HEILAND RESOURCES LIMITED VRS. SINOPEC INTERNATIONAL PETROLEUM LTD & 2ORS (J4/10/2024) [2024] GHASC 53 (11 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024 CORAM: OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC ASEIDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC CIVIL APPEAL NO. J4/10/2024 11TH NOVEMBER, 2024 HEILAND RESOURCES LIMITED ….. PLAINTIFF/RESPONDENT/ APPELLANT/RESPONDENT VS 1. SINOPEC INTERNATIONAL PETROLEUM LTD. ….. 1ST DEFENDANT 2. SINOPEC JIANGSU OILFIELD SERVICES .…. 2ND DEFENDANT 3. SINOPEC INTERNATIONAL ……. 3RD DEFENDANT /APPELLANT/ SERVICES LIMITED RESPONDENT/APPELLANT 4. SINOPEC GROUP …… 4TH DEFENDANT 5. SINOPEC SERVICE ….. 5TH DEFENDANT 6. SINOPEC LIMITED …… 6TH DEFENDANT JUDGMENT ASIEDU JSC: [1]. INTRODUCTION: Page 1 of 40 My lords, this is an appeal from a judgment of the Court of Appeal delivered on the 28th July, 2022. In the said judgment, the Court of Appeal set aside a ruling delivered by the High Court in favour of the 3rd Defendant/Applicant/Respondent/Appellant (hereinafter referred to as the Appellant). The ruling of the High Court was delivered on the 6th July, 2021. The Plaintiff/Respondent/Appellant/Respondent shall hereinafter be referred to as the Respondent. [2]. NOTICE OF APPEAL: By a notice of appeal filed on 9th August, 2022, the Appellant raised the following grounds of appeal: a. That the judgment is against the weight of evidence. b. Additional grounds of appeal will be filed upon receipt of the record of appeal. Pursuant to leave of this Court granted on the 6th February, 2024, the Appellant filed additional grounds of appeal on the 8th February, 2024. The additional grounds of appeal are that: 1. The learned judges wrongly exercised their discretion in holding that the alleged contracts covering the work done by the Respondent fell outside the scope of work defined in the Lateral Line Contract and that they were extra works which were so extensive that they could not be ordinarily incidental to the Lateral Line Contract when it omitted to consider the following: a. The learned judges omitted to consider that the project was a complex one which covered a very long distance and therefore its complex nature had attendant characteristics which may appear as extra works, especially when considered only Page 2 of 40 through having regard to photographic images, although they were merely incidental to the overall realization of the project. b. The learned judges omitted to consider that the nature of the project, being a complex one, made it certain that the Respondents would have to create their Right of Way (ROW) as and when they came upon obstacles, in order to perform the main contract, the Lateral Line Contract, in fulfilment of their contractual obligation. c. The learned judges omitted to consider that the Respondent is an experienced subcontractor and therefore, it was reasonable for it to anticipate that given the long stretch of distance the project covered, they would encounter situations for which they had a duty to find solutions to, which included the creation of a Right of Way (ROW) in the event that obstacles were met during the performance of the contract. d. The learned judges omitted to consider affidavit evidence of the Appellant especially Exhibits WX3, WX4 and Exhibit WX5 in the Supplementary Affidavit in Support, which indicate that the matters alleged by the Respondent such as the pipeline bridges and river crossing (culvert), trenching and grading, clearing etc., had been invoiced by the Respondent and paid for by the Appellant. 2. The learned judges misdirected themselves when they held that the dispute arises from separate contracts that were not under the Lateral Line Contract. Particulars of Misdirection a. The learned judges failed to consider that the evidence in the form of photographs and electronic-mail (email) communications presented by the Respondent herein, were not enough to establish the existence of valid separate contracts between the parties, as all the elements of valid contracts could not be ascertained from the very nature of the evidence on record, being mere photographs and otherwise inconclusive email communications. Page 3 of 40 b. The learned judges failed to consider the complex nature of a Lateral Line Contract in respect of the ‘Western Corridor Gas Infrastructure Development Project’. c. The learned judges failed to consider the full scope of clause 16 of the Lateral Line Contract (the Arbitration Clause). 3. The learned judges misdirected themselves when they held that the Appellant herein waived its right to Arbitration. Particulars of Misdirection a. The learned judges failed to consider that the Appellant’s initial objection to the Arbitration was also premised on the fact that there was an existing Equipment Rental Agreement between the parties which was at the time statute-barred and consequently fell as a valid ground for an objection to the Respondent’s demand for Arbitration. b. The learned judges failed to consider that the Appellant raising an objection to the Respondent’s demand for Arbitration on non-existent separate contracts did not amount to objecting to an otherwise proper demand for Arbitration premised on the Lateral Line Contract between the parties. c. The learned judges failed to consider that the Appellant notwithstanding its initial objection to the Respondent’s demand for Arbitration, nominated an Arbitrator for the Arbitration to commence, in the person of Vincent Kizito Beyuo Esq. and for which reason the Ghana Arbitration Centre by a letter to the Respondent dated 30th November, 2020 advised the Respondent to confirm or otherwise the nomination of Vincent Kizito Beyuo Esq as Sole Arbitrator or to propose an Arbitrator for the Respondent’s consideration. d. The learned judges failed to consider that the Respondent initiated the action at the High Court during the pendency of the arbitration process.” Page 4 of 40 [3]. FACTS: The facts leading to the instant appeal are that, the Ghana National Gas Company Limited entered a contract with the Appellant to execute a natural infrastructure project at Atuabo in the Western Region of Ghana. This project was known as the “Ghana Early Phase Gas Infrastructure Project” or the “Western Corridor Gas Infrastructure Development Project” (referred to as the “Project”). An aspect of the Project was the Onshore Natural Gas Pipeline System (referred to as the “Subproject”). In executing its side of the contract with the Ghana National Gas Company Ltd, the Appellant engaged the Respondent as a sub-contractor for the execution of the Subproject. The contract between the Appellant and the Respondent was reduced into writing and bifurcated as follows: (a) The Equipment Rental Agreement made on the 21st May, 2013 (referred to as the “Equipment Rental Agreement”). (b) The Agreement for Lateral Line Civil Works executed on the 22nd November, 2014 (referred to as the “Lateral Line Contract”). Under the Lateral Line Contract, the Appellant engaged the Respondent to perform some specified civil works and associated activities provided for in the scope of work. The purpose of the Lateral Line Contract was to facilitate the construction of the Onshore Natural Gas Pipeline System. [3.1]. The parties, at the request of the Appellant, agreed that officials of the 2nd Defendant would perform a supervisory role in the execution of the contract between the Appellant and the Respondent. Accordingly, the 2nd Defendant was to quantify and certify works done by the Respondent and sign or approve invoices raised by the Respondent before payment would be made by the Appellant to the Respondent. Page 5 of 40 The Respondent says that due to the nature and extent of 2nd Defendant’s involvement in the execution of the Lateral Line Contract, the 2nd Defendant introduced new terms which led to further agreements between the Appellant and the Respondent outside the mainstream scope of work that was initially agreed upon by the parties. These subsequent engagements are evidenced by email correspondences between the parties. The Respondent says that in addition to the email correspondences between the Appellant and the Respondent, there had been oral concessions as well in respect of the subsequent agreements. The consequence of the subsequent agreements and the attendant additional works done by the Respondent, was that the Appellant was contractually bound to pay the Respondent separately for the additional works done. However, the Respondent contends, the invoices raised by the Respondent on the back of the additional works done under the subsequent agreements have not been certified by the 2nd Defendant. The Respondent says that due to the failure or refusal by the 2nd Defendant to certify the Respondent’s invoices, the Appellant has failed or refused to make payment for the works done by the Respondent. As a