HUNGAROTEX FOREIGN TRADING CO. vs. BOATENG [1986]DLCA923

Date	1986-11-13
Suit No.
Citation No.	[1986]DLCA923

ABBAN JA

OSEI-HWERE JA

AMUA-SEKYI J.A.

ADUENI FOR THE APPELLANTS.

OPOKU-ADJEI FOR THE RESPONDENT

[1986]DLCA923
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HUNGAROTEX FOREIGN
TRADING CO. <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 611<o:p></o:p>

DATE:
13 NOVEMBER 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

ADUENI FOR THE APPELLANTS. <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">

ABBAN, OSEI-HWERE AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.A.<o:p></o:p>Some time
in 1979 the defendant, a Ghanaian national, entered into a contract in Hungary
with the plaintiffs, a state corporation of the government of Hungary, for the
supply of textile fabrics valued at US $110,000 under 180 days’ credit terms.
The textile fabrics were duly supplied to the defendant who accepted same. He
made a part-payment of US $23,750 and issued three cheques for the balance of
$86,250. The cheques having been dishonoured by the foreign bankers of the
defendant, the plaintiffs fell on his English guarantors, Messrs Bharwaneys
Ltd., who turned out to be worth nothing. They then approached the defendant in
Ghana for their money. He asked for accommodation. The plaintiffs agreed, and
on 9 August 1982 entered into an agreement with him for the payment of the
balance by monthly instalments over a period of eleven months. Needless to say,
the defendant did not pay a single cent. Solicitors were instructed to demand
the payment of the debt. When this was done, his solicitors, by a letter dated
22 May 1984, offered to pay $5,000 by the month ending June 1984 and thereafter
$1,000 each month. The letter ended with these words: “I trust that Dr. Djamson
[the plaintiffs’ attorney] will sympathetically give my client this last chance
to test his bona fides.” A second letter dated 11 June 1984 offered to raise
the monthly instalments to $2,000 and to pay not less than $20,000 by 31
December 1984. Unimpressed, the plaintiffs issued their writ.<o:p></o:p><o:p>&nbsp;</o:p>The writ
of summons and the statement of claim were filed together on 6 July 1984.
Appearance was entered for the defendant on 8 August 1984. Two days later, the
plaintiffs took out a summons for judgment. On the return date, that is 28
August 1984, counsel for the parties asked the court to adjourn the hearing to
12 September 1984. On 7 September 1984 the defendant filed a so-called defence
in paragraph 8 of which he averred 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">“8. The
defendant in answer to the whole of the claim admits liability for the balance
due and owing, but contends that even though the money of account is US dollars
the mode of payment should be Ghana cedis at the current rate of exchange.”<o:p></o:p><o:p>&nbsp;</o:p>He backed
this up with an affidavit in “opposition” to the summons for judgment in
paragraph 9 of which he said he was submitting to judgment for $86,250 with
interest at five and a half per cent. He asked that he be permitted to pay the
debt by an immediate payment of $5,000 and monthly payments of $1,000, both in
cedis at the current rate of exchange. My understanding of this offer is that
it was contingent upon the rate of exchange remain in hungarotex v. Boateng the
same during the period that the instalments were to be paid. If, therefore, the
rate was altered by the Bank of Ghana, whether upward or downward, the cedi
equivalent of $1,000 would be calculated as at the time each instalment was
paid.<o:p></o:p><o:p>&nbsp;</o:p>It is
clear that the legal advisers of the defendant knew that an affidavit in
opposition to a summons for judgment was hardly the place to make an offer of
payment of the amount claimed by instalments. They therefore, filed at the same
time and before judgment, a motion asking the court to order that the amount
claimed be paid by instalments. Surprisingly this unorthodox procedure was
countenanced by the court, which allowed the motion to stand down while the
summons for judgment was heard. The defendant submitted to judgment for the
amount due with interest at the rate of five per cent per annum for one year
only. By consent it was agreed that the debt be paid in cedis at “the
prevailing bank rate.” Costs in the action were also agreed at ¢150,000.<o:p></o:p><o:p>&nbsp;</o:p>