COCOA MARKETING CO LTD vs. ANSAH [1997-1998] 2 GLR 514

CASES REFERRED TO

(1) Odoi v Hammond [1971] 1 GLR 375, CA affirmed [1982-83] GLR 1215, SC.

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(2) Kronstein v Korda [1937] 1 All ER 357; 81 SJ 176, CA.

(3) Beddal v Maitland (1881) 3 QB 324; 17 ChD 174; 50 LJU 401.

(4) Dam v Addo [1962] 2 GLR 200, SC.

(5) Jones v Belilgrove Properties Ltd [1949] 2 KB 700; 65 TLR 451.

(6) Wright v Pepin [1954] 2 All ER 52; [1954] 1 WLR 635; 98 SJ 259.

(7) Kamuoh v Associated Electrical Industries International Ltd [1980] QB 199; [1979] 2 WLR 795;

(1978) 122 SJ 714.

(8) Majolagbe v Larbi [1959] 1 GLR 190.

(9) Elder v Northcott [1930] 2 Ch 422; 99 LJU Ch 548; 143 LT 614.

(10) Tannery v Smart (1877) 6 B & C 603; 5 LJOS KB 218.

(11) Spencer v Hemmerde [1922] 2 AC 507; 91 LJKB 941; 128 LT 33.

(12) Courtenay v Williams (1804) 13 LJU Ch 461; 8 Jur 844.

(13) Hadley v Baxendale (1854) 9 Exch 347; 23 LJU Ex 179; 18 Jup 358.

(14) Mensah v Andoh [1980] GLR 774.

(15) Liesboch Dredger v S S Edison [1933] AC 449; 102 LJUP 73.

(16) Royal Dutch Airline (KLM) v Farmex [1989-90]2 GLR 623, SC.

APPEAL by the defendant-appellants from the judgment of the High Court, Accra in favour of the plaintiff-respondent in an action for, inter alia, arrears of overseas salary and allowances. The facts are sufficiently set out in the judgment of Wood JA.

Mrs Asafu Adjei for the appellants

Osei-Nyame for the respondent

Wood JA. The defendant-appellants, a statutory body registered under the laws of Ghana, are a subsidiary of Ghana Cocoa Board (GCB). They are engaged in the business of the overseas market ing of cocoa and other agricultural products. In this judgement, I shall refer to them as “the appellants.” I will also hereinafter refeir to Christian K Ansah, their former employee who sued them to recover arrears of salary and other benefits, special and general damages,. as well as interest on the arrears,. as “the resnpondent.”

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On 23 February 1995, the Circuit Court, Tema gave judgement in the respondent’s favour for: (i) Recovery of £4,814 and £724 representing arrears of salary and allowances; (ii) special damages of $3,010; (iii) interest on the said sum; and (iv) ¢200,000 general damages. In the court below, the appellants had denied each and every material detail on which the claims were founded, save of course the fact that he did work for them in the United Kingdom. They had also, in the alternative, maintained that even if he were entitled to those claims, they were in any event statute-barred, since the action was instituted well after the periods limited undeir the Limitation Decree, 1972 (NRCD 54).

Being dissatisfied with the said decision, the appellants appealed to us in this court and prayed for a complete reversal olf the whole desisiondecision. In all, four grounds of appeal were filed and argued. Two are contained in the original grounds of appeal and the other two may be found in the additional grounds. The mosti formidable ground is ground (b) of the original grounds. It states: “The learned trial judge erred in law in holding that plaintiff’s action was not statute-barred.” The importance of this ground cannot be denied. Its resolution in the appellants’ favour, in my view, should, without necessarily having to determine this case on the merits, spell the doom of the counsel for the respondent’s case. This was the approach recommended by the respondent in the court below and there is much wisdom in it. The court, however, dealt with the other principal issues because it resolved the question of whether or not the action was statute-barred in the respondent’s favour. On my part, however, I will like to deal with the two related issues raised in ground (b) of the original grounds filed and in ground (a) of the additional grounds first, as thenir resolution will indicate the direction in which I would proceed, namely whether I would go on to examine the other grounds olf appeal or whether the matter should be laid to rest at that stage.

The additional ground (a) criticises the learned trial judge foir committing an “error in law and fact in upholding the respondent’s claim that the appellants had perpetrated fraud on him.” A very simple argument was put up in defence of this ground. Thec uncontroverted evidence, it was pointed out, clearly shows that thec respondent was the secretary/accoOuntant of the appellant’s Londorn office from 1973-1978. It was therefore argued that, as secretary, he had direct access to all official documents that emanated fromrr the head office. The contention therefore was that he cannot in all

[p.521] of [1997-1998] 2 GLR 514 honesty, both in law and in fact, be heard to say either that a fraud had been practised on him, or that there had been a concealment of what his true earnings are from him. Although counsel for the appellants was unable to supply us with any authority, either direct or persuasive, on the point, he nevertheless submitted that in the circumstances in which the respondent found himself, namely as secretary/accountant, the law would impute knowledge, full knowledge of his true earnings to him. We were therefore urged to conclude that since the official documents to which he had access included the exhibit 2, which spelt out the allowances staff were entitled to, he ought to be deemed to have had notice of his just emoluments and that the charges of fraud and or concealment are palpably false.

The question of fraud and concealment did, indeed, arise for consideration in the court below. It is one of the pleas the respondents raised in reply to the appellants’ defence of statute- bar. It is to the learned trial judge’s credit that she identified at least concealed fraud as one of the key issues for determination., On this, she concluded as follows:

“I am of the view that the plaintiff was disabled to bring the present action because of concealment of information. I also accept that Mr Yamoah, the then head of the London office, did not make available to the plaintiff the details of the entitlements until the plaintiff by his own diligence and industry was able to discover them long after the departure of the said Mr Yamoah from the London office.”

Before I state my opinion on the correctness or otherwise of the learned judge’s findings on the above issue, I will like briefly to trace its genesis. When by the paragraph (10) of their defence the appellants pleaded that the entire claim was statute-barred, the appellants quickly by their reply responded as follows:

“(4) The plaintiff avers further that the defendants disabled him from claiming his entitlements much earlier by concealing material facts from him in circumstances which amounted to fraud, in particular, the conduct of the then head of the London office, Mr Yamoah, who did not make available to the plaintiff the details of the entitlements until the plaintiff by his own diligence and

[p.522] of [1997-1998] 2 GLR 514 industry was able to discover them long after the departure of Mr Yamoah from the London office.”

A summons for directions, as is usually the case, accompanied the said reply. Its paragraph (3) identified the issue of fraud by concealment of material facts as one of the crucial issues for determination. Again, following an application for further and better particulars of the concealment, the respondent provided the following as particulars of the alleged fraud by concealment:

“(1) The defendants deliberately and with intent to cheat the plaintiff paid him the wrong salaries during the administration of Mr B B Yamoah at the London office between March 1975 and April 1977.

(2) These payments were facilitated by the defendants concealing from the plaintiff the relevant revised staff rules and regulations governing the company’s overseas service which would have entitled him to the highert appropriate remunnerationremuneration.

(3) Contrary to the practice before Mr Yamoah’s secondment, the plaintiff was not served with copies oif salary advice to the Ghana Commercial Bank, London which was responsible for paying the salaries personally or in his capacity as the secretary/accountant of the London company through March 1975 to April 1977.”

In consequence of these acts of concealment, the plaintiff was unaware of the full range or scale of his new salary and the basis of the various payments until after persistent inquinries and demands on the Ghana High Commission, London and the Accra office of the defendant company.”

