FABINA LIMITED vs. SHELL GHANA LIMITED [2008]DLCA6449

Date	2008-11-27
Suit No.	CIVIL APPEAL NO: H1/69/2008
Citation No.	[2008]DLCA6449

APALOO JA [PRESIDING]

YAW APPAU JA

KORBIEH JA

MR. BARTON ODURO FOR THE PLAINTIFF/APPELLANT.

MR. STANLEY AMARTEIFIO FOR DEFENDANT/RESPONDENT

[2008]DLCA6449
																																						<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" >FABINA LIMITED<o:p></o:p>(PLAINTIFF/
APPELLANT)<o:p></o:p>vs.<o:p></o:p>SHELL GHANA LIMITED<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO: H1/69/2008&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: 27TH NOVEMBER, 2008<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

COUNSEL:&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;<o:p></o:p>

MR.
BARTON ODURO FOR THE PLAINTIFF/APPELLANT. <o:p></o:p>

MR.
STANLEY AMARTEIFIO FOR DEFENDANT/RESPONDENT.<o:p></o:p>

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

<p class="MsoNormal" style="border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in;mso-border-between:1.5pt solid windowtext;
mso-padding-between:1.0pt;padding-bottom:1.0pt;mso-padding-bottom-alt:1.0pt;
border-bottom:1.5pt solid windowtext;mso-border-bottom-alt:1.5pt solid windowtext">CORAM: 
APALOO, JA [PRESIDING] ,YAW APPAU, JA ,KORBIEH, JA<o:p></o:p>

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

</div>&nbsp;JA APALOO, JA <o:p></o:p>This is an appeal by the Plaintiff/Appellant against
the judgment of the High Court, Accra delivered on 25th June 2007.<o:p></o:p>&nbsp;The appellant
had appealed on two grounds to wit, the trial judge erred in not ordering the
Defendant to pay to the Plaintiff the working capital of the Plaintiff
inclusive of interest; and that the quantum of damages awarded was on the low
side.<o:p></o:p>&nbsp;The facts
leading to this action in the lower court are not complex. They have been
clearly stated in the Plaintiff’s statement of claim. According to the
Plaintiff the parties entered into a dealership agreement to operate the
Defendants’ Legon Road service station owned by the Defendant. Arising out of
the Agreement Plaintiff paid ¢70 million and additional ¢30 million for fuel
and groceries respectively to the Defendant. It is the case of the Plaintiff
that other filling stations were opened nearby by the Defendant and another Oil
Marketing Company which negatively affected its business by drastic reduction
in volume of sales. An armed robbery attack on the station which attracted
adverse publicity in the media, further worsened Plaintiff’s dwindling sales
performance. The Defendant refused to allow Plaintiff’s security guards to
carry arms thus contributing to the success of other attacks. The Plaintiff
alleged that the parties discussed means of improving the sales situation
resulting in an application by the Plaintiff for over draft facility of
¢49,300,000.00 which was paid to Defendant. Upon receipt of the money Defendant
refused to supply fuel but rather terminated the Dealership agreement between
the parties. The Plaintiff alleged that the termination of the dealership
agreement was wrongful in law and that led to the loss of the initial ¢100.00
million as well as the subsequent ¢49,300,000.00 raised by the overdraft
facility. <o:p></o:p>The Plaintiff charged that on account of its inability
to repay the overdraft facility its Bankers had commenced legal action against
it. The Plaintiff accordingly initiated the action in the court below to
recover its working capital of ¢100.00 million paid to the Defendant with
interest thereon. The writ was endorsed with a further claim of ¢49,300,000.00
being the sum realized from the overdraft facility together with interest. In
addition Plaintiff sued for damages for wrongful termination of the dealership agreement.<o:p></o:p>&nbsp;By its Defence
the defendant averred that Plaintiff was granted a conditional licence to
operate the filling station which belong to the Defendant as long as the
Plaintiff remained a dealer, that in consideration of commissions to be paid to
the Plaintiff by the Defendant, the Plaintiff was to purchase and resell
petroleum from the Defendant. It was the case of the Defendant that to meet
obligations under the dealership agreement, the Plaintiff was required to have
and maintain a minimum working capital as determined from time to by the
Defendant. The Defendant stated it could not have prevented other service
stations from being opened near by. Defendant claim that the reduction in
volume of sales at the station was due to poor management by the Plaintiff and
further that, armed robbery was not the cause of Plaintiff’s dwindling sales.
Defendant averred that it did not induce the Plaintiff to take any overdraft
facility. That when the ¢49,300,000.00 was paid to Defendant the Plaintiff owed
¢63,136,136 and consequently Defendant exercised its right of a set off to
reduce Plaintiff’s indebtedness. Defendant. insisted that monies paid by
Plaintiff were used for Plaintiff’s business and Defendant is not responsible
for the Plaintiff’s loss. Defendant denied responsibility for the action
commenced by Plaintiff’s Bankers. Defendant denied Plaintiff was entitled to an
order of reinstatement.<o:p></o:p>&nbsp;When issues were
joined it appears the Defendant lost interest and after several adjournments
the trial judge took evidence from PW1 Francis B.K. Baiden the Managing
Director of the Plaintiff/Company. He tendered all the Exhibits and thereafter
upon a written submission judgment was delivered in favour of the Plaintiff in
the following terms. The court awarded ¢60.00 million for wrongful termination
of the dealership agreement with costs assessed at ¢10.00 million in favour of
the Plaintiff. All other reliefs were dismissed by the trial judge. <o:p></o:p>Arising out of this decision the Plaintiff mounted the
appeal. Counsel for the Plaintiff/Appellant in his written submissions to this
court argued in respect of his first ground of appeal that the trial judge
erred when she stated that the appellant had made profits from the sale of the
petroleum supplied to the Plaintiff/Appellant and that there was no provision
in Exhibit ‘A’ the Dealership Agreement that on termination of the agreement
the ¢100.00 million should be refunded to the Plaintiff/Appellant. Counsel was
of the view that since the Defendant/Respondent had admitted receipt of the
money, it follows that the money belonged to the Plaintiff/Appellant,
consequently the agreement having been terminated, the money should have been
returned to the Appellant as owner thereof.<o:p></o:p>&nbsp;With the
greatest respect to counsel this argument is illogical and untenable. The
question to ask at this juncture is this; why was the money paid to the
Defendant/ <o:p></o:p>Respondent in the first place. The answer is captured
in the Plaintiff/Appellants own paragraph 3 of its statement of claim which for
emphasis I quote hereunder:<o:p></o:p>&nbsp;“3. Plaintiff says on 7th day o</main>