Family Law-Alimony-Reference of decision to arbitration-Award pendente
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Arbitration-Appeal-Judgement enforcing award of arbitration board where the
board did not conform to provision of the Civil Justice Ordinance 1900-
Status of non-conforming arbitration board

Arbitration-Number of arbitrators-More appointed than contemplated by Or-
dinance

The husband and wife in this case were both Copts. Shortly after
marriage differences arose between them and as a result thereof the wife
ceased to live with the husband. The wife instituted proceedings for ali-
mony and some other relief, including living expenses, to be calculated
from the date when the differences arose to the date of the final determi-
nation of the suit.

On the commencement of the proceedings the parties agreed to submit
their dispute, 'to arbitration under the Civil Justice Ordinance 1900. The
arbitrators) and the terms of reference were all agreed upon. Under these
terms each party appointed three arbitrators and a seventh ar_bitrator' was
appointed by the court. The husband was unrepresented in the last two
meetings of the arbitrators and the award was drawn in his absence.

The High Court gave judgement in accordance with the award and re-
fused to remit or to set aside the award under sections 96 and 97, Ci,vil
Justice Ordinance, 1900. Against this decision the husband appealed.

Held: (i) That the arbitration provisions of the Civil Justice Ordi-

* Court: Dun C.J., Davidson and Osborne JJ.

nance i900 must be strictly adhered to and reference to seven arbitrators is
not substantially in accordance with those provisions; hence the award of
such arbitrators can be appealed.

(ii) That even' when the tribunal is properly constituted, section 99
will not preclude an appeal from the refusal of the court to remit or

               to set aside an award.            

,(iii) That the award must be set aside and the case remitted for re-
trial and that, having regard to the length of time taken by this case
before the courts, it is equitable that the husband should pay the wife a
monthly sum of money until the final det~rmination of the suit.

Gindi Henein v. Mettawis Wissa AC-App-4-1920 referred to.

Civil Justice Ordinance 1900, ss. 92, 97, 98, 99, 100.

Appeal

February 3, 1926. Dun C.J.: This is an appeal from the judge-
ment of the High Court purporting to be in accordance with an award
of arbitrators under the Civil Justice Ordinance 1900.

The suit is by a wife against her husband for alimony; the claim
is for £E.12 a month and a sum of £E.40 alleged to be due in respect
of dowry and for living expenses of £E.10 a month from April 1923 to
judgement.

After the plaintiff's brother and the defendant had been examined
and cross-examined, the case was adjourned in order that the advo-
cates might consult with their clients and see whether any settlement
could be arranged, and finally on, August 18, 1924, the advocates of
the parties appeared before the court and appear to have agreed to a
list of seven arbitrators and to the terms of reference. The arbitrators
held a first meeting at which they endeavoured to effect a compro-
mise, the plaintiff's brother and the defendant being present; then they
sent a deputation to the defendant's house to try to persuade him to
agree. The deputation failed and reported to this effect at the second
meeting at which the defendant was not present. The board then
proceeded to consider the sum to be awarded as alimony and agreed
upon £E.8~ a month. The board has a third meeting at which it
considered the compensation to be paid for the past 20 months. At
neither of these meetings was the defendant present or represented.

Finally on December 18, 1924, the board made its award allow-
ing £E'.8~ a month alimony and £E.I00 as compensation for arrears.

The court then having heard the defendant in person and the
plaintiff's advocate, and having examined the chairman of the board,
gave judgement in accordance with the award on the basis that it was

an award of arbitrators under the Civil JusticeOrdinance. The learned
judge very properly considered whether the award should be remitted
back to the arbitrators under section 96 or set aside. under section 97¹
and decided that it should not.

A preliminary objection to this appeal was taken that under sec-
tion 99² of the Civil Justice Ordinance there can be no appeal from this
judgement.