result, the Respondent commenced arbitration proceedings against the Appellant at the Ghana Arbitration Centre pursuant to an arbitration clause in the Lateral Line Contract between the parties. In the response by the Appellant to the Respondent’s request for arbitration, the Appellant raised an objection to the jurisdiction of the Arbitral Tribunal to entertain the demand for arbitration. One of the grounds of the Appellant’s objection was that the subsequent agreement between the parties was not expressed to be subject to a written arbitration agreement. The implication of the Appellant’s objection, the Respondent argues, was that the subsequent agreement between the parties constituted a contract separate and distinct from the Lateral Line Contract. Therefore, the Parties having not agreed in writing to refer Page 6 of 40 any disputes under the separate contract to arbitration, the Arbitral Tribunal lacked jurisdiction to entertain the demand for arbitration by the Respondent. [3.2]. While the arbitration proceedings were pending, the Respondent, on the 20th November, 2020, caused to be issued out of the registry of the High Court a Writ of Summons with an accompanying Statement of Claim against the Appellant and other defendants therein on the same facts and claims. The Respondent raised allegations of fraud against the Appellant. Subsequently, the Respondent withdrew their demand for arbitration on the 14th December, 2020. Meanwhile, the Appellant had filed a notice of conditional appearance on the 9th December, 2020. On the 4th January, 2021, the Appellant followed with a motion on notice for an order to refer the suit to arbitration pursuant to section 6 of the Alternative Dispute Resolution Act, 2010 (Act 798). The basis of the motion for an order to refer the suit to arbitration, as captured in paragraph 10 of the affidavit in support thereof, was that Clause 16 of the Lateral Line Contract provided for all disputes in connection with the said contract or its execution to be submitted for arbitration in accordance with the Ghana Alternative Dispute Resolution Act, 2010 (Act 798) failing an amicable settlement between the parties. [3.3]. After submissions by both parties, the High Court, in a ruling dated the 6th July, 2021, granted the Appellant’s application and ordered that the proceedings in the suit be stayed and the matter referred to arbitration in accordance with the arbitration clause contained in the Lateral Line Contract. Aggrieved by the ruling of the High Court, the Respondent appealed to the Court of Appeal. In the Court of Appeal’s judgment dated the 28th July, 2022, the Court of Appeal set aside the ruling of the High Court which had stayed proceedings and referred the parties to arbitration. Dissatisfied with the judgment of the Court of Appeal, the Appellant has appealed to this Court on the grounds of appeal stated above. [4]. RULING OF THE HIGH COURT: Page 7 of 40 The ruling of the High Court (found at Pages 296 to 297 of the Record of Appeal) concluded at page 297 as follows: “I have examined the affidavit evidence filed by the parties in this application together with the written submissions thereto. In my view, the matters in dispute between the parties do not fall within the exceptions to arbitration provided for in section 1 of Act 798. The dispute between the parties being arbitrable and one within the contemplation of the parties to be subjected to the process of arbitration, I shall grant the application. In consequence, pursuant to sections 6 (1) and (2) of Act 798, I hereby direct that in accordance with clause 16.2 of the agreement between the parties, the dispute shall and is hereby referred to arbitration in accordance with the arbitration agreement contained therein.” [5]. JUDGMENT OF THE COURT OF APPEAL: The Court of Appeal held a different view and reversed the ruling of the High Court. The Court of Appeal found that the further works done by the Respondent at the request of the Appellant were not specifically spelt out in the scope of work as detailed in the Lateral Line Contract between the parties. That the Appellant refused to pay for the additional works done by the Respondent. The Court found further that the basis of the Appellant’s objection to the Respondent’s demand for arbitration was that the further or separate contracts were not covered by a written arbitration agreement. Having made a finding that the separate contracts fell outside the scope of the Lateral Line Contract and did not have an arbitration agreement, the Court concluded that the trial High Court’s ruling which ordered the parties to go to arbitration when the parties had no such agreement to arbitrate, was in breach of the principle of party autonomy in contracts. Again, that the Appellant, by raising an objection to the jurisdiction of the Arbitral Tribunal on the grounds that there was no arbitration agreement in respect of the subsequent agreement, could not now make a volte face and argue for a reference to arbitration. Thus, having objected to the jurisdiction of the Arbitral Tribunal, the Appellant was deemed to have Page 8 of 40 waived the Appellant’s right to arbitration. At pages 410 to 411 of the Record of Appeal, the Court of Appeal stated that: “Having considered all the submissions on this ground, I find that the conduct of the Respondent [Appellant herein] in opposing the Demand for Arbitration by the Appellant [Respondent herein] indicates clearly that he was not in favour [of arbitration] therefore he has waived its rights to arbitration. The Respondent cannot be allowed to approbate and reprobate. He cannot be allowed to abuse or misuse the process to frustrate the Appellant from pressing forward with its claims. Why should he in one breath resist the call for arbitration and in another breath call for arbitration? By this conduct he has waived his rights to arbitration.” Consequently, the Respondent’s appeal was allowed by the Court of Appeal. [6]. ARGUMENT OF THE APPELLANT: In the Appellant’s statement of case filed on the 17th August, 2023, and reply to Respondent’s statement of case filed on the 6th October, 2023, it has been argued by Counsel that contrary to the allegations of the Respondent, the Appellant did not alter the scope of work contained in the Lateral Line Contract. That all works done under the subsequent agreement were incidental to the Lateral Line Contract and within the scope of work envisaged by the parties towards the ultimate execution of the Project. Also, the Appellant has denied the allegations of fraud and devising means to obviate the Appellant’s contractual obligations to the Respondent. It has been argued further by Counsel for the Appellant that, the objection raised by the Appellant to the demand for arbitration was, first, based on the Appellant’s view that the arbitration proceedings had been commenced in breach of the rules of the Ghana Arbitration Centre. Secondly, that the Arbitral Tribunal lacked jurisdiction to entertain a claim arising from the Lateral Line Page 9 of 40 Contract since the parties had released each other of any obligations under the said contract., and thirdly, that the Arbitral Tribunal had no jurisdiction to entertain a claim under the Equipment Rental Agreement as any claim arising from the Equipment Rental Agreement was statute-barred. That notwithstanding the Appellant’s objections, the Appellant went ahead to nominate a sole arbitrator subject to the approval of the Respondent. That the appointment of an arbitrator by the Appellant, was an indication of the Appellant’s readiness and willingness to participate in the arbitral proceedings. [6.1]. It is the submission of the Appellant that if the Court of Appeal had properly considered the evidence on record, they would have found that all disputes between the parties would be subject to arbitration under the Lateral Line Civil Contract. That the Appellant engaged the Respondent to do civil works under the Project following which the Equipment Rental Agreement and the Lateral Line Agreement were executed. That if the Court of Appeal had recognized that the Appellant engaged the Respondent to “undertake and perform the Lateral line civil works and associated activities as more detailed in Attachment 1-Scope of Work to facilitate the construction of the Onshore Nature (sic) Gas Pipeline System, which is a subproject of the Project”, the learned Justices of the Court of Appeal would have found in favour of the reference to arbitration.