AFRICAN AUTOMOBILE LTD. (PLAINTIFF/APPELLANT) vs. MINISTRY OF INFORMATION AND ATTORNEY GENERAL (DEFENDANT/RESPONDENT) [2010]DLCA7829

AFRICAN AUTOMOBILE LTD. (PLAINTIFF/APPELLANT) vs. MINISTRY OF INFORMATION AND AT... [2010]DLCA7829

Date	2010-05-14
Suit No.	SUIT NO: HI\250\2010
Citation No.	[2010]DLCA7829

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]DLCA7829
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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><span lang="EN-US" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>MINISTRY OF INFORMATION AND ATTORNEY GENERAL<o:p></o:p>(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;
padding:0cm 0cm 1.0pt 0cm">

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;DATE: 14TH APRIL, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
ADDO ATUAH FOR THE PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MRS
ANNA AKIWUMI SERIBOUR FOR DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

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;
padding:0cm 0cm 1.0pt 0cm">

</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 &nbsp;defendant. The services were in the nature of
sale and or servicing and repairs on the vehicles of the &nbsp;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.&nbsp; 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&nbsp; 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>&nbsp;The court at the end of trial however gave
judgment to the plaintiff for GH1, 563.64. &nbsp;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>&nbsp;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>“ Motion on notice for an order for enquiries
and documents- Order28 rules 1 and 2 and Order 29 rules 1 and 2”<o:p></o:p>