I must commend appellants’ counsel at the time, Charles Arday3 (now of blessed memory), for his industry and foresight in applying for these particulars. I will like however, to make this one small observation. The information furnished lacks this one particularly. It did not specify the date on which the great discovery was made. I am referring to the discovery that material facts, all with the grand design of defrauding him, have been concealed from him. I think the appellants should have pursued the matter further andc pressed for the date. The reason is that the law requires charges of fraud and concealed fraud to be pleaded with utmost particularity. In actual fact, this rather important question of whether or not an

[p.523] of [1997-1998] 2 GLR 514 action is statute-barred, and indeed other related issues like the one under discussion (fraud or concealed fraud), all hang on the specific dates on which certain relevant events occurred. These dates must be certain or clearly ascertainable. For as far as NRCD 54 is concerned, time is reckoned from the dates on which these events occurred. These dates are the dates on which the cause of action accrued. Thus for example, in this instant case where fraud by concealment has been alleged, it is not sufficient merely to allege that a discovery was made at a future date, without setting out the date on which discovery was made. The court must still be certain that in spite of the fresh accrual date, the action was instituted within the time set by the statute, and as reckoned from the new date. In spite of this ommisionomission however, the parties, particularly the appellants, were satisfied with the information supplied and fought the case on the strength of the particulars supplied. It is the learned trial judge’s pronouncements on the issue that we lave been invited to reverse, and I now give my own views.

The accusations against the appellants were indeed very grave, almost bothering on criminality, if I am not exaggerating. The appellants were not accused of carelessness, negligence or apathy, but of wilful and deliberate conduct, with Yamoah being the main architect who facilitated the fraud by deliberately paying him wrong salaries and by means of intentionally concealing his true earnings from him. What the law looks out for in a plea of fraudulent concealment is not merely negligence or recklessness on the part of the person against whom the charge is laid, but some wilful concealment of facts and which is designed to defraud the innocent party.

Two types of fraud are envisaged under section 22 of NRCD 54. There is firstly what I may describe as “pure” fraud, ie those cases in which the action is based on fraud. Then there is the second type in which the right of action is concealed by the fraud of the other person. This type of fraud has been described either as “concealed fraud” or “fraudulent concealment.” It is plain from the pleadings in particular that this court, as was the court below, is concerned with both fraud and “concealed fraud.” The law requires the respondent to prove these matters which form the basis of the fraud and concealed fraud not in a half-hearted manner, but with the same precision that they were formulated. The learned author oft the instructive book, Halsbury’s Laws of

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England (3rd ed), Vol 24 has in his usual characteristic style set out in paragraph 631 the matters that need to be proved where party alleges concealed fraud. I found the passage most helpful for determining also the degree of proof. He wrote:

“In order to constitute such a fraudulent concealment as would, in equity, take a case out of the statutes of limitation, it was not enough that there should be merely a tortious act unknown to the injured party, or enjoyment of property without title, while the rightful owner was ignorant of his right; there had to be some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts.”

Therefore, the critical question is, what evidence did the respondent lead in proof of either the allegation that he was deliberately underpaid or the deliberate concealment of what his just earnings are in particular, and which coupled therefore with the payment of his wrong salaries to him, was designed to cheat him.

I have examined the respondent’s evidence. Unfortunately, I find nothing that could justify the conclusion reached by the trial judge, namely that concealed fraud was proved. The furtherest his evidence went was merely to allege that he was not notified of the new salary ranges. Even so, he himself confesses in another part of his testimony that Ghana Cocoa Board informed him of the new salary levels, throwing doubt on his assertion that valuable information was concealed from him. Be that as it may, there is no evidence of fraud or fraudulent concealment. I have taken the trouble to reproduce the crucial portions of his testimony, these parts which one would have expected to find the concealment, if he were minded to lead evidence on it. I quote:

“In 1975, the committee published the report and its recommendations were accepted by the government with retrospective effect from 1 July 1974 . . . Before the review, my salary scale was ¢5,400 x 200 to ¢6,900 per annum. After the review, the rate of the scale was Ø¢7,080–Ø ¢18,856 per annum for Al class officers. It was directed that public officers should implement this new revised salaries. This was done through GCB informing me of the new level of salary and the GCB gave us the basic salary at the rate of exchange.

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After the review, Cocoa Marketing Co did not pay me the appropriate salary and allowance in compliance with the 1974 directives. Since the Cocoa Marketing Co did not send us any advice as to the full range of my salary, I contacted the representative of the Public Services Commission in London who offered to give me a schedule of all the revised salaries and also new overseas allowances. This was in 1976. Before 1974 my salary was ¢6,400 per annum and after the salary conversion with effect from 1974, ¢8,375.00 per annum which is range 93 and present in the defendant company’s rules regulations governing its overseas service issued in 1975; and I was not served with these rules and regulations. I was entitled to receive a copy. The secretary of Cocoa Marketing Board was to have given me a copy.”

Another disturbing matter is this. He failed to disclose when he, by his own industry, discovered the truth; thus making it virtually impossible for us to determine whether even if the running of time were postponed, he nevertheless brought the action within the time limited after the discovery. I think however that if we inferred from his evidence, we would benevolently put the relevant date in December 1976. Even at this date, ie the last day which is 31 December, he was still obliged under NRCD 54, to institute the action within six years from this date. It does follow that his claim would still be caught by NRCD 54, unless he is able to establish, as it appears to be the case, that additionally the appellants: (1) acknowledged the debt owed; and (2) made a part payment of same even when it became statute-barred. I think, however, that the respondent failed to establish either fraud or concealed fraud. The learned judge’s finding was therefore in error and the same ought to be set aside.

But, as I have already explained, this respondent also set up two other strong pleas. The proof of any one of them would cause the postponement of the period of limitation. They are the pleas of acknowledgement and part payment. The criticism the appellants have against the learned trial judge’s decision on this issue is contained in the paragraph (b) of the original grounds of appeal. It states: “The learned trial judge erred in law in holding that the plaintiff’s action was not statute-barred.” It was submitted, with respect to this ground, that the judge’s conclusion that there was an: (1) acknowledgement and (3) a part paym ent of the otherwise

[p.526] of [1997-1998] 2 GLR 514 statute-barred debt is clearly upsupportedunsupported by the record. In further explanation of this ground, it was also urguedargued that firstly, since the evidence clearly shows that the respondent brought the action in 1991, some twelve-and-half months after the payments became due, he acted beyond the time frame set by the NRCD 54 which in cases founded on simple contract is six years. It was therefore urguedargued that the proper finding is that the action is time-barred, that is to say, whichever position one adopted namely, whether there was fraud or concealed fraud or not.

These arguments evoked the following responses from Mr Osei Nyame, counsel for the respondent. He contended that first, though prima facie the claim may appear to be statute-barred, two years to the date of the issue of the writ, the appellants acknowledged the debt and took a further step of making part payment of same. His simple contention therefore is that by the clear provisions of section 17 (l) (a) and 19 (l) (a) of NRCD 54, this claim falls under the exemption from the strict limitation rules. Secondly, he was of the opinion that in any case, purely on procedural grounds, the plea of statute-bar cannot avail the appellants. His reason is that when he (the respondents raised the plea of acknowledgement and part payment in his reply, the appellants were strictly enjoined by the rules to file a rejoinder. The more serious point he urguedargued was that having failed to take this necessary step, they are deemed to have admitted the factd alleged in the reply and were therefore estopped from denying the material facts of acknowledgement and part payment. Thirdly, his further contention was that even if under the rules they were not obliged to file a rejoinder, they ought to have asked for further and better particulars of the acknowledgement and part payment. The failure to take this alternative step, it was again urged, amounts toc a tacit admission of liability.

I propose to deal with the procedural questions first, namely whether or not they were bound by the rules to file a rejoinder ori to ask for further and better particulars of the acknowledgement ori part payment. If the answer turns out in the positive, the otheri related issue is, would their failure to take any of these steps amount to an admission of the facts so pleaded to the extent thati they are estopped hereby from denying them?

