IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
SAMUEL ADU - (Plaintiff/Appellant)
THE INSPECTOR GENERAL OF POLICE (IGP) AND THE ATTORNEY-GENERAL MINISTRIES-ACCRA - (1ST AND 2ND Defendant/Respondent)
DATE: 19 TH JULY, 2018
SUIT NO: H1/109/2018
JUDGES: C.J. HONYENUGA (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), GBIEL SUURBAAREH (J.A)
LAWYERS: DR. I. B. KORAY FOR DEFENDANTS/RESPONDENTS MR. J. KAPONDE FOR PLAINTIFF/APPELLANT
AVRIL LOVELACE-JOHNSON (J.A):
The Plaintiff/Appellant issued the present writ against the Defendant/Respondent for the following reliefs:
Declaration that any purported termination of his appointment or dismissal from the Ghana Police Service was harsh and wrongful
An order for the reinstatement of the Plaintiff into the Ghana Police Service forthwith.
An order for the payment of Plaintiff’s salaries till date of judgment.
An order for the payment of Plaintiff’s salaries from February 2008 to October 2008 before his dismissal.
Damages for wrongful termination of Plaintiff’s employment.
Any other reliefs or orders as the Court deems appropriate.
The Defendants/Respondents denied his claim and put up a defence including one that the Plaintiff’s action was caught by section 4(1) of the Limitation Act 1972, Act 54 and so did not disclose a reasonable cause of action.
This was set down as one of the issues to be determined at the Application for directions and the learned trial judge, rightly decided to determine it in the preliminary. She came to the conclusion that the action was indeed statute barred and so there was no need to determine the merits of the Plaintiff/Appellant’s claim and dismissed same as not disclosing any reasonable cause of action.
Being dissatisfied with this outcome, the Plaintiff Appellant has launched the present appeal. The designation of the parties at the trial court will be maintained hereon.
The Plaintiff filed three grounds of appeal with an intimation that further grounds may be filed upon receipt of the Record of Proceedings. No such additional grounds were filed and the Plaintiff abandoned his first ground of appeal. For the purposes of this appeal the following grounds were argued
The learned judge erred in law by dismissing the suit on grounds that same was statute barred by the law of limitation
The learned judge failed to appreciate that the Appellant’s right to appeal was infringed upon by the 1st Defendant.
Both counsel argued the two grounds together. In sum the argument of counsel for the Plaintiff appears to be that at the time the Plaintiff was served with his dismissal letter, his appeal processes within the internal grievance mechanism of the 1st Defendant had not and have still not been concluded so “….time could not have been reasonably running….”.
Further counsel contends that Plaintiff’s Employer’s Central Disciplinary Board’s act of imposing a sentence on him in a case it did not hear, deprived Plaintiff of his right to appeal to the same body for redress. This, he alleges the learned trial judge failed to appreciate.
In response, Counsel for the Defendants, among other arguments makes the point that the Plaintiff’s dismissal letter dated 9th October 2008 clearly stated that he could appeal to the 1st Defendant that is the Inspector General of Police by giving notice of his intention to do same and submitting the grounds for his appeal within six weeks of the date of his dismissal letter and that there is nothing on the face of the notice of appeal “…to show by way of evidence that the said notice of appeal was delivered and received before the expiration of the six weeks”
By this submission, I believe counsel seeks to make the point that the Plaintiff was made aware of his right to appeal, even if it was not to the Central Disciplinary Board and he has failed to provide any evidence that he utilized this opportunity. Counsel further, rightly, contends that it is the Plaintiff who bears the burden of dislodging the plea of Limitation raised as a defence. Counsel contends that Plaintiff has failed to do this.
The learned trial judge based her conclusion that the Plaintiff’s action disclosed no reasonable cause of action on a finding that it was statute barred. Section 4 of the Limitation Act entitled Actions barred after six years provides at subsection (1) as follows
The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued:
a) An action founded on tort order than action to which sections 2&3 apply
b) An action founded on simple contract
c) An action founded on quasi- contract
d) An action to enforce a recognizance
e) An action to enforce an award, where the arbitration is under an enactment other than the arbitration act 1961 (Act 38): or
f) An action to recover a sum of money recoverable by virtue of an enactment other than, an action to which sections 2 and 5 apply.
Undisputedly an employment contract such as the one governing the relationship between the Plaintiff and his Employer falls under subsection (1)(b). The Plaintiff was dismissed on 9th October 2008 and he issued the present writ on 11th December 2015. His cause of action accrued upon his dismissal. Simple arithmetic shows that this action was commenced more than six years after his dismissal.
Counsel for the Plaintiff appears to hold the position that in Plaintiff’s circumstances simple arithmetic should not apply.
