IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2019
AFRICAN CATERING SERVICES - (Plaintiff)
THE ATTORNEY GENERAL - (Defendant)
DATE: 10TH JANUARY, 2019
SUIT NO: AC/288/2011
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
MR. ERIC KWAME ATIEKU FOR THE PLAINTIFF/RESPONDENT
MS. ENID MARFUL SAU WITH VICTORIA OSEI FOR THE DEFENDANT/ APPLICANT
(1) The issue for my consideration is in a narrow compass even though the suit itself has been pending since 2011. I hereby start my analysis with the background facts. The Plaintiff issued a Writ of Summons with a Statement of Claim on March 15, 2011 for certain reliefs endorsed on the Writ of Summons. This Court differently constituted on September 11, 2014 entered judgment in favour of the Plaintiff as follows:
“1. That the Plaintiff recover from the Defendant the sum of USD$297,000.00 or its Cedi equivalent being GH₵1,098,900.00 (at the rate of GH₵3.70 = 1 USD which is the forex bureau rate).
2. Interest on the GH₵1,098,900.00 at the prevailing commercial lending rate of 32% per annum from the 3rd October 2008 till the date of final payment being GH₵2,227,104.00 as at 4th February 2015.
3. Cost of GH₵20,000.00”.
(2) The Plaintiff consequently filed an ‘Amended Entry Judgment’ on February 17, 2015 and served same on the Defendant. The Defendant after being served with the Amended Entry of Judgment filed a Motion on Notice for Leave to set aside same on April 12, 2015 on the grounds that the “Plaintiff/Judgment Creditor/Respondent used the Ghana Cedi interest rate instead of the US Dollar interest rate on a transaction which was contracted in US Dollar and the judgment debt was stated in US Dollars”. The record shows that this Court differently constituted on April 30, 2015 referred the matter to the Head of Audit of the Judicial Service to “compute the exact amount that is due the Plaintiff per the judgment of this Court”. The Court also ordered both lawyers to co-operate with the Auditor.
(3) By a report dated 1st February 2016 and signed by Robert Nii Aryee Tackie for the Director of Audit it was concluded that “Based on the relevant information and explanations made available for the purpose of our work and subject to any other decision that may be made by the honourable court on issues raised in paragraph 9 above, it is our candid opinion that the Defendant is indebted to the Plaintiff to an aggregate amount of GH₵2,688,985.73 as at 31st January 2016”. The report was tendered in Court on June 15, 2016 by Mr. Robert Nii Aryee Tackie who was extensively cross-examined by both Counsel. On July 15, 2016 which was the third appearance for the cross-examination, both Counsel prayed the Court to reject the report. The Court then ordered Counsel to file written submission to outline the basis for the request and the matter was adjourned to July 22, 2016.
(4) On July 22, 2016 Mrs. Adumoah Lartey for the Attorney General was absent but Mr. Atieku for the Plaintiff informed the Court that the parties are in advanced talks to settle the matter. The Court further notes that many adjournments were sought by the parties and granted by the Court. Mr. Justice Dorgu also made certain orders in January 2018. Meanwhile, on June 18, 2018 Mr. Atieku informed the Court that further to the protest by both Counsel in regards to the work done by the Auditor, the issue about the interest has been redrawn by the parties and therefore the Court should order the Auditor to present an updated report. The Court granted the prayer and a new report dated June 28, 2018 was filed on June 29, 2018. Based on the new report, the Defendant/Applicant has brought the instant application praying for an order to adopt “the Computation of Interest prepared on behalf of the Applicant”.
The Instant Application:
(5) In moving the application learned Counsel for the Defendant/Applicant relied on all of depositions in the supporting affidavit filed on December 4, 2018 and the Supplementary Affidavit filed on December 10, 2018 and prayed the Court to grant the application. The basis for the application is that upon the study of the updated report by the Auditor of the Judicial Service, it was noticed that the “the principal amount had been converted from the United States Dollars to Ghana Cedis”. According to the Applicant “the Ministry of Finance’s policy is that interest on United States Dollar (USD) claims must be calculated using the prevailing USD lending rates and not the Cedi prevailing commercial interest rate as was done by the Court appointed Auditor”.
(6) According to the Applicant it accordingly requested the Internal Auditor of the Ministry of Finance to prepare a “document on the computation of the Outstanding Interest Rate based on the Principal Sum of Two Hundred and Ninety Seven Thousand United States Dollars ($297,000.00). It is also the case of the Applicant that the computation of interest was brought to the attention of the Respondent. It is also the case of the Applicant that the principal sum was paid into Court in January 2018 and the Plaintiff/Respondent has since received the principal sum. To the Applicant therefore the interest stopped to run in January 2018.
(7) Counsel submitted further submitted that apart from the Ministry Policy relied upon it is also the law that sums due in Dollars should not attract a Cedi interest rate. Counsel relied on the Supreme Court case of NATIONAL INVESTMENT BANK LTD. v. SILVER PEAK LTD (2003-2004) SCGLR 1008 for the submission. Finally, learned Counsel conceded that no order of the Court was obtained for the computation but submitted that since what has been done is in accordance with the law it should be accepted and adopted by the Court.
