MAICO (GH) LIMITED (PLAINTIFF) vs. EUROGET DE-INVEST S.A. (DEFENDANT) [2016]DLHC7420

Date	2016-01-22
Suit No.	SUIT NO: RPC/101/15
Citation No.	[2016]DLHC7420

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. ADJEI LARTEY FOR THE PLAINTIFF

MR. YAW ESHUN FOR THE DEFENDANT

[2016]DLHC7420
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													<main id="main" class="content" style="min-height: 60rem" >MAICO (GH) LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>EUROGET DE-INVEST S.A.<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO:&nbsp; RPC/101/15&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:
22ND JANUARY, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR. ADJEI LARTEY FOR THE
PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
YAW ESHUN FOR THE DEFENDANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>The motion before the court seeks an injunction to
restrain the defendants from entering the project site at Salaga and taking
over the works carried by the Plaintiff including materials and equipment at
the site and assigning workers thereto and/or doing anything which will tend to
prejudice the interest of the Plaintiff.<o:p></o:p>The court had earlier asked the parties to resolve
their differences in accordance with the dispute resolution method which they had
set out in the contract governing their relationship. &nbsp;Indeed this involves the appointment of
surveyors and other experts, among others, to measure the works done by the
Plaintiff before the termination of the contract in order to enable a fair
assessment of the compensation due the Plaintiff. It also involves the
assessment of the value and/or measurement of the materials and equipment which
the Plaintiff had left at the site as a result of the contractual engagement
and the subsequent termination.<o:p></o:p>The plaintiff’s assertion is that the defendant had
forcibly taken over the site in question even when inspection and measurement
have not been done to determine the scope of works undertaken by the Plaintiff
and that the actions of the defendant is likely to change the character of the
works done by the Plaintiff with the propensity to confuse future
assessment.&nbsp; The defendant denies the
Plaintiff’s allegations and states that joint measurement of the works done by
the Plaintiff had already been done by surveyors.<o:p></o:p>One cannot reasonably deny the importance of the taking
of measurement of the works done by the Plaintiff and also of the taking of
stocks by the Adjudicating Board to determine the value of materials and
equipment left at the site by the Plaintiff. This will enable the Dispute
Resolution Board to determine and arrive at a fair assessment of how much the
Plaintiff is entitled to receive as compensation or damages for the work done
and also for the value of materials left on site.<o:p></o:p><o:p>&nbsp;</o:p>Therefore any disturbance of the status quo before
settlement is reached has the potential to distort the facts and disable the
Resolution Board from arriving at a true and fair assessment of the Plaintiff’s
entitlement. Even if it is true that the measurements have already been taken,
once the matter has not been finally resolved it will be unwise and imprudent
to disturb the status quo because the need for a future re-assessment of the
works and equipment and materials cannot be ruled out. This is so because by
clause 20.6 of the Fidic Rules under which the parties contracted, any of the
parties reserves the right to refer the matter for International arbitration in
the event that that party is not completely satisfied with the determination or
the award made by the Dispute Adjudication Board. Indeed, should that happen,
one cannot reasonably rule out, as already stated, the necessity for further
revaluation of the works done or for a re-assessment of the value of the
materials and equipment left on site. For that reason, there is the need for
the status quo to be preserved until the dispute is finally resolved.&nbsp; <o:p></o:p>It is therefore in the interest of justice that the
status quo as far as the site is concerned be maintained and not disturbed till
the final resolution of the conflict between the parties.&nbsp; This will ensure that neither party and
particularly the Plaintiff’s interest are not prejudiced before the differences
between the parties are resolved.<o:p></o:p>The balance of convenience will be properly served
by the maintenance of the status quo than its disturbance and this is also a
situation where irreparable damage may be done the Plaintiff if the site is
disturbed because as already pointed out it may potentially distort the
assessment of compensation or damages due the Plaintiff.<o:p></o:p>For these reasons the court grants the Plaintiff’s
application and orders an injunction against the defendant, its workers,
servants, assigns and all others claiming through the defendant from entering
the site and from continuing to work thereon until the final resolution of the
dispute between the parties.<o:p></o:p>The Plaintiff is hereby ordered to comply with rule
9 of Order 25 of the Rules of Procedure of the High Court within ten days from
today.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp</main>