IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
ASIEDU JSC
GAEWU JSC
KWOFIE JSC
DZAMEFE JSC
CIVIL APPEAL NO. J4/50/2024
18TH MARCH, 2026
1. SONIAG COMPANY LIMITED PLAINTIFFS/RESPONDENTS/APPELLANTS
2. A. K. SONIA VENTURES
VRS
BOND SAVINGS & LOANS LIMITED ……… DEFENDANT/APPELLANT/CROSS-APPELLANT
JUDGMENT
ASIEDU, JSC:
[1]. FACTS
By a writ and amended statement of claim issued out from the Registry of the High Court, Accra, the Plaintiffs/Respondents/Respondents (hereinafter called the Plaintiffs) claimed against the Defendant/Appellant/Defendant/Cross Appellant (hereinafter referred to as the Defendant) the following reliefs:
1. Recovery of the sum of GH₵ 25, 726, 804.29 being aggregate of sums received by Defendant but not credited to plaintiffs account, shortfall in transfers made on behalf of plaintiffs, non-transfer of sums to plaintiffs’ suppliers and international erroneous charge (debit) to plaintiffs account of loan facilities and interest charged thereon.
2. Interest on the sum due from 7th September 2009 to date of final payment.
3. Damages for fraudulent misrepresentation.
4. Cost to include Solicitors fees.
[1.2]. The Plaintiffs described themselves as incorporated entities under the laws of Ghana, trading in cosmetics and allied beauty products. The Plaintiffs averred that they operated accounts with the Defendant, a licenced banking financial institution. That the relationship between the parties has been that the Plaintiffs deposit funds into the Plaintiffs’ account with the Defendant and also pay third party cheques due the Plaintiff, into the account as credits. That at the request of the Plaintiffs, the Defendant would transfer by SWIFT, Plaintiffs’ funds in Plaintiffs’ account with the Defendant to designated suppliers of the Plaintiffs outside Ghana.
[1.3]. It is the case of the Plaintiffs that sometime in 2013, the Plaintiffs noticed that some deposits made by the Plaintiffs into the Plaintiffs’ account with the Defendant did not reflect in the account. That this anomaly prompted the Plaintiffs to request for the Plaintiffs’ Bank Statement from the Defendant. That upon receipt of the Bank Statement, the Plaintiffs were dismayed to discover that some payments which had been made into the Plaintiffs’ account did not reflect as credits. The Plaintiffs allege that they drew the Defendant’s attention to these anomalies and the Defendant promised that the said anomalies would be rectified. The Plaintiffs averred further that they received complaints from Plaintiffs’ suppliers of non-payments or underpayments for goods supplied the Plaintiffs. These developments, coupled with the Defendant’s deliberate refusal on several occasions to honour Plaintiffs’ instructions to the Defendant to, among others, transfer funds, brought to light manipulations, including unauthorized debits, of the Plaintiffs’ account by the Defendant.
[1.4]. The Plaintiffs claim, therefore, that the conduct of the Defendant has caused substantial loss and damage to the Plaintiffs, running in excess of Twenty-Five Million, Seven Hundred and Twenty-Six Thousand, Eight Hundred and Four Ghana Cedis and Twenty-Nine Pesewas (GH₵ 25, 726, 804.29), hence the Plaintiffs’ reliefs against the Defendant as by the indorsement on the Plaintiffs’ writ and statement of claim.
[1.5]. In their amended Statement of Defence, the Defendant denied the Plaintiffs’ averments, and stated that the Defendant granted the Plaintiffs credit facilities by way of open lines of credit which Plaintiffs could draw upon up to the credit ceiling of the various credit facilities. That the Plaintiffs used these facilities to settle invoices and consignment of products supplied to the Plaintiffs by foreign suppliers. That at the request of the Plaintiffs, the Defendant made transfers to the Plaintiffs’ foreign suppliers which transfers were captured as drawdowns in the loan statements of the Plaintiffs. The Defendant averred further that the Defendant regularly conducted reconciliation of accounts with the Plaintiffs so that the parties could ascertain outstanding balances on the Plaintiffs’ loan account with the Defendant, and that the nature and frequency of the reconciliation exercise was such that the Plaintiffs could not allege that the Defendant manipulated or made any payments in relation to the Plaintiffs’ account without the notice of the Plaintiffs. The Defendant, therefore, pleaded that the allegation of fraud raised against the Defendant by the Plaintiffs was a deliberate ploy by the Plaintiffs to delay or undermine efforts by the Defendant to recover some payments due the Defendant from the Plaintiffs after the Defendant had advanced these payments to the Plaintiffs’ suppliers.
