By an originating motion on notice filed on the 8^th February, 2016, the applicant seeks the leave of the court to enforce the arbitral award of the Federation of Cocoa Commerce, London, United Kingdom dated the 7^th September, 2015. According to the applicant the application is premised upon the inherent jurisdiction of the court.

The reasons for the application are detailed out in an accompanying affidavit. The respondent is opposed to the application as indicated in its affidavit in opposition. Upon the filing of the application, the court ordered counsel to file their written submissions which they did. The respondent has taken issue with the propriety of the application before the court.

The facts and the reasons for the application are captured in paragraphs 5, 6, 7, 8, 9, 14, 17 and 18 of the supporting affidavit. According to the applicants:

“5. That by a claim submitted on 15^th January 2014, the Applicant herein, the Claimant therein, a private limited liability company incorporated under the laws of The Netherlands, commenced arbitration proceedings against West African Mills Company Limited (WAMCO), a limited liability company incorporated under the laws of Ghana.

6. That the said Request for Arbitration was submitted to the Federation of Cocoa Commerce (FCC), in London, United Kingdom pursuant to an arbitration clause of the FCC Contract and Appeal Rules, which governed a number of contracts between the Parties, and subject to the Arbitration Act 1996 of England and Wales.

7. That the Applicant alleged that the West African Mills Company Limited, the Respondent herein, had breached the terms of the Agreement between the Parties.

8. That the Applicant claimed by the said Request for Arbitration, damages of GBP5, 701,695.88 and Euro 94,234.00.

9. That a hearing on Jurisdiction and Merits of the case took place in London, United Kingdom on 1^st October 2014.

14. That on the 7^th of September 2015, the Board of Appeal rendered its judgment in favour of the Applicant herein, Respondent therein and made the following orders:

i. The sum of GBP Sterling 2,048,770 (two million forty eight thousand and seven hundred and seventy British Pounds Sterling).

ii. Post Award interest calculated at one month LIBOR for Sterling + 2% per annum, from the date of default until the date of payment of this Award.

iii. The FCC and Arbitration fees under the Appeal calculated as GBP Sterling 4,585.00 (four thousand five hundred and eighty five British Pounds Sterling).

17. That the Respondents have not paid the Award contrary to the FCC Contract and Appeal Rules which stipulate that the Award should be paid within 28 consecutive days from the date of the Award, namely, the 7^th of September 2015.

18. That per the provisions of the Alternative Dispute Resolution Act, 2010 (Act 795), (sic) a person who seeks to enforce an arbitral award will first have to obtain leave of the High Court.”

In opposing the application the respondent says in paragraph 6 of the affidavit in opposition “that the application is incompetent and does not comply with the rules and the law regulating such applications” and that being so, “the application is misconceived and same ought not be entertained by the court.”

As already noted the application is said to be brought under the inherent jurisdiction of the court. It is however important to point out that, the High Court has no inherent jurisdiction to enforce a foreign arbitral award. Counsel did not refer the court to any authority to the effect that the High Court has an inherent jurisdiction to enforce such foreign arbitral awards. In the opinion of this court such foreign arbitral awards can only be enforced by the High Court on the strength of the provision of a statute; in this case, the Alternative Dispute Resolution Act, 2010, Act 798.

It is not surprising therefore that after stating that the application is brought upon the inherent jurisdiction of the court, the applicant turns round in both the supporting affidavit and the statement of case to also refer and rely on the Alternative Dispute Resolution Act.

The power of the High Court to recognise and enforce arbitral awards is specifically granted by section 57 of the Alternative Dispute Resolution Act, 2010, Act 798. The section provides that:

“57. Enforcement of the award

(1) An award made by an arbitrator pursuant to an arbitration agreement may, by leave of the High Court, be enforced in the same manner as a judgment or order of the Court to the same effect.

(2) Where leave is so given, judgment may be entered in terms of the award.

(3) Leave to enforce an award shall not be given where, or to the extent, that a person against whom the award is sought to be enforced shows that the arbitrator lacked substantive jurisdiction to make the award.”

Essentially, a person who desires to enforce an arbitral award requires the leave of the High Court before such award could be enforced. In order to obtain the leave of the court, an applicant has to show, to the satisfaction of the court, that there has been an arbitration between himself and the person against whom he seeks the enforcement. The applicant has to show that an award was made in his favour. The applicant has to show that the award was made pursuant to an arbitration agreement between himself and the respondent. Again the applicant is enjoined to show that the arbitrator had substantive jurisdiction to make the award. The applicant ought to show that the award does not suffer from any of the defects stated in section 58 of the Act.

