BRODERICK vs. NORTHERN ENGINEERING PRODUCT AND ANOTHER [1991]DLHC2225

Date	1991-07-05
Suit No.
Citation No.	[1991]DLHC2225

BROBBEY J.

QUASHIE-IDUN FOR THE PLAINTIFF.

AGBOTSE FOR THE DEFENDANTS.

[1991]DLHC2225
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													<main id="main" class="content" style="min-height: 60rem" >BRODERICK<o:p></o:p>vs.<o:p></o:p>NORTHERN
ENGINEERING PRODUCT AND ANOTHER<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[1991] 2
GLR 88<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>QUASHIE-IDUN
FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AGBOTSE
FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT
OF BROBBEY J.<o:p></o:p>The
plaintiff obtained a judgment in England on 5 July 1990 for the amount of
£31,027.86 inclusive of interest up to the date of payment plus costs of £238.
He could not enforce it against the defendants in England.<o:p></o:p>The
defendants are resident in Ghana. The plaintiff therefore registered the
judgment in this court under the Courts Act, 1971 (Act 372). He proceeded into
execution and realised ¢11,477,065.50. In attempting to levy further execution
the plaintiff was met with the issue of accounts raised by the defendants’
counsel.<o:p></o:p>The basic
question for determination in this motion is precisely how much was the
equivalent of the amount owed when converted into cedis. To resolve this issue
a determination has to be made on the correct rate of exchange to be used in
converting into cedis the value of the judgment as obtained in pounds sterling.<o:p></o:p>Act 372,
under which the judgment was registered provides in section 77(5) 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">“(5)
Where the sum payable under a judgment which is to be registered is expressed
in a currency other than the currency of Ghana the judgment shall be registered
as if it were a judgment for such sum in the currency of Ghana as, on the basis
of the rate of exchange prevailing at the date of the judgment of the original
Court, is equivalent to the sum so payable.”<o:p></o:p>There is
no doubt whatsoever that under this section 77(5) the rate of exchange to be
used in determining the value of the judgment registered here is the rate
prevailing at the time the judgment was given in England, i.e. 5 July 1990. The
rate for that day, as deposed to in the unchallenged affidavit of the
defendants, was ¢589.05 to one pound sterling. That is the exchange rate at
which I rule that the judgment debt and costs obtained in England should be
converted into cedis.<o:p></o:p>It is now
common knowledge in this country that the rate of exchange is very volatile and
changes almost daily. As at today, the rate is around ¢670 to one pound
sterling. I am not unmindful of the fact that if the plaintiff were to convert
the cedis he is to realise from sales on execution into pound sterling now, he
will receive much less than the value of the judgment he obtained in England.
In fact the longer execution is delayed, the less the plaintiff will receive
for the judgment.<o:p></o:p>Even
worse is the logical effect of the law as it stands now. It will conduce to
fraud in that it will encourage Ghanaians to enter into businesses abroad, fail
to pay the amounts they owe and then run to Ghana, because if the foreign
creditor were to obtain judgment abroad and later register it here, the Ghanaian
businessman will definitely pay less than what he owes abroad, especially if he
can succeed in protracting the process of execution. If the plaintiff were to
insist on registering the amount obtained abroad in pounds sterling he cannot
avoid the cedis because in the process of execution payments here are all going
to be in cedis. It seems to me that the only way for a foreign creditor to
obtain all his moneys without any diminution is to sue for the foreign money
(not in cedis) in a Ghanaian court. With the almost legendary delay in
disposing of cases in our courts, one is not sure if this will be a better
course of action for a foreign creditor. In any event whether or not to
institute such action here will also depend on the terms of the contract or
transaction.<o:p></o:p>The plain
wording of section 77(5) of Act 372, however, leaves no room to assist a
litigant in the position of the plaintiff who, no doubt, has my sympathies for
the loss he will incur as a result of the state of our law.<o:p></o:p>In
arguing the case for the plaintiff, Mr Quashie-Idun invited the court to apply
the prevailing exchange rate. I am aware that that is the best way in which
justice would have been done in the case and by which the plaintiff will be
able to obtain what is properly due to him. It is also that rate which will
compel the defendants to pay their just debts. My view, however, is that it is
not the proper function of the judge to deliberately misinterpret the express
terms of a statutory provision in his effort to do justice in any giv</main>