February 3, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arises from a ruling of the High Court (Commercial Division) refusing to set aside proceedings brought by the Respondent against the 2nd Defendant/Appellant, a UK-resident entity, in a dispute stemming from an import finance arrangement. The Appellant argued that the Respondent failed to obtain prior leave before issuing a writ intended for service outside Ghana, failed to serve a statement of claim with the notice of writ on the Appellant, and that the High Court had no jurisdiction due to clauses selecting English law and courts. The Court of Appeal reviewed the record and found that the Respondent had obtained leave on 24 July 2017; a misdated order was a clerical registry error. Although the statement of claim was not served with the notice, both were filed and, with a defendant resident in Ghana, the non-compliance was curable under Order 81. On forum, the dispute emanated from a Deed of Charge selecting Ghanaian law and courts, and parties cannot contract to oust Ghanaian courts’ jurisdiction. The appeal was dismissed in its entirety.
BARTELS-KODWO, J.A:
On the 6th of November, 2017 the High Court, Commercial Division delivered a Ruling dismissing the 2nd Defendant/Appellant’s application to set aside the Writ of Summons and Statement of Claim issued by the Plaintiff/ Respondent (hereinafter referred to as the Respondent) against it. This is an Interlocutory Appeal by the 2nd Defendant/Appellant (hereinafter referred to as the Appellant) against the said ruling.
The Grounds of Appeal are as follows:
a. That the learned trial judge erred in failing to dismiss the action against the 2nd Defendant/ Appellant even though he found as a fact that the Plaintiff did not seek the court’s leave before it issued the Writ, notice of it which was to be served outside the jurisdiction;
b. That the learned trial judge erred in failing to nullify the Writ on the ground that one of the Defendants was resident in Ghana even though he found as a fact that no Statement of Claim was attached to the Notice of Writ served on the 2nd Defendant outside the jurisdiction; and
c. That the learned trial judge erred in assuming jurisdiction even though the parties had expressly agreed to submit all disputes arising out of the their agreement to the English Courts for adjudication.
BRIEF FACTS
The parties herein entered into an uncommitted revolving Import Finance Agreement on 9th September, 2012 originally dated 3rd September, 2010 for the import of sugar, rice and cooking oil. This was amended further on 19th April, 2011 and subsequently in June, 2014. These were referred to collectively as the Facility Agreement.
Under this Agreement the Appellant provided a loan facility to the Respondent subject to the terms and conditions set out in the Facility Agreement. The Respondent also provided financial collateral as Stand-By Letters of Credit (SBBLC)of Three Million and Three Hundred United States Dollars (USD 3,300,000)representing 15% of the facility value of the financing facility. The SBLC was also successively extended in tenure. The Facility Agreement also had a Collateral Management Agreement under which the imported goods were kept in a warehouse for release upon request.
The Appellant however in September 2015 by email informed the Respondent that it was no longer interested in trade financing facilities thereby terminating the short term collateral. This was said to be without notice to the Respondent hence impacting negatively on its business. Thereafter the parties were said to have entered into a