IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
KOURANI KDOUH CO LTD - (Plaintiff/Appellant)
SAHEL-SAHARA BANK (GH) LTD - (Defendant/Respondent)
DATE: 1ST JUNE, 2017
CIVIL APPEAL SUIT NO: H1/66/17
JUDGES: K. A. ACQUAYE JA (Presiding), B. ACKAH-YENSU JA, S. K. GYAN JA
MR. STEPHEN OPOKU FOR APPELLANT
MS. ROSEMAY BAAH FOR RESPONDENT
The Plaintiff/Appellant, Kourani Kdouh Co Limited instituted an action against the Defendant/Respondent, Sahel-Sahara Bank (Gh) Limited on 13th January 2015, claiming the following reliefs:
a. The amount of US$10,000.00 being the money the Plaintiff deposited into his USD account number 1121045109002.
b. Interest on the said US$10,000.00 from 2012 to date.
c. Legal costs
d. General Damages
e. Any other order(s) this Honourable Court may deem fit”.
The case of the Plaintiff/Appellant (hereinafter to be referred to simply as “the Appellant”) was that the Plaintiff/Company was a client of the Defendant/Respondent (also to be referred to hereinafter as “the Respondent”). The Appellant operated two (2) United States Dollar accounts (numbers 1121045109002 and 1123045109002) at the Madina Branch of Respondent Bank. Sometime in 2012, the Appellant deposited US$10,000 into account number 1121045109002. Thereafter, all efforts to retrieve the said amount from the account were blocked by Respondent Bank without just cause, and attempts to resolve the matter amicably proved futile. The Appellant therefore instituted the action in an High Court.
The Parties herein subsequently agreed on an out of court settlement whereby the Respondent agreed to allow the Appellant retrieve the money from its account. However there were disagreements as to the quantum of interest, if any, to be paid on the said amount. The Appellant then filed an application for Summary Judgment claiming reliefs (b), (c) and (e) indorsed on the Writ of Summons.
The Respondent filed an Affidavit in Opposition to the application stating, inter alia that it had a defence in law to the claim. Respondent also claimed that the Appellant in concert with other customers of the Bank had perpetrated fraud on the Respondent and therefore they (Respondent) were holding onto the money to compel the Appellant to pay off the debt owed by its “partners” or “proxies”.
The trial Court on 12th August, 2015, gave a Ruling in favour of the Appellant. The Respondent, aggrieved by the Ruling, filed a motion to set aside the Summary Judgment. The motion to set aside the Summary Judgment was refused by the trial Court differently constituted. Prior to the refusal of this motion the Appellant had filed an Entry of Judgment. The Respondent subsequently filed a motion to set aside the Appellant’s Entry of Judgment, stating in its Affidavit in Support the reasons why its Counsel was absent from Court the day the application for Summary Judgment was granted, and also contesting the computation of interest on the amount of US$10,000 by the Appellant.
The trial Court granted the application to set aside the Entry of Judgment on 5th May, 2016. The reasons stated by the trial Judge were that the interest rate applicable to the judgment debt should be the rate in operation in the country whose currency was being used, and not the rate in operation in
Ghana. The Appellants, not being satisfied with this decision, filed a Notice of Appeal on 12th May, 2016 on the sole ground:
“That the trial Judge, Justice Sophia Rosetta Bernasko Essah, erred when she granted the application of the Defendant/Respondent to set aside the Plaintiff/Appellant’s Entry of Judgment filed on 26th August, 2015 on the ground that the rate of interest on the sum of US$10,000.00 should be calculated at the prevailing interest rate in the United States of America and not in accordance with Rule 4 of the Court (Award of Interest and Post Judgment Interest) Rules 2005 (C.I.52)”.
Counsel for the Appellant submits that the decision of the trial Judge was based on the Courts (Award of Interest) Instrument 1984 (L.I.1295) which has subsequently been repealed by the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I.52). Counsel cited the following as cases in which the said L.I.1295 was applied; they are: Ghana Ports & Harbours Auth vrs. Issoufou [1993-94] 1 GLR 24; Royal Dutch Airline (KLM) vrs. Farmex Ltd [1989-90] 2 GLR 623; Butt vrs. Chapel Hill Properties Ltd [2003-2004] 1 SCGLR 636 and National Investment Bank Ltd vrs. Silver Peak Ltd [2003-2004] 2 SCGLR 1008.
Counsel’s argument is that all these cases were decided before the new law, C.I.52 was passed. In support of his position, he quotes Rule 2 of C.I.52 which states that: “Subject to sub-rule 2, each judgment debt shall bear interest at the statutory interest rate from the date of delivery of the judgment up to the date of final payment". He argues further that Rule 4(1) of C.I.52 defines statutory rate of interest as: “the bank rate prevailing at the time the judgment or order is made by the court”. Rule 4(2) also provides that: “where there is doubt as to the prevailing bank rate, the 91 day Treasury Bill rate as determined by the Bank of Ghana shall be the prevailing bank rate”. Counsel also submits that the above stated rules now form the basis upon which interest rates on judgment debts are to be paid.
