GHANA COMMERCIAL BANK AND ANOTHER v. KOFIE AND OTHERS

JUDGMENT OF AKUFO-ADDO J.S.C.

Akufo-Addo J.S.C. delivered the judgment of the court. [His lordship stated the facts as summarised in the headnote and continued:] In this appeal by the defendant bank, counsel for the bank confined himself entirely to a challenge to the legal propriety of the judgment on the ground that the plaintiffs claimed a sum of money as had and received to their use whereas the finding of the referees was that the bank was liable for the amount found as representing the loss to the plaintiffs through the bank's default in not making the requisite claim upon the Agricultural Development Corporation for payment to the plaintiffs. That finding according to counsel meant that the bank did not receive the amount found to be payable to the plaintiffs, and a claim for that amount as money had and received to the plaintiffs' use was therefore not maintainable. There is no merit in this argument. In the first place, although the plaintiffs by their original writ of summons did claim a sum of money as money had and received to their use they, in their statement of claim, did claim accounts generally. Secondly, the plaintiffs at an early stage of the proceedings filed a notice of their intention to apply for an amendment of their writ of summons and the statement of claim to include, in the alternative to the claim of money had and received, a claim for accounts. It was this intended amendment to which the trial judge referred when he said,

"Now although the plaintiffs claimed accounts generally in their statement of claim, they limited the question of their claim to £G5,592 6s. 9d. The writ has not been amended though notice of intention to apply for amendment was filed. In the circumstances I enter judgment for the plaintiffs for £G5,592 6s. 9d. with costs. I fix the costs at 150 guineas inclusive."

There can be no doubt that on the basis of accounting between the parties (and both parties accepted the position that the issue between the parties was one that could be determined on the taking accounts between them) a judgment for the amount found by the referees to be payable to the plaintiffs would be proper. For that reason the judgment cannot be impeached on the grounds of procedure because the plaintiffs claimed an account by their statement of claim. Further, since the plaintiffs' notice of amendment was before the court at the time it delivered the judgment the court should have considered it and amended the claim accordingly in the