ANKRAH v. OFORI [1963] 1 GLR 101

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 11TH FEBRUARY, 1963

BEFORE: AKAINYAH J.

 

CASES REFERRED TO

(1) Cartledge v. Jopling & Sons Ltd. [1963] A.C. 758, H.L.

(2) In Re McCallum [1901]1 Ch. 143, C.A.

(3) John v. Dodwell & Co., Ltd. [1918] A.C. 563, P.C.

(4) Legh v. Legh [1930] All E.R. 565

(5) Beaman v. A.R.T.S. Ltd. [1949]1 All E.R. 465, C.A.

(6) Bulli Coal Mining Co. v. Osborne [1885-1899] All E.R. Rep. 506, P.C.

NATURE OF PROCEEDINGS

Application by motion for an order for extension of time within which to sue under Act 2 on the grounds of the concealed fraud of the respondent.

COUNSEL

A. W. Acquaah for the plaintiff-applicant.

G. Koranteng-Addow for the defendant-respondent.

JUDGMENT OF AKAINYAH J.

In this action the plaintiff sues under the Land Development (Protection of Purchasers) Act, 19601 for the relief set out in his writ.

Section 2 (1) of the said Act reads as follows:

“Where—

(a) a person (in this section referred to as the purchaser) took a conveyance of land in a prescribed area at some time after 31st December, 1944 and before the date on which the area became a prescribed area, and

(b) the purchaser or a person claiming through him, in good faith erected a building on the land, and

(c) a possession order was made in relation to the land in proceedings finally disposed of before the date on which the area became a prescribed area, and was so made by reason that the conveyance taken by the purchaser did not operate to confer on him the title to the land, the person against whom the possession order was made may, at any time within twelve months after the date on which the area became a prescribed area, apply to the High Court for an order under this section.” By a legislative instrument2 entitled the Land Development (Protection of Purchasers) (Accra Prescribed Area) Instrument, 1961, made the 19th May, 1961, and published in the Ghana Gazette on the 2nd June, 1961, the Accra area described in the schedule thereto was declared a prescribed area for the purposes of the Act and the time for bringing an action by interested persons began to run from the 19th May, 1961. By this application, the plaintiff has admitted that he is out of time and he is praying for an order of this court for extension of time within which to institute proceedings under the Act on the grounds of fraud. In effect, the applicant is asking for a declaration that the alleged fraud [p.103] of [1963] 1 GLR 101 of the defendant prevented time running against him and that he still can sue. In support of the application, the plaintiff relied on an affidavit sworn to by him on the 14th January 1963, and a copy of a letter dated the 20th June 1961, written by him to David Sarbah Ofori, the defendant herein, and a copy of the defendant’s reply dated the 25th July, 1961, both of which he annexed to the said affidavit and marked A and B respectively. In his affidavit, the applicant alleged that as a result of representations made orally to him, he paid the sum of £G20 in part payment of the sum to which the defendant would be entitled if he sued under the Act. He was made to believe that the defendant would restore his house to him without the necessity of going to court but the defendant has now, after the lapse of the time limited by the Act, evinced an intention to repudiate the written and oral assurances given by him and is pleading limitation of time against the applicant. Mr. Acquaah for the applicant submitted that the conduct of the defendant amounts to fraud in equity and that time did not commence to run against the applicant until after he discovered the fraud. Counsel referred to the allegations contained in the applicant’s affidavit and said that they constituted fraud and quoted passages from Hanbury, Modern Equity (6th ed.), p. 58, Snell, Principles of Equity (24th ed.), p. 384 and Frank, Limitation of Actions, p. 209. He said the applicant was vigilant at all material times and denied that he ever threatened or imposed any fantastic terms on the defendant.

In his affidavit filed on the 28th January, 1961, in opposition to the application, the defendant admitted making the promise to the applicant. He contends, however, that after the promise had been made, the applicant started to impose his own terms by making fantastic claims and issuing threats against the defendant’s family. He also demanded an amount of’ £G4,000 as mesne profits accruing from the house, the subject-matter of the action and therefore the defendant’s family refused to consider the applicant’s case any more. He contended that the jurisdiction granted by the Land Development (Protection of Purchasers), Act 1960,3 is limited and circumscribed by the Act and that it is outside this court’s competence to grant the enlargement of time sought by the applicant. The defendant did not refer to the sum of £G20 alleged to have been paid to him by the applicant. He neither denied nor admitted receipt of the said sum but the applicant showed a receipt to the court and counsel. Mr. Koranteng-Addow for the defendant said in reply that on the 4th December, 1962, the defendant made it quite clear to the applicant’s solicitor that owing to the menacing conduct of the applicant, he had given up consideration of the applicant’s case any further. He submitted that the applicant had merely made allegations of fraud; he has not established fraud, therefore the court should not exercise any discretion in his favour, and the authorities cited by Mr. Acquaah did not apply. Counsel admitted that on the 20th June 1961, the applicant wrote the letter marked A and that the letter dated the 25th July 1961, marked B is the defendant’s reply. The Act gives no discretion and therefore time [p.104] of [1963] 1 GLR 101 runs against everybody and he cited Cartledge v. Joppling & Sons Ltd.4 in support of his submissions. I agree that the passages read by Mr. Acquaah do not apply because they are commentaries on the provisions of an English statute known as the Limitation Act, 1939,5 which does not apply here in Ghana. Before I proceed further, I must say that this application is a difficult one but very interesting. The defendant admitted making the promise alleged by the applicant. Although paragraph 2 of the letter marked B ended with the ambiguous words “to amicably conclude it,” when read together with the applicant’s letter marked A, the meaning of the said words becomes clear.

