THE Ghana Arbitration Centre (GAC) in unanimous decision ordered Justmoh Construction Limited to refund US$33.3 million to Ashanti Port Services Limited, as the outstanding balance of advance mobilisation paid over disputes arising from the Boankra Inland Port (BILT) project.
The amount is to attract simple interest at a rate of four per cent per annum, calculated from 30 days after receipt of the award until full payment.
Conversely, the tribunal directed Ashanti Port Services Limited to pay US$7,107,456.70 to Justmoh Construction Limited as “compensation for earthworks executed at the project site.”
On costs, the tribunal ordered Justmoh Construction to pay 75 per cent of Ashanti Port Services’ legal fees, as well as 75 per cent of the Claimant’s share of the arbitrators’ and administrative fees. This amounts to US$226,875 and GH¢26,250, with no interest accruing on the costs award.
The arbitration involved Ashanti Port Services Limited as the Claimant and Justmoh Construction Limited as the Respondent.
The Claimant was represented by G.A. Sarpong & Co., while the Respondent was represented by Owusu-Ankomah, Arvoh Mensah, Dzigba & Associates.
The dispute formally commenced on December 19, 2023, when the Ghana Arbitration Centre received the Ashanti Post Service’s Notice of Arbitration. This was followed by the Respondent’s (Justmoh Construction Limited) answer on January 10, 2024 and the Claimant’s Reply on January 22, 2024.
On February 12, 2024, the GAC constituted a three-member tribunal made up of Mr Emmanuel Amofa, Professor Richard Frimpong Oppong, and Justice Nene A.O. Amegatcher, who served as Chair. Neither party raised objections to the composition of the tribunal.
A virtual arbitration management conference held on March 5, 2024 saw the parties agree that certain preliminary matters should be determined first. These included the Respondent’s challenge to the tribunal’s jurisdiction and the Claimant’s applications for interim injunction and preservation orders.
Following the exchange of affidavits and written submissions, the tribunal conducted an online oral hearing on April 2, 2024. Both parties were represented by counsel and made detailed submissions on the preliminary issues.
After post-hearing briefs were filed, the tribunal closed hearings on the preliminary matters and issued its Award on Jurisdiction and Interim Relief on May 17, 2024. The proceedings then continued to the substantive merits of the dispute.
A key issue before the tribunal was whether earthworks executed by Justmoh Construction were indeed worth about US$33 million, as claimed by the respondent. Ashanti Port Services argued that the cost of the earthworks did not exceed an estimated US$4 million, relying largely on earlier projections.
However, the tribunal found that the claimant failed to provide independent evidence or expert testimony to support its valuation. The tribunal noted that Ashanti Port Services did not conduct its own independent examination of the cost of the earthworks.
Justmoh Construction, on the other hand, relied on interim payment certificates, monthly progress reports, photographs, designs, and letters from the independent consultant, Vision Consult. The Respondent also pointed to correspondence in which the claimant acknowledged that the value of works executed exceeded US$33 million.
While observing that earthworks were not expressly provided for under the Boankra Contract, the tribunal accepted that substantial works were executed and supported by documentary and photographic evidence presented during the proceedings.
In its final award, the tribunal declared that Justmoh Construction lawfully terminated the Boankra Contract, effectively settling the dispute over the contract’s termination.
All other claims and requests for relief by the parties were dismissed, bringing the arbitration proceedings at the Ghana Arbitration Centre to a close.
Ashanti Port stance after ruling.
Nana Afum Dwamena III, the Kwahu Nkwatia Benkumhene, who doubles as the Chief Executive Officer of Ashanti Port Services Limited (APSL), has expressed satisfaction with the outcome of the recent verdict delivered by the Ghana Arbitration Centre (GAC).
BY TIMES REPORTER
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