FAUSTINA NDUR VRS THE CONTROLLER & ACCOUNTANT GENERAL & 2ORS. (GJ/0653/2020) [2023] GHAHC 577 (24 November 2023)

IN THE HIGH COURT OF JUSTICE GHANA (GENERAL JURISDICTION COURT 4) HELD IN ACCRA ON FRIDAY THE 24TH DAY OF NOVEMBER, 2023 BEFORE HER LADYSHIP OLIVIA OBENG OWUSU, (MRS.) J. FAUSTINA NDUR PALADIUM - ACCRA :: PLAINTIFF/APPLICANT SUIT NO: GJ/0653/2020 VRS 1. THE CONTROLLER AND ACCOUNTANT GENERAL CONTROLLER AND ACCOUNTANT GENERAL MINISTRIES – ACCRA 2. ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL MINISTRIES – ACCRA 3. THE INSPECTOR GENERAL OF POLICE : DEFTS/RESPS GHANA POLICE SERVICE – ACCRA ============================================================================= ============================================================================= R U L I N G On 13th February 2020 the Plaintiff took out a Writ of Summons against the three Defendants for the following reliefs: a. An order directed at the parties to go into account. b. An order against the Defendants to pay to the Plaintiff all arrears due her. c. An order against the Defendants to pay to the Plaintiff interest on the arrears from the date it became due to the date of final payment Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu on 24/11/2024 at GJ4 d. Any other relief that the Court may deem just, proper and convenient to order in particular, costs including legal expenses.” In a nutshell the Plaintiff’s case is that she is a beneficiary of her late husband Sergeant Gregory Akpewara’s pension who until his demise was a serving police officer. Subsequent to his death in 2001 she started receiving the pension entitlements of her late husband. From 2003 to August 2018 she was receiving an average amount of about Fifty Eight Cedis Seventy Five Pesewas (GHS 58.75) per month. To her dismay in February 2018 she got to know that she was actually entitled to be paid more than the GHS 58.75 which she was receiving instead. She therefore lodged a complaint about the irregularity with the Ghana Police Service headed by the 3rd Defendant. Subsequent to her complaint the Director of The Ghana Police Service sent a letter dated 13th February 2018 to the Controller and Accountant General’s Department headed by the 1st Defendant entreating them to place her on the correct scale of payment and also to pay all arrears due her. In September 2018 she received an amount of Eight Hundred Ghana Cedis (GHS 800) as the pension entitlement for the month. She enquired about this payment and got to know that that was the amount she was actually entitled to be paid by the 1st Defendant institution. Upon knowing that she has been placed on the correct scale of payment she approached officers of the 1st Defendant institution about the arrears due her since same had not been paid. She says that she has made a series of demands on the 1st Defendant institution to pay her the arrears but efforts made by her in that regard have been unsuccessful. In the Statement of Defence the Defendants aver that in 2003 the Plaintiff was added to the pool of beneficiaries of CAP 30 Office Holders who had died in the course of their duty and she began to receive her monthly entitlements like all other beneficiaries after she had been paid the death gratuity due her. In answer to the Plaintiff’s Claim that she was actually entitled to be paid more than GHC58.75 the Defendants maintain that the Plaintiff at all times was receiving what was due her by law and that she became entitled to the new amount in October 2012 upon the coming into force of the Police Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu on 24/11/2024 at GJ4 Service Regulations. They maintain that arrangements were made to pay all arrears due the Plaintiff and that indeed same has been paid to her. They contend that the Plaintiff is not entitled to her claim. At the hearing of the Application for Directions, the Court, pursuant to Order 33, Rule 3 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47), set down the only issue contained in the application for directions for determination by legal argument. The issue states thus: “Whether or not the Plaintiff is entitled to the payment of interest on the arrears paid to her by the 1st Defendant” In compliance with the order of the Court Counsel filed their respective submissions. In arguing the case for the Plaintiff, Learned Counsel contends that it is necessary that the Defendants compensate the Plaintiff in order to make up for the loss she has suffered as a result of failing to pay her the arrears at the time same was due. According to him the Defendants acknowledged owing the Plaintiff and subsequently paid the amount owed her without interest. He makes the point that the economic value of GHS 37,432.00 about 8 years ago cannot be the same today and that the arrears which the defendants paid has lost its economic value from the time it became due the