The Ashanti Ports Services Limited (APSL), the Concessionaire for the Boankra Integrated and Logistics Terminal (BILT) project, whose Concessionaire right has purportedly been terminated, has initiated moves for payment of judgment debt of about US$3,683,720,785.
The Claimant has filed a notice of arbitration at the Ghana Arbitration Centre of the United Nations Commission on International Trade Law Arbitrations Rules (UNCITRAL Rules) to seek redress.
It is seeking arbitration against the Ministry of Transport (MoT) through the Ghana Shippers Authority (GSA), following the unlawful termination of contract, as a concessionaire for the Boankra Integrated and Logistics Terminal (BILT) project.
The project was to create vital infrastructure linking the Tema and Takoradi Ports to the inner parts of Ghana and landlocked countries of Burkina Faso, Mali and Niger.
APSL, the Claimant, per the 58-point notice of arbitration filed on May 17, 2024 on its behalf by Maame Sarpong Esq, of G.A. Sarpong & Co., is seeking an order for restoration of the contract in favour of the concessionaire on the grounds that the unilateral termination of the contract by GSA is unlawful.
It also indicated that the unlawful interferences of the respondents (MoT) through the GSA are material breaches.
By the notice of complaint lodged with the Arbitration Centre, APSL is seeking an interim injunction restraining the GSA from carrying on any works at the BILT project site, pending the hearing and determination of the arbitration.
The claimant is also seeking for general damages for breach of the concession agreement dated September 25, 2020 by the GSA (Respondents) and Special damages of the expenses incurred by the claimant in the region of US$16,300,000 with interest.
Other reliefs being sought are an order for a refund of additional sum of US$ 16 million paid by the Ghana Ports and Harbour Authority (GPHA) to Justmoh Construction being the balance of total amount of 39% shares in APSL acquired by GPHA and a further order for the refund of US$49 million 39% of APSL’s share value sold to GPHA.
The APSL also wants an order for the payment of US$3,683,720,785 being the project income for the BILT operations period of 27 years and costs including legal fees.
The Claimant contends that the GSA and Justmoh Construction Limited and Vision Consult Limited as Independent Consultants, are persisting in their unlawful works at the BILT project site, contrary to terms of Agreement between the parties.
Detailing the dispute in the filed notice, APSL claimed that the GSA awarded the Concessionaire right for the development of the Boankra Integrated and Logistics Terminal to Afum Quality Limited (AQL) on Build, Operate and Transfer (BOT) basis for 30 years, to be managed by the concessionaire.
The first three years were for the construction of the BILT project while the remaining 27 years are for operations with a projected profit margin of US$3,683,720,785.
As a result, the APSL was formed as Special Purpose Vehicle (SPV) to represent a consortium member of AQL to provide technical expertise and financial aid for the BILT project, which project was approved and ratified by the Parliament of Ghana in favour of the Concessionaire.
APSL further explained that following the concession agreement, GSA compelled APSL to organise a sod-cutting ceremony, prior to fulfilling preconditions for the performance of obligations under the Concession Agreement, thus putting the claimants to huge financial expenses having undertaken substantial ground work, including expansion and gravelling the road from the entrance of the project site to the Administration Block, for the said sod-cutting ceremony.
Thereafter, APSL and AQL vigorously pursued the necessary preconditions such as technical and engineering designs and financing and permits for the BILT project.
The claimant complained about the payment of US$33.3 million being part of GPHA’s at the instance of the Minister of Transport directly to Justmoh Construction contrary to the proper payment procedure instead of payment of share values to the accounts of the claimant under the Concession Agreement.
It also stated the GSA directed the payment of an additional US$16 million from GPHA to Justmoh Construction outside the agreement. According to the claimant, Vision Consult, as an independent Consultant, has failed to review the technical and engineering designs submitted by the concessionaire.
APSL indicated that it had protested the element of conflict of interest in vain as Vision Consult designed and reviewed its own work and that despite protests, Interim payment certificates have revealed the payment of US$2 million to the independent Consultant by GSA thus breaching the terms of the agreement between the parties as far as the BILT project is concerned.
It was emphasised that the MoT’s interference through the GSA has disrupted the project resulting in financial losses and compromising professional integrity.
The claimant also cited discrepancies in the cost of the estimate for earthworks contrary to the initial estimate, which was not to exceed US$4 million.
According to the Complainant, the Independent Consultant presented IPCs with a staggering cost of US$30 million and which raises concerns of intentional financial exploitation.
Vision Consult and Justmoh Construction with approval from GSA incurred an additional cost of US$36,793,641.54 in earthworks alone without recourse to the claimant besides that it did not form part of the Agreement between the concessionaire and the contractor.
The claimant also stated that the Independent Consultant submitted IPCs for technical designs and earth works in the sum of US$74 million rendering the US$111 million contract approved by the Parliament of Ghana for the Phase 1 unattainable.
According to the claimant, the GSA in July 2023 served a preliminary notice of termination of the concession agreement and purportedly terminated it alleging failure on the part of the claimant to achieve financial close within the cure period in spite of objections raised.
The APSL also claims among others that Vision Consult limited was imposed on the concessionaire to assign the technical and engineering designs contract of the project to the same Independent consultant thus creating conflict of interest and uncertainty.
The concessionaire further claimed it had initiated mediation processes in September 2023, but met challenges because the mediator (Vision Consult Limited) seemed biased culminating in a petition to the Ministry of Justice and Attorney General to forestall possible legal tussles that could saddle Ghana with another judgment debt.
It said it had had to file a notice of arbitration at the Ghana Arbitration Centre against Justmoh Construction Limited, which is ongoing after Justmoh Construction had attempted to terminate the contract agreement between the concessionaire and Justmoh Construction without proper authority.
The filing of the instant notice of arbitration (May 17, 2024) by APSL is aimed at addressing the various disputes arising from the breaches under the various clauses of the Concession Agreement dated September 25, 2020.
The action and subsequent reliefs being sought follow alleged persistence in the unlawful works at the BILT project site by the GSA, Justmoh Construction and Vision Consult Limited, the Independent Consultant.