[Paragraph 47 of the statement of case] According to the Appellant, the parties intended the “associated activities” to cover activities similar to those contained in Attachment 1 of the scope of work. It was also submitted by the Appellant that the learned Justices of the Court of Appeal erred when they found that the objection raised by the Appellant to the jurisdiction of the Arbitral Tribunal to consider the Respondent’s demand for arbitration, amounted to a waiver of the Appellant’s right to arbitration. Accordingly, the Court of Appeal’s conclusion that the Appellant could not be heard to “approbate and reprobate”, was made in error. Page 10 of 40 [7]. ARGUMENT OF THE RESPONDENT: In their statement of case filed on the 20th September, 2023, it has been argued by the Respondent that the Court of Appeal was right in setting aside the ruling of the High Court. Counsel for the Respondent has prayed this Court to strike out additional grounds of appeal filed by the Appellant on 5th December, 2022 without leave of the Court. My Lords, there is an indication on the Record, of additional grounds of appeal filed by the Appellant on the 8th February, 2024, with leave of the Court. It appears that the additional grounds (filed on the 5th December, 2022) referred to by Counsel for the Respondent, was struck out and taken off the Record of Appeal. There is no evidence of the said additional grounds of appeal, allegedly, filed on the 5th December 2022. However, as earlier indicated, the record contains additional grounds of appeal filed by the Appellant on the 8th of February 2024 with the leave of this court. The Respondent has contended that the Appellant could not properly argue the omnibus ground that the judgment is against the weight of evidence, considering that this is an interlocutory appeal. It has been argued further by Counsel that, even if the omnibus ground of appeal has been properly raised by the Appellant herein, the Appellant could not be heard to argue points of law under the said ground of appeal. Accordingly, the Respondent invites the Court to strike out any portion of the Appellant’s argument under the omnibus ground of appeal which advances points of law. It has been argued strenuously by Counsel for the Respondent that, the subject matter of the suit commenced by the Respondent at the High Court is not one that is arbitrable. According to Counsel, the parties have no arbitration agreement to refer the dispute before the High Court to arbitration. Counsel argues that the Lateral Line Contract admits Page 11 of 40 of additional work by way of alteration, modification or amendment in writing only and so, in the absence of any evidence to show that the Lateral Line Contract was altered, modified or amended in writing, the separate or further contracts made by the parties cannot be subsumed under the Lateral Line Contract. The consequence, therefore, would be that the arbitration agreement under the Lateral Line Contract cannot properly extend or apply to the separate contracts which are independent and distinct from the Lateral Line Contract. Again, it has been argued by Counsel for the Respondent that, the Appellant’s objection to the Respondent’s demand for arbitration constitutes a waiver by the Appellant of the Appellant’s right to arbitration. Counsel reiterates that to allow the Appellant to successfully argue that the matter be referred to arbitration when the Appellant had raised an objection to the Respondent’s demand for arbitration, would be to condone the Appellant’s conduct of approbating and reprobating. It has also been submitted by Counsel for the Respondent that the Appellant resisted the Respondent’s demand for arbitration, and the Respondent has also taken recourse to the court to seek redress. Therefore, an order from the Court that the parties go to arbitration when both parties have clearly evinced the intention not to arbitrate, and more particularly so when there is no arbitration agreement between the parties, would undermine the concept of party autonomy in arbitration which requires that parties must agree or consent to arbitration in order to be referred to arbitration. [8]. CONSIDERATION OF THE APPEAL: My Lords, the application before the High Court which culminated in the instant appeal appears to have raised the question whether the subject matter of the suit had an arbitration agreement for which reason the High Court was required to stay proceedings and refer the matter to arbitration in terms of section 6 of the Alternative Dispute Page 12 of 40 Resolution Act, 2010 (Act 798). However, the decision of the Court of Appeal appears to have made some findings on the merits of the case which findings have informed some of the arguments raised in this Honourable Court. Considering that all pleadings have not been filed in the High Court and evidence taken, it is my humble view that some of these findings, such as the Appellant’s liability for significantly altering the scope of the contract between the parties, and the Appellant’s refusal to pay the Respondent for work done, are likely to prejudice the proceedings in the High Court, if the instant appeal fails in its entirety. For example, in the Court of Appeal’s statement of the facts (at page 395 of the ROA) the learned Justices said: “All these works were quantified by the Respondent [Appellant herein] and according to the Appellant [Respondent herein] fully paid for by the Government of Ghana. The logical thing was for the Respondent [Appellant] to pay the Appellant for the works done but was that the case? The Respondent failed to and or refused to do so for a project commenced in 2013/2014 to date. Details of these sums payable to the Appellant run into millions of US Dollars.” At page 406 of the ROA the Court stated as follows: “I have perused the entire record of appeal and on this ground, I indeed find that the 1st Defendant, acting through the 2nd Defendant significantly altered the scope of work contained in the Lateral Line Contract by altering the pipeline routes. This led to the Appellant [Respondent herein] working in a mountainous and marshy terrain requiring more resources, time and costs to construct and implement the civil works.” My Lords, it is my humble view that, these findings go to the substance of the case which would have to be settled by the High Court in the first instance if the appeal fails, or by Page 13 of 40 the Arbitral Tribunal if the instant appeal succeeds and the parties are referred to arbitration. [8.1]. The appeal raises the following issues for consideration: a. Whether the Court below erred in holding that the subsequent contracts covering the work done by the Respondent fell outside the scope of work defined in the Lateral Line Contract. b. Whether the Court below misdirected themselves when they held that the dispute arises from separate contracts that were not under the Lateral Line Contract. c. Whether the Court below erred in holding that the Appellant waived its right to Arbitration. My lords, section 6(1) of the Alternative Dispute Resolution Act, 2010, Act 798 bears the following provisions: Application to court 6. (1) Where there is an arbitration agreement and a party commences an action in a court, the other party may on entering appearance, and on notice to the party who commenced the action in court, apply to the court to refer the action or a part of the action to which the arbitration agreement relates, to arbitration. (2) The court on hearing an application made under subsection (1) shall, if satisfied that the matter in respect of which the application has been made is a matter in respect of which there is an arbitration agreement, refer the matter to arbitration. (3) The grant of an application shall serve as stay of the proceedings in the court. Reference by court Page 14 of 40 7. (5) Where in any action before a court the court realises that the action is the subject of an arbitration agreement, the court shall stay the proceedings and refer the parties to arbitration. It appears from section 6(2) of Act 798 that, when an application is made for reference to arbitration, the court is required to make the order upon satisfaction that there is an arbitration agreement between the litigating parties in respect of the subject matter before the court. The reliefs indorsed on the Respondent’s Statement of Claim (found at page 2 of the ROA) include the following: (a) An order directing the Defendants to pay to the Plaintiff the sum of USD 7, 200,000.00 (Seven Million Two Hundred Thousand Dollars) representing payment for the civil works performed in accordance with the revised scope of work under the Lateral Line Contract, which, among others, altered the pipeline routes. It is my humble view, that the High Court could not have determined these reliefs without recourse to the Lateral Line Contract which naturally invokes the arbitration clause which is part of the terms of the contract. Clause 16.2 of the Lateral Line Contract (found at page 42 of the ROA) reads: “All disputes in connection with this Agreement or the execution thereof which cannot be amicably settled through negotiations after 30 calendar days, following notice to either of the parties of the dispute, shall be submitted