[1.6]. The Defendant, on the other hand, asserted that the Defendant granted the Plaintiffs various loan facilities which were due, but the Plaintiffs failed and/or refused to settle those debts. The Defendant asserted that the Plaintiffs’ indebtedness to the Defendant stood at GH₵5,599,476 which said sum continued to attract interest at the agreed rate between the parties. The Defendant, therefore, counterclaimed against the Plaintiffs as follows:
a. Recovery of the sum of GH₵5,599,476 being the outstanding sum owed by the plaintiff as at 31st December, 2014.
b. Interest at the prevailing commercial lending rate calculated to the date of full and final payment.
c. An order of perpetual injunction against the Plaintiffs [Plaintiffs herein] restraining them whether by themselves, their employees, servants, agents, or otherwise howsoever described from further publishing, disseminating, spreading or causing to be published, disseminated or spread the said words calculated to inflict damage on the Defendant’s [Defendant] brand.
d. Costs on a full indemnity basis
[2.0]. JUDGMENT OF THE TRIAL HIGH COURT
The learned trial High Court Judge found that the Defendant debited the Plaintiffs’ account without evidence of the Plaintiffs’ instructions to that effect. The learned Judge also found that the evidence adduced in support of Defendant’s claim of credit facility given the Plaintiffs by the Defendant, was questionable. The Court also found that not all deposits paid by the Plaintiffs were acknowledged and credited to the Plaintiffs’ accounts. There were also debits on the Plaintiffs’ account without any cause or authorization from the Plaintiffs. The Court concluded in the face of all these that, the Defendant obtained material and undue advantage to the detriment of the Plaintiffs.
The Court held, finally, that the Plaintiffs were entitled to claim from the Defendant Six Million, Five Hundred and Thirty-Three Thousand, Twenty-Five Ghana Cedis, Twenty-Seven Pesewas (GH₵6,533,025.27). The Defendant’s counterclaim was dismissed, and the trial Court set off the Defendant’s established claim of GH₵5,599,476.00 against the Plaintiffs who the Court found to have also established a claim of GH₵12,132, 501.27 against the Defendant. The Court, then concluded as follows:
“Plaintiffs have on the other hand, established their claim to the tune of Six Million, Five Hundred and Thirty-Three Thousand, Twenty-Five Ghana Cedis, Twenty-Seven Pesewas (GH₵6,533,025.27) against the Defendant, and Judgment is entered on same together with interest from 31st December, 2014 until date of final payment.” (Emphasis) (at page 194 of the ROA).
The Plaintiffs were awarded GH₵50,000.00 in damages, and costs of GH₵50,000 awarded against Defendant in favour of Plaintiffs.
[3.0]. APPEAL TO THE COURT OF APPEAL
On appeal by the Defendant to the Court of Appeal, the learned Justices of the Court of Appeal affirmed the judgment of the trial High Court except to the extent that the learned Justice of the trial Court set off the Defendant’s claim against the Plaintiff. The Judgment of the trial High Court was, therefore, varied to exclude the order of set off.
The Plaintiffs herein prayed the Honourable Court of Appeal for an order to vary the judgment of the learned trial Court which ordered interest to be paid by the Defendant to the Appellant at the prevailing bank rate from 31st December, 2014 to the date of final payment. According to the Plaintiffs, there was an agreement between the parties for an interest rate of 5% to apply which 5% interest rate ought to have been ordered by the trial Court.
The Court of Appeal refused the Plaintiffs’ prayer to vary the trial Court’s order on the applicable interest rate. The Court reasoned that the interest rate of 5% was provided in the facility given the Plaintiffs by the Defendant to be applicable in case(s) of default by the Plaintiffs, and that the agreement between the parties did not visualize a situation where the Defendants rather would be indebted or be required to pay money to the Plaintiffs. The Honourable Court reasoned that in the absence of any such agreement between the parties, the applicable interest rate should be calculated at the prevailing bank rate.
[4.0]. APPEAL TO THE SUPREME COURT
Dissatisfied with the judgment of the Court of Appeal on the applicable interest rate on the sum of money payable by the Defendant to the Plaintiffs, the Plaintiffs have appealed to this Honourable Court on the following grounds of appeal:
“GROUNDS OF APPEAL:
I. The learned Court of Appeal erred when it refused to grant a variation of interest awarded by the trial court being the contractual interest rate of five percent (5%) per month compounded in favour of the Plaintiffs when same was stipulated by the contract between the parties.
