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Contract - Alternative Dispute
Resolution Act 2010(Act 798) - Joinder
-Whether
a non-signatory party, to an
ongoing arbitration
join
an Applicant
as Interested Party -
Whether the learned High Court
Judge exceeded his jurisdiction
when he made the order for the
joinder
HEADNOTES
On the 8th of July, 2009, West
Africa Quarries Limited
(hereinafter called WAQL)
entered into a contract with AJ
FANJ Construction and
Engineering Limited hereafter
referred to as the (Interested
Party) for the operation of
limestone mining, crushing and
haulage of limestone from it’s
concessions at Yongwa in the
Eastern Region., the parties
agreed that the Interested Party
shall continue to mine and
supply limestone from the Yongwa
Concession as they had been
doing previously based on
agreements beyond December 2012,
which was the expiry date of the
then prevailing agreement. As
part of the settlement it was
agreed to extend the duration of
the 2009 Yongwa contract which
was to end in December 2012 for
an indefinite period. In June
2016, the Yongwa Concession was
attached in execution of a
judgment obtained against WAQL. Following
the shutdown of the Yongwa
Concession as a result of the
attachment of same in execution
of the judgment, the Interested
Party herein, instituted
arbitral proceedings against
WAQL as stipulated in the
contract The parties thereafter
proceeded to appoint a sole
arbitrator to conduct the
arbitral proceedings. In the
course of the arbitral
proceedings, the Interested
Party filed a motion for joinder
-
HELD :-
In the premises, we are of the
considered view that the
Applicants have established a
case for the grant of certiorari
to quash the decision of Samuel
Asiedu J, presiding over the
High Court, Accra (Commercial
Division) dated 21st
day of December 2017 in Suit No.
MISC./0184/17
STATUTES REFERRED TO IN JUDGMENT
High Court Civil Procedure Rules
2004, Order 19 r. 1 (2)
Alternative Dispute Resolution
Act, 2010 (Act 798)
1992Constitution Article 131
Courts Act, 1993, Act 459
CASES REFERRED TO IN JUDGMENT
Morkor v Kuma [1998-1999] SCGLR,
620
Republic v High Court, Accra
Ex-parte Commission on Human
Rights and Administrative
Justice (Addo Interested Party)
[2003-2004] SCGLR
Republic v High Court, Accra Ex-parte
Laryea [1989-90] 2 GLR 99 per
Amua-Sekyi JSC at 101.
Republic v Court of Appeal, Ex-parte
Tsatsu Tsikata [2005-2006] SCGLR
612,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
DOTSE, JSC:-
COUNSEL.
YONNI KULENDI WITH HIM DANIEL
SAGU OSEI FOR THE APPLICANT.
MICHAEL GYAN OWUSU WITH HIM
OSCAR FORDJOUR FOR THE
INTERESTED PARTY/RESPONDENT.
_____________________________________________________________________________________
DOTSE, JSC:-
By these proceedings commenced
in this court, the Applicants
herein are seeking an order of
Certiorari directed at the High
Court (Commercial Division),
Accra to remove and bring up
into this court for the purpose
of being quashed, the ruling
of the High Court Accra, Coram:
Samuel K. A. Asiedu J, dated 21st
December, 2017 in Suit No.
MISC./0184/17 intitutled In The
Matter of The High Court Civil
Procedure Rules 2004, Order 19
r. 1 (2) And in The Matter of
Section 40 of the Alternative
Dispute Resolution Act, 2010
(Act 798) And in The Matter of
Arbitration Between AJ FANJ
Construction Limited And West
Africa Quarries Limited And in
The Matter of An Application For
Determination of A Preliminary
Point of Law Pursuant to Section
40 of Act 798, Regarding The
Joinder of GHACEM Limited To the
Arbitration As a Non Signatory
Party.
