IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
SHIKARI LIMITED - (Plaintiff)
THE BROAD BAND HOME LIMITED - (Defendant)
DATE: 26 TH SEPTEMBER, 2018
CIVIL APPEAL NO: MISC/0128/2018
JUDGES: SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT
K.O. BOAKYE ESQ., FOR BENJAMIN KPAKPO SACKER ESQ., FOR THE APPLICANT
MOTHER TERESAH BREW ESQ., FOR KIZITO BEYUO ESQ., FOR THE RESPONDENT
By an originating motion on notice filed on the 16th August 2018, the applicant, Shikari Limited, a limited liability company registered under the laws of Mauritius, seeks an order of this court for leave to enforce a final award dated the 22nd day of June 2018, made under the auspices of the London Court of International Arbitration, against the respondent, the Broad Band Home Limited, a company registered under the laws of the Republic of Ghana. The motion paper is supported by an affidavit and other exhibits. The respondent is opposed to the application as shown by its affidavit in opposition.
The applicant says in paragraph 7, 8 and 9 of the supporting affidavit that:
7. On April 28, 2014, the Applicant and Respondent entered into an agreement by which the Applicant agreed, among other things, to arrange and provide a loan to the Respondent (“the Facilitation Agreement”). Attached and Marked as Exhibit A is the Facilitation Agreement.
8. Pursuant to the Facilitation Agreement, the Applicant further entered into a loan agreement with the Respondent, in which the Applicant agreed to lend to the respondent a minimum amount of USD2, 500,000 plus up to a further amount of USD7, 500,000 to enable Respondent extract itself from its existing financing arrangements with their bankers at the time, UT Bank (the “Loan Agreement”). Attached as Exhibit B is the Loan Agreement.
9. Under the Loan Agreement, the Applicant and the Respondent agreed that in the event of dispute they will subject themselves to arbitration under the London Court of International Arbitration in London for the resolution of disputes.
Indeed, the applicant exhibited exhibit A and B, the Facilitation Agreement and the Loan Agreement respectively.
The applicant says that the respondent company defaulted on its obligations under the agreements as a result of which the arbitration clause under the agreements was invoked whereupon the parties proceeded to arbitration in London after which the sole arbitrator made an award to the effect that the respondent shall pay to the applicant:
i. Under the Loan Agreement, the principal sums of US$5,000,000.00 together with accrued interest in the sum of US$1,181,002.14 together US$6,181,002.14;
ii. Under the Facilitation Agreement the principal sums of US$125,000.00 and US$1,500,000.00 with accrued interest in the sums of US$19,367.80 and US$248,540.44 altogether US$1,892,908.24;
iii. Interest from date of the Award on the US dollar sums due at the rate of 12% per annum; and
iv. Arbitration and legal costs in the sum of GBP200, 000.00
It is the above award which the applicant prays this court for leave to enforce in Ghana against the respondent.
The respondent says that the applicant has not proved that the award which it has exhibited, as in exhibit C herein, is authentic and that the applicant has also not shown that the country in which the award was made, that is, the United Kingdom, has a Reciprocity Agreement with Ghana as far as the recognition and enforcement of foreign arbitral awards made in these two countries are concerned. The respondent also argued that whether or not the United Kingdom is a party to the New York Convention of 1958 is an issue of fact and that the applicant has not shown evidence that the United Kingdom has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Let it be placed on record that subsequently, the applicant filed a supplementary affidavit on the 11th September 2018 to which it annexed a document showing that on the 24th September 1975, the United Kingdom acceded to the Convention just as Ghana has done on the 9th April 1968. Be that as it may, however, the court wishes to point out that this issue of fact is one that the court is entitled to take judicial notice of under section 9 (1)(2)(3) of the Evidence Act, 1975, NRCD 323 which provides that:
9. Judicial notice
(1) This section governs the taking of judicial notice of facts in issue or facts which are relevant to facts in issue.
(2) Judicial notice can be taken only of facts which are
(a) so generally known within the territorial jurisdiction of the Court, or
(b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the facts are not subject to reasonable dispute.
(3) Judicial notice may be taken whether requested or not.
Thus, in Mensah vs. The republic  GLR 523, the court pointed out that:
“Judicial notice referred to facts which a judge could be called upon to receive and act upon either from his general knowledge of them or from inquiries to be made by himself for his own information from sources to which it was proper for him to refer. To take judicial notice of a fact, however, the judge had to be convinced that the matter was so notorious as not to be the subject of dispute among reasonable men, or that the matter was capable of immediate accurate demonstration by readily accessible sources of indisputable accuracy.”
This court is therefore satisfied even on the exhibit attached to the applicant’s supplementary affidavit that the United Kingdom has ratified and or acceded to the New York Convention, 1958 and is therefore a party to the New Convention, 1958 and that in appropriate cases, awards made in the United Kingdom by a competent institution ought to be recognized and enforced in Ghana.