Counsel argues further that in the case of Ghana Port & Harbours Authority vrs Nova Complex Ltd  SCGLR 1 the provisions in C.I.52 were applied by the Supreme Court where the Court held thus:
“As rightly contended by Counsel for the defendant-appellant, the Court of Appeal had erred in ordering that “post judgment interest on the dollar component should be paid at the current prevailing bank rate in the USA as at the date of judgment”; that decision was contrary to rule 2(1) of the C.I.52 providing that “each judgment debt shall bear interest rate at the statutory rate from the date of delivery of the judgment up to the date of final payment”. And the statutory interest rate had been defined in rule 4(1) of C.I.52 as “ the bank rate prevailing at the time the judgment or order is made by the court…..”
Counsel further argues that the Supreme Court also applied the provisions of C.I.52 in the following cases: Dupaul Wood Treatment (Ghana) Co. Ltd & Duffour vrs Asare Assembly [2005-2006] SCGLR 667; City & Country Waste Ltd vrs Accra Metropolitan Assembly [2007-2008] 1 SCGLR 409, and Da Costa vrs Ofori Transport Limited [2007-2008] 1 SCGLR 602.
Counsel also contends that with the coming into force of C.I.52, the decision in the earlier cases like GPHA vrs Issoufou; Royal Dutch Airline (KLM) vrs. Farmex Ltd; and National Investment Bank Ltd v. Silver Peak Ltd (supra) are no longer good law on the matter of interest to be awarded on a judgment in foreign currency. He contends further that it is for this reason that the Supreme Court after the coming into force of C.I.52 departed from their earlier decisions of awarding interest on judgment debts in foreign currency using the interest rate prevailing in the country where the currency is used to applying the provisions in C.I.52 as seen in the case of GPHA vrs Nova Complex (supra).
Counsel consequently submits that the trial Judge erred in her Ruling that the interest on the sum of US$10,000.00 be paid at the rate prevailing in the United States of America. That, the interest rate to be applied ought to be the rate prevailing at the time of the judgment or the 91 day Treasury Bill rate.
Counsel for the Respondent on the other hand contends that the learned trial Judge did not err by holding that the interest rate applicable was the rate prevailing in the United States of America. He refers to the following cases as providing gravitas for his argument: GPHA vrs Issoufou (supra); KLM vrs Farmex Ltd (supra); and National Investment Bank vrs Silver Peak Ltd (supra). He contends further that C.I.52, like its predecessor L.I.1295, makes provision for the payment of interest in Ghanaian currency and is silent on the mode of payment of interest on foreign currency.
I agree with Counsel for the Appellant that the case of Ghana Ports & Harbours Authority vrs. Nova Complex (supra) was decided after C.I.52 was passed into law and that the case applied the new law. However, the issue that was determined in the said case was in respect of the date from which interest would be computed and whether the application of C.I.52 was retroactive. The court opined that the case was constructed on a false premise, namely, that “the judgment” referred to in Rule 2 of C.I.52 was necessarily the judgment of the trial court rather than that of the appellate court which had given the final judgment in the case. However, because an appeal in the Ghanaian jurisdiction is by way of rehearing, the operative judgment for the purpose of C.I.52 should ordinarily be the final judgment of the appellate court.
I must state here that contrary to the position being inferred by Counsel for the Appellant, that with the passing of C.I.52, cases decided based on L.I.1295 were no longer good law, the position of the law is that every procedural law generally has retrospective effect, unless the law maker states otherwise. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation; Procedural law, however, is retrospective; meaning thereby that it will apply even to acts or transactions under the repealed law. I must hasten to add however that this is not an issue being considered in this judgment.
There is no gainsaying that L.I.1295 has been repealed by the passing of C.I.52; and that the award of interest on judgments or orders of the Court are now regulated by C.I.52. Rule 2, as already quoted above, is more particularly concerned with the computation of interest on a judgment debt awarded by the Court. By virtue of C.I.52 therefore, post judgment interest on judgment debt adjudged by a Court will follow as a matter of law. Hitherto, L.I.1295 vested the courts with the discretion to award interest on any sum claimed or awarded only up to date of judgment.
Clearly both L.I.1295 and C.I.52 are silent on the application of the bank rate to foreign currencies and therefore the position taken by Counsel for the Appellant that the applicable statute is C.I.52 and that the trial Judge nonetheless applied L.I.1295 is untenable; neither of these laws is applicable. There are no statutory provisions expressly stating or providing an answer to the issue regarding the rate at which interest should be calculated where judgment is entered in a unit of currency not being the currency of Ghana i.e. the Cedi.