FACTS OF THE CASE
The facts of the instant
application are fairly simple
and admit of no controversy
whatsoever. They may therefore
be stated as follows:-
On the 8th of July, 2009, West
Africa Quarries Limited
(hereinafter called WAQL)
entered into a contract with AJ
FANJ Construction and
Engineering Limited hereafter
referred to as the (Interested
Party) for the operation of
limestone mining, crushing and
haulage of limestone from it’s
concessions at Yongwa in the
Eastern Region. Subsequent to
terms of settlement executed
between WAQL and the Interested
Party, the parties agreed that
the Interested Party shall
continue to mine and supply
limestone from the Yongwa
Concession as they had been
doing previously based on
agreements beyond December 2012,
which was the expiry date of the
then prevailing agreement. As
part of the settlement it was
agreed to extend the duration of
the 2009 Yongwa contract which
was to end in December 2012 for
an indefinite period.
In June 2016, the Yongwa
Concession was attached in
execution of a judgment obtained
against WAQL. Following the
shutdown of the Yongwa
Concession as a result of the
attachment of same in execution
of the judgment, the Interested
Party herein, instituted
arbitral proceedings against
WAQL as stipulated in the
contract. WAQL not only
disputed the claims of the
Interested Party, but also
proceeded to file it’s statement
of Defence, after which the
Interested Party filed a Reply.
The parties thereafter proceeded
to appoint a sole arbitrator to
conduct the arbitral
proceedings. In the course of
the arbitral proceedings, the
Interested Party by motion for
joinder filed on the 1st of
March 2017, brought an
application before the Tribunal
of the Ghana Arbitration Centre.
The Interested Party herein,
sought to join the Applicant
herein ( GHACEM), a
non-signatory party, to the
ongoing arbitration between the
Interested Party and WAQL in the
said application. The arbitral
tribunal dismissed the
application for joinder
whereupon the interested party
filed,in the High Court
(Commercial Division),an
originating motion on notice
under section 40 of the
Alternative Dispute Resolution
Act 2010(Act 798) and order 19 r
1 (2) of C. I. 47, praying the
Court for a determination of a
preliminary point of law.
That is, as to whether in
arbitral proceedings conducted
in Ghana with the Ghanaian law
as the substantive law, the
court will have power to join a
non-signatory party to the
arbitral proceedings in the
proper circumstances. The High
Court assumed jurisdiction and
made an order for joinder of the
applicant herein as a party to
the arbitral proceedings. It is
the decision of the High Court
that the applicant invokes the
supervisory jurisdiction of the
Supreme Court by way of
certiorari to quash same.
Arising from the above facts,
there is the need to examine
into some detail, the
following:-
a. What really
transpired before the sole
arbitrator on the issue of the
joinder of the Applicants, a
non-signatory to the arbitration
agreement,
b. The nature of the
application that went before the
High Court and the decision
therein, and
c. Finally, the grounds
of the application as well as
the arguments in support of the
certiorari application.
INTERIM AWARD OF THE
ARBITRAL TRIBUNAL
The applicant after being served
with the application for joinder
raised a preliminary objection
to the jurisdiction of the
Tribunal to entertain the
application for joinder. The
objection was based on two main
grounds:-
1. That the arbitral
tribunal does not have
jurisdiction to join GHACEM
(applicant herein), a non
signatory of an arbitration
agreement to arbitration
proceedings.
2. That the Alternative
Dispute Resolution Act, 2010
(Act 798) does not confer
jurisdiction on an arbitrator to
join a non party to a written
agreement to arbitration
proceedings arising out of
disputes in respect of the said
written agreement.
On ground one, the tribunal
after a thorough examination of
the ADR Act (Act 798) found, at
page 3 of the interim award,
that issues of joinder were
procedural matters and thus by
the operation of section 31 of
Act 798, the tribunal had
jurisdiction to determine any
matter of procedure including
joinder. The relevant part of
section 31 is 31(3) of Act 798
which provides as follows:
"Subject to the right of parties
to agree on any matter of
procedure, the arbitrator shall
decide on matters of procedure
and evidence".
