THE REPUBLIC vs. THE REGIONAL ENGINEER, DEPT OF FEEDER ROADS EX PARTE; SARASWATI CIVIL & BUILDING CONSTRUCTION CO .LTD. TEMA [2011]DLCA4677

THE REPUBLIC vs. THE REGIONAL ENGINEER, DEPT OF FEEDER ROADS EX PARTE; SARASWAT... [2011]DLCA4677

Date	2011-11-09
Suit No.	CIVIL APPEAL NO.H1/115/2011
Citation No.	[2011]DLCA4677

MARFUL-SAU JA –PRESIDING

HONYENUGA JA

DENNIS ADJEI JA

[2011]DLCA4677
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE REGIONAL ENGINEER, DEPT OF FEEDER ROADS<o:p></o:p>(RESPONDENT/APPELLANTS)<o:p></o:p>EX
PARTE; SARASWATI CIVIL &amp; BUILDING CONSTRUCTION
CO .LTD. TEMA (APPLICANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, CAPE COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL
NO.H1/115/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;9TH
NOVEMBER, 2011<o:p></o:p>

</div>CORAM:<o:p></o:p>MARFUL-SAU JA –PRESIDING, HONYENUGA JA, DENNIS ADJEI JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU, JA: -
This appeal is against the ruling of the High Court sitting at Cape Coast dated
the 25th October, 2007. In that ruling the trial High Court,
dismissed the application by the respondent/ appellant praying the court to set
aside an award delivered by a referee in arbitration proceedings. In this
appeal the Department of Feeder Roads will be referred to as the appellant and
Saraswati Civil and Building Construction Co. Ltd. will be the respondent. <o:p></o:p>The
brief facts of the case are that the Government of Ghana through the Central
Regional Coordinating Council awarded two contracts to the respondent.&nbsp; These contracts were the Surfacing of the
Bisease Town Roads which was to be executed within 12 months and the Surfacing
of the Eshiem, Bisease, Anyinasu Feeder Road also to be executed within 12
months. However, by a letter dated the 20th May, 2004, the Regional
Tender Board terminated the two contracts. This letter is at page 40 and 179 of
the record of appeal. Paragraph 2 of the letter which is of interest states
thus:-<o:p></o:p>&nbsp; ‘’ You are therefore advised to call at this
office within one (1) month from the date of this letter for a joint site
inspection and measurement on your outstanding claims if any to enable us
prepare you FINAL ACCOUNT’’<o:p></o:p>From
the record it is clear that the parties to the contract could not mutually
agree on the outstanding amount due to the respondent herein, consequently, the
respondent filed two applications in the High Court, Cape Coast praying that
the dispute between the parties be referred to arbitration as per clause 67 of
the Contract executed by the parties for the works. It is important to state
that the Contract signed by the parties herein for the works by its clause 67,
significantly, contained elaborate dispute resolution mechanism other than
litigation. The parties under the contract choose arbitration as the main
method of resolving any dispute that may arise from the execution of the
contract.<o:p></o:p>On
the application of the respondent the trial High Court on the 23rd March, 2005
referred the parties to arbitration in an order found at page 289 of the
record. The order of the court which served as the reference to the arbitrator
or referee is as follows:-<o:p></o:p>&nbsp;‘’RULING;<o:p></o:p>Having heard arguments
from lawyers on both sides this court is of the opinion that though the
contract awarded the applicant’s herein had long been terminated, it is quite
proper for the conflict between the applicant and the Ministry of Roads and
Highways and the Department of Feeder Roads, Central Region to be referred to
an arbitration as provided by section 67(1), (3) and (4) of the contract
executed between the parties. This is to ensure that any outstanding sum due to
the applicant for work done before the determination of the contract is paid to
the applicant. There shall be no order as to costs.’’<o:p></o:p>Clearly,
from the order above the reference to arbitration was for the arbitrator to
determine any outstanding amount due to the respondent herein, before the
contract was determined on the 29th May, 2004. In other words the
arbitrator or referee was to resolve the dispute as to whether or not the
respondent was entitled to any outstanding amount for works executed. As a
result of this order, the parties were thus obliged to start the arbitration
under the contract. At page 238 of the record is a letter from Delin Consult
dated the 12th January, 2006 which made reference to a telephone
conversation between one Ing. M.L. Quarshie of Delin Consult and Ing. Sarfoh of
Hitracs Consult concerning the intended arbitration between the parties in this
appeal. This letter which was addressed to the Executive Secretary, Ghana
Institute of Engineers indicated that the two consultants have agreed to
appoint the Ghana Institute of Engineers as a referee in the arbitration
between the Dept. Of Feeder Roads and Messrs Saraswate Civil and Building
Construction Ltd. The letter stated further in part as follows:-<o:p></o:p>&nbsp;‘’We have had to take this joint decision
owing to the fact that the contract document, ie clause 67 (3) did not specify
on an arbitrator.<o:p></o:p>&nbsp;The Department of Feeder Roads is represented by
Hitracs Consult in the person of Ing. Sarfoh and Messrs Saraswate is
represented by Delin Consult in the person of Ing. M.L. Quarshie.<o:p></o:p>See attached letters.<o:p></o:p>We duly solicit your earliest
response in appointing a referee to facilitate proceedings on the matter.’’<o:p></o:p>I
need to stated that the Dept. Of Feeder Roads in an earlier letter dated 29th
December, 2005 addressed to the respondent, announced their appointing Ing.
Sarfoh of Hitracs Consult as their arbitrator and requested to know the
arbitrator appointed by the respondent. The letter which is at page 240 of the
record and signed by the Regional Engineer, J. O. Asiedu, concluded by hoping
that the appointment of the arbitrator by respondent will enable the two
parties proceed to </main>