GH - ACCRA BREWERY COMPANY LTD. v. GUINNESS GHANA LTD., ACCRA

BENIN, J.A.:

This is an application brought by the plaintiff herein seeking an order of interim injunction restraining the defendant, its agents, servants, privies and assigns from further entering into and or in any other way enforcing the agreement dubbed or entitled “Guinness means profit” retailer scheme initiated by the defendant and or any similar or further agreements with outlet owners of the plaintiff and in Ghana pending the final determination of the suit herein in terms of the accompanying affidavit and for such order or orders as this honourable court may seem fit.

In the accompanying affidavit, the plaintiff set out the reliefs endorsed on the writ, which as at now amended, seek the following:

1. a declaration that the said agreement is unreasonable and in restraint of trade and against public policy and therefore null and void and totally of no effect;

2. a declaration that the said agreement undermines competition and seeks to achieve an unfair advantage over its competitors and is thus contrary to public policy;

3. injunction;

4. damages; and

5. a declaration that the said agreement amounts to an act inducing the said retailers to breach their contractual relations with the plaintiff.

In the affidavit in support, the plaintiff deposed that its products namely, Club Super Stout, Club Dark Beer and Castle Milk Stout (which it launched recently) have common characteristics with the defendant’s product namely Guinness Foreign Extra Stout and for that reason these products compete with each other on the open market. But by the agreement-which I shall refer to in due course-the defendant has induced their common retailers with money to covenant that they will stock only the defendant’s products, both alcoholic and non-alcoholic and also to display advertisements put up by only the defendant. As a result of this, “ the retailers …. have refused to stock the plaintiff’s

products and in fact some of them have even returned stock which had been supplied to them earlier on.” Not only that, the plaintiff alleges that “some of the retailers have refused to sell the plaintiff’s product and those who have been selling the plaintiff’s products have been sanctioned.”

It is the plaintiff’s contention, as deposed to, that the defendant’s said act is an unlawful activity by inducing their mutual customers to break their contracts with the plaintiff. Also “ the terms of the said agreement are unreasonable, contrary to the public interest, has th