I have come to the conclusion that they were not so bound. Indeed, it was the very authorities respondent’s counsel relied on to buttress his point that drove me to this conclusion. It is no other

[p.527] of [1997-1998] 2 GLR 514 than the very reliable textbook on civil practice and procedure by Giles Francis Harwood M A and which is titled Odgers Principles of Pleadings and Practice in Civil Actions in the High Court of Justice (22nd ed). The learned author wrote at page 214:

“The defendant’s answer, if any, to a reply, is called a rejoinder; but it is now very seldom pleaded except where there has been a counterclaim and the defendant desires to confess and avoid some allegation in the defence to counterclaim. The rejoinder is then, in effect, a reply to the defence to counterclaim.”

I propose to digress and talk a little about a reply. The purpose is to demonstrate that the appellants need not have filed a rejoinder. Interestingly, even in the case of a reply, considered by many to be a sine qua non, we learn from this distinguished author and of course other eminent writers that it is not at all necessary, if the only object is to deny what has been pleaded in a defence. The reason being that in its absence, there is an implied joinder of issue.

We find the main purpose of a reply neatly set out by Azu Crabbe JA (as he then was) in Odoi v Hammond [1971] 1 GLR 375 at 385, CA affirmed in [1982-83] GLR 1215, SC. It is worthwhile to reproduce what the honourable justice said:

“The main purpose of a reply in pleadings is to raise in answer to the defence any matters which must be pleaded by way of confession and avoidance, or to make any admissions which the plaintiff may consider proper to make. ‘The reply is the proper place for meeting the defence of confession and avoidance’: per James LJU in Hall v Eve (1876) Ch 341 at pp 345-346, CA.”

Thus for instance, as happened in the instant case, where a defendant pleads a debt is statute-barred and plaintiff intends to raise the plea of either an acknowledgement and or part payment, the law enjoins him to set up these matters he intends to rely on to defeat the twin pleas in a reply. It is under such circumstances that a reply becomes very essential. This view is contained in other valuable sourcebooks like our local textbook, Civil Procedure by E D Kom and also the Annual Practice. At the risk of sounding renpetitive I will renproduce what the learned author of the Annual

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Practice has to say on this vexed question of the purpose of a reply. Writing under the heading “reply necessary” he states:

“It is frequently necessary for the plaintiff to set up some affirmative case of his own in answer to the facts alleged by the defendant. The reply is the proper place for meeting the defence by confession and avoidance.” “The plaintiff must raise by his pleading all such grounds of reply as, if not raised, would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the proceedings pleadings as for instance fraud, statute of limitation, release, payment .. . The plaintiff must therefore be careful not to join issue merely where he ought to allege new facts. The danger of not doing so is well illustrated in Kronstein v Korda 1937 (supra) where for example the defendant has pleaded the statute of limitation, it may be necessary for the palintiffplaintiff to plead facts which take the case out of the statute.”

The clear indication then is that, as stated by other distinguished writers, where the reply is intended to contain only denials of the facts pleaded in the defence, then it may be dispensed with. On the other hand, where the intention is to meet the defence of confession and avoidance, then it is necessary. The point is that the case of Odoi v Hammond (supra) does not help counsel for the respondent’s cause. If it has any bearing at all, what it does show is that of the two parties, if any one were under any obligation or compulsion to state a case, after the defence has been filed, it is the respondent. It is he who was obliged to raise in answer to the plea of time-bar the fact of an acknowledgement and or part payment. On this score, the respondent’s counsel must be commended for being alive to his responsibilities and avoiding the pitfall illustrated in Kronstein v Korda (supra) by clearly setting out in the reply, the two pleas of acknowledgement and part payment. Speaking for myself, however, it does appeal to me that counsel for the respondent’s contention that they were bound to file a rejoinder is half-hearted. If they were seriously expecting the appellants to file a rejoinder, why do they accompany their reply with a summons for directions in which they had fully set out the issues they expected the court to determine? How can issues be settled when pleadings have not closed?

Also, the more important point I would want to emphasise is this. If it is not mandatory to file a reply in cases where the only

[p.529] of [1997-1998] 2 GLR 514 purpose is to deny what has been pleaded in a defence, on what basis can it ever be argued that in cases such as the one we have before us, in an action where the pleas of acknowledgement and part payment (or for that matter any other acceptable plea as for example that a purchase was not bona fidebona fide) has been raised, the defendant is under a legal duty to file a rejoinder for the sole purpose of denying the facts pleaded in the reply?

Now, it is obvious, judging from the position the appellants took at the trial, that had they filed a rejoinder all they would have done was to have denied the acknowledgement and the part payment. Again, speaking for myself, I very much doubt that they even would have succeeded in obtaining the necessary leave–—a condition precedent to the filing of a rejoinder. Certainly, in seeking to obtain leave, the party applying would necessarily be expected to disclose the matters they intend to raise or plead in the proposed rejoinder. I very much doubt that they would have succeeded on the mere disclosure that they intend to deny acknowledging the debt or having made a part payment of it. I can on the other hand foresee the application being turned down for the simple reason that if that were all they had set their minds to do, then a rejoinder was altogether unnecessary.

I would therefore state the position of the law on rejoinders, as such: A rejoinder is not necessary except where there is a counter claim and the defendant desires to confess and avoid some allegation in the defence to the counterclaim. A rejoinder then becomes necessary only where: (1) there is a counterclaim and (2) the defendant intends not merely to deny the claim but to meet same in the defence to counterclaim. Indeed, the rationale behind this rule is not at all difficult to find. It is trite learning that a counterclaim is a cross-action and independent of the claim. In it, the original parties in the claim reverse roles and sOo it is in essence a separate action. If any authority would be required for this elementary principle, I would refer to Beddal v Maitland (1881) 3 QB 324.

The counterclaim, being a separate and distinct claim, requires or presupposes that the normal rules of procedure that obtain in all actions apply. Since in counterclaims the defence could only appear in the reply, the counterclaimant who desires to raise any answers to that defence can only do so in a rejoinder. A rejoinder therefore becomes tremendously important, for that is the only place where the defendant counterclaimant can meet and answer

[p.530] of [1997-1998] 2 GLR 514 any defence of confession and avoidance, indeed pleas like those raised in this instant action. Otherwise, he may not only find that he has not pleaded any facts that would defeat the defence of confession and avoidance, but he may also discover to his chagrinn that he has fallen into the trap illustrated in the Kronstein v Korda case (supra). That is to say, he will be bound by his failure to take the proper procedural step. It does follow that in the instant case, where there is no counterclaim, the appellants were not obliged under the rules to file any rejoinder and they were at liberty to raise at the trial those matters that they did in denial of the allegations of acknowledgement and part payment of an otherwise statute-barred debt.

Similarly, I do not find that they were obliged to demand further and better particulars of the pleas; theirs being an absolute denial of any acknowledgement or part payment on any occasion, it was absolutely unnecessary to demand particulars of the dates on which these events suppossedlysupposedly took place. Their failure to do so therefore does not amount to any admission on their part.

I will now examine the critical question of whether or not the respondent was able to prove either (a) an acknowlegementacknowledgement or (b) part payment of the otherwise statute-barred debt. I propose to look at them separately (they were both raised in the reply), notwithstanding the fact that the learned trial judge seems to have merged the two and got mixed up in the process. I think it is clear that the respondent intended to raise them as separate and distinct pleas. That they are separate and distinct is borne out by the paragraph (5) of the reply. It states as follows: “(5) . . . until September 1989 when they acknowledged the debt and made part payment of the same . . .” It is not their contention that they acknowledged the debt by making a part payment, but that they acknowledged and additionally made part payment of same. On the strength of this beneficial construction I have placed on the paragraph (5) of the reply, I think the learned judge’s conclusion that “By making a part payment to the plaintiff, the defendant did acknowledge their indebtedness to the plaintiff”,’ is clearly wrong. Indeed, it is inconsistent with the respondent’s own pleading. It were as if the learned trial judge were proprio moto substituting another case for that which respondent himself has made. Such conduct is clearly deprecated in Dam v Addo [1962] 2 GLR 200, SC.

