THE REPUBLIC vs. THE REGIONAL ENGINEER, DEPT. OF FEEDER ROADS CAPE COAST EX-PARTE: SARASWATI CIVIL & BUILDING CONSTRUCTION CO. LTD. TEMA (PER THE MANAGING DIRECTOR) [2011]DLCA7955

THE REPUBLIC vs. THE REGIONAL ENGINEER, DEPT. OF FEEDER ROADS CAPE COAST EX-PAR... [2011]DLCA7955

Date	2011-11-09
Suit No.	SUIT NO.H1/115/2011
Citation No.	[2011]DLCA7955

MARFUL-SAU JA (PRESIDING)

HONYENUGA JA

SIR DENNIS ADJEI JA

MR. ERIC ASUMADU FOR APPLICANT/RESPONDENT

MRS. HANNAH TAYLOR PRINCIPAL STATE ATTORNEY FOR RESPONDENT/APPELLANT

[2011]DLCA7955
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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 CAPE COAST<o:p></o:p>(RESPONDENT/APPELLANTS)<o:p></o:p>EX-PARTE:
SARASWATI CIVIL &amp; BUILDING CONSTRUCTION CO. LTD. TEMA (PER THE MANAGING
DIRECTOR)<o:p></o:p>(APPLICANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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:0cm 0cm 1.0pt 0cm">

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; &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>

</div>COUNSEL:<o:p></o:p>MR.
ERIC ASUMADU FOR APPLICANT/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

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

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MARFUL-SAU
JA (PRESIDING), HONYENUGA JA, SIR DENNIS ADJEI JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">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. <o:p></o:p>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>‘’
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>&nbsp; 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 Se</main>