The tribunal further noted that,
"the question whether at the
end of the day the application
will succeed is beside the
point". The tribunal held
that, parties to an arbitration
clause may agree to vest the
arbitral tribunal with the power
to join a non-signatory to the
dispute and that such an
agreement will be within the
jurisdiction of the Tribunal to
determine.
The tribunal on ground one
concluded, in dismissing the
preliminary objection, on
jurisdiction that it had
jurisdiction to hear the
application for joinder.
Under ground two, the tribunal
reiterated the grounds upon
which the application for
joinder was brought namely:-
1. GHACEM LIMITED
negotiated and performed the
contract in which the
Arbitration Agreement was
contained and merely used
WAQL as the face for the
contract.
2. GHACEM LIMITED at all
material times was the alter ego
of WAQL by virtue of the
absolute control it exercises
over WAQL which Company was
bound hand and foot to the
Respondent herein and never
exercised any independent
volition of its own.
After a thorough examination on
the subject of joinder of non
signatories to arbitral
proceedings, with reference to
developments on it in United
States, United Kingdom,
Singapore and the International
Chamber of Commerce (ICC), the
tribunal found that in
arbitrations unlike litigation
cases and laws from other
jurisdictions do not have
binding or persuasive effect.
Thus, the ADR Act and the rules
of the Ghana Arbitration Centre
that have been adopted by the
parties did not make specific
provision for adding
non-signatories. At page 8 of
the interim award, the tribunal
therefore stated thus,
“In the absence of specific
provisions in the agreement and
provisions referred to above,
the Tribunal finds that since
arbitration is a private
procedure, it is an implied term
of an arbitration agreement that
strangers to the agreement are
excluded from the hearing and
conduct of an arbitration under
the agreement." Emphasis
supplied
The tribunal therefore found
that it did not have the power
to join the non signatory to the
arbitral proceedings.
The Nature of the application
that went to the High Court, and
the decision therein.
DECISION OF THE HIGH COURT
(COMMERCIAL DIVISION)
At the High Court, the grounds
under which the interested party
filed their motion were that;
1. Non-signatory party
(hereinafter referred to as
GHACEM) negotiated and performed
the contract in which the
Arbitration Agreement was
contained and merely used WAQL
as the face for the contract.
2. GHACEM at all
material times was the alter ego
of WAQL by virtue of the
absolute control it exercises
over WAQL which company was
bound hand and foot to the
non-signatory party herein and
never exercised any independent
volition of its own.
3. There was an express
collateral contract between
GHACEM and AJ FANJ Limited by
virtue of the fact that GHACEM's
actions amounted to promises and
assurances to AJ FANJ that it
was a party to the contract
which AJ FANJ acted upon and
entered into the contract which
contained the arbitration
clause.
The main section under which the
interested party (applicant
therein) brought the motion was
section 40 of ADR Act 798 which
reads as follows:
40(1) “Unless otherwise agreed
by the parties, the High Court
may on an application on notice
to the other party by a party to
arbitral proceedings, determine
any question of law that arises
in the course of the proceedings
if the Court is satisfied that
the question substantially
affects the rights of the other
party.“ emphasis
The learned High Court Judge at
pages 4-5 of the judgment stated
that
"The court has been invited to
determine as a preliminary point
of law, the issue as to whether
or not in arbitral proceedings
conducted in Ghana with Ghanaian
law as the substantive law, the
court will have power to join a
non-signatory to the arbitral
proceedings in the proper
circumstances and with
particular reference to the
facts deposed to in the
accompanying affidavit."
The High Court stated that by
Article 131 of the Constitution
1992 and section 16 of the
Courts Act 1993, Act 459, it had
supervisory jurisdiction over
all lower courts and any
adjudicating body, including
arbitral tribunals.
