AVRIL LOVELACE-JOHNSON (J.A)

The designation of the parties at the High Court will be maintained in this appeal. The said court on 26^th May 2015 gave the Plaintiff judgment for the sum of USD 2,237,400 with interest thereon to run until final payment, general damages in the sum of GHS10,000 and costs of GHS 10,000.

Being dissatisfied with the judgment the Defendant has launched the present appeal on seven grounds and a further ground relating to the jurisdiction of the high court to hear the matter.

In his written submissions counsel for the Defendant has stated that he will only argue ground F and the additional ground filed. Grounds A B C D E and G are hereby deemed abandoned.

The grounds of appeal to be considered in this judgment are The judgment is against the weight of evidence

The learned trial judge erred in assuming jurisdiction contrary to Order 58 Rule 2 of C.I 47 to hear the instant matter which was fundamentally a landlord and Tenant issue.

Counsel for the Defendant dealt with the issue of jurisdiction first and stated that the issue of jurisdiction could be raised at any time during proceedings and even for the first time. That is trite and the correct position of the law.

Counsel dedicated ten pages of his written submissions on this issue and a further four pages of his reply to it. As a result of this counsel for the Respondent also went on at length in response. As interesting as the arguments of counsel for the Defendant may sound, they lack merit and should not take much of this court’s time and effort in disposing of it. I see no need to reproduce in detail the arguments from both sides on the issue.

My answer to the issue of jurisdiction raised is found in paragraph 25 of the submissions raised in support of the issue. Subsidiary legislation such as C I 47 cannot limit the jurisdiction given to the High court by the 1992 Constitution and the Courts Act, Act 459.

Article 140(1) of the Constitution provides as follows

The High Court shall subject to the provisions of this Constitution have jurisdiction in all matters and in particular, in civil and criminal matters AND such original appellate and other jurisdiction as may be conferred on it by the Constitution or any other law

Further section 15(1) of the Courts Act 1993, Act 459 provides as follows

In accordance with Article 140 of the Constitution, the High Court has, subject to the Constitution,

a. An original jurisdiction in all matters

e. Any other jurisdiction conferred by the Constitution, this Act or any other enactment

Clearly then, the power of the Chief Justice by virtue of section 14(3) of the Courts Act 1993, Act 459 to create divisions of the High Court such as the Commercial Division cannot remove from the power the Constitution confers on the said court ie jurisdiction in all matters as stated in Article 140(1) of the 1992 Constitution.

In deciding the issue of jurisdiction or lack thereof, I have not found it necessary to determine the question of whether the present action is in the nature of a landlord tenancy matter or a commercial matter properly so called. I am satisfied that whatever the nature of the case before the trial commercial court, even though it may have been more conveniently dealt with in another division of the High court, the said trial court had jurisdiction to hear it.

This ground of appeal lacks merit and so fails.

The outstanding ground of appeal is that the judgment is against the weight of evidence. In other words the conclusions reached by the trial judge are not justified by the evidence led.

To determine if this is indeed so, this court in exercising its statutory duty to treat an appeal as a rehearing by virtue of section 8 (1) of the Court of Appeal Rules 1997 C.I. 19, is enjoined to review the whole of the evidence and pronounce on whether the conclusions of the trial judge are borne out by the evidence. See the case of Re Asamoah (deceased) Agyeiwa & Ors v Manu [2013-2014] 2 SCGLR 909

In performing the above duty it is expected of an Appellant such as the present defendant to point out the lapses in the judgment on appeal by showing pieces of evidence which were wrongly applied against it. See Djin v Musa Baako [2007-2008] SCGLR 686

What are the lapses complained of by the Defendant herein? In essence these are to do with firstly with the authenticity of Exhibit A tendered during the trial and secondly with its admissibility.

It is the contention of counsel for the Defendants that the issues he raises in respect of the first should have aroused the trial judge’s suspicion and led her to reject the said exhibit.

