i. Introduction

[1]The focus of this trial was on the claim by Donewell Life Company Limited, the Plaintiff, for payment of GH¢1,826,426.26 being the proceeds of an investment made with the Defendant, E.M. Capital Partners Limited together with interest at the rate of 32% from 24th January 2017 till the date of final payment. Principally, the Plaintiff accuses the Defendant of breach of contract.

[2] Other issues for trial were:

(i) whether or not an agreement was entered into between the parties that the Plaintiff’s investment be given to a third party as a loan during the investment period;

(ii) whether or not the parties agreed that the Plaintiff waives any action for the recovery of the Plaintiff’s investment until the Defendant recovers the amount from the third party; and

(iii) whether or not the Plaintiff is entitled to its reliefs as endorsed on its Writ of Summons and Statement of Claim.

ii. The Action

[3] Per a writ of summons sealed in this Registry on 30th day of January, 2017 the Plaintiff claims against the Defendant the following judicial reliefs set out here below:

The sum of GH¢1,826,426.26 being amount invested with the Defendant and an interest as at 23^rd January 2017.

Interest on the sum of GH¢1,826,426.26 at the rate of 32% from 24^th January, 2017 till date of final payment.

[4] After the service of the writ and its accompanying statement of claim on the Defendant, Appearance was entered by Messrs Mercer & Company Solicitors on February 15, 2017 and a statement of defence was filed on February 28, 2017 by the Defendant. At the close of pleadings the parties agreed on the afore-mentioned issues and the matter was set down for trial after the mandatory case management pursuant to The High Court (Civil Procedure) Rules, Amendment, C.I. 87.

iii. Brief facts of the case:

[5] According to the Plaintiff it charged the Defendant as an investment advisor, fund manager and broker, pursuant to an investment agreement to invest its money in a high yielding investment with the obvious desire to have high returns thereon. It is the case of the Plaintiff that upon the maturity of the investment, the Defendant has failed to pay back the investment with the agreed interest thereon because the Defendant contends that the third party company it invested the money with further to an agreement with the Plaintiff has not repaid same to the Defendant for onward payment to the Plaintiff.

[6] According to the Defendant it has not failed to repay the Plaintiff’s investment but is constrained because the third party has failed to comply with the terms of the agreement reached.

iv. The Case of the Parties:

Plaintiff’s Case:

[6] Giving evidence on oath in support of the claim for the Plaintiff, Ophelia Nana Ama Sarsah, the Acting Head of Finance with the Plaintiff Company testified that the Plaintiff made 12 months fixed income investment of GH¢1,000,000 with the Defendant on December 7, 2014 and same matured on December 7, 2015. According to the Plaintiff in addition to the interest the amount due was GH¢1,320,000. The Plaintiff’s witness testified that they wrote to the Defendant for redemption of the investment upon its maturity.

[7] Madam Sarsah further testified that the Defendant upon the receipt of the letter of demand urged the Plaintiff to rollover the investment for a further 91 days which would mature to GH¢1,425,310.68 and the Plaintiff agreed. The terms of the investment were stated in an investment advice slip dated January 25, 2016.

[8] It is the Plaintiff’s case that following its demand to redeem the investment with the accrued interest per a letter dated March 1, 2016, the Defendant failed to honour the redemption on the grounds that the third party it invested the Plaintiff’s money with had defaulted in repaying and so it was not possible for the Plaintiff to pay same back. In effect according to the Plaintiff’s witness the Defendant contended that the Plaintiff could not get its money back until the Defendant had fully recovered same from the third party through judicial proceedings.

[9] Madam Sarsah further testified and vehemently denied the Defendant’s assertion that there was an agreement that the Plaintiff would waive its right to judicial proceedings for the recovery of the money until the Defendant has recovered same from the third party. The Plaintiff’s witness said it was not its business to determine or to know where the Defendant as an investor invests the money placed with it. According to Madam Sarsah since a fixed deposit investment is a term investment, for a specified period at an agreed interest rate, at maturity the only logical agreement is for the financial institution to pay the principal invested together with the interest accrued.