The court thus concluded that it
had jurisdiction to hear the
matter. Further, the High
Court after a consideration of
the evidence before it and the
law on the subject of lifting
corporate veil, held that the
applicant (GHACEM) was the
"alter ego" of WAQL. Indeed
at page 18 of the judgment, the
court found as a fact that, the
applicant had overtly, by deeds
and conduct represented to the
interested party that it is the
same as WAQL.
The court indeed correctly
stated the legal position that,
arbitration is based on
agreement and a party cannot be
required to submit to
arbitration when the party has
not consented to an arbitration
agreement.
Nonetheless, the court however
found that the contract in
dispute which was entered into
between WAQL and the interested
party herein, was a contract
between the applicant and the
interested party.
In conclusion, the High Court
held after it’s consideration of
the application that WAQL was
used as a cover by GHACEM and
for that matter in the
circumstances of the case it
will be unjust to let the
arbitration proceed without
joining GHACEM, the main actor
in the whole scenario.
GROUNDS AND ARGUMENTS BEFORE
THIS COURT
The two main grounds upon which
the applicant made their
application are as follows:-
1. That the High Court,
(Commercial Division), Accra
exceeded its jurisdiction when
it made an order for joinder of
the applicant to ongoing
Arbitration Proceedings when the
motion before the Court was for
determination of a preliminary
point of law pursuant to section
40 of the Alternative Dispute
Resolution Act, (Act 798).
2. That the decision of
the High Court,(Commercial
Division), Accra to join the
Applicant to Arbitration
Proceedings arising out of an
Arbitration Agreement to which
the applicant is not a party
and/or signatory, amounts to a
patent error of law on the face
of the record.
ARGUMENTS BY LEARNED COUNSEL FOR
APPLICANTS
On the reception of arguments to
complement their written
statement of case, learned
counsel for the Applicants,
Yonny Kulendi referred
extensively to section 40 (1) of
the A.D.R Act, (Act 798) and
argued as follows:-
1. That there was no
doubt as to the jurisdiction of
the High Court to determine
whether a preliminary legal
issue had arisen in the matter
that needed to be dealt with
before the court. In this
respect, learned counsel
referred to the Arbitrator’s
award. He reiterated the fact
that what was before the
arbitration tribunal was the
issue of the joinder of a
non-signatory to the proceedings
before the arbitral tribunal.
Having decided the issue, that
the tribunal had no such powers
to join a non-signatory party to
the arbitration proceedings, it
was clearly out of the scope of
the jurisdiction of the High
Court to proceed to make
pronouncements on the matter as
if the court was exercising
appellate jurisdiction which it
did not have. It must be noted
that the arbitral proceedings
had not yet commenced on the
merits of the case, and the High
Court proceeded as if it was
exercising appellate
jurisdiction.
According to learned counsel for
the Applicants, determination of
the joining of the non-signatory
to the arbitral proceedings did
not arise before the High Court,
hence it lacked jurisdiction in
determining same.
2. Secondly, learned
counsel submitted that, the
consequential step by the
learned High Court Judge in
joining the Applicant to the
action is not sanctioned by the
ADR Act, (Act 798). In this
respect, it was contended by
learned counsel that since
Arbitration is a voluntary
agreement of the parties, the
decision of the High Court in
making the consequential orders
amounted to an error of law and
or excess of jurisdiction. It
was for the above reasons, and
more especially as contained in
the statement of case that the
High Court decision must be
quashed by certiorari by this
court.
BY COUNSEL FOR THE INTERESTED
PARTY
After initially misconstruing
the oral submissions of learned
counsel for the Applicants,
learned counsel for the
Interested Party Michael Gyang
Owusu confined his oral
submissions to the following:-
That, as the High Court has
jurisdiction in all matters and
as is contained in the
Constitution 1992, Courts Act,
Act 459 of 1993 and the ADR Act,
Act 798, the Court had
jurisdiction to consider the
issues raised before it.
