SG-SSB loses appeal in money gram case

Thursday 23 November 2006
Florence Gbolu, Chronicle
The Supreme Court, yesterday upheld by a four-to-one majority, the decision of the Court of Appeal that an agreement executed between CBAM Inc. and SG-SSB dated December 1, 1999 was still valid and therefore defendant/appellants are not entitled to affirm part of it, which is beneficial to it, and disaffirm the rest.
The Appeal Court on June 3, 2005, affirmed the judgment of the High Court, Accra delivered on November 4, 2004, brought before it by SG- SSB in the legal tussle over terms of an agency agreement between it and CBAM Services Inc. The High court in its judgement granted the reliefs sought by the plaintiff, CBAM Inc, which were that on a true and proper interpretation of the agreement executed between the parties dated December 1, 1999 the said contract as a whole is valid and still subsists, hence the defendant is not entitled to affirm part of it, which is beneficial to it, and disaffirm the rest.
The court had declared also that the purported termination of the contract and total repudiation of it by a letter of the Defendant dated 24th April, 2003, on grounds of deviation of performance by the Plaintiff is unjustifiable and repugnant to the principles of justice, equity and good conscience, since the contract was carried out in its essential parts. It declared further that the act complained of did not amount to such a breach of a fundamental term in the agreement, which went to its root so as to bring the whole agreement to an end.
Also, the court ordered that an order of account be taken of monies received by the bank under the said agreement and the immediate payment of arrears of the amount due to plaintiff and interest thereon at such rate.
The court further ordered specific performance by the defendant (SG-SSB) of all its obligations under the said agreement and an injunction restraining it whether by itself, its servants or agents or otherwise however, until Judgment, from operating the Money Gram Service International programme without the involvement of the Plaintiff, receiving commissions on transfers paid into its account without payment to the Plaintiff its shares of the fees or commission.
The bone of contention in the case is that in 1996, CBAM INC., the Plaintiff initiated a business transaction by which Money Gram, a world wide money transfer service came to Ghana with SSB Bank.
The bank, accepting to act as the agent of Money Gram, having promoted the agency between it and Money Gram, a contract in writing was executed on the 1st of December 1999.
In the said contract, CBAM undertook among others to develop, implement and finance advertisement and other promotional programmes directed specifically at potential users of the Money Gram service outside Ghana.
The said contract had a proviso that CBAM shall submit all its advertising and promotional programmes and materials to the Bank for a written approval prior to usage and shall furnish the appellant with evidence of such advertisement on quarterly basis.
The parties operated this contract until 24th April, 2003 when the bank wrote to terminate the contract invoking a clause, which gave them the right to terminate upon a breach by the respondent of the obligations under clause 2 and this resulted in the legal tussle between the parties.
The trial Court entered Judgment in favour of CBAM Services Inc., but the bank appealed against the Judgment on the grounds that the trial judge had erred in entering judgment for CBAM.
The banks appeal stated that the judge erred in holding that that they had waived or condoned the Plaintiffs’ breach of the agreement and that in holding that they were not entitled to terminate the said agreement.
They averred in their appeal that the court erred in holding that the failure of the plaintiff to obtain prior written approval for the advertisement was not fatal and in declaring the termination clause in the agreement unenforceable when CBAM claimed no such releif.
After several months of litigation at the High Court, the case made its way to the Supreme Court, after the Court of Appeal upheld the former court’s decision, except for an injunction sought.
The court awarded no cost when counsel for plaintiff, George Gardiner holding brief for Dr. Ekow Daniels sought for one, as the court in respect of the cordiality and the fact that parties are still in business.
The dissenting voice was the presiding judge, Mr. Justice W. A. Attuguba. Other members on the panel were Justices Georgina Wood, S. K. Asiamah, Julius Ansah and R.T. Aninakwah.