[10] The Plaintiff’s witness tendered in support of her evidence, the following exhibits:

i) Exhibit A – a letter dated December 29, 2014 titled Re: Redemption of Fixed Income Investment;

ii) Exhibit B – Investment Advice Slip dated December 11, 2014;

iii) Exhibits C – Investment Advice Slip dated January 25, 2016;

iv) Exhibits D – A letter dated March 1, 2016 titled ‘Repayment Arrangement for Outstanding Liabilities’ by which the Plaintiff demanded the repayment of the investment; and

v) Exhibit E Series – being correspondence between the Plaintiff and the Securities and Exchange Commission (SEC) further to a report made to the SEC by the Plaintiff against the Defendant for non-payment of the investment.

[11] Under cross examination by the Defendant’s counsel, Madam Sarsah stood by her testimony that there was no collateral agreement between the parties in regards to a third party investment and also denied that the Plaintiff agreed not to institute legal action until the Defendant has recovered the investment.

[12] This is what the Plaintiff’s witness said when she was cross-examined as captured in the proceedings of Thursday May 17, 2018.

“Q: Were you involved in the negotiations that led to the Plaintiff’s first investment with the defendant in 2013

A: Not directly my Lord.

Q: But then you are aware that it was your Managing Director who directly negotiated with the defendant on the first investment in 2013

A: Yes my Lord.

Q: It was the same Managing Director who directly negotiated with the defendant of the subsequent investment in 2014, not so

A: Yes my Lord.

Q: So you are not in the position to tell the court what transpired at the negotiation in the 2014 investment

A: My lord, I am because whatever agreement was reached was documented on the investment advice that was given to me.

Q: Are you by that suggesting that the correspondence or the communications that transpired at the negotiations is what is found in the investment advice slip

A: Yes my Lord.

Q: I am suggesting to you that you were not there during the negotiations so you are not in the position to confirm to the court that all the terms that were agreed upon at the negotiation is what is found in the Investment Advice Slip

A: My lord, the investment slip indicates terms and conditions of the investment and whatever is written on it explains the terms and conditions of the particular investment……

Q: When your investment matured to GH¢1,320,000 you agreed with the Defendant to roll over the amount for another investment term, is that not the case?

A: Yes my Lord.

Q: And that amount at maturity would be GH¢1,425,310.68, is that not the case

A: Yes my Lord.

Q: Now, the basis of this rollover was because the Defendant had informed the Plaintiff that it had not recovered your investment from the placement house so it was best to rollover the amount, is that not the case

A: My lord, the investment advisers as the EM Capital Partners advised that the principal plus interest which matured in December 2015 should be rolled over for 91 days and it matured in March 2016. They promised to pay at maturity principal plus interest.

Q: Are you by this suggesting that the Defendant did not inform you that it was experiencing difficulty in recovering your investment from the Placement House.

A: My lord, based on the communication in December 2015 when the initial investment matured and per the agreement the Defendant indicated that by end of 91 days roll over our investment will be paid with principal plus interest….

Q: I am suggesting to you that your type of investment with the Defendant is a high risk high return investment

A: I disagree my Lord.

Q: I am further suggesting to you that in fact it was on the basis of the high risk high return portfolio that you had an understanding with the Defendant that you would not sue in the event that your investment matures because the Defendant is unable to repay same because the Placement House had not paid your investment to the Defendant.

A: My lord, there is no such agreement.

Q: I suggest to you that it was in fact because of this understanding that you agreed to roll over the amount

A: My Lord I disagree with the statement..”

The Plaintiff closed its case without calling further evidence.

The Defendant’s Case:

[13] Now, how then did the Defendant contest Plaintiff’s claim and to what extent did Defendant establish on the balance of probabilities that the Plaintiff is not entitled to its claim? The Defendant Company called Mr. Michael Ashong, the Chairman and Chief Executive Officer as its sole witness. He testified that he was directly involved in the negotiations that led to the Plaintiff’s investments in the Defendant’s Company.

[14] The pith and substance of the Defendant’s evidence is that indeed the Plaintiff invested in its Company. Mr. Ashong also said as a financial institution it recommended a variety of investment options to the Plaintiff some of which while yielding high returns also had higher risks involved. The Defendant’s witness testified that the Plaintiff agreed to a higher risk investment with returns of up to 32% for a period of 12 months. It is the Defendant’s case that the module of investment was that the Plaintiff’s investment would be with third parties at the agreed interest rate. According to Mr. Ashong “it was out of this interest that the Plaintiff was to earn its return on the investment and the Defendant was to earn it commission”.

