HASNEM ENTERPRISES LIMITED vs. IBM WORLD TRADE CORPORATION [2001]DLSC2366

Date	2001-05-16
Suit No.	CIVIL APPEAL NO. 2/98
Citation No.	[2001]DLSC2366

AMPIAH J.S.C. (PRESIDING)

ATUGUBA J.S.C

MS. AKUFFO J.S.C

LAMPTEY J.S.C

ADZOE J.S.C.

ADUAMA OSEI FOR THE APPELLANT

KUENYEHIA FOR THE RESPONDENT

[2001]DLSC2366
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													<main id="main" class="content" style="min-height: 60rem" >HASNEM ENTERPRISES LIMITED<o:p></o:p>vs.<o:p></o:p>IBM WORLD TRADE CORPORATION<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 2/98<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">

DATE:
16TH MAY, 2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>ADUAMA
OSEI 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">

KUENYEHIA
FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;
<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><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>AKUFFO,
J.S.C:<o:p></o:p>I
have been privileged to see beforehand the erudite opinion of my brother Mr.
Justice Adzoe, J.S.C. 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
May 04, 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, from 20th
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, i.e., 16th May 1990.
According to the appellant, taking into account the time lapse between the
judgement 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&nbsp; calculated
from 20th 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 as follows:—<o:p></o:p>"Where in any civil case 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 the 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 statue 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, J.A., 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 judgement, the trial judge
appears to have relied upon the decision of the High Court in Holland West
Africa et al V. Pan African Trading Company et al. [1976] 2 GLR 179, wherein
Edusei, J, awarded interest with effect from the date the cause of action arose
up to the date of the judgement 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., like the trial judge in the matter
herein, did not give any particular reason for deciding that the interest cease
on the date of his judgement.<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 page 236, as
follows:—<o:p></o:p>"... 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>(See
also Jefford V Gee [1970] 1 All ER 1202, wherein the English Court of Appeal
was guided by this principle.) In the earlier case of London, Chatham and Dover
Railway Co. V. South Eastern Railway Co [1893] AC 429, Lord Herschell LC had
put the matter even more graphically as follows:—<o:p></o:p>"... when money is owing from one
party to another and that other is driven to have recourse to legal proceedings
in order to recover the amount due to him, the party who is wrongfully
withholding the money from the other ought not in justice to benefit by having
that money in his possession and enjoying the use of it, when the money ought
to be in the possession of the other party who is entitled to its use.
Therefore, if I could see my way to do so, I should certainly be disposed to
give the appellants, or anybody in a similar position, interest upon the amount
withheld from the time of action brought at all events."<o:p></o:p>Clearly
this is the same principle guiding LI 1295. That being the case, since the
appellant's claim for interest related to a commercial debt owed by the
respondent, which debt, as far as the record shows, remains unpaid up to now,
it stands to reason that such interest continue at least until the date of
final judgement, if not the date of final payment. Otherwise, if the respondent
does not settle the amount due immediately after the entry of judgement, what
justice will the appellant have received from the courts for the respondent's
unjustifiable withholding and use of the money all these years?<o:p></o:p>Moreover,
in May 1990 when the trial judge made his order, the prevailing Bank rate of
interest applied by the court was 30% per annum and the average rate of
exchange between the Cedi and the US Dollar was ¢275.00 to US$1.00 Eleven years
down the line, the applicable rate of interest may be put at 45%, per annum and
the average rate of exchange is ¢7,20</main>