The Commercial Division (Court 1) of the High Court of Justice has ordered Justmoh Construction Limited to comply with the interim arbitral awards issued by an Arbitral Tribunal. The Tribunal’s order requires Justmoh Construction Limited to preserve an amount of USD 25,300,000.00 held in their GCB dollar account in a specified account.
This ruling follows Justmoh Construction’s failure to comply with the Arbitral Tribunal’s order, arguing that the tribunal lacked substantive jurisdiction over the matter, contrary to sections 1 and 57 of the ADR Act. This compelled Ashanti Ports Services Limited to seek relief from the High Court. However, Her Ladyship Justice Sheila Minta, who presided over the case, explained that in court proceedings, all orders made at that time are interlocutory and remain in effect until the final decision, unless it is an interlocutory judgment.
Justice Minta further clarified that in arbitrations, orders issued before the final award can either be partial or interim awards. Partial awards remain in effect indefinitely and cannot be altered by the final award, while interim awards are enforceable until the final award, which may confirm, vary, or set aside the interim award.
RULING OF THE COURT
In her ruling, Justice Sheila Mintah stated, “If Interim Awards are not enforceable, then why make them in the first place?” She cited Bobby Banson Esq’s book, “Commercial Arbitration in Ghana – Practice and Procedure,” on page 269, which states, “An award delivered by a Tribunal, whether partial or final, is binding on the parties unless steps are taken to set the award aside on stated grounds. Interim Awards are binding and enforceable until the delivery of the final award by the Tribunal, which may confirm, vary, or set aside the interim award.” Justice Mintah adopted this interpretation of the law in her ruling.
BACKGROUND
Ashanti Ports Services Limited is seeking an order for the payment of USD 3,683,720,785, representing the projected income for the Boankra Integrated Logistics Terminal (BILT) operations over a period of 27 years by the Ministry of Transport. This follows Ashanti Ports Services Limited’s (APSL) notice of arbitration against the Ministry of Transport at the United Nations Commission on International Trade Law Arbitration and Ghana Arbitration Centre, following the unilateral and unlawful termination of the contract by the Ghana Shippers Authority.
Following an international bidding process, the Ministry of Transport (MOT), through the Ghana Shippers’ Authority (GSA), awarded the concessionaire rights for the development of the Boankra Integrated Logistics Terminal (BILT) Project on a Build Operate and Transfer (BOT) basis to Afum Quality Limited (AQL). The BOT agreement was for 30 years, with the first three years allocated for construction and the remaining 27 years for operations, projecting a profit margin of USD 3,683,720,785.
The Concession Agreement, signed on September 25, 2020, aimed to create vital infrastructure linking the ports of Tema and Takoradi to the inner parts of Ghana and the landlocked countries of Burkina Faso, Mali, and Niger. After the execution of the Concession Agreement, the Ministry of Transport compelled Ashanti Ports Services Limited to organize a sod-cutting ceremony before fulfilling the preconditions necessary for its obligations under the agreement, resulting in significant financial expenses for APSL. APSL undertook substantial groundwork for the sod-cutting ceremony, including expanding and graveling the road from the project site entrance to the Administration Block.
According to the notice, unlawful interferences by the Ministry of Transport began when the Ghana Ports and Harbours Authority (GPHA), under the directive of the respondent, sought to acquire shares in APSL. Despite APSL’s hesitation, 39% of its shares, valued at USD 49 million, were sold to GPHA. A Share Purchase Agreement or Shareholders Agreement was subsequently executed on September 11, 2022, between APSL and GPHA, obligating them to contribute towards the shares representing the 10% carried interest of GSA.
Source: Sampson Kwame Nyamekye/Hello FM