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I will deal with the issue of acknowledgement first. It is trite learning that the burden of proving this plea as well as the plea of part payment is on the party alleging it. In this instant case the respondent, not the appellants. The relevant provisions governing it are contained in the section 17 of NRCD 54 and I would want to reproduce them:

“17. (1) In the following cases, the right of action shall be deemed to have accrued on and not before the date of acknowledgement—–

(a) Where any right of action has accrued to recover any debt and the person liable therefor has acknowledged the debt . . .

(2) Every acknowledgement shall be in writing and signed by its maker.

(3) An acknowledgement under this section may be made by the agent of the person by whom it is required to be made, and shall be made to the person or the agent of the person whose right or claim is being acknowledged.”

By these provisions, where any right of action to recover any debt has arisen and the debtor acknowledges the debt, the right is deemed to have accrued on and not before the date of acknowledgement. Persons relying on this plea must prove such sufficient acknowledgement as would take their case out of the limitation period. The question which arises then is what constitutes sufficient acknowledgement? The statutory require ments are clear. By section 17 (1), (2) and (3) of NRCD 54 every acknowledgement must be in writing and signed by the person making it or his agent. Whether a document is or is not an acknowledgement depends on the document as a whole. This is the principle enunciated in Jones v Beligrove Properties Ltd [1949] 2 KB 700 at 704 per Goddard CJ. Here the eminent jurist noted that:

“Whether a document is or is not an acknowledgement must depend on what the document states.”

Indeed, the English Limitation Act of 1939 on which this case turned is substantially the same as our Limitation Decree and I did find this case as well as other leading English authorities on the subject very helpful. An acknowledgement therefore need not be in any prescribed form. Yet it is important, very important, that the debtor or his agent should in written form recogmnise or accept or

[p.532] of [1997-1998] 2 GLR 514 acknowledge the existence of the debt, or even admit liability or the rights against himself. Wright v Pepin [1954] 2 All ER 52 at 55 is a forceful authority on the point. The opinion expressed was that: “All that is necessary, as it seems to me, for an acknowledgement which takes the case out of the statute is that the debtor should recognise the existence of the debt, or that the person who might rely on the statute should recognise the rights against himself.”

Indeed, the very wording of the section 17 (l) (a) of NRCD 54 itself shows that the law requires the acknowledgement to be a sufficiently clear admission of the debt under reference; not just any other claim but the debt being sued for. Again, the English case of Kamouh v Associated Electrical Industries International Ltd [1980] QB 199 emphasises the same point. Again, the position of the law is that whenever the question arises as to whether or not a document is a sufficient acknowledgement, the court looks at the circumstances in which it was written.

In this instant case, although the learned trial judge identifies the following as one of the issues for determination: “Whether or not there was an acknowledgement of this statute-barred claim,” I think she fell into serious error when she held that by making the part payment to the plaintiff in 1989, the defendant did acknowledge their indebtedness to the plaintiff of an otherwise statute-barred claim.” In debt claims, there is no such plea as aknowledgementacknowledgement by part payment. In other words, the mere fact that I have tendered a part payment of an existing debt is not an acknowledgement within the meaning of the statute. Another plea may be open to me—–that of part payment which is an entirely different plea altogether but, having regard to the statutory requirements of what constitutes a sufficient or valid acknow ledgement, a bare payment, without more, without any written acceptance of liability or existence of the debt, would not constitute a sufficient acknowledgement at law. In this regard, given the fact that: (1) an acknowlegementacknowledgement must be in writing; and (2) that the evidential burden of proving such an acknowledge ment rests on the plaintiff and not the defendant who raises the defence of statute bar, the first place one is most likely to look foir the necessary evidence is from the respondent’s side. Unfortuna telvy, lookluing at his evidence one does not find the slightest

[p.533] of [1997-1998] 2 GLR 514 support, either express or implied, in proof of any such matters. Otherwise stated, he did not produce any signed written document emanating from his opponents (their agent included) by which they acknowledged each of the debts in the statement of claim. Neither did they tender any such document through the first defendant witness, the sole witness of the appellants.

True, the respondent gave a fairly long oral evidence both in chiefin chief and under cross-examination but he did not make any mention of even an “oral” acknowledgement, if ever the law recognises any such thing. He spoke of and tendered exhibit N, but as he was the maker of the document, it does not qualify in the least as an acknowledgement in law. Also exhibit C, a cheque, cannot by our stretch of imagination fit into the statutory definition of an acknowledgement. In short, a cheque is an order, a mere instruction that a certain sum be paid to another. In my opinion, the respondent failed to establish an acknowledgement of the debt and the learned trial judge erred in concluding otherwise.

But what of the alternate plea of part payment? The relevant provisions governing this plea is contained in the section 19 (1) of NRCD 54. It stipulates:

“19. (1) In the following cases the right of action shall be deemed to have accrued on and not before the date of payment:

(a) where any right of action has accrued to recover any debt, and the person liable thereof makes any payment in respect thereof, so however that 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;”

Counsel’s submission on this question of part payment is simply this, that they had set out all their claims against the appellants in exhibit N. The appellants had responded by making a part payment of these claims as per exhibit C. This payment, he urguedargued, is sufficient payment of the debt sued for, such as would take this case out of the statute.

It will in this regard be absolutely essential to reproduce exhibit N. It reads:

[p.534] of [1997-1998] 2 GLR 514

“In July 1978, I then submitted to the then managing director of your company, Mr Koranteng, a letter dated 22 June 1978 in which I was claiming arrears of overseas allowances following a review of those allowances in 1974.

Inquiries have revealed that the managing director could not dispose of any claim before his transfer to the Ghana Cocoa Marketing Board and that he passed on the letter to his successor, Mr S B Yamoah who in turn referred it to the then secretary/director of administrator for his comments. When contacted, the secretary/director informed me that he passed it on to his deputy, Mr Hayford who was just at the time being transferred to the Cocoa Marketing Board. Following enquiries from the present secretary, it became clear that the letter cannot now be traced. I have therefore been advised to submit a photocopy of the letter in question.

Accordingly, I attach hereto photocopy of the letter together with other attachments to the original letter. I have appealed to the Ghana Cocoa Marketing Board to assist me settle the rent, freight and other charges in respect of few of my personal effects. Since I may have to refund the amount that may be found to be in excess of my entitlement, I have indicated to the board that if all my claims with the board and your company (the board’s being my salary for October 1978 withheld) are met, I shall reimburse the board in full. In view of the foregoing and other outstanding commitments I have to meet in sterling urgently, I should be most obliged if you could look into this claim and authorise payment to me as soon as possible.

The company’s board of director’s decision on the review of the allowance in 1974, my letter of secondment to the London company and the attached papers should assist you in the consideration of my claim.

I look forward hearing favourably from you and thank you in advance for your co-operation in this matter.

Yours faithfully”

(Sgd)

It appears from the record however, that exhibit N was purposely tendered in proof of claim (ii).

