applicant
and the 3rd
Defendant/Respondent. Upon serious
consideration however, I am faced
with the issue of whether or not I
am functus officio. I resorted to
the definition in Black's Law
Dictionary which defined the
expression in the following terms:
"A task performed. Having
fulfilled the function, discharged
the office, or accomplished the
purpose, and therefore ~f no
further force or authority.
Applied to an officer whose term
has expired and who has
consequently has no further
official authority;"
It is a fact that on 30th
May 2006, in granting an
application by the 3rd
Defendant praying the court to
grant it leave to takeover
possession of the Tamale
Polytechnic site, this court
refused an application by the
plaintiff to refer the matter to
arbitration. Although this time,
it is the 1st
defendant who is applying for a
referral to arbitration, in all
fairness I cannot consider the
application because, I have
already dealt with the same issue.
Unfortunately, what the applicant
is seeking to do is in effect
asking the court to review its
decision made almost a year ago.
It is regrettable that none of the
parties in this matter who were
desirous of proceeding to
arbitration applied for a review
then; neither did they appeal
against the saio ruling. Several
rights and issues have
crystallized since then.
The court notes that they had the
opportunity to use the arbitration
procedure when they sought leave
of the court to attempt an out of
court settlement. This they failed
to do despite the two calendar
months granted to them by this
court for that purpose.
As an ardent supporter of the
alternate dispute settlement
processes, I would have been eager
to refer this matter to
arbitration but for the fact that
I am functus officio. For all the
foregoing reasons1 I
decline jurisdiction in this
application.
(SGD)
JUSTICE MARGARET INSAIDOO HIGH
COURT
PLAINTIFF
DEFENDANTS
PARTIES:
PLAINTIFF PRESENT
3RD
DEFENDANT PRESENT
1
ST AND 2ND DEFENDANTS
ABSENT
COUNSEL:
PETER ANTHONIO BEING LED BY EFIBA
AMIHERE FOR THE PLAINTIFF.
OPOKU ADJAYE WITH ATO WILSON FOR
THE 1ST DEFENDANT
|
