FRABINA LIMITED v. SHELL GHANA LIMITED

J U D G M E N T

BROBBEY, JSC:-

The plaintiff and the defendant at the trial court entered into a dealership agreement which was tendered as exhibit A. The purpose of the agreement was to enable the plaintiff to run the Legon Road Service Station as petrol outlet unit. For the implementation of the agreement, the plaintiff paid the defendant ten thousand Ghana Cedis (GHS 10,000.00) as “working capital.” The agreement was terminated by the defendants at a time when the defendants claimed that the plaintiff owed it some moneys.

Following the termination of the agreement, the plaintiff sued the defendant in the High Court for recovery of the GHS 10,000.00, interest on that amount, recovery of GHS 49300.00 being overdraft facility taken by the plaintiff from its bankers, interest on that overdraft and damages for wrongful termination of the dealership agreement.

The High Court dismissed all but one of the claims: It awarded GHS 6000.00 as damages for the wrongful termination of the agreement and cost of GHS 1000.00 in favour of the plaintiff.

The plaintiff appealed to the Court of Appeal and argued inter alia that the damages awarded were on the low side. The appeal was dismissed. Against that judgment, the plaintiff appealed to this court on the following grounds:

That the judgment was against the weight of evidence.

That the Court of Appeal erred in not allowing the appeal.

In this judgment, the plaintiff shall be referred to as the appellant while the defendant will be referred to as the respondent.

In arguing the appeal in this court, the appellant contended that the GHS 10,000.00 that it paid was not working capital but was rather a refundable “security deposit” which was “mistakenly referred to as the working capital.” That argument was simply untenable for the following reason: The appellant conducted the entire case in the High Court and the Court of Appeal on the basis that that amount was the working capital. The case started with the plaintiff’s claim for

“the recovery of its working capital of ¢100,000,000.00 paid to the defendant to enable the plaintiff operate the Legon Road Shell Service Station and the attached groceries shop.”

In paragraph 14 of the statement of claim, the appellant referred to the amount as the working capital. In the evidence of the Managing Director of the plaintiff, he stated right from the beginning of his testimony that “the first condition (in exhibit A) was for the plaintiff to pay ¢100 million as deposit as