IN-PETROL GHANA LIMITED v. GHANA OIL CO. LIMITED

TANKO AMADU J. A

(1) This appeal is from the judgment of the High Court (Commercial Division) Accra, dated the 21st day of March 2019. In the High Court, the Plaintiff/Respondent (hereinafter referred to as the‘Respondent’) sought from the Defendant/Appellant (hereinafter referred to as the ‘Appellant) per an amended writ the following reliefs: -

“(a) A declaration that Plaintiff is entitled to recover from Defendant the amount of Gh¢2, 426, 972. 53 being the losses incurred by Plaintiff due to Defendant’s breach of the agreement.

b) An order directed at Defendant to pay Plaintiff the amount of Gh¢2, 426, 972. 53.

c) A declaration that Defendant is liable to pay Plaintiff any money that may be due to UT Bank Co. Limited from Plaintiff as a result of the loan granted Plaintiff

(d) An order that Defendant pays any such amount resulting from the loan from UT. Bank Limited to Plaintiff.

c) Costs

”(2) In its amended statement of claim the Respondent set out the factual matters giving rise to its claim against the Appellant as follows: - “That in fulfillment of the functions and objectives of the National Petroleum Authority, (NPA) an entity established by statute to regulate, monitor and supervise the adjustment of prices of petroleum products, bulk oil distribution companies which by virtue of price and/or foreign exchange fluctuations make profits above the prices set by the NPA pay the resulting profits known as over recoveries to the NPA.

However where losses are made due to price fluctuations known as under recoveries, the oil companies are reimbursed for the losses.

1. According to the Respondent, in or about January 2015 having earlier had negotiations with the Appellant for the purchase of 5, 500 metric tons of gas oil, it entered into an agreement with the Appellant for the purchase of 5, 500 metric tones of the gas oil and in accordance with the practice in the industry the final price was estimated at an ex refinery price of Gh¢19, 727, 808. 00 as same is determined after the complete discharge of the product.

2. The Respondent asserted that as a pre-condition for the Respondent to obtain letters of credit from the bank to pay the Respondent’s suppliers and by reason of the mode of pricing in the industry, payment schedules were agreed upon between the Respondent and the Appellant to ensure that price fluctuations and exchange rate differentials would not result in losses to the Respondent.

The Respondent asserted further that by the terms