SCANTRUCK (GHANA) LIMITED (PLAINTIFF) vs. SCANIA CVAB (PUBL) (DEFENDANT) [2016]DLHC7421

Date	2016-07-29
Suit No.	SUIT NO.: CM/0126/2016
Citation No.	[2016]DLHC7421

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. BOBBY BENSON FOR THE PLAINTIFF

LAURENCE ATTIVOR FOR MR. MARTIN AGYEN-SAMPONG FOR THE DEFENDANT

[2016]DLHC7421
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													<main id="main" class="content" style="min-height: 60rem" >SCANTRUCK (GHANA) LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>SCANIA CVAB (PUBL)<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO.: CM/0126/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:
29TH JULY, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR. BOBBY BENSON FOR THE
PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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LAURENCE
ATTIVOR FOR MR. MARTIN AGYEN-SAMPONG FOR THE DEFENDANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>In the instant application, the plaintiff herein
prays the court for an order for arbitration proceedings to be held in Ghana under
the Alternative Dispute Resolution (ADR) Act, 2010 Act 798.&nbsp; The plaintiff relies on an agreement signed
between the plaintiff and the defendant exhibited as exhibit SGL.2 Clause 9 of
which provides that:<o:p></o:p>“This
agreement and all of its terms shall be governed by and construed according to
Swedish law. Disputes in connection with this Agreement or further agreements
resulting thereof, shall not be taken to a court of law but shall be finally
settled by arbitration in Sweden according to Swedish law. However, if chosen
by Scania, the governing law and competent courts shall be those of the country
of ScanTruck in the event of any debt of ScanTruck owed and not paid to Scania.”<o:p></o:p>It must be pointed out that clause 8 of this
agreement also states that:<o:p></o:p>“This
Agreement shall become effective on the date of signing by both Parties shall
remain in force until 31st December, 2012. This Agreement can be terminated by either Party without cause by
giving not less than one month written notice of termination”<o:p></o:p>And even though the plaintiff’s CEO signed it on a
date stated as the 24th of June, 2013, the defendant’s
representative failed to indicate the date and place he signed the said
agreement. If this agreement was to remain in force until the 31st
day of December, 2012, how could the plaintiff’s CEO have signed an agreement
which had terminated, on the 24th day of June, 2013?<o:p></o:p>The defendant is opposed to the application on the
main ground that per the terms of the agreement all disputes between the parties
shall be resolved through arbitration in accordance with Swedish law and in
Sweden. The defendant attached to their affidavit in opposition two Agreements
it executed with the plaintiff. These Agreements, labelled as SCA 1 and SCA2 are
a Distributorship Agreement executed by the parties on November 7, 2012 and an
Agreement on Joint Termination executed on the 30th day of April,
2013.<o:p></o:p>Clause 15 of exhibit SCA1 is, in substance, the
same as exhibit SGL.2 attached by the applicant. The Agreement on Joint
Formation exhibit SCA.2 provided at the penultimate paragraph that: “For the
Avoidance of any doubt, clause 15 of the Distributor Agreement shall apply
correspondingly to this Agreement on Joint Formation”.<o:p></o:p>I find that Ex SGL2, attached to the plaintiff’s
application remained in force until the 31st day of December, 2012
when it terminated by mutual agreement. Consequently, the date of 24th
of June, 2013 written/inscribed by the plaintiff’s CEO, cannot be relied on by
the plaintiff, to support its prayer that this court order for arbitration
proceedings to be held in Ghana.<o:p></o:p>Per Clause 15 of the Distributorship Agreement,
exhibit SCA1, which was terminated on the 30th day of April, 2013,
the parties mutually agreed per the Joint Formation Agreement on two main
issues as far as the arbitration clause is concerned. The first part of the
arbitration clause deals with what is commonly referred to as the arbitration
seat. The second part of the clause deals with the forum. The arbitration seat
has to do with the national law with reference to which the arbitration is to
be conducted. The forum deals with the place where the arbitrators are
empowered to meet and hold the arbitration.<o:p></o:p>According to the agreement, the contract between
the parties shall be “governed and construed according to Swedish law.” This
implies that in the conduct of the arbitration, the applicable law shall be the
law of the country of Sweden and no other law. Again the parties have agreed in
respect of the forum that the place of the arbitration shall be Sweden; meaning
that the arbitrators may only meet and conduct the arbitration on the soils of
Sweden and no other country. It is only where the plaintiff is indebted to the
defendant that the defendant may, by the agreement, choose to have the
arbitration held in Ghana and under Ghanaian law. <o:p></o:p>In Inusah
vs. DHL Worldwide Express [1992] 1 GLR 267, the court stated the principle
in relation to contractual documents that<o:p></o:p>