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JUDGMENT
OWUSU-ANSAH, J.A.:
The plaintiff was employed in
1961 by the New Times
Corporation. He rose steadily to
the rank of supervisor, and was
at work on the 20th January
1978, as such supervisor, in
charge for the printing
Department when he was arrested
by the action unit then in
existence, and taken to the
Castle, Osu.
It is the Plaintiff’s case that
on his release from the Castle,
management never went into the
reason for his arrest. The
allegation was that he (the
plaintiff) had overprinted the
newspapers. Management served
him with a letter dismissing him
summarily from the employment of
the Corporation.
After various attempts at
redress had failed, he
instituted this action in 1985,
claiming the following:
“(a) An order for re-instatement
or alternatively,
(b) damages for wrongful
dismissal or for breach of
contract of service;
(c) an order for
specific-performance under the
contract of service for the
release to him of Plaintiff's
accumulated end of service
entitlements amounting to
¢146,013,000.
(d) damages for trespass or
unlawful seizure of plaintiff’s
car No. AG 1195.
(e) An order for specific
performance of obligations and
conditions under the loan or
hire-purchase agreement for the
release or return of plaintiff's
car No. AG 1195 to him.
(f) An order for specific
performance under the car loan
and hire purchase agreement for
the release to the plaintiff of
all illegal profits of
¢15,948.98 made on his car.
(g) Any other reliefs."
The plaintiff issued this writ
against the Managing Director of
New Times Corporation and
subsequently sought leave, which
the court granted, to amend the
title by deleting the name
"Managing Director” so that the
title of the case, would be "Kwabena
Agyekum vrs. New Time
Corporation, Accra." Although
leave was granted on the 10th
March, 1987 the plaintiff failed
to file the pursuant amendment
within 14 days as stipulated
under Order 28, rule 7;
consequently the amendment was
not effected and the original
title of the case remained.
In this regard the learned trial
judge relied on the case of
Ayinah vrs. Badu 1963 1 GLR 86
at 89 where the Supreme Court
held that the plaintiff's
failure to amend by deleting the
words "cancellation of mortgage
deed" within the prescribed
period, rendered the leave
granted ipso facto void.
However, the learned judge quite
properly, in my view, relied on
order 28 rule 12 and the Court
of Appeal case of Hansan vrs
Baako Hasa, 1972 2 GLR 469 and
proceed to amend the title so as
to enable her to determine the
real issue.
The learned judge heard the
evidence and proceeded to give
judgment against the Plaintiff.
It is against this judgment that
the plaintiff now appeals to the
Court. The appeal consists of
twelve (12) grounds (covering
over a page) quite apart from
the additional grounds of
appeal.
The additional ground of appeal
(filed on the 29th March, 1990)
is as follows:
"That the Respondent should be
deemed to have abandoned or
waived his defence or objection
that the instant action was
statute barred, since, at that
belated stage, when he raised
the defence of limitation, the
Hon. Trial Judge specifically
adjourned the case to hear legal
arguments on the matter to
enable a ruling to be given
thereon, but the respondent
decided to go on, and lead oral
evidence instead, without the
arguments on the statute barred
issue as ordered by the Court."
In my view, (one of) the major
issue in this appeal is whether
or not the action is statute
barred by virtue of the
operation of section 4(1) (a)
and s.3 of NRCD 54 (The
Limitation Decree 1972) and, if
it is statute barred, whether or
not the learned judge was right
in dealing with the merits of
the case.
It is defence counsel's
submission that the actions are
founded on contract and tort and
since the action was commenced
on the 18th December
(b) the right of action is
concealed by the fraud of any
person, or
(c) the action for relief from
the consequences of mistake.
The period limitation shall not
begin to run until the plaintiff
has discovered the fraud or
mistake as the case may be, or
could with reasonable diligence,
have discovered it."
The plaintiff submits that the
Defendants knew of the running
time and deliberately
procrastinated with the aim of
claiming protection under the
NRCD 54.
I have meticulously perused the
evidence in its entirety. Yet I
am unable to find a shred of
evidence in support of this
position.
There is no evidence by which
the Defendants or their agents
could by any stretch of the
imagination be said to be guilty
of fraud or concealment of
fraud; or to have induced a
mistake.
A litigant should take
appropriate steps to ensure that
his interests are adequately
protected, and not to sleep on
his rights.
In the event that negotiations
are being protracted the best
cause of action is to commence
proceedings pending the outcome
of an amicable settlement, or an
arbitration, as the case may be,
and not to wait indefinitely.
It is obvious to me that the
Defendants have not by any
positive, act or omission led or
misled the plaintiffs to act to
their detriment.
In Ankrah vrs. Ofosu 1963 1 GLR
101 the court held that "where
the plaintiffs delay is not his
fault at all, but is brought
about by the fraud of the 1985,
that is 7 years after the
alleged causes of action arose,
the plaintiff's claim was
statute-barred.