According to learned Counsel for
the Interested Party, this
jurisdiction of the High Court
was not limited only to the
issue of the preliminary issue,
but also to the determination of
the issue of the joinder of the
non-signatory to the arbitral
proceedings. According to
learned counsel, it was proper
and within the jurisdiction of
the High court to lift the
corporate veil of the
Applicants, since to all intents
and purposes they were the
“alter ego” of WAQL whom they
set up for the purpose of doing
business with the Interested
Party.
Based on the above, learned
counsel concluded that the court
could not have exceeded it’s
jurisdiction and that the
grounds upon which the
application has been urged are
not grounds that can sustain the
grant of the application.
Learned counsel therefore urged
this court to dismiss the
application as incompetent.
CONSIDERATION OF THE GROUNDS OF
THE APPLICATION
We have perused all the
processes filed by all the
parties, including in particular
the affidavits, statements of
case, the judgments and awards
of the High Court and the Sole
Arbitrator, and all the over
elaborate and sometimes
irrelevant exhibits that have
been exhibited to the instant
application.
GROUND 1
Learned counsel for the
Applicants in their statement of
case did not lose sight of the
general grounds upon which
certiorari applications are
normally founded. These have
been listed as follows:-
a. Want or excess of
jurisdiction
b. Where there is an
error of law on the face of the
record
c. Failure to comply
with the rules of natural
justice
d. The Wednesbury
principles of reasonableness
In support of the first ground
of this application, the
Applicants contended that the
learned High Court Judge
exceeded his jurisdiction when
he made the order for the
joinder of the applicant to the
arbitral proceedings, despite
the fact that what was before
him was a determination of a
preliminary point of law
pursuant to section 40 (1) of
Act 798, already referred to
supra. The Applicants contended
further that, the order made by
the learned High Court Judge led
to an abuse of his jurisdiction
which he thereby exceeded.
In this respect, we are mindful
of the contention of the
Interested Party that the orders
made by the learned High Court
Judge were consequential which
flowed inevitably from the
determination of the preliminary
point of law. We are also not
oblivious of the constitutional
and statutory provisions in
article 141 of the Constitution
1992 as well as Section 16 of
the Courts Act, 1993, Act 459
which granted supervisory
jurisdiction to the High Court
over all lower courts and any
lower adjudicating body.
There is no doubt that the
resolution of this application
will naturally involve a
discussion of the scope of the
powers of the High Court in
respect of arbitration
proceedings commenced
voluntarily by the parties under
Act 798.
Admittedly, there are several
instances where Act 798 invokes
the intervention of the High
Court. For example, Section 6 of
the Act thereof deals with
instances where there is a
provision in an agreement for
arbitration and a party
nonetheless commences the action
in the normal courts, the High
Court can stay those proceedings
and refer the parties to the
arbitration. Section 7 on the
other hand deals with instances
where the court on it’s own
motion and with the consent of
the parties refers a dispute, or
part of the dispute to
arbitration.
Section 18 deals with the powers
of the High Court in instances
where an arbitrator’s authority
may be revoked by the orders of
the High Court.
Section 26 of Act 798 for
example deals specifically with
instances where a party who is
dissatisfied with the ruling of
an arbitrator on an issue of
jurisdiction may on notice to
the arbitrator and the other
party apply to the appointing
authority or the High Court for
a determination of the
arbitrator’s jurisdiction.
Section 28 of the A.D.R Act,
deals with the rights of a party
to an arbitration agreement who
has not been notified of an
arbitration proceedings.
Sections 39 and 40 have far
reaching provisions on arbitral
proceedings. Whilst section 39
deals with general provisions
aimed at protecting the sanctity
and validity of arbitration
proceedings, section 40 on the
other hand deals with the
determination of preliminary
points of law.
