Boakye V Kumah & Anor (C2/96/16) [2024] GHAHC 427 (19 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON THURSDAY THE 19TH DAY OF DECEMBER,2024BEFORE HERLADYSHIP HANNAH TAYLOR(MRS) J. SUIT NO: C2/96/16 KOFI SEFABOAKYE …PLAINTIFF/JUDGEMENT- ANITAHOTEL, EJISU CREDITOR/APPLICANT VRS. 1. MR. CHARLES KUMA …DEFENDANTS/JUDGEMENT- 2. VALUEPROPERTIES, OBUASI DEBTORS/RESPONDENTS OF AKAPORISU, OBUASI, ASHANTI _____________________________________________________ RULING _____________________________________________________ The applicant, the plaintiff/judgment creditor, prays for an order to correct an error contained in the order of the court dated 8th September, 2020 granted by the court differently constituted and also for a further order amending the amended entry of judgment. 1 The applicant’s prayer is set out on the facts deposed to in the supporting affidavit and same is summarized hereafter. The applicant states that after instituting an action for thefollowing reliefs perthe writ ofsummons; - (a) An order for the recovery of the sum of Two hundred and eighty-two thousand Ghana cedis (Gh¢282,000.00) representing the monies received by the defendants from the plaintiff with the purpose of selling a four (4) acre land described as site for Saw Limited situate at Ejisu a property of Furmado (Ghana) Ltd. where the defendant told plaintiff was being assigned to him or to his company (the 2nd Defendant) herein which property the defendants have not been able to deliver tothe plaintiff. (b) Interest onthe said bank ratefrom1stSeptember,2014, Judgment was entered for the plaintiff on all the reliefs sought on 21st February, 2017 and anentryofjudgementfiled. On 11th August, 2020, per the Exhibit KS1, an application to amend the entry of judgementearlier filed on4th June, 2019was granted on8th September,2020. However, on receipt of the order granted, an error was noted relative to the date the application was filed which ought to read 11th August, 2020. The order to be amended is disclosed asExhibit “KS2”. 2 Also, with the judgment debt not settled in full, the balance left to be paid will continue to attract interest until the final payment of the judgement debt. Therefore, a prayer is made to amend the entry of judgement by incorporating interest that had accrued on the judgement as per the Exhibit “KS3”. Learned counsel for the applicant in support of the prayer sought, relied on the case of Daniel Ofori v. Ecobank Limited and 2 ors, Civil Appeal No. J4/11/2016 and the case of Ghana Ports and Harbour Authority v. NovaComplex Ltd [2010] SCGLR10and 12. The application is vehemently opposed by the respondents as per the affidavit in opposition deposed to by the 1st defendant who is also the Managing Director of the 2nd defendant’scompany. He deposed that the plaintiff/judgement creditor/applicant failed to take advantage of the order granted in his favour as far back as 8th September, 2020 and cannot now purporttoapply forsame order. Further, he contested that the interest rate used for the calculation of interest and deposed that the applicant wants to take undue advantage of the judgement entered in his favour. On the interest rate the respondents contended that the calculation of interest on the principal amount is by simple interest and not compound interest therefore, there is no justification for the judgement debt of Gh¢282,000.00 to yield the interest indicated in the proposed amended entry of judgement within a period of less 3 than ten (10) years. He deposed that there would be the need to appoint an expert for thepurpose ofcalculating the actualinterest accruing. Furthermore, the applicant has auctioned 1st respondent’s guest house and he does not knowhowmuch was realized and howit went into the reductionofthe judgement debt. On the Exhibit “KS3”, learned counsel for the respondents pointed out that under the item(g), the sum ofGh¢418,800is shown asthe auctionsale receipts and how it affected thejudgement debt by way ofreducing same. Also, the sum of GH¢100,000.00 has been acknowledged as having been paid per the item “C” in the proposed amended entry of judgement meaning the sum of GH518,500.00 has been paid to satisfy the sum of GH282,000.00. This being the case, learned counsel queried how the Exhibit “KS3” will state the amount outstanding as GH¢503,727.00. Learned counsel for the respondents pointed out that under item “B” in Exhibit “KS3”, the interest rate used is 18%, under item “C” no rate is indicated and under item “F” the interest rate has jumped to 20% without any explanation. Counsel for the respondents pointed out that when the order for amendment was granted, the entry of judgement was not amended and the entry of judgement on record is the region of GH¢600,000.00. 4 The amount left to be paid is about GH¢100,000.00 which defendant is willing to pay to bringthe whole mattertoaclose. Considering the affidavit in opposition, the objection to the application is essentially against theaward ofinterestas presentedby theExhibit “KS3”. The law on the award of interest is statutorily regulated by the Court (Award of Interest and Post Judgement Interest) Rules, 2005 (CI52). Rules 1 – 4 which came into force on 26thJanuary, 2006provides; - Rule 1–Orderfor paymentofinterest. 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) atthe bank rateprevailing at the time theorderis 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 thecourt shall awardthe rateofinterest in thatmatter. Rule 2. 