HOLLAND WEST AFRICA AND ANOTHER vs. PAN AFRICAN TRADING CO. AND ANOTHER [1976]DLHC392

Date	1976-03-17
Suit No.
Citation No.	[1976]DLHC392

EDUSEI J.

E. D. KOM (KWAMI TETTEH WITH HIM) FOR THE APPLICANTS.

S. A. OKUDZETO FOR THE RESPONDENTS.

[1976]DLHC392
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													<main id="main" class="content" style="min-height: 60rem" >HOLLAND WEST AFRICA AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>PAN AFRICAN TRADING CO. AND ANOTHER<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 2 GLR 179<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 MARCH 1976.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

E. D. KOM (KWAMI TETTEH WITH HIM) FOR THE
APPLICANTS.<o:p></o:p>

S. A. OKUDZETO FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>On 18
December 1975 this court gave judgment (reported sub nom. Pan African Trading
Co. v. Holland West Africa [1976] 1 G.L.R. 237) for the plaintiffs against the
defendants for ¢55,135.21 with fifteen per cent interest per annum calculated
from 12 October 1971.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants have applied for a review of that part of the judgment that awarded
interest to the plaintiffs. There are two main grounds for this application and
these have been stated in the supporting affidavit in paragraphs (3) and (4) as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(3) I am
advised that this honourable court erred in law in awarding interest. (4) I am
advised by counsel for the first defendants that ever since the judgment in
this case it was discovered from a recent decision of the Court of Appeal
released in the Yuletide that this court ought not to award interest in the
absence of the necessary instrument giving effect to section 98 of the Courts
Act, 1971 (Act 372).”<o:p></o:p><o:p>&nbsp;</o:p>The
reason in paragraph (4) of the affidavit shows that this court erred in law in
awarding interest because a decision of the Court of Appeal, according to the
defendants, does not permit the award of interest. In effect the ground for
asking for this review is simply based on an error of law on the part of the
court. However, Order 39 of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A), states that an aggrieved person may apply for review on three main
grounds, namely: (a) that he has discovered a new and important matter or
evidence which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the judgment was
given or the order made, or (b) that there is a mistake or error apparent on
the face of the record, or (c) that other sufficient reason exists for applying
for a review.<o:p></o:p>The
question to be asked is this: Can a review be applied for solely on the ground
of error of law? I think not. For in Yanney v. African Veneer Mahogany
Exporters Ltd. [1960] G.L.R. 89, C.A. it was held that the fact that a judge
made an error of law was not a sufficient reason within the rule for applying
for a review.<o:p></o:p><o:p>&nbsp;</o:p>This
point may seem to dispose of the application summarily but I consider the
matter at issue to be of great importance to commerce in this country that I
have decided to consider the matter of award of interest by the courts. In
doing so I take the view that the award of fifteen per cent interest was a
mistake or error apparent on the face of the record if reference is made to the
pleadings which do not indicate that there was an express agreement as to the
rate of interest of fifteen per cent.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the defendants in arguing his application relied heavily on the case of
Ghana Commercial Bank v. Odom [1975] 2 G.L.R. 54, C.A. I have read this case
and it does not lay down any general principle of law that interest is not
payable. The bank in that case was unable to prove any agreement between the
parties fixing the rate of interest at ten per cent compound interest. The
Court of Appeal in that case said at p. 60 that, “The bank’s failure to recover
compound interest in this undefended action must be blamed squarely on their
defective pleadings and inept advocacy of their counsel.” The decision in the
Ghana Commercial Bank case (supra) must therefore be confined to its peculiar
facts. Indeed, in that same case the Court of Appeal said at p. 57 that:<o:p></o:p>