A major arbitral award tied to one of Ghana’s most ambitious infrastructure projects has been set aside by the High Court in a decision that is likely to shape the future of commercial arbitration, corporate authority, and construction disputes in Ghana.
On 6 May 2026, the High Court (Commercial Division) in Accra, presided over by Justice John-Mark Nuku Alifo, delivered a ruling in Justmoh Construction Limited v Ashanti Port Services Limited, setting aside an arbitral award that had ordered Justmoh Construction Limited to repay US$33.3 million to Ashanti Port Services Limited (APSL).
The judgment is significant not only because an arbitral award was overturned, but because of the court’s detailed examination of the legal foundations upon which the arbitration itself rested. In setting aside the award, the court identified fundamental defects relating to corporate authority, contractual procedure, jurisdiction, and even the existence of a valid cause of action.
Background
The dispute arose from the Boankra Integrated Logistics Terminal (BILT) Project, a proposed US$330 million inland logistics hub in the Ashanti Region. The project was structured as a Build, Operate and Transfer concession granted by the Ghana Shippers’ Authority (GSA) to APSL, a special purpose vehicle partly owned by the Ghana Ports and Harbours Authority (GPHA).
In August 2022, APSL contracted Justmoh Construction Limited to execute Phase 1A of the project under a US$111 million agreement. The relationship later broke down over disputes relating to payment certificates and project financing. Justmoh claimed it had completed earthworks worth over US$30 million, while APSL declined to certify or pay for the works.
The situation escalated in August 2023 when GSA terminated APSL’s concession for failing to achieve financial close. Nevertheless, APSL initiated arbitration proceedings in December 2023 before the Ghana Arbitration Centre, seeking recovery of a US$33.3 million mobilisation advance it described as a loan to Justmoh.
The arbitral tribunal largely ruled in APSL’s favour, ordering Justmoh to repay the US$33.3 million advance with interest, while awarding Justmoh about US$7.1 million for work completed. This left Justmoh facing a net liability of approximately US$26 million.
Dissatisfied with the award, Justmoh applied to the High Court under Section 58 of the Alternative Dispute Resolution Act, 2010 (Act 798), to have the award set aside.
No Board Resolution, No Capacity
The court first considered whether APSL had the legal authority to commence the arbitration.
Under Section 200(2) of the Companies Act, 2019 (Act 992), a company may only initiate legal proceedings through proper corporate authorisation, such as a board resolution.
The court held that a Request for Arbitration is equivalent to commencing court proceedings, meaning the required authority must exist at the moment arbitration begins. However, APSL’s board resolution authorising the arbitration was passed on 24 January 2024, more than a month after the arbitration had already commenced on 19 December 2023.
As a result, the court found that the arbitration was initiated without lawful corporate authority.
APSL argued that the later resolution ratified the earlier actions of its CEO, but the court rejected this position. Relying on National Investment Bank v Standard Bank Offshore Trust Co Ltd, the court held that jurisdictional defects cannot be cured retrospectively. If capacity is absent at the start of proceedings, the entire process is void from the outset.
The court also dismissed APSL’s reliance on the indoor management rule in Royal British Bank v Turquand, explaining that the principle protects outsiders dealing commercially with a company, not parties challenging the company’s authority to sue.
Likewise, the court rejected the argument that the CEO had ostensible authority to commence arbitration, holding that initiating legal proceedings is a statutory function reserved for properly authorised corporate organs.
Echoing the famous principle in MacFoy v United African Company Ltd, the court effectively concluded that one cannot build something on nothing and expect it to stand.
Arbitration Clauses Must Be Followed Strictly
The court also examined the dispute resolution procedure outlined in the construction contract.
Clause 20 created a multi-layered process that required disputes to first go through a Dispute Adjudication Board (DAB), followed by amicable settlement efforts, before arbitration could properly commence.
According to the court, APSL failed to comply with these mandatory steps.
While APSL argued that Justmoh had frustrated the DAB process by refusing to cooperate in appointing adjudicators, the court held that the contractual procedure remained binding. Citing cases such as Boyefio v NTHC Properties and BCM Ghana Ltd v Ashanti Goldfields Ltd, the court reaffirmed that conditions precedent to arbitration are jurisdictional requirements that must be strictly followed.
The ruling reinforces the principle that dispute resolution clauses are not mere formalities. Where parties agree to sequential procedures, courts will insist that those steps are exhausted before arbitration can validly begin.
The court also expressed concern about the composition of the arbitral tribunal, which consisted entirely of lawyers despite the highly technical nature of the construction dispute. Although this was not the main basis of the decision, the observation raises important questions about the need for technical expertise in specialist infrastructure arbitration.
The Money Was Not APSL’s to Recover
Perhaps the most striking aspect of the judgment was the court’s analysis of the actual source of the disputed US$33.3 million payment.
The evidence showed that the mobilisation advance had not been paid by APSL itself. Rather, the payment had been made directly by GPHA as part of its obligations connected to its investment participation in APSL.
The court found that APSL had therefore not suffered the loss it was attempting to recover through arbitration.
APSL also failed to demonstrate that GPHA had assigned any recovery rights to it. By the time arbitration commenced, APSL had also already lost its concession and ceased to function as the project employer after the Ghana Shippers’ Authority assumed control of the project.
In those circumstances, the court concluded that APSL lacked a sustainable cause of action against Justmoh. Any possible claim regarding the advance payment lay elsewhere, potentially with GPHA or the GSA, but not with APSL itself.
The court’s reasoning highlights the importance of tracing legal and financial relationships carefully in modern infrastructure projects involving special purpose vehicles, state entities, financiers, and layered contractual arrangements. In complex project structures, identifying who actually paid the money may ultimately determine who possesses the legal right to recover it.
A Powerful Reminder About the Limits of Arbitration
The decision in Justmoh v Ashanti Port Services is a strong reminder that arbitration is not beyond judicial scrutiny where serious jurisdictional defects exist.
The ruling highlights the need for proper board authorisation before commencing proceedings, strict compliance with contractual dispute resolution procedures, and careful attention to payment structures within SPV arrangements.
It also reaffirms the supervisory role of the courts under Section 58 of Act 798. While Ghanaian courts generally respect arbitral autonomy, they will intervene where the foundation of the arbitral process is fundamentally defective.
The judgment also stands as an important statement on the limits of arbitral authority in Ghana. As the case demonstrates, in complex commercial projects, once the legal foundation cracks, everything built on it is at risk.
The court also awarded costs of GHS100,000 against APSL.