As the learned trial judge
points out the plaintiff
apparently does not quarrel with
the fact that the cause of
action arose over 6 years before
the commencement of the action.
In any event, the plaintiff
contends that time would not run
in this case because the
defendant was guilty of fraud,
concealed fraud, and mistake
which form the basis of
exceptions to the general law of
limitation. Therefore the action
is not statute barred though the
cause of action arose 6 years
ago.
The particulars of fraud and
concealed fraud have been set
out in paragraph 16 of the Reply
to the Defendant's amendment of
their statement of defence filed
on the 10th March, 1987.
In this case the action is not
based on fraud or any fraudulent
misrepresentation. In deed the
so-called particulars of fraud
do not reveal fraud and
concealed fraud at all within
the meaning of section 22 (1)
(a) of the Decree 54.
At this stage it may be
pertinent to examine the
relevant provision of section 22
(1) of Act 54; It
provides:
"Where in any cause of action
for which a period of limitation
is fixed by this Decree:—
(a) the action is based on the
fraud of the Defendant or his
agent, or any person through
whom he claims or his agent, or
Defendant, the plaintiff is only
debarred from the time when he
discovers the fraud."
Assuming without admitting that
this was so, there is no
evidence as to when or how the
so-called fraud was committed or
discovered, so as to set the
time running from that date. At
all events, no evidence was led,
to substantiate this contention,
from the date of the plaintiffs
dismissal on 3rd February, 1978
to the date of commencement of
this action in 1985.
Having regard to the evidence as
a whole, as well as the
surrounding circumstances, I
hold that reliefs.
"(a) an order for reinstatement
(b) Damages for wrongful
dismissal and breach of service.
(c) Damages for unlawful seizure
of car No. AG 1195, are statute
barred, since the cause of
action in each case arose over
six years prior to the date of
the institution of the action;
and the plaintiff has been
unable to bring himself within
any of the exceptions to the
rule.
It is a long established rule
that questions of law can be
raised at any stage of the
proceedings and where it is not
so raised the court could, suo
motu, raise it, where
appropriate, in the interest of
justice and fair play.
The fact that the issue of
limitations was raised or
alluded to earlier in the
proceedings but not vigorously
pursued, cannot prevent the
court from dealing with it as a
matter of law provided the other
party is given adequate
opportunity to answer the point.
We are now left with reliefs (c)
(e) and (f). Relief (c) is a
claim for An order for specific
performance under the contract
of service for the release of
his accumulated end of service
entitlements amounting to
¢146,013.000 to him.
(e) And order for specific
performance of obligations and
conditions under the loan
agreement, or the Hire Purchase
agreement, for the release or
return of the plaintiff's car No
AG 1195.
(f) An order for Specific
Performance under the car loan
and Hire Purchase Agreement, for
the release to the Plaintiff of
all illegal profits of 15,945.98
made on his car."
These three are patently
equitable remedies granted at
the discretion of the court and
not granted as a matter of
course. The discretion is
exercised in accordance with
clear and well defined
principles and not according to
whims and caprices of the court,
especially where DAMAGES can be
said to be inadequate
compensation or where other
common law remedies are
inadequate. In the persuasive
English case Tamplin vrs James
1980 15 ch. D 215 the learned
Judge so
observed.
I
In the instant case so far as
claim (c) is concerned, the
court very properly stressed the
fact that in spite of the
language is which the claim in
framed the claim in reality is
for a specific sum of money
which could easily have been
obtained by a remedy at law.
The endorsement could well have
read "A claim for the sum of
¢146,013,000.00 being the end of
service entitlement." This view
coincides with my own views on
the matter. And I am reluctant
to depart from what appears to
be settled law. This definitely
tilts the balance in favour of
the Defendant.
The evidence overwhelming, and
excludes any other rational
hypothesis of the matter.
In the case of Quaye vrs Mariama
1961 GLR 93 it was emphasised
that "it is the duty of the
trial judge to resolve the
primary facts, and having done
so to state his findings and
apply the law."
In this case the learned judge
made a remarkably admirable and
a supremely praiseworthy effort
in finding the facts, which have
been stated with impeccable
clarity. It is trite learning
that a decree of specific
performance is a decree issued
by the Court, which constrains a
contracting party to do that
which he has promised to do. It
is a form of relief that is
purely equitable in origin and
is one of the earliest examples
of the maxim that "equity acts
in personam." It originated in
the realization that there are
many cases in which the remedy
available at common law, such as
award of damages is not
adequate.
Thus in Flirt vrs Brandon 1803 1
ves 159 the master of the Rolls
explained the position as
follows:
"This court does not profess to
decree a specific performance of
contracts of every description.
