Statute of Limitations-Period for bar begins from date action could have been taken-Application-Sections 14 and 19 Supreme Court Ordinance-Generally applicable under Section 14 but excluded in certain circumstances under Section 19­Discussion of these circumstance.- Before importing Native Customary law it must be shown that substantial injustice would result from its omission-Where both parties are native.- onus is on party who wishes to exclude it-where one party non-native onus un party who wishes to import it to show that is exclusion would be substantially unjust.

The facts are set out in the judgments.

Held: Appeal allowed. Claim was statute barred. Judgment of Court below set aside.

R. E. Phipps (with him E. C. Quist ) for Appellants.

K. Adumua Bossman for Respondent.

The following judgments were delivered:­ KINGDON, C.J., NIGERIA.

This is an appeal from a judgment of Deane, C.J., sitting in the Divisional Court at Accra and raises the very important question of the applicability of the Statute of Limitations. By his writ the plaintiff claimed £500 damages for breach of agree­ment. There were no formal pleadings but in his opening state­ment the defendants' counsel expressly pleaded that the claim was statute barred. )

The facts are very fully set out by the learned Chief Justice in his judgment and need only be shortly summarised here for the purpose of considering the question of whether the claim is statute barred or not. The plaintiff is an educated African carpenter, the defendants are a European Company. The defendants supplied the plaintiff with a portable sawing machine which they obtained from Switzerland to his order in October, 1924. On delivery a written agreement under seal was entered into by the parties bearing date the 3rd November 1924. By that agreement the defendants agreed to sell the machine to the plaintiff, but it was expressly provided that the machine should remain the property of the defendants until the full amount of the purchase money was paid. The machine turned out to be useless for the purpose for which it was intended in spite of genuine attempts by both parties

" equity, or good conscience, or incompatible either "in terms or by necessary implication with any "Ordinance, or any rule, regulation, order, proclamation or bye-law made under any Ordinance " for the time being in force in the Colony. Such " native customary law shall, save where the circum­" stances, nature, or justice of the case shall otherwise " require, be deemed applicable in causes and matters "where the parties thereto are natives, and "particularly, but without derogating from their " application in other cases, in causes and matters " relating to marriage under native customary law " and to the tenure and transfer of real and personal "property~ and to inheritance and testamentary '.' dispositions, and also in causes and matters between " natives and non-natives where it shall appear to the " Court that substantial injustice would be done to " any party by a strict adherence to the rules of any "law or laws other than native customary law. "Provided nevertheless that no party shall be "entitled to claim the benefit of any native "customary law if it shall appear, either from " express contract or from the nature of the trans­" actions out of which any cause, matter or question

. " shall have arisen, that such party agreed or must "be taken to have agreed that his obligations in "connection with such transactions should be " regulated exclusively by some law or laws other " than native customary law. And provided further, " that in cases where no express rule is applicable to " any matter in issue the Court shall be guided by "the principles of justice, equity and good

" conscience " .

For the purposes of this case there is no material difference between the present wording and the wording of the section prior to 1927 when it was amended (No. 19 of 1927), there being a further amendment in 1929 (No. 11 of 1929).

Redward in his Comments on Gold Coast Ordinances at pages 10 and 11 sets out thus his view of the law as it stood in 1909:-

" The question as to the application of the Statutes of "Limitations has more than once engaged the " attention of the Gold Coast Courts, but the local " case law on this subject is not in a very satisfactory "condition. The better opinion is that, except in " cases coming within a provision in section 19 of the "Ordinance, these statutes have no application as "between natives, and that a defence of the Statutes " of Limitations in a suit between natives, or between "a native and a European, must rest entirely, and" can only succeed, upon evidence of a contract tl, be " bound exclusively by English law, such contract " being either express, or implied from the course of " dealing or the nature of the transactions between " the parties. In this view of the matter, the right "to claim the benefit of the statutes is not, in "strictness, a matter of law, but is purely " conventional or contractual, within the provision "of section 19 of Ordinance. In order that the " Court may be induced to hold that English law " shall apply under section 19, it must be satisfied ., that the parties agreed that their obligations ., should be regulated exclusively by English law, " and not partly by English law and partly by native " law "

 .•

Again at page 14 he writes, referring to Indian law, " there is " no provision so strongly worded as section 19 of the Supreme " Court Ordinance of the Gold Coast, by which the native is only •• to be deprived of the benefit of any native law or custom when it "can be shown that he has excluded it by contract, express or •• implied ".