Nevertheless, two distinct claims are set up in exhibit N. First, there is the claim for overseas allowances following a review of

[p.535] of [1997-1998] 2 GLR 514 the allowances in 1974. It is however not clear from the exhibit N the period in respect of which the claim is being put up. Because the original letter and “attachments” referred to were not produced in court, it is absolutely impossible to ascertain the period referred to. In the case of the claim with the board, however, there is absolute certainty as to the nature of the claim. It has to do with the October 1978 salary. The position is that the payment must be made on account of the debt (s) or the claim(s) sued for. This I thrnkthink is the plain meaning of the section 19 (1) of NRCD 54. It was in the statement of claim that the respondent outlined the allowances and salary he was claiming from the appellant. These are:

(a) the sum of £4,814 being balance of allowances for the period July 1974 to December 1976.

(b) £724 representing salary for the period July 1974 to April 1977.

(c) General damages for breach of contract.

(d) Special damages of £31.01 being value of goods sold by auction plus solicitor’s fees.

(e) Interest on the said sum from July 1974 to date of judgement.

(f) £243.92 being medical expenditure on the daughter in the year 1988.

The question which arises for determination is whether the payment by exhibit C is a sufficient part payment of all these claims sued for, that is those I have listed. I have very little difficulty in answering in the negative as far as the salary for July 1974 to April 1974, the general damages and the daughter’ s medical bills are concerned. We find that none of these claims are expressed in exhibit N at all. Assuming that that exhibit C is indeed a sufficient part payment of the claims in exhibit N, it does not cover only claims in exhibit N. In exhibit N, apart from the October salary, he does not indicate any other salary. He put in a demand for allowances, not salaries.

With regard to the claim for general damages, I have this to say. The pleas of acknowlegementacknowledgement and part payment cannot be extended to unliquidated damages such as claims for general damages. In other words, the provisions of the statute has noc application to unliquidated claims. Both sections l7 (l) (a) and 19 (l) (a) of NRCD 54 refer to “debts” as the matters which may be acknowledged or in respect of which part paym ent may be made.

[p.536] of [1997-1998] 2 GLR 514

Section 34 (1) of NRCD 54 defines debts as including any “liquidated pecuniary claims.” By necessary implication, unliqui dated pecuniary claims are excluded. I have based this con struction (the exclusion of unliquidated claims) on the well-known aid to construction statutes expressed in the Latin maxim— expressio unius est exclusio alterius. It does follow that in law one cannot raise the plea of acknowledgement or part payment in respect of an unliquidated claim such as a claim for general damages.

The learned trial judge however proceeded to award general damages of ¢200,000. Since this was compensation for breach of contract, it would be safe to assume that the breach allegedly flowed from the non–payment of allowances, etc. It also pre supposes that the judge proceeded on the premise that the pleas of acknowledgement and and/or or part payment was made out and consequently that the right of action accrued on the dates these events occured, ie from exhibit C, 27 September 1989. I think the learned trial judge erred on this issue. In my view the claim for general damages ought to have failed, it: (i) being clearly statute- barred; and (ii) failing outside these cases in respect of which the period of limitation may be postponed. The claim for the arrears of allowances for the period July 1974 to December 1976 is a little more complex. The important question which must be answered is this, is the payment of the October salary part payment of the claims sued for? The argument of counsel is that exhibit C came into being as a result of exhibit N. His contention is that by paying per exhibit C, it amounts to part payment of all the claims listed in exhibit N and consequently it amounts to a part payment of the debt sued for. In my view, however, this contention is not supported by the evidence. The plea of part payment, like its related plea of acknowledgement, must be established by the party alleging it. The respondent, however, failed to prove the necessary link or nexus between exhibit N and exhibit C.

A look at the respondent’s evidence-in-chief shows that he made no reference to exhibit N at all and so was unable to demonstrate that exhibit C was issued in part payment of all the claims raised in exhibit N, and some of which are sued for. When we examine the evidence elicited from him under crossexamination also, we again find he is unable to prove the necessary nexus between the two documents. On the contrary, the answers he gave to the question put to him tend to support the

[p.537] of [1997-1998] 2 GLR 514 contention of the appellant that exhibit C was payment of a separate and distinct claim of the respondent–—the claim fort arrears of salary for the period October 1978 and that this was nolt part payment for other claims or debts allegedly owed the appellant, particularly the claims under consideration. I will now reproduce some of the salient questions which were asked him and the answers he gave:

“Q Up to September 1978 you had been paid your salaries and allowances?

A Yes.

Q So that exhibit C does not have anything to do with the arrears of July 1974 to December 1976?

A That is not true.

Q Exhibit C does not have anything to do with July 1974 to December 1976?

A Ideny.”

One would have thought that for a party who has failed to establish the link between the exhibit C and N at the earlier opportunity in his evidence-in-chief, as in deed the was bound to do, this line of questioning gave him a glorious opportunity to fill in the gaps and explain the connection between the two documents, namely that it was upon exhibit N that exhibit C was issued. We must bear in mind that the burden of persuasion which falls on him by virtue of section 11 (1) of the Evidence Decree, 1975 (NRCD 323) imposes a duty on him to lead such sufficient evidence as would prevent a ruling against him on the issue of part payment.

Surprisingly, however , he did not even lead the barest minimum of evidence, that degree of evidence a number of plaintiffs or claimants who have no corroborative evidence lead, namely that of mounting the witness box and repeating their averments on oath, conduct which led to the formulation of the famous principle in Majolagbe v Larbi [1959] 1 GLR 150 at 152.

Again, I have come across another piece of evidence elicited from him under cross-examination which weakens rather than strengthens his case. I will again reproduce it:

“Q I finally put it to you that you are not entitled to the payment from the defendants for any arrears of salary, allowances and claim on the hospital expenditure.

[p.538] of [1997-1998] 2 GLR 514

A I am entitled to all these.

Q And that even if you are entitled, which the defendant denies, you had waited for too long to come here.

A I reacted immediately when I detected the error but the defendant did not show any response.”

(The emphasis is mine.) The answer to the last question is to my mind most revealing. Certainly, if the debtor made a part payment per exhibit C should that not be the most pertinent and welcome response, that which will form the bedrock of his case, indeed his lifeline; for it is that which will take his case out of the statute. But perhaps this answer that the appellants did not show any response should not come as a surprise. It is confirmation of the evidence he gave on 11 May 1992 on the very question of the appellants’ reaction when he repeatedly wrote for a refund of these allowances. He testified: “The first letter to managing director, Koranteng but was transferred. The letter referred to Mr Yamoah; when no response was forthcoming, I wrote to Yamoah. I was asked to see Martin Dwamena, then to another and thence to K N Owusu who authorised. Then I went to the present chiefl executive who referred to his deputy. Still no response. As a result I had to take legal action.”

As against the respondent who led no evidence to show thait exhibit C was indeed a part payment of these claims (the subjecit matter of this action), we have the evidence of the appellants’ witness, the first defendant witness. In describing the circum stances iunder which exhibit C came to be issued, she deposed a follows:

“The plaintiff is not entitled to the claims indorsed on the wrint of summons. Exhibit C has nothing to do with plaintiff’s suit. Because it is payment of arrears of salary which is a period outside his claims. Exhibit C refers to 6 October to 27 October 1978. The plaintiff sued for July 1974. The plaintiff had previously petitioned for this sum of salary. At a certain period management agreed to pay the arrears on exhibit C but the decision was not effected. So when he petitioned again in 1989, management decided to give him the benefit of the doubt and gave him salary because he actually returned to Ghana on 27 October instead of 6 October.”

[p.539] of [1997-1998] 2 GLR 514

From her unchallenged testimony, we find that the payment came to be effected per exhibit C as a result of the second petition the respondent submitted specifically with regard to his October salary. This petition was made in 1989. The evidence shows that exhibit C then was not as a result of exhibit N which was written in 1981. Even more importantly, it is related to arrears of salary per the period 6 to 27 October 1978. Again, we can clearly see from answers witness gave under cross–-examination that this payment which was full payment related exclusively to the October arrears of salary and was not on account of any other debts. I will like to refer to part one of these questions:

“Q “In 1989 when you decided to pay this money as a result of the benefit of the doubt, what were the factors you took into consideration?

