Prof. Kwame Gyan (M) flanked by members of his legal team and Justmoh Construction Limited staff
A High Court in Accra has overturned a US$33.3 million arbitral award and other consequential reliefs previously granted against Justmoh Construction Limited in favour of Ashanti Port Services Limited (APSL) over the Boankra Inland Logistics Terminal project.
The court, in its decision delivered on Wednesday, May 6, 2026, by Justice John-Mark Nuku Alifo, held that APSL lacked legal capacity to commence the arbitration process in the first place.
The court also found that the company’s board was not properly constituted under the terms of its own shareholders’ agreement.
The decision by Justice Alifo, sitting at the Commercial Division of the court, followed an application filed by Justmoh Construction Limited under Section 58 of the Alternative Dispute Resolution Act, 2010 (Act 798), seeking to have the US$33.3 million arbitral award set aside.
Prof. Kwame Gyan, lead counsel for Justmoh Construction, had argued in the application that APSL had no authority to initiate the arbitration and that several jurisdictional and procedural breaches undermined the entire process.
The judge had made it clear at the beginning of his ruling that the matter before the court was not an appeal challenging the merits of the arbitral decision itself, but rather a supervisory application focused strictly on whether the arbitration complied with the legal requirements under Act 798.
Background
The dispute stems from the Boankra Inland Logistics Terminal project, one of Ghana’s major inland port initiatives intended to improve cargo handling and logistics services in the country.
The project was structured as a concession arrangement involving the Government of Ghana through the Ministry of Transport and the Ghana Shippers’ Authority, alongside participating stakeholders including the Ghana Ports and Harbours Authority (GPHA) and Afum Quality Limited.
Ashanti Port Services Limited was incorporated as the concessionaire company responsible for executing the project, with a board structure governed by a Shareholders’ Agreement involving all the participating entities.
In August 2022, APSL contracted Justmoh Construction Limited as the Engineering, Procurement and Construction contractor for Phase 1A of the project.
Court Proceedings
According to the court records, APSL was expected to secure the necessary financing and achieve financial close to allow the project to proceed fully.
However, APSL reportedly failed to raise the required funds for the commencement of the project, resulting in delays and eventual complications surrounding the concession arrangement.
The court heard that GPHA was later directed to acquire shares in APSL, leading to the payment of US$33.3 million as part of a share subscription arrangement.
That amount was subsequently transferred directly into the account of Justmoh Construction in September 2022 to enable work to begin on the project site as mobilisation funding under the EPC contract.
The court found that the source of the funds later became a critical issue in the dispute, particularly regarding whether the money constituted a recoverable loan from APSL or formed part of GPHA’s share acquisition in the project company.
Matters worsened after APSL failed to achieve financial close, prompting the Ghana Shippers’ Authority to terminate the underlying concession agreement effective August 5, 2023.
Following the termination, the Government of Ghana, acting through the Ministry of Transport, reportedly exercised its step-in rights and assumed control of the project infrastructure, materials, equipment and site.
The court also noted that the Ghana Ports and Harbours Authority was directed to take over the management of the project moving forward.
Justmoh Construction later terminated its EPC contract with APSL in October 2023, citing what it described as serious contractual breaches, including the non-payment of certified interim payment certificates.
Despite the state’s intervention and the collapse of the concession arrangement, APSL proceeded to file a Notice of Arbitration at the Ghana Arbitration Centre on December 19, 2023.
A board meeting said to have ratified the arbitration decision was later held on January 25, 2024, but the court found that the meeting was conducted without the participation of nominee directors from GPHA and the Ghana Shippers’ Authority.
Decision
Delivering his decision, Justice Alifo held that APSL lacked the required authority at the time the arbitration proceedings were initiated, noting that such a defect could not be corrected retroactively through a later board resolution.
The court stressed that issues relating to capacity go directly to jurisdiction and that a company cannot acquire jurisdiction midway through proceedings after initially commencing an action without lawful authority.
The judge further held that the board itself was improperly constituted because it did not comply with the requirements outlined in the Shareholders’ Agreement governing APSL’s operations.
The court also rejected APSL’s argument that Justmoh Construction had waived its right to challenge the tribunal’s jurisdiction by participating in the arbitration proceedings.
According to the ruling, the doctrine of waiver may apply to minor procedural irregularities but cannot override fundamental jurisdictional defects.
On the substantive dispute itself, the court held that APSL no longer had a valid cause of action against Justmoh Construction at the time the arbitration was commenced, because the concession agreement had already been terminated by the state.
Justice Alifo further observed that the evidence before the court showed the US$33.3 million originated from GPHA as payment for shares in APSL and not as a loan advanced by APSL to Justmoh Construction.
The court additionally raised concerns about unjust enrichment, noting that APSL could not seek a refund of money it had not directly provided while also benefiting from circumstances caused by its own contractual breaches.
A Daily Guide Report