ACKAAH vs. ASANE [1973] 2 GLR 429

CASES REFERRED TO

(1) Waya v. Byrouthy (1958) 3 W.A.L.R. 413.

(2) Ferguson v. Duncan (1953) 14 W.A.C.A. 316.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the district court, Dunkwa, on the ground that the plaintiff ‘s action against the defendant commenced in 1971 to recover the balance of a debt incurred in 1962 was statute-barred

COUNSEL

J.K. Essiem for the appellant.

K.E. Amua-Sekyi for the respondent.

JUDGMENT OF EDUSEI J.

In 1971 the plaintiff sued out a writ in the District Court Grade I, Dunkwa, claiming the sum of N¢440.00 “being balance of an amount due and owing by the defendant to the plaintiff in respect of one 2-ton Bedford Lorry No. WR 2324 which the defendant purchased from the plaintiff and which amount, the defendant has failed to pay after several demands . . .”

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The learned district magistrate after hearing evidence found that the defendant-appellant (hereinafter referred to simply as the defendant) had not paid the amount and he entered judgment in favour of the plaintiff-respondent (hereinafter referred to simply as the plaintiff) and the defendant appealed. The only ground of appeal canvassed on behalf of the defendant was “that the action herein is statute-barred.”

The sale of the Bedford lorry No. WR 2324 took place in 1962 and this was evidenced by a memorandum of agreement, exhibit 1, and Mr. Essiem, counsel for the defendant, contended that according to exhibit 1 the final instalment payment should have been made on 14 March 1963. In effect he was saying that the cause of action for the recovery of the amount due arose immediately after 14 March 1963, and the plaintiff had up to March 1969 for the institution of the action. But the writ was taken out on 16 April 1971, and counsel for the defendant therefore argued that the claim was two years out of time. In making this submission learned counsel’s view was that the parties intended English law to apply having regard to exhibit 1, and the Limitation Act, 1623 (21 Ja. 1, c. 16), barred the plaintiff’s action since six years had elapsed since the cause of action arose.

Mr. Amua-Sekyi, counsel for the plaintiff, put forward a contrary argument and submitted that the transaction between the parties was governed by customary law and not English law, and that customary law knows no statute of limitations in such a transaction. I think it is necessary at this stage to set out the provisions of exhibit 1 since both parties relied on it to show that a particular system of law was applicable between the parties. Exhibit 1 runs as follows:

“MEMORANDUM OF AGREEMENT, made this 8th day of May, in the year of our Lord, One Thousand Nine hundred and Sixty-two (1962) between KWABENA ASANE, of Pataboso in the Sefwi Anhwiaso State (herein ‘SELLER’) on the first part, and STEPHEN ACKAAH, of Ankra Muano in the aforesaid State (herein after called ‘PURCHASER’) on the other part.

Whereas the Seller is desirous to sell his Two Tons Diesel Engine Bedford Lorry No. WR 2324 to the Purchaser for the sum of six hundred pounds (£600).

And whereas the Purchaser has agreed to buy for himself the said Two tons Diesel Engine Bedford Lorry No. WR 2324 for the said sum of six hundred pounds (£G600).

1. It had been mutually agreed that the Purchaser to pay the sum of two hundred pounds (£G200) as deposit and pay the balance of four hundred pounds (£G400) by monthly instalments of forty-pounds (£G40) to spread over the period of ten (10) months starting from the 14th of June, 1962, and on the 14th of the subsequent months to complete.

2. That should the Purchaser fail to pay any of the instalments when it is due, the Seller has the reserve

right to seize the said Bedford Lorry from the Purchaser after seven (7) days.

[p.432] of [1973] 2 GLR 429 3. That after the lorry had been seized for two weeks, the Seller will give a written notice to the Purchaser to pay the amount due, and if the Purchaser fails altogether to make such payment, the Seller is entitled to sell the lorry by auction to recover his money (balance) due and the Purchaser will lose or forfeit the deposit paid to the Seller.

4. That full Transfer documents should be given by Seller to Purchaser after full payment had been made.

His R (Sgd.) Kwabena Asane x T.

VENDOR mark. P.

(Sgd.) Stephen Ackaah (Sgd.) PURCHASER Witness:— (Sgd.) A. Kyem W/W/To mark & Sgd.

