ACKAAH vs. ASANE [1973]DLHC2345

Date	1973-07-04
Suit No.
Citation No.	[1973]DLHC2345

EDUSEI J.

J.K. ESSIEM FOR THE APPELLANT.

K.E. AMUA-SEKYI FOR THE RESPONDENT.

[1973]DLHC2345
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													<main id="main" class="content" style="min-height: 60rem" >ACKAAH <o:p></o:p>vs. <o:p></o:p>ASANE <o:p></o:p>[HIGH COURT,
SEKONDI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
2 GLR 117<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
4 JULY 1973<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">

J.K. ESSIEM FOR THE APPELLANT.<o:p></o:p>

K.E. AMUA-SEKYI FOR THE RESPONDENT.<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">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>In 1971
the plaintiff sued out a writ in the District Court Grade I, Dunkwa, claiming
the sum of N¢440.00<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">“being
balance of an amount due and owing by the defendant to the plaintiff in respect
of one 2-ton Bedford Lorry No. WR 2324 which the defendant purchased from the
plaintiff and which amount, the defendant has failed to pay after several
demands . . .”<o:p></o:p><o:p>&nbsp;</o:p>The
learned district magistrate after hearing evidence found that the
defendant-appellant (hereinafter referred to simply as the defendant) had not
paid the amount and he entered judgment in favour of the plaintiff-respondent
(hereinafter referred to simply as the plaintiff) and the defendant appealed.
The only ground of appeal canvassed on behalf of the defendant was “that the action
herein is statute-barred.”<o:p></o:p><o:p>&nbsp;</o:p>The sale
of the Bedford lorry No. WR 2324 took place in 1962 and this was evidenced by a
memorandum of agreement, exhibit 1, and Mr. Essiem, counsel for the defendant,
contended that according to exhibit 1 the final instalment payment should have
been made on 14 March 1963. In effect he was saying that the cause of action
for the recovery of the amount due arose immediately after 14 March 1963, and
the plaintiff had up to March 1969 for the institution of the action. But the writ
was taken out on 16 April 1971, and counsel for the defendant therefore argued
that the claim was two years out of time. In making this submission learned
counsel’s view was that the parties intended English law to apply having regard
to exhibit 1, and the Limitation Act, 1623 (21 Ja. 1, c. 16), barred the
plaintiff’s action since six years had elapsed since the cause of action arose.<o:p></o:p>Mr.
Amua-Sekyi, counsel for the plaintiff, put forward a contrary argument and
submitted that the transaction between the parties was governed by customary
law and not English law, and that customary law knows no statute of limitations
in such a transaction. I think it is necessary at this stage to set out the
provisions of exhibit 1 since both parties relied on it to show that a
particular system of law was applicable between the parties. Exhibit 1 runs as
follows:<o:p></o:p>“MEMORANDUM
OF AGREEMENT, made this 8th day of May, in the year of our Lord, One Thousand
Nine hundred and Sixty-two (1962) between KWABENA ASANE, of Pataboso in the
Sefwi Anhwiaso State (herein ‘SELLER’) on the first part, and STEPHEN ACKAAH,
of Ankra Muano in the aforesaid State (herein after called ‘PURCHASER’) on the
other part. Whereas the Seller is desirous to sell his Two Tons Diesel Engine
Bedford Lorry No. WR 2324 to the Purchaser for the sum of six hundred pounds
(£600). And whereas the Purchaser has agreed to buy for himself the said Two
tons Diesel Engine Bedford Lorry No. WR 2324 for the said sum of six hundred
pounds (£G600). 1. It had been mutually agreed that the Purchaser to pay the
sum of two hundred pounds (£G200) as deposit and pay the balance of four
hundred pounds (£G400) by monthly instalments of forty-pounds (£G40) to spread
over the period of ten (10) months starting from the 14th of June, 1962, and on
the 14th of the subsequent months to complete. 2. That should the Purchaser
fail to pay any of the instalments when it is due, the Seller has the reserve right
to seize the said Bedford Lorry from the Purchaser after seven (7) days.<o:p></o:p>3. That after
the lorry had been seized for two weeks, the Seller will give a written notice
to the Purchaser to pay the amount due, and if the Purchaser fails altogether
to make such payment, the Seller is entitled to sell the lorry by auction to
recover his money (balance) due and the Purchaser will lose or forfeit the
deposit paid to the Seller. 4. That full Transfer documents should be given by
Seller to Purchaser after full payment had been made. <o:p></o:p>