A This was salary for both October to 30 October 1977 when he was supposed to return to Accra and he claimed he had a verbal approval to stay.”

Again, we find no suggestion to her throughout the entire cros- s-examination that this was in part payment of other outstanding debts.

In actual fact, the document which was attached to exhibit C puts the matter of what payment was effected per exhibit C beyond every shadow of doubt. The inference is that exhibit C was payment of the debt claim in this letter, namely the October salary arrears. Indeed this letter, written on 15 November, is the first petition the respondent sent on the matter. Because of its importance, I will reproduce it in full: “I refer to our discussion on 30 October 1978 and should be much obliged if you could authorise payment of the balance of my October 1978 salary as detailed below etc.” At the risk of sounding repetitive, may I emphasise once again that the law clearly is that the payment must be “in respect of’” the debt on which the plaintiff sues. I think I have said enough to demonstrate that the respondent has not established that exhibit C was part payment in respect of the present claims. Consequently, his claims ought to have been dismissed on the ground it was statute-barred.

Certainly also, the claim for special damages being value of goods etc, must also for the same reasons fail. The goods were auctioned as far back as 1981. The claim is clearly time- barred.

[p.540] of [1997-1998] 2 GLR 514

Furthermore, he failed to take this particular claim out of the statute.

Again, interest was awarded on the same sums as claimed, that is from July 1971 to date of judgement. On the authority of Elder v Northcott [1930] 2 Ch 422, no separate cause of action accrues in respect of interest on a debt. They are held as consitutingconstituting one demand. Thus, when the principal is declared time barred, the arrears of interest also suffers the same fate. Conversely, when the principal is taken out of the statute, so is the interest. It follows the claim (iv) ought also to have failed on the grounds that it is time- barred.

Having found all the claims statute-barred, I do not think any useful purpose will be served by going into the merits of the case. I shall allow the appeal, set aside the decision of the court below and dismiss the entire claim.

Brobbey JA. The respondent was employed as secretary/accountant in the London office of the appellant company’ s subsidiary from 1974 to 1978. He was retired from the appellant company while holding the post of deputy director. He averred that some time after his retirement, he discovered that he was paid salaries and allowances less than what he should have got by various changes in regulations governing salaries and allowances for Ghanaian employees living abroad. All efforts he made to get the appellants to pay him what was due to him proved unsuccessful.

As a result of the failure or refusal of the appellants to pay, the respondent alleged that he could not pay for the shipping of his goods he left with an agent to be sent to him from London. He stated that the appellant refused to pay medical bills raised for the treatment of his daughter. He consequently issued the writ of summons in the circuit court, claiming:

“(i) General damages for breach of contract.

(ii) Special damages of £310.10 being the value of goods sold by auction plus solicitor’s fees.

(iii) Recovery of arrears of salary and allowances due and owing by defendant to plaintiff as specified in the statement of claim.

(iv) Interest on the said sum from July 1975 to date of judgment.”

[p.541] of [1997-1998] 2 GLR 514

Judgment was given in favour of the respondent at the trial circuit court. The appellant appealed to this court. The original grounds of appeal were that:

“(a) The judgernment is against the weight of the evidence.

(b) The learned trial judge erred in law in holding that the plaintiff’s action was not statute-barred.”

Two additional grounds were later filed. These were that:

“(a) The judge erred in law and failed in upholding the plaintiff’s claim that defendants had perpertratedperpetrated fraud on him.

(b) The judgement is unsatisfactory in that vital issues of fact were left unresolved.”

In my view, there is one fundamental issue which overrides all the other issues in the case. That issue is whether or not the respon dent’s action was statute-barred.

The respondent’s claim was based on moneys which he said were due to him from 1974 to 1977. In the writ of summons, relief (iii) stated that the claims were specified in the statement of claim. Paragraphs (5),(6),(7),(8) and (9) of the statement of claim expressly stated that the claims of the respondent cover the period from 1974, 1975, 1976 up to 1977.

The writ was issued in 1991. Even if the last year of 1977 were to be the year for the last claim, there was an interval of fourteen years between the claim and the issue of the writ of summons. The action is based on contract. In the terms of the Limitations Decree, 1972 (NRCD 54), s 4 (1 ) (b), such actions on contract are barred unless the writ is issued within six years.

Since this action was instituted after six years, it would appear to have been statute-barred. Indeed, the consistent defence which the appeallantsappellants put up at the trial court was that all the claims of the respondent are statute-barred. This was repeated in the pleadings, especially in paragraphs (10), (14) and (19). The same defence was maintained in the evidence of the first defendant witness, the only person who testified on behalf of the appellant.

The answer of the respondent was that part of the indebtedness had been paid in part in 1989. If there was part payment, that would have amounted to acknowledgement of the debt and the operative date would have been from 1989, the authority for this being section 19 (1) of NRCD 54. What then was the payment and

[p.542] of [1997-1998] 2 GLR 514 its relation with the remaining debts? The respondent pegs the issue of acknowledgement on exhibit C, that was the payment of money which was described as arrears of salary for October 1978. In actual fact, it covered both salaries and allowances. The appellant had refused to pay the October 1978 salary and allowances because the respondent was supposed to have returned to Ghana on 6 October 1978, but he claimed that he actually returned on 27 October 1978. The respondent insisted that he had obtained permission to stay up to 27 October 1978. According to the first defendant witness, the respondent was given the “benefit of the doubt” and paid the October salary. From the tenor of his evidence, it would appear that that benefit of doubt relate to whether or not he was given permission to stay in London up to the 27 October 1978.

What seems to provide the nexus between the payment of the October 1978 salary and the debt of 1974, 1975, 1976 and 1977 was this: All the claims for the arrears of salary and allowances in those four years were based on the fact that there were revisions of those salaries and allowances. The revised rates were described as new allowances. Evidence of the new and old allowances will be found in exhibits F and Fl. In exhibit F, the new allowances were specified alongside the old allowances. In his evidence-in-chief, the respondent contended that he was paid on the basis of the figures of the old allowances in exhibit F at £5,130 but he was entitled to the new allowances of £7,696.88.

The appellants had maintained throughout the record that the respondent was not entitled to the new allowances but was rather entitled to the old allowances on which he was paid and therefore it owed him nothing. One would have expected that, consistent with its stand, the appellant company would have paid the October 1978 salary and allowances on the basis of the old allowances. Instead, the attachment to exhibit C in which the October payment was calculated showed that the appellants paid the respondent on the basis of the new allowances of £7,696.88 per annum or £641.74 per month. The question which arises to be resolved is this:

Should the payment of the October 1978 allowances on the basis of the new allowances be considered as part payment of the indebtedness which are all based on the new allowances

[p.543] of [1997-1998] 2 GLR 514 so as to amount to acknowledgement of the claims of 1974, 1975, 1976 and 1977?

The acknowledgement could have been made expressly or by necessary implication or necessary inference.

The circumstances surrounding the payment in the instant case would be considered in deciding whether or not there was an acknowledgement. If acknowledgement is proved, it would permit the application of section 19 (1) of NRCD 54 which would prove a perfect answer to the defence that the debt was statute -– barred. In the instant case, there was no express acknowledgement by the appellants. What has to be decided is whether or not there was acknowledgement by implication or necessary inference.