Upon the admissions made by the defendant I find, (a) that he knew that the applicant was entitled to apply to the court for an order setting aside the possession order made against him within twelve months from the 19th May, 1961; (b) that the defendant wrote the letter marked B to the applicant and made oral assurances to him for the purpose of inducing him to believe (which he did) that his house would be restored to him without the necessity of a court action; (c) that at all material times the defendant knew that the applicant placed reliance upon the said promise and assurances and would not therefore go to court; (d) that although the defendant never intended to honour the said assurances, he deceitfully repeated them constantly to the applicant until the time limit fixed by the Act lapsed when he revealed to the applicant for the first time his intention to repudiate the said promise and assurances; (e) that the defendant’s allegation in respect of the sum of £G4,000 cannot be true because the defendant knew or ought to have known that under the Act mesne profits are expressly excluded; and (f) that the payment of the sum of £G20 which is not denied by the defendant is referable only to the assurance given to the applicant that his house would be restored to him.

I hold therefore that the promise and assurances made to the applicant and the conduct of the defendant amount to a concealed fraud and by its subtle nature it was difficult for the applicant to detect it. Having found that there has been a concealed fraud, I will now consider section 26 of the Real Property

Limitation Act, 1833,6 and a few of the decided cases on the subject which I have discovered. Section 26 of the Real Property Limitation Act reads as follows:

“And be it further enacted, that in every case of concealed Fraud the Right of any Person to bring a suit in Equity for Recovery of any Land or Rent of which he, or any Person through whom he claims, may have been deprived by such Fraud, shall be deemed to have first accrued at and not before the time at which such Fraud shall or with reasonable diligence might have been first known or discovered; provided that nothing in this Clause contained shall enable any owner of Lands or Rents to have a suit in Equity for the Recovery of such Lands or Rents, or for setting aside any conveyance of such Lands or Rents on account of Fraud against any

[p.105] of [1963] 1 GLR 101 bona fide Purchaser for valuable consideration who has not assisted in the commission of such Fraud and who at the time that he made the Purchase did not know and had no reason to believe that any such Fraud had been committed.”

In In re McCallum7 the following dicta appear in the headnote, per Lord Alverstone C.J. and Vaughan Williams L.J.:

“The concealed fraud which by section 26 of the Real Property Limitation Act, 1833, will prevent time running against the true owner of real estate must be the fraud of the person who sets up the statute, or of someone through whom he claims.”

And per Rigby L.J.8

“Section 26 applies to every case of a ‘concealed fraud’ which deprives the true owner of the possession of land except as regards a bona fide purchaser for value without notice of the fraud at the time of his purchase.”

In the course of his judgment Lord Alverstone C.J. said9 “The question then arises, whether, at the commencement of the action, the statute had run against the plaintiff or whether the concealed fraud of the mother can be prayed in aid as an answer to the possession of General McCallum and the defendant. I am of the opinion that, in order to prevent the operation of the statute, the fraud contemplated by section 26 must be the fraud of the person setting up the statute or someone through whom he claims.”

Vaughan Williams L.J. also said10

“It seems to me that the words of section 26 sufficiently indicate that the intention of the Legislature, at the time when it enacted a legislative rule respecting the period within which relief might be granted to those seeking to recover any land or rent of which they might have been deprived, was to reserve to courts of Equity that jurisdiction which those courts had always exercised to relieve against ‘concealed fraud’ when discovered . . .. The plaintiff had to prove facts so affecting the conscience of the defendant that he ought not to be allowed to avail himself of the length of time fixed generally by the Statute of Limitations.” In the case of John v. Dodwell and Co., Ltd.,11 Viscount Haldane said inter alia:

“Mr. Upjohn, in arguing the case of the respondents, with conspicuous fairness, drew their Lordships’ attention to those passages in the Digest. They think that they illustrate a general principle, applicable in Ceylon or in England, that to enable the defence of concealed fraud to be relied on as giving a new cause of action the fraud must be shown to be the fraud either of the defendant himself or of someone for whose action in the matter in question he has assumed responsibility . . . . In the present case there is a statute of Limitation and in order to escape from its application it is necessary to show that there is a subsequent and independent cause of action which arises from the concealment of the fraud.”

[p.106] of [1963] 1 GLR 101

In Legh v. Legh12 Mackinnon J. said inter alia:

“Where the plaintiff’s delay was not his fault at all … [but] was brought about by the fraud of the defendant, the Court of Chancery said to the defendant ‘You must not take advantage of your own wrong in concealing from him the fact that he had a cause of action; therefore the plaintiff shall only be debarred from the time when he discovered the fraud.’ “

Similar principles were laid down in the cases of Beaman v. A.R.T.S. Ltd.13 and Bulli Coal Mining Co. v. Osborne.14

On the authorities cited supra, I am of the opinion that the applicant’s action is not barred by limitation of time and that time began to run from the date of the discovery of the defendant’s concealed fraud, which is the 4th December, 1962, when, according to counsel, the defendant wrote to the applicant. In the circumstances I direct that the action should proceed. The applicant is ordered to file a statement of claim within ten days and the defendant a statement of defence within fourteen days and reply if any in seven days.

Costs of fifteen guineas in favour of the applicant, to be paid within seven days.

DECISION

Application granted.

[Reported by S. A. BROBBEY, ESQ., Barrister-at-Law.]