March 2, 2022
SUPREME COURT
CORAM
AI Generated Summary
AJ FANJ Construction and Industrial Engineering Ltd appealed to the Supreme Court against a Court of Appeal ruling that struck out its suit against GHACEM on grounds of res judicata and abuse of process. The dispute stems from a 2009 limestone mining contract at Yongwa between West Africa Quarries Limited (WAQL) and AJ FANJ, later extended indefinitely. After the concession was shut in 2016, AJ FANJ initiated arbitration against WAQL and sought to join GHACEM, asserting GHACEM negotiated and performed the contract and was WAQLs alter ego. The arbitral tribunal declined joinder for non-signatory status, a High Court joinder order was quashed by certiorari, and AJ FANJ then sued GHACEM directly. The Supreme Court held that the prior proceedings never adjudicated the substantive claims or contracting-party identity, rejected res judicata and abuse-of-process arguments, reversed the Court of Appeal, and restored the High Courts refusal to strike out, allowing AJ FANJs suit to proceed.
BAFFOE-BONNIE JSC:-
In this ruling the plaintiff, AJ FANJCONSTRUCTION AND INDUSTRIAL ENGINEERING LTD, shall be referred to as the appellant and GHACEM shall be referred to as the respondent.
This is an appeal from a ruling from the Court of Appeal, coram, V.D Ofoe, Bartels Kwodwo (Mrs.), Barnasko-Essah (Mrs.), JJA. Dated, 10th December 2020, The said ruling of the Court of Appeal, reversed an earlier ruling dated 16thApril 2019, delivered by the High Court presided over by Kyei Baafour J(as he then was).The High Court had refused an application by the respondent herein, to dismiss the suit filed by the appellant on the grounds of res judicata and abuse of court process. Being aggrieved by the decision of His Lordship Kyei Baafour J, (as he then was),the respondent appealed to the Court of Appeal which reversed the decision of the High Court and struck out the suit on the grounds of res judicata and abuse of court process. It is this decision by the Court of Appeal that the appellant is challenging before this court.
How did we get here?
BACKGROUND
For a fuller and better appreciation of this ruling it is necessary to set out in great detail the series of events that have culminated in the appeal before us.
On the 8th of July, 2009, West Africa Quarries Limited (WAQL) entered into a contract with AJ FANJ Construction and Engineering Limited, the appellant herein, for the operation of limestone mining, crushing and haulage, from its concessions at Yongwa in the Eastern Region. Subsequent to terms of settlement executed between WAQL and the appellant, the parties agreed that the appellant shall continue to mine and supply limestone from the Yongwa Concession as they had been doing previously, based on agreements, beyond December 2012, which was the expiry date of the then prevailing agreement. As part of the settlement, it was agreed to extend the duration of the 2009 Yongwa contract which was to end in December 2012 for an indefinite period.
In June 2016, the Yongwa Concession was attached in execution of a judgment obtained against WAQL and so the concession was shut down. Following the shutdown of the Yongwa Concession as a result of the attachment of same in execution of the judgment, the appellant herein, instituted arbitral proceedings against WAQL as stipulated in the contract. WAQL did not only dispute the claims of the appellant, it also proceeded to file its statement of defence, after which the appellant filed a reply.
The parties thereafte