II. The interest computation ought to start from the date the debt arose commencing from 2009 and not limited to December 2014 as granted by the Honourable Court.”
The Plaintiffs argued that by the agreement between the parties, the applicable interest rate payable by either party was 5%, and therefore, in the face of the said agreement, the learned Justices of the Court of Appeal could not have properly ordered, affirming the trial High Court, that the interest rate applicable was the prevailing bank rate. That the holding by the Court of Appeal is contrary to the clear provisions of Rule 1 of The Court (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I. 52).
[5.0]. DETERMINATION OF THE APPEAL:
My lords, the transactions between the Plaintiffs and the Defendant is governed by the Credit Facility agreement entered by the parties from time to time. Exhibit ‘J’ which is one such agreement can be found at page 115 volume 2 of the record of appeal (ROA) The said facility provided for the payment of interest by the Appellant in the following terms:
“Interest is to be charged at 3% monthly on outstanding balance and shall be applicable in any court proceedings and after judgment until date of final repayment of the facility. An additional 2% per month above the prevailing interest rate shall be charged on any overdue amount till final payment. Also, a penalty fee of GH₵50.00 shall be charged for any dishonoured cheque.”
Counsel for the Plaintiff submitted in his statement of case filed on the 12th day of June 2024 with respect to his ground of appeal on the rate of interest exigible that, ‘the provisions of the facility agreement should be equally binding on the parties so that just as the Respondent has exacted 5% interest compounded monthly from the Appellant on what they thought were outstanding debts, the same rate of interest should be applied to the debt owed by the Respondent to the Appellants.”
The Court of Appeal (at pages 182 to 184 of volume 6 of the ROA) came to the conclusion that the interest rate as stated in the facility agreements was not contemplated by the parties to apply in cases where the Defendant/Respondent will rather be indebted to the Plaintiff/Appellant and therefore was not applicable to the present case.
It is my humble view that this observation by the Court of Appeal is clearly borne out of the record, and should be affirmed. The view held by the learned Justices of the Court of Appeal is also rooted in law. Rule 1 of the COURT (AWARD OF INTEREST AND POST JUDGEMENT INTEREST) RULES, 2005 [C.I. 52] is explicit on this. It states that:
“Rule 1. – Order for payment of interest
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) 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 interest calculated in that manner”.
The above provision states the general rule on the award of interest and that is that where a court decides to award interest to a party in a case, the rate of interest applicable shall be the bank rate prevailing at the time the order is made and shall be calculated on a simple interest basis unless the parties can show by reference to an enactment or an instrument or an agreement that a different rate of interest is applicable to the transaction between them. In the instant matter, the loan facility agreement entered by the parties herein contemplates a situation where the agreed interest was to be paid by the Plaintiffs borrowers herein on the loan facility extended to them by the Respondent. The agreement between the parties was never made to govern a situation where the Defendant/Lender becomes indebted to the Plaintiff/Borrower and hence the present circumstance is not governed by the said agreement. Hence, rule 1 of CI.52 applies without the exception thereto. The Plaintiffs’ appeal on this ground should, therefore, fail.
[5.1]. It has also been argued by the Plaintiffs that the Defendant’s unauthorized debit which has resulted in the debts owed the Plaintiffs, started sometime in 2009. As a result, the Plaintiffs contend that the calculation of the interest payable to the Plaintiffs ought to commence from 2009, and not 2014 as found by the courts below.
My lords, on the strength of case law such as Delle & Delle v Owusu Afriyie [2005-2006] SCGLR 60 and Da Costa v Ofori Transport [2007-2008] SCGLR 602 (cited by Counsel for the Defendant) to the effect that interest is payable from the date on which the claim arose, it is my humble view that interest be calculated from 2013 up to the date of final payment. Even though the Plaintiffs allege that the claim arose in 2009, by the evidence on record, it appears that the Plaintiffs came to realize the issues with their account in 2013. Therefore, the interest ought to be calculated from 2013 when the Plaintiffs’ cause of action accrued, and neither 2009 as prayed by the Plaintiffs, nor 2014 as found by the Courts below.
