....Air Ghana`s "Unlawful " Operations Spark Litigation In Court!
AVIANCE Ghana Ltd., a limited liability company registered under the laws of the Republic of Ghana, and licensed to engage in ground handling and cargo warehouse management services at the Kotoka International Airport, has been compelled by some unorthodox and hostile acts perpetrated by the Management of the Ghana Airports Company Limited (GACL) to drag the latter company to the Commercial Division of the High Court in pursuit of a number of reliefs and declarations among which is "a declaration that the conduct of the Defendant and/or M/S Owusu-Fianko is in violation of article 23 and 296 of the Constitution 1992".
In an amended statement of claim filed by AVIANCE, the plaintiff in the litigation, a copy of which has been sighted by our court correspondents, the court is being prayed to also declare" that the failure by the Defendant (Ghana Airports Company and/or M/S Owusu-Fianko) to properly regulate the activities of the Perishable Cargo Centre (PCC) is in violation of the laid down security procedures in the Airport".
The plaintiff further claimed that "by permitting the PCC to handle non-perishable cargo and to operate airside the Defendant is in violation of the License granted by the Defendant to the Plaintiff and the Addendum dated 20th December 2011"
Against the backdrop of perceived illegal conduct and constitutional and statutory violations, the plaintiff further prayed the court to order a " perpetual injunction to restrain the Defendant and its agents from permitting the PCC to operate in violation of the Licence"; and a "perpetual injunction to restrain the Defendant and its agents from permitting the PCC to operate in violation of the laid down security procedures in the Airport; and, Damages for breach of contract".
AVIANCE in its amended statement of claim dated May 16, 2013, recalled that by an agreement dated 31st May 2007 between the Ghana Civil Aviation Authority (GCAA) and Aviance, the former granted the latter, a non-exclusive license for a term of seven years commencing from 12th April 2007. Under that license, Aviance was to operate and provide cargo warehouse management and ground handling services at the Kotoka International Airport.
By a letter dated 1st November 2011, the Ghana Airports Company Ltd (GACL) which had assumed some of the statutory functions of the GCAA including the management of airports and grant of ground handling licenses, following the amendment of the Ghana Civil Aviation Authority Act 2004, renewed the 12th April 2007 license for a further term of seven years. AVIANCE indicated that at a subsequent meeting held on 20th December 2011 between the Defendant`s Directors and representatives of the Plaintiff, proposals for the amendment of various provisions of the License were discussed and agreed upon.
The agreement was to the effect that "(a) the Ghana Airports Company Ltd (GACL) be substituted for the Ghana Civil Aviation Authority (GCAA) as the Contracting Party; (b) "ground handling" to extend to loose perishable cargo and packed perishable cargo; loose perishable cargo to be directed to the Perishable Cargo Centre (PCC) and must be delivered to the ground handling providers ("GHPs") to be checked , weighed and delivered to the airside environment; packed perishable cargo to be handled through the cargo warehouse by a GHP to the checked, weighed and delivered to the airside environment" and "(c) the License to extend to the provision of services at all airports within Ghana, including the Airport; the number of GHPs to be limited to two for the period of the License or until the departing passenger figures reach five million per annum; only two GHPs, including the Plaintiff, shall be allowed access to the airside areas in the performance of their duties and delivery of their services to airlines. At all material times, the two GHPs in the Airport have been the Plaintiff and A.H.S. Menzies Aviation".
It was the contention of Aviance that the procedures contained in paragraphs 4(a), (b) and (c) above were aimed at "facilitating efficient export of goods, prevention of illegal export of prohibited goods and substances, and the protection of national security".
It also underscored that upon concluding the amendments and review of the license fees and rent, the parties agreed that an addendum to the license, embodying the matters in paragraph 4, and other amendments negotiated and agreed upon be drawn up for signature; adding that in or about October 2012, the parties resumed further discussion of certain provisions of the License, other than the matters contained in paragraph 4 as detailed in the Minutes prepared by the GACL`s Director of Legal Services. The Meeting mandated the lawyers of the parties to prepare for signature an addendum incorporating the agreements reached. The parties subsequently signed an addendum dated 20th December 2011, incorporating the matters in paragraph 4 and other amendments to the License.