for arbitration in accordance with the Ghana Alternative Dispute Resolution Act, 2010 (Act 798) or whichever Arbitration Law for the time being in force. The venue of arbitration shall be in Accra, the capital city of Ghana. The arbitration shall be conducted in English. The award of arbitration shall be final and binding upon both Parties, Page 15 of 40 neither Party shall seek recourse to a law court or other authorities to appeal for revision of the decision. The arbitration fee shall be borne by the losing party.” Clearly, clause 16.2 of the Lateral Line Contract quoted above comes into play and can hardly be ignored in dealing with the contract entered by the parties. Therefore, having found that there was an arbitration agreement between the parties in their contractual relationship (the Lateral Line Contract), it is not too surprising that the trial High Court readily and without other considerations made an order referring the matter to arbitration. [9.0]. THE LATERAL LINE CONTRACT: It has been submitted on behalf of the Appellant herein that the works the costs of which is being claimed by the Respondent which is the basis of this dispute was part of the lateral line contract executed between the parties and for that matter, the Respondent is not entitled to be paid separately for the execution of those works. The Respondent argues the contrary. Nonetheless, there is evidence on record as shown at page 214 of the record that the Appellant agreed to “pay for excavation of lateritic sand material at a rate of $3.09 per m3 and $2.08 per m3 for backfilling of material”. The question to ask is if the Appellant did not agree to pay for additional works done by the Respondent, then what was the need for the agreement to pay as stated on page 214 of the record of appeal, in the email exchanges between the parties to the agreement in the face of the agreement contained in the Lateral Line Contract? Again, the record of appeal abounds with evidence which shows that the Appellant actually agreed with the Respondent to undertake extensive works additional to what had already been agreed upon by the parties in the Lateral Line Contract. It is therefore not surprising that the Court of Appeal found and indeed held in its judgment that: Page 16 of 40 “I indeed find that the 1st Defendant, acting through the 2nd Defendant significantly altered the scope of work contained in the Lateral Line Contract by altering the pipeline routes. This led the Appellant working in a mountainous and marshy terrain requiring more resources, time and cost to construct and implement the civil work …. Further, the Appellant had to build concrete pipe bridges and river crossings in twelve (12) separate locations outside the scope of work …. I find that the extra works were so extensive that they could not be ordinarily incidental to the Lateral Line Contract. They were contracts oral and per emails and conduct.” Flowing from the above findings we hold that the extra works done by the Respondent herein could not be subsumed under the Lateral Line Contract notwithstanding that they flow from the Lateral Line Contract. Consequently, we hold that the trial court erred by considering that the additional works done was part and parcel of the Lateral Line Contract and therefore covered by the arbitration clause contained in clause 16.2 of the Lateral Line Contract. The learned trial judge therefore misconceived the issue at stake when he stayed proceedings and referred the matter to arbitration. [10.]. WAIVER: The record shows that when the dispute arose between the parties, the Respondent herein referred the matter to arbitration. However, the Appellant opposed the referral to the arbitration, arguing that the reliefs sought by the Respondent cannot be brought under the arbitration clause or that they are not covered by the arbitration clause. As a result, the Respondent then issued the instant writ of summons before the High Court for a determination of the dispute. The Respondent thereafter withdrew the matter from arbitration. Consequently, the Appellant filed a motion before the High Court for an order that the dispute be referred to arbitration. Unfortunately, the High Court bought into the argument advanced by the Appellant and duly made an order in which he stayed proceedings and referred the case to arbitration. It has been submitted on behalf of the Page 17 of 40 Appellant that its conduct does not amount to a waiver of its right to have the dispute determined by arbitration. The Respondent argues the contrary. The Court of Appeal, found on this issue that: “The conduct of the Respondent in opposing the demand for arbitration by the Appellant indicates clearly that he was not in favour therefore he has waived its rights to arbitration. The Respondents cannot be allowed to approbate and reprobate. He cannot be allowed to abuse or misuse the process to frustrate the Appellant from pressing forward with its claims” We cannot agree with the Court of Appeal any less. This court in Ogbarmey-Tetteh vs. Ogbarmey-Tetteh [1993-94] 1 GLR 353 quoted with approval the dictum of Honyman J in Smith v Baker (1873) LR 8 CP 350 at 357 and approved by Esher MR in 19 QBD 350 that: “A man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage.” Section 26 of the Evidence Act, 1975, NRCD 323 is firm on this point that: “26. Estoppel by own statement or conduct Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) that party or the successors in interest of that party, and Page 18 of 40 (b) the relying person or successors in interest of that person”. As pointed out in Dupaul Wood Treatment (Gh) Ltd. Vs. Windworth Holdings (Pty) Ltd [2017-2020] 1 SCGLR 807 that: “The learned justices of the Court of Appeal rightly came to the view that having regard to the conduct of the Appellant in accepting liability for the debt and not only proposing terms of payment but also making some payment to the respondent, it was estopped from denying the existence of the debt …. It is unacceptable that the appellant who accepted the absolute liability for the amount in respect of which the writ [was] issued and offered to pay the indebtedness in instalments but failed to do so can be said either in conscience or principle to have a defence to the action herein. The acceptance of liability by the appellant in the circumstances of this case created a conclusive presumption under sections 24 and 26 of the Evidence Act, 1975, NRCD 323. By the said provisions the Supreme Court is precluded from receiving evidence to the contrary of the presumed fact which in this case, is the admission of liability by the appellant”. We are firmly of the opinion that even assuming that the arbitration clause contained in the Lateral Line Contract governs the additional works done by the Respondent, the conduct of the Appellant in first opposing the arbitration which was initially resorted to by the Respondent and then turning round, after the Respondent had instituted the instant action at the High Court, to call for the suit to be referred to arbitration, was such as entitled the Respondent to oppose the ill-motivated call for arbitration. As pointed out by this court in Rockson vs. Ghana Football Association [2010] SCGLR 443, that: “Parties could voluntarily agree to resort to Alternative Dispute Resolution (ADR) mechanism such as arbitration or mediation. That was an accepted public policy in all legal systems. In reality a person’s right to resort to the courts would not Page 19 of 40 entirely be ousted in any agreement containing a resort to Alternative Dispute Resolution because of the principle of the rule of law that where in the process of resort to alternative dispute resolution, there was a breach of the rules of natural justice or any irregularity, the aggrieved party might seek redress in the courts other than the Supreme Court”. We hold that the conduct of the Appellant herein is aimed at nothing but to frustrate and prevent the Respondent from seeking relief from the court in respect of its perceived rights which it thinks have been breached by the Appellant herein. A court of law and equity should never lend its support to a person who approbates and reprobates on the same issue in order to obtain undue advantage. [11]. FRAUD: The Respondent, in his writ of summons and the accompanying statement of claim has alleged fraud against the Appellant herein and provided particulars thereof at paragraph 57. See page 13 of the record. Indeed, fraud connotes criminality and the law requires that such allegations whether made in criminal or civil actions ought to be proved beyond reasonable doubt. See Sasu Bamfo vs. Sintim [2012] 1 SCGLR 136. We are firmly of the view that between a court of law especially the High Court and an arbitrator, the High Court has jurisdiction and is better suited to try and determine an allegation of fraud