GHANA AGRIC IMOUT DEALERS ASSOCIATION AND OTHERS vs. WYNCA SUNSHINE AGRIC PRODUCTS AND TRADING CO.LTD [2011]DLCA3153

GHANA AGRIC IMOUT DEALERS ASSOCIATION AND OTHERS vs. WYNCA SUNSHINE AGRIC PRODUC... [2011]DLCA3153

Date	2011-01-28
Suit No.	SUIT NO. H3/23/11
Citation No.	[2011]DLCA3153

MARIAMA OWUSU (MISS) J.A. [PRESIDING]

. IRENE C. DANQUAH [MISS] J.A

F.G. KORBIEH J.A.

HANSON KWADWO KODUAFOR PLAINTIFFS/APPELLANTS/ APPLICANTS.

ASSIEDU BASOA FOR DEFENDANT/RESPONDENT/RESPONDENT.

[2011]DLCA3153
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													<main id="main" class="content" style="min-height: 60rem" >GHANA AGRIC IMOUT DEALERS ASSOCIATION AND OTHERS<o:p></o:p>vs.<o:p></o:p>WYNCA SUNSHINE AGRIC PRODUCTS AND TRADING CO.LTD<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. H3/23/11&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; &nbsp; &nbsp; &nbsp;DATED: 28/1/2011.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>HANSON KWADWO KODUAFOR
PLAINTIFFS/APPELLANTS/ APPLICANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ASSIEDU BASOA FOR
DEFENDANT/RESPONDENT/RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>MARIAMA OWUSU (MISS) J.A.
[PRESIDING], . F.G. KORBIEH J.A., . IRENE C. DANQUAH [MISS] J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>MARIAMA OWUSU J.A.: <o:p></o:p>At the Court’s sitting on the
26-1-2011, the Plaintiffs/Appellants/Applicants, who would be referred to as
applicants, moved this Court for an order of interim injunction restraining the
Defendant/Respondent/Respondent who would be referred to simply as Respondent
his agents, assigns servant, privies etc from engaging in any commercial
activities in the country, pending the final determination of the appeal filed
in this case. <o:p></o:p><o:p>&nbsp;</o:p>The basis of the Appellants’
application is that, they have suffered and are still suffering immeasurable
economic and financial losses as a result of the Respondent’s act of unfair
competition and dishonest practices as well as its illegal commercial
activities in the country as a non-Ghanaian.&nbsp;
In particular, the applicants aver that, the Respondent’s commercial
activities contravene the express prohibitory provisions of the Ghana
Investment Promotion Centre Act, 1994, (ACT 478).&nbsp; The applicants continue that an earlier
application seeking an order of interim injunction against the Respondent at
the Court below was refused.&nbsp; The
applicants contend that, the trial High Court Judge did not exercise his
discretion judiciously when he dismissed the applicants’ application for an
order of interim injunction.&nbsp; This is
because by dismissing the application for an order of interlocutory injunction,
the trial High Court Judge indirectly mandated the Respondent to be committing
illegalities under Act 478, as the Respondent is only permitted to import
Agricultural chemicals into the country as an importer and not to retail them
to prospective individual buyers at the market at the unit prices.&nbsp; Consequently, the activities of the
Respondent constitute unfair, dishonest trading practices contrary to the
competition of unfair Practices Act, 2000 (ACT 589).&nbsp; The Applicants’ attached Exhibits KA5, KA6
AND KA7 as evidence of the Respondent doing retail activities.&nbsp; Based on the above averments, Counsel for the
Applicants invited this Court to restrain the Respondent either by itself, its
servants, assigns, privies etc from engaging in any retail activities pending
the final hearing and determination of the appeal filed in this case. <o:p></o:p><o:p>&nbsp;</o:p>See paragraphs 3-17 of the
supporting affidavits filed on the 24-11-2010 and the supplementary affidavit filed
on the 30-11-2010.<o:p></o:p><o:p>&nbsp;</o:p>The Respondent vehemently opposed
the application and filed affidavit in opposition to that effect. In
particular, the Respondent denied engaging in retail trading activities. It
continued that, the High Court ruled that, the Respondent stood to suffer more
if the application was granted and instead ordered an expeditious trail as a
better option and refused the application. The Respondent further averred that,
the ruling of the High Court cannot be faulted especially so as the Respondent
has been registered with Ghana Investment Promotion Centre and has been given
the Registration Certificate, Exhibit WASP 3. The Respondent concluded that, it
is not engaged in retailing of its products. The Respondent further denied that
it is only permitted to import Agro-Chemicals into the country. It averred that
the Respondent is entitled to distribute and sell its product. Based on the
forgoing averments, the Respondent invited this court to dismiss the
application as same is unmeritorious, vexatious and an abuse of the courts’
process.<o:p></o:p><o:p>&nbsp;</o:p>See paragraphs 5-17 of the affidavit
of Li Chaodong, the President an a Director of the Respondent’s company filed
on the 10-12-2010 in opposition to the applicants application. <o:p></o:p><o:p>&nbsp;</o:p>After a careful reading of the
motion and the supporting affidavits as well as the affidavit in opposition, we
think the justice of the case demands that, we refuse the application. We say
so because, Exhibits KA5, KA6, the official invoices dated 5-10-2010 and
Exhibit KA7, the waybill dated 8-10-2010 attached to the applicants’
application are not receipts. Secondly, on Exhibits KA5 and KA6, the official
invoices, the quantity of the chemical product its description, unit price and
the amount is indicated on the face of the Exhibits. In the column marked
“quantity” the quantity is given as two [2] cartons and the unit price is 4.15
and the amount stated on them is GH¢99.60 similarly, on the face of Exhibit KA7
in the column where quantity is written, it is a stated ten [10]. Clearly,
Exhibits KA5. KA6 and KA7 without more cannot be said to constitute evidence
that the Respondent is doing retail trading.<o:p></o:p>On the other hand Exhibit WASP 3 is
Ghana Investment Promotion Centre [GIPC] Registration Certificate of the
Respondent. It is dated 16-8-2010. on Exhibit WASP3 it reads;<o:p></o:p>“This
is to certify that WYNCA SUNSHINE AGRIC PRODUCT AND TRADING CO. LTD [the
emphasis is mine] …… having complied with the provisions of sector 19 of the
Ghana Investment Promotion Centre Act, 1994 [ACT 479]”.<o:p></o:p><o:p>&nbsp;</o:p>Clearly, until evidence is led, it
is difficult to say at this stage whether the activities of the Respondent are
contravening &nbsp;ACT 478.&nbsp; This is especially so when the name of the
respondent &nbsp;on Exhibit WASP 3, the
Certificate of Registration is WYNCA SUNSHINE AGRIC AND TRADING CO. LTD [the emphasis is mine.] Having registered </main>