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JUDGMENT:
The Plaintiff (Sulley Dolley)
has sued the Defendants herein
jointly and severally for the
following reliefs
“ (1) An order for the
recovery of an amount of
US$400,000 (Four Hundred
Thousand Dollars) paid to the
Defendant at their request and
supported by MEMORANDUM OF
UNDERSTANDING dated 17th
day of May 2006 and signed by
both parties and their witnesses
and which the Defendants have
failed to pay to the Plaintiff
despite the abrogation of the
said MEMORANDUM OF UNDERSTANDING
by the Defendants themselves.
(2). Interest on the above
US$400,000 (Four Hundred
Thousand Dollars) at the rate of
3% (three percent) per month
from May 2006 up to date of
final payment of the US$400,000
(Four Hundred Thousand Dollars).
(3) An order for the recovery
of an amount of US$200,000 (Two
Hundred Thousand Dollars) paid
to the Defendants at their
request and supported by
MEMORANDUM OF UNDERSTANDING
dated 6th day of
August 2008 and signed by both
parties and their witnesses and
which the Defendants have failed
to pay to the Plaintiff despite
the abrogation of the said
MEMORANDUM OF UNDERSTANDING by
the Defendants themselves.
(4) Interest on the above
US$200,000 (Two Hundred Thousand
Dollars) at the rate of 3%
(three percent) per month from
February 2009 up to date of
final payment of the US$200,000
(Four Hundred Thousand Dollars).
(5) An order for the recovery
of an amount of GH¢100,000.00
(One Hundred Ghana Cedis) paid
to the Defendants at their
request and supported by
MEMORANDUM OF UNDERSTANDING
dated 13th day of
August 2008 and signed by both
parties and their witnesses and
which the Defendants have failed
to pay to the Plaintiff despite
the abrogation of the said
MEMORANDUM OF UNDERSTANDING by
the Defendants themselves.
(6) Interest on the above
GH¢100,000.00 (One Hundred
thousand Ghana Cedis) at the
rate of 2.5% (two point five
percent) per month from May 2009
up to date of final payment of
the GH¢100,000.00 (One Hundred
Thousand Ghana Cedis).
(7) Any other order or orders as
to this Court may seem just.”
The Plaintiff’s case is that
pursuant to an agreement with
the 2nd Defendant, he
deposited an amount of
US$400,000 with the 1st
Defendant Company. The 1st
Defendant was to pay 3% interest
on the said amount of US$400,000
at the end of each month to the
Plaintiff with effect from 17th
May 2006 while the money
remained with the 1st
Defendant Company until further
notice. This agreement was
evidenced in writing and headed
MEMORANDUM OF UNDERSTANDING, and
dated 17th May, 2006
(Exhibit “A”).
The Plaintiff’s further case is
that on 6th August
2006 the 2nd
Defendant entered into another
agreement with him and in which
it was agreed that again
Plaintiff would deposit an
amount of US$200,000 with the 1st
Defendant until further notice,
and that the 1st
Defendant would pay 3% interest
on the said US$200,000 at the
end of each month while the
money remained with the 1st
Defendant Company until further
notice. Again, the parties
executed a MEMORANDUM OF
UNDERSTANDING dated 7th
August, 2008 (Exhibit “B”)
On the 13th of August
2008, the 2nd
Defendant entered into yet
another agreement with the
Plaintiff in which it was agreed
that the Plaintiff would deposit
an amount of GH¢100,000.00 with
the 1st Defendant
Company and it would pay 2.5%
interest on the said amount at
the end of each month, with
effect from 13th
August, 2008, until further
notice while the money remained
with the 1st
Defendant Company. This was
evidenced by another MEMORANDUM
OF UNDERSTANDING dated 26th
August, 2008 (Exhibit “C”).
It is the Plaintiff’s further
case that the Defendants have
also failed to pay the agreed
interest of 3% per month on the
amount of US$400,000 paid to the
Defendants. Also, the post
dated cheques issued by the
Defendants from May 2009 to date
were dishonoured by the Bank as
having been stopped by the
Defendants. The Defendants have
also failed or refused to pay
the 3% per month interest on the
amount of US$200,000 as provided
by the terms contained in
Exhibit “B”. Again, the
Defendants have failed or
refused to pay the interest of
2.5% per month on the amount of
GH¢100,000, and the cheques
issued by the Defendants have
been dishonoured by the Bank.