As far as the enforcement of awards made in countries other than Ghana is concerned the applicant has to ensure compliance with section 59 of the Act which provides 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.

(2) A party who seeks to enforce a foreign award and who relies on a document which is not in the English Language shall produce a certified true translation of that document in English to the Court.

(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.”

Section 59 (1) recognizes three basic types of foreign awards that could be enforced by the High Court of Ghana. These are: first, awards made by competent authorities recognised to be so by the laws of the country in which the award was made. Here, the applicant has to show that there exists a reciprocal arrangement of mutual recognition of arbitral awards between the country where the award was made and Ghana. The second type of foreign arbitral award that may be enforced by the High Court of Ghana is an award made under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (The New York Convention). The third type of foreign arbitral award that may be enforced by the High Court of Ghana are awards made under any other International Convention on Arbitration ratified by the Parliament of Ghana.

A party who seeks to enforce any of the above stated foreign arbitral awards has to furnish the court with the following:

First, the original award. If the original award is not available the party may furnish the court with a copy of the original award which has been authenticated in accordance with the laws of the country where the award was made.

Second, the agreement pursuant to which the award was made. If the original agreement is not readily available, the applicant may furnish the court with either a copy of the original agreement which has been authenticated in accordance with the laws of the country where the award was made or which has been authenticated in any other manner sufficient as far as the laws of Ghana are concerned. In this connection one may have regard to the relevant provisions on authentication and on foreign official signatures in part IX of the Evidence Act, 1975, NRCD 323.

Next, the applicant has to satisfy the court that there is no appeal pending against the award in any court under the law applicable to the arbitration.

The applicant, in addition, has to satisfy the court that the award does not suffer from any of the defects mentioned in section 59(3).

The above requirements are mandatory statutory requirements without which a party may not be successful in seeking the recognition and the enforcement orders of the High Court in respect of an arbitral award. As stated in Boyefio vs. NTHC Properties Ltd [1996-1997] SCGLR 531

“Where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed”

Before this court it has been submitted on behalf of the respondent that the application is not properly before the court for the reason that the applicant has failed to exhibit the agreement pursuant to which the award was made. Indeed, the court has been satisfied that an award had been made in favour of the applicant. Authenticated copies of the award have been exhibited to the affidavit in support of the application. These have been marked as exhibits DATC1, DATC2 and DATC3. These exhibits satisfy the requirement set out under section 59(1) (d) (i) of Act 798.

The applicant has also satisfied the requirement of section 59(1) € of the Act that there is no appeal pending against the award in any court in the country where the award was made.

However, it is clear from the affidavit in support that the applicant has failed to furnish the court with the agreement pursuant to which the award was made or with a copy of the agreement duly authenticated in accordance with the law of the country in which the award was made or a copy of the agreement authenticated in any manner that satisfies the requirements of the laws of the Republic of Ghana.

The need for the applicant to furnish the court with the agreement pursuant to which the award was made is clearly stated in section 59 (1) (d) (ii). The agreement in pursuance of which the award was made is very important and particularly so in this case where the respondent is said to have challenged the jurisdiction of the arbitral tribunal or the arbitrators in this matter. NO person can purport to arbitrate upon any matter except the parties thereto have appointed that person to arbitrate upon their dispute. Thus section 12(1) of the Act provides that

“An arbitrator shall be a person appointed by the parties or by a person or institution acting under a power conferred by the parties and may be a person with the experience or qualification that the parties may agree on.”

Moreover, the arbitration agreement often defines and or determines the scope of the arbitrator’s jurisdiction and therefore it is necessary that in seeking to enforce an award, the applicant exhibits the agreement pursuant to which the award was made in order to assist the court to establish whether or not the award was properly made.

It has been submitted in response, on behalf of the applicant that, the Board of Appeal which allegedly heard the appeal against the award herein made findings of fact to the effect that there exist an arbitration agreement between the parties and that the insistence by the respondent on the production of an arbitration agreement is tantamount to an invitation to the court to re-open the arbitration findings. The court has been referred by counsel to pages 25 to 28 of exhibit DATC2.

In the opinion of the court, the reference in the arbitration award that the parties have an arbitration agreement does not absolve the applicant from complying with the express provision of the statute to produce the said arbitration agreement to the High Court in an application to enforce a foreign award.

