RULING   
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 
 
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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 ask the dealer to provide a bank guarantee 
 
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and the dealer may issue postdated cheques to the value of the stocks ordered and hence the bank guarantee provided by the plaintiff. 1st defendant claim that stocks are released to its dealers the moment the postdated cheques are issued and do not keep the goods of customers that they have paid for. Besides, if any stocks were kept at all it was a purely a private arrangement between the plaintiff and the Alabi Bamidele that has nothing to do with the 1st defendant.  
Order 25 of the High Court, (Civil Procedure) Rules, C. I 47 enjoins the court to grant an application for injunction in all cases in which it appears just or convenient to do so. Has there been enough showing on the face of the affidavits and the documents filed to convince the court that it will be just and convenient for the court to hold in abeyance the calling of the beneficiary the Bank guarantee to his benefit?  
It is the general rule that the invocation of a Bank guarantee by the beneficiary can be restrained by an injunction. The caveat is that the normal consideration which may apply in granting an injunction will not apply in matters where Bank guarantee or letters of credit are involved. The reason is that Bank guarantee agreement is independent of the main contract. See the case of HAMZEH MALAS & SONS v BRITISH IMEX INDUSTRIES LTD [1958] 2 QBD 127. The courts follow strict approach in granting injunctions against the encashment of Bank guarantee when it appears to be unconditional guarantee.  
In the case of UP STATE SUGAR CORP v SUMAC INTERNATIONAL LTD. (1997) SCC 568 the Indian Supreme Court had this to say: 
 
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“whenever an irrevocable and unconditional bank guarantee to be paid without demur is invoked, the Bank is bound to honour the guarantee irrespective of any dispute raised by the customer with notable exceptions of fraud and irretrievable injustice”.   The two exceptions were explained further to mean fraud committed in the notice of the bank which would vitiate the very foundation of guarantee; (ii) injustice of the kind which would make it impossible for the guarantor to reimburse himself.  
In the case of EDWARD OWEN ENGINEERING v BARCLAYS BANK INTERNATIONAL LTD. [1978] 1 Lloyds Rep. 166 which involved a performance bond and a contract between English supplier and a Libyan customer where the English supplier issued a performance bond with the English supplier’s subsequent failure to deliver on the promise, an issue arose as to whether the bond must be paid. The court held per Lord Denning that:  
“A bank which a performance guarantee is made must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer, nor with the question whether the supplier has performed his contracted obligation or not, nor with the question whether the supplier is in default or not. The bank must pay according to its guarantee on demand … without conditions. The only exceptions is when there is fraud of which the bank has notice”  
 
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There was even a better rendition of this principle and expansion of the scope of the exceptions that may sway the court to grant an injunction restraining the payment of a bank guarantee in the case of HIMADRI CHEMICALS v COAL TAR REFINING COMPANY (2007) AIR SC 2798 when the court noted that:   
 “...the courts should not readily issue injunction to restrain the realization of a Bank Guarantee or a Letter of Credit. So far as the first exception is concerned, i.e. of fraud, one has to satisfy the court that the fraud in connection with the Bank Guarantee or Letter of Credit would vitiate the very foundation of such a Bank Guarantee or Letter of Credit. So far as the second exception is concerned, this court has held ... that it relates to cases where allowing encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned”.  
See VINITEC ELECTRONICS v HCL INFOSYSTEMS (2008) 1 SCC 544.  
The question is has the Applicant been able to situate its application within the exception to the general rule that a bank must make good its guarantee when there had been a failure of a party upon whose benefit a guarantee was provided, unless there is an issue of fraud that goes to the root of the issuance of the guarantee and of which the Bank is aware or where there will 
 
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be an irretrievable harm?  
For an allegation of fraud to succeed it has been held that it “must be of an egregious nature such as to vitiate the entire underlying transaction”.  See HIMADRA CHEMICALS CASE Supra. And in BOLIVINTER OIL SA v. CHASE MANHATTAN BANK (1984) 1 All ER 351 it was noted that  the exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank’s knowledge.   
The allegation of fraud made by the Applicant is in respect of what he claims to be an act of theft perpetrated by an employee of the 1st Defendant/Respondent. There is nothing from the affidavit evidence that there was an official arrangement by plaintiff with 1st defendant for the latter to keep stocks that plaintiff had already purchased. And even if there was fraud on the part of one Alabi Bamadele it is not the kind of fraud that is contemplated by the law to vitiate the encashment of bank guarantee. For the fraud must be one committed to the knowledge of the bank. It seems clear that the Applicant cannot find any solace under the first leg of exceptions that an applicant must set out to prove fraud to stop the honouring of the guarantee.   
Regarding the second leg that the courts may stop the honouring of a bank guarantee if it would cause irreparable harm; what the law expects to be an irreparable harm has been said to be an exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately 
 
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succeeds or better still that the 1st Respondent will not be in a position to pay back the monies it received. The Law Dictionary defines irreparable harm or injury to mean   
 “the type of harm which no monetary compensation can cure or put conditions back the way they were”.   
It connotes a harm that is of irretrievable effect. See AMERICAN CYANAMID v ETHICON [1975] AC 396. There is no evidence from the plaintiff/applicant to the effect that when the 2nd and 3rd Respondents honour the guarantee and plaintiff succeeds in this case the 1st Respondent would not be in a position to refund the monies paid it by the banks. Applicant’s worry is in respect of the sale of his security by the banks after the banks have complied with the terms of the irrevocable guarantees they gave. As long as the harm or injury could adequately be compensated for in terms of damages, whatever harm suffered cannot be said to be an irreparable harm. From the exhibits especially the bank guarantee provided in Ex ‘D3’ it notes that:  
 “The obligations of the guarantor under the guarantee shall be absolute and unconditional…”  
When a bond in a contract is couched in such terms the courts would not permit applicants to frustrate the operation of such agreements by needless applications such as this one to prevent a beneficiary from having recourse o the security. On the whole the court is satisfied that the case of the Applicant has not been brought within the exception to necessitate the grant of an 
 
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injunction to restrain the call for the bank guarantee provided by the 2nd and 3rd Defendant/Respondents.   
I accordingly dismiss this application as baseless and lacking merits. I will award cost of Ghc1.000.00 taking into consideration how long this application has stayed in the court with the hands of the 1st defendant tied from having recourse to the security.     
         (Sgd.) Eric K. Baffour, Esq. Justice of the High Court   
Representation:  
Plaintiff/Applicant – present  Taiwo Akinyeye Represents the 1st Defendant/Respondent – Present  Wisdom Anothnio, Esq. for Plaintiff/Applicant – Present  Daniel Addo Asiedu, Esq. for 2nd Defendant/Respondent – Present  