Robert Koney V. Union Trading Co. Ltd (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Statute of Limitations—Period for bar begins from date action could have been taken—Application—Sections 14 and 19 Supreme Court Ordinance—Generally applicable under Section 14 but excluded in certain circumstances under Section 19— Discussion of these circumstances—Before importing Native Customary law it must be shown that substantial injustice would result from its omission—Where both parties are natives onus is on party who wishes to exclude it—where one party non-native onus on party who wishes to import it to show that is exclusion would be substantially unjust.

AppealThe facts are set out in the judgments.

fromHeld : Appeal allowed. Claim was statute barred. Judgment of

SupremeCourt below set aside.

Court.R. E. Phipps (with him E. C. Quist) for Appellants.

K. Adumua Bossman for Respondent.

The following judgments were delivered :—

KINGDON, C.J., NIGERIA.

This is an appeal from a judgment of Deane, C.J., sitting in the Divisional Court at Accra and raises the very important question of the applicability of the Statute of Limitations. BS^–his writ the plaintiff claimed £500 damages for breach of agreement. There were no formal pleadings but in his opening statement the defendants’ counsel expressly pleaded that the claim was statute barred.The facts are very fully set out by the learned Chief Justice in his judgment and need only be shortly summarised here for the purpose of considering the question of whether the claim is statute barred or not. The plaintiff is an educated African carpenter, the defendants are a European Company. The defendants supplied the plaintiff with a portable sawing machine which they obtained from Switzerland to his order in October, 1924. On delivery a written agreement under seal was entered into by the parties bearing date the 3rd November. 1924. By that agreement the defendants agreed to sell the machine to the plaintiff, but it was expressly provided that the machine should remain the property of the defendants until the full amount of the purchase money was paid. The machine turned out to be useless for the purpose for which it was intended in spite of genuine attempts by both parties

to make it work satisfactorily. The machine was lying idle for some considerable period owing to the illness of the plaintiff, but when its uselessness was finally established the plaintiff demanded from defendants the return of the deposit he had made by way of part payment. On the 7th November, 1927 he wrote to the defendants asking to be allowed to return the machine after going into proper accounts with them. The defendants thereupon took the machine back, but have not returned to the plaintiff his deposit. The plaintiff accordingly issued his writ of summons dated the 26th September, 1933.

The learned Chief Justice, in dealing with the question of whether the claim is barred by the Statute of Limitations, says : ” If the Statute is applicable it is clear that the plaintiff cannot ” recover, his demand having been made so long ago as the 7th ” November, 1927 “. The meaning of this is not clear to me since the period for bar is six years, and from the 7th November, 1927, to the 26th September, 1933 is less than six years. But the point is not of importance because the date from which the period for bar begins to run is the time when the plaintiff might have brought his action i.e. in this, as in other actions for breach of contract, the date when the contract was broken (See Chitty on Contract, 18th Edition, pages 908 & 912-13). The date in this case is October, 1924, considerably more than six years before the date of the writ. I agree therefore with the Chief Justice that if the statute is applicable the plaintiff cannot recover.

The question of the applicability of the Statute of Limitations to the Gold Coast has received much consideration from the Courts of the Colony in the past. The two material sections of the law are numbers 14 and 19 of the Supreme Court Ordinance (Cap. 158). Section 14 reads as follows :—

” The common law, the doctrines of equity, and the ” statutes of general application which were in force ” in England at the date when the Colony obtained a ” local legislature, that is to say, on the 24th July, ” 1874. shall be in force within the jurisdiction of ” the Court “.

It was held as long ago as 1889, in the ease of J. J. Fischer 4- Co. v. C. F. Swaniker (Redwar’s Comments on Gold Coast Ordinances p. 137), that the Statutes of Limitations are ” statutes ” of general application “. I have no doubt that that decision was correct and I endorse it.

