Tamale implement factory ltd. vrs Customs, excise & preventive service (HI/159/2004.) [2004] GHACA 27 (10 December 2004);
IN THE SUPERIOR COURT OF JUDICATURE,
IN THE COURT OF APPEAL
ACCRA -
CIVIL APPEAL
NO. HI/159/2004.
10TH DECEMBER, 2004.
CORAM - ARYEETEY, JA
QUAYE, JA
ANIN-YEBOAH, JA
TAMALE IMPLEMENT FACTORY LTD. … PLT/RESPTS
V E R S U S
CUSTOMS, EXCISE & PREVENTIVE SERVICE … DEFTS/APPLTS
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J U D G M E N T
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G.M. QUAYE, JA - In the early part of the year 1999, the plaintiff [herein respondents] placed an order for the importation into Ghana from Germany, of itemised raw materials for conversion into farming implements. The said raw materials comprised:
4 bundles of mild steel flat bars with gross weight of 10.052 kg
5 bundles of cold rolled steel sheets with gross weight of 9.900 kg
5 bundles of hot rolled steel sheets with gross weight of 12.425 kg
2 bundles of galvanized steel sheets with gross weight of 3.975 kg and
1 bundle of galvanized welded pipes with gross weight of 2.720 kg.
The total cost of the imported raw materials was quoted in the United States dollars to be $26,085.96 see Exhibit A and Exhibit B, the bill of lading and Commercial Invoice respectively. Evidence was led to show that the ship carrying the raw materials arrived at the Tema Port in Ghana on 19th April 1999. On that same date the importers, the respondents in this case, applied through the Ministry of Food and Agriculture for a waiver of payment of duty on the said raw materials since they were meant for the production of animal traction equipment. This letter of application was tendered into evidence in the trial court as exhibit C. In furtherance of this application a letter was issued from the Agriculture Engineering Services Department to the Sector Minister recommending favourable response to the application.
Even though no letter was exhibited as emanating from the Minister of Food and Agriculture in support of the respondents’ application for exemption from payment of duty on the imported raw materials, subsequent developments undisputably suggest that the Minister had communicated with the appellants herein with regard to that subject matter. In the event the appellants, by the Assistant Commissioner of Custom purportedly acting for the Commissioner of C.E.P.S. granted the sought for exemption by his letter dated 7th June 1999. This letter, (Exhibit E) which was addressed to the Assistant Commissioner C.E.P.S Tema, and according to the oral evidence of the D.W.1, copied to the applicant as well as the Deputy Commissioner, Research, Monitoring and Planning. It may be mentioned cursorily that from the face of exhibit E it appears that apart from the applicant for waiver, and the principal addressee, the letter of approval was authored by an officer of CEPS and copied to officers all stationed at the headquarters of the appellants. Exhibit E granted approval to the respondents to clear the imported items free of duty. The letter of approval ended with an information that the Company, ie. the respondents in this appeal were, by a copy of the said letter, being informed of the approval accordingly. In order to effectuate this information a copy of exhibit E was purportedly sent, given or provided to “The General Manager, Tamale Implement Factory Ltd.Tamale.” According to the respondents, exhibit E was faxed to them by their agent “Olmann Export/Import Company” who were based in Accra, on 9th September 1999. On the same day the respondents instructed their said agents to clear the imported raw materials through custom. The process was accordingly initiated and while the agents were at it, their progress grounded to a halt when they came to the realisation that the goods were, after all, not available for clearing as they had been sold at a public auction by the appellants on 20th October 1999. It was natural for the respondents to become confused and wonder as to what might have gone wrong. In their bid to unravel the circumstances, the respondents wrote three letters at intervals to try to elicit answers or explanation from the appellants concerning the sale of the imported raw materials. The first of the three letters was dated 8th November 1999.
The failure or refusal of the appellants to respond to this inquiry occasioned the sending of two follow-up letters of 6th January 2000 and 21st March 2000 respectively from the respondents to the appellants concerning the same subject of enquiry.