To put the said exhibit A in proper context, it is necessary to reproduce its contents and give a summary of the cases of the parties at the trial.

The Plaintiff issued a writ for a sum of money with interest thereon which it claimed was due it by virtue of an agreement entered into with the Defendant. The said agreement was tendered as exhibit A. By exhibit A, signed by the Managing Director of Plaintiff and an officer of the Defendant, the latter were to pay $200 a day per container for ten containers for the use of Plaintiff’s warehouse to store their containers. The first seven days storage was to be free.

The Defendant, while denying the existence of such an agreement admitted putting the containers on the land in question but said it had done so on the authority of another company Zed Network Limited whose Managing Director was also in the person of the Plaintiff’s Managing Director. The purpose of the containers, they said was to help Zed Network Limited, which was one of their exclusive Distributors in performing its distribution services. They also did NOT deny that the one who signed the exhibit had been in their employ and was known to them but said he did not have the mandate to bind them by exhibit A even if it was an authentic document, which they denied.

The issues set down for determination were whether the said Exhibit A was binding on the Defendant, whether the amount claimed was reasonable and whether the Defendant was liable to pay rent for the full period the containers remained on the Plaintiff’s land.

Exhibit A states as follows

IRREVOCABLE UNDERTAKING between Zain Communication Ghana Limited and Woodhouse Limited.

Based on your continuous pleading for space to temporary store your containers, the management of Woodhouse Limited has decided to offer your company (Zain Communication Limited) temporal storage of the containers numbered Ten (10). You are however advised to evacuate all these containers within seven (7) days to pave way for the leasing of our facility for commercial purpose. On your company’s failure to adhere to this, our company shall charge rent of US$200.00 per day per container for any additional days the containers remain on our property till they are evacuated

The document was dated 5^th January 2009 and signed by the Plaintiff’s Managing Director and one David Afugani, allegedly representing the Defendant

The factual and evidential issues raised by Counsel for the Defendant regarding this exhibit, in sum are as follows:

It is not an authentic document and was prepared for the purpose of the present litigation It is at best an offer of a tenancy and possibly an acceptance

It has no commencement date though counsel admits that Plaintiff’s Representative testified that it commenced the same date that it was signed

The person who signed it on behalf of the Defendant did not have the authority to do so

The reminder letter to the Defendant ie exhibit B did not mention exhibit A at all or had a copy attached to it but only made reference to their promise in the beginning of 2009 to remove the containers within a week. Counsel contends that the tenor and contents of this exhibit negating that of exhibit A and the pleadings raise doubts which should have led to a critical examination of the two exhibits which in turn would have led to adverse findings against the Plaintiff

Counsel wonders why after the alleged default by the Defendant, the Plaintiff did not take any action on the matter earlier ie from mid-January 2009 to 24^th June 2011

The invoice attached to exhibit B levies charges for more days than what is due under exhibit A, and the Plaintiff could not be specific on which day three of the containers were removed, assuming it is deemed to be a genuine document

The Defendant’s officer who allegedly signed exhibit A denied having done so

The point of law raised is that the exhibit is inadmissible and should be excluded from evidence since it sins against section 32(2) of the Stamp Duty Act, 2005 [Act 689]

The response, in short, of counsel for the Plaintiff to these submissions is that exhibit A is clearly an unambiguous document stating the terms of the agreement between the parties. Further that even if the one who signed it on behalf of the Defendant did not have the power to do so, the Plaintiff is covered by the presumption of regularity under section 142 of the Companies Act, Act 179.

In reply to the last mentioned, it is submitted on behalf of the Defendant that because the Managing Director of Plaintiff as Managing Director of ZED Network Limited had had dealings with the Defendant he ought to have known that the said officer did not have the requisite authority to sign for the Defendant.

I will deal with the issue of admissibility first since a finding on that may make it unnecessary to discuss what I have earlier described as factual and evidential issues raised by the Defendant.