The first question, therefore, which we have to decide is whether
this is an arbitration to which sections 90 to 99 of the Civil' Justice
Ordinance apply. I have great difficulty in seeing how it can be having
regard to section 92³ which provides for the appointment of arbitrators
one or two by each side and a third or fifth by the court. The court
was referred to the English Arbitration Act (1889) but that Act does
not provide that the tribunal shall be constituted in any particular
manner.

I feel bound, therefore, to hold that a tribunal which is not con-
stituted substantially in accordance with the provisions of section 92
or 1O()4 of the Civil Justice Ordinance is not one to which section 99

1 Section 97, C.J.O. 1900 reads:

"No award shall be liable to be set aside except on the ground of cor-
ruption or misconduct of all or any of the arbitrators.

Any application to set aside an award shall be made within ten days
after the day appointed for hearing the award."

See section 161, C.J.O. 1929.

• Section 99, C.J.O. 1900 provides:

"Such decision shall not be open to appeal and shall be at once carried
out;

and no Court shall entertain any suit for the purpose of setting it aside or
against the arbitrators on account of their award."

See section 162 (2), C.J.O. 1929.

3 Section 92, C.J.O. 1900 reads:

"The parties to the case may each nominate . either one or two arbitra-
tors, as the Court may decide, provided that each party shall nominate the
same number; and a third or fifth arbitrator (as the case may be) shall
be appointed by the Court making the terms of reference."

This section corresponds to section 151, C.J.O. 1929.
• Section 100, C.J.O. 1900 provides:

"If the parties desire that the matter in dispute be referred to one
arbitrator only, the matter may be so referred, and the provisions of Sec-
tions 9~ to 99, both inclusive, shall then apply, so far as they' can be
made applicable, to the single arbitrator and to the proceedings before him
and his award.

If the parties are unable to agree upon' an arbitrator, he shall be
nominated by the Court."

applies and I do nat. thlnk that a tribunal consisting of seven arbitrators
is substantially - in accordance with section 92. The result is that this
court is entitled to entertain this appeal. The submission to arbitration
is not invalid, but the award of the arbitration tribunal becomes sub-
ject to the scrutiny of this court in the same. way in which it was subject
to the scrutiny of the High Court and this court may set aside the
award or remit the award or any matter referred to arbitration to the
reconsideration of the arbitrators if it considers there is a proper case

        for so doing.               .

H this court had decided that this was a reference to arbitration
under the Civil Jutsice Ordinance it would still have had to decide
whether section 99 precludes an appeal from the refusal of the High
Court to set aside an award under section 97.

In my opinion the words in section 99 "such decision" refer back
to the words in section 98⁵, "the court shall decide," and do not refer
to the preceeding words "if the court has refused such application."

I am inclined to think, therefore, that an appeal will lie from a
refusal to set aside an award and equally from an order setting aside
an award. I do not think it was intended to preclude the Court of
Appeal from considering whether any of the arbitrators were corrupt
or guilty of misconduct in connection with the arbitration or from
deciding what these words "corruption" and "misconduct" really mean.
On this point I would refer to the judgement of Judge Fleming in
Gindi Henein v. Mattawis Wissa, AC-APP-4;-1920, in which he ex-
pressed the opinion that an appeal would lie from a refusal to set aside
an award. The question did not arise for decision in that case any
more than it does in this, but some day no doubt this court will haye
to decide it.

The remaining question before the court is whether· this award
should be set aside on the, ground that the defendant had not a suf-
ficient opportunity of putting his case before the arbitrators. The

• Section 98, C.J.O. reads:

"If the Court making the reference sees no cause of remitting or fur-
ther remitting the award or any matter referred to arbitration for recon-
sideration in the manner aforesaid, and if no application has been made to
set aside the award, or if the Court has refused such application, the Court
shall decide in accordance with the award of the majority of the arbitrators,
and shall fix the amount to be allowed for the expenses of the arbitration,
and direct b.y and to whom, and in what manner, the same shall be paid."
See Section 162 (1), C.J.O. 1929.

arbitrators considered that it was his own fault that he did not appear
before them at the second and third meetings and the learned judge
agreed with them.

