IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CIVIL APPEAL NO. 17 OF 1998
(Being High Court Civil Cause No. 2107
of 1996)
BETWEEN:
BAUMAN,
HINDE AND COMPANY
LTD...........................APPELLANT
- and -
DAVID
WHITEHEAD & SONS
(MW) LTD...................RESPONDENT
BEFORE: THE
HONOURABLE THE CHIEF JUSTICE
THE HONOURABLE MR JUSTICE
UNYOLO, JA
THE HONOURABLE MR JUSTICE
KALAILE, JA
Kasambara, Counsel, for the
Appellant
Sidik, Counsel, for the
Respondent
Selemani, Court Clerk
J U D G M E N T
Unyolo, JA
This is an appeal against the
Order of Mwaungulu, J made on 7th May 1998, dismissing the appellant’s
application to set aside the registration of a foreign arbitration award.
The pertinent facts lie in a
narrow compass, and are these. On 6th
December, 1996 the respondent brought an ex-parte application before the
Deputy Registrar for the registration of a foreign arbitration award
(hereinafter referred to as “the award”) made in the United Kingdom against the
appellant. The Deputy Registrar granted
the application and signed an order accordingly. In the order, the Deputy Registrar gave the appellant fourteen
days within which to apply to set aside the registration, if the appellant was
so minded. On receipt of the Order, the
appellant duly filed an application to set aside the registration. The appellant challenged the registration on
the ground that the award had no legal basis because there was no contract
between the appellant and the respondent.
It was also contended that in the absence of the contract, the
arbitrators had no jurisdiction to do the arbitration since the arbitrators
could only derive their jurisdiction from the contract or an arbitration
agreement. It was further contended
that the award was not enforceable in Malawi under the relevant laws. In reply, the respondent demurred to these
contentions.
After hearing counsel for both
parties, the learned Judge opined that the contentions made by the appellant
and the issues raised were prematurely brought up and could properly be
canvassed at the time when the respondent would be seeking to actually enforce
the award. The learned Judge,
therefore, declined to set aside the registration. It is on the basis of that decision that the appellant appeals to
this Court. Two grounds of appeal were
proferred as follows:
(a) The learned Judge erred in law in holding
that the arbitration award dated 6th day of August 1996 be registered as a
judgment in the Republic of Malawi; and
(b) The learned Judge failed to direct himself
that the arbitrators had no jurisdiction to arbitrate in the matter and to make
the said award.
There is a preliminary matter
which we would like to comment on before tackling the substantive submissions
made by counsel in the appeal. It is
noted that the respondent brought the application for the registration
of the award pursuant to sections 27 and 37 of the
Arbitration Act. Section 27 comes under
the heading “Enforcement of Awards”, and provides:
“An award on an arbitration
agreement may, by leave of the court, be enforced in the same manner as a
judgment or order to the same effect and where leave is so given, judgment may
be entered in terms of the award.”
On the other hand, section 37, which comes under the
heading “Enforcement of Certain Foreign Awards”, provides:
“(1) A foreign award shall, subject to this Part, be enforceable in
Malawi either by action or in the same manner as the award of an arbitrator is
enforceable by virtue of section 27.
(2) Any foreign award which would be enforceable under this Part
shall be treated as binding for all purposes on the persons as between whom it
was made and may accordingly be relied on by any of those persons by way of
defence, set off or otherwise in any legal proceedings in Malawi and any
references in this Part to enforce a foreign award shall be construed as
including references to relying on an award.”
Clearly, the two provisions
deal with the issue of enforcement of arbitration awards as opposed to the
issue of the registration of the same, which is essentially another
matter. Reading the Arbitration Act
through, there appears to be no provision in there which specifically deals
with the question of registration of foreign arbitration awards.
The learned Judge in the Court
below stated that the registration of foreign judgments, including foreign
arbitration awards, in so far as the United Kingdom was concerned, is covered
by the British and Colonial Judgments Ordinance, Cap 14, Laws of
Nyasaland. The learned Judge stated
that although this Ordinance has been omitted from the current volumes of the
Laws of Malawi, it is still part of the laws of this country by virtue of
section 200 of the Constitution. While
on this point, it is to be noted that this statute later came to be referred to
“The British and Commonwealth Judgments Act”. Section 3 of the said Act provides:
“Where a judgment has been
obtained in a superior court in the United Kingdom, the judgment creditor may
apply to the High Court at any time within twelve months after the date of the
judgment or such longer period as may be allowed by the High Court, to have the
judgment registered in the High Court and on any such application, the High
Court may, if in all the circumstances of the case, it is just and convenient
that the judgment should be enforced in the Protectorate and subject to the
provisions of this section order the judgment to be registered accordingly.