Plaintiff says that while these
amounts remained unpaid by the
Defendants to the Plaintiff, the
Defendants by a letter dated 28th
May, 2009 (Exhibit “D”) wrote to
the Plaintiff abrogating all the
three (3) agreements. In the
said letter, the Defendants
stated categorically that they
were unable to further honour
any of the terms contained in
the various agreements. In a
subsequent letter dated 13th
August 2009 (Exhibit “G”), the
Defendants admitted their
indebtedness to the Plaintiff of
the said three (3) separate
amounts i.e. US$400,000,
US$200,000 and GH¢100,000,
together with the agreed
interest. 2nd
Defendant also stated that he
had put up his warehouse for
sale in order to raise money to
pay off the Plaintiff, but
nothing had come out of this.
The Defendants on the other hand
contend that the 1st
Defendant Company is no longer
in business and as such lacks
any capacity to be sued.
Furthermore that the 2nd
Defendant at all material times
only acted as Chairman of the 1st
Defendant Company and not in his
individual capacity. Defendants
contend therefore that the
agreements were between the
Plaintiff and 1st
Defendant; 2nd
Defendant only signed in his
capacity as Chairman of the 1st
Defendant Company.
The further contention of the
Defendants is that Plaintiff
knew that he was investing the
funds in the 1st
Defendant’s business and would
get returns on the investment
when times were good or make
loss when the times were bad.
That, in view of the fact that
the Plaintiff had over the years
obtained an amount far in excess
of the initial amounts invested,
he should be ready to absorb
some amount of losses resulting
from the current global trends.
The issues set down for
determination are as follows:
1. Whether or not repayment of
the amount owed is dependent on
the profitability or otherwise
of Defendants’ business
ventures?
2.
Whether or not the failure of
Defendant’s business exonerates
them from paying the debt owed
to the Plaintiff?
3.
Whether or not Plaintiff is
entitled to the claim.
It is trite law that for every
case there is a burden of proof
to be discharged and the party
who bears the burden will be
determined by the nature and
circumstances of the case; see
sections 10 – 17 of our Evidence
Decree 1976 (NRCD 323). There is
no paucity of case law
interpreting these provisions.
In Ababio v Akwasi 111 [1994-95]
Ghana Bar Report, Part 11, 74
the court stated that a party
whose pleadings raise an issue
essential to the success of the
case assumes the burden of
proving such issue. Reference is
also made to the cases of
Takoradi Flour Mills v Samir
Faris [2005-06] SCGLR 882 and Re
Ashalley Botwe Lands: Adjetey
Agbosu & Ors v Kotey & Ors
[2003-04] SCGLR 420 which
further elucidate the burden of
proof as statutorily provided.
As stated by Justice
Mensa-Boison JA, in the case of
Acquaye v Awotwi [1982-83] 2 GLR
110, the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
The well-known rule of evidence
is that although proof in a
civil case rested on the
plaintiff, that burden was
discharged once the plaintiff
had introduced sufficient
evidence of the probability of
his case. It would then rest on
the defendant to rebut the
plaintiff’s evidence.
Defendants herein, per their
pleadings and submissions made
by their Counsel in his written
address, have questioned the
capacity of the Plaintiff to
sue, and also the capacity of
the Defendants to be sued. I
will therefore look into this
before I discuss the issues set
down for determination.
It is trite learning that a
company is a corporation, and is
therefore a person in the eyes
of the law quite distinct from
the individuals who are its
members. As a distinct person
the company can own property,
have rights and be subject to
liabilities, and it does not
hold its property merely as an
agent or trustee for its
members, and they cannot sue
individually or collectively to
enforce rights which the company
has against third persons except
in exceptional circumstances,
nor can they be sued in respect
of its liabilities. The case
which clearly established the
independent legal personality of
the company is the well known
case of Salmon v. A Salmon & Co.
Ltd [1897] AC 22. There are
however exceptions to this
principle which allow the courts
to lift the veil; and these
exceptions are also well known.
In the instant suit however, the
Court has not been provided with
any reason to lift the veil of
incorporation.
To enable the Court properly
determine the contention of the
Defendant that the Plaintiff
does not have capacity, I shall
reproduce the agreements between
the parties which were tendered
in evidence as Exhibits “A”, “B”
and “C”; and this is what
Exhibit “A” states:
“MEMORANDUM OF UNDERSTANDING
This Contract is hereby signed
on this 17th Day of
May, 2006, between JOSEPH ADE
COKER of FNB INVESTMENT LIMITED
and MR. SULLEY DOLLEY of GOLDEN
SOUVENIR LIMITED with the tacit
agreement of the two above
mentioned parties that MR.