It is only where the legal
remedy is inadequate or
defective that it becomes
necessary for courts of Equity
to interfere ...... in the
present case, said the earned
Master of the Rolls, "complete
justice can be done at law....."
The luminous judgment, has been
applied over the centuries, and
was given a blessing by Lord
Parker, L.C.J. in Stickney vrs.
Keeble 1915 AC 386 AT 419,
wherein the noble Lord said:
"Indeed, the dominant principle
has always been that Equity will
only grant specific performance
if under the circumstances it is
just and equitable so to do!
This Court, in the exercise of
its equitable jurisdiction, must
not lose sight of the principle
of mutuality, which can be
positive or negative. In other
words specific performance ought
not to be decreed where it would
be available to the plaintiff
and not to the Defendant or vice
versa.
Besides, it is not only relevant
but also important to point out
that a Plaintiff who has been
dilatory in the prosecution of
his equitable claim and has
acquiesced in the wrong done to
him, may be said to be quit of
laches and is barred from
relief, although his claim in
equity is not otherwise
affected, it depends almost
entirely on the degree of
diligence, and all the
surrounding circumstances.
A case in point is Pollard vrs.
Clayton 1855 1 K & J 462 — an
English case which of course is
persuasive
only.
The defendants in that case
agreed to raise and sell at a
fixed price per ton to the
plaintiffs all coal contained in
a particular mine. After
performing this contract in part
the defendants refused to
deliver anymore, but instead
sold it to other persons, and
when objection was taken to
their default, they referred the
plaintiffs to their solicitor.
The plaintiffs waited (not over
years as in this case), but for
11 (eleven) months after this,
before filing a bill for
specific performance.
It was held that the delay which
occurred after the plaintiffs
had become aware of the breach
of contract was a complete bar
to their equitable claim.
In my view this is not a proper
or an appropriate case in which
the Court should or would
exercise its discretion in
granting the equitable remedy of
specific performance. This would
offend against the traditions
governing the exercise of
judicial or equitable
discretion.
The same principles may be
postulated in regard to relief
(f) and therefore the decree for
specific performance may be said
to be inappropriate. Indeed, the
plaintiff could have more
conveniently brought a simple
action at common law for the
recovery of the amount of
¢15,945.98, rather than seek the
equitable relief of specific
performance in respect of the
payment in question. This claim
must, therefore be dismissed and
is dismissed accordingly.
Again, the claim (e) the
Plaintiff prays "for an order of
specific performance for the
return of his vehicle number AG
1195 on the basis of a hire
purchase agreement." The
Plaintiff's case rests upon the
fact that the vehicle was
registered in his name and
therefore the seizure and
subsequent sale by the defendant
was wrongful.
As already indicated specific
performance will normally not be
granted where the award of
damages could be adequate
compensation; as, for example,
where the contract is for the
sale of goods easily procurable
elsewhere. However, it would be
granted where, for instance,
award of damages would defeat
the just and reasonable
expectations of the plaintiff.
In the instant case, it is my
considered opinion that there is
adequate remedy at law.
Furthermore there is no evidence
that the said car was peculiar
or unique in any way, or that it
was unobtainable on the open
market. From the evidence it is
fair to infer that it is an
ordinary VW car — not an antique
or specially built to any
specification. In fact it had
been with a 3rd person
apparently for over 8 years!
Consequently, this claim also
fails and is dismissed
accordingly. The learned trial
judge ably and admirably and
painstakingly analysed the
evidence and did make some
specific findings of fact. She
articulated the reasons with
such clarity as to clinch her
conclusions.
I am inclined to think, however,
that it was a burdensome and an
utterly fruitless and futile
exercise to look any further
having come to the conclusion
that the plaintiff's claims were
statute-barred in so far as the
provisions of the Limitation
Decree NRCD 54 were concerned.
Secondly, the equitable relief
of specific performance sought
by the plaintiff could not be
sustained on the fact and
thirdly, on the evidence as a
whole the Plaintiffs claims were
not maintainable at law or in
equity.
Assuming, without deciding, that
the dismissal of the Plaintiff's
claim on the merits was wrong
and that the plaintiff has an
impeccable case the claim would
still be statute-barred. To
award damages would be blowing
hot and cold; approbating and
reprobating. It would be
tantamount to allowing a claim
which on the evidence and in law
is clearly statute barred by
virtue of the provisions of NRCD
54.
The claim need not have been
entertained at all on its merits
after a finding that it was
statute-barred and did not come
within any of the exceptions to
the rule.
In the result the plaintiff's
appeal must be dismissed in its
entirety and same is dismissed
accordingly.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
BROBBEY J.A.:
I agree.
S. A. BROBBEY
JUSTICE OF APPEAL
MS. OWUSU J.A.:
I also agree.
MS. R. C. OWUSU
JUSTICE OF APPEAL |