We have indicated that a
foreign judgment includes a foreign arbitration award. This comes out from section 2 of the Act,
which provides:
“Judgment means any judgment
or order given or made by a court in any civil proceedings, whether before or
after the passing of this Act whereby any sum of money is made payable and
includes an award in proceedings on an arbitration if the award has, in
pursuance of the law in force in the place where it was made, become
enforceable in the same manner as a judgment given by a court in that
place.” (The underlining is supplied).
In short then, a foreign
judgment or a foreign arbitration award made in the United Kingdom has to be
registered in the High Court. It is
registered under the provisions of the British and Commonwealth Judgments
Act. The effect of such registration is
to confer on the judgment or award the same force and effect, and to render it
subject to the same control, as if it had originally been given in the
registering court. Observably, section
4 of the Act does spell out the circumstances under which the court should
decline to order registration of a foreign judgment or arbitration award.
This brings us to the question
of how a foreign arbitration award may be enforced. The answer to this question is to be found in sections 27 and 37
of the Arbitration Act which we have just alluded to above. To put it briefly, the two sections provide
that a foreign arbitration award may be enforced either by an action or with
the leave of the court in the same manner as a local judgment to the same
effect, and that where leave is so given, judgment may be entered in terms of
the award. Execution of the judgment
would then follow the usual processes.
It is perhaps pertinent to point out here that whichever procedure the
foreign judgment creditor takes, whether by action or simply by leave of the
court, section 38 is crucial. That
section does set out the conditions for enforcement for foreign awards.
We now turn to the core issues
argued in the appeal. Like in the Court
below, the appellant in this Court submitted that no contract was concluded
between the parties in this matter. It
was submitted that the parties were
still in the process of discussing the contract, but had not gone beyond
that stage when the respondent sent a formal contract document, Exhibit MT4,
for execution, which the appellant refused to sign. It was argued that in the absence of an agreement between the
parties, there was also no agreement for arbitration and that the arbitrators
did not have jurisdiction to conduct the arbitration proceedings, since their
jurisdiction could only emanate from the agreement between the parties. It was urged that the registration of the
award could not be sustained in the circumstances.
On the other hand, counsel for
the respondent submitted that although the appellant did not execute the said
contract document by signing it, an agreement had somehow been concluded by the
parties. He submitted that the
arbitrators derived jurisdiction from that agreement. Counsel also pointed out that the appellant was requested to
appoint its own arbitrator, but voluntarily decided not to appoint one or participate
in the arbitration proceedings. He
submitted that the appellant cannot, therefore, be heard to complain against
the award.
We have carefully considered
the arguments. The question of whether
or not the arbitrators acted without jurisdiction, is a crucial one. Section 4 of the British and Commonwealth
Judgments Act mentioned above stipulates that no foreign judgment or foreign
arbitration award shall be ordered to be registered if the original court or
arbitrators acted without jurisdiction.
It is noted that the
arbitrators in the instant case did consider the question whether they had
jurisdiction to determine the dispute between the parties. They came to the conclusion that they had,
and proceeded to determine the dispute accordingly.
We have looked at the various
faxes and telexes, Exhibits MT1 - MT10, that passed between the appellant and
the respondent during the months of July, August and September 1995, relative
to the disputed agreement. The notes
that are scribbled on these documents are particularly illuminating. Having regard to the information contained
in the said documents and considering the total facts of the case, we are of
the view that the conclusion reached by the arbitrators that the parties
reached an agreement in this matter is inescapable. It is also to be noted that the respondent sent the formal
contract document to the appellant in July 1995, and it was only two months
later, in September, when the appellant wrote denying the existence of the
agreement. Surely, if no agreement had
been reached, one would expect the appellant to have indicated its denial much
earlier on, indeed, immediately the document was received. Actually, it appears that the appellant’s
problem was funds really. All in all,
we do not think that the arbitrators’ finding that the parties reached an
agreement can be assailed.
This brings us next to the
question of the arbitrators’ jurisdiction.
The first observation to be made is that the contract document expressly
provided for the settlement of any disputes arising out of the agreement by
arbitration. It is also beyond
controversy that the arbitrators were appointed on the basis and by virtue of the said contract. In the result, their authority and
jurisdiction to determine the dispute cannot successfully be impugned.
For the foregoing reasons, the
registration of the award cannot be faulted and the appeal must therefore fail,
and it is dismissed with costs.
DELIVERED in open Court this
17th day of April 2000, at Blantyre.
Sgd ....................................................
R A BANDA, CJ
Sgd ....................................................
L E UNYOLO, JA
Sgd ....................................................
J B KALAILE, JA