AJ FANJ CONSTRUCTION LIMITED vs. WEST AFRICA QUARRIES LIMITED [2017]DLHC4252

Date	2017-12-21
Suit No.	SUIT NO. MISC/0184/2017
Citation No.	[2017]DLHC4252

SAMUEL K. A. ASIEDU

MR. KWAME ADOBOR FOR THE RESPONDENT WITH HIM ABIGAIL TETTEH

MR. M. GYAN OWUSU FOR THE APPLICANT WITH HIM OSCAR FORDJOUR

MR. EDMUND DIAMOND ADDO FOR Y. KULENDI FOR THE NON SIGNATORY PARTY/RESPONDENT

[2017]DLHC4252
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">AJ FANJ CONSTRUCTION LIMITED<o:p></o:p></a>vs.<o:p></o:p>WEST AFRICA QUARRIES LIMITED<o:p></o:p>&nbsp;[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. MISC/0184/2017&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: 21ST DECEMBER, 2017 <o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR. KWAME ADOBOR FOR THE RESPONDENT WITH HIM,
ABIGAIL TETTEH <o:p></o:p>MR. M. GYAN OWUSU FOR THE APPLICANT WITH HIM,
OSCAR FORDJOUR <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SAMUEL K. A. ASIEDU,
JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>By an originating motion on notice filed on
the 19th October 2017, the applicant herein, AJ Fanj Construction
Limited, seeks an order of this court to join Ghacem Limited as a party to
proceedings currently pending before an arbitrator. The parties to the arbitral
proceedings are the applicant and West Africa Quarries Limited. The parties to
the instant application have filed and rely on their affidavit in support of
and in opposition to the application as well as supplementary affidavits.<o:p></o:p>The application is premised on Order 19 rule
1(2) of the High Court (Civil Procedure) Rules, 2004, CI 47 and also on section
40 of the Alternative Dispute Resolution Act, 2010, Act 798. Order 19 rule 1
sub-rule 2 of CI 47 provides that <o:p></o:p>(2) Proceedings by
which an application is to be made to the Court or a Judge of the Court under
any enactment shall be initiated by motion and where an enactment provides that
an application shall be made by some other means, an application by motion
shall be deemed to satisfy the provision of the enactment as to the making of
the application<o:p></o:p>It is also provided in section 40(1) of the
Alternative Dispute Resolution Act that: <o:p></o:p>40. (1) Unless
otherwise agreed by the parties, the High Court may, on an application on
notice to the other party by a party to arbitral proceedings, determine any
question of law that arises in the course of the proceedings if the Court is
satisfied that the question substantially affects the rights of the other
party.<o:p></o:p>It is on the strength of these provisions
that the applicant has invoked the jurisdiction of this court to join Ghacem as
a necessary party to the arbitration proceedings which is currently pending
before an arbitrator between the applicant and West African Quarry Limited.
Ghacem is opposed to the instant application on many grounds. First, Ghacem
says that the jurisdiction of this court has not been properly invoked by the
applicant in view of the absence of any point of law, in the application, for
resolution by the court. It has been argued on behalf of Ghacem that the
formulation of the issue by the applicant is so general that it has no
relevance to the arbitral proceedings. Counsel says the issue as formulated is
academic, impractical and novel and that it is of no juridical utility.<o:p></o:p>Within the body of the motion, the court has
been invited to determine as a preliminary point of law, the issue as to
“whether or not in arbitral proceedings conducted in Ghana with Ghanaian as the
substantive law, the court will have power to join a non-signatory party to the
arbitral proceedings in the proper circumstances and with particular reference
to the facts deposed to in the accompanying affidavit …”<o:p></o:p>The first point to note is that the issue as
formulated by the applicant herein, contrary to the assertion by Ghacem, is not
general and neither is it academic. The issue is formulated with reference to
“the proper circumstances and with particular reference to the facts deposed to
in the accompanying proceedings” Hence, whatever outcome that might be arrived
at must relate to the proper circumstances of the facts before the court as
shown in the accompanying affidavit. The court is not therefore called upon to
engage in a moot exercise just for the books but to make a decision that
resolves the problem confronting the parties to the arbitration currently
pending before the arbitrator.<o:p></o:p>It has also been submitted on behalf of
Ghacem that “decisions of the High Court </main>