The court wishes however to point out that, the requirement that an applicant produces the arbitration agreement or the agreement to submit disputes to arbitration is a requirement of the Alternative Dispute Resolution Act, 2010, Act 798 particularly section 59(1) (d) (ii) and it also constitutes a condition precedent to the enforcement of a foreign arbitral award. Indeed being an Act of Parliament no court has the power to excuse the applicant from its observance as held in the case of Republic vs. High Court, Kumasi; Ex parte Khoury [1991] 2 GLR 393 at 399 that “this court has a duty to enforce the statutes of the land”. See also Republic vs. High Court (Fast Track Division) Accra; Ex parte National Lottery Authority [2009] SCGLR 390 at 398 where Atuguba JSC pointed out that

“The courts have consistently insisted that it is their duty to observe and enforce the statutes of the land”

It has also been submitted on behalf of the applicant that one need not comply with all the requirements under section 59 before he succeeds in his application for the enforcement of a foreign award. It ought to be made clear that whether an applicant is applying to enforce an award made by a competent authority under the laws of the country in which the award was made and there exist a reciprocal arrangement between that country and Ghana or one is applying to enforce a foreign arbitral award made under the New York Convention of 1958 or an award made under any international convention on arbitration ratified by the Ghanaian Parliament; one needs to comply with sections 59 (1)(d) € as well as section 59 (2) and (3). That is to say that, the requirement for the applicant to produce the award as well as the agreement pursuant to which the award was made is a condition precedent to the grant of leave by the High Court to enforce the foreign arbitral award.

Even the New York Convention makes the requirement to produce the award as well as the arbitration agreement a condition precedent under the Convention when the enforcement of the award is sought. Article IV of the Convention provides that

“Article IV

(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.”

It therefore ought to be stated in no uncertain terms that a failure to comply fully with the mandatory requirements of section 59 of the Alternative Dispute Resolution Act, 2010, Act 798 is fatal to an application for leave to enforce a foreign arbitral award.

It has also been submitted on behalf of the respondent that the applicant has not complied with section 59 (1) (b) of Act 798. The said section 59(1)(b) enjoins an applicant seeking to enforce an arbitral award made by a competent authority under the laws of the country in which the award was made, to show that there exist between Ghana and the country where the award was made an arrangement of reciprocity by which arbitral awards made by competent authorities in Ghana are also recognised and enforceable in the country where the award sought to be enforced was made.

The applicant, in response, states in its submission that “at all times material to the instant application there is a bilateral agreement between the United Kingdom and Ghana for the protection and promotion of investments. This was concluded in 1989.” The applicant referred to article 15 of the 1989 Trade Agreement and submitted that the said agreement is still in force. Unfortunately for the applicant a copy of the said trade agreement has not been exhibited for the verification of the court. Indeed whether or not there exist a reciprocal arrangement by which awards made by competent authority in Ghana are also recognised in the country where the instant award was made, that is, the United Kingdom is a question of fact and therefore it is the duty of the applicant to prove that such a reciprocal arrangement exists. The proof is done by exhibiting a copy of the said arrangement. As already noted, the applicant failed to exhibit any such reciprocal arrangement. However, the court finds as a fact, through its own research, that in 1989 the Governments of Ghana and the United Kingdom entered into a bilateral agreement for the promotion and protection of investments by citizens of the countries in each other country. The agreement entered into force on the 25^th October, 1991.

The question is whether the 1989 bilateral agreement between the Governments of the United Kingdom and Ghana, referred to by the applicant, satisfies the requirement of section 59 (1) (b) of Act 798.

The court has critically examined the fifteen articled bilateral agreement in question and the court finds that it has got nothing to do with the recognition and enforcement of arbitral awards. It deals with the promotion and protection of investments by individuals and companies in each of the two countries in the other country. That is to say that, the 1989 bilateral trade agreement between Ghana and the United Kingdom seeks to promote and protect investments by Ghanaian companies and nationals in the United Kingdom just as it seeks to promote and protect investments by United Kingdom companies and nationals in Ghana.

Article 10 of the 1989 bilateral agreement deals with the settlement of disputes between an investor and a host State whiles article 11 deals with the settlement of disputes between the contracting parties. It implies therefore that one cannot rely on the said bilateral agreement to satisfy the condition stated in section 59(1) (b) of the Alternative Dispute Resolution Act, 2010, Act 798. What section 59 (1)(b) of Act 798 requires is not a bilateral trade agreement but rather an arrangement by which arbitral awards made by competent authorities in Ghana are also recognised and enforceable in the country from which the arbitral award sought to be enforced in Ghana was made.