Part IV of the Evidence Act is entitled RELEVANCY and section 51 (2) in particular states that all relevant evidence is admissible except as otherwise provided by an enactment. Counsel for the Defendant states that exhibit A is inadmissible by virtue of section 32 (1) (2) and (3) of the Stamp Duty Act, 2005 Act 689.

First one has to decide whether a document such as exhibit A is covered by the Stamp Duty Act.

Section 32 of the Act provides as follows

Admissibility of insufficiently stamped or unstamped instrument

32. (1) Where an instrument chargeable with a duty is produced as evidence (a) in a court in a civil matter; or

(b) before an arbitration or referee, the judge, arbitrator or referee, shall take notice of an omission or insufficiency of the stamp on the instrument.

(2) If the instrument is one which may legally be stamped after its execution, it may, on payment of the amount of the unpaid duty to the registrar of the Court or to the arbitrator or referee, and the penalty payable on stamping that instrument, be received in evidence subject to just exceptions on other grounds.

(3) An instrument which is sufficiently stamped under this Act shall be receivable in evidence although that instrument may not have been stamped or is insufficiently stamped according to the law in force in the place where that instrument was executed

(4) The registrar, arbitrator or referee shall

(a) give a receipt for moneys paid as duty or penalty;

(b) make an entry in a book kept for recording payment of stamp duty and any penalties; and

(6) Except as expressly provided in this section, an instrument (a) executed in Ghana; or (b) executed outside Ghana but relating to property situate or to any matter or thing done or to be done in Ghana ~ shall except in criminal proceedings, not be given in evidence or be available for any purpose unless it is stamped in accordance with the law in force at the time when it was first executed.

There is no doubt that by virtue of subsection (6), a document such as exhibit A is covered by the Act in question.

Section 5(1) of the Evidence Act provides as follows

No finding, verdict, judgment or decision shall be set aside altered or reversed on appeal or review because of the erroneous admission of evidence unless the erroneous admission resulted in a substantial miscarriage of justice

Section 5 (2) lists the factors to be taken into account in determining whether a substantial miscarriage of justice has occurred.

Section 8 of the same Act however states as follows

Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.

The Supreme Court in the case of Edward Nasser & Co Ltd v McVroom and Another 1996-97 SCGLR 468 when discussing the distinction between evidence which was inadmissible per se and that which would have been rejected as inadmissible upon an objection being taken at the trial referred to the West Africa Court of Appeal case of

Abowaba v Adeshina [1946] 12 WACA 18 where the court stated in part as follows

There are certain types of evidence such as hearsay, and unstamped and unregistered documents which are inadmissible per se, they cannot form the basis of a decision, and objection to them may be taken at any stage of the trial or an appeal

After the reference to this case, the court noted that by the provisions of section 117 of the Evidence Act major inroads have been made into the law of hearsay and further stated that evidence inadmissible per se are those forbidden mainly by statute, the Evidence Act itself or

Other enactments like those prohibiting the tendering of unstamped documents and unregistered documents

The Supreme Court had cause to discuss the provisions of the Stamp Duty Act in the case of Lizori Ltd v Boye & School of Domestic Science & Catering [2013-2014] 2 SCGLR 889

That court stated clearly per Benin JSC that

The provisions in section 32 of Act 689 are clear. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and ask the party to pay the duty and penalty after judgment

This court was castigated in that case for its position that payment of stamp duty was a matter of revenue and so to prevent a miscarriage of justice had ordered an appellant to pay the requisite stamp duty within thirty days after delivery of judgment and admitted and considered the documents in question.

It is clear from all this that Exhibit A in this case, being unstamped ought not have been admitted into evidence by the trial court even if no objection was raised by the Defendant. It is hereby excluded.

