GBERBIE vs. GBERBIE AND OTHERS [1966]DLHC1695

Date	1966-12-16
Suit No.
Citation No.	[1966]DLHC1695

AMISSAH J.A.

ANSAH FOR THE APPELLANT.

JOE REINDORF FOR BOSSMAN FOR THE RESPONDENTS.

[1966]DLHC1695
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													<main id="main" class="content" style="min-height: 60rem" >GBERBIE <o:p></o:p>vs. <o:p></o:p>GBERBIE AND OTHERS <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1966] GLR 789<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
16 DECEMBER 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ANSAH FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
appellant, who was the defendant in the court below, appeals from the decision
of the local court that the respondents, who were plaintiffs, should recover
from him the sum of £G68 13s. 4d. plus £G9 3s. costs. The sum of £G68 13s. 4d.
is the share of the proceeds of a farm owned by all the parties together,
during the period when the appellant was caretaker of the farm. The appellant
and the respondents spring from the same father. The case which the respondents
sought to establish was that during his stewardship the appellant realised
£G150 from the farm of which amount he said he had used £G50 for the repair of
their grandmother’s house. Therefore allowing him this amount of £G50 as
legitimately spent, there was an amount of £G100 unaccounted for, to which they
were all entitled. According to the respondents that amount was found due to
them at an arbitration before two arbitrators. The substance of this case was
accepted by the local court magistrate, who, taking in view that the appellant
was entitled to his rateable share of this residue of £G100 awarded £G68 13s.
4d. as the respondents’ proportionate share of the money.<o:p></o:p><o:p>&nbsp;</o:p>Various
grounds of appeal have been filed by the appellant since the judgment of the
local court. The final addition to these grounds was made in November 1966 and
at the hearing of the appeal his counsel abandoned all the others and sought
leave to argue these latest additional grounds only. His arguments therefore
were confined to them. They are as follows:<o:p></o:p><o:p>&nbsp;</o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(i) the
plaintiff’s claim was statute-barred and should not have been allowed by the
local court magistrate, and<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(ii) the
local court magistrate was wrong in holding that there was a valid arbitration
when in fact there was no arbitration at all.<o:p></o:p><o:p>&nbsp;</o:p>The first
ground founded the argument that the respondents’ claim arose out of an alleged
customary arbitration which took place, if at all, some eleven years prior to
their action. That being the case, it was submitted that the action was not
maintainable as it was brought more than six years after the cause of action
accrued. Counsel cited the leading case of Koney v. Union Trading Co., Ltd.1 in
support of his argument that the English Statute of Limitation of 16232 has
been declared to apply to this country and that by virtue of paragraph 93 (2)
of the Courts Decree, 1966,3 it continues to apply. But the relevant enactment
at the time of the action before the local court, namely, in 1961, was not the
Decree. It was the Courts Act, 1960,4 which in section 154 (4) provided for the
continuation in Ghana of statutes of general application. Even so, it is
necessary to examine the extent of the application of the statute to this
country because according to Koney’s case, which decides that it applies, it
does not apply to all transactions nor does it affect relations between all
persons in Ghana. It appears that its operation in this country is excluded
from relations or transactions where the parties are Ghanaian natives (and the
word “native” is not used here in any pejorative sense) who have never
contemplated that their relations or conduct be governed by English legal rules
or forms. And if in an action before a court one of the parties seeks the
assistance of the statute the onus would be on him to satisfy the court that it
should be applied. On the other hand in transactions between Ghanaian natives
and non-natives, the onus will be upon the party seeking to exclude the
application of the statute to satisfy the court that this is so. It goes
without saying that the statute will apply to transactions or relations between
Ghanaian natives where English legal forms have been used or where it was
clearly contemplated that the governing law should be the English common law as
received in this country and also to transactions and relations between
non-Ghanaians in the same circumstances. This, in my view, was the extent of
application of the Statute of Limitations in Ghana when section 154 (4) of the
Courts Act, 1960, became law. It provided that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
repeal by this Act of section 83 of the Courts Ordinance (Cap. 4) [which
applied the Statutes of general application in England before 24 July 1874 to
Ghana] shall not be taken to affect the continued application of such of the
statutes of general application which were in force in England on 24th Jul</main>