Boankra Inland Port High Court Enforces Justmoh Construction To Comply With 253 Million Arbitral Interim Awards

The Commercial Division ( Court 1) of the High Court of Justice has ordered Justmoh Construction limited to comply with the interim arbitral awards by an Arbitral Tribunal which is ordering Justmoh Construction limited to preserve an amount of USD 25, 300,000.00 held in their GCB dollar account in a specified account.

The ruling by the court comes at the back of the failure of Justmoh Construction to comply with the order of the Arbitral Tribunal saying the tribunal lacks the substantive jurisdiction over the matter contrary to section 1 and 57 of the ADR Act compelling Ashanti Ports Services Limited to make applications to the High Court.

Conversely, Her Ladyship Justice Sheila Minta who presided over the case explained that, in Court Proceedings, all orders made at that time may be interlocutory and it will abide till the final decision, unless it is an interlocutory judgment.

She added that in arbitrations, such orders prior to final award may either be partial award or interim awards where Partial Awards are made they abide forever and cannot be changed by the final Award.

The Court further explained that where interim awards are made, they are enforceable up to the final Award which may alter it.

RULING OF THE COURT

In her ruling Her Ladyship Justice Sheila Mintah said “If Interim Awards are not enforceable, then why make them the first place? In the book, Commercial Arbitration in Ghana- Practice and [Procedure by Bobby Banson Esq at page 269 he states as follows “an award delivered by a Tribunal either 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”. I am persuaded by this statement of the law and hereby adopt it”.


BACKGROUND

Ashanti Port Services Limited is seeking An Order for payment of Three Billion, Six- Hundred and Eighty-Three Million, Seven Hundred and Twenty Thousand, Seven Hundred and Eighty-Five United States Dolars (US$3,683,720,785) being the projected income for the Boankra Integrated Logistics Terminal ( BILT) operations period of 27 years by Ministry of Transport.

This was after the Ashanti Ports Services Limited (APSL) filed a notice of arbitration against Ministry of Transport at the United Nations Commission on International Trade Law Arbitration and Ghana Arbitration Centre Following the unilateral unlawful termination of the Contract by Ghana Shippers Authority.

Following an international bidding process, the Ministry of Transport (MOT), acting 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 was for 30 years to be managed by the Concessionaire; the first three (3) years for the construction of the BILT Project, and the remaining twenty-seven (27) years for Operations with a projected Profit Margin of Three Billion, Six- Hundred and Eighty- Three Million, Seven Hundred and Twenty Thousand, Seven Hundred and Eighty- Five United States Dollars (US$3,683,720,785).

The Concession Agreement, signed on 25th September, 2020, aimed to create a 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, Ministry of Transport compelled the Ashanti Ports Services Limited to organize a sod-cutting ceremony, prior to fulfilling preconditions essential for the performance of its obligations under the Concession Agreement, thus putting Ashanti Ports Services Limited to huge financial expenses.

Ashanti Ports Services Limited undertook significant groundwork for the sod- cutting ceremony, including expanding and graveling the road from the entrance of the project site to the Administration Block.

According to the notice, Unlawful interferences by MoT commenced 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 Forty-Nine Million United States Dollars (US$49 million) were sold to GPHA. A Share Purchase Agreement or Shareholders Agreement was later executed on 11th September, 2022 between APSL and GPHA, and with an obligation to contribute towards the shares representing the 10% carried interest of GSA.Samson Kwame Nyamekye/ Hello Fm