ARTHUR VRS BENTIL (A9/10/2023) [2022] GHADC 373 (3 October 2022)

11/10/2022 REGINA ARTHUR VS ELIZABETH BENTIL JUDGEMENT ON CLAIM (B) HER WORSHIP SIRAN MAHAMA MAGISTRATE TEMA DISTRICT COURT ’2’ IN THE DISTRICT COURT 2, TEMA, SITTING ON THE 10TH DAY OF NOVEMBER, 2022 BEFORE HER WORSHIP SIRAN MAHAMA, THE DISTRICT MAGISTRATE. SUIT NO. A9/10/2023 REGINA AUTHUR VS. ELIZABETH BENTIL JUDGEMENT ON CLAIM (B) The claim upon which this judgement is written is as follows. CLAIM (B): - To pay interest to the complainant on the principal amount owed; for the inconveniences caused her all these months. Per HL Viscount Simon in the case of Riches v Westminster Bank Ltd [1947] AC 390, page 398; on the difference between Interest and Capital in law; he described interest as “the accumulated fruit of a tree which the tree produces regularly until payment.” Simply put, interest is the price paid by a borrower /debtor for the use of a lender’s/creditor’s money over a period. Generally, under common law, interest becomes payable to a creditor/lender when the parties agree per their financial dealings that interest should be paid. However, under the laws of Ghana, the courts have the power to award interest on sums claimed and found to be due, or as prescribed by statute. This can be found in Delle & Delle v Owusu – Afriyie [2005-2006] SCGLR 60 (holding 4); where the court held that “under the existing statutory regime in Ghana, the courts have the power to award interest on sums claimed and found to be due. Such interest is payable from the date on which the claim arose.” Further, per Order 28 r 7 of the District Court Rules, 2009 (C. I. 59) (1) The Court, at the time of giving judgement or making an order or anytime afterwards, may (a) Direct the time within which a payment is to be made or another act done, and (b) Order the payment of interest at the same rate as a High Court may order in circumstances. (2) The time for payment shall be reckoned from the date of the judgement or order or from some other point of time that the Court considers appropriate. Also, as established in the case of Ghana Commercial Bank v Binoo – Okai [1982-83] GLR 74 and discussed by Adade Ag CJ, in his judgement in the Royal Dutch Airlines (KLM) v Farmex Ltd. [1989 – 90] 2 GLR, page 636; A person who has unjustifiably kept money which properly ought to have gone to its owner should not in justice be permitted to benefit by having that money in his possession and additionally enjoying the use of it. This benefit shall be deemed as profit lost to the owner that is usually ordered to be paid back to him by way of interest. This interest now becomes some kind of compensation or damages for withholding another person’s money wrongfully. However, it was held in Akoto v Gyamfi – Addo [2005 – 2006] SCGLR 1018 that ‘since interest is payable for unjustifiably keeping money belonging to another, if there is justification for keeping the money, interest is not payable.’ It follows from this holding that the only basis upon which interest may not be payable on an amount established to be owed to the plaintiff in an action to recover same; is if the defendant is able to provide satisfactory justification to the court for keeping the plaintiff’s money wrongfully. From the above, in the determination of whether or not interest is payable to a creditor/lender, the courts must consider the following, in the absence of any enactment, instrument or agreement to the contrary. a. Whether or not there is a sum claimed and found to be due. b. Whether or not the said sum has been wrongfully withheld by the debtor/borrower. c. The amount of time for which the money has been wrongfully withheld, and d. Whether or not the debtor/borrower has any justification for wrongfully withholding the creditor/lender’s money. In the instant case, during the testimony of the defendant on claim (b) for interest; the following ensued; “By Court: - The Plaintiff has brought you to court to recover rent arrears and interest accrued. However, we are hearing your testimony to determine whether or not you should pay interest. What do you have to say about that? By Defendant: - I do not want to pay interest. My reason is that, when the Plaintiff first reported me to Rent Control, the Plaintiff failed to deliver the letter to me immediately; but rather delivered it to me on the 26th of September 2022 as opposed to the 14th of July 2022 when the letter was issued. Secondly, when the case was brought before this court, the Plaintiff brought people to my house to misbehave and embarrass me to my neighbors. That is why I decided to keep the money. I kept the money as security so that if the people who Plaintiff brought to misbehave in my house caused any damage. I would use some of the money to pay for the repairs.” Further, during the cross-examination of Defendant by Plaintiff, the following ensued; “By Plaintiff: When you heard of the misbehaviour, did you call the agent to find out who came to misbehave in your absence? By Defendant: Yes, I did several times and the agent alluded to the fact that the boyfriend of the Plaintiff and the agent came to the house in my absence. By Plaintiff: When the agent told you that he and my boyfriend came to your house, did he add that I was part of those who came to misbehave at your house? By Defendant: No, the agent did not state that you were part of the people who came to misbehave at my house.” Also, during the cross-examination of Plaintiff by the defendant, the following ensued; “By Defendant: I have nothing more to ask, except that, I am not in a position to pay any interest to the plaintiff because of how she handled this matter. By Court: Defendant, if I understand you properly, you are not saying you are unable to pay any interest due to lack of money but rather due to the Plaintiff’s conduct in this matter? By Defendant: Yes, I am not in a position to pay any interest due to the conduct of the Plaintiff, not because I don’t have the money.” From the facts in this suit, it was established that the Defendant failed to fulfill her obligations under the tenancy agreement with the Plaintiff which left the plaintiff with no option than to recover the full amount of GHS 5,000.00, being rent advance paid to the defendant under their tenancy agreement. This issue can be found in claim (a) of this action. The Defendant pleaded liable to claim (a) which was as follows. “Cause Respondent complainant with advance.” to refund GHS 5,000.00 to immediate effect being balance It has been established that the Defendant owed the Plaintiff a principal amount of GHS 5,000.00 being rent advance received since 20th May 2022 to 24th October 2022. However, this court is of the view that the defendant was not able to give any satisfactory justification for withholding the plaintiff’s money for the period specified per her testimony quoted above. The Court (Award of Interest and Post Judgement Interest) Rules, 2005 (CI 52), r1 also provides that; “If a 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) at the bank rate prevailing at the time the order is 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; the court shall award that rate of calculated interest in that manner.” Since it has been established that the Defendant owed the Plaintiff GHS 5000.00 since 20th May 2022 and failed to repay same at that time; thereby withholding that amount belonging to the defendant wrongfully; and in the interest of justice, this court finds that the Defendant shall be liable to pay the Plaintiff interest accruing on the principal from 20th May 2022 till 24th October 2022. Therefore, the court orders that the defendant in this action shall pay interest to the plaintiff on the principal amount of GHS 5000.00 owed and unpaid for a period of approximately five (5) months since 20th May 2022 – 24th October 2022; at the prevailing Bank of Ghana interest rate; and in the absence of any agreement by parties to the contrary. Judgement is hereby given in favour of Plaintiff on Claim ‘b’ of this action. No cost shall be awarded in this action. ……………… HW SIRAN MAHAMA MAGISTRATE (10/11/2022) 8