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BENIN, J.A.:
The plaintiff/appellant, an
ex-employee of the
defendant/respondent company,
sued his former employers
seeking these reliefs:—
a) General damages placed at
large for breach of contract of
employment.
b) Declaration that plaintiff is
entitled to be paid for injuries
suffered on board MV Kumasi at
Apapa Port, Lagos on or about
the 28th day of April 1991.
c) Order that defendant company
render proper accounts to
determine sums due to the
plaintiff as stipulated in the
company's memorandum of
agreement with its seafarers.
There was also a statement of
claim. In order to appreciate
fully the actual relief that the
plaintiff was seeking from the
court, I consider it necessary
to set out in extenso the
statement of claim. It provides:
1. Plaintiff is a seafarer who
was until or about the 28th day
of April 1991 employed as a
motorman on board defendants’
vessel MV Kumasi.
2. Defendant company are
shippers and have extensive
facilities in the port of Tema
and elsewhere.
3. Plaintiff says he was on
board the said vessel when in
the morning (07. 30 - 08. 30
GMT) and in the course of
discharging his duties sustained
injury which was very serious.
4. Plaintiff says on the said
date the MV Kumasi had set sail
from the Nigerian port of Apapa
headed for Ghana.
5. Plaintiff says when the
injury was getting aggravated he
was sent ashore by the master of
the vessel at Cotonou in the
Republic of Benin where he was
treated by a Beninois doctor who
recommended emergency surgery to
be conducted by doctors in
Ghana. So the MV Kumasi sailed
again for Ghana.
6. Plaintiff says the Benin
doctor recommended certain
emergency medications which
plaintiff procured and paid for
out of his own pocket.
7. On arrival at the port of
Tema plaintiff was met by the
defendant’s crew manager (Joe
Parket) and took him in his
personal car (crew manager's)
and drove him out of the harbour
to the main harbour gate and
left him out there to fend for
himself.
8. Plaintiff says he took a taxi
to his house in Accra and on the
morrow he was accompanied by a
cadet friend of his and
plaintiff’s wife to Bartor where
plaintiff was admitted in
hospital for surgery the next
day.
9. Plaintiff says he personally
paid for all the expenses
involved. The Bator doctors
recommended continued
out-patient treatment and so he
went to Mamprobi Polyclinic.
10. Plaintiff says a copy of the
doctor's report was sent to the
defendant company by the
hospital authorities.
11. Plaintiff says the major
operation and the follow-up
out-patient treatment lasted
less than 120 days.
12. Plaintiff says upon recovery
defendant refused to take him
back into his former job.
13. Plaintiff says in
correspondence exchanged between
his lawyer and the defendant
company, the latter tried to no
avail to pretend ignorance of
the incident.
14. Plaintiff finally says that
at the time of the incident he
was earning US Dollars 12.00 per
day and therefore claims as per
the writ of summons.
Even a cursory reading of these
averments will no doubt support
a conclusion that the plaintiff
had abandoned the first and last
reliefs endorsed on the writ, or
were not intended to be pursued
at all, or were intended to give
weight to the second relief on
which all the averments were
focused. Where no material facts
are offered in the pleadings in
support of a relief endorsed on
a writ, the party will be deemed
to have abandoned that
particular relief. All the
averments were concentrated on
the second relief which is for
damages for personal injuries.
The averments disclose that the
injuries were sustained in the
course of the plaintiff’s
employment with the defendants.
The defendants are saying that
the claim is statute-barred
since the writ was issued more
than three years after the cause
of action arose. The defendants
moved the trial court on an
application on notice for an
order dismissing the plaintiff’s
suit on ground that it was
statute-barred. The defendants
had averred that the plaintiff
was engaged by them even after
his injury, contrary to what the
plaintiff had averred in his
pleadings, and remained in their
employment until he was
dismissed in 1996 for reasons
that had nothing to do with the
injuries he is talking about. So
in the affidavit in support, the
defendants deposed that the
plaintiff was estopped from
using this 1991 incident to
found this claim. It was urged
on the court that this action
was completely barred by the
Limitation Decree and could thus
not be maintained in law.
