IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
TF FINANCIAL SERVICES - (Plaintiff)
FBY PHARMACEUTICALS & ANOR - (Defendant)
DATE: 17 TH APRIL, 2018
SUIT NO: RPC/49/17
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KAREN WOBIL FOR PLAINTIFF
MICHAEL NII AMUI AMUI FOR 1ST AND 2ND DEFENDANTS
FRANCIS ACHEAMPONG FOR 4TH DEFENDANT
It is provided under section 4 (1) (b) of the Limitations Act 1972, NRCD 54 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
(b) an action founded on simple contract.
It is also provided under section 19 (1) (a) of NRCD 54 that:
19. Fresh accrual on part payment
(1) For the purposes of this Act, the right of action accrued on, and not before, the date of the payment,
(a) where a right of action has accrued to recover a debt, and the person liable for the debt makes a payment in respect of the debt; but for the debt for the purposes of this provision payment of interest in whole or in part shall be treated as a payment in respect of the principal debt.
The Plaintiff is a Limited Liability Company which grants business and consumer loans. The 1st Defendant is a Registered Pharmaceutical Company who is alleged to have taken a loan of GHC 11,200.00 from the Plaintiff in May, 2010, for the supply of Pharmaceutical Products to the 4th Defendant, who undertook to issue cheques for payment in the joint names of the Plaintiff and 1st Defendant, but failed to do so. The said loan was allegedly guaranteed by the 2nd and 3rd Defendants. On 28/04/2017, the Plaintiff instituted the instant action against all the Defendants to recover the sum of GHC 369,801.54 said to be the balance outstanding as at January, 2017.
The 1st and 2nd Defendants filed their statement of defence on 06/06/2017, and averred in paragraph 10 thereof that the Plaintiff’s action is statute barred. The particulars of Limitation given by the 1st and 2nd Defendants are:
That the debt became due for repayment in September 2010.
That since September 2010 the Plaintiff has not made any demand for repayment until issuing this writ.
That it has been more than 6 years since the alleged debt has been due for payment.
The Court ordered the lawyers in this case to file legal arguments on this preliminary issue.
Counsel for the Plaintiff filed her submissions on 28/03/2018, she relied on sections 4(1) (b) and 19 (1) of NRCD 54, referred to supra, and argued that the 1st Defendant made some part payments in the year 2012. Further a demand notice was served on the 1st Defendant in April, 2013. To that extent, counsel for the Plaintiff argued that there was a fresh accrual of the cause of action from the period of the part-payment up to the time of the demand notice.
Counsel for the 1st and 2nd Defendants did not file any submissions, but counsel for the 4th Defendant filed his arguments on 28/03/2018. He however limited his argument to section 4 of NRCD 54 and submitted that since the action was commenced after six years, the same is caught by the Limitations Act.
Indeed, the Plaintiff also pleaded in paragraph 4 of its Reply that:
…per a demand notice dated 15th April, 2013 and served on the 2nd Defendant on 23rd April, 2013, Plaintiff brought to the attention of the 1st, and/or 4th Defendants that the loan had not been repaid.
Counsel for the 4th Defendants did not comment on this averment in his submissions before this court. Upon a perusal of all the processes filed, this court is of the opinion that the 1st Defendant actually made a part payment on 13th August, 2012 and so there was a fresh accrual of cause of action, which is further supported by the demand notice said to have been made in April, 2013. Therefore, six years from 13th August 2012 would be 13th August, 2018. Since the suit was filed on 28/04/2017, the same was within time.
The Plaintiff’s suit is therefore not statute barred. Accordingly, the court will order discoveries and make further orders for the filing of witness statements so that the case can be determined on its merits.