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Banking - Credit facility –
Agreement - - Interest
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Whether or not it is
propriety in invoking the
inherent jurisdiction of this
court to clarify areas of doubt
or ambiguity -
HEADNOTES
The facts of this case admit of
no controversy whatsoever. The
Plaintiffs are a non-banking
financial institution
incorporated in and under the
laws of Ghana. They were
approached in their normal line
of business by Ahaman
Enterprises Limited, a haulage
company for a credit facility,
initially in the sum of
GH¢30,000.00 to enable them
execute contracts awarded them
by the Ministry of Energy to
haul electricity poles and
otDefendants therein requested
from the Plaintiffs, the
Plaintiffs required the 1st Defendants
to secure a guarantee from the
Ministry of Energy that payments
due under the contract for the
haulage of the electrical poles
and other materials would be
made iher electrical materials
from designated locations to
various parts of the country
under the National
Electrification Project. In the
course of time, the said Ahaman
Enterprises Ltd, who were sued
therein by the Plaintiffs in the
High Court as 1st Defendants
applied for further amounts of
credit facilities from the
Plaintiffs. As a condition for
the approval of the credit
facilities that the 1st n
the joint names of the 1st Defendant
and the Plaintiffs. Relying on
the Ministry of Energy’s letters
in support of each credit line
facility applied for by the 1st Defendants,
the Plaintiffs approved,
advanced and disbursed various
sums of money to the 1st Defendants
as requested by them, pursuant
to loan agreements executed
between the 1st Defendants
and the Plaintiffs on 26th August
2005 and thereafter in respect
of all the credit advances, as
per the offer letters dated 28th September
2005, 7th October
2005, 13th October
2005, 2nd February
2006 and 28th April
2006 all to the total sum of
GH¢340,000.00, at an interest
rate of 6.5% per month
calculated at the end of each
day and payable at the end of
every month until the date of
final payment. It is the
plaintiffs contention that, the
Defendants herein failed and or
refused to honour the
undertakings and guarantees
contained in the Ministry of
Energy letters to the plaintiffs
and the 1st Defendants
to the effect that all payments
in respect of the contract
between the 1st Defendant
and the Ministry of Energy would
be paid in the joint names of
the plaintiffs and the 1st defendants.Matters
came to a crisis point, when the
Plaintiffs discovered that by a
letter No. K838/127/01, dated 17th December
2008, the Ministry of Energy
directed the Ministry of Finance
to pay the sum of GH¢286,250.52
being proceeds due the 1st Defendants
under the haulage contract to
them without reference to the
plaintiffs.
HELD
The
expression “Jointly and
Severally” was not used in this
Court’s judgment. We accordingly
order a rectification of the
certificate of payment to
reflect that payment under the
haulage contract be paid to
plaintiffs Jointly by the 1st
Defendant, Ahaman Enterprises
and the 2nd
Defendants/Applicants herein.
The second relief as per the
motion paper is refused. For the
avoidance of doubt, the interest
payable under the contract is
compound interest. The
computation of interest shall
run from the date of the
contract up to the date of
filing the appeal in the Court
of Appeal at the rate of 6.5%
per month calculated on a 30 day
per month basis collectible
monthly in arrears.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules (C.I. 16 )
CASES REFERRED TO IN JUDGMENT
Okofoh Estates Ltd vs Modern
Signs Ltd & Anor (1996-97) SCGLR
224
Sumner vs Powell (1816) 2 Mer 30
(1823) Turn & R 423;
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England, 3rd
Ed. Vol. 18 p. 462).
DELIVERING THE LEADING JUDGMENT
AKAMBA, JSC:
COUNSEL
SYLVESTER WILLIAMS (CHIEF STATE
ATTORNEY) WITH MRS EWOOL
(PRINCIPAL STATE ATTORNEY) FOR
THE 2ND DEFENDAN/
APPLICANT.
KWASI AFRIFA ESQ. FOR THE
PLAINTIFF/RESPONDENT
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RULING
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AKAMBA, JSC:
On
the 28th November
2013 this court gave its
decision dismissing an appeal
brought against a judgment of
the Court of Appeal of the 28th
March 2013 which had reversed
the judgment of the High Court
entered in favour of the
Plaintiff/appellant/ respondent,
hereinafter simply referred to
as the respondent.
