FIAGA vs. GHANA COCOA BOARD [1988]DLHC2014

Date	1988-11-15
Suit No.
Citation No.	[1988]DLHC2014

LARTEY J.

TOM BENTIL FOR THE PLAINTIFF.

H. D. OWUSU YIANOMA FOR THE DEFENDANTS.

[1988]DLHC2014
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">FIAGA<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">GHANA COCOA BOARD<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1992] 2 GLR 393<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 15
NOVEMBER 1988<o:p></o:p>

</div>COUNSEL:<o:p></o:p>TOM BENTIL FOR THE PLAINTIFF.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

H. D. OWUSU YIANOMA FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGEMENT OF LARTEY J.<o:p></o:p>On 13 February 1987 the plaintiff issued a writ of summons
claiming against the defendants, payment of pension and gratuity plus 231⁄2 per
cent interest from September 1976 to the date of judgment. The defendants
through their legal officer entered unconditional appearance to the writ of
summons on 18 February 1987.<o:p></o:p>In his statement of claim which accompanied the writ of summons,
the plaintiff pleaded, inter alia, that he was compulsorily retired as a
disease spotter by the Ghana Cocoa Board in September 1976 and ever since that
date he has not been paid any money by way of pension or gratuity. He also
averred that all his letters to the defendants in demand of the said pension
and gratuity have been ignored and that personal contacts with the officers of
the defendants had always been met with a “go and come” response.<o:p></o:p>A statement of defence having been filed, the plaintiff followed
up with summons for directions which was filed on 9 April 1987, returnable on 4
May 1987. It was in fact heard on 11 May 1987. The issues were consequently
adopted by the court for trial. At a later date, on 4 December 1987, the
defendants, pursuant to an order of the court of 30 November 1987, filed an
amended statement of defence in which they averred by their paragraph (5) that
the plaintiff’s action is statute-barred by reason of section 4 (1)(b) of the
Limitation Decree, 1972 (N.R.C.D. 54).<o:p></o:p>Before hearing could commence, counsel for the defendants formally
raised a preliminary objection to the claim. He submitted that by virtue of
section 4(1) (b) of N.R.C.D. 54 the action is statute-barred since it is based
on a simple contract of employment and which was brought after a period of six
years. The relevant section reads:<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">“4. (1) The following actions shall not be brought after the
expiration of six years from the date on which the cause of action accrued: - .
. .<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">(b) actions founded on simple contract.”<o:p></o:p>In this ruling I am to determine whether or not the plea is
maintainable, both counsel having argued their legal points.<o:p></o:p>It was canvassed on behalf of the plaintiff that the law which the
defendants seek to rely upon does not apply to the plaintiff’s claim, and the
reason was that for ten years - including the six-year period of limitation -
there had been series of correspondence and personal interactions between the
parties. To have rushed to court, so the plaintiff’s argument goes, while the
negotiations were going on, would have been a bit unconscionable. In counsel
for the plaintiff’s view they have not been caught by section 4 (1)(b) of
N.R.C.D. 54.<o:p></o:p>In the first place, it must be pointed out that the court’s
attention was never drawn to any correspondence between the parties and no
relevant document was tendered. And even if the parties exchanged
correspondence, there is nothing to indicate that they had agreed on anything
touching upon payment of pension and gratuity to the plaintiff. There is no
evidence to the effect that the defendants have accepted liability for the
payment to the plaintiff of end of service award.<o:p></o:p>In the English case of Lubovsky v. Snelling [1944] K.B. 44, C.A.
the plaintiff sued for damages for the death of her husband which had been
caused by the defendant’s negligence. At an interview between the plaintiff’s
solicitors and a representative of the defendant’s insurance company, the
latter admitted liability, but suggested that a writ must be issued for the
quantum of damages to be fixed in court. The plaintiff issued her writ more
than twelve months after the death. By section 3 of the Fatal Accidents Act,
1846 (9 &amp; 10 Vict, c. 93), the action was out of time and naturally,
therefore, the defendants pleaded the statute. It was held that the agreement
by the defendant to be liable constituted a contract not to plead section 3 of
the statute, and consequently the plaintiff was entitled to recover. The
Lubovsky case (supra) followed the earlier decision in Wright v. John Bagnall
&amp; Sons Ltd. [1900] 2 Q.B. 240, C.A. There, it was found that the employers
had agreed to pay compensation and </main>