(8) The Plaintiff/Respondent is opposed to the application and Counsel relies on the affidavit in opposition filed December 11, 2018. In responding to the submission of Applicant’s Counsel Mr. Atieku relied entirely on the depositions in the affidavit filed and submitted that the Court did not appoint the Ministry of Finance to do anything and therefore the report should be ignored. Counsel submitted that the Court appointed an auditor and his report is before the Court and that is what should be considered. According to Mr. Atieku if the Applicant disagrees with the updated report the rules of Court permits the Defendant to come to Court to confront the Auditor with questions as to how he came to his conclusion but not to appoint their own expert, the Ministry of Finance. Finally, Mr. Atieku also submitted that the Court should reject the submission that the computation is based on the Ministry of Finance policy because that policy is not binding on the Court. Based on all of the above the Plaintiff prayed the Court to dismiss the application and reject the report prepared by the Ministry of Finance and adopt the updated report of the Court appointed auditor.
The Court’s Opinion & Analysis:
(9) I start my brief analysis by making reference to Order 28 Rules 4 and 5 of the High Court Civil Procedure Rules C.I. 47 which deals with a referee’s report and the powers of a referee.
The Rules provide as follows:
Report on Reference
(1) The report made by a referee following a reference under this rule shall be filed with the Court and notice of it shall be served on the parties to the reference.
(2) The referee may in the report submit any question arising from it to the Court for decision or make a special statement of facts from which the Court may draw such inferences as it considers fit.
(3) On receiving the referee's report the Court may
a) adopt the report in whole or in part;
b) vary the report;
c) require an explanation from the referee;
d) remit the whole or any part of the question or issue originally referred to the referee for further consideration by the referee or any other referee; or
e) decide the question or issue originally referred to the referee on the evidence taken before the referee, either with or without additional evidence.
(4) Notwithstanding subrule (3) where the report of a referee has been made in a cause or matter, which has been adjourned, any party may on the next hearing date apply orally to the Court to adopt the report or with leave of the Court give not less than four days' notice by motion, for the Court to vary the report or to remit the cause or matter or any part of it for re-hearing or further consideration to the same or any other referee.
(5) Where on a reference under this rule the Court orders that proceedings shall stand adjourned until the receipt of the referee's report, the order may contain directions with respect to the proceedings on the receipt of the report and the provisions of this rule shall have effect subject to any such directions.
(10) As I understand it, the Applicant is opposed to the adoption of the Court Auditor’s report because Counsel contends that upon review it found that the referee or auditor’s updated report has converted the principal amount from the United States Dollars to Ghana Cedis. To Learned Counsel based on the law because the principal sum was in the United Stated Dollars the conversion is wrong in law and the Ministry of Finance policy. Counsel’s submission is anchored on the fact that the Court’s appointed auditor got it wrong and therefore the Court should adopt the computation done by the Ministry of Finance.
(11) The Court is in agreement with the Applicant’s submission that indeed the law is that if the debt granted by the Court was in the United States Dollars, ordinarily the Silver Peak position as postulated by Date Bah JSC would prevail in the absence of agreement of the parties. The Court however notes that the Supreme Court has expanded that position in the case of UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861 where the Court speaking through Benin JSC stated among others that “Parties to a contract might choose a particular currency in order to guarantee to themselves the value of the contract sum; but liability to pay interest does not depend on what currency was used to denominate the contract sum. The type of currency used becomes relevant when the rate of interest is to be applied, for different rates of interest are applicable to transactions conducted in foreign as distinct from local currency”. The Court further clarified that where the parties have exercised the option and have intended to be bound by the local bank rates of interest the fact that the debt is in a foreign currency shall not matter. It indeed stated at page 886 of the report that “It is not the currency denominated in the contract which matters but the currency agreed to be used and actually used and accepted by the parties for the transaction that should determine what currency rate of interest could apply”.
Conclusion & Disposition:
(12) In this case, I am of the view that based on the law it is not enough to agree that because the report says the Dollar was converted to the Cedi the report should be rejected without more when the author of the report is not heard from by the Court. It is significant to mention that the Applicant does not deny the fact that both parties agreed to the terms of the interest and on June 18, 2018 prayed the Court to order that the report be redrawn by the auditor of the Judicial Service. I agree entirely with Mr. Atieku that if the Applicant disagrees with Auditor’s report he ought to be confronted through cross-examination so he can explain to the Court the reasons for his conclusion. The solution is not a party appointing its own “expert” in this case the Ministry of Finance. I am of the respectful view that the method adopted by the Applicant to have the Ministry of Finance to prepare its own report is not known to the rules of procedure and the law and same is self-serving and a self-help tactic.
(13) Indeed, if the Court were to accept the Applicant’s approach and argument, it would open the flood gates and give litigants and/or parties to a suit a field day to issue their own reports prepared by them and then foist same on the Court on the grounds that it is based on the law and as in this case the “policy of the Ministry of Finance” and then use same to impeach the credibility of a Court appointed referee’s work. The rules of Court provide how an expert and or a referee may be appointed and the scope of reference. In this case the Court has not appointed the Ministry of Finance to compute any figures in regards to the interest and therefore this Court declines the invitation to adopt the computation done by the Ministry of Finance under the direction of the Defendant/Applicant as the basis to calculate the interest due the Plaintiff in this case and thereby re-write the rules of Court regarding the work of a referee/auditor as provided for under Order 28 of C.I. 47.
(14) Having carefully considered the application and the arguments of counsel and the evidence as contained in the affidavits for and against the application, I have come to the conclusion that the application ought to be refused and it is hereby DISMISSED.
(15) That being said, the Court hereby orders that the Auditor of the Judicial Service who authored the updated report dated June 28, 2018 shall attend Court to tender same after which both Counsel shall have the right to cross-examine him on the method adopted and his conclusion as well. Accordingly Ordered.