which amounts to an alleged commission of a crime than an arbitrator. Hence, the Court of Appeal was right in reversing the order of the High Court which demanded that the dispute between the parties herein be determined at an arbitration as opposed to being heard at the High Court. [12]. CONCLUSION: It has been held in several cases that the duty of a second appellate court such as the Supreme Court, is to review the evidence on record; both documentary evidence as well Page 20 of 40 as oral evidence presented to the trial court and establish for itself whether the conclusions reached by the first appellate court is correct in the face of the applicable law. This position of the law becomes even more prominent where the two lower courts, as had happened in the instant matter, reached different conclusions. Thus, in Duodu vs Benewah [2012] 2 SCGLR 1306, the court held that: “It is well settled that; an appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. The appellate court must not disturb the findings of the trial court if they are supported by the evidence…. The Supreme Court’s duty as the final appellate court, is also to review the evidence on record to ascertain whether the findings were supported by the evidence on record, there being no concurrent findings of facts from the lower courts. And the duty of the Appellant is to demonstrate that the Court of Appeal was in error in reversing the findings of facts made by the trial judge.” It is for the above reasons that, after analysing the evidence on record, we have come to the conclusion that the judgment of the Court of Appeal is amply supported by the evidence on record and the law unlike the conclusion reached by the High Court. We therefore proceed to affirm the judgment delivered by the Court of Appeal in this matter on the 28th day of July 2022. Consequently, the appeal against the judgment of the Court of Appeal is hereby dismissed. It is further ordered that the case be remitted to the High Court differently constituted to be heard and determined according to law. (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) Page 21 of 40 (SGD.) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) DISSENTING OPINION ADJEI-FRIMPONG, JSC: This dispute turns on the meaning and scope of an arbitration clause contained in a contract signed between the Plaintiff/Respondent/Appellant/Appellant and the 3rd Defendant/Appellant/Respondent/Respondent. Let me, for purposes of this delivery, refer to the parties by their names on record as “Heiland” and “Sinopec”. Ghana Gas Company Limited had contracted Sinopec to construct a project called the Ghana Early Phase Gas Infrastructural Project. Sinopec in turn engaged Heiland to work on an offshoot sub-project called the Onshore National Gas Pipeline. For this purpose, Page 22 of 40 Sinopec and Heiland entered into two separate contracts namely, the Equipment Rental Agreement and the Lateral Line Civil Work Agreement (The Lateral Line Contract). In this appeal, the Equipment Rental Agreement is not in controversy. Reference to it shall only be peripheral. It is the Lateral Line Civil Contract which is at the center of the dispute. A copy of the Contract was tendered at the trial as Exhibit TA2 and the arbitration clause, the casus belli of this suit is contained in Clause 16.2 thereof. And may I briefly narrate how the case traveled here. Heiland alleged breaches of the two agreements and on 24th July 2020 filed “Demand for Arbitration” at the Ghana Arbitration Center. In it, Heiland made various claims under both Agreements. Sinopec objected to the commencement of the arbitration as being in breach of the rules of the Ghana Arbitration Center. Specifically, in respect of the Lateral Line Contract, Sinopec objected to the jurisdiction of the arbitral tribunal on the basis that the parties had released each other of any obligation under the contract for which reason the said contract was no longer binding. In respect of the Equipment Rental Agreement, Sinopec objected to the jurisdiction of the tribunal on the ground that the claim was statute-barred. Having raised the objections, Sinopec nonetheless proceeded to nominate a certain Vincent Kizito Beyuo Esq as the sole arbitrator. Subsequently, the Ghana arbitration Center wrote on 30th December 2020, to Sinopec to inquire from it, its confirmation or otherwise of the nomination of the nominated sole arbitrator. It appears nothing of substance transpired beyond this until Heiland on 20th November 2020 filed a writ and a statement of claim at the High Court. The reliefs it claimed were multifariously set out as follows: a. An order directing the Defendants [Sinopec] to pay to the Plaintiff the sum of USD 7,200,000.00 (Seven Million Two Hundred Thousand Dollars) representing payment for Page 23 of 40 the further civil works performed in accordance with the revised scope of work under the Lateral Line Contract, which, among others, altered the pipeline routes. b. An order directing the Defendants [Sinopec] to pay to the Plaintiff [Heiland] the sum of USD 3,480,000.00 (Three Million, Four Hundred and Eighty Thousand United States Dollars) for the concrete pipeline bridges and river crossings constructed by the Plaintiff. c. An order directing the Defendants [Sinopec] to pay to the Plaintiff [Heiland] the sum of USD 487,264.00 (Four Hundred and Eighty-Seven Thousand, Two Hundred and Sixty- Four United States Dollars) for the clearing and grading services provided by the Plaintiff [Heiland]. d. An order directing the Defendants [Sinopec] to pay to the Plaintiff [Heiland] the sum of USD 1,684,800 (One Million, Six Hundred and Eighty-Four Thousand Eight Hundred United States Dollars) being the charge for the padding and compaction of the 20-kilometer pipeline. e. An order directing the Defendants [Sinopec] to the Plaintiff [Heiland] the sum of USD 3,580,000 (Three Million, Five Hundred and Eighty Thousand United States Dollars) for the financial losses incurred by the Plaintiff [Heiland] due to the delay in the construction of the Prestea Regulatory Metering Station (PRMS) Project. f. An order directing the Defendants [Sinopec] to pay to the Plaintiff [Heiland] the sum of USD 43,505.00 (Forty-Three Thousand, Five Hundred and Five United States Dollars) for the rock trenching carried out by the Plaintiff [Heiland. g. An order directing the Defendants [Sinopec] to pay to the Plaintiff [Heiland] the sum of USD 885,000 (Eight Hundred and Eighty-Five Thousand United States Dollars) for all geodetic works performed by the Plaintiff. h. Interests on the sums claimed in reliefs (a) to (g) above from the date sue to the date of final payment. i. General damages for breach of the contracts j. Punitive damages for fraud Page 24 of 40 k. Costs and attorney’s fees in accordance with the Ghana Bar Association Scale of Fees; and l. Any other relief(s) as this Honourable Court may deem fit. Upon service of the writ and statement of claim on Sinopec, it caused a conditional appearance to be entered on its behalf following which it applied to stay proceedings at the High Court and have the matter referred to arbitration. In the view of Sinopec, the claims were arbitrable under the parties’ arbitration clause and therefore the provision under clause 16.2 of Exhibit TA2 applied. Heiland opposed the application on several grounds. The culmination of Heiland’s case however was that the works for which Sinopec failed to pay which formed the basis of the reliefs sought constituted “Separate Contracts” which were not covered by the arbitration agreement and therefore it was entitled to litigate them in the High Court. Upon considering the application and the written arguments filed on behalf of the parties, the learned Judge of the High Court bought into Sinopec’s contention and so allowed the application. Her brief ruling was: “I have examined the affidavit evidence filed by the parties in this application together with the written submissions thereto. In my view, the matters in dispute between the parties do not fall within the exceptions to the arbitration provided for in section 1 of Act 798. The dispute between the parties being arbitrable and one within the contemplation of the parties to be subjected to the process of arbitration, I shall granny the application. In consequence pursuant to sections 6(1) and (2) of Act 798, I hereby direct that in accordance with the clause 16.2 of the agreement between the parties, the dispute shall and is hereby referred to arbitration in accordance with the arbitration agreement contained therein. I hereby further order that further proceedings in the substantive suit be hereby stayed pending the outcome of the process of arbitration hereby ordered.” Page 25 of 40 Unhappy with the decision of the learned High Court Judge, Heiland appealed at the Court pf Appeal which reversed the decision of the High