[6.0]. DEFENDANT’S CROSS-APPEAL AGAINST THE JUDGMENT OF THE COURT OF APPEAL
The Defendant filed a notice of cross-appeal (found at pages 193 to 195 of Volume 6 of the ROA) against the judgment of the Court of Appeal, on the grounds that:
(a) The Learned Justices of the Court of Appeal committed an error in law when they struck out the Defendant’s grounds (b), (c), (d), (e), (f), (h) and (i) as improper.
Particulars of error:
i. That grounds (b), (c), (d), (e), (f), (h) and (i) did not allege any misdirection or error in law which required particulars to be given.
(b) The Court of Appeal committed an error in law by its failure to consider the capacity of the 2nd Plaintiff/Respondent/Respondent which is a Sole Proprietorship.
Particulars of error:
i. The Court of Appeal failed to give consideration to the settled legal principle that a Sole Proprietorship ought to sue per its Sole Proprietor;
ii. The Court of Appeal failed to give any consideration to the fact that the 2nd Plaintiff/Respondent/Respondent lacked capacity to sue in the name “A.K. SONIA VENTURES”.
(c) The Court of Appeal erred when it endorsed the reliance by the trial Judge on “Exhibit N” instead of “Exhibit CWA” which is the audit report of the Court appointed expert.
(d) The Court of Appeal erred when it held that the transfers to Global Fibre, Hansonic Continental, Mickat Trade & Delon Laboratories were made by the Defendant/Appellant/Cross-Appellant without the authorization of the Plaintiffs/.
(e) The Court of Appeal erred when it relied on Exhibits J1 and J2 to hold that the Plaintiffs/ Respondent/Respondent led enough evidence to support a finding of fraud and forgery against the Defendant/Appellant/Cross-Appellant.
(f) The Court of Appeal erred when it held that the costs of Fifty Thousand Ghana Cedis (GHC 50,000.00) awarded against the Defendant/Appellant/Cross-Appellant is reasonable.
(g) The Court of Appeal erred when it set aside the part of the decision of the trial Judge which set off the sum of Five Million, Five Hundred and Ninety-Nine Thousand, Four Hundred and Seventy-Six Ghana Cedis (GHC5,599,476,00) against the sum of Twelve Million, One Hundred and Thirty-Two Thousand Five Hundred and One Ghana Cedis and Twenty-Seven pesewas (GHC 12, 132, 501.27)
(h) The Court of Appeal erred in awarding exemplary damages of One Hundred and Fifty Thousand Ghana Cedis (GHC 150,000.00) against the Defendant/Appellant/Cross-Appellant.
(i) The judgment of the Court of Appeal is against the weight of the evidence adduced before the trial High Court.
(j) Additional grounds of appeal may be filed with leave of this Honourable Court upon receipt of the Record of Appeal.”
[7.0]. In the judgment of the Court of Appeal, the learned Justices of the Court of Appeal struck down, as improper, grounds (b), (c), (d), (e), (f), (h), and (i) of the Defendant’s grounds of appeal. The Defendant’s Notice of Appeal in the Court of Appeal can be found at pages 198 to 199 of Volume 4 of the ROA).
[7.1]. My lords, apart from the issues raised in grounds (b) and (g) of the Defendant’s notice of cross-appeal, it is my humble view that all the other issues appear to have been sufficiently dealt with by the Court of Appeal in line with the evidence on record and therefore, there is no need to spend judicial resources to discuss these issues in any further detail.
Indeed, the Defendant’s argument that the 2nd Defendant, a sole proprietorship, lacks separate legal personality to have sued in its name, by the indorsement on the writ and statement of claim, appears to be well founded in law. However, it is my humble view that the circumstance of the 2nd Defendant, including the pleadings disclosing that the 2nd Defendant is a sole proprietorship, would fall in the class of cases as Mussey v Darko [1977] 1 GLR 147-155, where an erroneous indorsement would ordinarily not defeat or nullify the writ. Moreover, the presence of the 1st Defendant in the instant matter, in my view, could save the writ even if the capacity of the 2nd Defendant were successfully impugned. It has been determined by this Court that the issue of capacity of a Plaintiff to sue ought to be raised at the earliest possible opportunity in order that it may be resolved at the trial, although it is conceded that the capacity of a party to sue or be sued may be raised at any time during the proceedings. This is necessary because capacity, sometimes, becomes a mix question of law and facts and therefore it is necessary for the issue to be raised at the earliest opportunity to afford the party against whom it is raised the chance to also respond thereto; so that the necessary evidence may be adduced before the trial Court. Indeed, in Fatal vs. Wolley [2013-2014] 2 SCGLR 1070, this Court came clear that:
“The legal question of capacity, like other legal questions, such as jurisdiction, may be raised even on appeal. But it is trite learning that the principle is clearly circumscribed by law. The right to raise legal issues even at such a late stage is legally permissible only if the facts, if any, upon which the legal question is premised, are either undisputed; or if disputed, the requisite evidence had been led in proof or disproof of those relevant facts, leading to their resolution by the trier of facts; failing which the facts could, and based purely on the evidence on record, and without any further evidence, decidedly be resolved by the Appellate Court”.
