ACTS OF GHANA

LIMITATION DECREE, 1972 (NRCD 54)

ARRANGEMENT OF SECTIONS

Section

PART I—PERIODS OF LIMITATION

1. Part I to be subject to provisions of Part II

2. Actions barred after two years

3. Actions barred after three years

4. Actions barred after six years

5. Actions barred after twelve years

6. Exemption for equitable reliefs

7. Successive conversions

8. Recovery of movable estate of deceased persons

9. Recovery of arrears of rent, etc.

10. Recovery of land

11. Accrual of right of action in case of reversion, etc.

12. Actions concerning mortgaged land

13. Actions concerning mortgage money

14. Recovery of property held upon trust

15. Actions against trustees

PART II—EXTENSION OF LIMITATION PERIODS

16. Extension in case of disability

17. Fresh accrual on acknowledgement

18. Effect of acknowledgement

19. Fresh accrual on part payment

20. Effect of payment

21. Appropriation of payment in respect of debts

22. Fraud and mistake

23. Extension of time where material facts not known

24. Applications for leave of Court

25. Application of sections 23 and 24 to actions after death

PART III—ARBITRATIONS

26. Application to arbitrations

27. Commencement of arbitration

28. Accrual notwithstanding term in agreement

29. Power of Court to extend time

PART IV—GENERAL

30. Application of this Decree

31. Acquiescence

32. Set-off and counterclaim

33. Actions barred and pending

34. Interpretation

35. Repeals

36. Commencement

SCHEDULES

First Schedule—Repeals

Second Schedule—English statutes ceasing to apply

LIMITATION DECREE, 1972

IN pursuance of the National Redemption Council (Establishment) Proclamation, 1972, this Decree is hereby made:

PART I—PERIODS OF LIMITATION

Section 1—Part I to be Subject to Provisions of Part II.

The provisions of this Part of this Decree shall have effect subject to the provisions of Part II of this Decree which provide for the extension of the periods of limitation in certain prescribed circumstances.

Section 2—Actions Barred after Two Years.

The following actions shall not be brought after the expiration of two years from the date on which the cause of action accrued:—

(a) actions claiming damages for slander or seduction;

(b) actions to recover contribution against one or more concurrent wrongdoers;

(c) actions to recover a penalty or forfeiture, or a sum by way of penalty or forfeiture, recoverable under any enactment.

Section 3—Actions Barred after Three Years.

(1) An action claiming damages for negligence, nuisance or breach of duty (howsoever the duty exists), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued.

(2) An action for damages for the benefit of the dependants of a deceased person under section 16 of the Civil Liability Act, 1963 (Act 176) shall not be brought after the expiration of three years from the death of the deceased.

(3) No action shall be brought under the said section 16 of the Civil Liability Act, 1963 if by the date of his death the deceased's right of action in relation to the fault by which his death was caused had become statute-barred.

(4) If the right of action of the deceased referred to in subsection (3) of this section had not become statute-barred by the date of his death the action under section 16 of the Civil Liability Act, 1963 may be brought within the period prescribed by subsection (2) of this section notwithstanding that by the time the action is brought the said right of action would have been statute-barred so far as the deceased was concerned.

Section 4—Actions Barred after Six Years.

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued:—

(a) actions founded on tort other than actions to which sections 2 and 3 apply;

(b) actions founded on simple contract;

(c) actions founded on quasi-contract;

(d) actions to enforce a recognisance;

(e) actions to enforce an award, where the arbitration is under any enactment other than the Arbitration Act, 1961 (Act 38);

(f) actions to recover any sum recoverable by virtue of any enactment (other than actions to which sections 2 and 5 apply).

(2) This section shall apply to an action to recover seamen's wages but shall not otherwise apply to any cause of action within the jurisdiction of the High Court in maritime matters which is enforceable in rem.

(3) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

Section 5—Actions Barred after Twelve Years.

(1) The following actions shall not be brought after the expiration of twelve years from the date on which the cause of action accrued:—

(a) an action upon an instrument under seal, other than for the recovery of arrears of an annuity charged on movable property, or any principal sum of money or arrears of interest in respect of any sum of money secured by a mortgage or other charge;

(b) an action to enforce an award, where the arbitration agreement is under seal;

(c) an action to recover a sum due to a registered company by any member thereof under the company's Regulations;

(d) an action to recover tax due and payable to the Commissioner of Income Tax, or duty due and payable to the Comptroller of Customs and Excise.