The exclusion of exhibit A does not relieve this court of its duty to determine from other evidence led, be it oral or documentary to determine whether the Plaintiff successfully proved its case on the balance of probabilities as required by the provisions of sections 11(1), (4) and 14 of the Evidence Act 1975, Act 323.

The Managing Director of the Plaintiff who was the only witness for the latter testified that one morning in 2009 some people from the Defendant brought some ten containers to its premises pleading to be allowed to deposit them there. After much pleading he allowed them to do so on condition that they would be removed within seven days failing which he would charge them $200 a day for each container since he had a commercial purpose for the land. They agreed to this and an irrevocable agreement to that effect was entered into. According to the witness, the Defendant did not collect the containers as agreed upon so on 24^th June 2011, he wrote exhibit B to them on the issue. Attached to this exhibit was an invoice showing how much was due the Plaintiff as rent as at that time for storing the said ten (10) containers. Exhibit B states as follows

The Managing Director

Airtel Ghana Ltd

Accra.

24^th June 2014

Dear Sir,

USE OF WOODHOUSE LAND TO STORE AIRTEL CONTAINERS

We write to inform you that, in the beginning of 2009, the then Zain Ghana Ltd. now Airtel Ghana brought and packed ten(10) 20-feet containers on our land with a promise that they would be removed within one week. Two containers were removed within six (6) months and one (1) after a year remaining seven (7).

Since then, we have made countless efforts for your company to remove the containers to enable us use the land for its intended purpose, but to no avail.

We are therefore per the attached invoice charging you rent for the use of our land for the number of years that is from 2009 till date when the containers have been on the land depriving us from using the land for the intended purpose.

Yours faithfully

…………….

GEORGE BOATENG

ON BEHALF OF WOODHOUSE LTD.

CC;

THE OPERATIONS MANAGER

THE SALES DIRECTOR

THE FINANCE DIRECTOR

LOGAN & ASSOCIATES

According to the witness, the Defendant ignored the letter so on 11^th January he caused his lawyers to write exhibit C to them reminding them of the agreement relating to rent to be charged for storing the containers. In this letter, the details of the said agreement were spelt out, the amount outstanding was stated and the Defendants given 14 days to pay up or face court action to recover same. Exhibit C is reproduced here under.

OUR REF: IN/F.6/5

11^TH JANUARY, 2013

ZAIN COMMUNICATION GHANA LTD.

ACCRA, GHANA.

Dear Sir,

INDEBTEDNESS TO WOODHOUSE LIMITED

We write for and on behalf of Woodhouse Limited, Accra, Ghana.

Our clients inform us that you are indebted to them in the sum of $2,227,000.00. this indebtedness arose when then Zain Ghana Limited now Airtel Ghana Limited at their request in the beginning of 2009 brought and packed ten (10) 20 footer containers for storage on our clients land at Madina, Accra with an agreement that the said containers would be removed within a week.

Our clients inform us that two of the said containers were removed within six months and one after a year bringing the number left to seven.

Our clients also inform us that it was agreed between both parties that our clients shall charge rent of $200.00 per day per container for any additional days the said containers remain on their property till they are evacuated.

Our client further inform us that by an Undertaking dated the 5^th day of January, 2009 you promised to remove the said containers within seven days failure of which you would liable to the above named charges.

Despite several reminders the said seven containers still remains on our clients property since 2009 and you have failed or refused to settle such a large sum despite repeated demands. This has also prevented our clients from using the said land for its intend purpose since 2009.

This letter is therefore notice to you to have the said amount of $2,227,000.00 paid within fourteen (14) days from the date of this letter failing which we have our clients further instructions to institute a legal action against you to recover same.

We hope that you will accede to this reasonable request of our client so as to make recourse to Court action unnecessary and look forward to receiving the said amount on like sum on or before expiration of the stipulated period.

Please be advised.