[15] According to the Defendant the module of investment agreed to by the parties had higher financial returns but a higher risk as generally pertains with all investments. The Defendant witness said the Plaintiff was very much aware of the fact that there is a high risk of default and delay associated in recovering the investment with third parties hence the compensatory high returns.

[16] Given the high risk associated with the investment module agreed to with the Plaintiff, Mr. Ashong further testified that it was agreed that, the Plaintiff would waive any right of action for the recovery of its investment with the Defendant in the event of delay by the third party who the Defendant had invested the Plaintiff’s money or defaulted in the repayment of the money until the Defendant had evinced a clear intention not to pay after recovering the money from the third party investor. The Defendant’s witness said it invested the Plaintiff’s money with Ecosafe Ghana Limited through corporate bonds (an investment instrument) issued by the said Company but the said Company has delayed in paying the investment to the Defendant hence the delay.

[17] Mr. Ashong further testified that when initial investment matured in December 2015 “we recommended to the Plaintiff, who agreed that we roll over the principal together with the agreed interest for another 91 days period at the same time at the same rate and a maturity amount of GH¢ 1,425,310.68”. The Defendant tendered Exhibit “1”, being the Investment Slip dated 25^th January, 2016 to support the testimony.

[18] Mr. Ashong again told the Court that the basis of the Defendant’s recommendation for the roll-over was borne out of the difficulty in getting Ecosafe Ghana Limited to redeem the corporate bonds it invested with it. According to Mr. Ashong “this situation was communicated to the Plaintiff in a letter dated January 22, 2016”. A copy of the letter was tendered as Exhibit “2” at trial. The Defendant’s witness further testified that that given that it is on course to recover the Plaintiff’s money from the third party through judicial proceedings the Plaintiff should not be granted the reliefs it seeks in this action. The Defendant tendered as Exhibit “3”, a copy of an entry of judgment of filed against Ecosafe Ghana Limited and one Samuel Owusu as defendants.

[19] Further, the Defendant’s witness testified that its inability to repay the Plaintiff’s investment is due to challenges it has faced in executing the judgment it obtained against Ecosafe Ghana Limited, the third party investor it invested the Plaintiff’s money with. The witness tendered as Exhibit “4”, being a correspondence it had with the SEC after the Plaintiff lodged a complaint with it.

[20] Finally, Mr. Ashong told the Court as per the filed witness statement that “the Plaintiff who understood the risks associated with the manner of investment and has made the Defendant to understand that it would waive its right of legal proceedings for the recovery of its investment should not now claim the investment until the Defendant has obtained it from Ecosafe Ghana Limited”. Based on all of the above the Defendant prayed the Court to dismiss the Plaintiff’s claim as no other witness was called.

v. The Court’s Opinion & Analysis:

I start my analysis by posing the question what agreement was reached by the parties?

[21] As stated in her work, the learned author of “The Law of Contract in Ghana[1]” Christina Dowuona – Hammond has stated on ‘Ascertaining the Fact of Agreement’ at page 4 paragraph 1.3 of her book as follows:

“The concept of agreement is the basis or essence of every contract. A contract is essentially the outward manifestation of agreement between the parties with regard to a common objective. This manifestation of agreement may be made wholly or partly in writing, orally, by conduct or by a combination of all three. Thus one of the first inquiries in dealing with any contractual dispute is to determine whether or not there is an agreement between the parties at all”

[22] It is important to appreciate the factors that give birth to a contract between any two persons. The generally acceptable factors are privity of contract, the intention to create legal relations, offer and acceptance of the terms of a transaction, consideration given for the transaction, the capacity to enter into a contract, and the consensus on the terms of the transaction. The law is also that once there is definiteness of these terms and other factors, a contract exists. See the Supreme Court case of NTHC LIMITED v. ANTWI [2009] SCGLR 117 and the restatement of the aforementioned basic principles.

[23] Also from another Common Law jurisdiction, the Canadian case of USB SECURITIES CANADA INC. v. SANDS BROTHERS CANADA LTD., 2009 ONCA 328 (CanLII), 248 O.A.C. 146 notes at paras. 47, 88-89, that for a contract to exist, there must be a meeting of the minds, commonly known as consensus ad idem. The Court states the “test as to whether there has been a meeting of the minds is an objective one – and so would an objective, reasonable bystander conclude that, in all the circumstances, the parties intended to contract?” The Court further stated that the investigation into whether a reasonable observer would conclude the parties intended to contract extends to all the circumstances of the agreement including: words and conduct, future actions, representations by both parties, and reliance.

