TIESO GHANA LIMITED vs. EIROGET DE-INVEST S.A. [2017]DLHC3664

Date	2017-07-04
Suit No.	SUIT NO. OCC/30/15
Citation No.	[2017]DLHC3664

GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT

GEORGE ANKOMAH MENSAH FOR PLAINTIFF/APPLICANT

YAW ESHUN FOR K. DEFENDANT/RESPONDENT

[2017]DLHC3664
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													<main id="main" class="content" style="min-height: 60rem" >TIESO GHANA LIMITED<o:p></o:p>vs.<o:p></o:p>EIROGET DE-INVEST S.A.<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<o:p></o:p>SUIT NO. OCC/30/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 4TH
JULY, 2017<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>COUNSEL:<o:p></o:p>GEORGE ANKOMAH MENSAH FOR PLAINTIFF/APPLICANT <o:p></o:p>YAW ESHUN FOR K. DEFENDANT/RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>RULING<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>This Court, on 7th February 2016, referred the dispute
between the parties in the instant application to resolution by a Dispute
Adjudication Board (DAB). The adjudication having been completed, the
Plaintiff/Applicant (hereafter referred to as “the Applicant”) has brought an
application for an Order for the Adoption and the Signing of Final Judgment in
Accordance with the Arbitral Award. The application has been brought under
Order 64 of the High Court (Civil Procedure) Rules, 2004 (C.I.47). The
Defendant/Respondent (hereafter referred to as “the Respondent”) resist the
grant of this application on the grounds deposed to in Paragraphs 5, 6, 7, 8
and 9 of its Affidavit in Opposition to the Application as follows: <o:p></o:p>&nbsp;“5 I am advised and verily believe the same to
be true that the Plaintiff’s current application is premature and needless. <o:p></o:p>6 It is the
contention of the Defendant that Rule 20 sub-clause 4 of the FIDIC Rules which
governed the Contract executed between the Plaintiff and the Defendant
specifically stipulates that a party to a dispute for which a DAB had been
constituted has 21 days after the service of the DAB’s decision to give a
notice of its dissatisfaction of the decision arrived at by the DAB and that
until the expiration of the said 21 days, any decision arrived at by the DAB
does not become final and binding on the parties to the dispute. A copy of the
relevant Rule has been attached hereto and marked as Exhibit “PA1”. <o:p></o:p>7 Further to
paragraph 6 above, the Defendant again says that in accordance with the said
Rule 20 sub-clause 4 of the FIDIC Rules, the Defendant through its Solicitors
on the 9th of May, 2017 served the Plaintiff with its Notice of
Dissatisfaction of the decision of the DAB. A copy of the said Notice of
Dissatisfaction is attached hereto and marked as Exhibit “PA2”. <o:p></o:p>8 It is the
contention of the Defendant that until the parties have exhausted all dispute
avenues stipulated in Rule 20 of the FIDIC Rules no decision arrived at by the
DAB becomes final and binding. <o:p></o:p>9 I have been
advised and verily believe same to be true that this Honourable Court should
decline the Plaintiff’s call for an order for the adoption and signing of final
judgment in accordance with the arbitral award since same is premature and give
the parties opportunity to exhaust all the dispute avenues stipulated in Rule
20 of the FIDIC Rules.” <o:p></o:p><o:p>&nbsp;</o:p>The issues that this Court is called upon to adjudicate in this
application are as to whether or not the application is premature and whether
or not the Notice of Dissatisfaction is proper. <o:p></o:p><o:p>&nbsp;</o:p>I shall resolve the issues together in accordance with the law and
the affidavit evidence. <o:p></o:p>The Applicant and the Respondent are parties to an agreement, a
copy of which is attached to the Supplementary Affidavit of Dr. Osei in Support
and marked as Exhibit D. The Agreement is titled, “CONTRACT AGREEMENT BETWEEN
EUROGET DE-INVEST S.A. OF EGYPT A</main>