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Review – to Article 133 of the
constitution and Rule 54 of the
Supreme Court Rules, (C. I. 16)
– Award of interest – interest
rate - Contract – Special
damages - Whether or not
the trade did not conform to the
rules of the Exchange – Whether
or not there was no payment and
delivery as share certificates
were not effected as at 11 am on
the third day -
HEADNOTES
The facts of this case admit of no
controversies whatsoever. In
brief, the case of the Applicant
is that, following confusion
which involved 14, 130,000 CAL
Bank shares in which the
Applicant traded in through his
Brokers, at the Ghana Stock
Exchange, matters came to a
crescendo as a result of which
the Applicant issued a writ at
the High Court, following
inability to settle the
confusion and or differences
therein. It must be noted that,
at the centre of the confusion
was the question whether the
trade in the 14, 130,000 CAL
Bank shares between Applicant
and the other sellers through
their Broker, Databank, had been
settled as at the time of the
suspension or that it had failed
completely. Following the
failure of the Securities and
Exchange Commission the 4th
Respondents herein who are the
Regulators of the Ghana Stock
Exchange to resolve the
confusion, the Applicant
exercised his rights in the High
Court to resolve the differences
between the parties. The
pith of the Applicant’s case
which he had maintained
throughout the case is that, as
at the time the trade was
suspended it had settled and
concluded, in that, by then the
shares had been transferred into
the name of the 2nd
Defendant (William Oppong Bio
who is no longer a party) and he
had received payment. The
Applicant contended further
that, the transaction satisfied
the rules of the stock exchange
and was validly traded in The
court held inter alia that,
since the share certificates
were not delivered before the
suspension of the trade there
was total failure of
consideration so Applicant was
not entitled to be paid. An
appeal by the Applicant against
the High Court decision was also
similarly dismissed by the Court
of Appeal wherein the Applicant
appealed to the ordinary Bench
of this Supreme Court. On the 25th
day of July 2018, the Supreme
Court delivered judgment in
favour of the Applicant. Whilst
reversing both lower court
decisions, the Supreme Court
gave judgment in favour of the
Applicant It is against the
above orders specifically that
the Applicant has invited this
court to review part of the
decision of the ordinary bench
in the following terms as prayed
for by the Applicant.
HELD
(2) We have also taken into
consideration the various
elaborate statements of case
filed by the parties as well as
all the exhibits and legal
authorities referred to.We have
also satisfied ourselves that
the applicable law in this
review application is the Court
(Award of Interest and Post
Judgment Interest Rules, 2005
(C. I. 52).Applying the facts of
the instant application to the
law inherent in the
determination of this review
application, we are of the view
that the application for review
be granted on the following
terms:-Having apprised ourselves
that pursuant to the provisions
in Rule 1 (1) (a) of C. I. 52,
it is the date of the Supreme
Court judgment which is 25th
July 2018 that is the reference
date of the applicable interest
rate and not the date of the
High Court judgment, which is 16th
September 2011.
(2) That the 1st
Respondents pay interest to the
Applicant herein on the sum of
GH¢6,162,240.00 out of the sum
of GH¢13,762,240.00 at the
agreed interest rate of 30% from
the 2nd day of June
2008 up until the date of the
Supreme Court judgment, to wit,
the 25th day of July
2018.
(3) The 1st
Respondents are to pay to the
Applicant interest on the sum of
GH¢6,162,240.00 out of the sum
of GH¢13,762,240.00 at the
statutory interest rate from the
date of judgment of this court,
(which is 25th July
2018 up to date of final
payment.
(4) That the 1st
Respondents pay interest on the
sum of GH¢7,600,000.00 at the
prevailing bank rate as at the
date of the judgment of the
Supreme Court which is 25/7/2018.
STATUTES REFERRED TO IN JUDGMENT
Constitution 1992.
Supreme Court Rules,
1996 (C.I. 16)
Court (Award of Interest and
Post Judgment Interest) Rules
2005 (C.I. 52).
CASES REFERRED TO IN JUDGMENT
Tema Oil Refinery v
African Automobile [2011] 2
SCGLR 907.
NDK Financial Services v Ahaman
Enterprises Ltd & Others –
Review Motion No. J7/4/16 dated
13th June 2016
Afranie II v Quarcoo [1992] 2 GLR 561
Ribeiro v Ribeiro [1989-90] 2 GLR 10
Glencore AG v Volta Aluminum Company Ltd.
