OLD PARK ENGINEERING SERVICES LTD. (PLAINTIFF) vs. CASSEL ENERGY LTD (DEFENDANT) [2018]DLHC7339

Date	2018-09-03
Suit No.	SUIT NO: CM/RPC/0486/18
Citation No.	[2018]DLHC7339

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

ASARE DANKWA ESQ. FOR PLAINTIFF.

ISAAC RIVERSON ESQ. FOR DEFENDANT.

[2018]DLHC7339
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													<main id="main" class="content" style="min-height: 60rem" >OLD PARK ENGINEERING
SERVICES LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>CASSEL ENERGY LTD<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: CM/RPC/0486/18&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: 3RD SEPTEMBER, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>ASARE DANKWA ESQ., FOR
PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ISAAC
RIVERSON ESQ., FOR DEFENDANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<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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</div>The
instant motion, filed by the defendant herein, seeks an order of the court to
refer the dispute between the parties herein to arbitration upon grounds stated
in the supporting affidavit. In particular, at paragraph 5, 6, 7 8 and 9 of the
supporting affidavit, the applicant has deposed that:<o:p></o:p>5&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the events that resulted in the instant suit was governed by a formal contract
between the parties as pleaded by the plaintiff in its paragraph 10 of the
statement of claim.<o:p></o:p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the parties by their agreement to perform EPC services for Tema oil terminal
dated 31/5/17 (hereinafter referred to as “the Statement of Work or ‘SOW’),
incorporated by reference the International Federation of Consulting engineers
(“FIDIC”) form of contract known as Conditions of Contract for EPC/Turnkey
services or projects 1999.<o:p></o:p>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the SOW provides that in the event of conflict or inconsistency between the SOW
and the FIDIC “Conditions of Contract for EPC Services,” the terms of the SOW
prevails.&nbsp; However, the SOW did not make
provisions for dispute resolution<o:p></o:p>8.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
clause 20 and particular sub clause 20.6 of the FIDIC Condition of Contract
aforesaid on the other hand provided that any dispute pertaining to the
contract shall be resolved, in the first instance, by the decision of the
dispute adjudication board, then through an amicable settlement and ultimately
to be finally settled by international arbitration under the rules of
arbitration of the International Chamber of Commerce.<o:p></o:p>A copy of the SOW and the relevant part of the
FIDIC “conditions of Contract for EPC services” on dispute resolution are
attached and marked as Exhibit “IAR 1” and “IAR 2” respectively.<o:p></o:p>9.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
in order to uphold the parties freedom of contract and to ensure that the
parties contractual wishes are adhered to, the Defendant has been compelled to
seek an Order to refer this dispute to arbitration pursuant to Act 789.<o:p></o:p>The
defendant is opposed to the instant application as shown by the affidavit in
opposition filed on the 31st July 2018. <o:p></o:p>The
main reason why the defendant brings this application, as stated in paragraph 6
of the affidavit in support, is that the parties incorporated the terms of the
International Federation of Consulting Engineers (FIDC) form of contract into
their agreement. The said agreement described by the parties as Statement of
Work is exhibited as exhibit IAR1. The defendant agrees that the said agreement
does not by itself contain any arbitration clause and that the said agreement
is also made pursuant to a Master agreement made between the parties herein
which came into effect on the 5th May 2017. <o:p></o:p>At
paragraph one of the Statement of Work, the parties have agreed that (This
Statement of work (SOW E3443-Rev 4) is issued pursuant to the Consultant Services
Master Agreement between CASSEL (client) and (contractor) Old Park Engineering
Services Ltd, effective May 5, 2017 (In the agreement). SOW is subject to the
terms and conditions contained in the agreement between the parties and is made
a part thereof and as per FIDIC Gold Book terms and conditions. Any term not
otherwise defined herein shall have the meaning specified in the agreement.&nbsp; In the event of any conflict or inconsistency
between the terms of the SOW and the terms of this agreement, (the terms of
FIDIC Gold Book Terms and Conditions) this SOW shall govern and prevail. <o:p></o:p>It
is this term contained in the Statement of Works that the defendant has
interpreted as enabling the incorporation of the arbitration clause in the FIDC
rules into and made it part of the Statement of Work. A critical review of the
paragraph quoted above shows that the phrase which introduces the FIDC rules
into the paragraph are the words “and as per”. In the opinion of the court, the
phrase “and as per FIDC Gold book terms and conditions” is not enough to make
the terms of the FIDC rules part of the Statement of Work or the Master
Agreement between the parties. To make matters worse, the parties have
specifically agreed that where there is conflict or inconsistency between the
terms of the Statement of Work and that of the FIDC rules, the terms of the
Statement of Work shall govern and prevail. It has been held that clear and
unambiguous words and expression are required to incorporate the terms of one
document into the terms of another. Thus, in S</main>