SULLEY DOLLEY will deposit the
sum of $400,000.00 (Four Hundred
Thousand US dollars) with FNB
INVESTMENT LIMITED from the 17th
Day of May 2006 until further
notice and that FNB INVESTMENT
LIMITED agrees to pay 3% (Three
Percent) interest on the stated
amount at the end of each month
that the money is still with FNB
INVESTMENTS LIMITED until
further notice.
..........(SGD).................
.........(SGD)................
MR. SULLEY
DOLLEY
JOSEPH A. COKER
(GOLDEN SOUVENIR
LTD) (FNB
INVESTMENT LTD)
WITNESS
WITNESS
NAME
.............................
NAME.........................
SIGNATURE(SGD)
SIGNATURE(SGD)
DATE:
17/05/06
DATE: 17/05/06
PLEASE NOTE:
1st Batch of 12
cheques representing interest
payment of $12,000.00 monthly
for one year starting from 20th
June 2006 to 20th May
2007 has been issued in favour
of MR. S.A. DOLLEY.”
This is what Exhibit “B” also
states:
“MEMORANDUM OF UNDERSTANDING
This Contract is hereby signed
on this 6th Day of
August, 2008, between JOSEPH ADE
COKER of FNB INVESTMENT LIMITED
and MR. SULLEY DOLLEY of GOLDEN
SOUVENIR LIMITED with the tacit
agreement of the two above
mentioned parties that MR.
SULLEY DOLLEY will deposit the
sum of $200,000.00 (Two Hundred
Thousand US dollars) with FNB
INVESTMENT LIMITED from the 6th
Day of August 2008 until further
notice and that FNB INVESTMENT
LIMITED agrees to pay 3% (Three
Percent) interest on the stated
amount at the end of each month
that the money is still with FNB
INVESTMENTS LIMITED until
further notice.
...........(SGD)...............
............(SGD)................
MR. SULLEY
DOLLEY
JOSEPH A. COKER
(GOLDEN SOUVENIR
LTD) (FNB
INVESTMENT LTD)
WITNESS
WITNESS
NAME
.............................
NAME.........................
SIGNATURE(SGD)
SIGNATURE(SGD)
DATE
07/08/08
DATE: 07/08/08”
And this is what Exhibit “C”
states:
“MEMORANDUM OF UNDERSTANDING
This Contract is hereby signed
on this 13th Day of
August, 2008, between JOSEPH ADE
COKER of FNB INVESTMENT LIMITED
and MR. SULLEY DOLLEY of GOLDEN
SOUVENIR LIMITED with the tacit
agreement of the two above
mentioned parties that MR.
SULLEY DOLLEY will deposit the
sum of $100,000.00 (One Hundred
Thousand US dollars) with FNB
INVESTMENT LIMITED from the 13th
Day of August 2008 until further
notice and that FNB INVESTMENT
LIMITED agrees to pay 2.5 (Two
Point Five Percent) interest on
the stated amount at the end of
each month that the money is
still with FNB INVESTMENTS
LIMITED until further notice.
..........(SGD)...............
...........(SGD)..............
MR. SULLEY
DOLLEY
JOSEPH A. COKER
(GOLDEN SOUVENIR
LTD) (FNB
INVESTMENT LTD)
WITNESS
WITNESS
NAME
.............................
NAME.........................
SIGNATURE(SGD)
SIGNATURE(SGD)
DATE:
26/08/08
DATE: 13/08/08”
It is quite clear that the
Plaintiff, Mr. Sulley Dolley,
entered into the transaction in
his personal capacity, even
though the company, Golden
Souvenir Limited is mentioned.
In my view, that was stated as
his address. In the said
Exhibits, the contracts are
between Mr. Sulley Dolley
(Plaintiff herein) and Joseph
Ade Coker (2nd
Defendant) of FNB Investment
Limited (1st
Defendant). Furthermore, Mr.
Sulley Dolley is to deposit sums
of money with FNB Investment
Limited. In my opinion, a clear
construction of the said
exhibits is that the parties
herein are the right parties to
sue and be sued, and I will so
find.