The appellants eventually responded by a letter dated 27th June 2000, exhibit F. In the said exhibit F, the appellants sought to justify their action upon the premise, inter alia, that “at the time of sale by Public Auction, the goods had neither been entered nor had title to any exemption from taxes been established.” Since the said letter contains the basis for the appellants’ action, I deem it worthwhile to reproduce it in full. It states,
“RE AUCTIONING OF RAW MATERIAL CONSIGNMENT
AT TEMA HARBOUR.
This has reference to your Petition for the restoration of auctioned
goods dated 21st March, 2000.
- The consignment, vide Bill of Lading No. CLL 3000 of 25th
March, 1999 was discharged at the Port of Tema per the vessel
M.V. Ocean King on 20th April, 1999.
- The goods in question had remained unentered and uncleared in
the port and accordingly published and gazetted under a “Notice
of Date of Overtime Goods” – Port of Tema in the Ghana Commercial
and Industrial Bulletin No. 23 dated, Friday, 20th August 1999.
- The consignment was subsequently sold by Public Auction on 20th
October, 1999 in accordance with the provisions of Sections 116 and
117 of the Customs, Excise and Preventive Service (Management) Law – PNDC Law 330 of 1993.
- At the time of sale by Public Auction, the goods had neither been
entered nor had title to any exemption from taxes been established.
- The goods have been lawfully disposed of as far back as 20th October,
1999 – six [6] clear months after the arrival in Ghana.
- With regard to the plea for the retrieval of the goods, it is needless
to state that the goods cannot be lawfully retrieved, since a legal sale
had already been completed.
- Please take note and be informed.”
It is beyond doubt that the above quoted letter, exhibit F formally conveyed to the respondents what appeared to be the reality of the position regarding the raw materials that they had imported since April 1999. The respondents therefore found occasion to approach the courts for redress. After evidence had been led in the trial court, the presiding judge upheld the claim of the plaintiffs/respondents and accordingly entered judgment in their favour for the equivalent in cedis of US$26,085.96 which sum was to attract interest at the rate exigible at the banks from 20th October 1999 till the date of the judgment. In addition costs of ¢5,000,000.00 was awarded. It is against this judgment and orders that this appeal was filed by the losing defendants seeking a reversal of the whole of the said judgment of the court below, and the vacation of the orders made against them.
Six preliminary grounds of appeal were filed, and to these, three additional grounds of appeal were subsequently filed. The grounds of appeal are:
- The judgment was against the weight of evidence.
- The learned judge erred in law by failing to consider the legal
status of the goods when they overstayed the statutory period allowed at
the port of importation.
- The learned judge erred in law in failing to consider the legal effect of the
Publication in the Commercial and Industrial Bulletin and the national dailies of the intended auction of the said consignment of goods when the goods had overstayed at the port.
- The learned judge erred in law in taking the view that when CEPS accepts to
waive duties and taxes the importer becomes absolved from compliance
with other requirements of entry and clearance as required under Customs
laws and regulations.
- The learned judge erred in law in not considering the import of Section
308(d) of CEPS (Management) Law, PNDCL 330 which shifts the onus
of proof in customs cases.
- the learned judge erred in law in awarding interest at the prevailing bank rate
when indeed the endorsement on the Writ of Summons was completely silent about the award of interest.
The additional grounds of appeal are:-
- That the learned trial judge erred in law in finding as a fact or coming
to the conclusion that the plaintiff company and their agents were
indolent in not taking steps to clear their goods from the Port in time
before the auction even after actual receipt of the exemption letter, and
yet at the same time holding the defendant liable for going ahead to auction
the said goods after publication.
- That the learned trial judge erred in law in holding the view that the
publication of the auction in the Commercial and Industrial Bulletin
was wrongful and that the “processes following are all null and void…..”
when indeed the said publication was done under statutory authority.
- That the learned trial judge erred in law in not considering the statutory
requirement that claims by importers for payments of goods sold by
auction ought to be made within 180 days when there was no evidence
led by plaintiff/respondent that they ever applied or if they did, whether
they so did within time.”