The view expressed in these quotations has been accepted in subsequent cases, notably those of Hughes v. Davies decided in 1909 (Renner's Reports, 549-557), and Kwam,in Aradzie v. Kobina Yandor & Another (F .C. 1922, p. 91) in the first of which Francis Smith, J. said: "In my opinion whether the statute is to be "applied or not must depend on the circumstances of each " individual case within the terms of the proviso to section 19 of "the Supreme Court Ordinance, and none of the authorities " decided by the Supreme Court has been so determined outside " that proviso".

It appears to me from these quotations from Redwar and from the subsequent cases that the material distinction which the section makes between cases where both parties are natives and cases where one is a native and one a non-native has been overlooked. Where both are natives native customary law applies (absolutely under the law in force when Redwar wrote, but now " save where the "circumstances, nature or justice of the case shall otherwise " require "). On the other hand where one party is a native and one a non-native- the native customary law only applies where it shall appear to the Court that substantial injustice would be done to any party by a strict adherence to the rules of any other law. In other words, it is a condition precedent of the application of the native customary law at all that there would be substantial injustice if it were not applied. It is not until that condition precedent is fulfilled that consideration need be given to the terms of the first proviso to the present section whereby a limitation is put upon the application of the native customary law.

" equity, or good conscience, or incompatible either "in terms or by necessary implication with any "Ordinance, or any rule, regulation, order, pro­"clamation or bye-law made under any Ordinance " for the time being in force in the Colony. Such " native customary law shall, save where the circum­" stances, nature, or justice of the case shall otherwise " require, be deemed applicable in causes and matters "where the parties thereto are natives, and "particularly, but without derogating from their " application in other cases, in causes and matters " relating to marriage under native customary law " and to the tenure and transfer of real and personal "property~ and to inheritance and testamentary '.' dispositions, and also in causes and matters between " natives and non-natives where it shall appear to the " Court that substantial injustice would be done to " any party by a strict adherence to the rules of any "law or laws other than native customary law. "Provided nevertheless that no party shall be "entitled to claini the benefit of any native "customary law if it shall appear, either from " express contract or from the nature of the tran8­" actions out of which any cause,' matter or question

. " shall have arisen, that such party agreed or must "be taken to have agreed that his obligations in "connection with such transactions should be "regulated exclusively by some law or laws other " than native customary law. And provided further, " that in cases where no express rule is applicable to " any matter in issue the Court shall be guided by "the principles of justice, equity and good " conscience ".

For the purposes of this case there is no material difference between the present wording and the wording of the section prior to 1927 when it was amended (No. 19 of 1927), there being a further amendment in 1929 (No. 11 of 1929).

Redward in his Comments on Gold Coast Ordinances at pages 10 and 11 sets out thus his view of the law as it stood in 1909:-

" The question as to the application of the Statutes of "Limitations has more than once engaged the " attention of the Gold Coast Courts, but the local " case law on this subject is not in a very satisfactory "condition. The better opinion is that, except in " cases coming within a provision in section 19 of the " Ordinance, these statutes have no application as " between natives, and that a defence of the Statutes " of Limitations in a suit between natives, or between "a native and a European, must rest entirely, and " can only succeed, upon evidence of a contract to be " bound exclusively by English law, such contract " being either express, or implied from the course of " dealing or the nature of the transactions between ,Union " the parties. In this view of the matter, the right "to claim the benefit of the statutes is not, in  "strictness, a matter of law, but is purely " conventional or contractual, within the provision "of section I!,) of Ordinance. In order that the " " Court may be induced to hold that English law " shall apply under section 19, it must be satisfied , that the parties agreed that their obligations "should be regulated exclusively by English law, " and not partly by English law and partly by native " law " .•

Again at page 14 he writes, referring to Indian law, " there is " no provision so strongly worded as section 19 of the Supreme " Court Ordinance of the Gold Coast, by which the native is only " to be deprived of the benefit of any native law or custom when it "can be shown that he has excluded it by contract, express or " implied ".