The 2nd
Defendant/Respondent/Applicant,
hereinafter simply referred to
as the Applicant, invoking the
inherent jurisdiction of this
court, seeks a clarification of
parts of the judgment dated 28th
November 2014. By the
application filed on 25/11/2015,
pursuant to rule 5 of CI 16, the
following three areas have been
set down as lacking clarity and
thereby warranting our
intervention. These are:
(a)
The use of the word “jointly”
and “jointly and severally” in
the judgment and the certificate
of the order of this Honourable
Court respectively.
(b)
The appropriate
computation of the interest
(whether compound or simple
interest) as regards the
contract signed on 26th
August, 2005 between Plaintiffs,
NDK Financial Services and the 1st
Defendant, Ahaman Enterprises
Ltd.
(c)
The period for the computation
of the interest exigible.
When the motion came up for
hearing, the counsel for the
respondents, Kwasi Afrifa,
discounted the applicability of
rule 5 of CI 16 to the present
motion, contending that the
applicant was merely trying to
seek a further review after a
failure of an earlier review
application. According to
respondent’s counsel, the
inherent jurisdiction of this
court must be expressly invoked.
It
is sufficient in this instance
that the applicant placed
reliance on rule 5 of CI 16
which states:
“Where no provision is
expressly made by these Rules
regarding the practice and
procedure which shall apply to
any cause or matter before the
Court, the Court shall prescribe
such practice and procedure as
in the opinion of the Court the
justice of the cause or matter
may require”.
This being the last and final
court of the land, in a
situation in which the rules of
court or any other relevant
statute, do not prescribe
particular practices or
procedure as the justice of a
cause or matter may require, it
is appropriate to grant the
application, provided there is
substance in it and regardless
of the form in which it has been
intituled. This is in consonance
with the duty of the courts to
do substantial justice on the
issue/s before it. A court of
justice has a duty to render its
decisions with sufficient
clarity so as not to leave
parties in any doubt/s as to the
outcome of its pronouncements.
Where doubts are evident or
uncertainties obvious from the
court’s orders, rulings or
judgments, it is appropriate to
seek the intervention of the
court in appropriate
circumstances to clarify the
doubts. (See Okofoh Estates Ltd
vs Modern Signs Ltd & Anor
(1996-97) SCGLR 224, holding 1).
There is no merit in the
Respondent’s objection to the
propriety in invoking the
inherent jurisdiction of this
court to clarify areas of doubt
or ambiguity as per the
applicant’s motion paper and
supporting affidavit of
25/11/2015.
The decision of this court the
subject of the application
concludes as follows:
“The net result is that, the
appeal herein fails and is
accordingly dismissed.
In
its place, the Court of Appeal
judgment, of 28th
March 2013 is hereby affirmed as
follows:-
1.
The appellant is asking
the Ministry of Energy to render
accounts of all payments made to
1st defendant under
the haulage contract from 19th
August 2005, up to date filing
this suit and we so order. This
Account is to be rendered by the
current Chief Director and The
Principal Accountant of the
Ministry of Energy within thirty
days (30) of this order. In
coming to this conclusion we
have noted that the Plaintiffs
admit some of the payments were
made in its name jointly
with that of the 1st
defendant (Ahamah Enterprises).
The controversy that culminated
in the instant action arose
because the Ministry of Energy
paid some of the monies due
under haulage contract to Ahaman
Enterprises Limited alone.
2.
From the Plaintiff’s writ
of summons, it is also seeking a
consequential order that
defendants herein pay to it all
sums together with interest at
the rate of 6.5% per month paid
to 1st defendant,
Ahaman Enterprises Limited by
the Ministry of Energy in
contravention of the letters of
undertakings dated 19th
August 2005, 22nd
September 2005, 13th
October 2005, 2nd
February 2006, 27th
April 2006 to date of filing the
appeal in the Court of Appeal.
We will grant the Plaintiffs
prayer except to add that all
the sums due under the haulage
contract together with interest
at 6.5% per month that were paid
to the 1st defendant
in contravention of the letters
of undertakings after the
Accounts had been rendered by
the Ministry of Energy should
be paid jointly by Ahaman
Enterprises and the defendants
herein to the Plaintiffs.”
