IBM WORLD TRADE CORPORATION vs. HASNEM ENTERPRISES LTD [2001]DLSC1192

Date	2001-05-16
Suit No.
Citation No.	[2001]DLSC1192

AMPIAH JSC

ATUGUBA JSC

AKUFFO JSC

LAMPTEY JSC

ADZOE JSC

N KUENYEHIA FOR THE APPELLANT.

ADUAMA OSEI FOR THE RESPONDENT.

[2001]DLSC1192
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">IBM WORLD TRADE CORPORATION<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HASNEM ENTERPRISES LTD<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[2001-2002] 2 GLR 248<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>N KUENYEHIA FOR THE APPELLANT.<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">

ADUAMA OSEI FOR THE RESPONDENT. <o:p></o:p>

AMPIAH, ATUGUBA, AKUFFO, LAMPTEY AND ADZOE JJSC<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Akuffo JSC. <o:p></o:p>I have been privileged to see beforehand the erudite opinion of my
brother Adzoe JSC and, for the reasons stated therein, I am in full agreement
with him that the appeal must succeed and the decision of the Court of Appeal
be set aside.<o:p></o:p>I will therefore limit this opinion to the issue raised in
paragraph (c) of the additional grounds of appeal, regarding the proper period
over which the interest awarded should remain exigible. In its amended
counterclaim filed on 4 May 1988 the appellant claimed an amount of ¢58,213.04
as the sum due for maintenance services previously rendered to the respondent,
together with interest thereon at the bank rate prevailing at the date of
judgment, ie from 20 December 1984 up to the date of final payment. The trial
court, after finding the said amount as being justly due and payable by the
respondent, however awarded interest thereon up to the date of the judgment, ie
18 May 1990. According to the appellant, taking into account the time lapse
between the judgment of the trial court and that of the Court of Appeal, the
latter, in upholding the counterclaim, ought to have varied the trial court’s
order and awarded the interest to be calculated from 20 December 1984 to the
date of final payment at the prevailing bank rate.<o:p></o:p>Since there was no contract between the parties stipulating the
payment of interest on any amount arising from the services of the appellant,
the trial judge, correctly, based his order on the provisions of the Courts
(Award of Interest) Instrument, 1984 (LI 1295), which reads:<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">“Where in any civil cause or matter the Court makes an order for
the payment of interest on any sum due to the plaintiff other than any sum
claimed by a plaintiff under Order 13 Rule 3 of the High Court (Civil Procedure)
Rules, 1954 (LN 140A) the rate at which such interest shall be payable shall be
the Bank rate prevailing at the time the order was made by the Court, but no
compound interest shall be awarded.”<o:p></o:p>However, it is clear that the only factor governed by this statute
is the rate of interest to be applied to the sum due. Thus the time span over
which the interest should be calculated is left to the discretion of the court
and should, therefore, be determined by the dictates of the circumstances of
the matter. As was stressed by Brobbey JA, in his dissenting opinion in the
Court of Appeal; discretion must be exercised judicially and whether or not
discretion has been properly exercised must be ascertainable from the reasons
given for the exercise or the basis for the discretion. In deciding to order
the interest to be payable up to the date of the judgment, the trial judge
appears to have relied upon the decision of the High Court in Holland West
Africa v Pan African Trading Co [1976] 2 GLR 176, wherein Edusei J (as he then
was) awarded interest with effect from the date the cause of action arose up to
the date of the judgment of the trial court. That case, however, had nothing to
do with ascertainment of the date on which the calculation of interest ceases
and the learned Edusei J (as he then was), like the trial judge in the matter
herein, did not give any particular reason for deciding that the interest
should cease on the date of the judgment.<o:p></o:p>The underlying principle for the award of interest is now well
settled and was spelt out by Lord Denning MR in the celebrated case of
Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 All ER 225 at
236, CA 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">“. . . the basis of an award of interest is that the defendant has
kept the plaintiff out of his money; and the defendant has had the use of it
himself. So he ought to compensate the plaintiff accordingly.”<o:p></o:p>