The cases relied on by the learned trial Judge and referred to by Counsel for the Appellant, although decided before the passing of C.I.52 are therefore still good case law, contrary to the assertions of Counsel. It appears that the confusion of Counsel for the Appellant lies in the fact that the case. GPHA vrs. Issoufou (supra), which the learned trial Judge cited in her judgment as the basis for her decision was premised on the repealed law, L. I.1295. Nonetheless, the issue of the applicable rate on an amount quoted in a foreign currency was succinctly discussed in the said case. The ratio decidendi was that by the provisions of L.I.1295, the rate of interest awardable by the Courts on any judgment sum ordered to be paid to a party in any civil cause or matter was the bank rate prevailing at the time of the order; that would be the bank rate prevailing in Ghana, the lex fori, at the relevant time. That rate was applicable to only transactions dealt with in local currency. Where the judgment debt, money or damages was to be paid in a foreign currency then the rules governing monetary transactions in that foreign currency in the foreign country would prevail unless expressly provided for and agreed upon by the contracting parties.
Commenting on this decision, (GPHA vrs Issoufou (supra)) Edward Wiredu (JSC) had this to say in:
“To me, the issue was not merely one of interpretation of the Courts (Award of Interest) Instrument, 1984 (L.I.1295) but was one as to the scope and extent of its applications, i.e. whether L.I.1295 was to be applied in all cases even if the general award was in foreign currency? The majority of this Court held that where the award was in foreign currency, the rate of interest ought to be calculated on the prevailing rate applicable in the country which currency was used in making the award.”
Another case that Counsel for the Appellant opined was based on the repealed law is Royal Dutch Airlines (KLM) vrs Farmex Ltd [1989-90] 2 GLR 623 SC. In this case, the majority decision was that the rate of interest payable on €23,800 awarded as damages should be the pound sterling commercial rate at simple interest prevailing in the United Kingdom as at the date of final judgment, and not the bank rate prevailing in Ghana. At page 694 of the judgment, Edward Wiredu (JSC) stated as following:
“On its face, the language of L.I.1295 impels me to conclude that its application is to be limited to transactions dealt with in local currency and must not be stretched to cover and include transactions involving the use of foreign currencies--------------------------------------------------------------------------------
------------------------------------The court awarded damages and interest on the basis that the plaintiffs had lost sums due to them from the defendants. The damages were expressed in pound sterling in order to reimburse them and not to enrich them. Equity follows the law and the principle of law underlying the award of damages is restitutio in integrum. If this principle is to be achieved in the instant case them I think the proper view to take of the matter is to allow the application and to construe the term. “Bank rate” as at 19 December 1990 as stated in the order of the court with reference to the “Bank rate” prevailing at the relevant date in the United Kingdom. This approach in my respective view would avoid the possibility of unjustly enriching one of the parties at the expense of the other. I see no justification in applying L.I.1295 to the facts of this case since the tendency to breach the principle of restitution in integrum is very high, thereby, defeating the ends of justice”.
In my opinion, this says it all! It is thus settled law that where a debt is contracted in a foreign currency, the interest rate attached to that debt is applicable to the currency in question. The Supreme Court has so decided in Royal Dutch Airlines (KLM) vrs Farmex Ltd (No2) (supra); Butt vrs. Chapel Hill Properties Ltd [2003-2004] 1 SCGLR 636; and in National Investment Bank Ltd (NIB) vrs. Silver Peak Ltd [2003-2004] 2 SCGLR 1008.
In the NIB case, Dr. Date-Bah (JSC) made this profound statement:
“It makes commercial sense for a dollar debt to attract a dollar interest rate because that interest rate (influenced by the rates set by the Federal Reserve Board) reflects the macroeconomic conditions of the United States, which determine the rates applicable to dollar-denominated debts worldwide. Similarly, it makes commercial sense for a cedi debt to attract a cedi interest rate since that interest rate reflects Ghanaian macroeconomic conditions (including, for instance, the rate of depreciation of the cedi against the leading foreign currencies and high interest rates). Thus if a cedi interest rate is applied to a dollar obligation, the obligee (that is, the creditor) will be overcompensated because the cedi interest rate, which necessarily reflects the high inflation rates in Ghana, will be applied to a dollar obligation which has not been subjected to that high inflation rate”.
Contrary to the position of Counsel for the Appellant in respect of the Nova Complex case, that case actually reinforced the position established in the earlier cases like GPHA vrs Issoufou, Royal Dutch (KLM) vrs Farmex Ltd, and NIB Ltd vrs Silver Peak Ltd; and applied interest rate prevailing in the United States of America on dollar denoted or component of the judgment debts. This is what Dr. Date-Bah (JSC) stated in the Nova Complex case:
“The appeal thus partially succeeds on this point and the Court of Appeal’s order is hereby varied to conform with rule 4(1) of C.I.52. In other words, the United States dollar rate of interest to be applied to the United States dollar component of the judgment debt (emphasis mine) should be that prevailing as at the date of the delivery of the Supreme Court and orders”.
The Nova Complex case thus clearly supports the Ruling of the learned trial Judge. In the circumstances, this appeal fails and is accordingly dismissed.
Costs of Gh¢5,000 awarded in favour of the Defendant/Respondent.