The view expressed in these quotations has been accepted III subsequent cases, notably those of Hughes v.Davies decided in 1909 (Renner's Reports, 549-557), and Kwam.in Aradzie v. Kobina Yandor ~ Another (F.C. 1922, p. 91) in the first of which Francis Smith, J. said: "In my opinion whether the statute is to be "applied or not must depend on the circumstances of each " individual case within the terms of the proviso to section 19 of "the Supreme Court Ordinance, and none of the authorities " decided by the Supreme Court has been. so determined outside " that proviso".

It appears to me from these quotations from Redwar and from the subsequent cases that the material distinction which the certion makes between cases where both parties are natives and cases where one is a native and one a non-native has been overlooked. Where both are natives native customary law applies (absolutely under the law in force when Redwar wrote, but now " save where the "circumstances, nature or justice of the case shall otherwise " require "). On the other hand where one party is a native and one a non-native- the native customary law only applies where it shall appear to the Court that substantial injustice would be done to any party by a strict adherence to the rules of any other law. In other words, it is a condition precedent of the application of the native customary law at all that there would be substantial injustice if it were not applied. It is not until that condition precedent is fulfilled that consideration need be given to the terms of the first proviso to the present section whereby a limitation is put upon the application of the native customary law.

This point was not overlooked by Hutchinson, C.J. in 1889 when in the case of J. J. Fischer 9' Co. v. C. F. Swaniker (supra) he decided " that in an action between a European and a native " the Statutes of Limitations apply", after holding that in the case before him" no substantial injustice would be done to either " party by adherence to the English law".

Assuming that I am right as to the necessity for this condition precedent, it becomes necessary to examine the case now before the Court and decide whether such condition was present. The learned Chief Justice in the Court below fully realised the necessity for this condition as is clear from the passage in his judgment: "It " seems to me, therefore, that in this case, which is one between " a native country carpenter and a European company, if I ,am " satisfied that a substantial injustice would be done if English " law is adhered to the preference must be given to the native " unless there is an express contract that English law shall apply "exclusively, or unless the circumstances point to both parties " having agreed to be bound exclusively by English law".

He gave careful consideration to the question and decided it in the plaintiff's favour. He says: "In my view there would be " a substantial injustice if I acceded to this plea" .

Now in one sense there must always be an injustice when a plea under the statutes is set up and        succeeds. The plaintiff may or may not have a good case, but good or bad it is refused a hearing on its merits. If I understand the reasoning of the statute aright it is that a greater injustice is likely to be done by allowing stale claims than by refusing them a hearing on the merits. Any plaintiff against whom the statute is successfully pleaded must feel a sense of grievance and that he has suffered a hardship. But I think the words of section 19 of the Ordinance "substantial injustice" impute something more than this, something more than the ordinary hardship which always accrues when the statute is enforced. I cannot find that this" something more" is present in the case now under appeal. The case appears to me to be typical of the cases at which the statute is expressly aimed viz: C3ses in which the plaintiff cannot be expected to have kept available the evidence necessary to answer the plaintiff's case. The plaintiff is a native of the literate class, the members of which are, in my experience, well able to take care of themselves and their legal rights. There is very strong suspicion in this case that the delay has been deliberate and I think it would be a dangerous precedent to offer encouragement to such conduct. Moreover are the equities really all on the plaintiff's side? It was he who had the idea of experimenting with this machine and it was he who stood to make a profit if the experiment were successful. Is it not fair ,that he should bear the loss when the experiment failed? Someone has got to bear the loss and why should it all fall on the defendants? They are suffering some of it anyway. In putting this point I am aware that the answer is that the Court below found as a fact that the defendants had been guilty of a breach of contract in supplying a machine which was not fit for its purpose. But surely it is just on this point that the defendants might have been able to adduce material evidence if the action had been instituted within a reason­able time, and therefore in justice to the defendants the statute ought to be applied.