I am not satisfied after careful consideration of the statements of
the defendant, and of Mr. Henry Gaid, the president of the board,
that this was so; and I think the award should be set aside and the
case remitted to the High Court for re-hearing. H the' parties agree,
the Court may refer the matter in dispute to arbitration under the Civil
Justice Ordinance.

I think, however, that it is only just and equitable, in view of long
time during which this case has been before the courts, that we should
make an order that until the final determination of this suit the de-
fendant shall pay to the plaintiff for her support and the support of
the child of the marriage a monthly sum equal to one quarter of his
monthly salary.

The appeal must be allowed and the respondent must in any event

        pay the defendant the court fees on this appeal.                                             .

Davidson J.: I agree with the Chief Justice that this cannot be
treated as an arbitration Under the Civil Justice Ordinance 1900. The
limitations on the power to set aside and' the right of appeal in an
arbitration under that Ordinance are so stringent that in my opinion
the rules laid down for instituting such an arbitration must be strictly
adhered to.

As it is not an arbitration under the Ordinance there is no limita-
tion on the right of appeal from the judgement enforcing the arbitra-
tors' award and this court is entitled to hear such an appeal. But even
if it had been an arbitration under the Ordinance I agree with the dictum
of Judge Fleming that section 99, while barring any appeal from "the.
decision" of the court enforcing the award, does not bar an appeal
from the order of the court setting aside or refusing to set aside the
award. In that case, however, the award could only be set· aside on
the grounds stated in section 97.

H this is not an arbitration under the Ordinance, what is it? It
is really a settlement of the original suit on terms agreed by the parties,
namely that they would abide by the decision of the seven persons
named. But it is an implied term in such an agreement that the per-
sons nominated will act fairly and judicially. In my opinion, for rea-
sons stated by the Chief Justice, the nominees gave their decision, with-

out having really considered the appellant's case. The appellant was,
therefore, .entitled to object to the award of the nominees on the
ground thatthe terms of settlement had not been complied with.

I consider, therefore, that the appeal should be allowed and a new
trial ordered. I agree with the other orders of the Chief Justice as to
the interim payment of alimony and as to the costs.

Osborne J.: J am quite clear that this so-called "arbitration"
. cannot be regarded or treated as an "arbitration" under the Civil Jus-
tice Ordinance.

Arbitration is a special form of procedure in the hearing of civil
suits the details of which have been laid down minutely in the Ordi-
nance.

In view of the restrictions imposed upon the courts by sections
97, 98 and 99 it appears to me to be most essential that the procedure
should be followed with the closest regard for such details.

The learned judge who first referred the matter to these so-called
arbitrators to my mind obviously contemplated an arbitration under
Chapter XIII. He only omitted to follow the details of the procedure.

In view of the care with which the procedure is set forth in the
Civil Justice Ordinance I am inclined to doubt whether any procedure
in the nature of an arbitration save as laid down in Chapter XIII
is a proper one to be followed by any court established by the Courts
Ordinance 1915.

At any rate the learned judge who completed the hearing of the
case, and who actually gave judgement, treated the matter as' an ar-
bitration under the Ordinance and obviously felt himself bound to fol-
low the award exactly-after deciding quite properly that there was
no cause for remitting the award or any matter referred to arbitra-
tion for reconsideration by the abitrators; but in giving judgement he
expressed some doubt as to the amount of maintenance awarded, and
I think that had he regarded the so-called arbitration as some legiti-
mate form of procedure other than a formal arbitration under Chap-
ter XIII he would have taken steps to satisfy himself on the point on
which he expressed doubt, and would possibly have awarded a dif-
ferent sum as maintenance in his judgement. The amount of the
award as made would not in the circumstances of the case have been
a cause for remitting the award to the arbitrators under section 96.