The appellants, through their counsel, Mr. Yankson argues in respect of ground
(ii) of appeal that the practices and procedures in the entry and clearance of imported goods are laid down in customs laws, rules and regulations which are contained in statutes. These include Customs Excise and Preventive Services (Management) Law of 1993 (PNDCL 330); Customs Regulations of 1976 (L1. 1060); and Departmental Code of Instructions Vol. 1I PNDCL 330 inter alia, deals with the period within which imported goods which arrive at the ports are to be entered and cleared and also sets down the consequences for breach of the said provisions. Counsel refers to Sections 108, 115, 116 and 117 of PNDCL 330. The cumulative effect of these sections is that as soon as imported goods are unloaded from the carrier vessel, they should be warehoused unless the importer sooner enters and clears the goods. Section 116 of PNDCL 330 specifically imposes time limitation on an importer to clear the goods within four days of discharge from the vessel at the pain of the goods being sent into a State warehouse. The effect of Section 117 is that where any goods which have neither been entered nor cleared from the port are kept in a State warehouse for a period upwards of fourteen days, those goods, if they are perishable must be sold immediately at a public auction.
If the goods are not of a perishable nature, then in that case, the procedure for their disposal is more elaborate. Notice of sale of such goods should be published in the gazette or in the national newspapers and sale by auction will not take place until fourteen days have elapsed following the publication of the notice.
Mr. Yankson contends that goods that are published for auctioning assume the status of overstayed goods, and they become legally forfeited to the State and are treated in strict compliance with Section 117 of PNDCL 330. Such goods, Mr. Yankson argues, become the property of the state and therefore the title of the original importer, if any, becomes subsumed or subordinated to that of the State which is superior within the context. When the whole circumstance of this appeal is looked at with the eyes of Mr. Yankson, that the goods become state owned, then the state cannot be faulted for auctioning or in any event disposing of goods owned by it in a manner that accords with law and procedure.
The respondents on the other hand do not feel enthused by the legal views expressed by the appellants on this ground of appeal. While agreeing with the interpretation placed on Section 116(1) of PNDCL 330, the respondents’ counsel, Mr. Kuenyehia re-emphasises the time limitation of four days allowed importers to clear their imported item from the customs area and maintains that after the materials in question arrived at the port on 30th April 1999 the respondents applied to the Ministry of Food and Agriculture for exemption from payment of taxes. The letter granting the exemption, exhibit E (supra) was not written until 7th June 1999. I should at this stage pause to correct an innocuous misrepresentation of the respondents regarding the time of arrival in Tema of the subject goods. Evidence is overwhelming that they arrived on 19th April 1999 and not 30th April 1999 as stated by counsel for the respondents. With this correction made, Mr. Kuenyehia argues that the defendants/appellants granted the exemption regardless of the fact that the said goods had remained uncleared at the Port of Tema for a period more than the stipulated four (4) days. Counsel carries the issue further when he pointedly refers to the practice of the appellants’ outfit that letters of exemption become operative only when the importer receives the letter of exemption. Indeed a look at the performance of DW1, a witness of the appellants, at the trial court will vindicate this assertion. To a question put during cross examination that:
Q: Exhibit E will become operative when plaintiff receives if? The witness merely answered unequivocally and in the affirmative. He simply said “Yes.” Furthermore, the letter of exemption, exhibit E, although written on 7th June 1999 actually reached and was received by the respondents on 9th September 1999. To put meaning and effect to the practices within the appellants’ outfit that exemption letters become operative only upon receipt by the importer, would therefore conclude the matter that exhibit E became effective and enforceable from 9th September 1999, many months after the raw materials imported by the respondents had arrived in the Tema Port on 9th April 1999.
