|
State proceedings
–
Certiorari
–
Error of law
–
Remedy not available for error
committed within jurisdiction.
Judgment – Interest – Rate –
Judgment for cedi equivalent of
sterling debt – Judgment a cedi
judgment – Interest payable at
rate applicable to cedi debts. –
Courts (Award of Interest)
Instrument 1984 (LI 1295).
The High Court awarded damages
in favour of the respondent for
the cedi equivalent of the award
calculable at the Bank of Ghana
rate of exchange at the date of
payment of the judgment debt, ie
£48,496.94 and £3,334 with
interest at the current bank
rate at simple interest. The
respondent then filed an entry
of judgment claiming interest
calculated at the rate
prevailing in Ghana. The
applicants issued out an
originating summons in the High
Court, contending that the
applicable interest rate ought
to be the rate applicable in the
UK. The court ruled that the
judgment debt was in cedis and
not pounds sterling, and that
the rate in Ghana was
applicable. The applicants then
applied for certiorari to quash
the ruling.
Held:
(1) Where a judge was seised
with jurisdiction, an error of
law would not give a right to
certiorari. R v Christian
(1842) 12 LJ (MC) 26, R v
Cheshire Justices, ex parte
Heaver (1912) 108 LT 374,
Republic v Accra Rent
Magistrate, ex parte Ofosu-Amaah
[1965] GLR 613, Darbah v
Ampah [1989-90] 2 GLR 103,
SC, Republic v High Court,
Accra, ex parte Laryea
[1989-90] 2 GLR 99, SC,
Republic v Eastern Regional
House of Chiefs, ex parte
Birikoramaa [1987-88] 1 GLR
40, CA, Republic v High
Court, Accra, ex parte Asakum
Engineering and Construction Ltd
[1992-93] GBR 264, SC, referred
to.
(2) The judgment for the cedi
equivalent of £48,496.94 and
£3,334 was to recover the cedi
equivalent, not pounds sterling
and the court was right in
applying the local rate of
interest. Royal Dutch Airline
(KLM) v Farmex Ltd [1989-90]
2 GLR 623, SC referred to.
Cases referred to:
Darbah v Ampah
[1989-90] 2 GLR 103, SC.
R v Christian
(1842) 12 LJ (MC) 26, 16 Digest
(Repl) 468.
R v Cheshire Justices, ex parte
Heaver
(1912) 108 LT 374, 177 JP 33, 29
TLR 23, DC, 16 Digest (Repl)
467.
Republic v Accra Rent
Magistrate, ex parte Ofosu-Amaah
[1965] GLR 613.
Republic v Eastern Regional
House of Chiefs, ex parte
Birikoramaa
[1987-88] 1 GLR 40, CA.
Republic v High Court, Accra, ex
parte Laryea
[1989-90] 2 GLR 99, SC.
Republic v High Court, Accra, ex
parte Asakum Engineering and
Construction Ltd
[1992-93] GBR 264, SC.
Royal Dutch Airline (KLM) v
Farmex Ltd
[1989-90] 2 GLR 623, SC.
APPLICATION for order of
ceriorari to quash ruling of the
High Court.
S Kwami Tetteh
(with him W K V Beyuo )
for the applicant.
PA Adjetey
(with him William Addo)
for respondent.
AIKINS JSC.
In this matter the applicants
are asking for (a) an order for
certiorari to quash the ruling
of the High Court, presided over
by His Lordship Sarpong J on 29
October 1993 in suit No 572/93
titled Dr Samuel
Nyako-Agyakwa v Social Security
Bank Ltd and (b) a direction
that interest on the sums of
£45,162.94 and £3,334 awarded
under the judgment of the High
Court dated 26 January 1990 in
suit No 1104/87 entitled Dr
Samuel Nyako-Agyakwa v Social
Security Bank Ltd be
recovered at the rate prevailing
in the United Kingdom at the
date of judgment.
The respondent, the plaintiff in
suit No 1104/87, had obtained
judgment for damage caused to
his consignment of personal
effects and medical equipment
which were warehoused by the
applicants pursuant to a loan
agreement between the parties.
On May 4, 1990 the court,
presided over by Lutterodt J,
quantified the damages against
the applicants as follows:
“(1) The cedi equivalent
calculable at the Bank of Ghana
rate of exchange as at the date
of payment of the sum of £3,334
being the freight charges for
the 3 containers whose contents
were damaged.
(2) The cedi equivalent
calculable at the Bank of Ghana
rate of exchange as at the date
of payment of the sum of
£45,162.94.
(3) Interest on the said sum at
the current bank rate at simple
interest.”
