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JUDGMENT
GBADEGBE, JA:
The question my lords
which confronts us in this appeal is whether the learned
trial judge was right in awarding interest on the sum of
twenty nine million cedis only and not on the entire
amount of fifty four million cedis which was indorsed on
the writ of summons which initiated the action in the
court below? In this delivery, for the sake of
convenience, I shall refer to the parties as they were
described in the court below. In the judgment with which
we are concerned in this appeal, the learned trial judge
limited the interest which he awarded to the amount in
respect of which he entered judgment in the course of
the proceedings at page 12 of the record in the
following words:
“Judgment for
plaintiff in the sum of ¢29, 000,000.00. Costs of 5
million cedis to plaintiff. Court defers question of
interest to parties to negotiate. Adjourned to
15/3/2000.”
The said entry of
judgment was preceded by the payment into court by the
defendant of the sum of twenty five million cedis, it
being part of the claim indorsed on the writ of summons
initiating the action. On the day that the parties
appeared before the learned trial judge for the issue of
interest to be decided by the court after listening to
the respective counsel, he awarded interest at the
prevailing bank rate and expressed it to be in respect
of twenty nine million cedis. In their complaint before
us the plaintiffs have raised the following grounds:
(1) That the court
failed or refused to award interest on the whole amount
of ¢54,000,000.00 claimed by the plaintiff and awarded
interest in part on ¢29,000,000.00
(2) The ¢25,000,000.00
that the court did not award interest thereon is
unreasonable and not known to the rules.
I have examined the
respective statements submitted to us by the parties
through their counsel and I am of the view that the
learned trial judge erred by not awarding the interest
on the entire sum claimed. I think that the discretion
which is bestowed on him under the law namely The Courts
(Award of Interest) Instrument (LI 1295) should have
been in respect of the entire amount for which the
plaintiff was compelled to claim in his indorsement once
the said amount was found due by the court to it. In my
view this is clearly borne out by the formulation in the
said instrument which reads:
"Where in any civil
cause or matter the Court makes an order for the payment
of interest on any sum due to the plaintiff other than
any sum claimed by the plaintiff under Order 13 rule 3
of the High Court (Civil Procedure Rules, 1954 (LN 140A)
the rate shall be payable at the Bank rate prevailing at
the time the order was made by the Court, but no
compound interest shall be awarded."
I wish to say that from
the proceedings before us it is quite clear in view of
the course of conduct which the defendant took
resulting in the entry of judgment against him that he
had as it were admitted the claim made against him
contained in the plaintiff's demand and therefore he is
deemed to have admitted the pleadings on which the claim
was based that he had received the amounts from the
farmers but refused to pay the same over to the
plaintiff, a situation which in the words of Herschel LC
in London, Chatham and Dover Railway Co v South Eastern
Railway Co [1893] AC 429 @ 437 justifies an award of
interest. In his words which were approved by Acquah J.
(as he then was) in the case of Heloo v Tettey [1992] 2
GLR 112 @ 123 he said:
“ I think that when
money is owing from one party to another and the other
is driven to have recourse to legal proceedings in order
to recover the amount due to him, the party who is
wrongfully withholding the money from the other ought
not in justice to benefit by having that money in his
possession and enjoying the use of it, when the money
ought to be in the possession of the other party who is
entitled to its use.”
I think that in
limiting the award of interest to the sum in respect of
which the Court entered judgment only the learned trial
judge lost sight of the fact that the proceedings which
resulted in the entry of judgment in the said sum only
and not the whole amount was such that the defendant had
submitted to judgment on the amount claimed and
therefore justified an award of interest on the entire
sum as claimed in the writ of summons. It is clear from
the proceedings that but for the said amount which was
paid by the defendant the entry of judgment would have
been in respect of the entire amount claimed in the
writ. The situation would have been different if the
Court had found for the plaintiff in a lesser sum. In my
thinking this view of the record would be the same
whether one takes the view that the judgment was on
admissions or a summary judgment under Order 14 rule 1
of the High Court rules for it was a judgment on the
entire claim which was demanded by the plaintiff from
the defendant. It follows as said earlier on that the
appeal herein succeeds the result of which is that I set
aside the award of interest which was made in respect
only of twenty nine million cedis and in place thereof
substitute an award at the then prevailing bank rate in
the sum claimed on the writ of summons namely fifty four
million cedis from the date of issue of the writ to the
date of judgment.
N. S. GBADEGBE
JUSTICE OF APPEAL
WOOD, JA:
I agree.
G. T. WOOD (MRS.)
JUSTICE OF APPEAL
AKOTO-BAMFO, JA:
I also agree.
V. AKOTO-BAMFO (MRS.)
JUSTICE OF APPEAL
COUNSEL
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