(2) An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable.

(3) An action shall not be brought to recover proceeds of the sale of land after the expiration of twelve years from the date when the right to receive the money accrued.

Section 6—Exemption for Equitable Reliefs.

(1) Sections 2 to 5 shall not apply to any claim for specific performance of a contract or for an injunction or other equitable relief.

(2) This section shall not be construed as preventing a Court from applying by analogy any provision of sections 2 to 5 in any proceedings where in the opinion of the Court the interests of justice so require.

Section 7—Successive Conversions.

(1) Where any cause of action in respect of the conversion or wrongful detention of any movable property has accrued to any person and before he recovers possession of it a further conversion or wrongful detention takes place, no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.

(2) Where any such cause of action has accrued to any person and the period prescribed for bringing that action and for bringing any action in respect of such a further conversion or wrongful detention as aforesaid has expired and he has not during that period recovered possession of the movable property, the title of that person thereto shall be extinguished.

Section 8—Recovery of Movable Estate of Deceased Persons.

(1) Subject to subsection (3) of this section, no action in respect of any claim to the movable estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of 12 years from the date when the right to receive the share or interest accrued.

(2) Subject to subsection (3) of this section, no action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due.

(3) No period of limitation fixed by this Decree shall apply to an action against a personal representative or any person claiming through him where the claim is founded on any fraud to which the personal representative was party or privy.

Section 9—Recovery of Arrears of Rent, Etc.

(1) No action shall be brought or distress made to recover arrears of rent or damages in respect thereof after the expiration of six years from the date on which the arrears became due.

(2) No action shall be brought to recover arrears of an annuity charged on movable property or damages in respect thereof after the expiration of six years from the date on which the arrears became due.

Section 10—Recovery of Land.

(1) No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.

(2) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as "adverse possession").

(3) Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to accrue until the land is again taken into adverse possession.

(4) For the purposes of this Decree, no person shall be deemed to have been in possession of any land by reason only of having made a formal entry thereon.

(5) For the purposes of this Decree, no continual or other claim upon or near any land shall preserve any right of action to recover the land.

(6) On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of that person to the land shall be extinguished.

Section 11—Accrual of Right of Action in Case of Reversion, Etc.

(1) A right of action to recover land shall, where the interest claimed was a reversion or any other future interest and no person has taken possession of the land by virtue of the interest claimed, be deemed to have accrued on the date on which the interest fell into possession by the determination of the preceding interest.

(2) If a person entitled to the preceding interest, not being a lease for a fixed period, was not in possession of the land on the date of the determination thereof no action shall be brought by the person entitled to the succeeding interest after the expiration of twelve years from the date on which the right of action accrued to the person entitled to the preceding interest or six years from the date on which the right of action accrued to the person entitled to the succeeding interest whichever period last expires.

(3) No person shall bring an action to recover any interest in land under an assurance taking effect after the right of action to recover the land had accrued to the person by whom the assurance was made or some person through whom he claimed or some person entitled to a preceding interest, unless the action is brought within the period during which the person by whom the assurance was made could have brought such action.

(4) Where any person is entitled to any estate or interest in land in possession and, while so entitled, is also entitled to any future interest in that land, and his right to recover the interest in possession is barred under this Decree, no action shall be brought by that person, or by any person claiming through him, in respect of the future interest, unless in the meantime possession of the land has been recovered by a person entitled to an intermediate interest.

Section 12—Actions Concerning Mortgaged Land.

(1) No action shall be brought by any person claiming the right to exercise his power of sale of land which is subject to a mortgage or charge after the expiration of 12 years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.

(2) At the expiration of the period fixed by this Decree for a mortgagee to bring an action claiming sale of the mortgaged land, the title of the mortgagee to the land shall be extinguished.

(3) Where a mortgagee of land has been in possession of any of the mortgaged land for a period of 12 years, no action to redeem the land of which the mortgagee has been so in possession shall thereafter be brought by the mortgagor or any person claiming through him.

(4) At the expiration of the period fixed by this Decree for a mortgagor to bring an action to redeem land subject to a mortgage, the title of the mortgagor to the land shall be extinguished.

(5) At the expiration of the period fixed by this Decree for a mortgagee of land to bring an action to recover the land or for a person claiming as mortgagee or chargee to bring an action claiming sale of the land, the right of the mortgagee or such person to the principal sum and interest secured by the mortgage or charge shall be extinguished.

Section 13—Actions Concerning Mortgage Money.

