Shah v. The Moshi Universal Stores Ltd. Civ. Case 1-A-66; 6/4/71; Brambe J.

 

Shah v. The Moshi Universal Stores Ltd. Civ. Case 1-A-66; 6/4/71; Brambe J.

This is a motion to set aside an award made by an Arbitrator. The applicant was the defendant in a suit for money owed on a cheque. His defence had been that the cheque was obtained by fraud; and/or that it was materially altered without his consent; and that there was no consideration as a result of which he avoided it. The application to set aside the award was made on the grounds of misconduct b the Arbitrator namely that. (a) he erred in not allowing the parties to be represented by their respective advocates; (b) he erred in making an award on the basis that the High Court had “referred all the matters in difference between the parties to me as sole Arbitrator”, whereas  the High Court had “referred all the matters in difference between the parties to me as sole Arbitrator”, whereas the High Court had referred to him only “the difference between the parties as set out in the plaint and Defence.”

            Held: [Citing from the 17^th Edition of Russel on Arbitration p. 168] (1) “It goes on to cite the case of F. E. Hookway & Co. Ltd. v. Alfred Isaacs & Sons &Others (1954) Lloyd’s Ref. 491 in which an award was set aside because an Appeals Committee refused to allow legal representation among other reasons. As I understand the law it is possible for parties to agree not to follow the ordinary rules but when there is no such agreement an arbitrator is bound by the ordinary rules, which have been established to secure that justice is done between parties.” Legal representation ought to have been allowed. (2) “The arbitrator took into consideration all the differences between the parties and made an award, not in the claim brought to court but on an alleged agreement.  I cannot say from the tenure of the submission that this was the intention of the parties and so the arbitrator exceeded his jurisdiction, since the award must be within the terms of the submission.” [Citing ATKISNON v. JONES (1943) ENGLISH & EMPIRE DIGEST VOL. 2 P. 166]. (3) Award set aside.