THE REPUBLIC vs. HIGH COURT (COMMERCIAL DIVISION, ACCRA) EX-PARTE: GHACEM LIMITED [AJ FANJ CONSTRUCTION AND ENGINEERING LIMITED- INTERESTED PARTY]

West Africa Quarries Limited (WAQL) entered into a contract on 8 July 2009 with AJ Fanj Construction and Engineering Limited for the operation of limestone mining, crushing and haulage at Yongwa. After disputes arose following the attachment of the Yongwa concession in execution of a judgment against WAQL, AJ Fanj commenced arbitration against WAQL pursuant to the contract. During the arbitral proceedings, AJ Fanj applied to join Ghacem Limited, a non-signatory to the arbitration agreement, on the grounds that Ghacem had negotiated and performed the contract, used WAQL as a façade, was WAQL’s alter ego, and had made assurances amounting to a collateral contract. The arbitral tribunal held that it had jurisdiction to consider joinder as a procedural matter under section 31(3) of the Alternative Dispute Resolution Act, 2010 (Act 798), but ultimately found that, absent specific agreement or rules permitting joinder, it had no power to join a stranger to the arbitration agreement. AJ Fanj then applied to the High Court under section 40 of Act 798 for determination of a preliminary point of law. The High Court assumed jurisdiction, lifted the corporate veil, treated Ghacem as WAQL’s alter ego, and ordered Ghacem’s joinder to the arbitration. Ghacem invoked the Supreme Court’s supervisory jurisdiction by certiorari to quash that ruling. Portion in judgment pointing to this: “On the 8th of July, 2009, West Africa Quarries Limited... entered into a contract with AJ FANJ Construction and Engineering Limited...”; “The Interested Party herein, sought to join the Applicant herein GHACEM, a nonsignatory party, to the ongoing arbitration...”; “The arbitral tribunal dismissed the application for joinder whereupon the interested party filed, in the High Court Commercial Division, an originating motion...”; “The High Court assumed jurisdiction and made an order for joinder of the applicant herein as a party to the arbitral proceedings.”