OBENG VRS. ANSAH (C11/52/24) [2025] GHACC 17 (10 March 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY, THE 10TH DAY OF MARCH, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO. C11/52/24 ROSEMARY SERWAA OBENG ----- PLAINTIFF/APPLICANT VRS. RICHARD ANSAH ----- DEFENDANT/RESPONDENT PLAINTIFF PRESENT DEFENDANT ABSENT SELASSIE ATTACHIE, ESQ. WITH MAXWEL DELALI AMUZU, ESQ. FOR THE APPLICANT PRESENT EMMANUEL NARH, ESQ. FOR THE RESPONDENT ABSENT RULING ON A MOTION ON NOTICE FOR JUDGMENT ON ADMISSION FACTS : The Plaintiff/Applicant, by a Motion on Notice for Judgment on Admission filed on 22nd August, 2024, seeks a judgment on admission pursuant to Order 23 Rule 6 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), on the basis that the Respondent has acknowledged part of the debt in his pleadings. The Applicant initiated the substantive suit on 27th November, 2023, claiming the recovery of USD 3,673.00 or its Ghana Cedi equivalent at the prevailing forex exchange rate, along with interest from July 2023 until the date of final payment and costs. The Respondent duly entered an appearance and filed a Statement of Defence on 15th February, 2024. The crux of the Applicant’s argument rests on paragraph 46 of the Respondent’s defence, where he purportedly admits to owing the sum of USD 3,000.00. On the 1 strength of this admission, the Applicant contends that the Honourable Court is empowered to enter judgment on admission for the said amount, without the need for a full trial. Furthermore, the Applicant seeks interest on the sum at Ecobank Ghana PLC’s commercial lending rate from July 2023 until final payment. The Respondent vehemently opposes the application, arguing that a full trial is necessary to resolve substantive issues raised in the defence. The Respondent contends that his supposed admission in paragraph 46 must be read in conjunction with paragraph 42, which states that the USD 3,000 will only become due after COPART has made a refund to him. This he argues, creates a conditional obligation rather than an unequivocal admission of an outstanding debt. Consequently, the issue of whether the debt is presently due and payable remains unresolved and requires evidentiary scrutiny through a full trial, including cross-examination of the parties. Moreover, the Respondent challenges the Applicant’s claim for interest asserting that any determination of interest is contingent upon a factual inquiry into whether the Applicant defaulted in her obligations under their arrangement. Again, if any interest is to be applied, it cannot be at the commercial lending rate of Ecobank Ghana PLC as the debt in question is denominated in United States Dollars. Further to this, the Respondent argues, under Ghanaian law and established financial principles, the appropriate interest rate applicable to dollar-denominated debts is the LIBOR rate rather than the commercial lending rate of a Ghanaian bank. In light of these arguments, the Respondent prays for the dismissal of the Applicant’s motion, emphasising that the matter requires proper adjudication through a full trial. The Applicant’s subsequent filing of a witness statement, the Respondent argues, further underscores the necessity of such a trial, as it indicates the Applicant’s implicit recognition that the issues at stake are not amenable to summary determination through a mere judgment on admission. 2 ANALYSIS Order 23 Rule 6(2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), provides that: “Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may apply by motion to the Court or to the Judge for such Order as the party may be entitled to on the admission without waiting for the determination of any question between the parties, and the Court or the judge may make such order as is just.” In the case of Pomaa & Ors. v. Fosuhene [1987-1988] GLR 244, the Court held in its holding 3 that: “A judgment would not be given under Order 32, r. 6 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) unless the admission was clear and unequivocal…It might be given only if the court thought it just. And it might not be just if there were other issues to be tried on the pleading, as in the instant case and a judgment on an admission was likely to prejudice the fate of the other issues.” In the instant case, whereas Learned Counsel for the Applicant contends that the Respondent made an unequivocal admission of the amount of USD3,000, the Respondent denied it in the affidavit in support and strenuously contended that the admission was contingent upon COPART making a refund of the money. Learned Counsel for the Respondent in her oral submission abandoned her challenge to the admitted sum and only argued on the issue of interest. According to Counsel, the Applicant seeks interest at the prevailing commercial bank rate on the Dollar-rated debt. She argues that the principle is that when a court orders money to be paid in a foreign currency, the interest is to be made in the same commercial lending rate which in this case, is the LIBOR rate applicable to the United States of America. In support, she cited the cases of Ghana Port and Harbour Authority v. Issifou [1993-1994] 1 3 GLR and National Investment Bank Ltd. v. Silver Peak Ltd. [2003-2004] 2 SCGLR 1008. Learned Counsel for the Applicant, on his part, stated that the transaction was not entirely in Dollars and that the Applicant made part payment of GH₵85,895 into the account of the Respondent. Counsel referred to the Court’s (Award of Interest and Post Judgment Interest) Rules, 2005, (C. I. 52) and argued that this law is the basis of the award of interest in Ghana and provides for the prevailing bank rate on judgment debts. In support, he cites the case of Daniel Ofori v. Ecobank Gh. Ltd. & 2 Ors. J7/12/2020 delivered on 24th March, 2024 and argues that the Respondent be made to pay interest on the Cedi equivalent at the prevailing commercial lending rate. It can be gleaned from the oral submissions of both lawyers that the amount admitted is no longer contested. It is also not challenged that the Applicant is entitled to interest on the amount from July 