A.J. FANJ CONSTRUCTION & INDUSTRIAL & ENGINEERING LTD v. GHACEM LIMITED
April 16, 2019
HIGH COURT
GHANA
CORAM
- ERIC K. BAFFOUR ESQ. J
Areas of Law
- Civil Procedure
- Alternative dispute resolution
April 16, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Judge Eric K. Baffour Esq. J of the High Court considered an application by the Defendant/Applicant to dismiss a civil suit brought by Respondent. The dispute stems from arbitral proceedings under the Yongwa Contract between Respondent and West Africa Quarries Ltd (WAQL), where Respondent unsuccessfully sought to join Applicant, a non‑signatory, to arbitration. Although Asiedu J initially ordered joinder under section 40, the Supreme Court (per Dotse JSC) quashed that order for excess of jurisdiction, affirming that non‑signatories cannot be compelled to arbitrate. In the present action, Applicant invoked Order 11 rule 18(1)(d) to strike out Respondent’s suit on grounds of res judicata and abuse of process, asserting the claims mirrored prior arbitral requests. The court held that res judicata must be pleaded, and that the earlier rulings addressed jurisdictional joinder, not the merits. Abuse of process under Henderson and NAOS principles was misapplied. The application was dismissed as frivolous, with costs of GH¢2,000.00 awarded against Applicant.
RULING
It is provided under Order 11 rule 18(1)(d) of the High Court (Civil Procedure) Rules, 2004, C. I. 47 that:
“The Court may at any stage of the proceedings order any pleadings or anything in any pleadings to be struck out on the grounds that:
(d) it is otherwise an abuse of the process of the Court”
And may order the action to be stayed or dismissed or judgment to be entered accordingly”.
Defendant/Applicant has mounted this application calling for the dismissal of the suit upon the ground that the suit instituted by Respondent constitutes a veritable abuse of the judicial process in so far as according to Applicant this suit has effectively been determined and therefore was res judicata.
The factual grounds giving rise to this application as deposed to in the affidavit by one Morten Gade, the Managing Director of Applicant company is that Respondent commenced arbitral proceedings against West Africa Quarries Ltd (WAQL) pursuant to an agreement that specified resolution of dispute between Respondent and WAQL in arbitration. Respondent in the course of the arbitral proceedings sought for an order to join the Applicant herein, who was not a party to the arbitration agreement, otherwise referred to as the Yongwa Contract to the arbitration proceedings. The issue before the arbitrator upon the application for joinder therefore was whether the Applicant herein who was not a party to the arbitration agreement was compellable to participate in the arbitration proceedings.
That the arbitrator declined the application whereupon the Respondent applied to the High Court, Commercial Division for joinder of Applicant to the arbitration proceedings. In a Ruling delivered by my respected brother, Asiedu J. he granted the application for the Applicant to be joined to the arbitration proceedings. Piqued by the decision of Asiedu J. the applicant invoked the supervisory jurisdiction of the Supreme Court for the purpose of quashing the decision granting the order for joinder.
On the 30th of May, 2018, the Supreme Court quashed the decision of the High Court noting that the Arbitral Tribunal rightly came to the conclusion that it had no power to join the Applicant to the arbitral proceedings. It had further been claimed that Respondent also filed a motion for interlocutory injunction which said application was dismissed. On that basis the issuance of this writ had been attacked by Applicant that the Respondent is seeking reliefs not dissimilar from the ones he s