(1) No action shall be brought to recover any principal sum of money secured by a mortgage or charge on property, whether movable or immovable (other than a ship) after the expiration of twelve years from the date when the right to receive the money accrued.

(2) The right to receive any principal sum of money secured by a mortgage or charge shall not be deemed to accrue so long as the property subject to the mortgage or charge comprises any future interest or any life insurance policy which has not matured or been determined.

(3) No action shall be brought to recover arrears of interest payable in respect of any sum of money secured by a mortgage or charge on movable or immovable property (other than a ship), or to recover damages in respect of such arrears, after the expiration of six years from the date on which the interest became due.

(4) Where a prior mortgagee or other encumbrancer has been in possession of the property charged, and an action is brought within one year of the discontinuance of such possession by a subsequent encumbrancer, he may recover by that action all the arrears of interest which fell due during the period of possession of the prior encumbrancer or damages in respect thereof, notwithstanding that the period exceeded six years.

(5) Where the property subject to a mortgage or charge comprises any future interest or life insurance policy, and it is a term of the mortgage or charge that arrears of interest shall be treated as part of the principal sum secured by the mortgage or charge, interest shall not be deemed to become due before the right to receive the principal sum of money has accrued or is deemed to have accrued.

(6) At the expiration of the period fixed by this Decree for a mortgagee or chargee to bring an action to recover a principal sum of money and interest secured by a mortgage or charge on movable property (other than a ship), the right of the mortgagee or chargee to the principal sum and interest shall be extinguished.

Section 14—Recovery of Property held upon Trust.

(1) Where any property is held upon trust, including a trust for sale, and the period fixed by this Decree has expired for bringing an action to recover the property by the trustees, the title of the trustees shall not be extinguished if and so long as the right of action of any person beneficially entitled to the property either has not accrued or has not been barred by this Decree, but if and when such right of action has been so barred, the title of the trustees shall be extinguished.

(2) Where any property is held upon trust, including a trust for sale, an action to recover the property may be brought by the trustees on behalf of any person beneficially entitled in possession to the property or in the proceeds of sale whose right of action has not been barred by this Decree, notwithstanding that the right of action of the trustees would apart from this provision have been barred by this Decree.

(3) Where any property held upon trust, including a trust for sale, is in the possession of a person entitled to a beneficial interest in the property or in the proceeds of sale, not being a person solely and absolutely entitled thereto, no right of action to recover the property shall be deemed for the purposes of this Decree to accrue during such possession to any person in whom the property is vested as trustee or to any other person, entitled to a beneficial interest in the property or the proceeds of sale.

Section 15—Actions against Trustees.

(1) Subject to subsection (4) of this section, an action to recover money or other property or in respect of any breach of trust, not being an action for which a period of limitation is fixed by any other provision of this Decree, shall not be brought against a trustee or any person claiming through him after the expiration of six years from the date on which the right of action accrued.

(2) For the purposes of subsection (1) of this section a right of action shall be deemed not to have accrued to a beneficiary entitled to a future interest in trust property until the interest falls into possession.

(3) No beneficiary, as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he brought the action and this Decree had been pleaded in defence.

(4) No period of limitation fixed by this Decree shall apply to an action against a trustee or any person claiming through him where—

(a) the claim is founded on any fraud or fraudulent breach of trust to which the trustee was party or privy, or

(b) the claim is to recover trust property or the proceeds thereof still retained by the trustee and converted to his own use.

PART II—EXTENSION OF LIMITATION PERIODS

Section 16—Extension in Case of Disability.

(1) If, on the date when any right of action accrued for which a period of limitation is fixed by this Decree, the person to whom it accrued was under a disability, the period of disability shall not, subject to the subsequent provisions of this section, be taken into account in computing the relevant period of limitation, and the period of limitation shall be computed from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation might otherwise have expired.

(2) Subsection (1) shall not affect any case where the right of action first accrued to some person not under a disability through whom the person under a disability claims.

(3) Where a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person.

(4) This section shall not apply to an action to recover a penalty or forfeiture, or a sum by way of penalty or forfeiture, recoverable by virtue of any enactment, except where the action is brought by an aggrieved party.

(5) For the purposes of this Decree, a person shall be deemed to be under a disability while he is an infant or of unsound mind.

(6) Without prejudice to the generality of subsection (5) of this section a person shall be conclusively presumed to be of unsound mind while he is detained in pursuance of any enactment authorising the detention of persons of unsound mind.