[2013-2014] 1SCGLR 473
Mechanical Lloyd Assembly Plant Ltd vrs Nartey
[1987-88] 2 GLR 598
Quartey v Central Services Co. Ltd [1996-97] SCGLR
398
Afranie v Quarcoo [1992] 2 GLR 591-592
Tamakloe v Republic [2011] 1 SCGLR 29 and
Internal Revenue Service v
Chapel Hill Ltd [2010] SCGLR 827
at 850, 852-853, just to mention
a few.
Arthur (No.2) v
Arthur (No.2) [2013-2014] 1
SCGLR 569, at 579-580
NTHC Ltd v Antwi
[2009] SCGLR 117, at 120-121
G.P.H.A v Nova
Complex Limited [2010] SCGLR at
5 – 7
Da Costa v Ofori
Transport Ltd [2007-2008] 1
SCGLR 602-at 609-610
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC: -
COUNSEL
THADDEUS SORY FOR THE
APPLICANT.
DR. ATUPARE FOR THE 1ST
RESPONDENT LED BY AMA AMPONSA.
NII O. BADOO FOR THE
3RD RESPONDENT.
DOTSE, JSC:-
In this review
application, the Applicant
herein, who was the
Plaintiff/Appellant/Appellant
therein in Civil Appeal No.
J4/11/2016 has prayed for a
review of the judgment of the
ordinary bench rendered on the
25th day of July
2018.
BRIEF FACTS
The facts of this case admit of
no controversies whatsoever. In
brief, the case of the Applicant
is that, following confusion
which involved 14, 130,000 CAL
Bank shares in which the
Applicant traded in through his
Brokers, at the Ghana Stock
Exchange, matters came to a
crescendo as a result of which
the Applicant issued a writ at
the High Court, following
inability to settle the
confusion and or differences
therein. It must be noted that,
at the centre of the confusion
was the question whether the
trade in the 14, 130,000 CAL
Bank shares between Applicant
and the other sellers through
their Broker, Databank, had been
settled as at the time of the
suspension or that it had failed
completely.
Following the failure of the
Securities and Exchange
Commission the 4th
Respondents herein who are the
Regulators of the Ghana Stock
Exchange to resolve the
confusion, the Applicant
exercised his rights in the High
Court to resolve the differences
between the parties.
The pith of the Applicant’s case
which he had maintained
throughout the case is that, as
at the time the trade was
suspended it had settled and
concluded, in that, by then the
shares had been transferred into
the name of the 2nd
Defendant (William Oppong Bio
who is no longer a party) and he
had received payment. The
Applicant contended further
that, the transaction satisfied
the rules of the stock exchange
and was validly traded in.
Applicant contended further
that, the funds covering the
transaction which were lodged
with 1st
Defendant/Respondents herein had
been given to him the Applicant
and that he became the customer
of the 1st Respondent
bank in respect of those funds,
hence, he initially sued the 1st
Respondents alone for his funds
before the Joinder of the other
parties.
HIGH COURT DECISION
After trial, the learned High
Court Judge in her judgment
dated 16th September
2011 concluded that the trade
did not conform to the rules of
the Exchange in that there was
no Delivery versus Payment as
the payment and delivery of the
share certificates were not
effected as at 11 am on the
third day. The court held inter
alia that, since the share
certificates were not delivered
before the suspension of the
trade there was total failure of
consideration so Applicant was
not entitled to be paid.
APPEAL TO COURT OF APPEAL
An appeal by the Applicant
against the High Court decision
was also similarly dismissed by
the Court of Appeal wherein the
Applicant appealed to the
ordinary Bench of this Supreme
Court.
DECISION OF THE SUPREME COURT
On the 25th day of
July 2018, the Supreme Court
delivered judgment in favour of
the Applicant. Whilst reversing
both lower court decisions, the
Supreme Court gave judgment in
favour of the Applicant and
concluded the matter in the
following terms:-
”Consequently, plaintiff is
awarded interest on the sum of
GH¢6,160,240.00 to be calculated
at the agreed rate of 30% per
annum from 2nd
June, 2008 up to the date of the
judgment of the High Court and
at the bank rate prevailing at
that date till final payment.
Plaintiff is also awarded
interest on the sum of
GH¢7,600,00.00 at the
prevailing bank rate of interest
as at the date of the judgment
of the High Court to be
calculated from 2nd
June 2008 to the date of final
payment. The interests are
to be calculated at the rate of
interest as at date of the
judgment of the High Court
because we are making the orders
the High Court ought to have
made in exercise of our
authority under Article 129 (4)
of the Constitution 1992.
