ATOO vs. TOWN CLERK OF SEKONDI/TAKORADI [1961]DLSC664

Date	1961-06-26
Suit No.
Citation No.	[1961]DLSC664

KORSAH JSC

C.J. JSC

SARKODEE-ADOO JSC

AKIWUMI JSC

C. F. HAYFRON-BENJAMIN FOR THE APPELLANT

K. D. GWIRA FOR THE RESPONDENT.

[1961]DLSC664
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&nbsp;[SUPREME COURT]

[1961] GLR 413

DATE: 26TH JUNE, 1961.

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COUNSEL:&nbsp;&nbsp;

C.
F. HAYFRON-BENJAMIN FOR THE APPELLANT.

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KORSAH, C.J., SARKODEE-ADOO
AND AKIWUMI, JJ.S.C.

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&nbsp;

Akiwumi, J.S.C. delivered the judgment of the court. At the
hearing of this appeal, counsel for the respondent having previously given
notice of intention to rely upon preliminary objections and having filed
grounds of such objections contends as follows:-

“(1) The plaintiff-appellant having failed to comply with section
149 of the Municipal Councils Ordinance (No. 9 of 1953), his action is
premature.”

[His lordship here read section 149 which is set out in the
headnote and continued:] It is not disputed that no notice as required by law
was given to the defendant-respondent by the plaintiff or anybody on his
behalf. In reply the plaintiff’s counsel contends that as the said section was
not specifically pleaded nor canvassed in the trial and appellate court, the
objection is not tenable at this stage, that is, on appeal to the Supreme
Court, and that the defendant-respondent must be deemed to have waived these
rights when the defendant submitted to the jurisdiction of the court and took
part in the proceedings before the trial court.

In our view the relevant sections of the Ordinance1(1) upon which
the objections are founded are expressed in terms which do not permit a party
entitled to the benefit thereof to exercise a discretion to waive it. The true
interpretation of the section must be that until such notice has been given in
writing and has been served upon the town council by the intending plaintiff or
his agents, no suit can be maintained against the council.

‘That the building having been sold on 29th January, 1955 and the
plaintiff-appellant being aware of it on the 2nd February, 1955, but waiting
until 19th November, 1956 to commence this action to set aside, this action is
statute-barred in view of section 150 of the Municipal Councils Ordinance No. 9
of 1953.”

The plaintiff in his evidence before the trial court said: “The
first time I heard that my house had been sold was on the 2nd of February,
1955. This was about two or three days after the sale had taken place.” There
is evidence on record which is not disputed, proving that the said sale took
place on the 29th January, 1955; but this action was commenced on the 19th
November, 1956 which period is well over the period of twelve months from the
date the plaintiff says he became aware of the sale. It is therefore not
disputed by the plaintiff that the action was not taken within the twelve months;
but counsel for the plaintiff again contended that this objection not having
been specifically pleaded and canvassed in the trial and the appellate court
could not now be raised in the Supreme Court.

In support of this contention contention counsel for appellant
referred us to Hastings on Fraud and Misrepresentation (7th ed.) at page 609
and submitted that the action having been based on fraud and misrepresentation
it could be brought at any time and could not be barred by the expiration of
twelve months fixed by section 150 of the said Ordinance.

We are unable to agree with counsel because it is clearly stated
in the relevant sections of the Municipal Councils Ordinance2(2) to which we
have referred that in any event the period of limitation will commence to run
from the date when the plaintiff had knowledge or became aware of the alleged
fraud or misrepresentation. It follows therefore that in this case the period
of twelve months began to run from the 2nd February, 1955, when according to
plaintiff he became aware that his house had been sold by the direction of the
town council on or about the 29th January, 1955.