Htg Managed Services Ltd Vrs Busy Internet Ghana Ltd [2023] GHAHC 357 (30 January 2023)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) ACCRA HELD ON MONDAY, THE 30TH DAY OF JANUARY, 2023 BEFORE HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.) ======================================================== SUIT NO: CM/MISC/0176/2023 HTG MANAGED SERVICES LIMITED … PLAINTIFF VRS BUSY INTERNET GHANA LIMITED … DEFENDANT ============================================================ PARTIES: ABSENT COUNSEL: PIUS ESSILFIE HOLDING BRIEF FOR NARTEY TETTEH FOR APPLICANT – PRESENT NOTE: APPLICATION TO ENFORCE ARBITRAL AWARD JUDGEMENT On the 9th of November, 2022, the Claimant/Applicant (Claimant) filed the instant Motion praying this Court for leave to enforce the Arbitral Award SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD of the Ghana Arbitration Centre delivered by Emmanuel Amofa (Sole Arbitrator) and dated the 21st of November, 2021. The Record shows that the Respondent/Respondent (Respondent) was duly served with the said Application but neither appeared in Court nor filed an affidavit in opposition to the said Application. The Claimant’s case as disclosed by the affidavit attached to its motion may be summarized as follows; It is a provider of support Services in the Telecommunication Industry while the Respondent is an Internet Service Provider. The Respondent sometime in the year 2015 engaged the services of the Claimant pursuant to which they executed a Master Tower Licence Agreement. The Respondent however defaulted in its payment obligations as a result of which the Claimant commenced arbitration proceedings against the Respondent for the following reliefs: i) Recovery of the sum of Eleven Million Six Hundred and Sixty -Eight Thousand and Seventy-Two Ghana Cedis Thirty eight Ghana Pesewas being the invoiced fees payable by the Respondent for services enjoyed ii) All additional interest accruals computed at the agreed rate of 2% per month iii) A further order directed at the Respondent to pay 15% of the sums stated in (i) and (ii) as Attorney fees iv) General damages for the breach of contract SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD v) Refund of all expenses in relation to the arbitral proceeding The parties however upon an amicable resolution of their dispute entered into Terms of Settlement on the 9th of August 2021 based on which the Arbitral Tribunal rendered a Consent Award on the 21st of November 2022 as follows; 1. That Effective the 1st of August, 2021, the Claimant shall restore power to all sixteen (16) sites at which the Respondent operates its Equipment. 2. That the Claimant shall deliver to the Respondent the Recurrent Monthly Expense (consisting of rent and consumption of power supplied to the Respondent at a given site) itemized per Site and invoiced to the Respondent in advance. 3. That the Recurrent Monthly Expense (consisting of rent and consumption of power supplied to the Respondent at a given Site) shall be itemized per Site and invoiced to the Respondent in advance. The sum of One Million, One Hundred and Two Thousand, Three Hundred and Seven Ghana Cedis Twelve Ghana Pesewas (GH¢1,102,307.12) paid by Respondent to the Claimant shall be strictly applied by the Claimant to set off all Recurrent Monthly Expense. 4. That an invoice presented to the Respondent by Claimant shall be paid not later than thirty (30) days upon receipt failing which power supply to all Equipment belonging to SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD the Respondent at the Site stated in the invoice shall be disconnected. 5. That the Claimant is awarded interest of 3% on the amount payable monthly by the Respondent in the event where the Respondent defaults in settling any invoice presented in accordance with Paragraph 5 above ( being sub paragraph 34.4 of the said Consent Award) . This outstanding amount and interest must be paid before power supply is reconnected by the Claimant. 6. That the negotiated total legacy debt of Respondent is Five Million Three Hundred and Fifty-Five Thousand and Forty- One Ghana Cedis Twenty-Five Pesewas (GH¢5,355,041.25) interest-free, out of which, the Respondent has made an upfront payment of Two Million Ghana Cedis (GH¢2,000,000.00). 7. That the Claimant is awarded Three Million, Three Hundred and Fifty-Five Thousand and Forty-One Ghana Cedis Twenty-Five Ghana Pesewas (GH¢3,355,041.25) which represents the remaining balance of the negotiated total legacy debt. The remaining balance of the negotiated total legacy debt of Three Million Three Hundred and Fifty-Five Thousand and Forty-One Ghana Cedis Twenty-Five Pesewas (GH¢ 3,355,041.25) shall be paid by the Respondent in quarterly instalments in accordance with SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD 8. the table below: YEAR AMOUNT EXPECTED 1st Quarter of Year GH¢ 419,380.16 31st December, 2021 PAYMENT DATE 2nd Quarter of the Year GH¢ 419,380.16 31st March, 2022 3rd Quarter of the Year GH¢ 419,380.16 30th June, 2022 4th Quarter of the Year GH¢ 419,380.16 30th September, 2022 1st Quarter of the Year GH¢ 419,380.16 31st December, 2022 2nd Quarter of the Year GH¢ 419,380.16 31st March, 2023 3rd Quarter of the Year GH¢ 419,380.16 30th June, 2023 4th Quarter of the Year GH¢ 419,380.16 30th September, 2023 GH¢ 3,355,041.25 9. That the Parties are to review the Master Tower Lease Agreement to reflect the terms of the Consent Award. 10. That the Claimant is awarded the sum of Thirty-Seven Thousand Ghana Cedis (GH¢37,000.00) and Nine Thousand SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD Two Hundred and Fifty Ghana Cedis (GH¢ 9,250.00) being the Respondent’s portion of the Tribunal fees and administrative expenses respectively paid by the Claimant. Section 57 of the Alternative Dispute Resolution Act, 2010 (Act 798) clothes this Court with Power to enforce an Arbitral Award in the absence of any challenge to the jurisdiction of the Arbitrator to make the said Award. As already noted, the Respondent, though duly served with the present Application failed to oppose same or in any way challenge the validity of the said Consent Award. In the premises the Application is granted as prayed. The Claimant is granted leave to enforce the Consent Award of the Ghana Arbitration Centre dated the 21st of November, 2021 and delivered by Emmanuel Amofa (Sole Arbitrator) forthwith. (SGD) AKUA SARPOMAA AMOAH (MRS) JUSTICE OF THE HIGH COURT Statute referred to: Alternative Dispute Resolution Act, 2010 (Act 798) SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD SUIT NO. CM/MISC/0176/20223 HTG MANAGED SERVICES LTD VS BUSY INTERNET GHANA LTD 7