1. I have considered the Chamber Summons Application dated 21st August, 2023 together with the supporting affidavit sworn on even date and the replying affidavit sworn in opposition to the same dated 17th October, 2023 together with the rival submissions made by the parties, and applicable law.
2. The Applicant is seeking a stay of court proceedings pursuant to section 6 of the Arbitration Act.
3. Section 6 of the Act provides as follows:
Stay of legal proceedings
(1)
A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—
(a)
that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b)
that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2)
Proceedings before the court shall not be continued after an Application under subsection (1) has been made and the matter remains undetermined.
(3)
If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.
4. Based on the above, it is evident to me that the appropriate inquiry requires a consideration of the following factors:
a. Is there a valid arbitration agreement between the parties?
b. Was the Application seeking to refer the matter to arbitration taken as the first step in the legal proceedings?
c. Has the Applicant acknowledged the claim, and by doing so, waived its right to continue with the arbitral process?
d. Does the subject matter of the dispute fall within the jurisdiction of the arbitral tribunal?
5. I take note that the language of Section 6 of the Act is couched in mandatory terms, the implication being, that unless there is non- compliance by the Applicant in respect of the above considerations, this court is obliged to grant a stay of proceedings.
6. The rationale for the above includes the principle that in such a scenario, the parties have chosen to resolve their dispute by way of arbitration, and have agreed on the applicable process, a principle referred to as party autonomy; and further, that a court ought not re write the contract between the parties.
7. I now turn to the criteria listed above. On the first ground, I have looked at clause 26.3 of the Business Account Opening Agreement, I note that the same clearly states: “if you give us personal information about or on behalf of another person”, it then goes on to stipulate, that in such a scenario, a dispute in relation to that issue shall be resolved by way of arbitration. To my mind, the said arbitration agreement is specific and limited to the matters expressly stipulated, and the nature of such a dispute between the parties. Specifically matters concerning the distribution of personal information.
8. The Respondent submitted, and I am persuaded, that the present dispute relates to freezing of its accounts, and withdrawal of funds. I do not think that the two issues are related. One concerns information and distribution, while the other concerns funds in the Applicant’s account, and the issue relates to whether the same was irregularly frozen or withdrawn.
9. Having looked that the entire agreement, I note the presence of a further arbitration agreement at clause 34. Pressed with the question of whether there exists a further arbitration or dispute resolution clause, counsel for the Applicant lost contact with the court, and did not return or make any submissions in relation to the same. Accordingly, no submissions were made in relation to the applicability of clause 34 of the agreement.
10. In any event, and out of caution, I have considered the applicability of clause 34. Having done so, I am of the view that the same may, on balance, be inoperable. I say so because while the clause refers general disputes to arbitration, it is vague and lacks details. The clause does not contain adequate information in relation to how the tribunal shall be composed or provide details of the procedure to be adopted. Such details ought to include, for example: the institutional rules applicable, appointment procedure, relevant expertise required in relation to a suitable candidate for appointment, and any other necessary matters. In the absence of the same, I do not think the said clauses, as presently drafted, may be construed as either operable, or enforceable in respect of the present dispute between the parties.
11. Based on the reasons set out above, I find that the first part of the test stated above has not been met. Given the said finding, the remaining issues are therefore moot. Accordingly, this court finds that it would not be appropriate to stay the present proceedings in favour of a referral.
12. The upshot is that the Application is without merit and the same is dismissed with costs.