The court further ordered that
the interest on the two sums,
£3,334 and £45,162.94 should be
calculated with effect from 29
April 1986 (the date on which
the plaintiff made a demand for
the goods to be released to him)
in addition to other heads of
damage which she had awarded to
the plaintiff in the main
judgment on 26 January 1990, to
the date of final judgment.
This judgment was confirmed by
the Court of Appeal and the
Supreme Court both as to
liability and as to quantum of
damages including award of
interest. At this stage there
was no dispute about the
applicability of the rate of
interest, whether that
prevailing in Ghana or United
Kingdom. The controversy arose
when the respondent filed an
entry of judgment in which
calculation of interest had been
made at the prevailing bank rate
in Ghana. The applicants raised
objection and contended that the
UK interest rate should be
applicable, and relied on the
case of Royal Dutch Airline
(KLM) v Farmex Ltd [1989-90]
2 GLR 623. It was to resolve
this matter that the respondent
issued out an originating
summons in the High Court where
the presiding judge, Sarpong J,
after due consideration of the
arguments before him ruled as
follows:
“Where a court orders that the
cedi equivalent of a foreign
currency is to be paid it means
cedis have to be paid. And so
the order of Lutterodt J, I do
say, refers to cedis and not
otherwise. In the result I do
say emphatically that judgment
was in cedis and not pound
sterling. Thus Farmex
case is inapplicable.”
The applicants contend that this
holding of Sarpong J is
erroneous. Since the award was
in sterling Sarpong J ought to
have ruled that the rate of
interest awarded should be in
pound sterling in accordance
with the ruling in the Farmex
case. I find it difficult to
appreciate the error complained
of. In as much as the judge was
seised with jurisdiction to
adjudicate the matter the fact
that he might have misconstrued
a point of law or failed to
apply a particular statute or a
decided case or misdirected
himself in some way, would not
give right to apply for
certiorari. See R v Christian
(1842) 12 LJ (MC) 26; R v
Cheshire Justices ex parte
Heaver (1912) 108 LT 374,
Republic v Accra Rent
Magistrate, ex parte Ofosu-Amaah
[1965] GLR 613; Darbah v
Ampah [1989-90] 2 GLR 103,
SC.
In my view, if the applicants
are dissatisfied with the
judgment of Sarpong J, the
proper action for them to take
is to appeal to the Court of
Appeal for redress but not to
come to this court by way of
certiorari. Numerous decided
cases support this contention.
For example, Republic v High
Court, Accra, ex parte Laryea
[1989-90] 2 GLR 99, SC where it
was held that in a situation
where jurisdiction is not in
issue and there is no error on
the face of the record, the
correctness or otherwise of the
decision is a matter for appeal,
and not to come by way of
certiorari. See also Republic
v Eastern Regional House of
Chiefs, ex parte Birikoramaa
[1987-88] 1 GLR 40, Republic
v High Court, Accra, ex parte
Asakum Engineering and
Construction Ltd [1992-93]
GBR 264, SC. It follows
therefore that this application
must fail. In my view the
argument is an erroneous one.
But that is not the end of the
matter. The decision in the
Farmex case is quite
distinct and inapplicable to the
present case. There the judgment
was recoverable in pound
sterling, and on an application
to this court for a review and
for clarification of the rate of
interest applicable, whether the
UK rate or the Ghana rate, the
court held that the rate of
interest payable on the damages
awarded, ie £23,800, against the
defendant should be pound
sterling commercial rate at
simple interest prevailing in
the United Kingdom as at the
date of final judgment and not
the bank rate prevailing in
Ghana. In the present case, on
the other hand, the judgment was
for the payment of the cedi
equivalent of the total sum of
£48,496.94 “calculable at the
Bank of Ghana rate of exchange
as at the date of payment.”
There is no doubt that this
judgment is a judgment to
recover cedis not pound sterling
or any other convertible
currency. Sarpong J was
therefore right in contending
that the Farmex case does
not apply, and that the judgment
was meant to be in cedis and not
in convertible currency.
In sum it is the judgment of
this court that Sarpong J’s
ruling is right in law, and that
there is no error apparent on
the face of it. We hold that the
judgment of Lutterodt J should
be allowed to stand to the
extent that the interest payable
on the cedi equivalent of
£48,496.94 should be calculated
at the current bank rate in
accordance with the Courts
(Award of Interest) Instrument
1984 (LI 1295), namely, the rate
approved by the Bank of Ghana at
which customers borrow money
from the commercial banks in
Ghana at the rate prevailing on
the date the debt is paid.
The application therefore fails
and is dismissed.
(sgd) FRANCOIS JSC
(sgd) AMUA-SEKYI JSC
(sgd) HAYFRON-BENJAMIN JSC
(sgd) AMPIAH JSC
Application dismissed.
Michael Jojo Acquah, Legal
Practitioner
|
