ALBERT KWASI AGYEI (PLAINTIFF) vs. BUDGET CASH & CARRY LTD (DEFENDANT) [2007]DLHC7388

Date	2007-07-26
Suit No.	SUIT NO.AC 154/2006.
Citation No.	[2007]DLHC7388

IRISMAY BROWN (MRS.) JUSTICE OF THE HIGH COURT

[2007]DLHC7388
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													<main id="main" class="content" style="min-height: 60rem" >ALBERT KWASI AGYEI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>BUDGET CASH &amp; CARRY LTD<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (AUTOMATED/FAST TRACK),
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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IRISMAY BROWN, (MRS.) JUSTICE OF THE
HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>Plaintiff
is a businessman dealing in the importation and distribution of exotic fruits
and drinks. Under a Franchise Agreement with PEEP ONE GMBH GERMANY his company
GLOBAL 5000 ENTERPRISE was given the sole right of distributorship in Ghana of
"PEEP ONE EXOTIC DRINK". <o:p></o:p>Sometime
later he discovered that the same drinks bearing the label of his company were
being advertised on TV3 and being undersold in central Accra and other
districts. Also on the market were drinks with the inscription "PEP ONE
FANTASTIC DRINK" bearing the same colours and labels as his cans. Upon
discovery that the Defendant company was the dealer involved in the
distribution of the drinks he has sued the company claiming; <o:p></o:p>a.
General damages for the deprivation of economic gain. <o:p></o:p>b.
Damages for wrongful conversion. <o:p></o:p>c.
Perpetual Injunction restraining Defendant and his agents from distributing
selling offering for sale or in any way dealing with Peep One Exotic Drink. <o:p></o:p>d.
Order to deliver up the cans to defendant. <o:p></o:p>The
Chief Executive Officer of the Defendant Company who testified accepted that
the drinks were distributed from his outlet. He states that he has been since
2001 a long established agent of Smart Drinks Limited Company, manufacturers of
energy drinks including Peep one and Pep one. He testified that due to a
dispute between the Plaintiff and Peep One Gmbh the franchise agreement had
been terminated by Peep One Gmbh. The drinks had been left in the warehouse of
Smart Drinks. Plaintiff had been prevailed upon to cut his losses and take the
drinks for an additional payment of €14,000 but he had refused insisting he had
already paid for the drinks. He the Defendant had been asked by Smart Drinks to
assist in the disposal of the unclaimed consignment to mitigate losses as the
expiry date was imminent. He relied on various documents showing: <o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Letter from Peep One Gmbh terminating the
franchise agreement with the Plaintiff. <o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Letter from Smart Drinks offering the
Defendant Company exclusive franchise to distribute Peep One Drinks <o:p></o:p>iii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Letter from Peep One Gmbh consenting to the
distribution of Peep One Drinks by the Defendant in Ghana. <o:p></o:p>He
claims the "Pep One" Drinks had been inadvertently mixed up with the
"Peep One" consignment. <o:p></o:p>He
denies making any profit as due to bad publicity initiated by Plaintiff,
indicating the drinks were poisonous, the bulk of the consignment could not be
sold and had to be destroyed. <o:p></o:p>The
source of the dispute with Peep One Gmbh is a claim by Plaintiff that he had
paid for four consignments of drinks and had received only three. The
consignment sent to the Defendant according to Plaintiff was one he had paid
for. He had instituted a suit against Peep One in Germany for unlawful
termination of their contract, for a refund of monies paid and for the return
of cans paid for. The German court had declined to grant an injunction against
Peep One because there was no proof before the court that it had exported any
drinks. <o:p></o:p>