DACHEL & COMPANY LIMITED vs. FRIESLAND FRICO DOMO [2011]DLSC2640

Date	2011-06-22
Suit No.	CIVIL APPEAL NO. J4/7/2010
Citation No.	[2011]DLSC2640

BROBBEY JSC (PRESIDING)

ADINYIRA (MRS) JSC

YEBOAH JSC

GBADEGBE JSC

AKOTO-BAMFO (MRS) JSC

AMARKAI AMARTEIFIO WITH HIM AMARKAI AMARTEIFIO JNR. AND NAA AMERLEY BORTEI-DOM FOR THE APPELLANT

J. K. AGYEMANG FOR THE RESPONDENT

[2011]DLSC2640
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													<main id="main" class="content" style="min-height: 60rem" >DACHEL &amp; COMPANY
LIMITED<o:p></o:p>vs.<o:p></o:p>FRIESLAND FRICO DOMO<o:p></o:p>&nbsp;[SUPREME COURT, 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. J4/7/2010&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: 22ND JUNE, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AMARKAI AMARTEIFIO WITH HIM
AMARKAI AMARTEIFIO JNR. AND NAA AMERLEY BORTEI-DOM FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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J.
K. AGYEMANG FOR THE RESPONDENT<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;
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BROBBEY ,JSC (PRESIDING)
ADINYIRA (MRS), JSC YEBOAH, JSC GBADEGBE, JSC AND AKOTO-BAMFO (MRS), JSC<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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JUDGEMENT <o:p></o:p>

</div>&nbsp;ADINYIRA (MRS), JSC: <o:p></o:p>This
is an appeal from the judgment of the Court of Appeal delivered on 4 February
2011 affirming the judgment of the High Court Accra dated 7 March 2001 entered
in favour of the Plaintiff /Respondent / Respondent (hereinafter referred to as
the Plaintiff) against the Defendant/Appellant/Appellant (hereinafter referred
to as the defendant).<o:p></o:p>The
real issues in this appeal border &nbsp;on the
lapse in procedure&nbsp; in Order 2 r.4 of the
High Court (Civil Procedure) Rules, 1954 (LN 140A ) and the award of
compensation for termination of an agency agreement. The facts of the case narrated
in this opinion would therefore be centred on what relates to these
issues.&nbsp; <o:p></o:p>The
Plaintiff a company incorporated under the laws of Ghana was in 1978 appointed,
in terms of an agency agreement Exhibit A, the sole agent in Ghana of the
branded products of Pierson Munier &amp; Company (PMC), a company incorporated
under the laws of the United Kingdom. In 1980, the Defendant took over PMC and
retained the Plaintiff as its agent. The parties executed a document, Exhibit B,
dated 31 July 1980, by which Exhibit A was varied by changes in the brand name
of products named in the agreement and by the introduction of a 90 day written
notice requirement for the termination of the agreement. Mr. Hendrik Anno Vanderveen
a legal adviser to the defendant company who represented the Defendant at the
hearing admitted in cross-examination that Exhibit A was validated by the
Defendant. Some of the branded products were Peak Milk, Dutch Baby Food and
Frisolac. According to the Plaintiff, it was a clear understanding of the
parties that their relationship was to be governed not only by the Agency
Agreement but by the customs, practices, and regulations of the European
Community, England and /or Holland. &nbsp;<o:p></o:p>The
defendant terminated the agency agreement in January 1994 by giving the
plaintiff the requisite 90 days notice and offered the latter and amount of NLG
120,000 (equivalent of $70,000) as compensation. The plaintiff was dissatisfied
with the termination of the agreement and rejected the quantum of compensation for
the reason that it had promoted and expanded and established a thriving market
in Ghana for the brand products of the defendant. The plaintiff contended that
by the termination of the agreement it has been deprived of the opportunity to
reap the benefits of the programs and market strategies it had put in place
while expenses on same stood unpaid.<o:p></o:p>After
attempts at settlement have failed, the plaintiff on 9/5/94 filed a writ of
summons and statement of claim at the Accra High Court. The writ bore the
Defendant’s foreign address to wit: Leeuwarden Holland.&nbsp; The Plaintiff further filed on 11/5/94 a
notice of writ of summons to be served out of the jurisdiction under Order 11
rules 6 and 8. This notice was directed to the Defendant’s address in Holland. There
is no record that leave was granted to serve the notice of the writ. <o:p></o:p>The
Plaintiff claimed among other reliefs, compensation for the damage and or loss
by plaintiff as a result of the termination of the agency agreement, special
damages of GH¢ 4,700 incurred in promoting the sale of baby food products,
account of import of defendant’s products into Ghana from the period 1/1/91 to
30/4/94 and from 1/5/94 to 31/12/96 to determine Plaintiff’s entitlement to
commission as agent and importer. &nbsp;<o:p></o:p>The
defendant entered appearance by the same counsel in this case on 26/5/94 and
filed a statement of defence and counterclaim on 27/6/94. In the statement of
defence the defendant contended that the agency having been terminated by
proper notice it was not liable to pay any compensation to the plaintiff. The
defendant said it contributed to increase the volume of the sale of its
products in Ghana and made available an advertising budget for that purpose.
The defendant counterclaimed for an account of the advertisement imprest, and
the sum of US$51,612.65 for ordered and received products by the plaintiff from
the defendant.<o:p></o:p>Judgment
was given in favour of the plaintiff and was awarded damages to the tune of US$500,000
and GH¢4, 700 as special damages. An appeal by the defendant against the
judgment of the High Court was dismissed in its e</main>