My lords, in the instant matter the Plaintiffs pleaded at paragraph 2 of their amended statement of claim which can be found at page 12 volume 2 of the record that:
“The 2nd Plaintiff is a sole proprietorship in the same business as the 1st Plaintiff. Both Plaintiffs are owned and controlled by Mrs. Sonia Antwi (nee Agyei Kyem)”
The Defendant’s response to the above averment is at paragraph 3 of their amended statement of defence which can be found at page 15 of the record where the Defendant pleaded that:
“Save that the 2nd Plaintiff ought to have been Mrs Sonia Antwi (nee Agyei Kyem) who operates as a sole proprietorship under the name and style A K Sonia Ventures, a business name registered under the Registration of Business Names Act, 1962, (Act 151), the Defendant admits paragraph 2.”
My lords, in all sincerity the above averment of the Defendant in paragraph 3 of their statement of defence cannot be said to be a denial of the Plaintiff’s averment in their paragraph 2. Indeed, the Defendant did not deny the Plaintiff’s averment. Order 11 rule 13(1)(2) and (3) of the High Court (Civil Procedure) Rules, 2004, CI.14 is explicit on this. It states that:
“13. Admissions and denials
(1) Subject to sub-rule (4) of this rule, any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to sub-rule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party’s defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them”.
In pleadings, denials are to be made specifically. They are not to be left to conjecture. A party who does not deny what ought to be denied shall be taken as having admitted same. [See Emmanuel Yaw Kumi vs. Kofi Ansu & 2 Others AND Emmanuel Yaw Kumi vs Yaw Peter & 3 Others (Unreported) Suit No. J4/89/2022, delivered on the 28th February 2024.] In the instant matter, the Defendant knew at all times that they were dealing with the 2nd Plaintiff as a sole proprietorship. It will be disingenuous on their part to turn around in this appeal and complain about the capacity of the 2nd Plaintiff.
For all these reasons, I do not find merit in the cross-appeal filed by the Defendant herein and I therefore proceed to dismiss the Defendant’s cross-appeal.
[7.2]. My lords, there appears to be some amount of confusion in the way the trial Judge set off an amount, allegedly, owed by the Defendant, against the amount found to have been established in favour of the Plaintiffs herein. A set-off is a claim for money owed by the Plaintiff to the Defendant in the same or a different transaction which is relied upon by the Defendant as a defence to a claim of money by the Plaintiff. Thus, Order 11 rule 17 of the High Court (Civil Procedure) Rules, 2004, CI.47 provides that:
“17. Defence of set-off
Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied upon as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiff’s claim, whether or not it is also added as a counterclaim”.
Thus, a set-off is a cross claim for money whether ascertained or unascertained. See Lawrence vs Hayes (1927) 2 KB 111; Morgan & Sons Ltd. vs S. Martin Johnson & Co Ltd. (1941) 1 KB 107. A set-off may only be pleaded if the claim involved a sum of money. A set-off may be pleaded if it is relied upon by the Defendant as a defence to the whole or part of the claim made by the Plaintiff against the Defendant. A set-off may be pleaded as a defence whether or not it is included in the Counterclaim raised or filed by the Defendant. Davies vs Hedges (1871) LR 6 QB 687.
The main purpose of a set off is not to answer the Plaintiff’s claim against the Defendant but to raise or set-up a cross claim against the Plaintiff by the Defendant. If a plea of set-off is proved, the effect is to reduce or wipe out the monetary claim of the Plaintiff against the Defendant. A set-off also aims at establishing a liability of the Plaintiff to the Defendant. A set-off being a claim for a sum of money can only be set-up if the Plaintiff’s claim against the Defendant is also for the recovery of a sum of money. Hence, where the Plaintiff does not claim a sum of money (debt) against the Defendant, a debt owed the Defendant by the Plaintiff cannot be set-up as a set-off. A plea of set off can only be used “as a shield and not a sword” Stooke vs Taylor (1880) 5 QBD 569 at 576.