Yours Faithfully

…………………

LAWYER ISAAC NYANOR (0244273987)

The Defendant replied to this letter with exhibit D dated 14^th February 2014 and addressed to ZED Network Limited, a different company but whose MD was also the Plaintiff’s MD. In the said letter, the Defendant stated that the containers had been put on the premises in question at the direction of ZED Network acting through the witness for the purposes of facilitating ZED’s distribution of the Defendant’s products and that they had no business with the Plaintiff company. They further stated that they would arrange to collect the containers off the land.

Counsel for the Defendant stated in his submissions that the said David Afugani denied ever signing such an agreement with Plaintiff. That is not the evidence on record. The said Afugani did not testify at the trial but Defendant’s witness, a legal officer stated that Afugani had said

“he did not remember signing any undertaking”

The Defendant had denied having entered into any such agreement by paragraph 5 of their statement of defence and said they did not even know the Plaintiff till they received its demand letter

The Defendants made some attempt in their evidence to explain the presence of the containers on the Plaintiff’s land. They say that the containers in question were sent to the property of the Plaintiff to help in the business of his other company ZED and that had they really wanted to store them, they had a warehouse and a centre with a lot of space for them.

This attempt falls flat on its face in the light of evidence that such marketing support would have been supported by a document like exhibit J which relates to the supply of two motor bikes and the fact that exhibit 2 which governed the relationship between ZED and the Defendant does not make provision for the supply of containers. An attempt was also made during cross examination to establish that some support is provided distributors such as ZED without supporting documentation. Ten containers without documentation? From a company like Defendant when just two motor bikes had been covered by “binding agreements” with respect to their use? See page 314 of the ROA. What is the reason for taking back only three of the containers at a point in time and leaving seven on the premises of the Plaintiff?

I am satisfied that the oral evidence of the Plaintiff and the letters he tendered as exhibits (which by and large gave certain details and so suffice as written evidence of the agreement) in support of that evidence are more in consonance with the position that the parties had an agreement for storage of the containers for a fee than the Defendant’s allegation that the containers were logistic support provided the Plaintiff. The balance of probability tilts in favour of the Plaintiff.

Even if the letters tendered as exhibits do not suffice as written evidence of the agreement between the parties I am satisfied that the present transaction is not one of those which need to be in writing since it is in the nature of a Licence. In the book

Words and Phrases legally defined, Volume 3: K-Q Third Edition,Under the General Editorship of John B Saunders of Lincoln’s Inn Barrister, the word Licence is explained as

A licence is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them, or the circumstances and construct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the land, If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner’s possession and control, the agreement will operate as a licence even though the agreement may employ words appropriate to a lease.

“A mere licence does not create any estate or interest in the property to which it relates; it only makes an act lawful which without it would be unlawful…………

A licence created by a contract is not an interest. It creates a contractual right to do certain things which otherwise would be a trespass. It seems to me that, in considering the nature of such a licence and the mutual rights and obligations which arise under it, the first thing to do is to construe the contract according to ordinary principles….” Millennium Productions Ltd v Winter Garden Theatre (London) Ltd [1946] 1 All ER 678 at 680, CA, per Lord Greene MR

Being satisfied that the transaction between the parties was at worst a License it is permitted without being in writing by the provisions of section 3 (1)(g) of the Conveyancing Act 1973, Act 175 which lists a licence as one of the exceptions to the general rule provided in section 2 (a) that a contract for the transfer of an interest in land is not enforceable unless

It is evidenced in a writing by the person against whom the contract is to be proved or by a person who was authorized to sign on behalf of that person

I further hold the considered opinion that in the light of my finding that on the balance of probabilities there was an agreement between the parties for the storage of the containers, it will be inequitable to allow the Defendant to escape its liability because of the absence of writing.

As a court exercising its powers of rehearing and thus having the same powers as the trial court, I make a finding that the said agreement is binding on the parties.

The position of the Defendant is that that David Afugani who Plaintiff says signed the agreement on their behalf did not have the required mandate to do so.