The above arguments on both sides are illuminating and make very interesting reading. Assuming there were no waiver of payment of duty in favour of the respondents and yet the goods were not cleared within the time allowed, then the law and procedure as above indicated, more particularly, Section 116 of PNDCL 330 would apply with full force. The other scenario where the rules and procedures for warehousing, publication for possible auctioning and all the incidents attending the same could be invoked, is where exemption from payment of duty and/or taxes was given within four days after the imported goods had been unloaded from the ship. The circumstances attaching to the raw materials imported into the country by the respondents which arrived at the Tema Port on 19th April however are distinguishable and render a sweeping invocation of the sections of PNDCL 330 that regulate entry and clearing of goods not according to justice. In this particular case, I agree with the submission of counsel for the respondents that the grant of exemption from payment of duty on the goods, as well as the time it took to make the grant and communicate the fact of that concession to the respondents defeat any attempt to invoke the provisions. This court should consider the status of the goods before and up till 7th June 1999 and again up till 9th September 1999. Clearly the goods had overstayed their welcome within the customs area. That condition and status was however not only condoned in, but also effectively waived by the subsequent grant of exemption from payment of duty. It means therefore that the grant of exemption had restored the imported raw materials to a new lease of life, and by implication, set aside the effect of the publication in the gazette.
At the time that notice of auction was published in the gazette in August 1999, these goods had not attained the status of overstayed goods. By virtue of the grant of exemption, those items had not become state property. The publication of the notice and the subsequent sale of the goods based upon that publication were not only irregular, but also null and void. I will venture further and say that from a careful look at the relevant provisions, only goods that had neither been entered nor exempted from duty payment are liable or qualified to be published and auctioned.
At the time of the publication on 20th August 1999, the respondents’ raw materials had been exempted from payment of duty simpliciter. I will accordingly dismiss this ground of appeal.
The second ground of appeal argued by counsel for the appellants is that the learned trial judge erred in law in taking the view that when the Custom Excise and Preventive Service accepts to waive duties and taxes the importer becomes absolved from compliance with other requirements of entry and clearance as required under Customs Laws and regulations. After considering the points raised by counsel in support of this contention, one thing which strikes me is the need to determine what the state of the imported goods was, while an application for waiver of duties and taxes was pending. It is my respectful understanding that contrary to the view urged upon us by counsel for the appellant, the pendency of the application operated more or less as a stay of the process of clearing the goods. Any attempt by the importer to change the character of the goods might be prejudicial. The goods, while the application was pending remained at the sufferance of the Ministry of Food and Agriculture, and the Customs, Excise and Preventive Service. In the light of this, the importer could proceed to clear them with or without payment of duty only after the CEPS had pronounced on them. I reject the contention which suggested that the importer could deal with the goods while the application was pending. This ground of appeal too fails. It is therefore dismissed.
In support of appeal ground (iii) and additional ground (b) Counsel for the appellant submitted that publication in the Commercial and Industrial Bulletin as well as in the national newspapers is notice to the whole world including the plaintiffs as importers. Needless to say that this ground of appeal would not deserve any detailed analysis in view of the earlier stand and analysis given to the status of the goods before they were auctioned. I have notwithstanding the above preface decided to touch on the standard of publication as made in the Gazette and the newspapers. The case of TIFFANY PUBLICATIONS VRS. DEWING, D.C. Md 50 2d 911 at 914 sheds a great light on what in law constitutes publication in the following statement.
“To make public, make known to people in general; to bring
before public, to exhibit, display, disclose, reveal… The act
of publishing anything; offering it to public notice, or rendering
it accessible to public scrutiny. An advising of the public, making
known of something to them for a purpose. It implies the means of
conveying knowledge or notice.” (See also page 1127 of Black Law
Dictionary 6th Edition.
In the instant appeal I agree with the trial judge’s conclusion that the publication of notice of auction sale in the two leading local newspapers, the Daily Graphic and the Ghanaian Times spanning 13th – 15th October 1999 fell short of the requirements as stated in the TIFFANY PUBLICATIONS case (Supra).
Neither in any of the said newspapers were the goods or items to be auctioned clearly identified nor mentioned. No particulars whatsoever were given. If indeed the purpose of the publication was to inform the public that the respondents’ imported items were to be sold, then the appellants woefully failed to meet the required standard. All that the publications said was: “CUSTOMS, EXCISE AND PREVENTIVE SERVICE – AUCTION SALE OF GENERAL GOODS.
