TIESO GHANA LIMITED v. EUROGET DE-INVESTA SA

KOTEY, JSC:-

Before us is an appeal from the judgment of the Court of Appeal affirming a decision on the trial High Court dismissing an application by the Plaintiff/ Appellant/Appellant (hereinafter Plaintiff) for leave to enter final judgment under Order 64, Rule 13 of C.I. 47.

The Plaintiff was a subcontractor of the Defendant/Respondent/Respondent (hereinafter Defendant) for the construction of a 160-bed regional hospital at Wa in the Upper West region. Their contract was governed by “Federation Internationale Des Ingenieurs-Conseils”, International Federation of Consulting Engineers Rules (hereinafter referred to as FIDIC Rules) which contain dispute resolution provisions.

For ease of reference we reproduce the dispute resolution provisions of the FIDIC Rules.

“20.1 Contractor’s Claim

If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Employer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance.

20.2 Appointment of the Dispute Adjudication Board

In cases of disagreements between the parties: They shall attempt to resolve their disagreement through friendly, direct dialogue and negotiations. Failure to do that at the end of 30 days from the date when the disagreement arose, either party shall give notice to each other of its wish to resort to a DAB and disagreement shall formally become dispute. Disputes shall be adjudicated by a DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision]. The parties shall jointly appoint a DAB by the date 28 days after a Party gives notice to the other Party of its intention to refer a dispute to a DAB in accordance with Sub-Clause 20.4.

The DAB shall comprise, as stated in the Particular Conditions, either one or three suitably qualified persons (“the members”) If the number is not so stated and the Parties do not agree otherwise, the DAB shall comprise three persons…

20.4 Obtaining Dispute Adjudication Board’s Decision

If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certifi