Furthermore, there is no
evidence by way of a Resolution
or Court Order, placed before
the Court to show that 1st
Defendant Company has been wound
up. But it is important to note
that per section 6 of the Bodies
Corporate (Official
Liquidations) Act, 1963 (Act
180), any civil proceedings
against the company shall be
stayed upon the commencement of
winding up proceedings. Section
17 also prohibits a plaintiff
from suing a company if the
company had commenced winding up
proceedings, save by leave of
the Court. It is therefore my
opinion that the Plaintiff
herein has always had capacity
to sue, subject to the said
situations, whether 1st
Defendant Company was wound up
or not. In my further opinion
therefore, the Plaintiff herein
has capacity to sue and the
Defendants have the capacity to
be sued in the instant suit.
So, I will now look at the
issues set down for
determination in the light of
the evidence adduced at the
trial. In my opinion all the
three issues can be discussed
together.
The Plaintiff himself gave
evidence and tendered the said
agreements; Exhibits “A”, “B”,
and “C” in evidence. Under
cross-examination, the Plaintiff
said he did not invest in 1st
Defendant Company but rather
paid the monies to the
Defendants with the
understanding that Defendants
would pay interest on the
monies.
The 2nd Defendant
gave evidence for himself and on
behalf of the 1st
Defendant. He admitted having
received payment of the monies
being claimed by the Plaintiff.
He said that the Defendants paid
the agreed interests for
sometime but stopped making the
payments “due to the economic
meltdown we were unable to make
further payments, hence we wrote
to stop the payments.”; emphasis
mine. The 2nd
Defendant admitted under
cross-examination that the
Defendants had failed to refund
the Plaintiff’s money to him.
He also conceded that the
Plaintiff was not a shareholder
in the 1st Defendant
Company.
Irene Edem Gadogbe also gave
evidence as a Director of the 1st
Defendant Company. Her evidence
was that she witnessed the
signing of Exhibits “A”, “B”,
and “C”, and described the
transactions as investments.
She testified that after April
2009, the Defendants stopped
paying the interests due to the
“economic crunch”. Ms. Gadogbe
also conceded under
cross-examination that the
Plaintiff was not a shareholder
in the 1st Defendant
Company.
The fact that the Defendants
received deposits totalling
US$600,000 and GH¢100,000 is not
disputed; and the fact that the
Defendants are owing on the
agreed interest on the said sums
of money is also not disputed.
The Defendants have also not
denied that the various
principal sums have not been
refunded to the Plaintiff. The
Defendants have sought to defend
this action on two grounds. The
first is that the Plaintiff
invested in the company; he
benefited when the Company was
successful and he should
therefore suffer the misfortunes
of the Company. I am not aware
of any such legal rule that if
an investor benefits when a
company is successful, he should
suffer the misfortunes of the
company.
The Plaintiff’s contention in
rebuttal is that he is not a
shareholder in the 1st
Defendant Company. It is trite
learning that shareholders
invest money in a company
through the acquisition of
shares. The process by which
the company finds someone who is
willing to become a shareholder
of the company is by way of a
private offer or placing to the
public of the company’s shares
in the case of public companies.
In such case the process of
becoming a shareholder is a
two-step procedure, one
involving first a contract of
allotment and then registration
of the member. In the case of a
private company as in the case
of the 1st Defendant
Company, the processes of
agreement and registration will
be achieved with little
formality and without the issue
of allotment letters. The
process is private because the
company may do so if its
directors agree. Generally, if
someone wants to become a
shareholder and the company
wants him to, he will be entered
on the register and issued with
a share certificate without more
ado.
In the instant suit no evidence
was placed before the Court to
prove that the Plaintiff had
been entered on the register of
members as a shareholder and
issued with a share certificate;
see section 32 of the Companies
Act 1963(Act 179). Indeed the 2nd
Defendant admitted under
cross-examination that Plaintiff
was not a shareholder in 1st
Defendant Company. It is also a
fact that a company may finance
itself not only through the
issuance of shares, but also by
taking loans, i.e. by incurring
debt. As with shares, the
rights of the debtors against
the company are essentially a
matter of contract between the
company, and the lender. And
therefore all the terms and
conditions covering the
transaction should be stated in
the contract. The contracts
between the parties herein
(Exhibits “A”, “B” and “C”)
never mentioned that the monies
were paid to the Defendants as
investments in the 1st
Defendant Company.