It has also been submitted on behalf of the applicant that since Ghana and the United Kingdom are both contracting States to the New York Convention, they are subject to the reciprocal undertaking pursuant to article 1 of the New York Convention and that despite the existence of the Arbitration (Foreign Awards) Instrument 1963, LI. 261, the Alternative Dispute Resolution Act, 2010, Act 798 has expanded the restrictive definition given to ‘foreign awards’ in the LI. 261 such that the arbitral award subject matter of the application ought to be enforced. This submission was in re-action to a submission by counsel for the respondent that the United Kingdom is not one of the countries whose arbitral awards are recognised under LI. 261.

By article 1(1) thereof, the New York Convention “shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.” Thus by article 1(1), a contracting State is enjoined to recognise and enforce arbitral awards made by competent authorities in another contracting State.

Despite the provisions of article 1(1) of the Convention, contracting States have the right to decide at the time of ratification, accession or the signing of the Convention, on the basis of reciprocity, which country’s award it would recognise and enforce in its territory. Hence article 1(3) of the Convention provides that

“When signing, ratifying or acceding to this Convention, or notifying extension under Article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships whether contractual or not, which are considered as commercial under the national law of the State making such declaration.”

Thus, article 1(3) of the New York Convention grants liberty to each contracting State to decide whether or not it would recognise and enforce arbitral awards of any contracting State on the basis of reciprocity. Reciprocity here connotes mutual recognition and enforcement of arbitral awards made in the States party to such arrangement. It is on the strength of article 1(3) of the Convention and section 36(2) of the Arbitration Act, 1961, Act 38 that Ghana passed the Arbitration (Foreign Awards) Instrument 1963, LI. 261 in which the names of countries in which awards made would be recognised and enforced have been listed.

Indeed, LI. 261 of 1963 has been continued in force by section 137 of Act 798 despite the repeal of the Arbitration Act, Act 38 by Act 798. What it implies therefore is that once the United Kingdom has not been named as one of the countries in which arbitral awards made therein will be recognised and enforced, the applicant cannot apply for the enforcement of the award subject matter of the instant application which is said to have been made by the Board of Appeal of the Federation of Cocoa Commerce unless the applicant is able to show that there exist some sort of reciprocal arrangement between Ghana and the United Kingdom by which arbitral awards made in any of the two countries by competent authorities are mutually recognised and enforceable.

However, even if it could be argued that the award, subject matter of the instant application, could be recognised and enforced by virtue of the United Kingdom and Ghana being contracting States to the New York Convention, the applicant has failed to fulfill one of the conditions precedent under the Convention for the enforcement of such awards by the failure of the applicant to exhibit the agreement pursuant to which the award was made in line with the requirement of article IV of the Convention.

It has to be pointed out that the failure of the applicant to comply with section 59(1) (d) (ii) of the Alternative Dispute Resolution Act, 2010, Act 798 is not an irregularity amounting to a breach of the rules of court which could be excused under Order 81 of the High Court Rules of Civil procedure.

The failure to comply with section 59(1) (d) (ii) amounts to a breach of an Act of Parliament. Thus, whereas non-compliance with a rule of procedure may, in appropriate cases, be excused under Order 81, non-compliance with an Act of Parliament cannot be so excused.

Thus, in Republic vs. High Court, Accra; Ex parte Allgate Co. Ltd [2007-2008] SCGLR 1041the court expressing itself on the scope of Order 81 of the High Court Rules of Civil Procedure stated among others that:

“What is probably intended to be covered by Order 81 are irregularities, short of situations of want of jurisdiction or infringement of statutes other than the High Court Rules … Be that as it may, my interpretation of Order 81, r1 is that whilst it treats non-compliance with the High Court rules as not nullifying the non-complying proceedings, this rules does not apply to non-compliance which is so fundamental as to go to jurisdiction or which is in breach of a statute other than the civil procedure rules….To summarise then, where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (CI.47), such non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution or of a statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction”

For all the reasons stated above therefore, the court is firmly of the view that the applicant has failed to satisfy the conditions precedent to the grant of leave to enforce a foreign arbitral award. Consequently, the application is dismissed.