ASPECO CORP vs EUROPA PEE CO. LTD & ANOR

Introduction

This Originating Motion for Preservation of Funds filed pursuant to Section 39 of the Alternative Dispute Resolution Act, 2010 (Act 798) could have been disposed of much earlier, but for a series of interlocutory matters that this Court had to deal with.

The first was a preliminary objection raised by the Respondents/Respondents (Respondents) to the jurisdiction of this Court among other grounds. The second

was an Application filed by the Claimant/ Applicant (Applicant) for the production of certain Bank Statements by the Respondents .

As is apparent from the record, these matters occasioned a number of adjournments which were further compounded by the failure or refusal of the Respondents to comply with timelines given them for the production of the said Bank Statements.

Having now been furnished with the needed information, I think the coast is now clear for the Court to delve into the substance of the Application.

Facts

By its Motion filed on the 1st of December, 2022, the Applicant prayed this Court for the following reliefs:

“i. an order preserving all the funds standing in the name of the Respondents/Respondents with Zenith Bank Ghana

ii. Any other order that this Honourable Court may deem fit”

From the supporting affidavits before the Court, the following may be summarized as the factual background to the application;

By a Sale and Purchase Agreement dated the 6th day of July, 2022 (Exhibit AC1) the Applicant entered into an agreement with the 1st Respondent company for the purchase of gold.

At all times material to the said transaction, the 2nd Respondent who to all intents and purposes is the alter ego of the 1st Respondent represented it in its dealings with Applicant.

By the terms of Exhibit AC1, the 1st Respondent was to supply to the Applicant 4 kg of gold within 2 days of payment of the agreed funds. As evidenced by Exhibit AC 3, the Applicant had duly paid an amount of One Hundred and Eighty Thousand United States Dollars (USD$ 180,000.00.) being the price of the said quantity of gold, into the account of the 1st Respondent held with Zenith Bank.

The Respondents, despite having acknowledged receipt of the said amount had, as at the date of filing the Application, failed or refused to supply the gold even though they were required to have done so on or before the 25th of July, 2022.

After the several assurances by Respondents which only turned out to be hollow, the Applicant triggered the dispute resolution clause