From the submissions of counsel for the Plaintiff earlier summarized two issues call for discussion. These are
Whether the allegation that Plaintiff was still engaging the internal appeal processes of his employer is lawful ground for halting the running of time from the date of his dismissal.
Whether a claim that there has been some breach of natural justice is a ground for extending the time allowed by the Act for an action such as the present to be commenced.
Counsel for the Plaintiff states at page 6 of his written submissions that
“It is therefore our strong belief that to the extent that there was no judgment yet on the appeal the court erred in counting the period of limitation from the date of the letter of dismissal. The limitation period ought to start from the date of delivery of the verdict of the Appeal which has never been delivered”
It is interesting to note that Counsel stops short of saying that Plaintiff’s cause of action is yet to accrue. Such a position would leave him without a basis for instituting the present action for among other reliefs a declaration that his dismissal was harsh and wrongful. Clearly the cause of action of the Plaintiff accrued with his dismissal letter as implied by the learned trial judge in her judgment at page 262 of the Record of Appeal when she states that
“Plaintiff was dismissed on 30th October 2008 and instituted the instant action on 11th December, 2015. Plaintiff thus brought the instant action seven years and six weeks after accrual of the cause of action.”
The time limit provided by the Limitation Act, as earlier stated, for prosecuting any civil action protesting his dismissal was six years from the date of the said dismissal and yet although the cause of action has clearly accrued, Counsel for the Plaintiff considers time frozen until the appeal to the Plaintiff’s Employer is finally determined. Such a position is untenable because it is not supported by any law.
The Act clearly provides the circumstances in which the Limitation period can be extended. These can be found in part two summarily as follows:
Section 16 provides for an extension of time in case of disability;
Section 17 provides for a fresh accrual of an action where, and on the date that a defendant or a person acknowledges liability;
Section 19 provides for a Fresh accrual of an action upon part payment in respect of a debt;
Section 22 provides for an extension of time where fraud or mistake has occurred to disadvantage the plaintiff;
Section 23 provides for an extension of time where material facts were unknown to the plaintiff;
Clearly resort to other means of redress does not fall into any of these circumstances. The Plaintiff has also not attempted to put his circumstances in any of the above. A prudent aggrieved person should have his eye on the clock while engaged in avenues of redress other than litigation.
Regarding the second ground of appeal that the trial judge failed to appreciate that the Plaintiff’s right of appeal had been infringed for various reasons (including the failure of his Employer to inform him of the outcome of his appeal using the internal appeal mechanism), such a circumstance, even if true does not by law allow an extension of the time under Part Two of the Limitation Act. It is not surprising that he does not seek refuge thereunder.
It is the public policy that there should be an end to litigation which has crystallized into the Limitation Act and the courts are duty bound to apply its clear provisions. Had the Legislature intended the complaints raised in these two grounds of appeal to be among those circumstances which could lead to an extension of the period of limitation, it would have clearly stated so. In the case ofGhana Muslim Representative Council v Salifu & Ors 1975 2 GLR 246
The Court, quoting Tindal CJ stressed the duty of the courts in the construction of statutes in the following words
“….If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the lawgiver.”
Statutory provisions imposing periods of limitations in which actions must be instituted have a purpose and it is the duty of the Courts to apply them unemotionally, so as to achieve this purpose. They are aimed at protecting
“defendants from being vexed by stale claims relating to long past incidents about which their records may no longer be in existence and as to which their witnesses, even if they are still available may well have no accurate recollection. Secondly, the law of limitation is designed to encourage plaintiffs to institute proceedings as soon as it is reasonably possible for them to do so…..Thirdly, the law is intended to ensure that a person may with confidence feel that after a given period he may regard as finally closed an incident which might have led to a claim against him, and it was for this reason that Lord Kenyon described statutes of limitation as “statutes of repose” per Lord Edmund-Davies in Burkett v James  2 All ER 801@815
In conclusion, the Plaintiff having failed to put himself in the exceptions provided under Part Two of the Act, and “….no other statute permitting the infringement of the Limitation Decree, 1972 by the courts”
(per Brobbey JSC in the case of Ghana Commercial Bank v CHRAJ [2003-2004] 1 SCGLR 91 @ 95
I find no merit in the two grounds of appeal canvassed. The trial Judge’s finding that the Plaintiff’s claim disclosed no reasonable cause of action because it is statute barred is supported by law. The appeal is dismissed in its entirety.
(JUSTICE OF THE COURT OF APPEAL)
I AGREE …………………
C. J. HONYENUGA
(JUSTICE OF THE COURT OF APPEAL)
I ALSO AGREE ……………………..
GIBEL SIMON SUURBAAREH
(JUSTICE OF THE COURT OF APPEAL)