Ashanti Port Services Limited (APSL) is seeking an order for payment of Three Billion, Six-Hundred and Eighty-Three Million, Seven Hundred and Twenty Thousand, Seven Hundred and Eighty-Five United States Dollars (US$3,683,720,785) being the projected income for the Boankra Integrated Logistics Terminal ( BILT) operations period of 27 years by Ministry of Transport for unlawful termination of contract.
This was after the Ashanti Port Services Limited filed a notice of arbitration against Ministry of Transport at the United Nations Commission on International Trade Law Arbitration and Ghana Arbitration Centre Following the unilateral unlawful termination of the Contract by Ghana Shippers Authority.
Despite Media's Sampson Kwame Nyamekye reported that following an international bidding process, the Ministry of Transport (MOT), acting through the Ghana Shippers' Authority (GSA), awarded the Concessionaire rights for the development of the Boankra Integrated Logistics Terminal (BILT) Project on a Build Operate and Transfer (BOT) basis to Afum Quality Limited (AQL).
The BOT was for 30 years to be managed by the Concessionaire; the first three (3) years for the construction of the BILT Project, and the remaining twenty-seven (27) years for Operations with a projected Profit Margin of Three Billion, Six-Hundred and Eighty- Three Million, Seven Hundred and Twenty Thousand, Seven Hundred and Eighty- Five United States Dollars (US$3,683,720,785).
The Concession Agreement, signed on 25th September, 2020, aimed to create a vital infrastructure linking the ports of Tema and Takoradi to the inner parts of Ghana and the landlocked countries of Burkina Faso, Mali, and Niger.
After the execution of the Concession Agreement, Ministry of Transport compelled APSL to organize a sod-cutting ceremony, prior to fulfilling preconditions necessary for the performance of its obligations under the Concession Agreement, thus putting Claimant to huge financial expenses.
APSL undertook substantial groundwork for the sod-cutting ceremony; including expanding and graveling the road from the entrance of the project site to the Administration Block.
According to the notice, Unlawful interferences by Respondent commenced when the Ghana Ports and Harbours Authority (GPHA), under the directive of the Respondent, sought to acquire shares in APSL.
Despite APSL's hesitation, 39% of its shares, valued at Forty-Nine Million United States Dollars (US$49 million) were sold to GPHA.
A Share Purchase Agreement or Shareholders Agreement was subsequently executed on 1st September, 2022 between the APSL and GPHA, and with an obligation to contribute towards the shares representing the 10% carried interest of Ghana Shippers Authority (GSA).
GSA by letter dated 5th July, 2023 to Ashanti Port Services Limited served a Preliminary Notice of Termination of the Concession Agreement alleging failure of Ashanti Port Services Limited to achieve Financial Close within the Cure Period.
Despite the APSL’s insistence on achieving Financial Close, Respondent, through Ghana Shippers Authority, purportedly terminated the Agreement on 21st August, 2023 on grounds that APSL had not achieved Financial Close and subsequently proceeded to take over the management and control of the BILT Project.
APSL by letter dated 30th August, 2023 to GSA objected to the Notice of Termination of the Concession Agreement stating that Financial Close had been achieved.
In the arbitration notice, Ashanti Port Services Limited hinted that the sector minister for Respondent (the current Minister for Transport, Honourable Kwaku Ofori Asiamah) directed the payment of Thirty-Three Million and Three Hundred Thousand United States Dollars (US$33.3 million), part of GPHA's shares, directly to the Contractor, Justmoh Construction Limited, contrary to the proper payment procedure, which required the first payment of the share values to be paid into the accounts of the Ashanti Port Services limited herein being the Concessionaire under the Concession Agreement.
GSA has directed payment of additional sum of Sixteen Million United States Dollars (US$16million) from GPHA to Justmoh Construction Limited, representing the balance of the total amount for the 39% shares in APSL acquired by the GPHA contrary to Ashanti Port Services Limited’s letters to GPHA not to pay the balance of its shares to any entity, save Claimant itself.
APSL by letter dated 31st July, 2023 to GSA outlined some of the specific issues that had befuddled the BILT Project until now.
Ashanti Port Services Limited also asserts that the GSA together with Justmoh Construction Limited and Vision Consult Limited (Independent Consultant) persist in their unlawful works at the BLIT Project site, necessitating intervention by the Arbitral Tribunal as stipulated in the Agreement between the Parties.
Some of the reliefs Ashanti Port Services Limited seeking for in the arbitration include a Declaration that the unlawful interferences of the Respondent acting through GSA were material breaches which contributed to GSA erroneously considering Ashanti Port Services Limited as having failed to meet Financial Close,
*Interim Injunction restraining the GSA from carrying on any works at the BILT Project site pending the hearing and determination of this Arbitration.
*An Order for restoration of the contract in favour of Ashanti Port Services Limited as Concessionaire.
* An Order for a refund of the additional sum of Sixteen Million United States Dollars (US$16million) paid by GPHA to Justmoh Construction Limited, representing the balance of the total amount for the 39% shares in APSL acquired by the GPHA.
Source: SAMPSON KWAME NYAMEKYE /HELLO FM
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