[24] I have started my analysis by speaking to the well-known concept of contract because of the defence put forward by the Defendant. To my mind, whilst the Defendant does not deny the fact that the Plaintiff invested with the Company for a term and also based on an agreed interest rate, it says as contracting parties there was a further agreement as to the type of investment to be engaged in. The Defendant says it was the reason why the rate agreed to was high. The Defendant further contends that the Plaintiff agreed to waive its rights of legal proceedings until the money invested with a third party investor is recovered. The Plaintiff vehemently denies the Defendant’s assertions on both grounds.

[25] Now what are the facts? The undisputed evidence is that the Plaintiff paid to the Defendant an amount of GH¢ 1,000.000 at an agreed rate of 32% for 12 months. At the maturity date the Plaintiff expected to receive GH¢ 1,320.000. In my respectful opinion, based on the evidence and in particular the exhibits tendered by the parties by way of the Investment Advice Slips, I find as a fact that after their negotiation, the Plaintiff paid out the money to the Defendant as an investor based on the terms reached. I also find as a fact that there was a contractual nexus between the Plaintiff and the Defendant and therefore I am satisfied based on the evidence that the nature of the legal relations between the Plaintiff and Defendant was contractual and their rights are also sustainable under the law of contract.

[26] Undoubtedly, the essence of cross-examination is to provide an opportunity for the cross-examiner to impeach the credibility of a witness where there are sufficient grounds to do so such as discredited evidence of previous testimony or where there is an available documentary or other evidence to impeach the qualification, experience expertise or position a witness has ascribed to himself or herself while testifying. In this case, respectfully, I am of the view that Counsel for the Defendant even though did a good job he failed to impeach the testimony of the Plaintiffs’ witness on the two main pillars of its defence.

[27] As stated above, the parties are ad idem in regards to the investment made by the Plaintiff. The thorny issue and the main contention of the Defendant is that, there was an agreement between the parties that the Plaintiff’s investment be given to a third party as a loan during the investment period and also whether the parties agreed that the Plaintiff waives any action for the recovery of the Plaintiff’s investment until the Defendant recovers the amount from the said third party?

[27] This exhibit “C” was written by the Defendant to the Plaintiffs on January 25, 2016 and it was after the Plaintiff had agreed to the 90 days rollover. It was signed by Evelyn Oye Asante (Executive Director) and J. Mike Ashong ( Chairman & CEO). In order for its full force and effects, I refer to the contents of the document titled “Investment Advice Slip” which read as follows:

“Principal Amount       GH¢ 1,320,000.00

Issuer                          EM Capital Partners Limited

Investor                        Donewell Life Company

Investment Type              FIXED INCOME

Tenor                                        91 days

Agreed Interest Rate               32.00%p.a

Effective Date                         December 8, 2015

Maturity Date                            March 8,2016

Expected Interest                     GH¢105,310.68             
Value Maturity                            GH¢1,425,310.68

We thank you for your valued patronage and look forward to a sustained and mutually beneficial relationship with your good self. The investment will be rolled over if we do not hear from you 24 hours before maturity.

“SHOULD YOU BREAK INVESTMENT BEFORE MATURIY, AN EARLY REDEMPTION CHARGE OF 50% ON INTEREST ACCRUED WOULD BE APPLIED. EARLY REDEMPTION IS SUBJECT TO AVAILABLITY OF FUNDS” For EM Capital Partners Limited”

Signed by Evelyn Oye Asante and J. Mike Ashong”.

[28] The Plaintiff did not sign its portion of Exhibit “C” but the Plaintiff authored Exhibit “D”, dated March 1, 2016 to demand repayment of the investment and provided account details and stated that “We count on your prompt action to our request and expect your transfer to our account by Wednesday, March 9, 2016”. The question that is begging for an answer is that, in the face of the contents of Exhibits “C” and “D” is the Defendant’s contention that another agreement was reached by the parties tenable?

[29] It has been held in the case BANK OF WEST AFRICA LTD. v ACKUN [1963] 1 GLR 176@181 that the party who asserts the positive carries the burden to lead evidence in proof of his claim or assertion. In this case I am of the respectful opinion that the Defendants failed to lead any evidence to prove that there was any collateral agreement that the Defendant invest the Plaintiff’s funds with a third party investor. No evidence was also led at trial to support the contention that the Plaintiff waived its right to judicial action against the Defendant until the Defendant recovered the funds from the third party.