Relief (e) for an order of
injunction would not serve any
purpose for plaintiff and would
be refused. Relief (g) is
granted but relief (h) is struck
out as redundant since Databank
who were 3rd
defendant were struck off as a
party. Relief (i) is a claim for
damages but plaintiff did not
adduce any evidence in that
regard. In his written
submissions in the Court of
Appeal he sought to rely on
matters contained in an
affidavit that was filed in
reaction to a motion for leave
to amend and prayed to be paid
special damages of
GH¢4,500,000.00. Special damages
by the practice of the courts
are required to be specifically
pleaded and strictly proved.
That affidavit was not tendered
as evidence and subject to cross
examination so plaintiff is not
entitled to special damages.
Nevertheless, he is entitled to
nominal damages against the 1st
defendant for breach of the
contract of banker/customer as
explained in the main body of
the judgment. Nominal damages
are such as the law would
presume was suffered by the
plaintiff and are said to be at
large, meaning the quantum to be
awarded is at the discretion of
the court. See Tema Oil
Refinery v African Automobile
[2011] 2 SCGLR 907. On the
facts of this case, we award
damages in the sum of GH¢100,000
in favour of plaintiff against 1st
defendant. In conclusion, the
appeal succeeds and is allowed.”
Emphasis
References to Plaintiff and 1st
Defendants, therein refer
specifically to the Applicant
and the 1st
Respondents herein.
REVIEW APPLICATION
It is against the above orders
specifically that the Applicant
has invited this court to review
part of the decision of the
ordinary bench in the following
terms as prayed for by the
Applicant.
“Reviewing that part of the
judgment of this Court dated the
25th day of July 2018
in terms of the period only
for which the court ordered the
payment by 1stDefendant
/
Respondent/Respondent/Respondent
to
/Plaintiff/Appellant/Appellant
/Applicant of interest on the
sums of:
i. GH¢6,160,240.00 out
of the sum of GH¢13,762,240.00
at the agreed interest rate
of 30% per annum from the 2nd
day of June 2008 up until the
date of the judgment of the High
Court to wit; the 16th
day of September 2011.
ii. GH¢6,160,240.00 from
the date of the judgment of
the High Court to wit; the 16th
day of September 2011 until the
date of final payment.
iii. GH¢7,600,000.00
at the prevailing bank rate as
at the date of the judgment of
the High Court to wit; the 16th
day of September 2011 to be
calculated from the 2nd
day of June 2008 to the date of
final payment.” Emphasis
SCOPE OF REVIEW APPLICATIONS
UNDER RULE 54 (A) & (B) OF THE
SUPREME COURT RULES, 1996 –
(C.I. 16)
Mindful of the scope of the
review jurisdiction of this
court pursuant to Article 133 of
the constitution and Rule 54 of
the Supreme Court Rules, (C. I.
16) learned counsel for the
Applicants, Thaddeus Sory, dealt
at length on Rule 54 on the
grounds for a review
application. In this respect,
after stating in very clear
terms the circumstances under
which the Applicant has invoked
the review jurisdiction, learned
counsel also provided the
necessary legal support why the
review application must succeed.
In support of this review
application, one Baffour Gyawu
Bonsu Ashia, who described
himself as a lawyer in the firm
of Solicitors of the Applicant
deposed inter alia to the
following depositions in support
of the review application which
read thus:-
9. “That since the judgment of this Court
and the orders made consequent
thereto did not affirm the
judgment of the court of Appeal
or the High Court or both,
the orders of this Court are
orders of this Court which take
effect and are also enforceable
as orders of this Court but not
the judgment of either the court
of Appeal or the High Court.
10. That in any case, in the judgment of
this Court, this Court found
that Plaintiff invested
the sum of six million, one
hundred and sixty two thousand,
two hundred and forty Ghana
Cedis (GH¢6,162,240.00) and not
the sum of GH¢6,160,240.00
erroneously stated in the orders
of the Court by way of a fixed
deposit with 1st
Defendant.
11. That I repeat paragraph 10 above of my
affidavit and depose further
that this court made the
finding as to the agreed
interest rate of 30% from a
request to admit facts filed in
the High Court which is
exhibited hereto and marked B
and which was responded to by 1st
Defendant, which response is
also exhibited hereto and marked
C.
