BARACK FUND SPC LTD. & ANOR VRS MOVELLE COMPANY LIMITED

INTRODUCTION

This is an appeal against the ruling of the High Court, Tema, dated the 29th day of July 2024, in which the learned trial judge upheld the preliminary legal objection raised by the Defendant/Respondent in relation to the jurisdiction of that High Court. In this judgment, the Plaintiff/ Applicant/ Appellant will be known as the Plaintiff whiles the Defendant/ Applicant/ Respondent will be called the Defendant.

THE FACTS

The facts that gave birth to the instant appeal are devoid of any complexities and may be summed up as follows; in or around the year 2017, the first Plaintiff acting on behalf of Barack Structured Finance Segregated portfolio entered into an Import Stock Finance Facility Agreement with the Defendant, a company incorporated under the laws of Ghana. By this agreement, the Plaintiff granted the Defendant a loan facility of 10 million dollars. The said agreement per Clause 23.1 and 23.2 was to be governed by the laws of England with exclusive jurisdiction reserved for the court of England and Wales.

Pursuant to this agreement, a mortgage was executed between the first Plaintiff and the Defendant. It appears that the Defendant defaulted in repaying the facility and a demand notice was subsequently made to it by the first Plaintiff. The Defendant upon receipt of the demand notice disputed the outstanding figure quoted therein and demanded a reconciliation of the account in order to ascertain its actual indebtedness. It appears that the Plaintiffs ignored this request for reconciliation and initiated processes to take over the Defendant’s property which had been mortgaged to the Plaintiff. The Defendant on the 9th day of July 2021, issued a writ claiming certain reliefs against the second Plaintiff.

The Defendant in that suit, the second Plaintiff herein, resisted that claim and objected to the jurisdiction of the Ghanaian court insisting that per the Facility Agreement the parties agreed to be governed by the laws of England and Wales and as well reserved exclusive jurisdiction relative to any dispute arising from the agreement to the court of England and Wales. The Defendant subsequently discontinued with the said action. Thereafter, the Plaintiff commenced the instant Originating Motion on notice for a warrant directing the Ghana Police Service to assist in taking possession of lands located at industrial area Tema and plot 56-58 fishing harbor Tema which has been used as collateral by the Defendant