IN THE SUPERIOR COURTS OF THE GAMBIA IN THE HIGH COURT OF THE GAMBIA HC/439/17MFI24/F4 } BETWEEN © BP INVESTMENT GROUP FZE .. PLAINTIFFIRESPONDENTS. AND SOCIAL SECURITY AND DEFENDANT/ APPLICANTS HOUSING FINANCE CORPORATION 7" December, 2017. Before Hon, Justice Z. Jawara Alami Parties: present Counsel: A. Bensouda and M.W. Jallow as Counsel for the Applicant C.E, Mene and $.Taal as Counsel for the Respondent RULING This is a Motion on Notice Pursuant to Section 12 of the Alternative Dispute Resolution Act 2005 filed by counsel for the Applicant/Defendant dated and filed 22" November 2017 seeking for the following prayers: 1. ‘That this action be stayed and that the dispute between the parties be referred to arbitration in accordance with Clause VI(2) of the lease agreement dated the 30" October 2013 and Vi(2) of the sublease agreement dated the 9” August 2016 between the parties 2. Such further and other order as the court shall deem fit to make under circumstances. ‘The motion was supported by an 8 paragraphs affidavit sworn to by one Saihou Singhateh and attached to the affidavit were two exhibits marked SS1 and $S2. Counsel aaa “JUSTICE Z.JAWARA ALAM BP INVESTMENT GROUP FZE V SOCIAL SECURTY AND HOUSING FINANCE CORPORATIONCounsel for the Applicant contends in his Affidavit in support that the matters complained of by the Respondent/Piaintiff in this suit are in respect of a lease agreement and a sublease agreement executed by the parties on 30" October 2013 and 9" August 2016 respectively. Counsel's application was made pursuant to Section 12 of the ADR Act 2005 and that the claim arose directly from an agreement between the parties that is subject to an arbitration clause. Exhibit SS1 is the lease agreement between Social Security and Housing Finance Corporation(SSHFC) and BP Investment Group FZE regarding the Ocean Bay Hotel. Exhibit SS2 is the agreement referred to as the “sub lease” between the same parties regarding the Sun Beach Hotel. Counsel contends that both agreements contain in Article 6, a Dispute Resolution Clause in which the parties agreed to submit any dispute arising out of the said Agreements to Arbitration. Counsel submitted that by virtue of Section 12 of the ADR Act 2005, this Hon. Court is obliged to stay the proceedings and refer the parties to arbitration as agreed by the parties. The Affidavit of opposition filed on 29/11/17 states in one of the paragraphs that the Applicant is not entitled to a stay of proceedings because they have already taken steps in the proceedings by fling an affidavit of opposition. Counsel for the applicant argues that Section 12 of the ADR Act 2005 state that the application for stay should be made not later than when submitting statements. A statement means pleadings and in this cases a defence and not an Affidavit in Opposition. The application for stay was fled on the same day, 12" November at 12.21pm as Affidavit in opposition and therefore still complied with the requirements under Section 12, Counsel for the applicant submitted that as a consequence of the 1* prayer, under the second prayer, he prays that the interim injunction granted on 3" November 2017 by this Hon, Court should be discharged for reasons covered by Section 13(2) of the ADR Act 2005. Counsel contended that if the court determines that it has no jurisdiction and that an arbitral tribunal has jurisdiction, then as a consequence, there can be no inunction pending ® the hearing and determination of the suit. That there was an arbitration Agreement and Counsel for the Respondent/Plaintiff chose to ignore it and filed a suit and sought an interim injunction (On the issue of the application to discharge the interim injunction made by the Applicant under the omnibus prayer, counsel for the respondent argued that such a prayer can only be made by motion pursuant to Order 25 Rule 2 Rules of the High Court, Second ‘Schedule and that itis not an ancillary prayer. In the event that the court decides counsel can raise such a prayer under the omnibus prayer, reference was made to the High Court ‘unreported case of Musa Jallow trading as MS Engineering services v Netherlands Airport Consultants and another HG 727/13/co/164/d2(2014) in which a second specific prayer was asked for the interim injunction to be set aside, which the court refused to set aside based on the provisions of Section 13(2) ADR Act 2005. The contention of the Plaintiff /Respondent in his affidavit in opposition is that the Applicant /Defendant is not entitled to a stay of proceedings because they have already taken steps in the proceedings by filing an affidavit in opposition to the a “JUSTICE ZJAWARA ALAM! BP INVESTMENT GROUP FZE V SOCIAL SECURTY AND HOUSING FINANCE CORPORATIONPlaintiffRespondent’s interlocutory application before this court. The plaintiff further contends that instituting proceedings in Paris would be very expensive, time consuming ‘and not convenient since both parties are in the Gambia, and going to arbitration in Paris will be very difficult and most impossible due to the exorbitant costs involved. Counsel in his submission argued that this Hon. Court has orginal jurisdiction to hear and determine all Civil and Criminal matters by virtue of Section 132 of the Constitution of the Republic of The Gambia and as such had jurisdiction to entertain this case. Counsel agreed that this Hon. Court had the power to stay proceedings and not to strike out the action, this being the power given by virtue of the court's power under Section 12(1) ADR Act 2008. Therefore either party to an arbitration agreement may before ‘submission to arbitration or an award is made commence legal proceedings in any claim ‘or cause of action and relied on an old English case Harris v Reynolds 1845 7 QB 71. ‘That they are within their rights to come to court and staying the proceedings does not ‘mean the matter is not pending, Having heard the arguments of Counsels on both side, to my mind, counsel for the defendantirespondent in his arguments is not opposing the application for stay of proceedings nor is he denying that an arbitration agreement exists, Counsel for the respondent merely is stating that ifthe court is minded to stay the present proceedings it must do so judicially and judiciously ahd agreed that Section 12 of the ADR Act allows. either party to an arbitration agreement to come to court to ask for a stay and that it is within their right to make this application, thus counsel for the Applicant is within his rights, ‘What counsel for the respondent is arguing is that the applicant is not entitled to stay since he had already taken steps in the proceedings. For the sake of clarity Section 12 of the ADR Act CAP 6.08 clearly provides; “A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party requests not later than when submitting his or her first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration” In light of Counsels contention and the provisions of Section 12 above, | believe that itis settled that the parties are in agreement that, on the invocation of Section 12 by either ‘party, the Court is. mandated to stay the proceedings)! will not go into whether oF not 1 jew of the present arbitration argument as it is agreed and itis clear does not have jurisdiction to hear any cause of action where there is a clear | emotes Provisions of Section 132(1) of The Constitution of the | therefore find from the arguments above that there are only three issues to determine in this matter. The issues for determination therefore are as follows; 1, Whether Counsel for the Applicant is barred from applying for a stay of proceedings after he has taken steps in the proceedings by filing an affida of opposition. JUSTICE ZAWARA ALAM BP INVESTMENT GROUP FZE V SOCIAL SECURTY AND HOUSING FINANCE CORPORATION