October 17, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Torkornoo, J.A., dismissed an interlocutory appeal arising from a motion to strike out a suit filed in the Ghana High Court concerning a July 2011 Vodafone Procurement Agreement (VPA). The VPA contained a choice-of-law and forum clause designating English law and the exclusive jurisdiction of courts in England and Wales, but Clause 21.3 reserved to both parties the right to sue in any court of competent jurisdiction for specific performance, injunctions, or other equitable relief. After vehicles were returned, the plaintiff sought declarations, penalties, and substantial monetary compensation, including US$11.25 million in investment losses, US$526,941.53 in penalties, and GH2,111,400 for redundancy payments. The High Court refused to strike out, and the Court of Appeal confirmed that Ghanaian courts jurisdiction cannot be ousted by private agreement, Clause 21.3 permits resort to Ghanaian courts, and procedural objections must be pleaded rather than used to strike out. The appeal was dismissed, the case returned to the High Court, and costs of GH5,000 were awarded.
TORKORNOO, J. A:
This is an interlocutory appeal from the high court. The parties entered into a written contract in July 2011 termed as the Vodafone Procurement Agreement (VPA). Under clause 21 of the VPA, they agreed that:
21. GOVERNING LAW AND JURISDICTION
21.1 The VPA is governed by, and shall be construed in accordance with the laws of England and Wales
21.2 Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales, over any claim, dispute, difference arising out or in connection with the VPA (including any non-contractual dispute, controversy or claim)
21.3 Notwithstanding Clause 21.2, each party shall have the right to file any action necessary in any court of competent jurisdiction to seek specific performance, an injunction or other equitable relief to restrain the other as a remedy for any actual or threatened breach.
The Plaintiff/Respondent issued a writ against the Defendant in the high court for the following reliefs:
a. A declaration that the return of the said vehicles entitled the Plaintiff to the payment of penalties by the Defendant.
b. A declaration that the return of the said vehicles entitled the Plaintiff to the payment of compensation for financial and other investment losses.
c. An order for the payment of an amount of US$ 11,248,686.55 being investment losses.
d. An order for the payment of an amount of US526,941.53 being the penalties for the return of the vehicles.
e. An order for the payment of GHȼ111,400.00 being compensation paid to the redundant drivers.
f. General damages for breach of contract.
g. An order for the payment penalty for the return of the 23 vehicles in accordance with the terms and conditions of the agreement.
h. Interests on c, d and e.
i. Costs on full indemnity basis.
j. Any further order(s) as this honorable court may deem fit.
The Defendant/Appellant entered conditional appearance through counsel who filed a motion to strike out the writ on the ground that pursuant to clause 21 of the VPA, the parties had agreed to submit any dispute to the exclusive jurisdiction of the courts of England and Wales. Their argument was that having chosen the forum for any dispute resolution, the courts of Ghana lacked jurisdiction over a dispute arising from the transaction. They supported their argument with the following points.