2(1) Subject to subrule (2) each judgment debt shall bear interest at the statutory rate fromthe date ofdeliveryofjudgement uptothe date offinalpayment. 5 4:InterpretationofStatutory Rate (1) In these rules statutory rate of interest is the bank rate prevailing at the time of judgementororderis made by the Court. (2) Where there is doubt as to the prevailing bank rate, the 91 days Treasury Bill rate asdetermined by theBank ofGhana shall be the prevailing bank rate”. In effect, a judgment debt attracting interest is not a subject for a contest. In the case of Daniel OforivEcobank supra, Dotse JSC,held; - “We wish to cation all persons who enter into business/loan and or financial transactions to be mindful of the provisions of Court (Award of Interest and Post Judgment Interest) Rules, 2005 (CI 25). Furthermore, we wish to remind all Courts that thereis some measure of discretion in the award of interests, andbefore a Courtdecides to award interest, all the prevailing circumstances of each case must be considered on themerits critically before thedecision is made” From the prayer sought, it is evident there is in existence an entry of judgement which was not amended upona grantof an orderto do so. Onamendment generally, Order16 rule 8 of the High Court [Civil Procedure] Rules, 2004 CI47 provides on failure to amend asfollows: - 8. Where the Court makes an order giving a party leave to amend a writ, pleading or document, then if that party does not amend the document in accordance with the 6 order before the expiration of the period specified for that purpose in the order or, if no period is so specified within 14 days after the order is made, the order shall cease to haveeffect but without prejudice tothepower oftheCourttoextend the period. From the facts of this case, without seeking an extension of the period to amend the entry of judgment, the plaintiff proceeded to go into execution. What this means is that the plaintiff had relied on the amended entry of judgement earlier filed to enforce the judgmententeredon21st February, 2017. This forms the defendants’ deposition that plaintiff failed to take advantage of the order granted in his favour as far back as 8th September, 2020 and0 cannot now purport to apply forsame order. Order 41 rule 7 of CI 47 provides for the preparation of an entry of judgement. On the nature of notice of entry of judgement Amegatcher JSC in the case of Ken Kwame Asamoah v. State Insurance Company [2022] 175 GMJ 269 held “Entry of judgement under the High Court Civil Procedures Rules, CI 47 is the first step in the processes towards the enforcement of the judgement of the court. It is usually prepared and filed by the judgement/creditor or his counsel and served personally on the losing party or judgementdebtor”. 7 Similarly, in the case of Duodo Amoo v. Nimako Akowuah [2012] 52 GMJ 27, the SupremeCourtspeaking throughAninYeboahJSC (ashe thenwas)stated as follows: - “In practice, judgement creditors seeking to levy execution file Entry of judgement and serve same on the judgment debtor as a prelude to execution. It is a formal notification to the judgement-debtor of the reliefs granted by the Court which the judgement creditormay seek toenforce”. The question is at the time the applicant proceeded to execute the judgement by fieri facias (fi:fa) as acknowledged by him thatthe sum of Gh¢418,000.00 was released tohim, what did he reasonably make the respondants to believe? Obviously, it is the content of thesubsisting amended entryofjudgment which was relied on. I have looked at the application filed by the applicant for the release of the money whichwas realized throughexecution by anauctionfiled on26thJanuary, 2024. Inthesupporting affidavit, the applicant deposed inthe paragraph 10asfollows: - 10. That I am advised by counsel and verily believe same to be true that I require an order of this Honourable court for the sum of GH¢418,5000.00 to be paid to me as part payment of the judgement debt due to me. I attach hereto a copy of the amended Entry ofjudgment filed by meas exhibit “KSB4”. 8 The Exhibit “KSB4” is an amended entry of judgement filed on 4th June, 2019 pursuant to order of the Court dated 22nd May, 2019 and the amount to be paid was GH¢612,515.00. With this amount presented as amount to be paid, and for which reason an execution has been mounted, can the plaintiff return to the court to amend the amended entry of judgment on grounds that the judgement debt has not been settled in full? Inso faras Exhibit “KBS4”is concerned the amount outstanding is GH¢94,515.00. CONCLUSION I have considered the fact that applicant has gone into execution using the amended entry of judgement filed on 4th June, 2019, effect of failure to amend the entry of judgment within the specified time, the Court’s power to extend period to amend and the law on award of interest providing for post judgment interest and will exercise a discretion towards a grant of the prayer sought, except that the amended entry of judgement to be filed should reflect the proposed amended entry of judgment granted on 8th September, 2020. Thus, the prayer to amend the entry of judgment per the proposed amendment disclosed asExhibit “KS3”isdenied. Noorderasto cost. 9 JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS K.A.ASANTE KROBEA FORPLAINTIFF/JUDGMENT/CREDITOR/ APPLICANT JOHNBREFOFORTHE DEFENDANTS/JUDGMENT/DEBTORS/ RESPONDENTS 10