The Customs, Excise and Preventive Service wishes to inform the general public that there will be auction sale of general goods at the State Warehouse, Tema commencing 18th October, 1999. Sales shall start at 10.00 a.m. each day. The general public is invited.
Commissioner.”
Respectfully, the appellant has failed to appreciably demonstrate how this rather vague information would impact on anyone including the respondents that their imported raw materials were on the line for auctioning. The information, vague as it was, could mean anything or nothing at all. Were the general goods cars, brooms, fish, cattle or gold? I see no basis how counsel for the appellants can defend the said publications as referable to the respondents goods.
The notice was most unsatisfactory and meaningless as between the respondents and the appellants regarding the imported raw materials in so far as it did not meet the test of due process which requires that, in any case where uncleared and unentered goods were to be auctioned, notice must be given that is reasonably calculated to apprise an interested party of the proceedings and to afford him an opportunity to present his case.
The next ground of appeal argued was that the trial Judge erred in law in finding as a fact or coming to the conclusion that the plaintiff company and their agents were indolent in not taking steps to clear their goods from the Port in time before the auction even after actual receipt of the exemption letter, and yet at the same time holding the defendant liable for going ahead to auction the said goods after publication. Counsel argued that the liability of the appellant is governed by statute and in this case it is not open to the respondents to plead contributory negligence. Counsel particularly relies on Section 334 of PNDCL 330 which sets out the liability of Government as follows:
“No action shall be brought against the Government or any of its
officers:
(a) for any loss or damage sustained by any goods while in a warehouse
or customs area or in the course of being received into or delivered
from there;
- for any loss or damage sustained by a warehouse or customs area or any
of their contents or
- for any wrong or improper delivery from warehouse or customs area,
except where the loss or damage or wrong or improper delivery occurs
as the result of the wilful act or negligence of Government or of an
officer.”
Counsel for the appellants, after analysing the above quoted Section posed a series of questions all of which was calculated to deny any culpability on the part of the appellants who had acted according to law by publishing due notice and auctioning the goods.
At the risk of being accused of repetition, I find it necessary to re-state the evidence led in the trial court. The respondents successfully established that on 7th June 1999 they were granted exemption from payment of duty in respect of their goods which had been waiting in the customs area of the Tema Port since 19th April 1999. This fact was communicated to the respondents by fax on 9th September of the same year. They immediately instructed their agents Olmann Export/Import Company to clear the said goods. The agents of the respondents realised however that there were no goods to clear since the appellants had, on 20th August 1999 advertised them in the Commercial and Industrial Bulletin, and again between 13th and 15th September 1999, in the Daily Graphic and the Ghanaian Times for sale by public auction. The appellants, when put to it, proffered that at the time of sale the goods had neither been entered nor been exempted from tax. Evidence at the trial however established the converse, that in fact the goods were tax exempt at the time they were auctioned. It is my well considered view that for the appellants to successfully claim that they acted according to law, they had to lead evidence to show that in fact all that they did was according to law. The facts that emerged however showed that their notices in the Commercial and Industiral bulletin, and the subsequent notices on the local newspapers were premature and therefore contrary to the very provisions of PNDCL 330 which they so desperately cling onto. The evidence led fell short of placing before the court the time when respondents’
Agents began the process of clearing the goods. It is essential, in order to fix the respondents with tardiness, to show for instance, that they did not begin to clear the goods shortly after the letter of exemption, exhibit E, had been received by them on 9th September 1999. The record of proceedings furthermore, does not show at what stage in their efforts to clear the goods that the respondents, acting through their agents, found out for a fact that the goods had been sold at a public auction. Again, no indication was given in the trial court to show the length of time it normally took for goods of the nature as those in issue herein to be cleared through custom or at what stage in their process of clearing that the respondents were confronted with the fait accompli. Until the answers to these salient questions are provided, it does appear to me that a conclusion that the respondents were tardy in regard to the goods, would be nothing but hasty and not supported by evidence.