12. That a reading of exhibit B attached
hereto will confirm that
Plaintiff requested that 1st
Defendant admit that the
aforesaid sum of GH¢6,162,240.00
be “invested” on
Plaintiff’s behalf at the agreed
rate of 30% in response to which
the 1st Defendant
unequivocally admitted by way of
exhibit C that the aforesaid sum
was to be invested at the
agreed.
14. That indeed at all times material to
the judgment of this court which
took effect from 25/07/18 which
is the date on which it was
delivered, I have been
deprived, not only of the
principal sum of GH¢6,162,
240.00 and the agreed interest
accruing thereon but the
opportunity of further investing
the aforesaid sum and its
accruing interest on even more
lucrative terms.
15. That as agreed between 1st
Defendant and myself, this court
accordingly awarded interest on
the sum of GH¢6,162,240.00 to be
calculated at the agreed rate of
30% per annum from 2nd
June, 2008 but specified that
the period of the interest as
agreed apply only up to the
date of the judgment of the High
Court which is the 16th
day of September 2011.
16. That this Court therefore ordered that
the interest rate applicable to
the aforesaid sum of
GH¢6,162,240.00 bear interest
from the date of the judgment of
the High Court, which is
16/09/18 at the bank rate
prevailing at the time of the
judgment of the High Court
(instead of the agreed interest
rate till the date of final
payment).
21. That this court having established that
in so far as the sum of
GH¢6,162,240.00 is concerned, 1st
Defendant and Plaintiff had
agreed on an interest rate of
30% per annum, this court
ought to have applied the same
interest rate until the date of
final payment but not until the
date of the judgment of the High
Court.
22. That with regard to the sum of
GH¢7,600,000.00 this court
ordered that 1st
Defendant pay interest on the
aforesaid sum at the prevailing
bank rate as at the date of the
judgment of the High Court which
is 16/09/11 to be calculated
from the 2nd day of
June 2008 to the date of final
payment.
23. That the rules on interest also say
that the rate of interest to be
applied on a judgment debt is
reckoned from the date when the
order for payment of the
interest was made but not any
date prior to the date of the
said order.
24. That accordingly, since the order for
payment of interest on the sum
of GH¢7,600,000.00 was made on
25/07/2018 which is the date of
the judgment of this court, the
applicable interest rate as
prescribed by statute should be
the prevailing bank rate as at
the date of the judgment of this
court but not that of the High
Court dated 16/09/11.” Emphasis
In response to the said
depositions, one Emmanuel Kofi
Darko, who also described
himself as a Lawyer in the firm
of Solicitors of the 1st
Respondents herein, swore to and
deposed to these facts in the
following paragraphs in answer
to the Applicants depositions
which states as follows:-
8. “That I further repeat paragraph 7
above of my affidavit in answer
to the instant application in
response to paragraph 11 of
Plaintiff’s affidavit in support
and state that the findings of
the Court in respect of the
agreed interest rate of 30% was
only made within the specific
context and material facts of
the contract between the
parties.
9. That in reaction to Paragraphs 12 and
13 of Plaintiff’s affidavit in
support of the instant review
application, Defendant states
that the admission of facts
pertaining to the transaction
can only be reasonably applied
to the peculiar facts of the
said transaction that being a
fixed deposit with a 30%
interest and that the duration
of such an interest rate as
agreed by the parties is only
determinable and reasonably so
within the confines of such a
fixed period as specified by the
contract.
12. That the extent to which an interest
rate which is a fundamental term
of a contract stretches or
applies in terms of period or
length of coverage as a primary
rule is to be determined by the
parties or this court on the
account of such terms of the
contract where such a contract
is found to exist and that a
party cannot unilaterally recast
the interest rate of such a
contract by a court and less so
through a review application.
13. That the life span of
the interest rate as reflected
in the contract of the parties
which plaintiff seeks to have
applied in this court’s orders
is not consistent with the life
span of the contract itself and
that any support of this
Honourable Court to such a
construction would amount to
redrafting the terms of the
contract for the parties.
14. That the Defendant states that the life
span of an interest rate for a
fixed term investment agreement
between parties is determined
by the duration fixed by the
contract as such agreements are
not contracts at large and
Plaintiff’s claim of duration of
the interest in the instant
application is palpably
erroneous and outside the reach
of the contract between the
parties.
16. That the admitted or agreed interest
rate by the parties cannot be
applied until the date of final
payment having, account to the
material facts of the fixed
investment agreement between the
parties and that the interest
rate is only applicable within
the reach and scope of the
period fixed for the life of the
investment contract.”