In answer to this, the plaintiff
filed an affidavit in opposition
in which he stated these
relevant facts:
“5. That I say that I have been
persistent in pressing for my
compensation with my employers,
the defendants, immediately I
recovered from my injuries
somewhere in 1992.
6. That it was after my
persistent efforts to get
compensated failed that I
contacted my Solicitors ........
to write to them in October 1997
and again in November 1997 to
press for the same issue of
adequate compensation.
7. That I say that it was after
defendants have refused to pay
heed to my lawyer that I was
compelled to initiate this
action to pursue my legal rights
in court.
8. That I have been advised and
verily believe same to be true
that the fact that I was
employed by defendant after my
recovery does not operate as an
estoppel on my right to be
compensated for injuries I
sustained while in the job.
10. That I have been advised and
verily believe same to be true
the instant action is not
statute-barred as I have been
persistent in my demands right
from the day of my injury.”
There was also a supplementary
affidavit in opposition in which
these relevant depositions were
made:
“5. That per the attached
letters………..it could be seen
that I wrote pressing for the
said compensation in June, 1991
and repeated in October, 1993.
6. That I say that though they
never replied to these letters
they kept me in the vain hope
that they would act on my
compensation.”
On these facts the trial court
upheld the application and
dismissed the suit, on ground
that “the plaintiff’s action, as
commenced on 16th January, 1998
is out of time for a full three
years, eight months and five
days, and accordingly
statute-barred.” The plaintiff
has appealed on these grounds:
a) That the learned Judge erred
in law when he dismissed the
plaintiff’s case as being
statute-barred when there was
evidence on record that the
plaintiff first sought ex-curia
means to resolve the issue
before formally bringing the
case to court.
b) The ruling was against the
weight of evidence.
Let me now refer to the
arguments made before this
court. Counsel for the
appellant’s main argument may be
found in this extract from the
written submission: “the
appellant was obviously misled
by the defendants’ assurances
that the compensations would be
paid only to realise after his
dismissal in 1996 that the
defendant company did not intend
to pay the compensation. For
this reason once the assurance
to pay the compensation had been
given, the plaintiff was
entitled to sue the defendant
company outside the limitation
period.”
It appears counsel’s submission
is completely at variance with
the evidence tendered by the
plaintiff to the court below,
for nowhere in the two
affidavits filed or in the
statement of claim did he claim
the defendants had accepted or
promised or assured to pay him
any compensation. The averments
in the statement of claim as
well as the affidavit
depositions are contrary to what
counsel was submitting. In
paragraph 13 of the statement of
claim, the plaintiff has stated
clearly that the correspondence
between his lawyer and the
defendants yielded no good
results to him; indeed he
accused the defendants of
feigning knowledge of the
injury. Certainly this is not
the conduct of a person who is
said to have given an assurance
to pay. Then in paragraph 7 of
the affidavit in opposition, the
plaintiff has sworn that the
defendants paid no heed to his
own demands for compensation as
well those of his lawyers, hence
this action. Where then did
counsel get the information from
on which he based his
submission? Maybe he got it from
the letters annexed to the
supplementary affidavit in
opposition since those were the
only documentary facts put
before the court. But even there
the plaintiff himself conceded
in that same affidavit that the
defendants did not react to
those letters. Where, how and
when then was the assurance
given? And by whom, if at all?
For their full force and effect,
I’ll quote those two letters in
extenso. The first one is dated
14th June, 1991 and was
addressed to the General Manager
of the defendant company. It
reads:
“Please to your information I am
appealing to you about my
accident I had on board M.V.
Kumasi on the 2nd April, 1991,
that led to operation on the 7th
May, 1991 of which I have
submitted the copy of the
Doctor's report to the company
through my boss crew manager,
Mr. Joe Parker for my
compensation.
According to Article 10 of the
company’s bye law agreement
between Roro Service Ghana Ltd.
up till now every word from Joe
Parker to me is only by word of
mouth, and nobody borders me,
therefore I have to write to
your notice to bring your
attention for speedy work on the
compensation.
I will be sorry for future
inconvenience. Thanks.”
This letter speaks for itself.
