IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
NIMONAT LIMITED - (Plaintiff)
THE ATTORNEY GENERAL’S DEPT. AND MINISTRY OF FINANCE - (Defendants)
DATE: 30 TH MAY, 2018
CIVIL APPEAL NO: CM/RPC/0892/2016
JUDGES: SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT
KOFI KUKUBOR ESQ., FOR PLAINTIFF
NANA ABUAA BRENYA-OCTCHERE (SENIOR STATE ATTORNEY) FOR DEFENDANTS
On the 20th December 2016, the within named plaintiff issued a writ against the defendants herein claiming against them “an order for the recovery of (GH¢67,135.00) Sixty-seven thousand one hundred and thirty-five Ghana Cedis being the amount due and owing the plaintiff.” The writ was accompanied by a statement of claim. An appearance was entered on behalf of the defendants who later, filed a statement of defence in which certain legal defences were raised to the plaintiff’s claim.
On the 17th January 2018, the defendants filed a ‘Notice of Preliminary Legal Objection’ in which they prayed the court to set down for preliminary legal argument and also to dismiss the plaintiff’s writ of summons and statement of claim on the basis of legal issues raised in paragraphs 6, 8, 11 and 12 of the statement of defence. Indeed the said paragraphs state that:
6. The Defendant in further answer to paragraph 7 state that assuming the Defendants owed the Plaintiff, (which is denied), that debt is statute barred with the lapse of time since 2007.
8. The Defendants will raise by way of preliminary legal argument that the Plaintiff’s action is statute barred.
11. The Defendants further states that the Plaintiff is statute barred from bringing any action in relation to the claim as it has been 11years since the Plaintiff’s cause of action, if any, first accrued.
12. Wherefore the Defendants state that the Plaintiff is not entitled to any of the reliefs endorsed on its Writ of Summons or at all and same ought to be dismissed.
The plaintiff’s claim as shown by the statement of claim particularly paragraph3 is that:
‘sometime in September 2006, the now defunct Ghana @ 50 Secretariat contracted the Plaintiff Company to construct (3) three two-storey four bedroom houses under the AFRICAN UNION IDENTIKIT PRESIDENTIAL MANSIONS PROJECT at Cantonments, Accra in the Greater Accra Region of Ghana.’
The plaintiff says that the total cost of the project came to GH₵204.300.00 out of which an amount of GH₵129,461.90 was paid by the Ghana @ 50 Secretariat. The plaintiff says in paragraph 6 and 7 of the statement of claim that after reconciliation between the parties to the alleged contract the outstanding debt owed to the plaintiff came to GH₵67,135.00 and that all efforts to have this debt paid to the plaintiff proved futile since the project was taken over by the Ghana @ 50 Secretariat in 2007. The plaintiff therefore claims per the endorsement on its writ of summons. It is this claim of the plaintiff that the defendants say is statute barred.
Order 33 rule 3 of the High Court (Civil Procedure) Rules, 2004, CI 47 permits the court to try any issues arising out of the pleadings at any time during the pendency of the case. The rule states that
3. Time of trial of questions or issues
The Court may order any question or issue arising in any cause or matter whether of fact or law, or partly of fact and partly of law, and raised by the pleadings to be tried before, at, or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated.
Hence, the notice of the preliminary legal objection filed by the defendants/applicants herein is cognizable by the rules and can be entertained and dealt with by the court.
The bare allegation made by the plaintiff is that it was contracted by the Ghana@ 50 Secretariat in the year 2006 to construct a number of houses for the Ghana @ 50 Secretariat. From the statement of claim it is clear that the alleged construction was completed in the year 2007 and handed over to the Secretariat. The court holds therefore that the plaintiff’s cause of action for the recovery of the cost of the construction or the alleged contract sum accrued to the plaintiff in the year 2007 as soon as the houses were completed and handed over to the Secretariat. The defendants’ argument is that even if they owe the plaintiff, since the cause of action accrued to the plaintiff in the year 2007, the plaintiff current suit against the defendants is statute barred in so far as the writ was issued in 2016, a period of about nine (9) years after the accrual of the cause of action.