"Notwithstanding the conclusion of the Addendum, M/S Doreen Owusu-Fianko, the Managing Director of the Defendant Company has persistently conducted the affairs of the Defendant Company in flat disregard and violation of the terms of the Addendum, adopting a firm stance of hostility and non-cooperation with the Plaintiff. Particularly, she has authorized or permitted other entities to engage in ground handling services in competition with the Plaintiff and the other GHP at the Airport and has made unfair and damaging allegations against the Plaintiff. At all material times the Plaintiff has received no notification that the Board, Management of the Defendant Company or the Authority had decided to withdraw the License or the Addendum", articulated Aviance in its amended statement of claim.
It recalled that on 29th August 2012, the Chairman of the Board of Directors of Aviance notified the Chairman of the Board of Directors of GACL that Air Ghana Ltd which had hitherto exported perishable cargo through the GHPs, claimed that it had obtained a grant of what it described as a "PCC License" from M/S Owusu-Fianko, and was offering ground handling services at the Airport to various airlines.
"The unlawful operations of Air Ghana were obviously aimed at diverting business from the GHPs and frustrating their operations. The letter concluded with a demand for the Defendant`s confirmation that it did not authorize the unlawful activities of Air Ghana", intimated Aviance.
Aviance continued that "again, on 15th February 2013, the Managing Director of the Plaintiff notified the Defendant of continuing claims by Air Ghana that it had obtained authorization, contrary to the provisions of the License, to provide ground handling operations at the Airport. Air Ghana was engaged in passing all cargo through the PCC, which was for perishable cargo only, and transporting cargo airside. The letter requested the Defendant to abate the illegal operations in the Airport".
On 7th March 2013, Madam Owusu-Fianko wrote to explain in response to Aviance`s complaints as captured in the preceding paragraphs, that the PCC was donated under the Millennium Challenge Compact Agreement concluded between the Millennium Challenge Corporation and the Government of Ghana and that the PCC was for palletizing cargo for export. She revealed that the GACL had granted approval of the management of the PCC by AGPC ( a joint venture between Air Ghana and Kenya Freight Wings Company). Madam Owusu-Fianko disclosed that the management of the PCC was subject to a "pre-requisite" that AGPC would handle its own cargo to the foot of the aircraft and hand over to the handling agent to load onto the flight.
However, in the view of Aviance, the PCC has been utilized unlawfully since its establishment by unauthorized persons in violation of the procedures laid down for export at the Airport and unfair competition with the GHPs. It noted that the mandated security procedures regulating exports at the Airport required that all cargo for export be delivered to a GHP for clearance at a nominated scanner located at the Airport.
"In avoidance of the security procedure, perishable cargo was delivered to the PCC by DHL, processed and sent directly to the aircraft without the involvement of either GHP operating at the Airport. In December 2012, the Plaintiff`s Managing Director reported the illegal operations to the Chairman of the Board of Directors of the Defendant company and M/S Owusu-Fianko but the latter has at no time intervened", Aviance further disclosed.
It was further underscored that the AGPC turned out to be a joint venture company formed by Air Ghana Ltd and Kenya Freight Wings Company, a foreign entity. Thus Aviance "avers that the appointment of the AGPC to administer the PCC to facilitate exports in disregard of laid down procedures in the Airport and in competition with the Plaintiff is wrongful".
Aviance is contending further that the hostile acts and multiple violations of laid down regulations and procedures go against the letter of the "License and the Warranty of the Defendant at common law and in Clause 13.1 of the License that the Defendant would not engage in any activity that would derogate from the rights of the Plaintiff under the License or that except as provided in the License or for reasons of safety, security or the proper operation of the Airport, it would not engage in any act that would prevent the Plaintiff from carrying out its rights under the License. Further and in the alternative, the Defendant has failed to perform its administrative and statutory duty in accordance with the law. In the result the Plaintiff has suffered substantial financial loss".
It is for the above reasons that Aviance has dragged the Ghana Airports Company Ltd to court in pursuit of a chain of declarations and reliefs.
Source: The New Crusading Guide/Ghana
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