Defendants’ second ground of
defence is that they have not
been able to refund the monies
or pay any further interests on
the amounts because the world
economic crisis had negatively
affected their business. It is
my view that the world economic
crisis is not and cannot be an
excuse for a debtor to fail to
honour his/her debt
obligations. In any case the
Defendants did not lead any
evidence to show that the crisis
affected their business except
for the 2nd
Defendant’s evidence that the
“world economic meltdown”
affected them to the extent that
they could not pay their
electricity and water bills, for
which reason they wrote to the
Plaintiff to express their
inability to honour their
obligations under the
agreements. Even if the
economic crises could be an
excuse, it is not enough to
merely state the situation
without leading evidence as to
how that situation affected
them. Such was the paucity of
evidence in proof of the
Defendants’ assertion that the
immortalized statement of Ollenu
J (as he then was) in Mojolagbe
v. Larbi [1959] GLR 190 @ 192 is
very apt here. This is what he
said:
“Proof in law is the
establishment of facts by proper
legal means. Where a party
makes an averment capable of
proof in some positive way, e.g.
by producing documents,
descriptions of things,
reference to other facts,
instances, or circumstances, and
his averments is denied, he does
not prove it by merely going
into the witness box and
repeating that averment on oath,
or having it repeated on oath by
his witnesses. He proves it by
producing other evidence of
facts and circumstances, from
which the court can be satisfied
that what he avers is true.”
Also, I know of no law that
exonerates a debtor from his
debts merely because he has
financial difficulties. There
is no evidence before the Court
to suggest that 1st
Defendant has petitioned for
winding up. They are therefore
deemed to be able and are
obligated to pay their just
debts.
But more importantly, the 2nd
Defendant admitted under
cross-examination that the
Defendants do owe the
Plaintiff. This is what the 1st
Defendant said:
“Q: As we stand in court
presently there is no dispute
about
the fact that you owe Mr.
Dolley.
A: We have never in
anywhere said we don’t owe Mr.
Dolley.....”
Irene Edem Gadogbe also
testified under
cross-examination as follows:
Q: Take a look at Exhibit
“G”, in Exhibit “G” you
apologise for not being able to
pay the interest any further
stated therein that you take
steps to refund all the monies
deposited with him is that not
correct?
A: Yes, but it also said
that we needed time to do the
payment.
Q: Look at the date of that
letter
A: It’s August 13, 2009.
Q: August 13, 2009 to date
have you paid any money to
Sulley Dolley?
A: No we have not”
In the said Exhibit “G” the
Defendants stated that “the
reason to abrogate the agreement
between myself and Mr. Dolley
was due to serious financial
difficulties that have occurred
to my company due to the credit
crunch.”
It is a fact that Exhibits “A”,
“B” and “C” are silent on what
happens to the principal amounts
paid by the Plaintiff to the
Defendants, when the contracts
are terminated. But, in my
opinion, Exhibit “2” resolves
this issue. The Defendants
wrote as follows:
“May 28th ,
2009
Mr. S.A. Dolley
Golden Souvenir Limited
Accra.
Dear Sir,
RE: INJUNCTURE ON TRANSACTIONS
We wish to express our inability
to continue to use various
amounts that were entrusted to
us by you for profit earning due
to the shortfall in volume of
work and the general economic
down fall and credit crunch
being experience by most
financial entities.
We are therefore unable to
further continue with
arrangement as pertains on the
various memorandums of
understanding signed between the
two companies.
Suffice to say, that we thus
will not be in a position to
issue any further cheques for
the payments of interest due you
but we are asking for a period
of six months within which to
refund your total investment
lodged with us. (emphasis
mine)
We are very sorry about this
development but we are hoping
that things will improve and we
might even revoke this letter
and rather continue with the
business but till that time, we
acknowledge your invaluable
input into our business and hope
to receive a favourable response
to our request.
We remain,
Yours Sincerely
(Sgd)
Chairman”
I will therefore find that there
is no evidence before the Court
to indicate that there parties
herein agreed, as a condition of
the contracts they entered into,
that repayment of the monies
would be dependent on the
profitability or otherwise of
the Defendants’ business
ventures. Furthermore, the
failure of Defendants’ business
does not exonerate them from
paying their debts.
I have taken note of the fact
that no explanation has been
given to the Court as to whether
or not the business the
Defendants were doing was legal;
although it is trite law that it
is unlawful under the Companies
Act , 1963 (Act 179), per
section 9 (3) (d), for a private
company to accept monies as
deposits . But more
importantly, the Plaintiff is
not relying on illegality as a
defence. Illegality may act as a
possible defence to restitution
of an unjust enrichment based on
standard unjust factors. This
role of illegality as a possible
defence to standard grounds for
restitution is arguably,
somewhat obscured by the
traditional approach to
illegality which, applying the
maxim ex turpi causa non
oritur actio (“from an
immoral consideration an action
does not arise”), regards
restitution as generally being
denied subject to three
exceptions: where the parties
are non in pari delicto;
withdrawal during the locus
poenitentiae; and where the
claim can establish a
proprietary claim against the
defendant without relying on the
illegality or the illegal
transaction.
