GEKAD CONSTRUCTION LIMITED VS GHANA COCOA BOARD

The present application seeks an Order referring the present suit to arbitration under the Alternative Dispute Resolution Act.

By its amended writ filed on the 23rd of March, 2023, the Plaintiff/Respondent (Plaintiff) instituted the instant suit against the Defendant for inter alia the following reliefs:

a) An order directed at the Defendant to pay the amount of One Million Five Hundred and Ninety-One Thousand Two Hundred and Seven Ghana Cedis Twelve Pesewas (GH¢ 1,591, 207.12)

b) An order directed at the Defendant to pay the amount of Eight Hundred and Ninety-Two Thousand Nine Hundred and Eighty-Four Ghana Cedis Eighty Pesewas (GH¢ 892,984.80) with interest at the prevailing commercial borrowing rate from the 3rd of September, 2018 till date of final payment

c) Damages

d) Costs

Upon being served with the Plaintiff’s Original Writ, Defendant/Applicant (Defendant) entered Conditional Appearance to same on the 3rd of February, 2023 and followed up with an application for an order of this Court referring the parties’ dispute to Arbitration.

The Defendant’s case is that the Road Contract Agreement (the Agreement) entered into by the Parties contains an Arbitration Clause which provides that disputes such as that which provoked the instant suit, could be referred to the Ghana Institute of Surveyors to appoint an Arbitrator to resolve the dispute. Defendant attached an excerpt of the said Agreement as Exhibit A but failed to point this Court to the specific provision relied on.

The Application is vehemently opposed. Plaintiff’s case in sum is that, there is no such provision mandating the parties to refer the instant dispute to Arbitration for resolution. Plaintiff says it is no surprise that Defendant has failed to point the Court to the specific provision it relies on.

Plaintiff contends that there are certain paragraphs that remotely insinuate resort to Arbitration as a means of dispute resolution. These are Clauses 25.0 and 26.0. However, the said clauses merely mention the Ghana Institute of Arbitrators as the institution whose Arbitration procedures shall be used in addition to the remuneration of the Adjudicator.

Counsel for Plaintiff maintains that the clauses predominantly refer to Adjudication and not Arbitration, which he contends is quite distinct from Arbitration.

He emphasizes that the faulty nature of the paragraphs relied on by the Defendant in support of its prayer is buttressed by the fact that the Agreement that was drafted in 2016