AFRICAN AUTOMOBILE LTD. vs. MINISTRY OF INFORMATION AND ATTORNEY GENERAL [2010]DLCA6215

Date	2010-04-14
Suit No.	SUIT NO: HI\250\2010
Citation No.	[2010]DLCA6215

APPAU J.A. (PRESIDING)

OFOE J.A.

ACQUAYE J.A.

MR. ADDO ATUAH FOR THE PLAINTIFF/APPELLANT

MRS ANNA AKIWUMI SERIBOUR FOR DEFENDANT/RESPONDENT

[2010]DLCA6215
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													<main id="main" class="content" style="min-height: 60rem" >AFRICAN
AUTOMOBILE LTD. <o:p></o:p>(PLAINTIFF/ APPELLANT)<o:p></o:p>vs.<o:p></o:p>MINISTRY OF
INFORMATION AND ATTORNEY GENERAL<o:p></o:p>&nbsp;(DEFENDANT/ RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO: HI\250\2010&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 14TH
APRIL, 2010<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MRS ANNA AKIWUMI SERIBOUR
FOR DEFENDANT/RESPONDENT<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">APPAU J.A. (PRESIDING),
OFOE J.A., ACQUAYE J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>OFOE,
J.A <o:p></o:p>The
claim of the plaintiff that was virtually undefended at the trial court was a
claim for an amount of GH¢14,174,693.12 being services rendered to the
defendant. The services were in the nature of sale and or servicing and repairs
on the vehicles of the defendant. At the close of trial there was no dispute
that the claim was in respect of outstanding repair and servicing charges. By
the plaintiff’s pleadings, the servicing was governed by a credit facility
offered to the defendant which was originated by a letter of the defendant,
MH\AA\97\5337 dated the 27th of January 1997. By the said credit facility
agreement payment for services were to be made not later than the 15th of the
following month. It is plaintiff’s case that the acceptance of the understanding
to operate this credit facility was made by the defendant on the 4th of
February 1997. There has been default on the part of the defendant to honour
their payment obligations under this agreement leading to the claim earlier
mentioned. It is worth noting that the period of payment of the interest the
plaintiff endorsed on the writ was from date of judgment till date of final
payment. It did not also state the rate of interest. Because the defendants
initially did not file any defence judgment was entered for the amount endorsed
on the writ based on Exh A. When the plaintiff filed their entry of judgment
they sought for GH¢16,520,629.73 made up of GH¢14,174,693.12 principal and
interest of GH¢2,205,936.59. By the entry of judgment the plaintiff calculated
interest from 29th February 2008 till date of final judgment. This default
judgment was eventually set aside and defence filed for the trial to be heard
on its merits. <o:p></o:p>The
plaintiff sought from the court an appointment of a referee. This order was
granted appointing Mr Korley to go into accounts to determine the indebtedness
of the defendant. It would appear Mr. Nketia who was earlier appointed as the
referee was substituted by Mr. Korley on application by the plaintiff. The
reasons the plaintiff sought for the order, as deposed to in their supporting
affidavit, was for a reconciliation of accounts between it and the defendant
since both parties have taken entrenched positions and have as a consequence
not been able to reconcile their accounting differences. At the pre-trial
conference, issues were settled for trial. It was agreed the court should try
whether the parties had a subsisting credit agreement between them with any
mode of calculating interest, and whether the defendant was indebted to the
plaintiff. <o:p></o:p>Mr.
Korley did enter into reconciliation and testified before the court. His
conclusion was that: <o:p></o:p>"Service
rendered by the plaintiff which are still outstanding comes up to GH563 and 65
pesewas. Compound interest on delayed payments GH¢81,645,730.71 according to
agreement between them". <o:p></o:p>The
court at the end of trial however gave judgment to the plaintiff for GH1,
563.64. It ordered interest to be paid on this amount at the prevailing
commercial banking rate from April1999 to date of final payment. <o:p></o:p>Aggrieved
by this judgment the plaintiff has appealed on 9 grounds. I must state that all
the grounds of appeal can be accommodated under three main grounds, that is (1)
the omnibus ground that the judgment was against the weight of evidence (2)
whether the trial judge by her judgment did set up a new case for the defendant
and (3) whether the trial judge failed to appreciate the court experts
evidence. I do not intend resolving this appeal under these numbered grounds
but at the end of this judgment it is my expectation that they would all have
been tackled. <o:p></o:p>I
will maintain the description plaintiff and defendant as they were at the trial
court. And any reference to defendant is meant the 1st defendant unless
otherwise stated <o:p></o:p>Before
I proceed to judgment I wish to draw attention to this matter which was glossed
over by both the trial court and counsel for the parties. The application that
brought Mr. Korley into the trial was headed: <o:p></o:p>