Section 17—Fresh Accrual on Acknowledgement.

(1) In the following cases the right of action shall be deemed to have accrued on and not before the date of the acknowledgement:—

(a) where any right of action has accrued to recover any debt and the person liable therefor has acknowledged the debt; or

(b) where the right of action of a mortgagee of land to recover the mortgage debt has accrued, and the person in possession of the land acknowledges the mortgagee's title to the land; or

(c) where any right of action has accrued to recover any claim to the movable estate of a deceased person or to any share or interest therein, and the person accountable therefor acknowledges the claim; or

(d) where the right of a mortgagee of land to bring an action to recover land has accrued, and the person in possession of the land or the person liable for the mortgage debt acknowledges the debt;

(e) where there has accrued to any person (other than a mortgagee) any right of action to recover land, and the person in possession of the land acknowledges the title of the person to whom the right of action has accrued; or

(f) where the right of a mortgagee of land to bring an action to recover the land has accrued, and the person in possession of the land acknowledges the mortgagee's title to the land; or

(g) where the right of an encumbrancer of land to bring an action claiming sale of the land has accrued, and the person in possession of the land or the person liable for the debt secured by the encumbrance acknowledges the debt; or

(h) where a mortgagee is by virtue of the mortgage in possession of any mortgaged land, and the mortgagee acknowledges the title of the mortgagor or his equity of redemption; or

(i) where a right of action has accrued in respect of a lien for money's worth in or over land for a limited period not exceeding life, or in respect of a right in the nature of such a lien, such as a right of support or a right of residence, not being an exclusive right of residence in or on a specified part of the land, and the person in possession of the land acknowledges such lien or other right.

(2) Every acknowledgement shall be in writing and signed by its maker.

(3) An acknowledgement under this section may be made by the agent of the person by whom it is required to be made, and shall be made to the person or the agent of the person whose right or claim is being acknowledged.

(4) No acknowledgement shall be deemed to be an agreement within the meaning of the Stamp Act, 1965 (Act 311).

Section 18—Effect of Acknowledgement.

(1) An acknowledgement of a debt shall bind the person making it and his successors but not any other person.

(2) An acknowledgement of a statute-barred debt shall not bind any successor of the person giving it on whom the liability devolves on the determination of any previous interest in property under a settlement taking effect before the date of the acknowledgement.

(3) An acknowledgement of title to any land by any person in possession thereof shall bind all other persons in possession during the ensuing period of limitation.

(4) An acknowledgement by one of several personal representatives of any claim to the movable estate of a deceased person or to any share or interest therein shall bind the estate of the deceased person.

(5) Where two or more mortgagees are by virtue of the mortgage in possession of the mortgaged land, an acknowledgement of the mortgagor's title or of his equity of redemption by one of the mortgagees shall only bind him and his successors and shall not bind any other mortgagee or his successors.

(6) Where the mortgagee by whom the acknowledgement is given as aforesaid is entitled to a part of the mortgaged land and not to any ascertained part of the mortgage debt, the mortgagor shall be entitled to redeem that part of the land on payment, with interest, of the part of the mortgage debt which bears the same proportion to the whole of the debt as the value of the part of the land bears to the whole of the mortgaged land.

(7) Where there are two or more mortgagors, and the title or right to redemption of one of the mortgagors, is acknowledged as aforesaid, the acknowledgement shall be deemed to have been made to all the mortgagors.

Section 19—Fresh Accrual on Part Payment.

(1) In the following cases the right of action shall be deemed to have accrued on and not before the date of the payment:—

(a) where any right of action has accrued to recover any debt, and the person liable therefor makes any payment in respect thereof, so however that for the purposes of this provision payment of interest in whole or in part shall be treated as a payment in respect of the principal debt;

(b) where any right of action has accrued to recover any claim to the movable estate of a deceased person or to any share or interest therein, and the person accountable therefor makes any payment in respect thereof;

(c) where the right of a mortgagee of land to bring an action to recover the land has accrued, and the person in possession of the land or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest;

(d) where the right of an encumbrancer of land to bring an action claiming sale of the land has accrued, and the person in possession of the land or the person liable for the debt secured by the encumbrance makes any payment in respect thereof, whether of principal or interest;

(e) where a mortgagee is by virtue of the mortgage in possession of any mortgaged land, and receives any payment from the mortgagor in respect of the principal of the mortgage debt or the interest thereon.

(2) A payment under this section may be made by the agent of the person by whom it is required to be made, and shall be made to the person or the agent of the person in respect of whose claim the payment is being made.