Section 59 of the Alternative Dispute Resolution Act, 2010, Act 798 sets out the condition to be satisfied by a person who seeks to enforce an award made in a country other than Ghana. It states that:
59. Enforcement of foreign awards
(1) The High Court shall enforce a foreign arbitral award if it is satisfied that
(a) the award was made by a competent authority under the laws of the country in which the award was made;
(b) a reciprocal arrangement exists between the Republic of Ghana and the country in which the award was made; or
(c) the award was made under the international Convention specified in the First Schedule to this Act or under any other international convention on arbitration ratified by Parliament; and
(d) the party that seeks to enforce the award has produced
(i) the original award or has produced a copy of the award authenticated in the manner prescribed by the law of the country in which it was made;
(ii) the agreement pursuant to which the award was made or a copy of it duly authenticated in the manner prescribed by the law of the country in which it was made or in any other manner as may be sufficient according to the laws of the Republic of Ghana; and
(e) there is no appeal pending against the award in any court under the law applicable to the arbitration.
Thus, under Act 798 an applicant seeking to enforce a foreign arbitral award may either show to the satisfaction of the court that (i) an award has been made (ii) the authority that made the award is competent by the laws of the country where it was made (iii) that there is an arrangement of reciprocity between Ghana and the country in which the award was made by which awards made in that country or in Ghana are respectively recognized and enforceable in each other country.
The applicant may, on the other hand, satisfy the court (iv) that the award was made under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). Where the applicant comes under the New York Convention, then, that applicant does not necessarily have to satisfy the requirements indicated under (i), (ii) and (iii) above because those conditions are subsumed, to some extent, under the New York Convention of 1958. These are the first set of conditions to be satisfied by the applicant. Whether an applicant makes his application for leave to enforce the foreign arbitral award under the Reciprocity Agreement or under the New York Convention, the Alternative Dispute Resolution Act provides at section 59(1)(d) that the said applicant must, in addition, produce to the court (a) the original award or a copy of the award authenticated in the manner prescribed by the law of the country in which it was made (b) the original agreement by which the parties resolved to submit their dispute to arbitration. This may be an arbitral agreement standing on its own or may be contained, as a clause, in the contract about which the dispute arose which led to the arbitration proceedings or a copy of this arbitral agreement authenticated in a manner prescribed by the country where that arbitral agreement was made or as the laws of Ghana permit. These are the second set of conditions to be satisfied by the applicant.
The third condition which an applicant for enforcement of a foreign award ought to satisfy is that the said applicant must show that there is no appeal pending in any court of competent jurisdiction in the country where the award was made. This can be found in section 59(1) (e) of Act 798. There is yet a fourth set of conditions which the applicant ought to surmount. These are conditions which may negatively affect the validity of the award made. These conditions are stated in section 59 of the Act which provides that:
(3) Despite subsection (1) the court shall not enforce a foreign award if
(a) the award has been annulled in the country in which it was made;
(b) the party against whom the award is invoked was not given sufficient notice to enable the party present the party’s case;
(c) a party, lacking legal capacity, was not properly represented;
(d) the award does not deal with the issues submitted to arbitration; or
(e) the award contains a decision beyond the scope of the matters submitted for arbitration.
The conditions stated in section 59(3) provide ready-made defences to the respondent. As far as the instant matter is concerned, it ought to be pointed out that the respondent herein is not alleging any of the negative conditions stated in section 59(3) of Act 798 against the applicant. Instead, what the respondent alleges against the applicant is that the applicant has not complied with the conditions mentioned in section 59(1) (b) of the Alternative Dispute Resolution Act, 2010, Act 798. Section 59(1) of Act 798 requires the applicant to satisfy the court that a reciprocal arrangement exists between Ghana and the country in which the arbitration took place and where the award was made. The undisputed fact on record is that the arbitration took place in London and particularly before the London Court of International Arbitration. It therefore implies that the applicant is required to show to the satisfaction of the court that there exist a reciprocal arrangement between Ghana and the United Kingdom whose capital is London.
This burden requires the applicant to prove facts showing the arrangement of reciprocity between Ghana and the United Kingdom in accordance with section 14 and 17 of the Evidence Act, 1975, NRCD 323 which provides that:
14. Allocation of burden of persuasion
Except as otherwise provided by law, unless 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 that party is asserting.
17. Allocation of burden of producing evidence Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
In Bank of West Africa Ltd vs. Ackun  1 GLR 176, the above provisions of the law was explained by the court when it stated that:
“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof.”