Learned counsel for the
Applicant then referred this
court to a litany of decided
cases to justify why the review
jurisdiction in the instant case
must be exercised. Cases
referred to include:-
1.
NDK Financial Services v Ahaman
Enterprises Ltd & Others –
Review Motion No. J7/4/16 dated
13th June 2016
2.
Afranie II v Quarcoo [1992] 2
GLR 561
3.
Ribeiro v Ribeiro [1989-90] 2
GLR 10
4.
Glencore AG v Volta Aluminum
Company Ltd. [2013-2014] 1SCGLR
473
With the above rendition,
learned counsel for the
Applicants requested of this
review panel to exercise our
jurisdiction in their favour.
As was to be expected, learned
Counsel for the 1st
Respondents, Dr. Atupare of
Kulendi@ Law, relied on a number
of decisions from this court and
argued that the instant
application does not qualify for
the exercise of our review
jurisdiction.
Some of these cases are:-
1.
Mechanical Lloyd Assembly Plant
Ltd vrs Nartey [1987-88] 2 GLR
598
2.
Quartey v Central Services Co.
Ltd [1996-97] SCGLR 398
3.
Afranie v Quarcoo [1992] 2 GLR
591-592
4.
Tamakloe v Republic [2011] 1
SCGLR 29 and
5.
Internal Revenue Service v
Chapel Hill Ltd [2010] SCGLR 827
at 850, 852-853, just to mention
a few.
SCOPE OF REVIEW APPLICATION IN
THE SUPREME COURT
This court, has in the case of
Arthur (No.2) v Arthur
(No.2) [2013-2014] 1 SCGLR 569,
at 579-580 reviewed most
of the cases referred to supra
as well as the locus classicus
decisions on the review
jurisdiction of this court and
came out with a road map that an
Applicant for a review
jurisdiction must satisfy to
ensure a successful review
application. The court stated in
the above decision as follows:-
“We are therefore constrained to
send a note of caution to all
those who apply for the review
jurisdiction of this court under
rule 54 (a) of the Supreme Court
Rules, 1996 (C.I. 16), to be
mindful of the following which
we set out as a road map.
It is neither an exhaustive list
nor one that is cast in iron
such that it cannot be varied
depending upon the circumstances
of each case:
(i)
in the first place, it must be
established that the review
application was filed within the
time limits specified in rule 55
of CI 16, i.e. it shall be filed
at the Registry of the Supreme
Court not later than one month
from the date of the decision
sought to be reviewed.
(ii)
That there exists exceptional
circumstances to warrant a
consideration of the
application;
(iii)
That these exceptional
circumstances have led to some
fundamental or basic error in
the judgment of the ordinary
bench;
(iv)
that these have resulted into
miscarriage of just (it could be
gross miscarriage or miscarriage
of justice simpliciter);
(v)
the review process should not be
turned into another avenue as a
further appeal against the
decision of the ordinary bench;
and
(vi)
the review process should not be
used a forum for unsuccessful
litigants to re-argue their case
It is only when the above
conditions have been met to the
satisfaction of the court that
the review panel should
seriously consider the merits of
the application.” Emphasis
Applying the above road map it
appears to us that, grounds (ii)
(iii) and (iv) come into focus.
This is because, from the
depositions of the Applicant’s
Solicitors referred to supra in
the affidavit in support, it is
apparent that the cardinal
points in this review
application are the following:-
1.
That this court’s order that the
1st Respondents pay
interest on the sum of
GH¢6,160,240.00 instead of the
sum of GH¢6,162,240.00 which is
the correct figure, at the
agreed interest rate of 30% per
annum from 2nd June
2008 until the date of the
judgment of the High Court,
which is 11th
September 2011 is per incuriam
the Court (Award of Interest and
Post Judgment Interest) Rules,
2005 (C. I. 52).
2.
That the courts order that the 1st
Respondent pay interest on the
sum of GH¢6,162, 240 out of the
sum of GH¢13, 762,240.00 at the
prevailing bank rate from the
date of the judgment of the High
Court, to wit, 16/09/11 to the
date of final payment is per
incuriam the Court (Award of
Interest and Post Judgment
Interest) Rules, 2005 (C.I. 52)
3.
Finally, that this courts’
orders that, 1st
Respondent pay interest on the
sum of GH¢7,600,000.00 at the
prevailing bank interest rate as
at the date of the judgment of
the High Court 16/09/11 to be
calculated from the 2nd
June 2008 to the date of final
payment is also per incuriam C.
