IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
BENJAMIN OPPONG - (Plaintiff)
PACIFIC INTERNATIONAL LINES, BLUE FUNNEL GHANA LTD AND HULL BLYTH GHANA LTD -(Defendant)
DATE: 22ND JANUARY, 2018
SUIT NO: CM/TRPC /0015/16
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
On the 5th of May, 2017, the court granted in part an application for stay of execution of the judgment of the court delivered on the 22nd of March, 2017 pending the appeal filed by the 1st defendant/Judgment Debtor. The court stayed the execution of its judgment on condition that the Defendant/Judgment Debtor paid 70% of the judgment debt to the Registrar of the Court for same to be invested into an interest yielding account. By this application the Plaintiff/Judgment Creditor/Applicant seeks for an order for the court to vacate its order for stay of execution of the judgement debt on the grounds as set out in the affidavit that accompanied the application. Chancellor Oppong Kyekyeku Kohl, the lawful attorney for the Plaintiff, claim that the judgment of the court ordered the payment of interest calculated at the prevailing Commercial Bank lending rate and his checks shows that the lending rate of the Ghana Commercial Bank was 32%.
The Applicant further depose that with the Defendant/Respondent having made a payment of Gh¢836,990.84 on the 21st July, 2017 and by the use of 32% rate of calculation of the interest payable, the amount paid only represented 54% of the total judgment debt and not 70%. It is further contended that Defendant/Respondent needed to pay Ghc¢686,658.49 to make up for the 70% of the judgment debt by the use of 32% as the interest rate. The application has been resisted by the Defendants/Judgment Debtors/Respondents in an affidavit in opposition deposed to by Juliet Longdon Sowah. She claim that the interest rate used in the payment of the monies into court was 23.5% as same was the commercial bank interest as at 22nd of March, 2017 set by the Bank of Ghana.
Defendants further challenged the calculation of the judgment debt as in her view the period of calculation should have been from 28th March, 2004 to 3rd May, 2017, the date in which the judgment was stayed. There is also the challenge in respect of the cost awarded that a computation of the total cost awarded do not add up to Gh¢4,400.00. In my judgement delivered on the 22nd of March, 2017, I stated at page 16 as follows:
“I find all the defendants jointly and severally liable for the claim of Gh¢280,000.00 being the cost of the cargo that defendants unlawfully discharged at Tema instead of Takoradi. Plaintiff is also entitled to interest on the said amount at the commercial bank lending rate from 2004 when the goods arrived till final date of payment”.
It is this order for the payment of interest at the commercial bank rate lending rate that has ignited this application by the Plaintiff/Judgment Creditor/Applicant. It appears that the Applicant has misunderstood the payment of interest at the commercial bank lending rate to be the payment of interest at the Ghana Commercial Bank lending rate. And this is borne by Ex ‘B1’ where in a letter to the Ghana Commercial bank requesting for their lending rate of interest, the said Bank quoted 32%. As a matter of fact commercial bank lending rate does not refer to Ghana Commercial Bank lending rate and to base the calculation of interest on the lending rate of Ghana Commercial bank is erroneous.
The phrase “commercial bank lending rate” refers no more than usually the average lending rate among commercial banks in Ghana. Commercial Bank is a generic name referring to banks that are basically into commerce.
The basis of an order for the payment of interest on commercial bank lending rate is rooted under Order 1 of the Courts (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I 52). Rule 1 states as follows:
“If the court in a civil cause or matter decides to make an order for the payment of interest on a sum of money due to a party in the action, that interest shall be calculated
(a) At the bank rate prevailing at the time the order is made, and
(b) At simple interest rate
But where an enactment, instrument or agreement between the parties specifies a rate of interest which is to be calculated in a particular manner the court shall award that rate of interest calculated in that manner”.
I am satisfied that the commercial bank lending rate at the time the payment was effected was the 23.5% used by the Defendants/Judgment Debtors. I am not unaware that the bank of Ghana’s lending rate for the commercial banks is the minimum set and the banks usually add a margin. Nonetheless, the C. I. 52 itself provides a mechanism for the resolution of a dispute regarding the correct interest rate exigible under Rule 4(1) that:
“Where there is doubt as to the prevailing bank rate the 91 days treasury bill rate as determined by the Bank of Ghana shall be the prevailing bank rate”.
As indicated by the Respondents per Ex DK2 that the prevailing 91 days treasury bill rate was 17.2108% which was even far lower than the interest computation of 23.5% used in the payment of the monies into court. I am therefore again satisfied that the Judgment Debtors failure to use 32% as the interest rate has not sinned against interest rate exigible or the order for the payment of interest contained in my judgment. Regarding when the interest rate was to be calculated up to, I think the court having held in abeyance the execution of the judgment debt and ordering the payment of 70% into court, the calculation of any interest ought to be to the date the judgment was stayed and not up to the date of payment as contained in the judgment.
If the payment of interest continued as stated in the judgment even after the date of the stay of execution, the net effect would be to render the order for stay ineffective. And in terms of calculation, the interest rate existing at the time the judgment was pronounced is the correct interest applicable and not the one at the date of payment.
This also has statutory backing under Rule 4(1) of C.I. 52 which states as follows:
“In these Rules, statutory rate of interest is the bank rate prevailing at the time the judgment or order is made by the court”.
The Judgment Debtors having complied with the provisions of C.I 52 by the payment of an amount GH¢836,990.84 as 70% of the judgment debt pending the determination of their appeal does not constitute a breach of the conditions under which the court stayed its judgment. And on that score I find no merit in this application and same is dismissed.
I make no order as to cost.