If the Plaintiff discontinues his action, the set-off falls with it and so this is one of the differences between a set-off and a counterclaim. In order to maintain a set-off, the debts must exist between the same parties and in the same right. A debt which is owed in a personal capacity cannot be set-off against a claim made in a representative capacity. Stunmore vs Campell & Co. (1892) 1 QB 317. If a defendant is also sued in a representative capacity, he cannot set off a debt owed him in his personal capacity, Philips vs Howell (1901) 2 Ch. 773. A defendant sued in his personal capacity cannot set-off a debt due him in a representative capacity for example as an executor, Nelson vs Roberts (1893) 69 LT 352. Where a defendant is sued jointly with another person for a debt owed, the Defendant cannot set off a debt owed to him as a defence, Re Pennington & Owen Ltd. (1925) Ch. 825. A set off must be specifically pleaded by the defendant. A set-off may fall with the discontinuance or the striking out of the Plaintiff’s action, a counterclaim does not.
[7.3]. My lords, a counterclaim, on the other hand, is a separate and an independent action in itself and it is by no means limited or tagged to the cause of action filed by the Plaintiff in the suit unlike a set-off. Where in an action, a Defendant sets up a counterclaim against the Plaintiff or another party, the fact that the action is struck out, dismissed, discontinued or stayed does not affect the right of the Defendant to prosecute his counterclaim against the Plaintiff or the other party to the counterclaim. See Fosuhene vs Atta Wusu [2011] 1 SCGLR 273. Thus, a counterclaim may be proceeded with after an order for discontinuance. But a counterclaim cannot be set up after an order for discontinuance has been granted. The Salybia [1910] P. 25.
[7.4]. My lords, at page 468 paragraph 388 of their book, the learned authors of Halsbury’s Laws of England (5th edition) draws a distinction between a set-off and a counterclaim to the effect that:
“Set-off is distinguishable from counterclaim both in its application and in its effect, in its application set-off is limited to money claims, whereas counterclaim is not so limited. Any claim in respect of which the Defendant could bring an independent claim against the claimant may be enforced by counterclaim subject only to the limitation that it must be such as can conveniently be tried with the claimant’s claim. Thus, not only claims for money, but also other claims such as a claim for an injunction or for specific performance or for a declaration may be the subject of a counterclaim.
In its effect set-off is essentially different from counterclaim in that set-off is a ground of defence, a shield and not a sword, which, if established, affords an answer to the claimant’s claim wholly or pro tanto, whereas counterclaim as such affords no defence to the claimant’s claim, but is a weapon of offence which enables a defendant to enforce a claim against the claimant as effectually as in an independent action. Where facts pleaded by way of counterclaim constitute a set-off they may be pleaded as such”.
[7.5]. My lords, in the instant matter, the within named Defendant did not plead a set-off against the Plaintiffs herein. This is clear from the statement of defence filed by the Defendant which can be found at pages 12 to 16 volume 1 of the record of appeal. What the Defendant averred was a counterclaim in the sum of GH₵3,454,768.18 which the Defendant sought to recover from the Plaintiffs with interest at the prevailing commercial lending rate. This amount escalated to the sum of GH₵5,599,476.00 after an audit had been carried out as stated in exhibit ‘N’. The trial Judge found in her judgment [See page 193 of ROA volume 4] that the debt owed the Plaintiffs by the Defendant was in the sum of GH₵12,132,501.27. As a result, the Judge set-off the sum of GH₵5,599,476.00 against the amount established in favour of the Plaintiffs and then held that the difference which is the sum of GH₵6,533,025.27 “should be the final amount to be paid to the Plaintiffs by the Defendant” [See exhibit ‘N’]. Having found as stated above, the trial Judge then went ahead to hold that “Defendant is therefore not entitled to its claim.” See page 193 volume 4 of ROA.