Indeed an understanding of
section 40 (1) of Act 798 gives
the clearest of intentions that
the agreement of the parties to
an arbitration cannot be taken
lightly and the High court’s
intervention in the
determination of questions of
law has been premised on the
basis of the commencement of the
arbitration.
What happened before the sole
arbitrator which ended up in the
High Court to our mind was not a
determination of a question of
lae in the course of the
arbitral proceedings.
Sections 40 (2) and (3) in
particular of Act 798 reinforces
the view that the determination
of the question of law mentioned
therein in Section 40 (1) is a
determination arising out of the
course of the arbitration
proper. This is the only logical
interpretation that can be given
when the fact that the
arbitrator may continue the
arbitral proceedings and even
make an award whilst the
application for the
determination of the question of
law is pending. This makes it
clear that, the question of law
envisaged are not the type of
determination of issues of
joinder of a non-signatory party
that arose in this case.
Otherwise, how else can the
arbitral proceedings continue
and even make an award whilst
the issue of joinder of a
non-signatory party has not been
determined?
In this instant, the power of
the Arbitrator to determine the
issue of the joinder of a
non-signatory party arose under
section 31 (3) of Act 798 and
that jurisdiction was duly
exercised by him.
There being no appeal available
to this type of determination,
the High Court clearly exceeded
it’s jurisdiction in granting
the application.
What must be noted is that the
provisions in Act 798 on
arbitral proceedings must be
considered as alternative
methods of resolution of
disputes, and therefore, in our
view, the intervention of the
High Court, unless expressly
provided for and in clear
instances devoid of any
controversy, must be very slow
and cautious. Otherwise, in our
respective opinion, the High
Courts will once again use these
interventions to whittle away
the functions of the arbitral
tribunals and render nugatory
the benefits that are to be
derived from these arbitral
proceedings as contained and
provided for in Act 798.
In these proceedings, the
Interested Party in their
application to the High Court
for the determination of a
preliminary point of law under
section 40 of the ADR Act 2010,
(Act 798) prayed the High Court
for “a determination of a
preliminary point of law as to
whether or not in arbitral
proceedings conducted in Ghana
with Ghanaian law as the
substantive law, the court will
have power to join a
non-signatory party to the
arbitral proceedings in the
proper circumstances and with
particular reference to the
facts deposed to in the
accompanying affidavit and more
particularly on the grounds
that,
a. Non-signatory party
(hereinafter referred to as
GHACEM) negotiated and performed
the contract in which the
Arbitration Agreement was
contained and merely used the
Respondent (hereinafter referred
to as WAQL) as the face for the
contract.
b. Ghacem at all
material times was the
alter ego of WAQL by virtue of
the absolute control it
exercises over WAQL which
company was bound hand and foot
to the Non-signatory party
herein and never exercised any
independent volition of its own.
c. There was an express
collateral contract between
GHACEM and AJ FANJ Limited by
virtue of the fact that GHACEM’s
actions amounted to promises and
assurances to AJ FANJ that it
was a party to the contract
which AJ FANJ acted on and
entered into the contract which
contained the arbitration
clause.” Emphasis supplied.
In order to determine the scope
of the Court’s jurisdiction in
respect of the above reliefs,
the High Court no doubt has
become an appellate court
process over and above the
decisions of the sole
arbitrator.
In our opinion, this phenomenon
amounted to clear breach of the
scope and mandate of the
provisions of section 40 (1) of
Act 798 which limited same to
the determination of only
preliminary legal points.
As a matter of fact, the sole
arbitrator dealt with the
preliminary legal points raised
before him and delivered himself
in the following terms:-
“The Tribunal finds that issues
of joinder are procedural
matters which may not
necessarily engage the attention
of the Legislators when passing
substantive laws such as the ADR
Act, Act 798. Accordingly the
failure on the part of the
Legislators to specifically make
provision for joinders of
parties will not take away the
jurisdiction of the Tribunal to
hear and determine an
application for joinder as in
the current application before
it.”