Again, in Ababio vs. Akwasi III [1994-1995] GBR 774 the court pointed out that:
“A party whose pleading raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the [other party] when [such a party] had adduced evidence to establish the claim”
The court has painstakingly gone through the supporting affidavit as well as the supplementary affidavit attached to the application and the court wishes to point out that there is not even a single paragraph which makes allusion to any arrangement of reciprocity between Ghana and the United Kingdom with regards to the recognition and the enforcement of arbitral awards made in each other’s country. It needs to be stated that the duty to satisfy the court about the existence of such reciprocal arrangement is not just a mere procedural requirement but a substantive one at that and that the court cannot gloss over the failure to satisfy itself of the existence of such arrangement because where a statute grants a right or remedy and provides the procedure by which such a right or remedy could be ventilated it is only by compliance with that procedure that the said right or remedy could be enforced. See Boyefio v NTHC Properties Ltd [1997-98] 1 GLR 768.
Counsel for the respondent referred the court to LI 1575 and submitted that it does not bear the name of the United Kingdom as one of the countries listed therein. LI 1575 is the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575). The LI 1575 essentially applies to the recognition and enforcement in Ghana of judgments and maintenance orders made in some countries other than Ghana. For instance, section 1 of LI1575 provides that:
Section 1— Application of Sub-Part I of Part V of Act 459.
A country specified in column 1 of the First Schedule to this Instrument is by this Instrument declared to be a country to which Sub-Part I of Part V of the Courts Act, 1993 (Act 459), (which Sub-Part relates to the enforcement in Ghana of the judgments of the superior courts of other countries on the basis of reciprocity) applies.
Indeed, a closer look at column 1 of the First Schedule to this Instrument will show that the United Kingdom is mentioned as one of the countries whose superior courts’ judgment is recognized and enforceable in Ghana. However, it ought to be pointed out that LI 1575 applies to judgments of the superior courts of the countries stated therein as well as maintenance orders of the specified countries in the Legislative Instrument and not arbitral awards by institutions other than the superior courts. It is refreshing to note that the definition section of the Courts Act, 1993, Act 459 (as amended), pursuant to which Legislative Instrument 1575 was enacted does not define judgments to include awards made by Arbitral Tribunals. Section 91(1) of the Courts Act (as amended) Act 459 states in relation to judgment that:
“Judgment” means a judgment or an order given or made by a Court in civil proceedings, or a judgment or an order given or made by a Court in criminal proceedings, for the payment of a sum of money in respect of compensation or damages to an injured party”
The court will therefore hold that despite the fact that the United Kingdom is mentioned as one of the countries whose superior courts’ judgment is enforceable in Ghana, the matter before this court relates to the enforcement of a foreign arbitral award and not the judgment of the superior court of the United Kingdom. The applicant herein can, therefore, not seek refuge under LI 1575. It has been submitted on behalf of the respondent that the award placed before the court is not authentic. The first set of conditions which the court has listed above, particularly section 59(1) (d) of the Act 798 requires the applicant to produce before the court, the original award and the original agreement pursuant to which the award was made. In the absence of the original award and the original agreement pursuant to which the award was made, the applicant may produce to the court a copy of the award.
However, where the applicant produces a copy of the award instead of the original award thereof, then the copy so produced must be authenticated in accordance with the rules or the law governing authentication as pertains in the country where the award was made; in this case, the laws of the United Kingdom. In the same vein, where the applicant produces a copy of the arbitral agreement pursuant to which the award was made, then, the said copy must be authenticated in accordance with the rules and the laws governing authentication as exists in the country where the said arbitral agreement was made or in accordance with the rules and laws governing authentication as exists in Ghana. So, whereas a copy of the award ought to be authenticated in accordance with the rules or laws on authentication as pertains in the country where the award was made, in the case of the arbitral agreement pursuant to which the award was made, the authentication could either be made in accordance with the laws on authentication pertaining in the country where the arbitral agreement was made or in accordance with the laws on authentication as exist in Ghana. It is important for this court to point out again that the supporting affidavits do not disclose the country in which the arbitral agreement was made.
It also ought to be mentioned that the arbitral agreements are contained in the Facilitation Agreement, exhibit A herein, as well as the Loan Agreement, exhibit B herein. The Arbitral Agreements are delineated as clauses in the two contracts. It is significant to recognize that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) reference to which the applicant has made in paragraph 17 of its supporting affidavit as well as paragraph 3 of the supplementary affidavit in support does not derogate from the requirement of authentication as stated in the Alternative Dispute Resolution Act, 2010, Act 798. On the contrary, the New York Convention even takes the requirement for authentication a step further by insisting that even the original award must be authenticated. Article IV of the New York Convention provides that:
1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original agreement referred to in Article II or a duly certified copy thereof.