Undoubtedly, David Afugani was an officer of the Defendant. He was the Manager in charge of the southern sector of Defendant’s business. As stated earlier the MD of the Plaintiff had had dealings with the Defendant through another of his companies called ZED. Exhibit F is evidence of one such dealing and the signatories is evidence that the Defendant can be bound in agreement by persons other than the MD. That exhibit was signed by the Sales and Distribution Director on behalf of the Defendant and not the MD himself. No evidence of express authorization to do so was led contrary to the statement by counsel for the Defendant in his submissions that there had been such authorization. Exhibit J was also signed by the said David Afugani on behalf of the Defendant. Counsel describes this exhibit as a letter. This is not correct. It is no mere letter. It contains details of an an agreement between the parties. The exhibit is reproduced hereunder

6^TH November, 2009

Zed Network Ltd

Post Office Box 5716

Accra, North

Attention: Mr. George Boateng

Dear Mr. Boateng,

LOGISTICS TO SUPPORT ZED NETWORK OPERATIONS

This letter confirms our mutual understanding with respect to the transfer of two motor bikes with registration numbers (GS8650 Z and GC1974 Z ) in support of your operations. The purpose of this letter is to set forth certain binding agreements with respect to the use of the motor bikes.

We envision that the main purpose of this transfer will be solely To facilitate your operations in terms of market/route coverage, Identification and closing of distribution gaps to ultimately ensure that Zain’s products and services are available to customers in your territory. We confirm our common understanding that this is a binding pledge on us, and that Zed Network may make commitments in reliance on this pledge.

Also, we appreciate your understanding that this gesture does not limit Zain’s exclusive discretion to determine the commercial purpose and area of usage for these motor bikes which remain a property of Zain Ghana Limited.

You may not transfer to another these assets that Zain Ghana Ltd. has provided to you. The motor bikes may not be used for other purposes, except for the execution and delivery of KPIs as stipulated in our standard operations procedure. The Company reserves the right to withdraw these trade supports if it is established that the motor bikes are not being used for the purpose for which they were provided.

We intend by this gesture, to strengthen our relationship with you as our Strategic Distribution Partner. This letter constitutes our full, mutual understanding concerning this transfer of assets. There are no other agreements or expectations.

If the foregoing terms and conditions are acceptable to you, please do indicate by signing the enclosed copy of this letter and returning it to the attention of the undersigned.

Yours sincerely.

……………..

David Afugani

(Regional Manager-Southern Ghana)

[the signatures below indicate that these understandings and commitments are accepted by all parties]

ACCEPTED AND AGREED BY (DAVID AFUGANI) ……….

BY (GEORGE BOATENG) ……..

These prove as untrue the evidence of DW1 at page 121of the ROA that

“The only person with authority to bind the company is the Managing Director except other people are expressly authorized to do so…”

I am satisfied that the Plaintiff was entitled in law to presume that David Afugani had the said mandate by virtue of section 142 (b) of the Companies Act. The said section provides as follows

A person having dealings with a company or with someone deriving title under the company is entitled to assume

(b) That a person described in the particulars filed……as an officer or agent of the company, has been duly appointed and has authority to exercise the powers and perform the functions customarily exercised by a director, Managing Director….

The defendant counters that the Plaintiff ought to have known that David Afugani did not have the authority to bind them in agreement because, a distributorship agreement between the Defendant and ZED (a completely different company of which the MD of the Plaintiff was also the MD) had been signed by Defendant’s MD and not another officer. Section 142 (2) (a) of the Companies Act provides as follows

“A person is not entitled to make any of those assumptions if that person had actual knowledge to the contrary or if, having regard to the position with, or relationship to, the company, that person ought to have known the contrary

In the first place, there is no evidence of a prior relationship between the parties because ZED is a separate entity from Plaintiff. Secondly, as stated earlier, from ZED’s dealings with the Defendant, as shown by exhibits F and J the Plaintiff was justified in assuming that David Afugani had the requisite authority.