My short comment on the attempt to come under Section 334 of PNDCL 330 is by way of reference to the decision in GHANA PORT AND HARBOURS AUTHORITY VRS. ISSOUFOU [1993-94] 1 GLR 24 at 43-45. In that case the appellants sought to rely on a provision of law analogous to Section 334 of PNDCL 330. The issue in the cited case turned on Section 84 of Ghana Ports and Harbours Authority Law 1986 [PNDCL 160] wherein it was provided.
“84 (1) Subject to the provisions of this Law or any contract,
the Authority shall not be liable for the loss, mis-
delivery or detention of, or damage to, or deterioration of, goods –
- delivered to, or in the custody of, the Authority otherwise than
for the purpose of carriage;
(b) accepted by the Authority for carriage, where the loss, misdelivery,
detention or damage occurs otherwise than when the goods are in
transit; except where the loss, misdelivery, detention or damage is
caused by want of reasonable foresight and care on the part of the
Authority or any employee of the Authority.”
Without doubt both Section 84 of PNDCL 160 and Section 334 of PNDCL 330 are provisions of disclaimer of liability of Government, its agencies or officials. In the case under reference the defendant’s counsel submitted, even as counsel for the appellants in this appeal has done, that the appellants were expressly exempt from liability for loss, misdelivery etc.of goods in the custody of the appellants, except where the loss etc. was caused by want of reasonable foresight and care on the part of the appellants or any of their employees. Aikins JSC stated “I do not think the portion of Section 84(1) of PNDCL 160 emphasised can rightly be interpreted simply to connote negligence on the part of the Authority when the goods are deposited in its warehouse. My understanding of this provision is that where there is evidence to prove that the loss of the goods was caused by want of reasonable foresight and care on the part of the Authority, or an employee of the Authority, the Authority is liable.” The learned Judge continued at page 46 of the report that “Be that as it may, since there is evidence that the goods were deposited in the warehouse of the Ghana Ports Authority, the Authority now merged with the Ghana Cargo Handling Co. Ltd. cannot escape liability so is the composite Authority ie. the GPHA.” The liability of the appellants in the instant appeal is informed by their carelessness, negligence or other, in not conclusively establishing the real status of the respondents’ imported raw materials and merely proceeding upon an assumption that the goods were not exempt from duty, and under that mistaken assumption went ahead and auctioned them. Their liability under the law is conclusive and since I have earlier on in this judgment failed to attach any tardiness or indolence to the respondents, this ground of appeal fails.
The appellants next ground of appeal questions the failure by the respondents to make claims for payment of goods sold by auction within 180 days or six months, as provided under Section 117(3) of PNDCL 330. The Section reads.
117…(3) Where goods are sold under this Section, the proceeds shall
apply first in the discharge of duties, of the expenses of removal and sale
and of rent and charges due to Government and freight and other charges,
subject to Section 118(3) the balance, if any, shall be paid to the owner of
the goods if he applies for it within 180 days from the time of the sale, but
otherwise shall be paid into the consolidated fund.”
It has been submitted on behalf of the appellants that the evidence does not show that the respondents availed themselves of this provision. Counsel wonders why the respondents are pursuing a claim which is barred by time limitation. My difficulty again lies in determining when the 180 days should begin to run. Is it from the 20th October 1999 when the goods were sold without the knowledge of the respondents, or from 27th June 2000 when exhibit F was written by the appellants confirming the fact of sale of the goods and assigning reasons therefor. I would conclude that while the respondents were on enquiry as to the state of the goods, time would not begin to run against them. The respondents, soon as they learnt of the sale by auction of their goods wrote on 8th November 1999 to protest the action of the appellants. As it turned out the latter just ignored this letter and failed or refused to respond to that, as well as the second letter of inquiry from the respondents to the appellants on 6th January 2000. I am confident that if the appellants had reacted to the letters without undue delay the respondents would have gained the knowledge and information that they wanted, and would have so armed, been advised to know what line of action to take, not discounting a claim for the money within 180 days. Be that as it may, I agree with the view proffered by Mr. Kuenyehia that Section 117(3) of PNDCL 330 presupposes a situation where the handling of or dealing with the goods, in this case the auctioning of same, was lawful. To the extent therefore that the auctioning of the respondents’ goods was not justified by the relevant existing law, Section 117(3) of PNDCL 330 cannot avail the appellants.
