Case No.:

(AC-Review-1-1960.

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Appeal, revision and review—leave to review under Order XIV, First Schedule, Civil Justice Ordinance when allowable award

The Court of Appeal, through an error of oversight in the record, thought that the award of the arbitrators in the dispute between the parties was reduced to writing after the case was raised. The plaintiffs, on this ground, made an application to the Court of Appeal to review its decision.
Held: (1) that the decree of the Court of Appeal be set aside and the decree of the court below reinstated.
Court: M. A. Abu Rannat C.J., M. A. Hassjb J., A. M. Imam J.
 
(ii) That by not following the usual practice of handing a copy of the award to the party against whom it is delivered the award is not rendered invalid.
Mudathir Abdalla v. Muzamal Abdalla and others (AC-Revision-269-1959) followed

Judgment

(COURT OF APPEAL)

ABULELA & AHMED ABDEL KARIM CO.

V.

LES FJLS E. G. DEBBM & O.

(AC-Review-1-1960.

Revision

Both parties appeared in person.

October 1, 1960. A. M. Imam J.: —This is an application for review submitted on behalf of applicants (and plaintiffs) craving for leave under Order XIV, Civil Justice Ordinance that the judgment and decree of this court, passed on July 5, 1960, be reviewed. Leave for review is granted when certain conditions are fulfilled, and these can be found in Mudathir Abdalla v. Muzamal Abdalla arid Others (AC-Rev-269-59) when the Honourable the Chief Justice said:

The Court of Appeal can only review its decision if it discovered new and important matter, or that there is evidence which was not available at the trial, or there is some mistake or error apparent on the face of the record, not just to allow applicant to re-argue a nice point which was fully argued and considered by it.”

Upon the submissions made on behalf of applicant and on reperusal of the record there is a clear error of oversight as to the time when the award in question was reduced to writing. The former judgment shows that it was so reduced to writing after the case was raised; it reads:

“We therefore, find that as the award was not made in writing at the time the suit was raised it was invalid.”

The above finding is erroneous as the award is dated June 6, 1958— see Exh. 15—while action was allowed on July 5, 1958, i.e., the award was reduced to writing before the institution of the suit.

On this ground the judgment and decree above mentioned is to be corrected. The learned advocate for respondents (and defendants) endeavoured to shake the former finding that the award was actually reduced to writing as embodied in section i and to urge that the said document is no award at all. He calls to this aid the following quotation from Russell on Arbitration, 16th edition, and page 221:

“The usual practice in preparing an award is to have two copies made of it. One the arbitrator signs, which then becomes the original award, and this is delivered to the party who takes up the award. The other copy is available for the other parties, if they apply for it.”

It can be observed that the above method is only the usual practice. So if an award is duly reduced to writing and handed over to one party, as in the present case, it cannot be rendered invalid simply because no spare copy was available for the other party. It is very clear that a written award need not be in any special form in order to attain validity; though it is obvious that it should be made in writing and duly signed by the arbitrator. “It is usual for the arbitrator to sign a written award at the foot, and for the signature to be attested by a witness.” Same authority page 220.

A written award should therefore be signed, but it is only usual practice for the arbitrator to affix his signature at the foot of the award, or to secure the additional signature of a witness. It is not necessary to the validity of the award that there should be introductory recitals. See Russell, page 222.

It should be noted that this point concerning the form of a written award was fully argued in the former hearing, and had it been the respon dents (and defendants) who were presenting an application for review on this ground alone, leave might have not been granted upon the rule in Mudathir v. Muzamal quoted above. Perhaps it would have been only a legal nicety.

For the above reasons the decree dated July 1960, is set aside and the decree of the court below dated January 9, 1960, is to be reinstalled. We make no order as to costs.

M. A. Abu Rannat C.J.: —I concur.

M. A. Hassib J.: —! Concur.

                                                           (Order accordingly)