INTERNATIONAL ROM LIMITED vs. VODAFONE GHANA LTD. AND FIDELITY BANK LIMITED [2022]DLSC11719

Date	2022-05-25
Suit No.	CIVIL APPEAL NO. J4/09/2020
Citation No.	[2022]DLSC11719

YEBOAH CJ (PRESIDING)

PWAMANG JSC

OWUSU (MS.) JSC

HONYENUGA JSC

PROF. MENSA-BONSU (MRS.) JSC

EMMANUEL AMOFA ESQ. FOR THE PLAINTIFF/APPELLANT/RESPONDENT.

BENJAMIN KPAKPO SACKAR ESQ. FOR THE 1ST DEFENDANT/RESPONDENT/ APPELLANT.

[2022]DLSC11719
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													<main id="main" class="content" style="min-height: 60rem" >INTERNATIONAL ROM LIMITED<o:p></o:p>(PLAINTIFF/APPELLANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>VODAFONE GHANA LTD. AND FIDELITY
BANK LIMITED&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(DEFENDANT/RESPONDENTAPPELLANT)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:115%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL APPEAL NO. J4/09/2020&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:
25TH MAY, 2022<o:p></o:p>

</div>COUNSEL<o:p></o:p>EMMANUEL AMOFA
ESQ. FOR THE PLAINTIFF/APPELLANT/RESPONDENT.<o:p></o:p>BENJAMIN KPAKPO
SACKAR ESQ. FOR THE 1ST DEFENDANT/RESPONDENT/<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">APPELLANT.<o:p></o:p>

</div>CORAM&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>YEBOAH CJ
(PRESIDING), PWAMANG JSC, OWUSU (MS.) JSC, HONYENUGA JSC, PROF. MENSA-BONSU
(MRS.) JSC <o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;PWAMANG JSC:-<o:p></o:p>My Lords, the ruling of the High Court that has
culminated in this appeal was initially in respect of an application to set
aside an amended entry of judgment filed by the plaintiff/appellant/respondent
(the plaintiff) after winning its case in the Supreme Court.<o:p></o:p>&nbsp;However, in
the determination of the application, the High Court judge went beyond the
scope of the application and determined the outstanding judgment debt owed by
the defendant/respondent/appellant (the defendant). The judge took this course
because the awards made in the substantive judgment of the High Court dated 15th
May, 2013 (which was by a different judge) were varied by the decision of the Supreme
Court in the final appeal given on 6th June, 2016. The view was
therefore that the new entry of judgment must agree with the judgment as varied
by the Supreme Court minus what had been paid. In apparent effort to resolve differences
between the parties about how much of the judgment debt remained to be paid,
for some payments had been made in the course of the appeals, the judge appointed
an accountant as a referee and in his work he took into account compromise
payments made by the defendant to Fidelity Bank, 2nd defendants in
the case, to defray the judgment liability of the plaintiff on a counterclaim.
The referee tendered his report and testified, and from his testimony, he
carried out his work on the basis of his understanding of what the judgment
debts of the plaintiff and the defendant stood at following the variation of
the original judgment by the Supreme Court.<o:p></o:p>But, what constitutes the judgment debt owed by
either party, especially as amended by the Supreme Court judgment, is a matter
of law to be determined by the court upon an interpretation of the Supreme
Court decision and it ought not to have been left to a referee. Though the determination
of how much remained to be paid by the defendant was embarked upon by the judge
in good faith, it has unfortunately embarrassed the proceedings in her court
and made them difficult to understand. The end result is that we are being called
upon by the parties to the appeal herein to enter judgment for amounts in their
respective statements of case as if we are determining a substantive appeal
which is not the case. Nevertheless, the central question of law emanating from
the ruling of the High Court judge dated 24th April, 2018, and of the
Court of Appeal dated 21st November, 2019 is, in what manner did the
variation by the Supreme Court change the amounts awarded in the substantive original
judgment to be paid by the defendant? To answer this question we need to trace
the relevant background to the case in brief.<o:p></o:p>In 2008, differences arose between the defendant
and its contractor, the plaintiff, concerning execution and payments for works
awarded to the contractor. The plaintiff sued in the High Court for sums due
for works executed but unpaid for, and for special and general damages for breach
of contract. As part of particulars of damages the plaintiff alleged that the breach
of the contract by the defendant caused it to default in the payment of loans
it contracted for the works from Fidelity Bank and Prudential Bank. As a result,
it was then faced with demands for huge interests payments which would not have
been the case if the defendant had discharged its contractual obligations and
timely. Fidelity bank joined the case and in their defence and counterclaim
stated that some of the loans it extended to the plaintiff were actually given
on the back of letters written to it by the defendant undertaking to make
payments of monies due to the plaintiff from the contract into a joint account
between the bank and the plaintiff so as to enable the bank recover the loans
extended to the plaintiff at source. Fidelity bank stated that the defendant honoured
the undertakings only partially since it made some payments due the plaintiff through
the joint account but some of the payments to the plaintiff went through other
accounts controlled by the plaintiff alone. The bank contended that the default
by the defendant to make all payments into the joint account as agreed disabled
it from collecting some of its loans from the plaintiff and they were still
outstanding.<o:p></o:p>The plaintiff led evidence on the works executed
but not paid for. Evidence was also adduced about the plaintiff’s general outstanding
indebtedness to Fidelity bank and Prudential Bank. But, from the outset, it
must be noted that, from the record before us, it seems that it was not all the
loans given by Fidelity Bank &nbsp;to the
plaintiff that were ‘guaranteed’ by the plaintiff through undertakings. The
Supreme Court referred to three u</main>