Court. The Court of Appeal took the view essentially, that, the works were Separate Contracts not cognizable under the arbitration agreement. It therefore ordered trial to proceed in the High Court. Sinopec appeals in this Court. By the Notice of Appeal filed on 9/8/22, the grounds of Appeal were: 1. That the judgment was against the weight of evidence 2. Additional grounds of appeal will be filed upon receipt of the record of appeal. On 8/2/24 the following additional grounds of appeal were filed pursuant to leave granted by this Court on 6th February 2024: 1. The learned judges wrongfully exercised their discretion in holding that the alleged separate contracts covering the work done by the Respondent fell outside the scope of works defined in the Lateral Line Contract and that there were extra works which were so extreme that they could not be ordinarily incidental to the Lateral Line Contract when it omitted to consider the following: a. The learned judges omitted to consider that the project was a complex one which covered a very long distance and therefore its complex nature had attendant characteristics which may appear as extra works, especially when considered only through having regard to photographic images, although they were merely incidental to the overall realization of the project. b. The learned judges omitted to consider the nature of the project, being a complex one, made it certain that the Respondents would have to create their Right of Way (ROW) as and when they came upon obstacles, in order to perform the main contract, the Lateral Line Contract, in fulfilment of their contractual obligation. c. The learned judges omitted to consider that the Respondent is an experienced subcontractor and therefore, it was reasonable for it to anticipate that given the long stretch of distance Page 26 of 40 the project covered, they would encounter situations for which they had a duty to find solutions to, which included the creation of a Right of Way (ROW) in the event that obstacles were met during the performance of the contract. d. The learned judges omitted to consider affidavit evidence of the Appellant especially Exhibits WX3, WX4 and Exhibit WX5 in the Supplementary Affidavit in support, which indicate that the matters alleged by the Respondent such as the pipeline bridges and river crossing (culvert), trenching and grading, clearing etc., had been invoiced by the Respondent and paid for by the Appellant. 2. The learned judges misdirected themselves when they held that the dispute arises from separate contracts that were not under the Lateral Line Contract. Particulars of Misdirection a. The learned judges failed to consider that the evidence in the form of photographs and electronic mail (email) communications presented by the Respondent herein, were not enough to establish the existence of valid separate contracts between the parties, as all the elements of valid contracts could not be ascertained from the very nature of the evidence on record, being mere photographs and otherwise inconclusive email communications. b. The learned judges failed to consider the complex nature of the Lateral Line Contract in respect of the ‘Western Corridor Gas Infrastructure Development Project.’ c. The learned judges failed to consider the full scope of clause 16 of the Lateral Line Contract (the Arbitration Clause) 3. The learned judges misdirected themselves when they held that the Appellant herein waived its right to Arbitration 4. Particulars of Misdirection a. The learned judges failed to consider that the Appellant’s initial objection to the Arbitration was also premised on the fact that there was an existing Equipment Rental Page 27 of 40 Agreement between the parties which was at the time Statute-barred and consequently, fell as a valid ground for an objection to the Respondent’s demand for Arbitration. b. The learned judges failed to consider that the Appellant raising an objection to the Respondent’s demand for Arbitration on non-existent separate contracts did not amount to objecting to an otherwise proper demand for Arbitration premised on the Lateral Line Contract between the parties. c. The learned justices failed to consider that the Appellant notwithstanding its initial objection to the Respondent’s demand for Arbitration, nominated an Arbitrator for the Arbitration to commence, in the person of Vincent Kizito Beyuo Esq. and for which reason the Ghana Arbitration Center by a letter to the Respondent dated 30th November, 2020 advised the Respondent to confirm or otherwise the nomination of Vincent Kizito Beyuo Esq. as Sole Arbitrator or to propose an Arbitrator for the Respondent’s consideration. d. The learned judges failed to consider that the Respondent initiated the action at the High Court during the pendency of the arbitration process.” I have carefully examined the original and additional grounds of appeal. Much as each merits standing alone, they all synthesize into the overarching quest for this appeal which, as I previously indicated, is whether the works constituting the supposed Separate Contracts are cognizable under the arbitration clause under 16.2 such that the claims thereunder are arbitrable. To my mind, whether or not the supposed Separate Contracts are covered by the clause is certainly a question of interpretation of the clause. And first, what does the clause say? Clause 16.2 Exhibit TA2 provides: “16.2 All disputes in connection with this Agreement or the execution thereof which cannot be amicably settled through negotiations after 30 calendar days, following notice to Page 28 of 40 either of the parties of the dispute, shall be submitted for arbitration in accordance with the Ghana Alternative Dispute Resolution Act, 2010 (Act798) or whichever Arbitration Law for the time being in force. The venue of arbitration shall be in Accra, the capital city of Ghana. The arbitration shall be conducted in English. The award of arbitration shall be final and binding upon both Parties, neither Party shall seek recourse to a law court or other authorities to appeal for revision of the decision. The arbitration fee shall be borne by the losing party.” The learned editors of REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION Sixth ed., (Nigel Blackaby, Constantine Partasides QC with Alan Redfern Martin Hunter, Oxford University Press) on the subject of “Analysis of an Arbitration Agreement” para 2.65 note: “It is important to ensure that the wording adopted in an arbitration agreement is adequate to fulfill the intentions of the parties. Usually, when parties agree to resolve any disputes between them by arbitration, they intend such recourse to arbitration to be mandatory, rather than optional. Accordingly, the arbitration agreement should be drafted so as to make clear that resolving is not only the parties’ right, but also their obligation. Similarly, where parties include an arbitration agreement in their contract, they usually intend to resolve all disputes between them by this method (unless a specific exception is made). Accordingly, the arbitration agreement should be drafted in broad, inclusionary terms, rather than referring only to certain categories of dispute to arbitration and leaving others to the jurisdiction of the courts.” On the attitude of courts in interpreting arbitration clauses, they observe at para 2.66: “Fortunately, national courts now regard arbitration as an appropriate way of resolving international commercial disputes and, accordingly, seek to give effect to arbitration agreements wherever possible, rather than seek to narrow the scope of the agreement so as Page 29 of 40 to preserve the court’s jurisdiction. Thus, the English Court of Appeal referred to a ‘presumption of one-stop arbitration’ in the interpretation of the arbitration that is increasingly reflected in law and practice around the world. Similarly, the Swiss Federal Tribunal tends to interpret arbitration clauses broadly: a general reference to ‘disputes related to the agreement’ may extend to claims arising out of ancillary and connected contracts, provided that those contracts do not contain different dispute resolution clauses.” In FIONA TRUST & HOLDING CORPORATION v YURI PRIVALOV [2007] UKHL 40 Lord Hoffman expressed his pro-arbitration position as follows: “In my opinion, the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction…” This liberal approach in the FIONA case appears to have attracted a large following in other common law jurisdictions. In the Singaporean case of RALS INTERNATIONAL PTE LTD v. CASSA DI RISPARMIO DI PARMA E PIACENZA SPA [2016] SGCA 53 Judith Prakash JA delivering the decision of the Court of Appeal of that country at paragraph 30 stated: “Similarly, there was no dispute as to the broad approach to be taken in determining the scope of arbitration agreement. The decision of this court in Larsen represents