THE REPUBLIC vs. THE HIGH COURT (COMMERCIAL DIVISION) ACCRA EX PARTE THE TRUST BANK LTD AMPOMAH PHOTO LAB LTD & 3 ORS [2008]DLSC2467

THE REPUBLIC vs. THE HIGH COURT (COMMERCIAL DIVISION) ACCRA EX PARTE THE TRUST B... [2008]DLSC2467

Date	2008-11-12
Suit No.	SUIT NO J5/23/2008
Citation No.	[2008]DLSC2467

ATUGUBA J.S.C. (PRESIDING)

DATE-BAH J.S.C

ANSAH

J.S.C

ADINYIRA J.S.C

BAFFOE-BONNIE J.S.C.

REBECCA BOAKYE FOR THE APPLICANT

EBOW BROWN FOR THE INTERESTED PARTY

[2008]DLSC2467
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE HIGH COURT (COMMERCIAL DIVISION) ACCRA EX PARTE THE
TRUST BANK LTD AMPOMAH PHOTO LAB LTD &amp; 3 ORS<o:p></o:p>[SUPREME
COURT]<o:p></o:p>SUIT
NO J5/23/2008<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: 12th November 2008.<o:p></o:p>

</div>COUNSEL<o:p></o:p>REBECCA
BOAKYE FOR THE APPLICANT<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">

EBOW
BROWN FOR THE INTERESTED PARTY<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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">

ATUGUBA
J.S.C. (PRESIDING), DATE-BAH J.S.C ,ANSAH, J.S.C ,ADINYIRA J.S.C ,BAFFOE-BONNIE
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>RULING<o:p></o:p>&nbsp;DR. DATE-BAH JSC:<o:p></o:p>&nbsp;The Facts<o:p></o:p>&nbsp;What is in issue in this suit is the
jurisdiction of the High Court to hear a fresh action challenging an aspect of
a consent judgment entered by a court of coordinate jurisdiction.&nbsp; The applicant bank brought action in the
Commercial Division of the High Court against the interested parties in this
suit in respect of a loan transaction.&nbsp;
The parties to that suit agreed to settle their dispute and their
agreement was embodied in a consent judgment of the Commercial Division of the
High Court.&nbsp; Subsequently, a dispute
arose between the parties as to an aspect of that consent judgment.&nbsp; The writ which had commenced the suit that
had been settled was indorsed with claims for:&nbsp;
(a) the sum of 1,381,279,658.17 cedis, being loan and overdraft facility
granted to the first defendant and guaranteed by the second, third and fourth
defendants; (b) interest on the sum of 1,381,279,658.17 from 5th November 2004
until date of final payment.&nbsp; Thus, the
indorsement did not indicate the rate of interest claimed by the
plaintiff.&nbsp; The consent judgment,
similarly, did not specify an interest rate, although it modified the duration
of the period for the payment of interest to end on the date of judgment,
namely, the 20th day of June 2006. This non-specification of an interest rate
was to be the source of misunderstanding between the parties to the consent
judgment.<o:p></o:p>The
applicant bank, in its capacity as plaintiff in the original suit described
above, had applied for summary judgment and, after negotiations with the
interested parties, the compromise it reached with them was entered as a
consent judgment by the trial judge.&nbsp;
However, the judgment creditor bank, on filing the entry of judgment
after trial, entered details regarding the interest rate which the interested
parties have found unacceptable.&nbsp;&nbsp; The
entry of judgment after trial, in addition to claiming the principal sum, also
entered judgment for<o:p></o:p>b.&nbsp;&nbsp;&nbsp;
“interest on the said sum at the current bank rate from 5th November
2005 to day of judgment 20th June 2006 (interest at 35% p.a.).<o:p></o:p>c.&nbsp;&nbsp;&nbsp;
Endorsed to levy interest at the contractual rate from 20th June, 2006
to date of final payment.”<o:p></o:p>It
is this entry of judgment which is the genesis of the further litigation an
aspect of which is now before this court. <o:p></o:p>The
interested parties, being dissatisfied with the rate of interest embodied in
the entry of judgment, initially brought a motion before the trial judge to set
aside the consent judgment on account of the dispute as to the applicable rate
of interest.&nbsp; The trial judge refused to
set the judgment aside because, in her view, a consent judgment once entered
cannot be unilaterally varied by one party.&nbsp;
The learned trial judge relied on Guardian Assurance Co. v Bridi [1975]
2GLR 387 to reach this result.&nbsp; The
interested parties, taking a cue from the opinion of Sarkodie-Addo J. in that
case, brought a fresh action against the applicant, on 21st December 2007,
claiming:<o:p></o:p>&nbsp;“That the portion of the Judgment of the
Commercial Court in Suit No. BFS/36/2005 granting the Defendants herein
interest at the rate of 35% per annum be set aside<o:p></o:p>A declaration that the Debenture is
manifestly disadvantageous to the Defendant<o:p></o:p>An order that the interest rate in the
said Debenture be reviewed to reflect the current interest rates on the money
market in Ghana.”<o:p></o:p>It
is the jurisdiction of the High Court to entertain this writ which is at the
heart of the application before this Court.&nbsp;
The applicant initially made an application to the High Court
(Commercial Division), seeking the dismissal of the action on the ground that
it was an abuse of the judicial process, since the High Court had already ruled
on the matter.&nbsp; Her Ladyship Torkornoo J.
dismissed this application, explaining that the High Court becomes functus
officio only in relation to matters that it had already dealt with.&nbsp; She was of the view that the entry of
judgment filed was a manifest misrepresentation of the agreement reached by the
parties and which had been recorded by her sister in her ruling of 20th June
2006.&nbsp; Accordingly, she dismissed the
application in a ruling dated 28th February 2008.<o:p></o:p>Dissatisfied
with that outcome, the applicant bank has filed the present application seeking
to invoke the supervisory jurisdiction of the Supreme Court over the court
below for an order of certiorari to quash the ruling of the learned trial judge
dated 28th February 2008 and prohibiting her from continuing with proceedings
in this suit.&nbsp; The ground on which this
application has been brought is that the High Court has no jurisdiction to
entertain the interested parties’ fresh action, since to allow the court below to
exercise jurisdiction would mean the High Court would effectively be sitting in
judgment over the final judgment and rulings of another High Court of
co-ordinate jurisdiction.<o:p></o:p>The
Law<o:p></o:p>