SHAIBU DAUDA vs. GOLAKS LIMITED AND ANOTHER [2013]DLCA6967

Date	2013-02-14
Suit No.	SUIT NO.: H1/12/2012
Citation No.	[2013]DLCA6967

ASARE-KORANG J.A. (PRESIDING)

ISAAC DUOSE J.A.

I. C. DANQUAH (MISS) J

MR. NATHANEL YARNEY FOR DEFENDANTS/APPELLANTS

MR. G. K. NTONY FOR PLAINTIFF/RESPONDENT

[2013]DLCA6967
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													<main id="main" class="content" style="min-height: 60rem" >SHAIBU DAUDA<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GOLAKS LIMITED AND ANOTHER<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO.: H1/12/2012 &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; DATED:
14TH FEBRUARY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
NATHANEL YARNEY FOR DEFENDANTS/APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. G. K. NTONY FOR
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>ASARE-KORANG
J.A. (PRESIDING), ISAAC DUOSE J.A., I. C. DANQUAH (MISS) J<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>DUOSE, JA:<o:p></o:p>The
defendant/appellant in this interlocutory appeal seeks to challenge or test the
propriety of a ruling and order of the High Court (Fast Track Division) dated
13th June 2011. In the ruling referred to, the High Court dismissed an
application of the defendant/appellant for an order to dismiss the action of
the plaintiff/respondent because the same was statute barred.<o:p></o:p>&nbsp;The facts or events leading to this appeal are
simple and are as follows. After the parties had closed pleadings and issues
were settled for trial, the defendant/appellant herein applied for and was
granted leave to amend its defence. The subsequent amended statement of defence
raised the plea in bar under Section 3(1) of the Limitations Act NRCD 54/72.
The plaintiff/respondent failed to file a reply within time and accordingly
applied for leave to file reply out of time on 5th April 2011. Prior to that
event, the defendant/appellant had filed an application under the inherent
jurisdiction of the High Court for an order dismissing the action for being
statute barred. When court resumed on 26th May 2011 both applications were
pending for determination. The records indicate that whereas the
plaintiff/respondent was present in court his counsel was absent. Equally so,
defendant/appellants were absent but their counsel was present. Learned Counsel
for the defendant/appellant made the following significant points in his
opening statement of that day on page 62 of the Record of Appeal “…………………. I filed an application to dismiss the
plaintiff’s action on grounds that same is statute barred. Before I could move
the application, my learned friend filed an application for leave to file an
amended reply out of time which is also pending. I had earlier filed for leave
to amend my statement of defence to plead the Limitations Act which was
granted. His application is therefore pursuant to that. My Lord in the
circumstance, I believe he should be given the chance to attempt the
amendment (reply) because should he succeed on it then it may impact on my
application to dismiss the action”. (emphasis mine) That
statement is a correct procedural position of the law in the circumstances.
However, the learned trial judge without first striking out the application of
the plaintiff/respondent for want of prosecution invited the defendant/appellant
to proceed with his application to dismiss the action, which application the
trial judge dismissed, and proceeded as it were to grant the unmoved
application of the plaintiff/respondent in the following words based on S33(3)
of CI 47 “This issue of fact and law have now been raised must therefore of
need have to be determined by either affidavit evidence or at the trial. I will
in the circumstance dismiss the defendant’s application and grant plaintiff
extension of time to file his amended reply out of time after which the
defendants will be at liberty to raise the issue of whether plaintiff’s action
is statute barred or not in an additional issue for directions and request for
it to be set down for legal arguments”. The defendant/appellants taken a back, and
surprised, promptly filed one ground of appeal, and subsequently filed three
more grounds of appeal after leave granted them. The grounds of appeal are as
follows:<o:p></o:p>i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The judge erred in ruling that the
plaintiff’s action was not statute barred as per section 3(1) of the
Limitations Act 1972, NRCD 54<o:p></o:p>ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;Further grounds to be filed upon receipt of
the Record of Appeal. <o:p></o:p>The further grounds of
appeal filed are as follows: <o:p></o:p>iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;The
judge erred in objecting to the manner of the application by the Defendants to
dismiss the instant action for being statute barred. <o:p></o:p>