SAMIR KALMONI v. A. B. ASSAN & AGRISPEL LTD
January 21, 2010
COURT OF APPEAL
GHANA
CORAM
- ASARE-KORANG, JA – (PRESIDING)
- MARFUL-SAU, JA
- VICTOR OFOE, JA
Areas of Law
- Civil Procedure
- Corporate Law
- Commercial Law
January 21, 2010
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per MARFUL-SAU JA, addressed a Notice of Variation concerning a High Court (Commercial Division), Accra judgment dated 18-11-08. The High Court had ordered that debts accruing to the 2nd Defendant Company, as shown in Exhibit 6 series (including a judgment debt), be paid by the Plaintiff to the 1st Defendant under section 210(8) of Act 179. After the Plaintiffs appeal was struck out for want of prosecution, Respondents sought variation to add interest. Emphasizing that interest compensates for inflation and delayed payment, and applying CI 52, the Court ordered interest at the prevailing bank rate as at 21-1-10, calculated on a simple basis. Because Respondents did not specify the month in 1996, the Court set a reasonable start date of 1-12-96. The High Courts judgment was accordingly varied.
MARFUL-SAU JA; This appeal prays for the variation of the judgment delivered by the High Court (Commercial Division) Accra dated the 18-11-08. By a Notice of Appeal filed on the 25-11-08, the Plaintiff/Appellant appealed against the said judgment of the High Court on two substantive grounds namely:
That the learned trial judge erred when she ordered that debts accruing to the 2nd Defendant Company be paid to the 1st Defendant/Respondent.
That the learned trial judge erred when she failed and/or neglected to evaluate Exhibit ‘6’ series (audited accounts) even though she held that the 2nd Defendant Company ‘s business had come to a stop as a result of the Plaintiff’s refusal to have the Defendant Company cheques co-signed.
The Defendants/Respondents on the 10-12-08 also filed a notice contending that the judgment be varied, regarding their counterclaim in relief (2), which was granted by the trial High Court. The part of the judgment sought to be varied is as follows:-
“an order that debts accruing to the 2nd Defendant/Respondent Company as indicated by Exhibits ‘6’ series including the judgment debt be paid by the Plaintiff/Appellant to the 1st Defendant/Respondent”.
The ground for the variation was formulated as follows:-
“the learned trial judge erred when she failed to consider the interest that ought to have accrued on the debts of the 2nd Defendant/Respondent Company and on the basis of the said failure ordered the Plaintiff/Appellant to pay to the 1st Defendant/Respondent the said debts as indicated by the Exhibit 6 series only”.
On the 30-7-09 the Registrar of this court issued a certificate that the Appellant had failed to comply with Rule 20(1) of CI 19, accordingly on the 27-10-09 the Appellant’s appeal was struck out for want of prosecution. The case was thus adjourned for the Respondents notice for variation to be determined. This judgment is therefore in respect of Respondents Notice of Variation.
The Respondents in their statement of defence, counterclaimed against the Appellant for the following reliefs:-
“1. General damages against the plaintiff for unlawfully
sabotaging and collapsing the 2nd Defendant Company
resulting in the collapse of the 1st defendant’s own business.
2 An order that all debts accruing to the 2nd Defendant Company
from 1996 to the date of final payment be to the account of the
Plaintiff.
An order compelling the plaintiff to sign all the outstanding audited accounts of the 2nd Defendant Company within seve