Plaintiff in 2012. Basing himself on The Court (Award of Interest and post Judgment Interest) Rules, 2005 (C. I. 52) he also pointed out that the Court has the mandate to order the payment of interest on a sum of money owing and due a party in an action especially where same is pleaded. For authority counsel relied on the cases of NPA V AMINU IBRAHIM & CO. & ANOR. (2018) LPELR-444464(SC) AND LAKIN V WATKINS ASSOCIATED INDUSTRIES (1993) 6 CAL. 4TH 644, 663). Arguing contra, Learned Counsel for the Defendants submits that the Plaintiff received her arrears in full even before the Statement of Defence was filed. To her the Plaintiff has been duly and adequately compensated. She submits further that even though in 2012 the Ghana Police Service passed its new regulations which allocated more money Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu on 24/11/2024 at GJ4 to the beneficiaries of deceased police officers the 1st Defendant was only notified that the Plaintiff was a police widow in 2018. According to Counsel the arrears were paid to the Plaintiff the very month the Writ was issued because that was when the allotment for payment of pension arrears was released by Central Government. She also points out that although in 2014 the Ministry Of Finance issued a policy of non-payment of salary arrears beyond three months due to the peculiar nature of the case a special dispensation was made for the Plaintiff to be paid arrears from October 2012. She also submits that Government Policy does not permit the payment of interest on salary and pension arrears. As indicated the question for determination is whether or not the Plaintiff is entitled to the payment of interest on the arrears paid to her by the 1st Defendant. The processes indicate that when the writ was issued the 1st Defendant took steps to settle its indebtedness to the Plaintiff. In the case of AGYEI V AMEGBE [89-90] 1 GLR 351 the Court held that whenever interest is to be charged and paid in respect of money, the charge is based on the supposition that the person to pay the interest has had the use of the payee’s money. Interest is thus not chargeable on non-existing indebtedness. Barring any express agreement by the parties interest will be payable from the day the principal became due for payment but was paid in part or not paid at all. See the case of DACOSTA V OFORI TRANSPORT LTD [2007-2008] 1 SCGLR 602. Again the law is well-settled, and the reported cases themselves numerous, in which it has been held that interest is exigible up to the date of final payment. See the case of CITY & COUNTRY WASTE LTD V ACCRA METROPOLITAN ASSEMBLY [2007-2008] 1 SCGLR 409. In the instant case there is no evidence as to exactly when arrears were paid to the Plaintiff. However on the Defendants’ own showing the arrears were not paid to the plaintiff until the writ was issued in 2020. According to the Defendant when the 2018 the 1st Defendant’s attention was drawn to the fact that the Plaintiff was a police widow the arrears could not be paid due to lack of funds. If the arrears had been paid to the Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu on 24/11/2024 at GJ4 Plaintiff, the Plaintiff could have had the benefit of it. The basis of an award of interest is that the Defendant has kept the Plaintiff out of his/her money, and the Defendant has had it, so he ought to compensate the Plaintiff: See the case of GHANA COMMERCIAL BANK V BINOO-OKAI [82-83] GLR 74. Although given the opportunity to do so Learned Counsel for the Defendant was unable to support her contention that Government Policy does not permit payment of interest on salary and pension arrears. In the absence of any authority for such a contention I find that the Plaintiff is entitled to the payment of interest on the arrears paid to her by the 1st Defendant. Interest should be assessed from September 2018 at the prevailing rate till when the Defendants’ indebtedness was settled in full in February 2020. The Plaintiff, shall in addition be entitled to costs of Two Thousand Ghana Cedis (GHS2,000.00). The point of law argued disposes of the case. (SGD.) H/L OLIVIA OBENG OWUSU (MRS.) JUSTICE OF THE HIGH COURT PARTIES: PARTIES ABSENT COUNSEL: ROBERT NKANSAH BOATENG WITH IVY AMUFUL H/B ALFRED PAAPA FOR PLAINTIFF/APPLICANT PRESENT GIFTY KYEI WITH ANITA COMMODORE, EKOW THEOPHILLUS ACQUAH AND DOREEN AYITEY DEFENDANTS/RESPONDENTS PRESENT Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu on 24/11/2024 at GJ4 REFERENCES CASES REFERED TO 1. GHANA COMMERCIAL BANK V BINOO-OKAI [82-83] GLR 74. 2. CITY & COUNTRY WASTE LTD V ACCRA METROPOLITAN ASSEMBLY [2007-2008] 1 SCGLR 409. 3. DACOSTA V OFORI TRANSPORT LTD [2007-2008] 1 SCGLR 602. 4. AGYEI V AMEGBE [89-90] 1 GLR 351 STATUTES 1. The High Court (Civil Procedure) Rules, 2004 (C. I. 47). Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu on 24/11/2024 at GJ4 6