I am satisfied that the Defendant has failed to rebut the presumption of regularity.

The evidence of DW2 was that Defendant had its own storage centers so counsel for Defendant questions the Plaintiff’s charges for storing the containers and asks how any reasonable entity would decide to forgo payment of $2 per container a day at the port and pay $200 per container per day. It is only the Defendant which can answer that question. As rightly stated by the trial judge no fraud or misrepresentation was proved regarding this agreement so the parties are bound by it. It is worthy of note that the Plaintiff admitted that he charges less for warehousing purposes but imposed those charges so the Defendant would remove the containers within the rent-free period of seven days he had given them.

I have given great thought to whether it will be proper in the light of the above to use the Plaintiff’s admitted usual charges as a basis of the amount due him. My answer has been in the negative because the defence has NOT been that the charges are too high. The issue of charges were raised to show that in view of their allegation that they had their own storage space if the charges at the port were high(which charges were much lower than the Plaintiff’s), Defendant was unlikely to enter into the agreement upon which the Plaintiff bases its claim.

Having found that there was indeed such an agreement between them, it is not this court’s place to change the terms of that agreement by reducing the charges agreed upon.

The amount awarded the Plaintiff by the trial Court has also been questioned under this ground of appeal. The trial Judge made an award of $200 a day per container from 5^th January 2009 to 22^nd February 2013. The Plaintiff had per its writ of summon made a claim up to 31^st December 2012. The evidence does not disclose the basis for the award by the trial Judge for this period of time, although she gives some explanation in making the award.

The Plaintiff gave a breakdown of the amount claimed in paragraph 8 of the statement of claim. Is this amount borne out by the evidence led? The evidence is that the agreement was entered into on 5^th January 2009 with a grace period of seven days after which rent was to accrue. Rent would therefore start running from 13^th January 2009. The evidence is that two containers were removed within six months and a third removed a year after the agreement was entered into.

The rent for the 10 containers will be $200 per container per day for six months starting from 13^th January 2009 to 13^th July 2009 (ie when two of the containers were collected)

The rent for the remaining 8 containers starting from 13^th January 2009 till 13^th January 2010 (ie a year later when another container was collected by Defendant) will be $200 per container per day for 365 days

Upon the collection of the third container a year after the rent due for the remaining 7 containers will be $200 per day per container from 13^th January 2009 till 31^st December 2012 (date stated on Plaintiff’s writ)

The total of these amounts is what is rightly due the Plaintiff from the evidence led and not what was awarded by the trial court. The Registrar of this Court is to work out the full amount. The amount arrived at is awarded the Plaintiff in place of the trial court’s award.

The trial judge stated that the sum due the plaintiff was to attract interest until final payment. The amount claimed is in United States Dollars. For the avoidance of doubt, in line with Supreme Court decisions such as

“NATINAL INVESTMENT BANK LIMITED (NIB) VS. SILVER PEAK LIMITED [2003-2004] 2 SCGLR 1008”

on the award of interest on claims in foreign currency, interest is to calculated on the amount due at the prevailing interest rate in the United States of America from 13^th January 2009 to the date of final payment and also paid to the Plaintiff.

The amounts awarded as general damages and costs by the trial court are maintained.

This ground of appeal succeeds in part to the extent of the variation in the amount awarded by the trial Court.

In conclusion the appeal is allowed in part and disallowed in part.

Costs of GH¢5,000.00 for the Plaintiff/Respondent

SGD

……………………..

AVRIL LOVELACE-JOHNSON

JUSTICE OF THE COURT OF APPEAL

SGD

I AGREE                                                                   ………………….

                                                                               MARIAMA OWUSU

JUSTICE OF THE COURT OF APPEAL

SGD

I ALSO AGREE                                                        ………………….

SUURBAAREH

JUSTICE OF THE COURT OF APPEAL