I. 52.
Under these circumstances, we
are of the opinion that it is
necessary at this stage to refer
in extenso to the relevant
provisions of C.I. 52.
Accordingly, we set out below
Rules 1, 2 and 4 of the Court
(Award of Interest and Post
Judgment Interest) Rules 2005
(C.I. 52).
Rule 1-Order for payment of
interest
1. “If the court in a
civil cause or matter decides to
make an order for the payment of
interest on a sum of money due
to a party in the action that
interest shall be calculated
a. at the bank rate
prevailing at the time the order
is made, and
b. at simple interest
but where an enactment,
instrument or agreement between
the parties specifies a rate of
interest which is to be
calculated in a particular
manner, the court shall award
that rate of interest calculated
in that manner.
Rule 2 – Post Judgment interest
2. (1) Subject to
subrule (2) each judgment debt
shall bear interest at the
statutory interest rate from the
date of delivery of the judgment
up to the date of final payment.
(2) Where the transaction
which results in the judgment
debt is
(a) contained in an
instrument,
(b) evidenced in writing,
or
(c) admitted by the
parties
and the parties specify in the
instrument, writing or admission
the rate of interest which is
chargeable on the debt and which
is to ran to the date of final
payment, then that rate of
interest shall be payable until
the final payment.
Rule 4 – Interpretation of
statutory rate
4. (1) In these
Rules statutory rate of interest
is the bank rate prevailing at
the time the judgment or order
is made by the court.
(2) Where there is doubt
as to the prevailing bank rate,
the 91 days Treasury Bill rate
as determined by the Bank of
Ghana shall be the prevailing
bank rate.” Emphasis
The cardinal point to note in
the above rules, are that, the
issue of payment of interest in
a civil suit is a discretionary
one for the court which the
court makes as part of it’s
determination in the cause or
matter. However, it is clear
that once the decision is made
to award interest, then it must
follow the provisions contained
in the Rules in C.I. 52 referred
to supra.
There are various scenarios and
or circumstances that demand
different applications of the
Rules as well as the rates of
interest that should be imposed.
We have in this rendition
considered the contending
arguments of learned Counsel for
the parties as well as their
depositions referred to supra.
We have also considered in
detail the various decided cases
on the subject-matter.
Under these circumstances, it is
apparent that this court must
assume jurisdiction in this
review application and determine
it on its merits.
It is interesting to observe
that, in the Supreme Court case
of NTHC Ltd v Antwi [2009]
SCGLR 117, at 120-121
especially the Editorial Note
therein, the Supreme Court gave
a decision in favour of the
Respondent before the ordinary
Bench, but that decision was
reviewed by the Court upon an
application by the Applicant
therein. This is how the
ordinary bench and the review
decisions were reported.
“Per curiam. We
consider that this case is an
appropriate one in which to
exercise the power to award
interest in order to avoid a
miscarriage of justice. As
the defendant company points
out, there is danger of unjust
enrichment on the part of the
purchaser (i.e. the plaintiff)
if the power to award interest
is not exercised. Accordingly,
whilst confirming the Court of
Appeal’s order of specific
performance of the contract of
sale, we also order, pursuant to
rule 1 of C. I. 52, that the
plaintiff should pay interest to
the defendant company on the
cedi equivalent of the price of
US$70,307 from 1 August 2005
till today at the bank rate
prevailing today. We do not
consider that the neglect of the
defendant company to furnish the
plaintiff with the particulars
of the bank account into which
the price should be paid is
sufficient reason for the
defendant company to forfeit its
entitlement to interest. That
neglect was in the heat of a
legal dispute which has only now
been finally settled. Since
specific performance is an
equitable remedy, its
enforcement should not lead to
the infliction of hardship on
the defendant.
Editorial Note:
The respondent, Yaa Antwi,
subsequently brought a motion
(CM J7/3/09) before the Supreme
Court for a review of its
decision given on 4 February
2009 as set out above –
specifically on the issue of
award of interest in favour of
the appellant, NTHC Limited. On
8th July 2009 the
Supreme Court (coram: Sophia
Akuffo, Dr. Date-Bah, Sophia
Adinyira, R C Owusu, Dotse, Anin
Yeboah and Baffoe-Bonnie JJSC)
unanimously granted the
application for review in the
following terms: “That
interest on the purchase price
of the property, the
subject-matter of the suit, be
paid by the respondent (the
applicant herein) up to the date
of payment at the applicable
Bank of Ghana dollar rate as at
the date of such payment”.
