POLIMEX (POLISH EXPORT & IMPORT) CO., LTD. v. B.B.C. BUILDERS & ENGINEERS CO., LTD.
February 16, 1968
HIGH COURT
GHANA
CORAM
- EDUSEI J
Areas of Law
- Civil Procedure
- Conflict of Laws
- Contract Law
- Alternative dispute resolution
- Commercial Law
February 16, 1968
HIGH COURT
GHANA
CORAM
AI Generated Summary
This case arises from a commercial account settlement between Polimex, a Polish trading enterprise, and a Ghanaian limited liability company operating in Accra. The parties executed Exhibit A on 4 February 1965, which settled their accounts and left an outstanding balance later sued upon for £G24,489 18s. 8d. They also entered into a separate agreement, Exhibit B, on 5 February 1965, containing an arbitration clause referring disputes concerning that contract to the Arbitration Court at the Polish Chamber of Foreign Trade in Warsaw. The Ghanaian company sought to oust the jurisdiction of the Ghanaian courts by invoking Exhibit B’s arbitration clause and claimed the action was premature due to Exhibit A’s phrase “subject to final confirmation by the management of Polimex.” The court held that the claim was founded on Exhibit A, which lacked an arbitration clause, and found waiver because the Ghanaian company actively litigated without entering conditional appearance or seeking a stay. Guided by The Fehmarn and Nicolene Ltd. v. Simmonds, the court emphasized the dispute’s closer connection and convenience to Ghana, rejected the “final confirmation” objection as meaningless, overruled preliminary objections, and ordered the case to proceed with costs.
The plaintiffs instituted an action against the defendants for the sum of £G24,489 18s. 8d. being the balance of account due and owing on goods sold and delivered by the plaintiffs to the defendants. The plaintiffs in the course of time filed a summons for directions and among the issues was "whether or not the defendants' statement of defence discloses any ground of defence to the plaintiffs' claim." The defendants also filed additional issues which for the purposes of this ruling are not important. This was on 11 February 1967. The defendants filed a defence on 28 February 1967 disputing liability and counterclaimed for an account.
On 11 July 1967 the court set down for hearing on 28 July 1967 the point raised in the plaintiffs' summons for directions as to whether or not the defence discloses any reasonable defence to the plaintiffs' claim. There have been eight adjournments whenever the preliminary point came up for hearing and on 10 January 1968 the defendants' solicitor filed a notice of amendment of his statement of defence by which he pleaded that the courts of Ghana had no jurisdiction to entertain the action. The amendment was granted and it became necessary for the court to take arguments on jurisdiction of the courts of this country—whether or not the courts of Ghana had jurisdiction to hear and determine the suit. This ruling therefore is in respect of the jurisdiction of Ghanaian courts.
It is interesting to note at this stage that by an agreement dated 4 February 1965 the parties herein settled the accounts between them, and it is in respect of the balance of the settled accounts that the action was commenced. The agreement dated 4 February 1965 was tendered in evidence by consent as exhibit A.
On 5 February 1965, another agreement was concluded between the parties and this is exhibit B. In paragraph (12) of exhibit B appears the following arbitration clause: "all differences or disagreements between parties concerning this contract shall be finally settled by the Arbitration Court at the Polish Chamber of Foreign Trade in Warsaw."
It is this arbitration clause upon which the defendants are relying to oust the jurisdiction of the Ghanaian courts. Counsel for the defendants is contending that the proper forum for the determination of the suit between themselves and the plaintiffs is the Arbitration Court at the Polish Chamber of Foreign Trade in Warsaw.
It is interesting to note that no mention of the settled accounts as stated in exhibi