IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION FIVE),
ACCRA- A.D 2019
AFRICA AUTOMOBILE LIMITED -(Plaintiff)
TEMA OIL REFINERY LIMITED - (Defendant)
DATE: 21 st MARCH, 2018
SUIT NO: RPC/09/07
JUDGES: GEORGE BUADI J HIGH COURT (COMMERCIAL 5) ACCRA
FRANK DAVIES, WITH PATRICK ANNIN FOR PLAINTIFF/EXECUTION CREDITOR APPLICANT
AGYABENG AKRASI, WITH DIANA AMEFINU FOR DEFENDANT/J/DEBTOR RESPONDENT
1.1 The decision of the court is in furtherance of the decision of the Supreme Court dated 29 June 2011, which varied the decision of the Court of Appeal1, which had earlier on its part varied the decision of the trial Commercial Court dated 12 August 2008. Pursuant to the Supreme Court’s decision, the plaintiff judgment execution creditor revised the entry of judgment. The amount payable as interest dated 11 March 2010 accruable on the principal sum and other reliefs the court granted has the bone of contention between the parties.
1.2 In furtherance of the entry of judgment, the parties had come up with differing amounts as interest due and payable over the period. Whilst defendant judgment debtor in its computation arrived at a figure of GHc6, 764,974.73 as net sum amount due plaintiff judgment creditor as at 30 May 2016, plaintiff judgment creditor on its part came up with a threefold figure of GHc19, 470,051.20 as at 31 June 2016. See Exhibits ‘PKE 2’ and ‘PKE 3’.
1.3 Desirous to bring a determinative end to the differing amounts each party claims as due and payable over the period, the judgment execution creditor, the applicant herein applied, which this court on 8 February 2017 granted not only for verification of interest computation, but also for appointment of Director of Finance, Judicial Service, Accra as the Auditor (Court witness) to determine how much on the face of the judgement of the Supreme Court is due as interest on the principal judgment debt due or payable to the plaintiff applicant.
1.4 Per the order of the court, the court witness was to undertake the exercise on the reliance and use of the revised entry of judgment that span the three superior courts2 Exhibit ‘PKE 1’, particularly that of the final judgment on the matter by the Supreme Court, as well as interest as computed by the parties. See Exhibits ‘PKE 2’, and ‘PKE 3’. The object of the exercise, indeed the main issue before the court is to ascertain how much the judgment debtor is to pay as interest due, and also as the total judgment debt payable by defendant to plaintiff.
2 At the court’s sitting on 22 March 2017, the court adopted the witness report, marked initially as Exhibit CE1 covering the period March 2017. I find as a fact however that, by serial orders of the court, Exhibit ‘CE1’ had since been updated and revised periodically by the witness in correspondence with the court’s sittings.
2 The trial High Court, Court of Appeal, and the Supreme Court.
At the conclusion of the exercise, the witness had produced revised reports up to January 2018, the last sitting of the court on the matter. The periodic or consistent revision of the report was necessitated by the need to cover up to the barest minimum days’ loss of interest payable. At each sitting, the current report for the month formed the basic focus and material of the court. Nonetheless, cross examination of the witness, particularly by counsel for applicant covered not only the final and current report of the witness, but also his previous reports.
3 Prior to taking up right of cross examination of the witness, counsel for applicant urged the court to appoint additional accounting firm to undertake the same or similar exercise of the court witness to form a comparative analysis with the witness’s report. His motivation for the call is grounded, as I perceived, on his disagreement with the interest computations by the court witness, particularly so on his perceived disagreement with applicant’s computation. See Exhibit ‘PKE 1’.
I rejected the request. I found no legitimate basis for the call, much so when the report of the witness was yet to be tested by the parties’ lawyers.
4 I have looked through the reports of the court witness, particularly the final one on 14 January 2018, which put the total judgment debt of defendant as at 14 January 2018 as GHc1,457,926.12. The exercise, indeed the outcome, according to the court witness was based on the following assumptions:
1 Interest was computed using C.I.52, Rules 1 & 2.
The bases period used was 365 days per year
Interest was computed on the substantial damages, but not on the cost awarded
Interest was computed on simple interest basis
The cutoff date used was January 14 2018
The exchange rate of Ghana Cedis to one Euro used for 25th April 2014 was GHs4, 2893
A post-reconciliation part-payment of Ghs4, 666,195.70 made by TOR on 11/5/17 has been taken into account
5 Evident from the cross examination, I find that the witness read and relied on the decision of the Supreme Court on the matter, as well as plaintiff’s application for verification of interest computation, including the exhibits attached that comprise computations by the parties, which I must reiterate formed the genesis and basis for the exercise. I find as a fact that, indeed in agreement with the witness that unless specifically directed by a court as to the use of a particular mode or basis of interest computation, the mode prescribed by statute (C.I.52) becomes the mandatory basis of computation. Indeed, that was the mode the witness adopted and used for the exercise. I find also as a fact that defendant made payments in satisfaction of the judgment debt, which obviously with the time and date of the payment affected and changed the mechanism and basis of assessing interest accrual on the principal sum by the witness.
6 I have always been of the view that reports of expert or court witnesses are not sacrosanct, neither are they cast in iron tablet. As the name suggests, their reports are just expert (technical or professional) guide or assistance on the facts or matters of controversy before the court. The reports are not intended to oust or supplant the court’s traditional mandate to make its own assessment and evaluation of evidence by the parties, including as well the court witness.
7 I am conscious of the object and importance of cross examination in the assessment and evaluation of evidence in overall justice delivery. With respect to the matter before the court, the integrity of the reports tendered by the witness as serially presented under the circumstances in my view remained intact after the fiery cross examination from applicant’s lawyer. My view is that the report and its conclusions are supported by documents that were made available to the witness. Indeed, the witness’ assumptions and findings, and thus the outcome are well- outlined and duly connected to the terms of reference and documents placed before him. I have no basis on the face of the report and the proceedings thereafter to doubt or impugn the professional competence of the witness. Neither do I find any basis to doubt his findings and conclusions as to the total sum of defendant’s indebtedness to plaintiff within the period under consideration.
8 In conclusion therefore, indeed as regards in particular to the response of the court witness to a question from lawyer from defendant, I find and hold that the sum of GHc1, 457,926.12 as contained in the last report of the witness dated 14 January 20183 is or represents the true indebtedness of defendant that is due and payable to the plaintiff as at 14 January 2018, the agreed cutoff date.