The next ground of appeal argued by counsel for the appellants is that the trial Judge erred in awarding interest at the prevailing bank rate when indeed the endorsement of the Writ of Summons was completely silent about the award of interest. Counsel expressed the view that the court cannot give to a party what he has not asked for. He showed circumstances where interest might be awarded as including where the parties to a transaction specifically agreed that interest is payable, or it may be awarded by way of convention or custom or practices associated with such transaction or business; or where the payment of interest has been imposed by statute in which case the rate of interest is usually fixed, as is exemplified in the Courts (Award of Interest Instrument) L1 1295 of 1984. Mr. Yankson reiterated the firm conviction that the award or payment of interest is never automatic, more especially where, as in this appeal, the respondent did not endorse his action with a claim for interest. Counsel supported his stance with the decisions in ROYAL DUTCH AIRLINES [KLM] VRS. FARMEX LTD [1989-90] 2 GLR 623 and FOREWIN [GH] LTD. VRS. CUSTOM EXCISE AND PREVENTIVE SERVICE [unreported decision of the High Court, Accra of 29th July 2002 (suit No. Misc. 124/2000. In his reaction to the submissions of Mr. Yankson, Mr. Kuenyehia, of counsel for the respondents too relied on the Courts [Award of Interest] Instrument of 1984 [L1 1295] and submitted that upon reading the said Instrument, the only condition that should be satisfied before a court can apply it is a determination by the court that a certain sum is owed by the defendant to the plaintiff.
The courts [Award of Interest] Instrument forms the basis for the submissions of both counsel across the divide. It also forms the fulcrum of the decisions first, by the High Court, in HELOO VRS. TETTEY [1992] 2 GLR 112 and the two Supreme Court decisions [appellate and review] in ROYAL DUTCH AIRLINES [KLM] and ANOTHER VRS. FARMEX LTD.[1989-90] 2 GLR 623 and 682 respectively. L1. 1295 provides
“Where in any civil cause or matter the court makes an order
for the payment of interest on any sum due to the Plaintiff
other than any sum claimed by the Plaintiff under Order 13 r3
of the High Court [Civil Procedure] Rules, 1954 [LN 140 A] the
rate at which such interest shall be payable shall be the Bank rate
prevailing at the time the order was made by the Court, but no
compound interest shall be awarded.”
Admittedly, in this appeal the issue at hand turns upon whether in this case the trial judge was right in making an award of interest. In other words, was the award of interest justified by the facts and circumstances of this case. In the HELOO case [supra] Acquah J [as he then was] took pains to consider circumstances where the provisions of L1 1295 can be invoked to award or refuse to award interest. Holding (1) is as follows:-
“(1) the courts were empowered to award interest on a judgment
debt in one of two situations, either (a) where the party indorsed
his writ of summons with a claim for interest…….or (b) where the
court suo motu exercised its discretion under Section 98 of the Courts
Act, 1971 [Act 372]. The exercise of that discretionary power was
neither dependent on a claim for interest made by the Plaintiff nor
proof of any such interest. It was a discretion exercised entirely by
the court when it was of the view that on the facts the ends of justice
would be best served by awarding interest on the judgment debt.”
The second holding in the above case sets out the rationale for the award of interest. In part it says
“(2) The rationale for the award of interest on a judgment debt was
that if the judgment debtor had paid the money at the appropriate
commercial time, the creditor would have had the use of it…..”