(3) No endorsement or memorandum of any payment written upon any bill of exchange or promissory note by or on behalf of the party to whom such payment is made shall be deemed to be evidence of such payment for the purposes of this Part of this Decree.

Section 20—Effect of Payment.

(1) A payment made in respect of any debt shall, subject to subsection (2) of this section, bind all persons liable in respect thereof.

(2) A payment made in respect of a statute-barred debt shall not bind—

(i) any person other than the person making the payment and his successors, or

(ii) any successor on whom the liability devolves on the determination of a preceding estate or interest in property under a settlement taking effect before the date of payment.

(3) A payment by one of several personal representatives in respect of any claim to the movable estate of a deceased person shall bind the estate of the deceased person.

(4) A payment in respect of a mortgage debt by the mortgagor or any person in possession of the mortgaged property shall, so far as any right of the mortgagee to recover the property is concerned, bind all persons in possession of the mortgaged property during the ensuing period of limitation.

(5) Where two or more mortgagees of land are by virtue of the mortgage in possession of the land, and only one of the mortgagees receives any payment in respect of the principal of the mortgage debt or the interest thereon, the payment shall bind only the recipient thereof and his successors.

(6) Where a mortgagee receiving a payment under subsection (5) of this section is entitled to a part of the mortgaged land and not to any ascertained part of the mortgage debt, the mortgagor shall be entitled to redeem that part of the land on payment, with interest, of the part of the mortgage debt which bears the same proportion to the whole of the debt as the value of the part of the land bears to the whole of the mortgaged land.

(7) Where there are two or more mortgagors of land, and the mortgagee, being in possession of the land, is paid any sum in respect of the principal of the mortgage debt or the interest thereon by one of the mortgagors, the payment shall be deemed to have been made by all the mortgagors.

Section 21—Appropriation of Payment in Respect of Debts.

(1) Where—

(a) there exist a number of debts, and

(b) the person liable therefor (in this section referred to as the debtor) makes any payment, whether on account or generally, to the person to whom he is liable (in this section referred to as the creditor), and

(c) neither the debtor nor the creditor appropriates the sum paid to any particular debt or debts;

the following provisions shall have effect:—

(i) if some of or all the debts are not statute-barred, the payment shall, for the purposes of this Part of this Decree, unless the circumstances in which it was made indicate otherwise, be deemed to be appropriated pari passu in respect of each of the debts which are not statute-barred;

(ii) if all the debts are statute-barred, then the payment shall for the purposes of this Part of this Decree, unless the circumstances in which it was made indicate otherwise, be deemed to be appropriated pari passu in respect of all of the debts; so however that no such appropriation shall operate to make the payment a payment for the purposes of sections 19 and 20 of this Decree unless the circumstances in which the debtor made the payment indicate otherwise.

(2)  Nothing in subsection (1) of this section shall, where the debtor does not appropriate, operate to prevent the creditor from appropriating a payment on account or generally to a particular debt or to particular debts or to all the debts (whether statute-barred debts or not), but such appropriation shall not by reason only of its being made by the creditor operate to make the payment a payment for the purposes of sections 19 and 20 of this Decree in respect of any of such debts which are statute-barred, unless the circumstances in which the payment was made by the debtor so indicate.

Section 22—Fraud and Mistake.

(1) Where, in the case of any 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 of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any such person, or

(c) the action is for relief from the consequences of mistake,

the period of 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:

Provided that, for the purposes of this Decree, concealed fraud by one of concurrent wrongdoers shall not suspend time for another or others.

(2) Nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which—

(a) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed, or

(b) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake was made.

Section 23—Extension of Time where Material Facts not Known to Plaintiff.

(1) Notwithstanding subsection (1) of section 3 of this Decree where it is proved that the material facts relating to a cause of action to which that subsection refers were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until two years or more after the commencement of the three-year period relating to that cause of action, the plaintiff may, subject to subsections (2) and (3) of this section, bring his action within twelve months after obtaining knowledge of such facts.

(2) Subsection (1) of this section shall not apply unless the court has whether before or after the commencement of the action granted leave to the plaintiff for the purposes of this section.

(3) Nothing in this section shall be construed as excluding or otherwise affecting—

(a) any defence which may be available by virtue of any enactment other than subsection (1) of section 3 of this Decree (whether it is an enactment imposing a period of limitation or not) or by virtue of any rule of law or equity, or

(b) the operation of any enactment or rule of law or equity which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

(4) In this section a reference to a three-year period relating to a cause of action shall include a reference to any extension permitted under section 16 or 22 of this Decree in case of disability, fraud or mistake.