Asafo Kwakye Licence No. 43311/62, Bib.

15/ – for Org. & Duplt.”

Section 49 of the Courts Act, 1971 (Act 372), gives guidance as to the choice of law that the court may apply in determining an issue between parties. Section 49 (1) says:

“Subject to the provisions of this Act and any other enactment, the Court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law …”

And rule 1 of section 49 (1) states:

“An issue arising out of a transaction shall be determined according to the system of law intended by the parties to the transaction to govern the issue or the system of law which the parties may, from the nature or form of the transaction be taken to have intended to govern the issue.”

This rule applies in my view, (a) where the parties themselves have expressly agreed that either the common law or customary law shall apply to their transaction, or

(b) from the nature or form of the transaction the parties may be said to have impliedly agreed to apply either common law or customary law.

It is quite clear that the parties did not in exhibit 1 state expressly that either common law or customary law should apply. It is necessary therefore to try to spell out from exhibit 1 what system of law the parties

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intended to apply to the transaction. Exhibit 1 cannot be a hire-purchase agreement since the usual provisions expected in such an agreement are absent. The first point to bear in mind is that the parties are Ghanaians. In my view it is an agreement for the sale of goods on credit and I have now to consider what law—common law or customary law—applied to the transaction. In a common law agreement for the sale of goods on credit the property in the goods passes to the buyer on signing the agreement or upon delivery of the goods: see Waya v. Byrouthy (1958) 3 W.A.L.R. 413. It is immaterial whether the document of title has been given to the buyer or not. Paragraph (4) of exhibit 1 therefore does not import the concept of common law into the transaction when it is stated that transfer of the document will only be made on full payment of the purchase price. Paragraph (2) of exhibit 1 is inconsistent with the common law agreement for sale of goods on credit because seizure of the article of sale (i.e. Bedford lorry in this case) is out as soon as the property in the goods has passed to the buyer on sale. Again paragraph (3) of exhibit 1 which deals with the seizure of the deposit upon failure to pay the balance of the amount runs counter to the principle of common law agreement for sale of goods which passes the property in the goods to the buyer upon delivery, and the seller can only maintain an action to recover the amount due but he cannot seize the vehicle and keep the deposit as well. It is quite clear that on reading the agreement (exhibit 1) as a whole the parties never intended the common law to apply to the transaction in issue. On the contrary, paragraphs (2), (3) and (4) of exhibit 1 conform to a customary law agreement for the sale of goods on credit.

The next question is—what system of customary law is to apply? This does not permit of an easy answer from the evidence. However, the parties contracted for the sale of the lorry in the Sefwi district of the Western Region of Ghana. The agreement, exhibit 1, was prepared in Bibiani in the Sefwi district by a licensed letter writer and the parties themselves at the time lived in that district. In the circumstances, it is reasonable to infer that the particular system of customary law the parties intended to apply to the sale transaction is the customary law of the Sefwi people, and this was not different, having regard to the matter in issue, from the custom prevailing among the other Akan speaking people.

Even if rule 1 of section 49 (1) is not applicable to the transaction in issue, I am prepared to invoke the provisions of rule 5 of the said subsection. It reads:

“Subject to the foregoing Rules, the law applicable to any issue arising between two or more persons shall, where they are subject to the same personal law, be that law; and where they are not subject to the same personal law, the Court shall apply the relevant rules of their different systems of personal law to achieve a result conformable to natural justice, equity and good conscience.”

Here the parties are Ghanaians and one of them is illiterate. The transaction was entered into in the Sefwi district and it can be said that their

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personal law is that which operates in the Sefwi area of Ghana, or, at least the application of the law in the Sefwi area “will achieve a result conformable to natural justice, equity and good conscience.”

Also from the evidence the defendant sought the assistance of a third person to plead for time to pay the balance. When the plaintiff went to demand the money he went with a witness. All these matters are consistent with Ghanaian custom, and it can be said therefore that the parties right from the beginning intended customary law to apply to their dealings between them. The case of Ferguson v. Duncan (1953) 14 W.A.C.A. 316 is illuminating in so far as the instant case is concerned. The statute of limitations therefore is inapplicable to the instant issue and the ground of appeal fails. I therefore dismiss the appeal with costs of ¢100.00 to the plaintiff.

DECISION

Appeal dismissed with costs.

S. E. K.