For these reasons I am of opinion that the finding of the Court below that the Statute of Limitations did not apply to this case was wrong and ought to be reversed. But counsel for the respondent has submitted that the Statute of Limitations does not apply in this case which, he suggests, is within the Civil Procedure Act of 1833 instead, because the written agreement between the parties (Exhibit" B ") is under seal and therefore the action is for a specialty debt. But the claim is for unliquidated damages for breach of contract and this is not a specialty debt, so that there is nothing ill this submission.

For the reasons I have given I am of opinion that the claim in this case was statute barred, and this being so it is unnecessary to consider the other grounds of appeal.

In my opinion this appeal should be allowed and judgment should be entered for the defendants with costs in this Court and in the Court below.

GRAHAM PAUL, J.

The Statute of Limitations has been pleaded by the defendants in bar of the claim herein. The learned Chief Justice in the Court below has held that the Statute of Limitations does not apply to this case, and has given judgment for the plaintiff for the sum of £32!) with costs. Against that judgment the defendants have appealed to this Court.

The defendants-appellants maintain inter alia that the learned ,Judge was wrong in holding that the Statute of Limitations·· does not apply to this case, and I think their contention is well founded.

The question whether the Statute of Limitations applies to t his case depends upon the terms of sections 14 and 19 of the Supreme Court Ordinance and upon the particular facts of this case.

Section 14 of the Supreme Court Ordinance lays down that "the statutes of general application which were in force in "England on 24th .July, 1874" shall be in force within the jurisdiction of the Supreme Court. The Statute of Limitations 1623 is undoubtedly and admittedly a statute of general application which was in force in England on 24th July, 1874.

It follows therefore that the Statute of Limitations is under section 14 in force in the jurisdiction of the Supreme Court, and ill terms of Section 14 it applies to the prel1ent case.

       The plaintiff however sets up section 19 of the Supreme Court Ordinance, which provides inter alia that nothing in the Ordinance shall deprive any person of the benefit of any native customary law which complies with certain qualifications-i.e. "not being " repugnant to justice, equity or good conscience, or incompatible " either in terms or by necessary implication" with the legislation of the Colony.

Section 19, having indicated the necessary qualifications of the native customary laws of which persons are not to be deprived, goes on to lay down to what causes and matters such customs shall be deemed applicable. It dealt first with causes and matters where the parties are natives, and afterwards with causes and matters  between natives and non-natives

        As regards causes and matters where the parties are natives, it is provided that "such customary law" shall be deemed applicable, " save where the circumstances, nature or justice of the " case shall otherwise require ".

As regards causes and matters between' natives and non­ natives, it is provided that" such customary law" shall be deemed applicable "where it shall appear to the Court that substantial " injustice would be done to any party by a strict adherence to the " rules of any law or laws other than native customary law" .

The distinction the section draws between the two classes of causes and matters as regards the applicability of " such native "customary law" is as clear as it is important. Where the parties to a cause or matter are natives the onus is upon the party who opposes the application of " such native customary law" to satisfy the Court that it should not be applied. In causes and matters between natives and non-natives the onus is upon the party seeking to apply "such native customary law" to satisfy the Court" that substantial injustice would be done to any party by a " strict adherence to the rules of any law or laws other than native " customary law".

There is also a proviso to section 19 but in my view it has no application to the facts of this case. '1'he plaintiff is seeking under section 19 to apply to this case the native customary law that claims are not barred by lapse of time. The effect of section 19, as I have analysed its provisions, ill to place upon the plaintiff in this case the onus of satisfying the Court that substantial injustice would be done to him by a strict adherence to the rules of the Statute of Limitations, 1623. In my opinion he has failed to discharge that onus.

Re issued his writ in September, 1933, claiming £500 damages for a breach of contract which he alleges took place in October, 1924-practically nine years before. There is a very vague letter from the plaintiff to the defendants dated 7th November, 1927, but from that date until the date of the writ nearly six years later no demand whatever, either written or verbal, was made by the plaintiff to the defendants.