Compare the above decision with the holding by the Supreme Court in the ROYAL DUTCH AIRLINES [KLM] case [supra] that –
“(5) The plaintiffs were entitled to interest which was normally awarded
to a plaintiff where the defendant’s breach of contract had deprived him
of the opportunity to work with the money to earn profit of income……
The Plaintiffs being businessmen, if the money had been paid to them
they would have been enabled to trade with it and would have ploughed
back their profits from the date of judgment in the High Court. As the
money had been kept since that date, it was only equitable that the
defendant be called upon to disgorge whatever profits that would have
accrued at the plaintiff’s expenses….” (emphasis mine)
Upon the two cited authorities above I am unable to align myself even remotely with the view canvassed by counsel for the appellants herein that: It is never automatic that in every liquidated claim [where action is usually commenced by a specially endorsed writ], interest is awarded especially where the plaintiff has chosen NOT to include same on his indorsement. Not even the case of ROYAL DUTCH AIRLINES [KLM] VRS. FARMEX LTD. [1989-90] 2 GLR 623 finally decided at the Supreme Court supports such a wide sweeping point of law.” A brief look at the evidence before us shows unequivocally that the trial judge came to the situation where he was squarely confronted by how best he could do justice between the parties where it was clear to him that the plaintiff deserved more than the award of the cost of importation of the raw materials in 1999. He was minded therefore, as he indeed stated, to fix the defendants with liability of paying for the goods at the current price at the time of judgment. He openly regretted the absence of any evidence to help him resolve the issue. In his exercise of discretion therefore he awarded interest at the current bank rate from 20th October 1999 ie. the date on which the goods were sold by auction. Following the rationnes decidendi of the two cases previously cited in respect of this ground of appeal one can safely say that it is obvious that with the high inflation and weak and insecure standing of our local currency, the cedi, there was bound to be a difference in the price of goods such as the items in issue herein between the date of their arrival in Ghana on 19th April 1999, and the date of the trial court judgment on 18th October 2001. This is legal and justifiable. As the trial judge lamented, the current price was not known as no evidence was led to that effect. His decision to award interest in those circumstances was a clear, faultless and judicious exercise of discretion.
A judge’s proper and judicious exercise of discretion is entitled to great deference
by an appellate court. It will not be reversed on appeal except on a showing by clear and convincing evidence that the judge’s broad discretion was abused to such an extent that his decision constitutes an arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice which no conscientious judge, acting intelligently, could honestly have reached and which effectively amounts to a miscarriage of justice, as was stated in the case DEPARTMENT OF REV. VRS. CMJ 432 Mass 69, 75-76 (200) and ARTCO INC. VRS. DIFRUSCIA, 5 Mass App Ct. 513 – 517 [1977]. I dare say that the proviso for a possible castigation and rejection of a judge for his exercise of discretion has not been met in this appeal. I hold that the award of interest under the circumstances that confronted the trial judge is a proper exercise of his discretion. I will dismiss the appeal on this ground also.
Obviously, there remains almost nothing new to urge in support of the last of the ground of appeal, that the judgment is against the weight of evidence led in the trial court. The import of that phrase is an allegation that the balance or preponderance of evidence; or the inclination of the greater amount of credible evidence, offered at the trial, to support one side of the issue rather than the other, was not properly appreciated and applied by the trial judge. “The concept of a trial decision applying the weight of evidence principle indicates clearly that the party having the burden of proof will be entitled to verdict, if, on weighing the evidence in their minds, the judge or jury shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.” BLACKS LAW DICTIONARY 6th Ed. Page 1594. The phrase “weight of evidence” is often interchanged with its sister concept “preponderance of evidence.” In simple terms it means “as standard of proof in civil cases, evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. See BRAND VRS. KINCHON, La App. 310 50 2d. 657 at 659.
In this appeal I am deeply satisfied that the appellants having failed to address, much less satisfy, their heavy appellate burden of demonstrating that the trial judge committed a clear abuse of discretion or misappreciation of the evidence adduced in the trial, this appeal provides no basis for disturbing the trial judge’s entry of judgment in favour of the respondents, and it is accordingly dismissed.
G.M. QUAYE
JUSTICE OF APPEAL
I agree. B.T. ARYEETEY
JUSTICE OF APPEAL
I also agree. ANIN YEBOAH
JUSTICE OF APPEAL
COUNSEL - KUENYEHIA FOR RESPONDENTS
L.F. YANKSON WITH DAVID ATTOH AND AMUZU FOR
APPELLANT.
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