In responding to the submissions made on behalf of the defendants, counsel for the plaintiff did not deny that the plaintiff’s cause of action accrued to it in the year 2007. What counsel said was that the defendants acknowledged the debt subsequently and therefore the action is not caught by the statute of limitation. A critical perusal of the writ of summons and the statement of claim do not reveal that there was any subsequent acknowledgement of the debt by the defendants. If it is true that the debt was subsequently acknowledged then that is not borne out by the statement of claim. The plaintiff’s claim is borne out of a simple contract, allegedly, entered between the plaintiff and the Ghana @ 50 Secretariat and that being so section 4 of the Limitation Act of 1972 NRCD 54 stipulates that an action to recover a claim under a simple contract shall not be brought after six (6) years after the accrual of the cause of action.
Section 4 (1) of the Limitations Act, 1972, NRCD 54 provides that
4. Actions barred after six years
(1) A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of
(a) an action founded on tort other than an action to which sections 2 and 3 apply;
(b) an action founded on simple contract;
(c) an action founded on quasi-contract;
In Ghana Commercial Bank Ltd v Commission on Human Rights and Administrative Justice [2003-2004] SCGLR 91, the court held that
Under section 4 of the Limitation Decree, 1972 the complainant had six years to institute action to enforce his rights. He took action by lodging the complaint with the commission in 1993, nine years later. Therefore, by the time he took action on his complaint at the commission and the commission made its decision or recommendation and referred it to the High Court for enforcement, section 4 of the Decree had barred the enforcement by the High Court. The remedy barred by law could not by any stretch of the imagination or strength of argument be described as remedy available in a High Court of Justice such as the instant case. The enforcement of the instant decision on recommendation by the commission was not available in any High Court.
Indeed, it has also been held in Bogoso Gold Ltd vs. Ntrakwa & Another  1 SCGLR 415 that
On a plea of defence of statute of limitation, the burden of dislodging it would shift to the plaintiffs. However, in appropriate cases, a statement of claim disclosing on its face that the period of limitation had expired might be struck out as disclosing no reasonable cause of action.
The fact that the plaintiff seeks to recover interest at the prevailing commercial bank rate from April 2007 to the date of final payment is enough testimony that the plaintiff’s cause of action accrued to it in the year 2007 and so the plaintiff’s writ should have been sued out latest by the end of March 2013. It follows therefore that the writ of summons and statement of claim filed by the plaintiff on the 20th December 2016 is way out of time and caught by the statute of limitation as quoted above. The plaintiff’s action is therefore statute barred.
Quite apart from the holding above, the defendants as disclosed on the writ of summons are not legal persons against whom a legal action can be brought as the plaintiff purports to do. Article 88 (5) of the Constitution 1992, demands that civil actions against the State be brought against the Attorney General and not the Attorney General’s Department. The said Article provides that
88. The Attorney-General
(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.
The Attorney General’s Department cited as the 1st defendant is not the same as the Attorney General and the plaintiff cannot substitute the Attorney General, who is mandated to defend civil suits against the State, with the Attorney General’s Department. The two are not the same thing and cannot be used interchangeably. The court holds therefore that the suit against the defendants as stated on the writ of summons and statement of claim is not proper since it does not meet the dictates of the Constitution as quoted above.
Order 33 rule 5 of the High Court (Civil Procedure) Rules, 2004, CI 47 grants power to the court to dismiss the instant action. It provides that
5. Dismissal of action after determination of preliminary issue
Where it appears to the Court that the decision of any question or issue arising in any cause or matter and tried separately from the main cause or matter substantially disposes of the cause or matter or renders trial of the main cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment as may be just.
In the opinion of the court, given the reasons stated hereinbefore, any further trial of the plaintiff’s action is rendered unnecessary since the plaintiff’s action does not disclose any reasonable cause of action in view of the finding and holding that the whole action is caught by the statute of limitation. The court will therefore dismiss the writ of summons and the accompanying statement of claim filed by the plaintiff herein.