AKWASS FARMS LTD v. GHANA TELECOM CO. LTD
February 3, 2010
COURT OF APPEAL
GHANA
CORAM
- ASARE- KORANG, JA (PRESIDING)
- MARFUL-SAU, JA
- ADUAMA OSEI, JA
Areas of Law
- Alternative dispute resolution
- Civil Procedure
- Contract Law
- Commercial Law
February 3, 2010
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by Justice Marful-Sau, arises from a commercial contract for telegraphic poles containing an arbitration clause adopting the Arbitration Act, 1961 (Act 38). The parties submitted their dispute to the Ghana Arbitration Centre and, by consent, appointed Dr. S. K. B. Asante as sole arbitrator. The tribunals 9 July 2008 award favored the claimant with principal sums, interest at the Bank of Ghana prime rate, and costs of GH20,000. The claimant sought High Court enforcement under section 29; the respondent moved to set aside under Order 64 r 12. The High Court dismissed the set-aside motion. On appeal, the Court clarified that voluntary arbitration under Act 38 is distinct from court-referred arbitration under CI 47 and that motions are the proper vehicle to challenge awards under Order 19. However, it rejected all misconduct grounds, including missing transcript portions, without prejudice negotiation evidence, exhibit attachment issues, and allegations by Rev. Kwasi Opare implicating Managing Director Kwabena Akwaboahene. Emphasizing arbitrations finality absent impropriety, the Court dismissed the appeal and affirmed the High Court.
MARFUL-SAU, JA: -
This appeal is against the ruling of the High Court, Accra (Fast Track) Division delivered on the 18th September 2008. The appellant and respondent had entered into a contract for the supply of telegraphic poles on the 27th January, 2004. In the performance of the said contract the respondent herein alleged a breach for which it invoked article 23 of the contract, which is the arbitration clause.
The said article 23 provides that:-
“Any dispute or differences arising out of the contract which cannot be amicably settled between the parties shall be referred to and settled in accordance with the Arbitration Act 1961 (Act 38).”
The parties herein agreed to submit the dispute to the Ghana Arbitration Centre for resolution in accordance with the Arbitration Rules of the Centre. By consent Dr. S. K. B. Asante was appointed the sole Arbitrator in January 2007 to arbitrate the dispute. Before the formal arbitration proceedings could start, the respondent who was the claimant in the arbitration requested the suspension of the arbitration pending an attempt at settling the dispute by negotiation. The respondent however on the 30th May, 2007 announced a breakdown of the negotiations for settlement and requested for the resumption of the arbitration.
The arbitration commenced and after the proceedings an award was published by the sole arbitrator. At page 585 to 630 of the record of appeal is the published arbitral award which was made on the 9th of July, 2008. In the award the Tribunal held for the Respondent herein as follows:
The respondent shall pay to the claimant an amount representing the
contractual price of 1,245 poles i.e. ¢185,257,800 plus interest at the bank
rate prevailing on the date of the award at simple interest with effect from
1st April, 2004 the date of the expected payment till date of payment.
The respondent shall pay the claimant an amount representing 70% of the
contractual price of 1,538 rejected poles plus interest at the prevailing
bank rate on the date of Award at simple interest with effect from 1st May
2004, the date of failure to return the poles or allow the claimant to
remove same from the treatment plant, till date of payment.
The respondent shall pay to the claimant the amount representing the cost
Of 15,460 poles sold but undelivered to the respondent at the price of
¢200,000 per pole i.e. ¢3,092,000,000.00 plus interest at the prevailing bank
rate on the date of the Award at simple interest with