Section 24—Application for Leave of Court.

(1) Any application for the leave of the court under section 23 of this Decree shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications which are made after the commencement of a relevant action.

(2) Where such an application is made before the commencement of any relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient—

(a) to establish that cause of action, apart from any defence under subsection (1) of section 3 of this Decree, and

(b) to fulfil the requirements of subsection (1) of section 23 of this Decree in relation to that cause of action.

(3) Where such an application is made after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that if the like evidence were adduced in that action, that evidence would, in the absence of any evidence to the contrary, be sufficient—

(a) to establish that cause of action, apart from any defence under subsection (1) of section 3 of this Decree, and

(b) to fulfil the requirements of subsection (1) of section 23 in relation to that cause of action,

and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from this section) to afford a defence under subsection (1) of section 3 of this Decree.

(4) For the purposes of this section a fact shall, at any time, be taken to have been outside the knowledge (actual or constructive) of a person if, but only if,—

(a) he did not then know that fact;

(b) insofar as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and

(c) insofar as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances:

Provided that in the application of this subsection to a person at a time when he was under a disability and was in the custody of a parent, any reference to that person shall be construed as a reference to that parent.

Section 25—Application of Sections 23 and 24 to Action after Death of Injured Person.

(1) In relation to any action to which section 23 of this Decree refers being an action in respect of one or more causes surviving for the benefit of the estate of a deceased person by virtue of section 22 of the Civil Liability Act, 1963 (Act 176), sections 23 and 24 of this Decree shall have effect subject to the provisions of subsections (4) and (5) of this section.

(2) Sections 23 and 24 of this Decree shall, subject to subsections (4) to (6) of this section, apply to an action brought by virtue of section 16 of the Civil Liability Act, 1963 as they apply to an action to which section 23 of this Decree refers.

(3) In the following provisions of this section and in Sections 23 and 24 of this Decree as modified by those provisions, the expression "the deceased" means the person referred to in subsection (1) or (2) of this section as the case may be.

(4) Subsection (1) of section 23 of this Decree shall not apply to any action falling within subsection (1) or (2) of this section unless the action is brought before the expiration of twelve months from the date on which the deceased died.

(5) For the purposes of the application of subsection (1) of section 23 of this Decree to an action falling within subsection (1) or (2) of this section—

(a) any reference in the said subsection (1) of section 23 to the material facts being outside the knowledge of the plaintiff shall be construed as a reference to such facts being outside the knowledge of the deceased;

(b) the requirements of that subsection shall be deemed to be fulfilled in relation to a cause of action if either the matters specified in that subsection (as modified by the preceding paragraph) are proved or it is proved that the material facts relating to that cause of action were or included facts relating to that cause of action which at all times until his death were outside the knowledge (actual or constructive) of the deceased,

and any reference in this Part to the requirements of the said subsection (1) of section 23 of this Decree shall in relation to an action falling within subsection (1) or (2) of this section be construed as a reference to the requirements of that subsection as modified by this subsection.

(6) In the application of sections 23 and 24 of this Decree to an action brought by virtue of section 16 of the Civil Liability Act, 1963 —

(a) a reference to any cause of action to which an action relates shall be construed as a reference to a cause of action in respect of which it is claimed that the deceased could (but for his death) have maintained an action and recovered damages, and

(b) any reference to establishing a cause of action shall be construed as a reference to establishing that the deceased could (but for his death) have maintained an action and recovered damages in respect thereof.

PART III—ARBITRATIONS

Section 26—Application to Arbitrations.

(1) This Decree and any other limitation enactment shall apply to arbitrations as they apply to actions in the High Court.

(2) This Part of this Decree shall apply to an arbitration under any enactment as well as to an arbitration pursuant to an arbitration agreement and section 27 of this Decree shall have effect, in relation to an arbitration under any enactment, as if, for the references to an arbitration agreement, there were substituted references to such of the provisions of the enactment as relate to the arbitration.

(3) This Decree shall not apply to any arbitration for which a period of limitation is fixed by any other enactment.

(4) Nothing in this Decree shall affect an arbitration commenced before the commencement of this Decree or the title to any property which is the subject of any such arbitration.

Section 27—Commencement of Arbitration.