[7.6]. To the extent that the Defendant did not plead a set-off against the Plaintiffs herein, it was not open to the learned trial Judge to set-off any amount found to be owed the Defendant by the Plaintiffs against the debt established in favour of the Plaintiffs against the Defendant. In ground (g) of their grounds of appeal, it has been argued on behalf of the Defendant that “the Court of Appeal erred when it set aside the part of the decision of the trial Judge which set off the sum of Five Million, Five Hundred and Ninety-Nine Thousand, Four Hundred and Seventy-Six Ghana Cedis (GHC5,599,476,00) against the sum of Twelve Million, One Hundred and Thirty-Two Thousand Five Hundred and One Ghana Cedis and Twenty-Seven pesewas (GHC 12, 132, 501.27)”. Indeed, at pages 180 to 182 volume 6 of the record, the learned Justices of the Court of Appeal stated that:
We have earlier found that the learned trial judge considered Exhibit “N” as a more reliable report since it considered both the repayments that were already captured in the Appellant’s loan statements of the Respondents’ accounts which were invalidated by Exhibit “CWA” as well as those drawdowns which were invalidated by Exhibit “CWA”, even though they were not disputed by the Appellant. In so doing, the learned trial judge had in effect substituted and adopted the conclusion of Exhibit “N” for that of Exhibit “CWA”. Having thus found Exhibit “CWA” to be flawed in that regard, the learned trial judge ought not to have considered its conclusion in granting the relief “A” of the Counterclaim of the Appellant.
Additionally, our understanding of Exhibit “N” and its conclusion appearing at page 463, Vol. 3 of the ROA, is to the effect that PW1 using the data pooled by KPMG which formed the bases of the work done in Exhibit “CWA”, deducted the total drawdowns from the total repayments made by the Respondents, reversed the inapplicable interest charges and added the non-validated repayments which were not disputed by the Appellant. The conclusion then is that all applicable transactions were considered in Exhibit “N” to include any amount owed to the Appellant. In that regard, a set off using the conclusions of Exhibit “CWA” would amount to unjustifiably charging the Respondents twice.
In light of the foregoing, we find that the learned trial Judge rightly dismissed the relief “A” of the Appellant’s counterclaim but erred when she set off the conclusions of Exhibit “N” against the conclusions of Exhibit “CWA”. We will therefore sustain the cross-appeal of the Respondents on this issue and set aside the part of the decision of the learned trial judge setting off the sum of GH₵5, 599,476.00 stated to be owed by the Respondents to the Appellants in Exhibit “CWA” against the sum of GH₵12,132,501.27 found to be owed to the Respondents in Exhibit “N”. The judgment of the trial High Court will therefore be varied to that extent.
It is hereby ordered, consequently, that the Respondents are to recover from the Appellant, the sum of GH₵12,132.501.27, being the sum found to be owed to the Respondents by the Appellant as stated in Exhibit “N”.
[7.7]. A critical scrutiny of the judgment of the trial Judge shows that whiles she was prepared to recognize the sum of GH₵5,599,476,00 as having been established by the audit report, exhibit ‘N’ herein, in favour of the Defendant and so found it fit to set-off the said amount against the debt of GH₵12, 132, 501.27 established in favour of the Plaintiffs against the Defendant to arrive at the sum of GH₵6,533,025.27 which she declared as the “final amount to be paid to the Plaintiffs by the Defendant [See exhibit ‘N’]”, the trial Judge went ahead to state that the “Defendant is therefore not entitled to its claim.” The implication is that the trial Judge entered judgment in the nature of a set-off in favour of the Defendant whiles at the same time dismissed the very claim by the Defendant against the Plaintiffs. She gave with her right hand and took by the left hand. This constitutes an anomaly which cannot be allowed to remain in the judgment of the Court. If the Defendant’s counterclaim ought to be dismissed, then the same counterclaim cannot be awarded in the nature of a set-off.
[7.8]. The Court of Appeal found, consistent with the evidence adduced, that the trial Judge found the audit report in exhibit ‘N’ to be more credible because “it considered both the repayments that were already captured in the Appellant’s (Defendant’s) loan statements of the Respondents’ account which were invalidated by exhibit CWA as well as those drawdowns which were invalidated by exhibit CWA.” Thus, as stated by the Court of Appeal, the trial Judge found the findings of the report of the audit as contained in exhibit ‘N’ to have fully captured the transactions between the parties herein as against the findings of the report of the audit contained in exhibit CWA. Having come to this conclusion therefore, the trial Judge cannot at the same time, adopt the conclusion in the report of exhibit ‘N’ and the conclusion in the report of exhibit CWA and therefore set-off the two different conclusions one of which she found to be credible and the other not credible. I therefore agree with the conclusion of the Court of Appeal that the sum of GH₵5,599,476,00 contained in exhibit ‘N’ cannot be validly set-off against the sum of GH₵12, 132, 501.27 which is the established indebtedness of the Defendant to the Plaintiffs. Hence, judgment is entered in favour of the Plaintiff to recover the sum of GH₵12, 132, 501.27 from the Defendant.