the law as it currently stands in Singapore. In Larsen, the court followed the decision of the House of Lords in Fiona Trust & Holding Corporation & Others v Privalov and others [2007]2 ALL ER (Comm) 1053 (“Fiona Trust”) holding that arbitration clauses should be generously Page 30 of 40 construed such that all manner of claims, whether common law or statutory, should be regarded as falling within their scope unless there is a good reason to conclude otherwise. This is a marked departure from the traditional approach of the English courts, which was based on precise words used in the arbitration clause.” This principle has been extended (and called the ‘Extended Fiona Trust Principle’) to apply to a scenario where multiple disputes arise under multiple related agreements between the same parties. See TERRE NEUVE SARL & OTHERS V YEWDALE LIMITED & OTHERS [2020] EWHC 722(COMM) The American courts have also taken to this broad approach to interpretation of arbitration agreements except that the courts have sometimes drawn distinctions among such words as ‘any dispute, controversy or claim ‘arising out of’ or in relation to or in connection with the arbitration agreement. Thus, in PENNZOIL EXPLORATION AND PRODUCTION CO. v. RAMCO ENERGY LTD 139F.3d 1061, 1068 the Fifth Circuit of Appeals in 1998 espoused: “We first examine whether the dispute falls within the scope of the JOA’s arbitration clause which mandates arbitration of “any dispute, controversy or claim arising out of or in relation to or in connection with this Agreement or the operations carried out under this Agreement, including without limitation any dispute as to the validity, interpretation, enforceability or breach of the Agreement.” Both the Supreme Court and this court have characterized similar arbitration clauses as broad arbitration clauses capable of expansive reach. See Prima Paint Corp., v Food Conklin Mfg Co., 388 US 395. 397-98 (1967) (labeling as ‘broad” a clause requiring arbitration of any controversy or claim arising out of or relating to this Agreement”); Nauru Phosphate Royalties, Inc v Drago Dais Interests Inc., 1998 WL 145363 (5th Cir. 1998) (holding that when parties agree to an arbitration clause governing “any dispute …arising out of or in connection with Page 31 of 40 or relating to this Agreement” they “intend the clause to reach all aspects of the relationship”) Furthermore, courts distinguish “narrow” arbitration clauses that only require arbitration of disputes “arising out of” the contract from broad arbitration clauses governing disputes that “relate to” or “are connected with” the contract…. The Joint Operating Agreement uses not only the phrase “arising out of”, but also “in connection with or relating to.” This resolves any doubt that this is a “broad” clause. Broad arbitration clauses, like the JOA’s arbitration clause, are not limited to claims that literally “arise under the contract.” But rather embrace all disputes between the parties having a significant relationship to the contract regardless of the label attached to the dispute. See J. J Ryan Sons v. Rhone Poulenc Textile, 863 F.2d 315, 321 (4TH Cir. 1998); Miller v. Flume, 1998 WL 128443 (7th Cir. 1998)” For good measure, this broad approach to interpretation of an arbitration will be worth- following. Speaking for myself, it presents a better motivation to realize the policy objective of our Alternative Dispute Resolution Act (Act 798) as captured in the Memorandum to the Act. Our revered sister Ackah-Yensu JSC sitting in the Court of Appeal in the case of CSPC GHAMED PHARMACEUTICAL LTD VRS OCTOGLOW GHANA LTD, Civil Appeal No. H1/79/2022, 16th February 2023 articulated the objective in her concurring opinion as follows: “ADR is a fast- growing area within the justice system internationally. The purpose of our ADR Act, reading the memorandum accompanying the Bill, is to bring the law governing arbitration into harmony with international conventions, rules and practices in arbitration, provide the legal and institutional framework that will facilitate and encourage the settlement of disputes through alternative dispute resolution procedures; and provide Page 32 of 40 legislation, for the subject of customary arbitration which we have been practising for years. The Act is also expected to help ease congestion in the courts by reducing the number of cases that go to court and to further create congenial environment for investors.” Surely, it is this objective that drives for instance, the provision in Section 7(1) which allows a court before which an action is pending, if it is of the view that the action or any part of it can be resolved through arbitration, with the consent of the parties in writing, refer the matter to arbitration despite that there is no arbitration agreement in respect of the matter. It must have been under this same persuasion that Dotse JSC in the case of REPUBLIC VRS HIGH COURT (COMMERCIAL DIVISON, ACCRA) EX PARTE GHACEM LTD) AJ FANJ CONSTRUCTION & ENGINEERING LIMITED INTERESTED PARTY Suit No. J5/29/18, 30th May 2018 observed: “What must be noted is that the provisions in Act 798 on arbitral proceedings must be considered as alternative methods of resolution of disputes, and therefore, in our view, the intervention of the High Court, unless expressly provided for and in clear instances devoid of any controversy, must be very slow and cautious.” Persuaded by the foregoing, I shall go for a pro-arbitration liberal interpretation and construe the phrase All disputes in connection with this Agreement or the execution thereof appearing in clause 16.2 of Exhibit TA2 in broad terms. Accordingly, even if, as Heiland argues, the alleged extra works constituted Separate Contracts, to the extent that they were in connection with the Lateral Line Contract or the execution thereof and there being no clear language in the clause to indicate that disputes arising under them were intended to be excluded from the arbitrator’s jurisdiction, they were to be taken as being within the scope of the clause. This approach for me better meets the policy objective of the now governing Act 798 as well as the trend of global pro-arbitration best practices as shown in the authorities referred to. Page 33 of 40 In my assessment, that the supposed Separate contract were connected to the Lateral Line Contract cannot be in doubt. The phrase “Connected with” according to Stroud’s Judicial Dictionary of Words and Phrases “…are to be interpreted in the normal sense as synonymous with “ancillary to”. (10th ed., Vol 1, page 507) The scope of work under the Lateral Line Contract is captured in Exhibit TA2 as follows: “1. The scope of Work covered in the contract lump price and specification: 1)20km of 20” pipeline construction: the ROW [Right of Way] clearing and grading, trenching and backfilling (including restoration), restoration top soil (spread top soil), over excavation (hydraulic protection and weight block point), test post installation (including metering test) and fibre optic cable laying and splicing (including monitoring marker installation). The detail work content see attachment 2. The scope of work of pipeline is fixed, which can’t be changed, the excavation and backfill of the rock area will be charged by the actual work volume.” Reading the entire provision in the Attachment 1, my impression is that the scope of work was not definite and conclusive. This can be seen from the last sentence of the above quotation thus; the scope of work of pipeline is fixed which can’t be changed, the excavation and backfill of the rock area will be charged by actual work done. What it means is that part of the work was fixed (talking about the pipeline) whilst others are ‘unfixed’ the charge of which will be based on actual work done. Additionally, there is an ‘open ended’ provision under sub-clause 4) on the same page stipulating; “4) and the other work stipulated in this contract or [as] the contractor requires from time to time.” My understanding is that from time to time, the contractor may require other works to be done which will either form part of the scope of work in Attachment 1 or be closely Page 34 of 40 connected (or ancillary) to it. Thus, even if the extra works allegedly performed by Heiland constituted Separate Contracts, they were definitely connected to the Scope of Work under Attachment 1. Now what are these extra works Heiland is talking about? From the endorsement on the writ of summons, these may be outlined as follows: 1. Further civil works performed in accordance with the revised scope of work under the Lateral Line Contract, which among others, altered the pipeline. (Relief (a)) 2. Concrete pipeline bridges and river crossings constructed by Heiland (Relief (b) 3. Clearing and grading services provided by Heiland. (Relief (c) 4. Padding and compaction of the 20-kilometer Pipeline (Relief (d) 