THE REPUBLIC v. THE REGIONAL ENGINEER, DEPT OF FEEDER ROADS; EX-PARTE: SARASWATI CIVIL & BUILDING CONSTRUCTION CO. LTD. TEMA

JUDGMENT

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. will be the respondent.

The brief facts of the case are that the Government of Ghana through the Central Regional Coordinating Council awarded two contracts to the respondent. 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:-

‘’ 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’’

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.

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:-

‘’RULING;

**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