(1) For the purposes of this Decree and any other limitation enactment, an arbitration shall be deemed to be commenced—

(a) where one party to the arbitration serves on the other party a written notice requiring him to appoint or concur in appointing an arbitrator, or

(b) where the arbitration agreement provides that the reference shall be to a person named or designated, when one party serves on the other party a written notice requiring him to submit the dispute to the person so named or designated.

(2) A notice under this section may be served—

(a) by delivering it to the person on whom it is to be served, or

(b) by leaving it at the place in Ghana at which that person ordinarily resides or carries on business, or

(c) by sending it by registered post in an envelope addressed to that person at the place in Ghana at which he ordinarily resides or carries on business, or

(d) in any other manner provided for in the arbitration agreement.

and where a notice is sent in the manner prescribed by paragraph (c) of this section, service thereof shall unless the contrary is proved be deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post.

(3) For the purposes of this section a company registered under the Companies Code shall be deemed to carry on business at its registered office in Ghana and every other body corporate and every unincorporated body shall be deemed to carry on business at its principal office or place of business in Ghana.

Section 28—Accrual Notwithstanding Term in Agreement.

Notwithstanding any term in any arbitration agreement to the effect that no cause of action shall accrue in respect of any matter required by the agreement to be referred until an award is made under the agreement, the cause of action shall, for the purposes of this Decree and of any other limitation enactment (whether in their application to arbitrations or to other proceedings), be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement.

Section 29—Power of Court to Extend Time.

Where the High Court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration shall cease to have effect with respect to the dispute referred, the High Court may further order that the period between the commencement of the arbitration and the date of the order of the High Court shall be excluded in computing the time fixed by this Decree or any other limitation enactment for the commencement of proceedings (including arbitration) with respect to the dispute referred.

PART IV—GENERAL

Section 30—Application of this Decree.

(1) This Decree shall apply to proceedings by or against the Republic as if the Republic were a private individual.

(2) This Decree shall not apply to any proceedings in respect of the forfeiture of a ship or of an interest in a ship under any enactment relating to merchant shipping.

(3) This Decree shall apply to actions in respect of matters regulated by customary law.

Section 31—Acquiescence.

Nothing in this Decree shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.

Section 32—Set-off and Counter-Claim.

For the purposes of this Decree, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.

Section 33—Actions Barred and Pending.

Nothing in this Decree shall—

(a) enable any action to be brought which was barred by the law in force in Ghana immediately before the commencement of this Decree except insofar as the cause of action may be revived by an acknowledgement or part payment given or made in accordance with Part II of this Decree, or

(b) affect any action commenced before the commencement of this Decree or the title to any property which is the subject of any such action.

Section 34—Interpretation.

(1) In this Decree, unless the context otherwise requires:—

"acknowledgement" means an acknowledgement made under and in accordance with section 17;

"action" includes any proceeding (other than a criminal proceeding) in a court established by law;

"action to recover land" includes an action claiming a declaration of title to land, and proceedings by a mortgagee for the delivery of possession of land by a mortgagor;

"appropriate advice", in relation to any fact or circumstances, means the advice of competent persons qualified, in their respective spheres, to advise on the medical, legal and other aspects of that fact or those circumstances;

"arbitration", "arbitration agreement" and "award" have the same meanings as in the Arbitration Act, 1961 (Act 38);

"debt" includes any liquidated pecuniary claim;

"material facts" means any one or more of the following:—

(a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action;

(b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;

(c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable:

"mortgage" includes an equitable mortgage;

"other limitation enactment" means any other enactment relating to the limitation of actions;

"payment" means a payment made under and in accordance with section 19;

"penalty" does not include a fine which may be imposed on conviction for a criminal offence:

"personal injuries" includes any disease and any impairment of a person's physical or mental condition;

"personal representative" means the executor original or by representation, or the administrator of a deceased person;

"relevant action", in relation to an application for the leave of the court, means any action in connection with which the leave sought by the applicant is required;

"rent" means a rent payable under a lease or other contract of tenancy (whether in writing or not and whether express or implied) and includes a rent payable under any enactment;

"ship" includes every description of vessel used in navigation not propelled by oars;

"statute-barred debt" means a debt in respect of  which the period fixed by this Decree for the bringing of an action to recover it has expired;

"successor" means—

(i) in relation to a mortgagee his personal representatives and any other person on whom the rights under the mortgage devolve;

(ii) in relation to a person liable in respect of a debt— his personal representatives and any other person on whom the liability in respect of the debt devolves.