[30] On that issue this is how Plaintiff’s Counsel confronted Mr. Ashong the Defendant’s witness as borne out from the answers given by the witness under cross-examination as captured below on June 12, 2018:

“Q: You have told this Court that the Plaintiff in this case and you the Defendant agreed that the Plaintiff’s principal sum be invested with the third party, is that correct?

A: That is so, what happened in the case of the Plaintiff and as happens with all our clients, we will give the client an array of investment possibilities which will range from treasury bills which are no risk and so attracts very low interest up to other investments including corporate bonds which though attracts very high interest also have a high level of risk. In this case, we did the same and that is what we do for all our clients including the Plaintiff. Indeed we are required to do that as investment advisors.

Q: I put it to you that the Plaintiff and you never entered into any such agreement to invest the money with any third party at all.

A: I disagree with you because the Plaintiff’s account was clearly marked, self-direct and signed and stamped by the Plaintiff.

Q: Again, I put it to you that you are not being truthful to this Court as you have not provided any evidence of your assertion to this Court.

A: The application form or know your client (KYC) form is made in duplicate, the company keeps a copy and the client has a copy, in this case, the Plaintiff has a copy.

Q: You have told this Court that the Plaintiff and the Defendant agreed that the Plaintiff will waive any legal proceedings for recovery of its investment unless the Defendant had evinced a clear intention not to pay the money to the Plaintiff, is that correct?

A: It is correct, I said so and this is based on trite knowledge in the Capital Market that investments unlike bank deposits carry risk hence the high return, that is why the client is informed from the onset. In the case of the Plaintiff, this particular investment which is the subject of this case was not the first investment that he made with us, EM Capital Partners Limited, he enjoyed the high returns as and when those investments matured and they were paid. The high returns go with a high risk. So that forms the basis of my assertion that the same risk anticipated when the high return was accepted by the Plaintiff is what has occurred but in this case, the risk is not a default, it is a delay in repayment and we caused our solicitors to write to inform them right from the beginning when the risk occurred”.

From the above discourse between learned counsel for the Plaintiff and the Defendant’s Chairman and CEO Mr. Ashong it is clear that according to the witness there was a documentary proof of the Defendant’s contention and defence. What should be noted however is that no such document was tendered at trial even though the assertion is one capable of positive proof and same cannot be said to have been proved when the needed evidence was not provided to the Court.

[31] Having considered the totality of the evidence both oral and documentary and reviewed the evidence taking into consideration my task which is to review and to assess whether or not the Defendant’s testimony is supported by the evidence on all this important issue which is the cornerstone of the Defendant’s defence, I am of the respectful view that there is no legal basis for the defence put up. Though the Defendant witness testified that there exist an application form or the KYC form by which the Plaintiff self-directed the type of investment to be undertaken for it, the Court did not have the benefit of seeing any such document.

[32] The old case of MAJOLAGBE v. LARBI [1959] GLR 190 @ 192 has long shown the path to follow and laid in pithy terms what a party in an action such as the one at bar must prove on the preponderance of probabilities in order to secure a favourable verdict in his favour. The Court of Appeal case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA (holding 3) is also instructive because as the Court stated “where a fact was capable of positive proof it was wrong to rely on assumptions”. The lack of any such documentary proof of the assertion in my view undermines the Defendant’s contention. Based on the evidence heard, I hold that no such document exist and therefore the Defendant’s contention is only a bald allegation and the Court rejects same.

[33] In my candid opinion, the defence the Defendant has put across in this case appears to be only the reasons behind its inability to pay back the investment made by the Plaintiff together with the interest agreed to and not because the Plaintiff is not entitled to its claim. Interestingly the Defendant has accused the Plaintiff of bad faith in bringing the action despite been aware of the steps taken to recover debts owed it by other debtors. Clearly, the Defendant is seeking refuge in the fact that it has obtained a judgment against Ecosafe Ghana Limited in its attempt to offer a legal defence to the action. In the opinion of the Court in the absence of any agreement between the parties as I have found, the Defendant’s contention is without any legal basis.