There is in evidence a written hire-purchase agreement between the parties relating to the sawing machine in question, but the merits of the claim depend upon oral evidence as w what happened prior to the execution of that agreement and afterwards. Owing to the long delay by the plaintiff the defendants are unable to produce the evidence, oral and documentary, necessary to put their case fairly before the Court. They had no notice whatever " that an action was pending or threatened by the plaintiff' so had no reason to take steps to preserve evidence to meet such  an action.                                                               '

It had not been proved that the plaintiff, in delaying the intimation of his claim for damages or the issue of his writ for nine years after the cause of action arose, was actuated by the deliberate and dishonest motive of waiting till he knew that the defendants' evidence was no longer available in answer to his claim. But it would be practically impossible to prove that and unreasonable to expect such proof from a defendant in any case. It has, however, been suggested by defendants' counsel that it was with that deliberate object that the plaintiff delayed and it may have been so. It is a striking feature of the evidence that the plaintiff offers no bona fide reason or even plausible excuse for his delay. It seems to me that the reason for his silence on that point may well be--as the defendants' counsel suggests-that he has. no bona fide reason or excuse to give.

If this judgment stands it will be possible for any native with a cause of action against a non-native-without offering any bona fide reason or excuse for the delay-to wait until all the· defendant's evidence, by death or retrial of witnesses or loss of documents, has ceased to be available, and then bring his action. I am unable to agree to the creating of a precedent of that effect.

'1'0 oust the effect of the Statute of Limitations in this case I consider that the plaintiff would have to satisfy the Court that there was some bona fide reason why he had delayed so long. For instance, if he had been ill during the last six or seven years; if the defendants had been for the last six or seven years putting him off with promises; if he had been for any other bona fide reason prevented from taking his action. But the plaintiff in his evidence suggests absolutely nothing of the kind.

The learned Chief Justice in his judgment says this claim in the writ was no new demand. On the evidence I am unable to agree with that view. Also 1 am unable to agree that there is evidence that the plaintiff was so poor or so ignorant that he could not sue for damages within a reasonable time after the alleged breach. The plaintiff himself never suggested anything of the kind.

The learned Chief Justice comments on the failure on the part of the defendants to produce correspondence. But when the defendants sought to prove a most material letter written by them to the plaintiff by production of the office copy the learned Chief Justice rejected it because the typist who typed the letter over six years ago could not specifically remember posting that very letter. The plaintiff however was allowed to prove his letter of 1927 to the defendants by production of a copy without giving evidence of delivery to the defendants.

In considering whether a case of substantial injustice is made out by one party to a suit the Court must not lose sight altogether of the interests of the other party. Substantial justice or injustice in a suit to a party in that suit cannot be done without reference to the claims to justice of the other party. I think the learned Chief Justice lost sight of the defendants' claims to justice in confining his attention solely to the question whether the plaintiff would suffer a substantial injustice by the application of the Statute of Limitations.

The plaintiff's claim is based entirely on the English law of warranty. No evidence was given as to native customary law on that point; the plaintiff simply imported under section 14 of the Supreme Court Ordinance what he wanted of English law to support his claim. that is an element to be considered in the question of the justice or otherwise of applying the English Statute of Limitations.

From a perusal of judgments on this point, and from the arguments adduced before this Court, I think there is commonly quite a wrong perspective in considering the question of applying the Statute of Limitations to an educated native of this country. This Statute of Limitations is not a recent invention of modern civilisation. It was applied to the state of education and civilisation which existed in England in 1623, and I find nothing at all startling in applying it to an educated African of to-day.

For the reasons I have given I think the Statute of Limitations applies in this ease and the claim is statute-barred-the cause of action having arisen in October, 1924, and the action not issued till September, 1933.

I cannot accept the argument of counsel for the respondent that this is a specialty debt and therefore unaffected by the 1623 Act.

In my opinion the appeal should be allowed, and the judgment of the Court below set aside, with costs to the appellants in this Court and in the Court below.