In it the plaintiff was
lamenting the fact that the
company had ignored his request
for compensation; indeed the
officials had literally snubbed
him. Let us move on to the
second letter, dated 10th
October, 1993, also addressed to
the company’s General Manager.
It was headed “LETTER OF APPEAL
FOR MY COMPENSATION.” Its
contents are “I hope this my
second letter to you about my
compensation will cause no
offence to my dismissal, just
because I am fighting for my
right. Since I did not hear
anything from you, I personally
call (sic) on you at your
residence at the Airport
Residential area, since no reply
to my first letter dated the
14th June 1991 about the
accident claim compensation.
In our discussion you said I
should come to your office at
Tema on my compensation case but
not in your house. At Tema in
your office all you said to me
is that since I am somehow o.k.
I should come back to work to
enable you send telex to Head
Office at London about my
compensation since it's (OTAL)
OTAL AFRICA LINE who is to pay
the money and also you said
while waiting I can be working
to get money to feed myself and
at the same time pay the rest of
my medical expenses. At this
point I ask you why the company
refuse to care for me? All you
said was I don't know why.
I insist to forward my case to
the Managing Director (Alhaji
Banda). All you said again is
that you are the British General
Manager therefore I should have
trust in you to solve my problem
for me. Due to the trust and the
respect I have for you as my
Manager I do as you said. But
however for years now I heard
nothing from you or from the
company.
Will you please permit me to
send my problem to the Director
since every opportunity has
failed.
Please I don’t want this to lead
I and the company to a future
litigation if every persuasion
of my efforts has failed.
Because time for payment is over
years now and I can't do
otherwise than to write back to
you again to know from you why
the delayance for me to advise
myself. However I will see the
Director myself about this
topic.”
It is clear from this letter too
that the plaintiff was not
making any headway in his quest
to recover compensation from the
company. Hence the plaintiff
decided to advise himself. As at
the date of this letter the
plaintiff was within time to sue
to recover any damages he
believed he was entitled to.
Under section 3(1) of the
Limitation Decree, 1972
(N.R.C.D. 54)—hereinafter called
the Decree—the plaintiff had
three years to sue to recover
damages for personal injuries.
And since by ‘assurance’ the
plaintiff meant that the
defendants had admitted
liability, as submitted by his
counsel to this court in
reference to paragraph 10 of the
statement of defence, then that
plea does not avail him. This is
because the Decree requires all
such admission of liability,
appropriately termed
‘acknowledgment’ under section
17 to be in writing. The
relevant portions of the Decree
provide:
17(1) In the following cases the
right of action shall be deemed
to have accrued on and not
before the date of the
acknowledgment:
(a) where any right of action
has accrued to recover any debt
and the person liable therefor
has acknowledged the debt;
(2) Every acknowledgment shall
be in writing and signed by its
maker.
As I have already pointed out,
the plaintiff himself had said
in his letters that the
defendants were not acting on
his demand for compensation and
so had rightly, in my view,
decided to advise himself. There
was no admission on the part of
the defendants. The said
paragraph 10 of the statement of
defence which counsel said was
an admission reads: ‘The
defendants deny paragraph 12 of
the plaintiff’s statement of
claim and say further that it
was agreed between the
defendants and the plaintiff
that since as a crew boy and
casual labourer his conditions
of service did not cover the
payment of his medical expenses
he would be compensated by being
employed by the defendants on
European voyages.’
I fail to see how this amounts
to an admission of liability to
pay plaintiff. If anything at
all, the defendants had
effectively told the plaintiff
he was not entitled to recover
compensation under their
conditions of service, to which
the plaintiff had nodded his
agreement. I should think the
decision to re-engage the
plaintiff in the defendants’
employment did not amount to an
admission of liability in the
circumstances. And assuming, for
the sake of argument, that it
amounted to an admission, it
only meant that the cause of
action had re-accrued to the
plaintiff from the date he was
re-engaged. And even using that
date as the basis for the claim
based on personal injury, the
action would still be caught by
the statute of limitation.