Section 31 of the ADR Act vests
the parties and arbitrator with
a wide scope to determine any
matter of procedure.
The Tribunal finds this powers
includes applications for
joinder. The question whether
at the end of the day the
application will or will not
succeed is beside the point.
The tribunal holds that parties
to an arbitration clause may
agree to vest the arbitral
Tribunal with power to join a
non-signatory to the dispute and
that such an agreement will be
within the jurisdiction of the
Tribunal to determine.
Accordingly the Tribunal
disagrees with the submission by
the non-signatory that it does
not have jurisdiction to hear
and determine the current
application on the basis of the
fact that Act 798 did not make
provision for joinder of
non-signatories. The
Tribunal therefore holds that it
has jurisdiction to hear the
current application and to rule
on it. The preliminary objection
to jurisdiction of the Tribunal
fails and is accordingly
dismissed. Emphasis
Having dealt with the
preliminary issue, it is our
respectful view that, the
determination of the subsequent
issue of joinder of
non-signatory party to the
agreement is definitely outside
the scope, remit and therefore
jurisdiction of the High court.
To proceed therefore to deal
with the resolution of that
issue despite the clear terms of
that decision referred to supra,
meant that the High Court acted
in excess of it’s jurisdiction.
A perusal of the grounds which
were formulated by the
Interested Party before the High
Court for determination and
which have been referred to
copiously supra had infact been
set out by the sole arbitrator
and dealt with by him in the
following terms as well.
“The rules of the Ghana
Arbitration Centre that has been
adopted by the parties did also
not make any specific provision
for adding non signatories in
the absence of specific
provisions in the agreement and
provisions referred to above,
the Tribunal finds that since
arbitration is a private
procedure, it is an implied term
of an arbitration agreement that
strangers to the agreement are
excluded from the hearing and
conduct of an arbitration under
the agreement".
It must be noted that in the
instant case, the parties in
their arbitration agreement
chose Ghanaian law as the lex
arbitri, that is the law that
should govern their arbitration.
The arbitral Tribunal, rightly
in our views came to the
conclusion that it had no power
to join the Applicant herein to
the arbitral proceedings. As
we have stated elsewhere in this
rendition, the main purpose of
an arbitration is to settle the
dispute outside court or without
the influence and intervention
of the courts.
Even though, as has been pointed
out, the Courts have been
granted some control mechanisms
over the conduct of arbitral
proceedings under the Act, the
scope and extent to which the
High Court intervened in this
instance has far exceeded it’s
jurisdiction. It is in our
resolve to limit the unbridled
interference of the court into
the workings of arbitral
Tribunals under Act 798 that has
culminated into this decision.
The issues of lifting the
corporate veil as espoused
in the celebrated case of
Morkor v Kuma [1998-1999] SCGLR,
620 and the doctrine of
“alter ego” which the learned
High Court Judge embarked upon
and used to join the Applicants,
a non-signatory to the arbitral
proceedings in our respectful
view amount to the learned trial
Judge exceeding his
jurisdiction.
As a matter of fact, all the
renditions by the learned trial
Judge on these two principles
were irrelevant and need not
have been taken into
consideration by him.
In the premises, we are of the
considered view that the
Applicants have made a strong
case for the exercise of our
jurisdiction in ground one of
this application. Certiorari
will therefore lie to quash the
decision of the High Court
(Commercial Division) Accra,
dated 21st December
2017.
GROUND 2
The second and final ground of
this application is that the
joinder of the applicant a
non-signatory to the arbitral
proceedings amounted to an error
of law patent on the face of the
record.
In the first place, what must be
noted and taken seriously into
consideration is that, all the
parties to this arbitral
agreement knew the prevailing
facts and circumstances of the
case.
