DACHEL COMPANY LIMITED vs. FRIESLAND FRICO DOMO [2010]DLCA5067

Date	2010-02-04
Suit No.	CIVIL APPEAL NO: H1/13/2008
Citation No.	[2010]DLCA5067

ASARE KORANG J.A. (PRESIDING)

F. KUSI-APPIAH J.A.

IRENE DANQUAH (MS.) J.A.

MR. AMARTEIFIO FOR THE DEFENDANT/APPELLANT

MR. J. K. AGYEMANG FOR THE PLAINTIFF/RESPONDENT

[2010]DLCA5067
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													<main id="main" class="content" style="min-height: 60rem" >DACHEL COMPANY LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>FRIESLAND FRICO DOMO<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</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;
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CIVIL
APPEAL NO: H1/13/2008 &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; &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: 4TH
FEBRUARY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR.
AMARTEIFIO FOR THE DEFENDANT/APPELLANT<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">

MR. J. K. AGYEMANG FOR THE
PLAINTIFF/RESPONDENT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ASARE KORANG J.A. (PRESIDING), F.
KUSI-APPIAH J.A., IRENE DANQUAH (MS.) J.A.<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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JUDGMENT<o:p></o:p>

</div>KUSI-APPIAH,
J.A.&nbsp;
This appeal
arises from the judgment of the High Court, Accra, dated 7th day of
March 2001 entered in favour of the plaintiff/respondent (hereinafter referred
to as the Plaintiff) against the defendant/appellant (hereinafter referred to
as the defendant).<o:p></o:p><o:p>&nbsp;</o:p>The case of the plaintiff as
gathered from its pleadings and especially evidence at the trial, is that, the
plaintiff is a company incorporated under the laws of Ghana.&nbsp; In November 1978, the plaintiff was appointed
the sole agent in Ghana in respect of some branded products including milk
products of Pierson Munier and Company Limited (to be referred to hereinafter
as P.M.C.), a company incorporated under the laws of the United Kingdom in
terms of an Agency Agreement (Exhibit A) executed between the plaintiff and P.
M. C.<o:p></o:p>Sometime in 1980, the defendant took
over P.M.C. and became successors to P.M.C. in respect of the Agency
relationship.&nbsp; The defendant retained the
plaintiff as Agent and by a document (Exhibit B) dated 31st of July
1980 executed between the plaintiff and the defendant herein, the Agency
Agreement between the plaintiff and P.M.C. was varied by changes in the brand
of products named under the agreement and by the introduction of a 90-days
written notice requirement for the termination of the agreement.&nbsp; Exhibit B was revalidated by the parties
herein on 29th January, 1989.<o:p></o:p><o:p>&nbsp;</o:p>According to the plaintiff, even
after the take over and execution of Exhibit B, the agency relationship was
continued by the parties in much the same way as under Exhibit A.&nbsp; And it was the clear understanding of both
the plaintiff and the defendant herein throughout that agency, that their
relationship was to be governed not only by Exhibits A and B, but as well by
the customs, practices and regulations of the European Community (E.C.) and
specifically of England and/or Holland.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff averred that in
pursuance of that objective, the defendant continued to communicate with
plaintiff on the subject of the agency under the name of P.M.C. even in 1981,
that is to say after the execution of Exhibit B on 31st of July
1980.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff’s Managing Director
gave evidence as to how the agency business was built up, the difficulties
faced by plaintiff during the 1980’s, how plaintiff itself had to keep the
business going by importing defendant’s products in Ghana.&nbsp; She also testified as to how offices and
warehouses were established with the full approval and direction of defendant
and in the knowledge that the agency would thrive and continue to enable
plaintiff company derive appropriate returns through commissions as “Agent” and as “Importer” at the agreed rate of $1.25 on each large carton as
Agent, and another $1.25 on each large carton as Importer with the half cartons
attracting $0.625 per carton as Agents and $0.625 per carton as Importer.<o:p></o:p><o:p>&nbsp;</o:p>