C.B.A.M. INC. vs. S.S.B. BANK LTD. [2005]DLCA6670

Date	2005-06-03
Suit No.	CIVIL APPEAL H1/163/2005
Citation No.	[2005]DLCA6670

ADINYIRA J.A. [PRESIDING]

DOTSE J.A.

MARFUL-SAU J.

DR. EKOW DANIELS FOR PLAINTIFF/RESPONDENT

KIZITO BAYUO FOR THE DEFENDANT/APPELLANT.

[2005]DLCA6670
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													<main id="main" class="content" style="min-height: 60rem" >C.B.A.M. INC.<o:p></o:p>vs.<o:p></o:p>S.S.B. BANK LTD.<o:p></o:p>[COURT
OF APPEAL, 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">

CIVIL APPEAL H1/163/2005.&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: 3RD JUNE, 2005.<o:p></o:p>

KIZITO
BAYUO FOR THE DEFENDANT/APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU J. <o:p></o:p>This
is an appeal from the Judgment of the Fast Track Division of the High Court,
Accra.&nbsp; The Judgment, which is dated the
4th November, 2004, granted all the reliefs endorsed on the Plaintiffs writ of
summons, namely:— <o:p></o:p>1.&nbsp; A declaration that on a true and proper
interpretation of the agreement executed between the parties hereto dated 1st
December, 1999, the said contract as a whole is valid and still subsists, hence
the Defendant is not entitled to affirm part of it, which is beneficial to it,
an disaffirm the rest. <o:p></o:p>2.&nbsp; A declaration that the purported termination
of the contract and total repudiation of the contract by a letter by the Defendant
dated 24th April, 2003, on grounds of deviation of performance by the Plaintiff
is unjustifiable and repugnant to the principles of justice, equity and good
conscience since the contract was carried out in its essential parts, further
the act complained of did not amount to such a breach of a fundamental term in
the agreement which went to the root of the agreement so as to bring the whole
agreement to an end. <o:p></o:p>3.&nbsp; An order of account to be taken of monies
received by the Defendant under the said agreement and the immediate payment of
arrears of the amount due to Plaintiff and interest thereon at such rate and
for such period as the Court shall think fit. <o:p></o:p>4.&nbsp;&nbsp; An order of specific performance by the
Defendant of all its obligations under the said agreement. <o:p></o:p>5.&nbsp; An injunction to restrain the Defendant
whether by it self, its servants or agents onsic otherwise however until
Judgment from operating the Money Gram Service International programme without
the involvement of the Plaintiff, receiving commissions on transfers paid into
its account without payment to the Plaintiff its shares of the fees or
commission. <o:p></o:p>6.
Any further relief in addition to or in lieu of these reliefs including
interest, costs and damages. <o:p></o:p>The
brief facts of the case are as follows: In 1996, CBAM INC., the Plaintiff
(herein described as the respondent) initiated a business transaction by which
Money Gram a world wide money transfer service came to Ghana with SSB Bank, the
appellant herein, accepting to act as the agent of Money Gram. Having promoted
the agency between the appellant and Money Gram, a contract in writing was
executed on the 1st of December 1999.&nbsp; In
the said contract, which was tendered at the trial as Exhibit B, the
respondents undertook among others in clause 2(a) to develop, implement and
finance advertisement and other promotional programs directed specifically at
potential users of the Money Gram service outside Ghana. <o:p></o:p>The
said clause 2 (a) of the contract had a proviso that the respondent shall
submit all its advertising and promotional programmes and materials to the
appellant Bank for a written approval prior to usage and shall furnish the
appellant with evidence of such advertisement on quarterly basis.&nbsp; The parties operated this contract until on
the 24th April, 2003 when the appellant wrote to terminate the contract
invoking clause 1 (d), which gave the appellant the right to terminate upon a
breach by the respondent of the obligations under clause 2.&nbsp; The result of the termination is this
suit.&nbsp; The trial Court as mentioned
earlier, entered Judgment for the respondent on all the reliefs endorsed on the
writ.&nbsp; The appellant now appeals to us
against the Judgment on the following grounds <o:p></o:p>[i]
The trial judge erred in entering judgment for the plaintiff. <o:p></o:p>[ii]
The trial Judge erred in holding that the defendant had waived or condoned the
Plaintiffs breach of the agreement. <o:p></o:p>[iii]
The trial Judge erred in holding that the defendants were not entitled to
terminate the agreement. <o:p></o:p>[iv]
The trial Judge erred in holding that failure of the Plaintiff to obtain prior
written approval for the advertisement was not fatal. <o:p></o:p>[v]
The trial Judge erred in declaring the termination clause in the agreement
unenforceable when the Plaintiff claimed no such relief. <o:p></o:p>Having
however examined the record of proceedings we think that the fundamental issues
to be determined in this appeal are as follows— <o:p></o:p>(1)
Whether or not the breach complained of was fundamental, which entitled the
appellant to terminate the contract. <o:p></o:p>(2)
Whether or not the appellant waived or condoned the breach complained of in the
contract. <o:p></o:p><</main>