ZOOMLION GHANA LTD v. MERSKWORLD COMPANY LTD

SOPHIA ADINYIRA (MRS.) JSC (PRESIDING):

Facts

Plaintiff-Appellant (Plaintiff) and Defendant-Respondent (Defendant) are both engaged in the business of waste management. On 13 October 2008, Plaintiff entered an agreement with the Accra Metropolitan Assembly (AMA), under which the Plaintiff was to pre-finance the construction of a refuse disposal facility at the disused stone quarry located at Sarbah, North-West of Oblogo, and operate the pit for a period of 3 years, subject to renewal. On 15 October 2008, the Plaintiff obtained an Environmental Permit (No. 2004) from the Environmental Protection Agency (EPA) for the construction and operation of the pit, and proceeded to do so.

Meanwhile, on 23 February 2009, Defendant negotiated with members of the Gbawe Kwartei family, which said that the land belonged to them, and paid GHC 200,000, a cow, a sheep and assorted drinks, for the right to use the pit for a period of 99 years. On 25 February 2009, the Kwartei family granted the Defendant access and right of entry to the land.

On 3 December 2009, Defendant entered the Sarbah landfill with police personnel and vehicles, and removed Plaintiff’s workmen, servants and agents on the Sarbah pit, leading to the present dispute. Both sides sought a declaration of their exclusive right to enter and operate the pit, an order for recovery of possession of land, a perpetual injunction restraining the other party from entering and dumping refuse in the pit, and damages.

At the time the action was commenced, the Sarbah pit was empty. While the High Court initially granted an interlocutory injunction restraining both parties from using the pit until the final determination of the suit, new evidence submitted by the Plaintiff and concerns for public health caused the High Court to revise the interlocutory injunction to allow the Plaintiff alone to use the pit. The Plaintiff alone operated the Sarbah pit as a commercial dumping site until June 2012, when it became full with refuse and was closed.

On April 9, 2013, the High Court entered judgment in favor of the Defendant. The Court ordered the Plaintiff to vacate the site and to pay: (1) special damages of GHC 17,581,010 with interest, (2) Gh 20,000 in damages for trespass, and (3) GHC 20,000 in costs. The Plaintiff’s appeal against the judgment is pending.

On May 20, 2013, the Court of Appeal granted a Stay of Execution on the judgment of the High Court, pending the Plaintiff’s appeal, on the condition that it pays 50%