[34] The Supreme Court in the case of BARCLAYS BANK OF GHANA LIMITED v. SAKARI (1996-97) SCGLR 639, stated eloquently through Acquah JSC (as he then was) that the primary obligation of a defendant under a loan contract is the repayment of the loan because that is the obligation of the borrower to the lender and not what made it impossible for the loan to be paid. By parity of reasoning I am of the respectful view that the Defendant’s obligation as an Investment Company is to pay the Plaintiff as an investor the amount agreed upon as its return on investment upon the maturity at the end of the term. Whilst the Court can take judicial notice of the judgment the Defendant has obtained against Ecosafe Ghana Limited, that alone cannot be the reason to deny the Plaintiff of its claim in this action. The parties entered into a business agreement and therefore this court must not wittingly be an accomplice of the Defendant in its bid to abdicate or delay meeting its responsibilities in a business transaction.

[35] The Court therefore enters judgment in favour of the Plaintiff for its relief one against the Defendant but in the amount of GH¢ 1,425,310.68 which is the maturity amount on March 8, 2016 as per Exhibits “C” and “1” respectively and not the GH¢ 1,826,426.26 as endorsed on the Writ of Summons.

The Issue of Interest:

[36] On the issue of interest the Court is of the view that the Plaintiff is entitled to interest on the amount stated above. Admittedly, on the authorities, the rationale for the award of interest on a judgment debt is that if the judgment debtor had paid the money at the appropriate commercial time, it could have be beneficially leveraged by the creditor. Accordingly, the interest was really meant as compensation for what the Plaintiff had lost from the due date. See: HELOO v. TETTEY [1992] 2 GLR 112-129, AMARTEY v. SOCIAL SECURITY BANK LTD AND OTHERS v. ROBERTSON (CONSOLIDATED) [1987-88] 1 GLR 497-505 [C/A.

[37] The law regarding calculation of interest is governed by the Courts (Award of interest and Post Judgment Interest) Rules, 2005 (CI 52). Furthermore, the law settles the thorny issue regarding the period when interest is to be paid. In DA COSTA v. OFORI TRANSPORT [2007-2008] SCGLR 602, the Supreme Court held in accordance with C.I. 52 that the damages awarded are to bear interest at the prevailing bank rate from the date of the accrual of the cause of action. That case therefore emphasizes that interest is payable from the date of the cause of action and not from the date the writ was filed.

[38] The law on interest provides as follows:

Rule I - Order for payment of interest

1. 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

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. [Emphasis Mine].

[39] Based on the law therefore it is my holding that the Plaintiff is entitled to interest based on the 32% agreed from the date the amount stated above became due on March 8, 2016 until the date of judgment because that is the agreement reached by the parties. Contrary to the submission of Defendant’s Counsel, the parties did not have to agree again on the interest based on the law in so far as the amount due remained unpaid from the maturity date of March 8, 2016. It is the post judgment interest which shall be at the prevailing local commercial bank rate to the judgment debt until the date of final payment.

[40] It bears emphasizing that the law on interest has been articulated in judicial pronouncements in a number of cases from the Supreme Court. Referring to the statutory provision of C.I. 52, the Supreme Court, per Date-Bah JSC, in GHANA PORTS AND HARBOURTS AUTHORITY v NOVA COMPLEX LTD [2010] SCGLR 1 at pp. 10, 15-16 stated that:

“The statutory prejudgment interest rate applies between the date of accrual of the cause of action till the date of final judgment … The post-judgment interest rate then applies from that date till date of final payment by operation of law. … Rule 2(1) of CI 52 provides that ‘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’. This “statutory interest rate” is defined in Rule 4 as ‘the bank rate prevailing at the time the judgment or order is made by the court’.”

[41] Finally, on the issue of costs, the Court takes cognizance of the fact that the Plaintiff’s initial summary judgment application was vehemently resisted by the Defendant and the Court agreed with it. The Plaintiff’s Counsel in his submission says the Court should take that into consideration in awarding cost. To my mind, while that is a legitimate claim it is not the law. The Defendant is required to compensate the Plaintiff for its legitimate and reasonable expenses incurred in prosecuting the action based on Order 74 of C.I. 47 and on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262.

[42] With that in mind, I shall award the Plaintiff cost of GH¢10,000 even though the trial itself did not occupy a long time frame. I wish to state that I am not unmindful of the fact that litigation is expensive, but in my respectful opinion I have to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances of the case based on the law and specifically the factors set out under Order 74 of C.I. 47, rather than an amount fixed by actual costs/expenses incurred by the successful litigant, in this case the Plaintiff and/or award the cost as punishment of the Defendant.