ACCRA BREWERY COMPANY LTD. vs. GUINNESS GHANA LTD. [1999]DLHC6127

Date	1999-05-28
Suit No.	CS 307/99
Citation No.	[1999]DLHC6127

HIS LORDSHIP MR. A. A. BENIN J.A.

FUGAR FOR THE PLAINTIFF/APPLICANT

OKUDJETO FOR THE DEFENDANT/RESPONDENT

[1999]DLHC6127
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ACCRA BREWERY COMPANY LTD.<o:p></o:p>vs.<o:p></o:p>GUINNESS GHANA LTD.<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CS
307/99&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: MAY 28TH, 1999<o:p></o:p>

OKUDJETO
FOR THE DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

HIS
LORDSHIP MR. A. A. BENIN J.A. <o:p></o:p>

</div>BENIN,
J.A.: <o:p></o:p>This is an application
brought by the plaintiff herein seeking an order of interim injunction
restraining the defendant, its agents, servants, privies and assigns from
further entering into and or in any other way enforcing the agreement dubbed or
entitled “Guinness means profit” retailer scheme initiated by the defendant and
or any similar or further agreements with outlet owners of the plaintiff and in
Ghana pending the final determination of the suit herein in terms of the
accompanying affidavit and for such order or orders as this honourable court
may seem fit. <o:p></o:p>In the accompanying
affidavit, the plaintiff set out the reliefs endorsed on the writ, which as at
now amended, seek the following: <o:p></o:p>1.
a declaration that the said agreement is unreasonable and in restraint of trade
and against public policy and therefore null and void and totally of no effect;
<o:p></o:p>2.
a declaration that the said agreement undermines competition and seeks to
achieve an unfair advantage over its competitors and is thus contrary to public
policy; <o:p></o:p>3.
injunction; <o:p></o:p>4.
damages; and <o:p></o:p>5.
a declaration that the said agreement amounts to an act inducing the said
retailers to breach their contractual relations with the plaintiff. <o:p></o:p>In the affidavit in
support, the plaintiff deposed that its products namely, Club Super Stout, Club
Dark Beer and Castle Milk Stout (which it launched recently) have common
characteristics with the defendant’s product namely Guinness Foreign Extra
Stout and for that&nbsp; reason these products
compete with each other on the open market.&nbsp;
But by the agreement-which I shall refer to in due course-the defendant
has induced their common retailers with money to covenant that they will stock
only the defendant’s products, both alcoholic and non-alcoholic and also to
display advertisements put up by only the defendant.&nbsp; As a result of this, “ the retailers …. have
refused to stock the plaintiff’s products and in fact some of them have even
returned stock which had been supplied to them earlier on.” Not only that, the
plaintiff alleges that “some of the retailers have refused to sell the
plaintiff’s product and those who have been selling the plaintiff’s products
have been sanctioned.” <o:p></o:p>It is the plaintiff’s
contention, as deposed to, that the defendant’s said act is an unlawful
activity by inducing their mutual customers to break their contracts with the
plaintiff.&nbsp; Also “ the terms of the said
agreement are unreasonable, contrary to the public interest, has the tendency
of creating a monopoly and amounting to a restraint in trade and has as a
result compelled the plaintiff’s retailers to cease stocking their products.” <o:p></o:p>The plaintiff also says
that “the conduct of the defendant is preventing the Ghanaian public from
exercising its freedom to choose any alcoholic or non-alcoholic beverage in
drinking bar or other authorised place where the plaintiff and defendant’s
products are sold.”&nbsp; The plaintiff also
charges that “the defendant’s act of inducement contravenes the tenets of
social and economic liberty and prosperity particularly the liberty of the
individual to trade with whom he pleases and the prosperity of the nation by
expansion of the total volume of trade.” <o:p></o:p>As a result of all the
foregoing, the plaintiff is saying that it has lost substantial income and
continues to lose income, and so if the defendant is not restrained the
plaintiff who has already suffered will continue to suffer extreme economic
hardship and substantial inconvenience. <o:p></o:p>A copy of the agreement
was annexed to the plaintiff’s affidavit.&nbsp;
In fact it is no different from the copy annexed to the defendant’s
affidavit.&nbsp; It is titled: “Guinness means
profit” retailer scheme.&nbsp; It has the
following sub-headings to be filled in with appropriate details: (a) customer;
(b) outlet name; (c) address; (d) distributor; and (e) period.&nbsp; The terms and conditions are: <o:p></o:p>1.&nbsp; I agree to stock both sizes of Guinness
foreign extra stout (330 ml and 625 ml) and no other packaged stout or dark
beer for the duration of the scheme. <o:p></o:p>2. I agree to stock both
Malta Guinness packs (bottle and can) and no other non-alcoholic malt drink for
the duration of the scheme. <o:p></o:p>3. I accept my target for
the month of …. as follows …. <o:p></o:p>FES 330 ML ………………….FES 625
ML ……………. <o:p></o:p>MG BOTTLE ………………… MG CAN
……………… <o:p></o:p>…I would like to be
included in the monthly award scheme. <o:p></o:p>4. I agree to display GGL
advertising materials as specified and not to display advertising of any other
stout/dark beer or malta. <o:p></o:p>5. I agree to make available
to GGL personnel at all times my stock record book and distributor invoices for
last month and this month (these will always be at the bar) <o:p></o:p>