Consequently, the Supreme Court
vacated its previous order given
on 4 February 2009 (as stated
above) that interest be paid up
to the date of judgment.”
Emphasis
Again the Supreme Court in the
case of G.P.H.A v Nova
Complex Limited [2010] SCGLR
at pages 5 and 7, the ordinary
bench of the Supreme Court
interpreted the remit of the
Court (Award of Interest and
Post Judgment Interest Rules,
(C. I. 52) and provided relevant
explanation in the Editorial
Note therein on the scope of C.
I. 52 as well as references to
the NTHC Ltd v Antwi
case already referred to supra
as follows:-
(2) “The
applicability of the Court
(Award of Interest and Post
Judgment Interest) Rules, 2005
(CI 52), to the facts of the
instant case, being the relevant
legislation applicable on the
date of the judgment of the
Supreme Court, i.e. on 15
November 2006, did not, contrary
to the contention of the
defendant-appellant, involve
retroactivity; that legislation
authorized the Supreme Court to
award pre-judgment interest on
the judgment debt adjudged by
it. Post-judgment interest would
then follow as a matter of law.
The fact that the Supreme Court
in the instant case chose to
limit the period of the
prejudgment interest awarded by
it, so that it would terminate
on the date of the judgment of
the High Court, did not take
away its statutory authority to
award the said prejudgment
interest rate. It was open to
the Supreme Court to have
decided that the interest
payable by the
defendant-appellant should be up
to the date of the judgment of
the Supreme Court. The fact
that the Supreme Court did not
do so did not derogate from the
applicability of CI 52 to its
judgment, even though the
enactment had come into force
after the giving of the High
Court judgment in the case.
Per curiam. First
article 107 is inapplicable to
the facts of this case, since it
refers exclusively to
Parliament; whilst CI 52 is made
by the Rules of Court Committee,
pursuant to power conferred upon
it by article 157 (2) of the
1992 Constitution…It is obvious
from the express language of
this provision that it has no
application to this case.
Second, the statutory power to
award interest that was
exercised by the Supreme Court
in its order…was not deployed
retroactively… When the Supreme
Court decided on 15 November
2006 to award prejudgment
interest on the sum representing
the replacement value of the
vessel, the subject-matter of
the original suit in this case,
it was in effect, exercising
power under rule 1 of CI 52,
which was in force then,
although it did not say so
expressly. It was open to
the Supreme Court to award
interest from the date the cause
of action arose up until the
date of their judgment, pursuant
to rule 1 of CI 52. The fact
that the court, in exercising
its discretion, limited the
period for the payment of
interest to end on the date the
High Court gave its judgment
does not convert its award into
a retroactive award. This court
has no power in this appeal to
disturb that award by the
Supreme Court. In our view,
however, any post-judgment
interest which is payable by
operation of law under rule 2
(1) of C I 52 would become
payable from the date of the
Supreme Court’s judgment and not
that of the High Court.
Therefore the interpretation put
by the Plaintiff-respondent on
rule 2 (1) of C I 52 for the
purpose of levying execution in
this case was erroneous and
should not have been supported
by the Court of Appeal.
Editorial Note. As
rightly held by the Supreme
Court “statutory rate of
interest” as defined in rule 4
(1) of C I 52 should be applied
in awarding post judgment
interest rate on “the US dollar
component of the judgment debt”.
However, further attention is
respectfully drawn to the
provision in rule 4 (2) of C I
52, namely: “Where there is
doubt as to the prevailing bank
rate, the 91 days Treasury Bill
rate as determined by the Bank
of Ghana shall be the prevailing
bank rate.” For recent
application of rule 4 (2) of C I
52: see Da Costa v Ofori
Transport Ltd [2007-2008] 1
SCGLR 602-at 609-610 cited
by the Supreme Court in the
instant case. Further attention
may also be drawn to rule 2 (2)
of CI 52 providing that “the
statutory rate of interest”
shall be inapplicable “where the
transaction which results in the
judgment debt is (a) contained
in an instrument, (b) evidence
in writing, or (c) admitted by
the parties and the parties
specify in the instrument,
writing, or (c) admitted by the
parties and the parties specify
in the instrument, writing or
admission the rate of interest
which is chargeable on the debt
and which is to run to the date
of final payment, then that rate
of interest shall be payable
until final payment.”