[7.9]. My lords, in their 2nd ground of appeal, the Plaintiffs/Appellants pray this Court that “the interest computation ought to start from the date the debt arose commencing from 2009 and not limited to December 2014 as granted by the Honourable Court.” The Court of Appeal, in its judgment ordered on the issue of the date from which interest shall be calculated that “interest is to be calculated thereon from 2014 at the bank rate prevailing at the time the judgment was entered till date of final payment.” The Court of Appeal gave reasons for the award of interest calculable from 2014. At page 38 of their judgment, their lordships stated that:
“In this instance, we find that on the record the totality of the cause of action accrued in 2014 after the reconciliation undertaken by both parties raised disparities in the drawdowns and repayments captured on the loan account statements of the Respondents. This is when the Respondents became aware of the full extent of whatever injuries they alleged they had suffered at the time.
In any event, the suit was commenced by the Respondents in 2016, a period which would render any action arising in 2009 statute barred. See Limitation Act, 1970 NRCD 54, section 4(1)(b), which provides that in the case of an action founded on simple contract, a person shall not bring an action after the expiration of six years from the date on which the cause of action accrued”
As stated by the Court of Appeal, if the Appellants are claiming interest from year 2009 on the basis of their allegation that the issues which gave rise to their suit arose in 2009, then given that the classification of their case falls under contract, their cause of action is caught by section 4(1)(b) of the Limitation Act, NRCD 54 in view of the fact that this suit was commenced in 2016 by which time the six years given under section 4 of NRCD 54 had long kicked-in. However, under the common law, a person’s right accrues from the date that the person becomes aware of a breach of his right and not before and for that matter, it is for the Court to determine from the pleadings and the facts of this case when the Appellants became aware of the events leading to the institution of this suit as that will inform the Court as to the date that a right to an action accrued in the Appellants herein. [See Delle & Delle vs. Owusu Afriyie [2005-2006] SCGLR 60 and Da Costa vs. Ofori Transport [2007-2008] SCGLR 602]. Besides, the record does not show that the amount found in favour of the Plaintiffs became due to the Plaintiffs on the same date and in the same year. The various amounts captured in the under-credits and over-debits spanned a period of time and so, it will be unfair to the parties for interest to be reckoned from 2009 which the Plaintiffs/Appellants alleged to be the beginning of the injuries caused to them by the Defendant.
At paragraph 18 of their amended statement of claim, the Plaintiffs pleaded that they became aware of the under-credits and over-debits in their accounts with the Defendant/Respondent in the year 2013. [See page 14 volume 2 of the ROA]. Again, at paragraph 15 of the Witness statement of the managing director of the 1st Plaintiff company, evidence was given to the effect that it was in 2013 that the 1st Plaintiff company found that a cheque which was paid into the company’s account did not reflect in the bank statement of the Plaintiff company. It is therefore not unreasonable to suppose that the 1st Plaintiff company became aware of the malfeasance with respect to its dealings with the Defendant as from the year 2013. Indeed, a cause of action arose in the 1st Plaintiff in the year 2013. The Plaintiffs are therefore entitled to have their interest calculated from December 2013 to the date of final payment.
[8.0]. In conclusion, I will vote to affirm the judgment of the Court of Appeal to the extent that it adjudged the exigible rate of interest to be the prevailing bank rate instead of the 5% monthly rate which the Plaintiff had urged upon this Court. However, with respect to the date from which the rate of interest shall be computed, I will vary the judgment of the Court of Appeal and state that, the Plaintiff is entitled to interest on the sum of GH₵12,132, 501.27 from December 2013 to the date of final payment. In effect, the cross appeal filed by the Defendant/Cross-Appellant is dismissed in its entirety. The Plaintiffs’ appeal succeeds in part as stated above.
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
DANIEL SAGU OSEI ESQ. FOR THE DEFENDANT/APPELLANT/
CROSS-APPELLANT WITH JAMES KWABENA BOAKYE ESQ., BENNY ATO SAM ESQ. AND ESTHER AYIKU ESQ.
AKOSUA GYAMFI DUAMROH ESQ. FOR THE PLAINTIFFS/RESPONDENTS/
APPELLANTS WITH DERRICK DELALI KUSHITOR ESQ.
