AFRICAN AUTOMOBILE LTD. v. MITSUBISHI MOTORS CORPORATION

AYEBI J.A. The plaintiff/respondent is a motor company incorporated under the laws of Ghana.

Defendant/appellant is a Japanese company which manufactures Mitsubishi brand of Motor Vehicles.

Pursuant to a distributorship agreement between them, the plaintiff/respondent had been engaged in the importation, distribution and repair of defendant/appellant’s brand of vehicles in Ghana for a considerable length of time.

One of such import by plaintiff/respondent from the defendant/appellant involved the Mitsubishi Pajero model mounted with an engine code named 4M40.

The said engine type had serious defects which the plaintiff/respondent brought to the attention of the defendant/appellant.

It is the case of the plaintiff/respondent that the defendant/appellant acknowledged the defect in the engines but all the corrective remedies prescribed by them failed.

And after persistent pressure, the defendant/appellant assured that plaintiff/respondent will be compensated for whatever cost she incurred from her own resources in assuaging the anger and frustrations of users of defendant/appellant’s said brand of vehicles.

Unfortunately, plaintiff/respondent says when she served warranty claims on the defendant/appellant, the latter reneged on her previous assurances.

Plaintiff/respondent by her writ of summons against the defendant/appellant, claims the following reliefs: (i) A declaration that defendants have breached their obligations pursuant to agreement reached with plaintiffs regarding the 200 faulty Mitsubishi Model 4M40 Engines supplied by defendants. (ii) An order directed at defendants to reimburse plaintiffs for all the expenses incurred in connection with the faulty engines aforesaid from 2005 to date of final judgment. (iii) Any other reliefs. (iv) Damages for breaches of agreement. (v) Cost including solicitor’s fees.

The suit was instituted at the Commercial Division of the High Court.

Defendant/appellant being a non-resident company, was served with notice of the writ in accordance with Order 9 rule 1(2) of the High Court (Civil Procedure) Rules, 2004 (C.I.47). After the entry of appearance, the appellant applied under Order 19 rules 1 & 4 and Order 64 rule 14, both of C.I. 47 for a stay of proceedings in the suit pursuant to s.8 of the Arbitration Act, 1961 (Act 38). Attached to the affidavit in support is a copy of a “Distributor Agreement”, marked Exhibit MMC1.

Article 31 of the said Distributor Agreement provides that all disputes, controversi