AFRICAN AUTOMOBILE LIMITED vs. THE ATTORNEY-GENERAL [2012]DLSC6134

Date	2012-06-06
Suit No.	CIVIL APPEAL J4/23/2012
Citation No.	[2012]DLSC6134

DATE-BAH JSC (PRESIDING)

ANSAH JSC

DOTSE JSC

BONNIE JSC

BAMFO (MRS) JSC

ADDO ATUAH FOR THE APELLANT.

PEARL AKIWUMI SIRIBOUR (PRINCIPAL STATE ATTORNEY) WITH MRS. YVONNE

AWOONOR-WILLIAMS (ASSISTANT STATE ATTORNEY) FOR THE RESPONDENT.

[2012]DLSC6134
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													<main id="main" class="content" style="min-height: 60rem" >AFRICAN AUTOMOBILE LIMITED<o:p></o:p>[PLAINTIFF/APPELLANT/APPELLANT]<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL<o:p></o:p>[DEFENDANT/RESPONDENT/RESPONDENT]<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

CIVIL
APPEAL J4/23/2012&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: 6TH JUNE 2012<o:p></o:p>

PEARL
AKIWUMI SIRIBOUR (PRINCIPAL STATE ATTORNEY) WITH MRS. YVONNE AWOONOR-WILLIAMS
(ASSISTANT STATE ATTORNEY) FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>DATE-BAH JSC (PRESIDING),
ANSAH JSC, DOTSE JSC, BONNIE JSC, BAMFO (MRS) JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DR.
DATE-BAH JSC <o:p></o:p>This is an action brought
by a car dealer in respect of outstanding sums owed it for the servicing of the
motor vehicles of the Ministry of Information.&nbsp;
While the fact of the plaintiff’s services having been rendered to it
was admitted by the Ministry, there was an issue as to the exact sum due and
the interest rate to be applied in relation to the unpaid indebtedness. <o:p></o:p>The plaintiff in its
Statement of Claim, filed on 31st January 2008, averred that, by a letter of
27th January 1997, it had accepted the Ministry’s request for a credit facility
and entered into an agreement with the defendants regarding the sale and
servicing of motor vehicles by it.&nbsp; This
averment was denied by the defendant when he eventually filed his Statement of
Defence, on 10th July 2008, after succeeding in setting aside a judgment in
default of defence, which had meanwhile been entered against him.&nbsp; After the close of pleadings, the two issues
set down for trial were: <o:p></o:p>1.&nbsp;
"Whether or not Plaintiffs and Defendants have any credit agreement
with any mode of calculating interest upon default. <o:p></o:p>2.&nbsp;
Whether or not Defendants are indebted to Plaintiffs.” <o:p></o:p>At the trial before the
learned trial High Court Judge, Her Ladyship Justice Torkornoo of the
Commercial Division of the High Court, evidence was heard from the plaintiff’s
witness and a referee who had been appointed, during the pre-trial settlement
stage of the proceedings, by the Court to enquire into the accounting
differences between the parties.&nbsp;
However, the defendant offered no evidence and did not participate in
the trial, although he had notice of it. <o:p></o:p>In her judgment after the
trial, the learned High Court judge held that the plaintiff had failed to prove
the terms of any credible agreement with the Ministry which should lead to the
sum claimed.&nbsp; In the plaintiff’s writ,
its claim was for “recovery of the sum of GH 14,174,693.12 being outstanding
sums owed Plaintiff as at 31st January 2008" and interest on the sums from
date of judgment until date of final payment.&nbsp;
Lecturn <o:p></o:p>At the trial, one Harrison
Teye testified for the plaintiff that it had sold motor vehicles to the
Ministry and provided it with after sales service.&nbsp; He indicated that the sale of motor vehicles
was for cash, while the after sales service was on credit basis covered by an
agreement.&nbsp; He claimed that the credit
facility agreement was in writing and the Ministry had accepted it.&nbsp; He tendered this alleged credit facility
agreement into evidence as Exhibit A.&nbsp; He
also tendered as Exhibit B an alleged acceptance of the credit facility
agreement by the Ministry.&nbsp; Exhibit A is
a letter dated 25th March 1991 addressed to the Chief Director, Ministry of
Information and thus different from the letter referred to in the Plaintiff’s
Statement of Claim.&nbsp; It stated that it
was intended to reiterate a particular term of a credit facility which the
Ministry was currently enjoying from the plaintiff as follows: <o:p></o:p>"All credit customers must settle
their accounts fully by the 15th of the month following that during which the
service was provided." <o:p></o:p>It went on to indicate
that in view of the high interest charge on bank credit, the plaintiff had
decided that it would pass on the cost of credit (compound) to all customers
who failed to perform in accordance with its credit terms.&nbsp; It then set out the interest rates the
plaintiff would apply to defaulting customers as follows: <o:p></o:p>a)&nbsp;
"Interest rate on the outstanding amount at the end of each month
3%. <o:p></o:p>b)&nbsp;
Loss of use of the outstanding amount&nbsp;
4%. <o:p></o:p>c)&nbsp;
Bank and other expenses&nbsp;
0.5%." <o:p></o:p>The last paragraph of the
letter was in the following terms: <o:p></o:p>"Kindly confirm your acceptance
of the above by signing, dating and stamping the copy of this letter attached
hereto as your facility is being withheld till receipt of your confirmation.” <o:p></o:p>The evidence shows that
the Ministry never signed, dated and stamped a copy of Exhibit A.&nbsp; Rather, the evidence given of its alleged
acceptance of the plaintiff’s offer of credit terms was in the shape of Exhibit
B.&nbsp; On these facts, the learned trial
High Court judge held that no contract had been established on the credit terms
alleged to be binding on the defendant.&nbsp;
She said (at pp. 47-48 of the Record): <o:</main>