It should also be
respectfully noted that the
decision of the Supreme Court in
NTHC Ltd v Antwi,
delivered on 4 February 2009 and
cited by the Supreme Court in
the instant case of GPHA v
Nova Complex Ltd, was the
subject-matter of a subsequent
review application by the
respondent in that case, Miss
Antwi. The review application
was determined by the Supreme
Court on 8th July
2009. On that date, the
Supreme Court made a review
order (which has been published
as Editorial Note to the case of
NTHC Ltd v Antwi [2009] SCGLR
117 at 121). The review
order was to the effect that
“interest on the purchase price
of the property, the
subject-matter of the suit, be
paid by the respondent… up to
date of payment at the
applicable Bank of Ghana dollar
rate as at the date of such
payment.” In effect, the Supreme
Court, in granting the review
application, vacated its
previous order given on 4
February 2009 to the effect that
interest be paid up to the date
of judgment.”
From all the above decisions and
the prevailing circumstances of
this case, we are certain that,
once our attention has been
drawn to the fact that the
parties had admitted 30% as the
agreed interest rate it is that
rate, that should apply in the
calculation of interest between
the parties.
Secondly, it is also certain,
that, since it is this Supreme
Court, which gave judgment in
favour of the Applicant for the
first time, it is the date of
this Supreme Court decision that
the interest rate should be
referable to. This means that,
the pre-judgment interest in
this case ought to be paid up to
the date of the Supreme Court
judgment and post judgment
interest at the statutory rate
from the date of the Supreme
Court judgment, which is 25th
July 2018.
Thirdly, we are also certain
that, in our judgment of 25th
July 2018, instead of an amount
of GH¢6,162,240.00, we
inadvertently quoted or stated a
figure of GH¢6,160,240. We
hereby concede this point as
well, and accordingly correct it
in the review orders of this
Court.
In view of the above decisions,
our conclusions on this review
application are as follows:-
CONCLUSION
We have carefully considered the
merits of the instant review
application. We have also
considered in detail, the
various depositions in the
affidavits in support and in
opposition.
We have also taken into
consideration the various
elaborate statements of case
filed by the parties as well as
all the exhibits and legal
authorities referred to.
We have also satisfied ourselves
that the applicable law in this
review application is the Court
(Award of Interest and Post
Judgment Interest Rules, 2005
(C. I. 52).
Applying the facts of the
instant application to the law
inherent in the determination of
this review application, we are
of the view that the application
for review be granted on the
following terms:-
Having apprised ourselves that
pursuant to the provisions in
Rule 1 (1) (a) of C. I. 52, it
is the date of the Supreme Court
judgment which is 25th
July 2018 that is the reference
date of the applicable interest
rate and not the date of the
High Court judgment, which is 16th
September 2011.
Accordingly, we review our
decision of 25th July
2018 on this point as follows:-
1.
That the 1st
Respondents pay interest to the
Applicant herein on the sum of
GH¢6,162,240.00 out of the sum
of GH¢13,762,240.00 at the
agreed interest rate of 30% from
the 2nd day of June
2008 up until the date of the
Supreme Court judgment, to wit,
the 25th day of July
2018.
2.
The 1st Respondents
are to pay to the Applicant
interest on the sum of
GH¢6,162,240.00 out of the sum
of GH¢13,762,240.00 at the
statutory interest rate from the
date of judgment of this court,
(which is 25th July
2018 up to date of final
payment.
3.
That the 1st
Respondents pay interest on the
sum of GH¢7,600,000.00 at the
prevailing bank rate as at the
date of the judgment of the
Supreme Court which is
25/7/2018.
CLOSING REMARKS
We wish to caution all persons
who enter into business/loan and
or financial transactions to be
mindful of the provisions of
Court (Award of Interest and
Post Judgment Interest) Rules,
2005 (C. I. 52). Furthermore, we
also wish to remind all courts
that there is some measure of
discretion in the award of
interests, and before a court
decides to award interest, all
the prevailing circumstances of
each case must be considered on
the merits critically before the
decision is made.
Furthermore, we believe that,
since 2005, the time is perhaps
ripe for this C.I. 52 to be
reviewed.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the
conclusion and reasoning of my
brother Dotse, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the
conclusion and reasoning of my
brother Dotse, JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Dotse, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the
conclusion and reasoning of my
brother Dotse, JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Dotse, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
DORDZIE (MRS.), JSC:-
I agree with the
conclusion and reasoning of my
brother Dotse, JSC.
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY FOR THE
APPLICANT.
DR. ATUPARE FOR THE 1ST
RESPONDENT LED BY AMA AMPONSA.
NII O. BADOO FOR THE
3RD RESPONDENT.
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