Article III of the New York Convention also recognizes the need for the applicant to observe the rules laid down in the country where the enforcement of the foreign award is sought. It provides that:
Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
As already pointed out, the applicant exhibited the Facilitation Agreement, exhibit A herein, as well as the Loan Agreement, exhibit B herein, both of which contain the arbitral agreement otherwise known as the arbitration clause. The court has examined these exhibits and the court finds that the two agreements are both not the original but photocopies and therefore requires authentication in accordance with the law as set out hereinbefore.
The need for authentication becomes even more paramount considering that both exhibits A and B have not been executed by the respondent company. Again exhibit C, the award, whose enforcement the applicant seeks, is a photocopy and not the original and, for that matter, it also requires authentication in accordance with the laws of the United Kingdom. Since the applicant has failed to satisfy the court that the exhibits have been authenticated in accordance with the rules governing authentication in the United Kingdom and the country where the Arbitral Agreement was made, this court is entitled to presume that those laws are the same as the laws of Ghana. Section 40 of the Evidence Act, 1975, NRCD 323 provides that
40. Foreign law
The law of a foreign country is presumed to be the same as the law of Ghana.
Section 40 of NRCD 323 is a rebuttable presumption but, as pointed out, there is no evidence in rebuttal.
Counsel for the applicant has argued that since the award, exhibit C herein, bears the signature of the arbitrator; the court must accept it and enforce the award. This argument ignores the fact that it is the authenticity of the said signature and for that matter of the whole award that is in issue. Counsel also submitted that since the respondent does not dispute the signature, the court can go ahead and enforce the award.
Section 161 of the Evidence Act, 1975, NRCD 323 provides the guidelines for determining the authenticity of signatures affixed on foreign documents. It states that:
161. Foreign official signatures
(1) A signature is presumed to be genuine and authorised if it purports to be the signature, affixed in an official capacity, of an official of an international public entity or a State or a public entity in a State recognised by Ghana and the writing to which the signature is affixed is accompanied by a certification of the genuineness of the signature and official position of the person who executed the writing.
(2) The certification must be signed and sealed by a diplomatic agent of Ghana or of a Commonwealth country who is assigned or accredited to that country.
(3)If reasonable opportunity is given to the parties to investigate the authenticity of a foreign official signature, the Court may, for good cause shown, order that it be treated as presumptively authentic without a certification.
In Juxon-Smith vs. KLM Dutch Airlines [2005-2006] SCGLR 438, the Supreme Court had the occasion to explain section 161 of NRCD 323. At page 451 of the report, the court stated that:
The ways by which foreign official documents may pass this mandatory preliminary test are spelt out under section 161. As a general rule, there is no presumption of authenticity and authorization of a foreign signature unless the following conditions are satisfied: (i) the signature is that of an official of an international public entity, or a State recongnised by Ghana, or a public entity in a State recongnised by Ghana; (ii) the writing to which the signature is affixed is accompanied by a signed and sealed certificate of the genuineness of the signature and official position of the person who signed it; and (iii) the certification and authorization is signed and delivered by a diplomatic agent of Ghana or of a Commonwealth country who is assigned or accredited to that country, Ghana or a Commonwealth country. The only exception to this general rule falls under section 161(3), where the court is permitted to apply what is known as the authenticating presumption rule. Under this rule, power is reserved in the court, to presume authenticity. Thus, in those exceptionally difficult circumstance where for some good reason, as for example, within the time available, it would be virtually impossible to obtain the proper legal certification, but reasonable opportunity has been given to all the parties to investigate the authenticity of the foreign signature, the court may order that it be treated as presumptively authentic.
In answer to the argument by counsel for the applicant that the respondent has not challenged or disputed the signature of the sole arbitrator the Supreme Court answered at page 450 that:
No foreign official document is admissible in evidence without authentication. Also, it is the judge who makes a preliminary determination of authenticity. It follows that where a foreign official document is sought to be tendered, irrespective of whether or not any objection to authenticity has been raised, it is the duty of the court to determine this critical question (of authenticity) and proceed to admit the document only when it has been satisfied, provided, of course, all other hurdles to admission have also been cleared.
In view of the above findings and the law as espoused above, this court holds that since the applicant has failed to show that there exist a reciprocal arrangement for the recognition and enforcement of foreign arbitral awards between the United Kingdom and Ghana, the award cannot be enforced by the courts of Ghana under the Reciprocity Arrangement as stated under section 59 (1) (a) (b) of Act. One therefore ought to turn to the New York Convention of 1958. The court also holds that since the copy of the award, exhibit C herein, as well as the copies of the Arbitral Agreements contained in exhibits A and B herein, have not been authenticated in accordance with law, the award cannot be enforced, even, under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). The court will therefore dismiss the application.
Costs of GH¢2,000.00 to the Respondent against the Applicant.