BOGOSO GOLD LIMITED vs. THE ESTATE OF JOSEPH NTRAKWA, KOJO NTRAKWA AND SOLOMON NTRAKWA [2010]DLSC2548

BOGOSO GOLD LIMITED vs. THE ESTATE OF JOSEPH NTRAKWA, KOJO NTRAKWA AND SOLOMON N... [2010]DLSC2548

Date	2010-07-29
Suit No.	CIVIL APPEAL NO. J4/2/2010
Citation No.	[2010]DLSC2548

BROBBEY JSC (PRESIDING)

ANSAH JSC

YEBOAH JSC

ARYEETEY JSC

GBADEGBE JSC

SAM OKUDZETO FOR THE DEFENDANT/APPELLANT/APPELLANT.

JOSEPHINE HUDGES FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.

[2010]DLSC2548
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													<main id="main" class="content" style="min-height: 60rem" >BOGOSO GOLD LIMITED<o:p></o:p>vs.<o:p></o:p>THE ESTATE OF JOSEPH
NTRAKWA, KOJO NTRAKWA AND SOLOMON NTRAKWA<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/2/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 29TH
JULY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>SAM OKUDZETO FOR THE
DEFENDANT/APPELLANT/APPELLANT.<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">

JOSEPHINE
HUDGES FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.<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;
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BROBBEY JSC (PRESIDING), ANSAH JSC, YEBOAH JSC,
ARYEETEY JSC, GBADEGBE JSC<o:p></o:p>

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

</div><o:p>&nbsp;</o:p>GBADEGBE,
JSC:-&nbsp; <o:p></o:p>This is an appeal from the judgment of the Court
of Appeal that allowed in part the appeal lodged thereto by the appellants
herein (hereinafter referred to as the defendants). By its decision the Court
of Appeal affirmed the finding of the High Court, Sekondi with a variation in the
various heads of damages that were allowed by the trial High Court in favour of
the respondents (hereinafter referred to as the plaintiffs). It appears from
the judgment of the Court of Appeal that it accepted the plaintiffs’ case that
the damage caused to their cocoa farms was consequent upon the erection of a
plant in the neighborhood by the defendants, which emitted noxious fumes from a
chimney. Although the decision on appeal to us was not specific as to whether
the cause of action for the tort, on which the action was based was in nuisance
or negligence, before us the parties have conducted their cases on the common
ground that for the plaintiffs to sustain their claims there must be proof by
them that the destruction to their farms was caused by an unlawful act of the
defendant. Following the decision of the Court of Appeal, the defendant lodged
an onslaught on the delivery in which several grounds of appeal were filed in
the notice of appeal to this court.<o:p></o:p>We have carefully examined the grounds on which we
are invited in the nature of a re-hearing of the matter herein to set aside the
decision of the Court of Appeal and dismiss the action herein. Those grounds in
so far as they are relevant raise for our consideration the question whether
the finding of liability for the destruction of the cocoa farms and the
consequential award of damages were proper? We think that it being so the
issues that turn on the proceedings herein touch and concern whether the
plaintiffs had discharged the evidential burden on them to sustain the issue of
liability for the damage to the crops and the award of damages. Whiles these
issues are substantive, there is one matter, which though not turning on the
merits of the appeal herein we need turn our attention to. It relates to what
has been set out in the defendant’s statement of case as a preliminary legal
argument.<o:p></o:p>Although it is not clear the rule of Court under
which the said point, which was not contained in the grounds of appeal, was
taken, since the parties have fully argued it we should pronounce upon it. The
defendant contended for the first time in this court that from the evidence
contained in the record of appeal the action herein is caught by section 3(1)
of the Limitation Act, NRCD 54. The section provides thus:<o:p></o:p>“An action claiming damages for negligence,
nuisance or breach of duty howsoever the duty exists where the damages claimed
by the Plaintiff for the negligence, nuisance or breach of duty consists of or
include damages in respect of personal injuries to any person shall not be
brought after the expiration of three years from the date on which the cause of
action accrued.”<o:p></o:p>In response to the above, the plaintiffs argue
that to be a good plea it ought to have been pleaded in compliance with Order
8rule 11 of the High Court (Civil Procedure) Rules, CI 47 0f 2004.Further to
this, it was said that the action herein does not&nbsp;&nbsp; contain or include a demand in the nature of
personal injuries and therefore section 3(1) of the Limitation Act on which
reliance is placed by the defendant is inapplicable to the proceedings herein.
We think that the submissions of the plaintiffs on this point are right; for
the meaning of the words by which the section in contention is expressed do not
in their ordinary or extended meaning have the effect that is urged on us by
the defendant. This aside, the point that it raises is one of mixed law and
fact and as such it should have been pleaded earlier on in the trial court to
enable the plaintiffs respond thereto. To have it raised at this stage is to
deny the plaintiffs any opportunity of answering the factual basis of the
argument on which it is based. In our view, having regard to the rule on
pleadings, it is the defendant’s responsibility to raise the defence of statute
of limitation even if it appears on the face of the pleadings that the action
is caught by the statute of limitation. When such a defence is pleaded then the
burden of dislodging it shifts to the plaintiff. See: WILBY v HENMAN
(1834) 2 Cr &amp; M 658.We do concede, however, that in appropriate cases, a
statement of claim that on its face discloses that the period of limitation has
expired may be struck out as disclosing no reasonable cause of action. See: RICHES
v DIRECTOR OF PUBLIC PROSECUTIONS [1973] 2 All ER 935.The requirement of
the plea of limitation being pleaded is to afford a plaintiff who relies on any
disability when the cause of action arose such as being an infant or&nbsp; ‘non compos mentis’ to plead it fully in his
reply.<o:p></o:p>