5. Financial loss incurred by Heiland due to delay in the construction of the Prestea Regulatory Metering Station (PRMS) Project (Relief e) 6. Rock trenching carried out by Heiland (Relief (f) 7. All geodetic works performed by Heiland (Relief (g) From the pleadings that undergird the above reliefs, I am left in no doubt at all that the alleged extra works were either part of Attachment 1 as I understand the scope of works, or were closely connected to it. Whichever way it is considered, I am certain in my mind that the dispute arising from them fell within the scope of the arbitration clause under 16.2. Let me quickly add that the fact that part of the alleged extra works was extensive does not matter to their connection with the Attachment 1. They could be extensive yet connected to the scope of work under Attachment 1. It is for the arbitrator to determine the liability if any, of Sinopec. The fact also that the matter is arbitrable will not detract from the rights of Heiland if its claim is established in the end. The arbitrator just as the court can well deal with the matters. Page 35 of 40 That said, two key point deserve my consideration before I rest from this opinion; the plea of fraud and the question of waiver. First, for the plea of fraud, the following is how Heiland alleged fraud against Sinopec: “56. The Plaintiff states that the Defendants, at all times intended to defraud it. The intentionally took advantage of the urgent nature of the situation to obtain numerous services from the Plaintiff with no intention of paying for it. 57. The Plaintiff further states that the Defendants operated together with the sole intention of defrauding it and evading their contractual liabilities. PARTICULARS OF FRAUD (a) Prior to the execution of the Lateral Line Contract, the 1st Defendant provided the Plaintiff with an initial scope of work, which included all activities, including the ones which form the subject matter of the present action. (b) However, the 1st Defendant removed some of the activities from the Lateral Line Contract claiming that it would contract a Chinese company to perform those activities. After the execution of the Lateral Line Contract, the 1st Defendant instructed the Plaintiff orally, and in some instances, through emails to perform the activities removed from the contract. (c) The Defendants adopted the idea of using a Chinese company to perform those activities as sham to procure services of the Plaintiff without paying for them. (d) The 1st Defendant altered the pipeline route and agreed to recalculate the sums due to the Plaintiff during the implementation period. However, it failed and refused to honour its contractual obligations despite the additional costs incurred by the Plaintiff. (e) The 1st Defendant deliberately executed a separate contract with the 2nd Defendant under which the 2nd Defendant was tasked to perform the same activities the Plaintiff was obliged to perform under the Lateral Line Contract. Page 36 of 40 (f) The 1st Defendant further arranged that all invoices paid to the 2nd Defendant would have the works previously paid to the Plaintiff deducted from them. (g) This motivated the 2nd Defendant to deliberately refuse to inspect the works done by the Plaintiff for certification in order for the 1st Defendant to evade its obligation to pay the Plaintiff and further to increase the 2nd Defendant’s profit margins on the project. (h) The Defendants induced the Plaintiff to perform the clearing and grading works and undertook to pay the Plaintiff for those services and yet failed to pay accordingly. (i) The Defendants deliberately excluded the geodetic activities from the scope of work in the contract. It subsequently agreed with the Plaintiff, outside the contract, for the Plaintiff to perform the activities. It then neglected to acknowledge the geodetic activities and refused to make payment.” [Page 13-14 ROA] From the generality of the pleading and the particulars alleged, all that Heiland is understood to be saying is that Sinopec fraudulently misrepresented facts about terms and scope of the contract to it and having, by such misrepresentation procured it (Heiland) to perform the works, failed to discharge the payment obligations owed to it. A case of fraudulent misrepresentation in contract law terms as I take this one for, is not one which an arbitrator cannot determine. The usual common law remedy for such conduct if established is a rescission of the contract, or damages or both. In the words of the learned editors of CHITTY ON CONTRACT, on the topic “Claims for Damages for fraud”: “Where a person has been induced to enter into a contract as a result of a fraudulent misrepresentation by the other contracting party, he may rescind the contract, or claim damages or both.” [26th ed., SWEET & MAXWELL, para 430, page 286] Indeed, Heiland must have known this hence its indorsement for the relief of damages for fraud on its writ of summons. [Relief (j) page 15 ROA]. I remain certain about the arbitrability of the claim of the nature launched by Heiland. I know of no law that will bar the resolution of this dispute by arbitration. Section 1 of the Page 37 of 40 Alternative Dispute Resolution Act (Act 798) which now regulates arbitrability of disputes under our law provides: “This Act applies to matters other than those that relate to: (a) The national or public interest (b) The environment (c) The enforcement and interpretation of the Constitution; or (d) Any other matter that by law cannot be settled by an alternative dispute resolution method.” Irrespective of how Heiland chose to plead its case including the fraud allegation, the instant case, a pure contractual dispute where one party essentially seeks payment for works allegedly done, cannot be one that by law, cannot be settled by an alternative dispute resolution method in terms of the provision in Section 1(d). It can and ought to. To the other point. It was alleged that Sinopec waived its right under the arbitration clause by objecting to Heiland’s Demand for Arbitration. I am not in agreement with this contention. It will be seen that after raising the objection, Sinopec nonetheless proceeded to nominate Vincent Kizito Beyuo as the Sole Arbitrator. The nomination of a Sole Arbitrator was clearly inconsistent with an intention to waive arbitration. Indeed, there is nothing to show that Sinopec having made the objection went out of its way to opt for litigation in any event. In my argument, merely objecting to an arbitrator’s jurisdiction for a stated reason does not necessarily amount to a step towards litigation so as to deny a litigant of his contractual right under an arbitration clause where otherwise applicable. Speaking for myself, this is not case of approbation and reprobation and I hesitate to bind Sinopec with any such notion. In any event, if the principle of approbation and reprobation applied, then Heiland could equally be guilty of it. For Heiland it was, that initially filed Page 38 of 40 the Demand for Arbitration before the objection was raised. Did Heiland not know that the dispute was not arbitrable at the time it filed the demand? From my standpoint, by nominating an arbitrator, the reasonable inference to draw is that Sinopec rather than elect to litigate, wished the Sole Arbitrator to determine the issue as to whether the dispute fell within the arbitration clause for purposes of determining the arbitrator’s jurisdiction. This would have been in accord with the Kompetenz- Komoetenz principle which has been given a statutory backing by Section 24 of the Alternative Dispute Resolution Act (Act 798). The provision states: “24. Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own jurisdiction particularly in respect of (a) the existence, scope or validity of the arbitration agreement; (b) the existence or validity of the agreement to which the arbitration agreement relates; (c) whether the matters submitted to arbitration are in accordance with the arbitration agreement.” In the final analysis, my conclusion, on all the facts, arguments and the law considered is that, the learned Justices of the Court below took a narrow view of the arbitration clause under Clause 16.2 and excluded from its broad parameters, the supposed Separate Contracts. By that, they fell into error and misdirected themselves on the final conclusion. I disagree with the position of the majority and allow the appeal on all the grounds. (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) Page 39 of 40 COUNSEL KIMATHI KUENYEHIA ESQ. FOR THE PLAINTIFF/RESPONDENT/APPELLANT/ RESPONDENT WITH EARL EYRAM FOSU ESQ. JOHN JARED KPESESE ESQ. ELLIOT ELIKEM OCLOO ESQ. AND MIRIAM SELINAM TSRI ESQ. WEIQIANG YANG ESQ. FOR THE 3RD DEFENDANT/APPELLANT/ RESPONDENT/ APPELLANT WITH PATRICK OFORI ESQ. PHILIPSON KWEKU ADETI ESQ. LED BY NYAABIIRE NSOBILLA ATINDAANA ESQ. Page 40 of 40