ISSUES FOR CLARIFICATION
Three issues were filed for our
consideration. The first issue
raised by the applicant is about
the use of the expression
‘jointly’ and ‘jointly and
severally’ in reference to the
transaction. Whereas the court
order was made jointly against
the parties, the certificate
issued for enforcement of the
judgment Exhibit AGNDK 3 sub
paragraph 2 (b) makes the order
“jointly and severally” against
the parties.
It
is important to state that there
is no principle of equity that a
joint covenant or promise is to
be treated as joint and several.
(See Sumner vs Powell (1816) 2
Mer 30 affirmed (1823) Turn & R
423; Halsbury’s Laws of England,
3rd Ed. Vol. 18 p.
462).
Nowhere in this court’s decision
of 28th November 2014
was the expression “jointly and
severally” used. It is not for
parties or their counsel to
choose or substitute words or
expression for a court of law.
It is the mandate of the court
to express itself as best it can
to bring out its intentions for
the parties. It is thus clear
from a comparison of what is
therein stated in Exhibit AGNDK
3 sub paragraph 2 (b) and the
judgment quoted supra that the
court’s order had consequently
been altered. There is therefore
merit in the first issue raised
by the applicant. We
accordingly order a
rectification of the certificate
to reflect that payment under
the haulage contract together
with interest at 6.5% per month
be paid to the 1st
defendant in contravention of
the letters of undertakings
after the Accounts had been
rendered by the Ministry of
Energy be paid JOINTLY by Ahaman
and the defendants herein to the
Plaintiffs.
The next issue raised is about
the appropriate computation of
interest. It is clear from the
contract document that the
interest was expressed to be in
compound interest. As per
Exhibit AGNDK 7 the “loan shall
attract an interest rate of 6.5%
per month calculated on a thirty
(30) days per month basis,
collectible monthly in arrears.”
There is no ambiguity about this
issue and same is dismissed.
The next and last point of issue
is about the period for the
computation of interest. Whereas
Exhibits AGNDK 4, 6 and 8
computed the compound interest
from January 2009 up to 30th
September 2015, the order of
this court of 28/11/2014
granted that “all sums together
with interest at the rate of
6.5% per month paid to 1st
defendant, Ahaman Enterprises
Limited by the Ministry of
Energy in contravention of the
letters of undertakings dated 19th
August 2005, 22nd
September 2005, 13th
October 2005, 2nd
February 2006, 27th
April 2006 to date of filing the
appeal in the Court of Appeal.
We will grant the Plaintiffs
prayer except to add that all
the sums due under the haulage
contract together with interest
at 6.5% per month that were paid
to the 1st defendant
in contravention of the letters
of undertakings after the
Accounts had been rendered by
the Ministry of Energy should be
paid JOINTLY by Ahaman
Enterprises and the defendants
herein to the plaintiffs.”
(Underlined for emphasis)
To
the extent therefore that the
period for the payment quoted in
Exhibits 4,6 and 8 derogate from
the orders of this court above
quoted we order a correction or
rectification thereof to comply
with the orders as per the
judgment of 28/11/2014.
Save for the refusal of the
second relief raised before us,
we grant an order for the
rectification of the offending
exhibits to strictly comply with
the judgment of this court.
Accordingly ordered.
In
conclusion the unanimous
decision of this Court is that
the application by the 2nd
Defendant/Applicant filed on
25/11/2015 is granted as
follows:
1.
The expression “Jointly
and Severally” was not used
in this Court’s judgment of 28th
November, 2014. We accordingly
order a rectification of the
certificate of payment to
reflect that payment under the
haulage contract be paid to
plaintiffs Jointly by the
1st Defendant, Ahaman
Enterprises and the 2nd
Defendants/ Applicants herein.
2.
The second relief as per
the motion paper is refused. For
the avoidance of doubt, the
interest payable under the
contract is compound interest.
3.
The computation of
interest shall run from the date
of the contract up to the date
of filing the appeal in the
Court of Appeal at the rate of
6.5% per month calculated on a
30 day per month basis
collectible monthly in arrears.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD) G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME
COURT
COUNSEL
SYLVESTER WILLIAMS (CHIEF STATE
ATTORNEY) WITH MRS EWOOL
(PRINCIPAL STATE ATTORNEY) FOR
THE 2ND DEFENDAN/
APPLICANT.
KWASI AFRIFA ESQ. FOR THE
PLAINTIFF/RESPONDENT |
