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R U L I N G
On 15-06-2009 Emelia Holme, the
Plaintiff herein, caused a writ
to be issued in this court
against Dr. Nii Armah Josiah
Aryeh, in which she claims the
following reliefs:
(i)
An order that Defendant pays to
the Plaintiff the outstanding
amount of £22,000 or its cedi
equivalent.
(ii)
Interest on the sum of £22,000
of 100% from the agreed date
until the date of final payment.
(iii)
Costs.
In the accompanying statement of
claim the Plaintiff avers that
in or about the year 1997 she
and the Defendant met in the
United Kingdom and fell in
love. In 1998 they returned to
Ghana and whilst in Ghana the
Defendant requested for a
financial assistance from her to
the tune of £22,000 which the
Defendant used to complete the
construction of his house among
other things. There was an
understanding between the
parties that the Defendant would
refund the said £22,000 to the
Plaintiff and the Defendant as
evidence of that understanding
acknowledged his indebtedness in
writing on 25-05-1998.
The Plaintiff avers further that
between January, 2006 and
December 2007, she visited the
Defendant both at his work place
at the University of Ghana,
Legon and his home for the
latter to fulfill his promise
but he failed or refused to do
so. This prompted the Defendant
to institute the instant action.
The Defendant in his defence
among others denies owing the
Plaintiff and also denies
acknowledging his indebtedness
in writing on 25-05-1998 and
emphasized that he never met the
Plaintiff on 25-05-1998. In any
case the Defendant avers that
the Plaintiff’s action is
statute-barred by virtue of the
Limitations Act, 1972 (N.R.C.D.
54).
At the application for
directions the issue of whether
the Plaintiff’s action is
statute-barred was set down for
legal arguments.
By Section 4(2) (b) of NRCD 54
an action founded on simple
contract, like the instant
action, is statute-barred after
the expiration of six years from
the date on which the cause of
action accrued. It is however
provided in Section 17 of NRCD
54 that the right of action
accrued on, and not before the
date of acknowledgement.
“The first issue therefore to
determine in deciding whether a
right of action is
statute-barred is the time the
cause of action accrues. This
is clear from the wording of
Section 4(1) of NRCD 54. It
states as follows: “A person
shall not bring an action after
the expiration of six years
from the date on which the cause
of action accrued …” (my
emphasis).
The instant action loosely put
is a money lending action. In
such a case the cause of action
accrues not on the date the
money is given to the borrower
but on the date agreed by the
parties that the money be
refunded whether with or without
interest. It is when the
borrower defaults in refunding
the money on the agreed date to
the lender that the cause of
action for the refund of the
money accrues or arises. In
other words time would only
begin to run from the expected
date of refund of the money
borrowed.
From the statement of claim the
transaction was oral whereby the
Plaintiff gave the £22,000 to
the Defendant by way of
financial assistance with the
understanding that he should
refund same. As to the time the
Defendant was to refund the
money is not clearly stated in
the pleadings. However the
Plaintiff pleaded demands she
made on the Defendant to refund
the money between January, 2006
to December 2007. This would
imply in the absence of any
other fact that the time for
payment would have been agreed
on or about the year 2006. It
therefore follows that the cause
of action arose on or about the
year 2006 which means that the
cause of action cannot be
statute-barred.
Furthermore, the acknowledgment
of indebtedness of 25-05-1998 of
which the Defendant makes so
much capital about in raising
the issue of the limitation of
this action is misconceived. I
would hereunder quote the said
acknowledgment for purposes of
clarity of reasoning. It states
thus:
“I, NII ARMAH JOSIAH ARYEH OWE
MISS EMELIA HOLME THE SUM OF
£22,000 (TWENTY TWO THOUSAND
PDS) REPAYABLE WITH INTEREST OF
100%. 25.5.98”.
The above acknowledgement of
indebtedness by the Defendant
did not state the time of refund
of the money. So the cause of
action cannot be said to accrue
from 25-05-1998. It is thus not
the sort of acknowledgment
contemplated by Section 17(1)(a)
of NRCD 54. As held earlier on
in this ruling the cause of
action appears to have accrued
around the year 2006 when the
Plaintiff began demanding from
the Defendant the refund of the
money. Section 17(1) (a) of
NRCD 54 states as follows.
“For the purposes of this Act,
the right of action accrued on,
and not before, the date of
acknowledgement, where a
right of action has accrued to
recover a debt and the person
liable for the debt has
acknowledged the debt;” (my
emphasis).
In my view by Section 17 of NRCD
54, before an acknowledgment of
a cause of action would have
been said to be effective there
would have been in existence a
valid cause of action. There
cannot be an acknowledgement of
a non-existent cause of action.
In the instant case as held
earlier on the Plaintiff has not
pleaded anywhere that by
25-05-1998 the Defendant was
expected to refund the £22,000
to her. In that case the
acknowledgment by the Defendant
on 25-05-1998 was only evidence
that he owes the Plaintiff
£22,000 which he would repay
with a 100% interest. As to
when he would repay was not
stated in the said
acknowledgement. There could
thus not be a fresh accrual of a
cause of action as contemplated
by Section 17 of NRCD 54 for
there had not then been any
cause of action which the
Defendant acknowledged.
The instant case shows that a
clear distinction should always
be drawn between acknowledgement
of a cause of action and
acknowledgment of indebtedness.
An acknowledgement of
indebtedness does not
necessarily mean that a cause of
action has arisen. However an
acknowledgment of a cause of
action means that there is in
existence a cause of action
which a person acknowledges in
writing making it a fresh
accrual of the cause of action
which is the one contemplated by
Section 17 of NRCD 54.
From the foregoing it is my
opinion that the Plaintiff’s
action is not statute-barred and
is properly before the court for
adjudication.
COUNSEL:
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MR. N. SAAKA FOR THADDEUS
SORY FOR PLAINTIFF
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DEFENDANT IN PERSON
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH
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