THE REPUBLIC vs. THE REGIONAL ENGINEER, DEPT OF FEEDER ROADS CAPE COAST, EX-PARTE: SARASWATI CIVIL & BUILDING CONSTRUCTION CO. LTD. TEMA [2011]DLCA5702

THE REPUBLIC vs. THE REGIONAL ENGINEER, DEPT OF FEEDER ROADS CAPE COAST, EX-PART... [2011]DLCA5702

Date	2011-11-09
Suit No.	SUIT NO.H1/115/2011
Citation No.	[2011]DLCA5702

MARFUL-SAU JA –PRESIDING

HONYENUGA JA

DENNIS ADJEI JA

MR. ERIC ASUMADU FOR APPLICANT/RESPONDENT

MRS. HANNAH TAYLOR PRINCIPAL STATE ATTORNEY FOR RESPONDENT/APPELLANT

[2011]DLCA5702
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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 [RESPONDENT/APPELLANTS] CAPE COAST, 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;
padding:0in 0in 1.0pt 0in">

SUIT 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;DATE: 9TH NOVEMBER,
2011<o:p></o:p>

MRS.
HANNAH TAYLOR, PRINCIPAL STATE ATTORNEY FOR RESPONDENT/APPELLANT<o:p></o:p>

</div>MARFUL-SAU, JA:<o:p></o:p>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.<o:p></o:p>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. 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 20 th 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>‘’ 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>‘’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 tocosts.’’<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.<o:p></o:p>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<o:p></o:p>Dept.
Of Feeder Roads and Messrs Saraswate Civil and Building Construction Ltd. The
letter stated further in part as follows:-<o:p></o:p>‘’ 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>The Department of Feeder Roads is
represented by Hitracs Co</main>