The present wording of section 19 is as follows :—

” Subject as hereinafter in this section provided, nothing ” in this Ordinance shall deprive the Supreme Court ” of the right to observe and to enforce the ” observance of, or shall deprive any person of the ” benefit of, any native customary law, such native

customary law not being repugnant to justice,

equity, or good conscience, or incompatible either in terms or by necessary implication with any Ordinance, or any rule, regulation, order, proclamation or bye-law made under any Ordinance for the time being in force in the Colony. Such native customary law shall, save where the circumstances, nature, or justice of the case shall otherwise require, be deemed applicable in causes and matters where the parties thereto are natives, and particularly, but without derogating from their application in other cases, in causes and matters relating to marriage under native customary law and to the tenure and transfer of real and personal property and to inheritance and testamentary dispositions, and also in causes and matters between natives and non-natives where it shall appear to the Court that substantial injustice would be done to any party by a strict adherence to the rules of any law or laws other than native customary law. Provided nevertheless that no party shall be entitled to claim the benefit of any native customary law if it shall appear, either from express contract or from the nature of the transactions out of which any cause, matter or question shall have arisen, that such party agreed or must be taken to have agreed that his obligations in connection with such transactions should be regulated exclusively by some law or laws other than native customary law. And provided further, that in cases where no express rule is applicable to any matter in issue the Court shall be guided by the principles of justice, equity and good conscience “.

For the purposes of this case there is no material difference between the present wording and the wording of the section prior to 1927 when it was amended (No. 19 of 1927), there being a further amendment in 1929 (No. 11 of 1929).

Redward in his Comments on Gold Coast Ordinances at pages 10 and 11 sets out thus his view of the law as it stood in 1909 :—

The question as to the application of the Statutes of

Limitations has more than once engaged the ” attention of the Gold Coast Courts, but the local ” case law on this subject is not in a very satisfactory

condition. The better opinion is that, except in ” cases coming within a provision in section 19 of the ” Ordinance, these statutes have no application as ” between natives, and that a defence of the Statutes ” of Limitations in a suit between natives, or between ” a native and a European, must rest entirely, and

” can only succeed, upon evidence of a contract to be ” bound exclusively by English law, such contract ” being either express, or implied from the course of ” dealing or the nature of the transactions between ” the parties. In this view of the matter, the right ” to claim the benefit of the statutes is not, in ” strictness, a matter of law, but is purely ” conventional or contractual, within the provision ” of section 19 of Ordinance. In order that the ” Court may be induced to hold that English law ” shall apply under section 19, it must be satisfied ” that the parties agreed that their obligations ” should be regulated exclusively by English law, ” and not partly by English law and partly by native

/_au, II

Again at page 14 he writes, referring to Indian law, ” there is ” no provision so strongly worded as section 19 of the Supreme ” Court Ordinance of the Gold Coast, by which the native is only ” to be deprived of the benefit of any native law or custom when it ” can be shown that he has excluded it by contract, express or ” implied “.

The view expressed in these quotations has been accepted in subsequent cases, notably those of Hughes v. Davies decided in 1909 (Renner’s Reports, 549-557), and Kwamin Aradzie v. Kobina Yandor 4- Another (F.C. 1922, p. 91) in the first of which Francis Smith, J. said : ” In my opinion whether the statute is to be ” applied or not must depend on the circumstances of each ” individual case within the terms of the proviso to section 19 of ” the Supreme Court Ordinance, and none of the authorities ” decided by the Supreme Court has been so determined outside ” that proviso “.

It appears to me from these quotations from Redwar and from the subsequent cases that the material distinction which the section makes between cases where both parties are natives and cases where one is a native and one a non-native has been overlooked. Where both are natives native customary law applies (absolutely under the law in force when Redwar wrote, but now ” save where the ” circumstances, nature or justice of the case shall otherwise ” require “). On the other hand where one party is a native and one a non-native the native customary law only applies where it shall appear to the Court that substantial injustice would be done to any party by a strict adherence to the rules of any other law. In other words, it is a condition precedent of the application of the native customary law at all that there would be substantial injustice if it were not applied. It is not until that condition :recedent is fulfilled that consideration need be given to the terms f the first proviso to the present section whereby a limitation is ant upon the application of the native customary law.