2023 till the date of final payment. The bone of contention between the parties is whether the interest applicable should be at the commercial lending rate of Ecobank Ghana PLC or the LIBOR rate applicable to Dollar- denominated debt. By virtue of C.I. 52, post-judgment interest on judgment debt adjudged by a court will follow as a matter of law. Thus, the court, based on the legal submissions, will resolve the same without setting down the issue for trial. It has been judicially determined that Courts in Ghana cannot give judgment for the payment of any debt, money or damages except in Cedis and if the Courts award any money in foreign currency, then the rules governing monetary transactions applicable to that currency in that foreign country must prevail unless expressly provided for or agreed upon by the contracting parties. See the case of Ghana Port and Harbour Authority v. Issifou [1993-1994] 1 GLR. In this regard, the Supreme Court in the case of National Investment Bank Ltd v. Silver Peak Ltd [2003-2004] SCGLR 1008, speaking through Date-Bah JSC (as he then was), stated expressly that: 4 “It makes commercial sense for a dollar debt to attract a dollar interest rate because that interest rate reflects the macroeconomic conditions of the United States, which determine the rates applicable to dollar-denominated debts worldwide. Similarly, it makes commercial sense for a cedi debt to attract a cedi interest rate since that interest rate reflects Ghanaian macroeconomic conditions (including, for instance, the rate of depreciation of the cedi against the leading foreign currencies and high interest rates). Thus, if a cedi interest rate is applied to a dollar obligation, the obligee (that is, the creditor) will be overcompensated because the cedi interest rate, which necessarily reflects the high inflation rates in Ghana, will be applied to a dollar obligation which has not been subjected to that high inflation rate… Thus the fact that a foreign currency debt is discharged through the payment of its cedi equivalent by a Ghana resident, as such resident is obliged by law to do, does not change the nature of the underlying foreign currency debt and the fact that the appropriate interest rate which should attach to it is the usual interest rate commercially applicable to that currency. The mere fact of payment in cedis should not change the applicable interest rate and the Court of Appeal was in error in so holding.” Faced with this authority, Learned Counsel for the Applicant contends that the transaction between the parties was not wholly in United States Dollars and that the Applicant paid an amount of GH₵85,895 into the account of Color Promo Ghana Limited. Thus, Counsel maintains that per C. I. 52, the rate applicable is the prevailing bank rate on the Cedi equivalent. In the case of Ghana Port and Harbour Authority v. Issifou, supra, the court held that LI 1295 of 1984 which is in pari materia with C.I. 52, must be limited to transactions dealt in local currency and must not be stretched to cover and include transactions involving the use of foreign currencies. Thus, in the case of Kourani KDough Co. Limited v. Sahel-Sahara Bank (GH) Ltd. Civil Appeal No. H1/66/17 5 dated 1st June 2017, where a similar argument was made, Ackah-Yensu JA (as she then was) reaffirmed this position when she held as follows; “Both L.I.1295 and C.I.52 are silent on the application of the bank rate to foreign currencies, making Counsel’s assertion that the applicable statute is C.I.52 and the trial Judge applied L.I.1295 untenable incorrect. There are no statutory provisions addressing the calculation of interest when judgment is entered in a currency not being Ghana’s Cedi. The cases cited by the learned trial Judge and referred to by Counsel for the Appellant, though decided before C.I.52, remain relevant case law. Counsel’s confusion arises from the fact that GPHA vrs. Issoufou (supra), cited by the judge, was based on the repealed L.I.1295. However, the case discussed the applicable rate on a foreign currency amount. The ratio decidendi was that the bank rate prevailing in Ghana, the lex fori, was the rate of interest awardable by the courts on judgments in local currency. For foreign currency transactions, the rules governing monetary transactions in that foreign currency prevailed unless agreed upon by the contracting parties.” From the pleadings of the parties, the transaction was in United States Dollars. It is not in dispute that the parties negotiated and agreed on the amount payable in Dollars. The Applicant paid part of the money in Dollars into a Dollar account per the statement of claim and the Cedi equivalent of the outstanding balance paid in United States Dollars into a Cedi account. The discharge of part of the obligation in Cedis does not justify the application of the Cedi rate to an obligation calculated in United States Dollars. Further to that, there is no indication that the parties agreed for the prevailing bank rate in Ghana to apply to their agreement. 6 The Applicant, per the endorsement on the writ of summons, claims the outstanding balance of USD3,673.00 or the Ghana Cedi equivalent at the prevailing exchange rate with interest on this amount from July 2023 till the date of final payment. In the affidavit in support of the motion paper, the Applicant prays the court to enter judgment on admission on the indebtedness of Three Thousand Dollars (USD3,000) to the Plaintiff/Applicant. The Applicant further prays for interest on the sum at the commercial lending rate of Ecobank Ghana PLC from July 2023 till the date of final payment. This confirms that the agreement between the parties was not in Ghana Cedis but rather in United States Dollars and the interest rate prevailing in the United States of America should apply. Accordingly, judgment on admission is entered in favour of the Applicant to recover from the Respondent the Cedi equivalent of Three Thousand United States Dollars at the interest prevailing in the United States of America from July 2023 till the date of final payment. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 7