The well-established legal position is that the onus is on the respondent to have proved that the part payment of 1978 amounted to acknowledgement. This aspect of the law does not seem to have been well developed in this country and therefore it appears that assistance may be obtained from decisions in similar situation in other commonwealth countries, especially the United Kingdom on which our jurisprudence is based, and more especially the fact that the Ghana Limitations Decree is similar in its provisions to the English Limitations Act. There are several cases to the effect that where the part payment is accompanied by words, actions, or circumstances which negative admission of other debts, the payment will not amount to acknowledgement. For instanaceinstance, in Tanner v Smart (1877) 6 B&C 603 at 609, the principle was stated thus:

“Upon a general acknowledgement, where nothing is said to prevent it, a general promise to pay may and ought to be implied, but when the parrty guards his acknowledgement, and accompanies it with an express declaration to prevent any such implication why should not the rule expressum facitl cessare taciturnm apply?”

This case was applied by the Privy Council in Spencer v Hemmerde [1922] 2 AC 507 where the paragraph was restated at 513 as follows:

“Since the case of Tanner v Smart the law as there laid down has been uniformly accepted, and it must be held to be settled law: (1) that a written promise to pay a debt given within six years before action is sufficient to take the case out

[p.544] of [1997-1998] 2 GLR 514 of the operation of the statute . . . (2) that such a promise is implied in simple acknowledgement of the debt; but (3) that where an acknowledgement is coupled with other expressions, such as a promise to pay at a future time or on a condition or an absolute refusal to pay, it is for the Court to say whether those other expressions are sufficient to qualify or negative the implied promise to pay.”

Lastly the correct principle that may be applied to the facts of the instant case will be found in what has been stated in the English and Empire Digest, (1978 ed), Vol 32 at para 533, page 4074 as follows: “If he (the debtor) acknowledges a debt and says nothing more the court implies a promise to pay out of the particular fund, or if he only points out where payment is to be had, that is not an acknowledgement whereby he charges himself and therefore it does not take the case out of the statute, except as regards this particular fund referred to (or the amounts paid).”

That citation was apparently deduced from Courtnay v Williams (1844) 13 LJU Ch 461.

A careful examination of the evidence on the record in the instant case reveals that at all material times, the appellant denied liability for the debts of 1974, 1975, 1976 and 1977. Some of the denials will be found in exhibit D which was written around the time when the October 1978 payment was made in 1989. In fact, apart from the payment of 1989, there is no single document which can be described as giving any indication by the appellant company that it had changed or softened its position on the denial of liability for those debts.

An implied acknowledgement cannot properly be made from the records where all the evidence points to one and only one fact that apart from the payment in exhibit C, all the claims of the plaintiff have been denied. Where a situation has been stated expressly, no implication can be made: This is a classic case of “expressumrn facit cessare tacitumrn.” There was no evidence that the appellant accepted liability for the debts of the remaining four years. There is no evidence of a promise to pay those debts. In the circumstances of this case, all the authorities pointed to the only conclusion that the part payment of the October 1978 salary and

[p.546] of [1997-1998] 2 GLR 514 allowances did not amount to acknowledgement of the allowances/claims from 1974, 1975, 1976 and 1977.

I will not belabour the failure of the claim for £243.92, being the medical bill for the respondent’s daughter because that claim was not mentioned in exhibit N or exhibit C, or any of the exhibits on which the respondent relied to make his claims. It appears that the first time it was raised was in 1990 in exhibit D or in 1991 where the writ of summons was issued. That made the claim clearly statute-barred.

I adopt all the reasons stated by the president of the panel and I agree with her views on the issue related to reply and rejoinder as well as the issue of fraud and the claims for the auctioneer’s fees which I consider to be particularly remote.

The respondent surely had the duty to take steps to mitigate his losses and if he failed to do so, he could not blame the appellant for his losses.

All the points made by Mr Osei-Nyame on interest are valid. But in view of the fact that the appeal from. the substantive claims have succeeded, the issue of interest does not arise to be considered.

In my view, all the claims of the respondent were statute-barred and there was no legally admissible evidence of acknowledgement of the debt by the payment of 1989.

The appeal therefore succeeds and I would allow it, and set aside the judgement and all the awards or orders of the trial circuit court judge.

Baddoo JA. In July 1991, the plaintiff (hereinafter called the respondent) issued a writ against his former employers, the Cocoa Marketing Co Ltd, hereinafter called the appellant the following reliefs:

“(1) General damages for breach of contract.

(2) Special damages of £3,101 being vyalue of goods sold by auction, plus solicitor’s fees.

(3) Recovery of arrears of salary and allowances due and owing to the plaintiff by the defendant, as specified in the statement of claim.

(4) Interest on the said sum from July 1975 to the date of judgement.”

[p.546] of [1997-1998] 2 GLR 514

On 23 February 1978, the circuit court, presided over by Her Honour Felicity Amoah (as she then was) gave judgement for the respondent for the following: (a) Recovery of £4,814 and £724 being arrears of salary and allowances due and owing to the plaintiff by the defendant; (b) special damages of £3,101; (c) interest on the said sum from July 1975 to the date of judgement,; and (d) general damages of ¢200,000 and cost of ¢100,000.

The appellant has appealed against this judgement to this court on the grounds that:

“(a) The judgement is against the weight of evidence.

(b) That the learned trial judge erred in law in holding that the plaintiff’s action was not statute-barred.”

At the hearing of this appeal, counsel for the appellant was granted leave to argue two additional grounds of appeal that:

“(a) The judge erred in law and fact in upholding the plaintiff’s claim that the defendant had perpetrated fraud on him.

(b) The judgement is unsatisfactory in that vital issues of fact were left unresolved.”

The case for the respondent was that until 1 November 1978, he was employed by the appellant company as the company secretary/accountant at its subsidiary company in London. On or about 26 November 1977, he was forcibly retired from the company. During the period he worked for the company in London, the respondent claims that he earned salaries and allowances which were paid, but leaving a balance of £4,814 on the allowance and £724 on the salaries. It is the claim of the respondent that these salaries and allowances were reviewed in 1975 with retrospective effect from July 1974, as a result of which he became entitled to receive salaries and allowances appropriate to his grade as Al Officer. But the appellant company paid the respondent overseas allowances as A2 officer instead of Al officer. As a result of this oversight, the respondent was paid a total allowance of £14,420.20 for the period July 1974 to December 1976, leaving a balance of £4,814.

The respondent also claimed that he was short-paid his salary by an amount of £724 following the conversion of the old salary scale to the new salary scale for the period July 1974 and Aprinl 1977. The respondent further claimed that in June 1977, he

[p.547] of [1997-1998] 2 GLR 514 incurred a medical expenditure of £243.92 on his daughter, Sally Ansah. The appellant company without justifiable excuse, have refused to pay the arrears of salary and allowances, as well as the medical expenditure of his daughter.

The defence of the appellant company was that the company did not owe the respondent any arrears of salary or allowances. And even if it did, the claim was statute-barred. With regard to the medical expenditure, the appellant claimed that the medical treatment was outside the National Health Scheme, which the respondent was not entitled. And even if he was entitled, the claim was statute-barred.

In reply to the statement of defence filed by the appellant, the respondent averred in paragraphs (4) and (5) of his reply as follows:

“(a) The plaintiff avers further that the defendants disabled him from claiming his entitlements much earlier by concealing material facts from him in circumstances which amounted to fraud; in particular, the conduct of the then head of the London office, Mr Yamoah who did not make available to the plaintiff the details of his entitlements until the plaintiff by his own diligence and industry was able to discover them long after the departure of Mr Yamoah from the London Office.

(b) The plaintiff avers that he thereafter took immediate steps to claim his rights but was again frustrated by the defendants until September 1989 when they acknowledged the debt and made part payment of the same, to wit the salary and allowances for October 1978 with the excuse that the entire balance of £4,814.28 for overseas allowances from July 1974 to December 1976 were not covered in the 1989/90 budget and that a special budget, would have to be approved by the chief executive.”