The traditional approach to
illegality as a defence turns on
whether the claimant can
establish the proprietary claim
without relying on the
illegality or the illegal
transaction. In most cases it
appears that the claimant will
be able to establish its
proprietary claim without
relying on the illegality or the
illegal transaction. In most
cases, therefore, illegality
will not be a defence to
proprietary claims. Probably the
most important case to consider
this “reliance principle” is
Bowmakers Ltd v Barnet
Instruments Ltd [1945] KB 65. In
that case, the defendants had
hire-purchased tools from the
claimants under three separate
agreements, each of those
agreements being illegal because
not authorised by the Ministry
of Supply. In breach of the
agreements, the defendants paid
some but not all of the agreed
instalments. Furthermore they
sold off the tools which were
the subject matter of the first
and third agreements. They were
held liable for the conversion
of the tools under all three
agreements. The more recent case
of Tinsley v Milligan [1994] 1
AC 340 extended the “reliance”
principle applied in the
Bowmakers case to equitable, as
well as legal proprietary
claims.
In my opinion, since the
Plaintiff herein is not basing
his action on illegality, the
instant action can be based on
restitution. I therefore find
that the Plaintiff is entitled
to his claim for the principal
amounts he paid to the
Defendants.
However, in my opinion, the
Plaintiff is not entitled to
award of pre-judgment interest
on the principal amounts up to
the date of final payment as
being claimed. I say so because
the contracts between the
parties stated that the agreed
interest was to be paid “until
further notice.” And the
evidence is that on May 28th,
2009, Defendants wrote to the
Plaintiff to terminate the
arrangement between the parties;
vis-à-vis the payment of
interest. The Defendants
requested for a 6-month
moratorium. There is nothing on
record to indicate that the
Plaintiff rejected this
request. Therefore the
Plaintiff can be said to have
agreed by conduct to being
refunded the principal amounts
in November, 2009. Plaintiff is
therefore only entitled to the
payment of interest up to the
date of the said letter. i.e.
Exhibit “D”.
From the evidence adduced on
behalf of the Defendants by Ms.
Irene Gadogbe, which evidence
was not successfully challenged
by the Plaintiff, Defendants
paid total interest of
US$420,000 on the principal
amount of US$400,000 until April
2009; see Exhibit “4”.
Defendants also paid total
interest of US$18,000 on the
principal amount of US$200,000
until January, 2009; see Exhibit
“6”. And lastly, Defendants
paid interest totalling GH¢17,500
on the principal amount of GH¢100,000
until March 2009; see Exhibit
“5”.
However, by virtue of the Court
(Award of Interest and Post
Judgment Interest) Rules 2005
(C.I.52) the Plaintiff is
entitled to post-judgment award
of interest. C.I.52 provides as
follows:
“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”.
The basis upon which the Court
awards interest on amounts due
and owing was succinctly stated
by the eminent Lord Denning in
the case of Harbutt’s Plasticine
v Wayne Tank Co. Ltd [1970] All
ER 225 at 236 as follows:
“…it seems to me that
the basis of an award of
interest is that
defendant has kept the
plaintiff out of his money; and
the
defendant has had use
of it himself. So he ought to
compensate the plaintiff
accordingly….”
In conclusion, I hold that the
Defendants are jointly and
severally liable to the
Plaintiff, and make the
following orders:
1.
An order for the recovery by the
Plaintiff of an amount of
US$400,000
2.
Since the contract (Exhibit “A”)
was terminated in May 2009 and
interest had been paid to the
Plaintiff as agreed, Plaintiff
is not entitled to any
pre-judgment interest on the
principal amount of US$400,000.
3.
An order for the recovery by the
Plaintiff of an amount of
US$200,000
4.
Interest at the rate of 3% per
month on the said amount of
US$200,000 from February 2009
until May 2009.
5.
An order for the recovery by the
Plaintiff of an amount of GH¢100,000
6.
Interest on the said GH¢100,000
at the rate of 2.5% per month
from April 2009 until May 2009.
7.
I will further order that
Defendants pay interest on all
the three (3) principal amounts
at the agreed upon interest
rates from November 2009 until
date of final payment.
8.
Costs assessed at GH¢5,000
against the Defendants.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL:
KWAME BOATENG
- PLAINTIFF
ENO ARMAH ANDOH
- DEFENDANT |
