KELVIN ATSU WILSON vs GLO MOBILE GHANA LTD & ORS
November 14, 2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Banking and Finance Law
- Contract Law
November 14, 2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
This High Court application by Chafal Communication Ventures sought an interlocutory injunction restraining Glo Mobile Ghana (the 1st Defendant) from invoking an unconditional bank guarantee issued by two banks (the 2nd and 3rd Defendants), and to restrain payment of GHc 994,750. Chafal claimed that, after being inundated with excess stock, the 1st Defendant kept the goods, during which an employee, Alabi Bamidele, stole products, causing losses of about GHc 1,700,000, thus disputing liability under the guarantee. The court reaffirmed that bank guarantees are autonomous and must be honoured on demand, save for narrow exceptions of egregious fraud known to the bank or irretrievable injustice preventing reimbursement. Finding no bank-noticed fraud and no irreparable harm (as damages could compensate and refund ability was not disproven), and noting the guarantee’s “absolute and unconditional” wording, the court refused the injunction, dismissed the application, and awarded GHc 1,000 costs.
The court has been called upon in this application to make a determination as to whether pending the adjudication of the main disputes between the parties, the court ought to restrain the bearer of an unconditional Bank guarantee from having recourse to that security.
Plaintiff/Applicant has moved the court for the grant of an interlocutory injunction praying the court to restrain the 1st Defendant/Respondent from taking steps to realize the Bank guarantee provided on behalf of the Plaintiff/Applicant in favour of the 1st defendant/respondent or an order to restrain the payment of an amount of Ghc994, 750. 00 as the sum of money that 1st defendant/respondent contends it is entitled to.
In that same vein plaintiff also seeks an order to restrain 2nd and 3rd defendant/respondents from honouring any demand for the payment of the security that would be made by the 1st defendant.
In a rather circumbendibus affidavit, further affidavit and supplementary affidavits in support of this application, the applicant depose that his business, Chafal Communication Ventures, deals in sales, marketing of SIM cards, rechargeable cards, modems and was appointed as a Business associate or dealer by 1st defendant to market its products.
Due to his credit performance in the marketing of 1st defendant products, Glo Mobile Ghana inundated him with products for distribution far in excess of what he needed.
He did not have space to stock the excess products pushed to him for sale by the 1st defendant whereupon the latter offered to keep them for the applicant.
As condition for the offering of the products he was made to approach the 2nd and 3rd defendants to issue a bank guarantee for the due repayment of the monies for the products given him.
To applicant whiles his stocks were kept by the 1st defendant, its staff cultivated the habit of stealing some of the products with one Alabi Bamidele having confessed to the stealing and applicant estimate that about Ghc1, 700. 000 have been stolen by the staff of 1st defendant.
To applicant, he does not owe the 1st defendant the amount of Ghc 994, 750. 00 due to the pilferage as he has raised issues of fraud and hence the need to restrain the encashment of the bank guarantee.
1st defendant has resisted this application and in an affidavit in opposition and subsequent supplementary affidavits claim that a dealer may trade on cash basis or credit basis and if a dealer opts for credit trading it is the custom of the 1st defendant may