GHANA COMMERCIAL BANK AND ANOTHER v. KOFIE AND OTHERS [1963] 2 GLR 235

DIVISION: IN THE SUPREME COURT

DATE: 2ND JULY, 1963

BEFORE: VAN LARE, BLAY AND AKUFO-ADDO JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court given in favour of the plaintiffs in an action for a claim of £G5,592 as money paid to the defendants to the use of the plaintiffs, an order for the reconveyance of premises mortgaged by the plaintiffs to the defendants, damages for trespass to the mortgaged premises and an injunction.

COUNSEL

C. C. Lokko for the appellants.

Koranteng-Addow for the respondents.

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 exercise of its powers under Order 28, r. 12 of the Supreme [High] Court

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(Civil Procedure) Rules, 1954,1 and we would if necessary have no hesitation exercising our powers under rule 31 of the Supreme Court Rules, 1962,2 to effect the requisite amendment.

Some important points arising out of the referees’ conclusions upon which the judgment of the court below was based appear to require examination. In their original report, the referees found that advances made to the plaintiffs by the bank amounted to £G22,280 10s. and that credits for the same amount were given. In their final report, however, they found that the advances made to the plaintiffs amounted to £G16,961 10s. The report contains no explanation for this discrepancy and it is difficult, in the absence of any explanation, to be certain which of these two figures should properly form the basis of the accounts. On the basis of the original figure of £G22,280 10s. the quantity of produce that would yield that figure as 90 per cent. of its value would of course be much greater than 496 tons (or 5,972 bags), in which case the unaccounted for balance would be considerably less than 2,267 bags. There is no doubt that there must be a reason for the difference in the findings contained in the two reports, and that reason should have appeared in the report.

The referees in describing the accounting procedure pursued by the bank stated that taking the advance account and its subsequent transfer to the current account together there were in respect of the sums involved (i.e., the 90 per cent. pre-shipment advances) two sets of debits and two sets of credits. The second of the two sets of credits would be made up of the 90 per cent. pre-shipment advances together with the remaining ten per cent. of the total value of the produce, for the second set of credit was not entered until the bank had recovered from the Agricultural Development Corporation the full value of the produce estimated on the warrants and the certificates. The report makes no reference to the manner in which the amounts representing the ten per cent. of the value of the produce were accounted for. According to the agreement between the parties the bank charged a fee of one-quarter per cent. on the amounts received by it on the plaintiffs’ behalf. This fee does not appear to have been taken into consideration in arriving at the amount found payable to the plaintiffs.

We are unable to appreciate the reasons assigned by the referees for the method of assessment which they adopted. Their view was that the loss could not be attributed to any particular year. But we do not perceive any reason why the losses caused by the bank should be assessed with reference to any particular year. The warrants and certificates, we presume, bore the dates of their issue and it should not be all that difficult to find out what the price of palm kernel was when they were issued. We would like to see a more realistic method of assessment. The referees thought their method was an “equitable method.” Unfortunately in the hard and impassioned world of commercial accounting what is equitable is just what is arithmetically exact.

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Again since the referees ultimately had all the warrants and the certificates before them their conclusions would have been more intelligible had they made a list of the warrants and indicated specifically those in respect of which pre-shipment advances were made or not made.

We are also of the view that a comprehensive statement of account depicting a bird’s-eye view of the entire transaction between the bank and the plaintiffs will help considerably in an appreciation of the true accounting position. Such a statement will naturally include the supply of palm kernel by the plaintiffs and the quantities shipped with reference to the various warrants and certificates, the pre-shipment credits, bank’s remuneration and other charges. In view of the above observations we think it right to allow the appeal, set aside the judgment appealed from together with the order as to costs but not the referees’ reports and remit the case to the court below with the direction that the reports be remitted to the referees for further clarification of their conclusions in the light of these observations. In the further consideration of the matter the referees may take any further evidence which they may deem necessary.

We would further like to point out that the plaintiffs’ claims for an order for the re-conveyance of the mortgaged premises and damages for trespass and injunction were not dealt with by the court below, and we direct that these claims should be adjudicated upon after an adjudication of the referees’ conclusions shall have been proceeded with.

DECISION

Appeal allowed in part.

K. T.