(2) In this Decree unless the context otherwise requires—

(a) references to a right of action shall include references to—

(i) a cause of action,

(ii) a right to receive money secured by a mortgage or charge on any property or to recover proceeds of the sale of land,

(iii) a right to receive a share or interest in the movable estate of a deceased person;

(b) references to the date of the accrual of a right of action shall—

(i) in the case of an action for an account, be construed as references to the date on which the matter arose in respect of which an account is claimed;

(ii) in the case of an action on a judgment, be construed as references to the date on which the judgment became enforceable;

(iii) in the case of an action to recover arrears of rent, be construed as references to the date on which the arrears became due;

(c) references to a person in possession of land shall in the case of land held under a lease in writing reserving a yearly rent of not less than two cedis, be construed as including references to a person who wrongfully claiming to be entitled to the land in reversion immediately expectant on the termination of the lease, is in receipt of the rent;

(d) references to a debt shall, in the case of interest, be construed as references to an instalment of the interest;

(e) references to a mortgagee who is by virtue of the mortgage in possession of any mortgaged land shall include references to a mortgagee who has obtained possession of the mortgaged land by virtue of an order of the Court.

(3) For the purposes of any action by a concurrent wrongdoer to recover any contribution in respect of any damage, the date on which his right to such contribution accrues (in this subsection referred to as "the relevant date") shall be ascertained as follows:—

(a) if that wrongdoer is held liable in respect of that damage by a judgment given in any action or an award made on any  arbitration, the relevant date shall be the date on which the judgment is given or the date of the award as the case may be;

(b) if, in any case not falling within the preceding paragraph the wrongdoer admits liability in favour of one or more persons in respect of that damage, the relevant date shall be the earliest date on which the amount to be paid by him in discharge of that liability is agreed by or on behalf of the wrongdoer and that person or each of those persons as the case may be;

and for the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the wrongdoer.

(4) For the purposes of this Decree any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining, in relation to that cause of action, that (apart from any defence under subsection (1) of section 3 of this Decree) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.

Section 35—Repeals.

(1) The enactments specified in the First Schedule to this Decree are hereby repealed to the extent indicated in that Schedule.

(2) The English statutes specified in the Second Schedule to this Decree shall cease to apply in Ghana to the extent indicated in that Schedule, and accordingly the references to those statutes in the First Schedule to the Courts Act, 1971 (Act 372) are hereby repealed to the extent that the said statutes are disapplied by this subsection.

Section 36—Commencement.

This Decree shall come into operation on the 1st day of January, 1973.

SCHEDULES

FIRST SCHEDULE

(Section 35(1))

REPEALS

Short Title                                                                  Extent of Repeal      

Railways Ordinance (Cap. 233)                              Section 90    

Minerals Duty Ordinance, 1952 (No. 20)                Section 30(2)

Mineral Oil Taxation Ordinance, 1956 (No. 17)     Section 33(2).           

Local Government Act, 1961 (Act 54)                    Sections 132 to 134

Public Officers Act, 1962 (Act 114)                        Paragraphs (a) and (b) of section 2(1).     

Ports Act, 1962 (Act 115)                                        Section 94 In section 95, for "The notice referred to in section 94 and any" substitute "Any".        

Civil Liability Act, 1963 (Act 176)                            Sections 12, 13, 16(6) and 30A.    

Civil Liability Act, 1963 (Amendment)                    The whole Decree

Decree, 1968 (NLCD 322).            

Railway and Ports Act, 1971 (Act 358)                  Section 19(1)

Local Administration Act, 1971 (Act 359)             Section 99.   

SECOND SCHEDULE

(Section 35(2))

ENGLISH STATUTES CEASING TO APPLY

Date of Statute                                  Short Title                                          Extent of Cesser

1623 (21 Jac.1.c.16)                        Limitation Act                                                The whole Statute

1705(4 & 5 Anne, c.3)          Administration of Justice Act                       The whole Statute    

1828 (9 Geo.IV,c.14)                        Statute of Frauds Amendment Act The whole  Statute.                                                                                                               except sections 5 & 6.

1833 (3 & 4 Will. IV, c.42)    Civil Procedure Act                           The whole Statute    

1856 (19 & 20 Vict.,c.97)     Mercantile Law Amendment Act.    The whole Statute.   

COLONEL I.K. ACHEAMPONG

Chairman of the National Redemption Council

Date of Gazette Notification: 7th April, 1972.