AJ FANJ CONSTRUCTION LTD & INDUSTRIAL ENGINEERING LIMITED vs. WEST AFRICA QUARRIES LIMITED [2018]DLHC9097

AJ FANJ CONSTRUCTION LTD & INDUSTRIAL ENGINEERING LIMITED vs. WEST AFRICA QUARR... [2018]DLHC9097

Date	2018-12-18
Suit No.	SUIT NO. MISC/0007/2019
Citation No.	[2018]DLHC9097

HER LADYSHIP JUSTICE JENNIFER ABENA DADZIE

MICHAEL GYANG OWUSU ESQ. OF O&A LEGAL CONSULT COUNSEL FOR APPLICANT/APPLICANT

KWAMI ADOBO ESQ. OF TETTEH & CO. LEGAL PRACTITIONERS ACCRA COUNSEL FOR RESPONDENT/RESPONDENT

[2018]DLHC9097
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													<main id="main" class="content" style="min-height: 60rem" >AJ
FANJ CONSTRUCTION LTD &amp; INDUSTRIAL ENGINEERING LIMITED<o:p></o:p>(CLAIMAINT/APPLICANT)<o:p></o:p>vs.<o:p></o:p>WEST
AFRICA QUARRIES LIMITED<o:p></o:p>(RESPONDENT/RESPONDENT)<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;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:normal;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO.
MISC/0007/2019&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; &nbsp; &nbsp; &nbsp;DATE:18TH DECEMBER,
2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MICHAEL GYANG OWUSU, ESQ. OF O&amp;A LEGAL CONSULT,
COUNSEL FOR APPLICANT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm;margin-left:0cm;margin-right:.2pt">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">KWAMI ADOBO,
ESQ. OF TETTEH &amp; CO., LEGAL PRACTITIONERS, ACCRA, COUNSEL FOR
RESPONDENT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP, JUSTICE
JENNIFER ABENA DADZIE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:150%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div><o:p>&nbsp;</o:p>In this application, the Claimant/Applicant,
hereinafter, referred to as the “Applicant” is praying the Court to grant it an
Order of interlocutory injunction to restrain the Respondent herein, its
agents, assigns, workmen or any other persons claiming through or under the
Respondent from assigning or transferring or otherwise dealing with the Yongwa
mine in any manner that creates third party rights or interferes with the legal
rights of the Applicant under the 2009 Yongwa mine contract, which was extended
in 2012 pending the final determination of the pending arbitral
proceedings.&nbsp; The grounds in support of
this application are set out in the affidavit filed by the Applicant in support
thereof.&nbsp; <o:p></o:p>Case of Parties<o:p></o:p>It is the case of the Applicant that sometime in 2004,
Ghacem engaged the Applicant as a contractor to mine, crush and haul limestone
from its limestone concession at a mine called Yongwa mine for a period of two
years. According to the Applicant, this contract was extended in January 2007
for another two years. When the extended contract expired, Ghacem transferred
its limestone concession to its subsidiary, the Respondent herein, who executed
a new contract with the Applicant on July 8, 2009 (the “Yongwa Contract”) which
was produced in evidence as Exhibit “AJF
1”. The Applicant further states that the Yongwa Contract which was to end
in December 2012 was amended by the parties and extended for an indefinite
period as part of settlement between the parties in respect of another mine at
Nauli which could not be operationalized. In June 2016, the Yongwa concession
of the Respondent was shut down as a result of execution of a judgment obtained
by a third party against the Respondent. The Applicant further states that
following the shut-down of the mine, attempts by the Applicant and Respondent
to reach an amicable resolution of compensation to be paid by Respondent to the
Applicant for the period of the shut-down was unsuccessful so the Applicant
instituted arbitration proceedings against the Respondent pursuant to the
arbitration provision in the Yongwa Contract for breach of contract by the
Respondent and a claim of compensation for the breach emanating from the
shut-down of the mine. The Applicant’s Statement of Claim, provided to the
Court and marked as Exhibit “AJF 6”
filed under the Ghana Arbitration Centre Rules outlines the reliefs sought by
the Applicant from the Arbitrator. In summary, the reliefs sought are a
declaration that the Respondent is in breach of the Yongwa Contract and for an
order for recovery of various sums of money as compensation and damages.<o:p></o:p>The Applicant states that after filing their
respective cases, the sole Arbitrator who was appointed resigned as Arbitrator
to take on a new appointment. Before the parties could appoint a new
Arbitrator, the Respondent was able to successfully reverse at the Court of
Appeal, the third-party judgment that caused the mine to be shut-down. The
Applicant has brought this application contending that the Yongwa Contract was
not terminated and that if the mine has been reopened, it is only fair and
proper that the Applicant be allowed to resume to perform its obligations under
the Yongwa Contract. The Applicant contends Respondent has exhibited a clear intention
to contract another contractor to work at the mine in violation of the Yongwa
Contract.&nbsp; The Applicant also claims that
the Respondent is impecunious and would therefore not be able to satisfy any
damages that may be awarded to the Applicant and that a more perfect and
complete justice will be done if Applicant’s application is granted; and an
affront to justice if the Respondent is allowed to contract out the mining,
crushing and haulage of limestone to another contractor.<o:p></o:p>On its part, the Respondent’s response to t</main>