I now consider the three cases
that were cited by counsel for
the appellant namely:
1. LUBOUSKY V. SNELLING (1944) 1
K.B. 44, C.A.;
2. FIAGA V. GHANA COCOA BOARD
(1992) 2 G.L.R. 393;
3. ROBERT V. MINISTER OF
PENSIONS (1949) K.B. 227.
To his credit, Counsel rightly
set out the main points of these
decisions and I quote him. “The
ingredients to be gleaned (from
these decisions) …………..are the
following:
i) The plaintiff must have a
cause of action.
ii) There should be evidence of
having pursued the cause of
action.
iii) There should be evidence of
admission of the liability by
the defendant.”
In the cases cited, especially
the first and the third, there
was a finding that the defendant
had accepted liability intended
to be binding so the court held
them bound by it. And so in the
Fiaga case (supra) where the
court found no such evidence of
admission existed, it rejected
this plea. Indeed the fact that
a party was seeking an out of
court settlement is never a good
reason or ground for denying a
defendant a plea of limitation,
under the statute. A party could
always pursue a case in court
while at the same time seeking
an out of court settlement,
especially where limitation
could be invoked against him.
Counsel for the appellant also
cited the case of MOORGATE
MERCANTILE LTD. V. TWITCHING
(1975) 3 ALL ER 314 and said
that “the basic premise of the
judgment was that a person who
makes an unambiguous
representation by words or
conduct or by silence of an
existing fact and causes another
party to act to his detriment on
reliance on the representation
will not be permitted
subsequently to act
inconsistently with that
representation.” This submission
is only a restatement of the
common law doctrine of
promissory estoppel. But the
Decree departs from this
principle in that the statute
requires such admission to be in
writing in order to defeat a
plea of estoppel by limitation.
Since there is no evidence of
admission of liability, let
alone one in writing, the plea
of limitation cannot be
defeated.
Counsel for the plaintiff, in an
apparent desperate effort at
salvaging this case for the
client, tried to rope in fraud
against the defendants. This
they sought to do by way of a
Reply filed out of time without
leave of court. They, however,
regularised the position by
seeking leave of court which we
do grant to admit the Reply
filed out of time, if only to
save time and expense. They made
reference to section 22 of the
Decree as well as the case of
DEDE V. TETTEH & Others (1976) 1
G.L.R. 49 on the effect of fraud
on a plea of limitation. Counsel
conceded in his reply to the
respondent counsel’s submission
that fraud must be pleaded with
the material particulars. But he
also must be aware that the
plaintiff never raised fraud
against the defendants. No reply
was filed to the defence which
would have been the appropriate
place to have raised this plea
of fraud to the defence plea of
limitation. And even when the
plaintiff filed affidavits in
response to the application to
dismiss the suit, he never
raised this question of fraud.
Counsel again referred to
paragraph 13 of the statement of
claim which he said contains
“ingredients that can be the
basis of fraud” and that if the
case is allowed to go to trial,
an amendment could be sought to
the pleadings in order to plead
the particulars of fraud. I do
not think fraud could even be
remotely inferred from paragraph
13 of the statement of claim. If
a party feigns ignorance of a
fact that is no evidence of
fraud. It is not right or
justifiable to allow a party to
come into a case on ground that
an amendment will enable him
sustain his cause of action
after it has been dismissed on
the pleadings.
In my view the plaintiff’s
action founded on damages for
personal injury, whether based
on contract or tort, is
statute-barred. There was no
plea of fraud or
misrepresentation. Nor was there
a successful plea of admission
of liability or acknowledgment
so as to defeat the plea of
limitation. The trial court’s
conclusion was thus justified
and must be supported. I'll
accordingly dismiss the appeal.
A. A. BENIN
JUSTICE OF APPEAL
TWUMASI J.A.:
I agree that the appeal be
dismissed upon the reasons which
my brother Benin J.A. has
admirably given.
B. T. TWUMASI
JUSTICE OF APPEAL
FARKYE J.A.
I also agree with the judgment
that the appeal be dismissed.
S.T. FARKYE
JUSTICE OF APPEAL.
COUNSEL
JOE CHARTEY for Efua Chartey for
Plaintiff/Appellant.
KWENYEHIA for
Defendant/Appellant. |