Indeed, as a reminder, there
have been series of agreements
between the parties herein,
including the Interested Parties
and Applicants. Then
subsequently, WAQL was
established and took over the
roles, functions etc. of the
Applicants. The Interested Party
knew of all these facts and yet
voluntarily entered into the
agreement which expressly stated
that the agreement which was to
expire in December 2012 should
go beyond that period with the
position of the Interested Party
and WAQL as the parties to the
arbitration agreement.
In the determination of the
application before it, the
learned High Court Judge in our
opinion took into account
extraneous and erroneous matters
and that led it to conclude
thus:-
“From the totality of the
evidence on record the court is
absolutely convinced that
West Africa Quarry Limited was
used as a cover by Ghacem
and for that matter in
circumstances of this case, it
will be unjust to let the
arbitration proceed without the
participation of Ghacem, the
main actor in the whole
scenario.” Emphasis supplied.
In our respective opinion, it is
the consideration of these
extraneous matters that have led
to the learned trial Judge to
make the prejudicial statements
which are erroneous and amounts
to error of law on the face of
the record, and this is quite
patent.
For example, the learned trial
Judge without taking evidence
from the parties, made very far
reaching comments and
conclusions on the matter. In
one breadth, he concluded that
the Applicant had made
fraudulent representations to
the Interested Party and also
that, he would lift the veil of
incorporation in order to expose
the fraud that had been
perpetuated and do substantial
justice.
As we have already observed in
this Ruling, the Parties
negotiated and entered into the
agreement on their own volition
and consent. The ADR Act, indeed
contains very useful provisions
all aimed at illustrating the
fact that arbitration agreements
are voluntary decisions which
are entered into by consenting
persons or corporate entities.
That was what happened in the
instant case.
See sections 2 (1) and (2) and
135 of Act 798 which reiterate
the above positions with much
clarity.
See also cases on the point
which support the view that
error of law which is patent in
the decision of the High Court
is subject to the supervisory
jurisdiction of the Supreme
Court.
These cases are:-
1. Republic v High
Court, Accra Ex-parte Commission
on Human Rights and
Administrative Justice (Addo
Interested Party) [2003-2004]
SCGLR
2. Republic v High
Court, Accra Ex-parte Laryea
[1989-90] 2 GLR 99 per
Amua-Sekyi JSC at 101.
In the case of Republic v
Court of Appeal, Ex-parte Tsatsu
Tsikata [2005-2006] SCGLR 612,
the Court held as follows:-
“The clear thinking of this
court is that our supervisory
jurisdiction under article 132
of the 1992 Constitution, should
be exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors go to the
jurisdiction or are so plain
as to make the impugned decision
a nullity.” Emphasis
In view of the above decisions
and many others too numerous to
refer to here, it is our opinion
that the decision of the High
Court, Accra (Commercial
Division) dated 21st
December 2017 contains patent
errors of law on the face of the
record, and that these errors
also go to jurisdiction and must
therefore not be allowed to
stand. This ground of the
application also succeeds.
CONCLUSION
In the premises, we are of the
considered view that the
Applicants have established a
case for the grant of certiorari
to quash the decision of Samuel
Asiedu J, presiding over the
High Court, Accra (Commercial
Division) dated 21st
day of December 2017 in Suit No.
MISC./0184/17 intitutled
In the Matter of The High Court
Civil Procedure Rules, 2004
(Order 19 r 1 (2)) And in The
Matter of Section 40 of The ADR
Act, 2010 (Act 798) And in The
Matter of Arbitration Between AJ
FANJ Construction Limited (The
Interested Party Herein) And
WAQL, And In The Matter of An
Application For Joinder of
GHACEM (The Applicants) As A
Non-Signatory Party is
hereby ordered to be
brought up and same is
accordingly brought up and
quashed.
J. V. M. DOTSE
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y.APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
YONNI KULENDI WITH HIM DANIEL
SAGU OSEI FOR THE APPLICANT.
MICHAEL GYAN OWUSU WITH HIM
OSCAR FORDJOUR FOR THE
INTERESTED PARTY/RESPONDENT.
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