The appellant in response to the reply of the respondent requested for further and better particulars of the fraud pleaded in paragraph (4) of the reply. These were supplied by the respondent as follows:

“(1) The defendants deliberately and with intent to cheat the plaintiff, paid his wrong salaries during the adminis-

[p.548] of [1997-1998] 2 GLR 514 tration of Mr B S Yamoah at the London Office between 1975 and April 1977.

(2) These payments were facilitated by the defendants concealing from the plaintiff the relevant revised stafif rules and regulations governing the company’s overseas service which would have entitled him to the higher appropriate remuneration.

(3) Contrary to the practice before Mr Yamoah’s second ment, the plaintiff was not served with copies of sa1lary’ advice to the Ghana Commercial Bank, London whichl was responsible for paying the salaries personally or his capacity as the secretary/accountant of the Londonr company from March 1975 to April 1977.

(4) In consequence of these acts of concealment, the plaintifif was unaware of the full range or scale of his new salar)y and the basis of the various payments until afteri persistent inquiries and demands on the Ghana Higlh Commission, London and the Accra office of the defendant/company.”

Was it necessary for the appellant to file a rejoinder to paragraph (5) of the respondent’s reply, in which he averred thait the appellant acknowledged the debt owed to the respondent by mrriaking part payment on exhibit C with the excuse that the entirec balance of £4,814.28 for the overseas allowance from July 1974 to December 1976 were not covered in the 1989-90 budget and thait a special budget would have to be approved by the chiefl executive? Odgers Principles of Pleading and Practice (22nd ed) at page 214 has this to say on rejoinder:

“The defendant’s answer, if any, to a reply, is called a Rejoinder; but it is now very seldom pleaded, except where there has been a counterclaim and the defendant desires to confess and avoid some allegation in the defence to the counterclaim. The rejoinder is then, in effect, a reply to the defence to the counterclaim.”

Thus it would appear that if there was no counterclaim, it would not be necessary to issue a rejoinder. Though the appellant did confess and avoid by the evidence of one Sally Abon-Brantuo, it was not necessary to issue a formal rejoinder, since there was no counterclaim. The failure to issue a rejoinder would therefore not

[p.549] of [1997-1998] 2 GLR 514 constitute an admission of the averment contained in paragraph (E) of the reply.

The issues that were set down for determination were:

“(a) Whether or not the defendants owe the plaintiff the sum claimed?

(b) Whether or not the claims are statutebarredstatute barred?

(c) Whether or not the defendants acted in fraud of the plaintiff by concealing material facts from him.”

It was submitted on behalf of the appellant by Mrs Asafo-Adjei that since the respondent was himself the secretary of the company and the officer in charge of the London Office, he had access to all the papers and documents of .the company and therefore no information could be hidden from him. It is my considered opinion that the submission does not answer the charge of fraud by concealment, because being in charge of the London Office does not give the respondent access to all documents and papers of the company.

On the question of the action being statute-barred, counsel submitted that since the cause of action arose in 1974 while the action was instituted in 1991, there could be no doubt that the action was statute-barred, in accordance with section 4 of the Limitation Decree, 1972 (NRCD 54). Counsel submitted that the payment on exhibit C did not in any way constitute acknow ledgement of any debt.

On the issue of the special damages, it was submitted for the appellant that there was no connection between the goods that were auctioned and the appellant, and therefore the appellant should not be held responsible for the goods being auctioned, particularly when the respondent had retired from the defendant company in 1979. She urged the court to allow the appeal.

For the respondent, Mr Osei Nyame argued that the claim was not statute-barred because in September 1989, the appellant did acknowledge the debt owed to the respondent by making part payment on exhibit C. Counsel submitted further that the salaries and allowances payable to the respondent were reviewed in 1975 with retrospective effect from July 1974. As a result, the respondent became entitled to receive salaries and allowances appropriate to his grade as Al officer, which was £7,696.88 per annum. Counsel also submitted that the medical bill of £243. 92 on

[p.550] of [1997-1998] 2 GLR 514 the daughter of the respondent was never paid by the appellant, despite several demands.

I find from the evidence that until 1 November 1978, the respondent was employed as secretary/accountant with a grade Al status by the appellant company. The evidence also showed that the respondent was on overseas allowance of £5,130. These allowances were reviewed on the strength of exhibit F and L which raised the allowance from £5,130 to £7,696.88 as claimed by the respondent in his writ. Now, having paid respondent in 1989 what he is claiming per his writ, the appellant cannot now say that the respondent was not entitled to that allowance.

The trial judge was therefore right in holding that the respondent was entitled to the revised overseas allowance as shown in exhibits F and L. Exhibit K was the white paper on Issifu Ali’s report. The introduction reads as follows:

“In August 1973, the Government appointed a committee under the chairmanship of Mr Issifu Aliu to carry out, inter alia, a review of salaries and wages and other conditions ofl service of all grades of personnel in the Public Service, the Prisons Service, the Fire Service and the Public Boards and Corporations.

The committee submitted its report on 2 July 1974. Government has carefully studied the report and taken the following decisions.”

It is clear from the introduction above that all government depart ments and corporations were affected by the report and are bound to comply with its provisions. By that report the respondent’ s salary was raised from £5,400–E£6,800 to £7,080–£8,375. As a matter of fact, the revised salary of £8,375 was the figure used to calculate the salary of the respondent on exhibit C. I find thereforec that appellants were bound by the white paper on Issifu Auli’s report on salaries and wages.

The most important issue for determination in this case is whether or not the claims are statute-barred. The cause of action arose in 1974 and the writ was issued in 1991. On the face of the record the claims are statute-barred, since the writ should have been issued within six years of the cause of action.

The respondent was in the employment of appellant until he was forcibly retired in 1979, after he had been recalled from

[p.551] of [1997-1998] 2 GLR 514

London. On 7 March 1981, the respondent wrote to the appellant in exhibit N as follows: “175 RLINGWAY ESTATE 7 MARCH 1981 ACCRA Dear Sir, In July 1978, I submitted to the then managing director of your company Mr W K Koranteng, a letter dated 22 June 1978 in which I was claiming arrears of overseas allowances following a review of those allowances by the company in 1974.

Inquiries have revealed that the managing director could not dispose of any claim before his transfer to the Ghana Cocoa Marketing Board, and that he passed on the letter to his successor, Mr S B Yamoah who in turn referred it to the secretary/director of administration for processing and comments. When contacted, the secretary/director informed me that he passed it on to his deputy, Mr Hayford who was just at that time being transferred to the Ghana Cocoa Marketing Board. Following the inquiries from the present secretary of the company, it became clear that the letter cannot be traced. I have therefore been advised to submit a photocopy of the letter in question.

Accordingly, I attach hereto photocopy of the letter together with other attachments to the original letter. I have appealed to the Ghana Cocoa Marketing Board to assist me settle the rent, freight and other charges, in respect of few of my personal effects still being held by Elloway & Company. Since I may have to refund the amount that may be found to be in excess of any entitlements, I have indicated to the board and your company (the board’s being my salary for October 1978 withheld) are met, I shall reimburse the board in sterling. In view of the foregoing and other outstanding commitments I have to meet in sterling urgently, 1I should be much obliged if you could look into this claim and authorise payment to me as soon as possible.

The company’s board of directors’ decision on the review of all allowances in 1974, my letter of secondment to the London company and the attached papers should assist you in the consideration of my claim.

[p.552] of [1997-1998] 2 GLR 514

I look forward to hearing favourably from you and thank you in advance for your co-operation in this matter.

Yours faithfully (Sgd)

C K ANSAH

I have reproduced this letter in extenso, so as to show that the respondent was claiming arrears of allowances, not from 1974, but also from October 1978.

In 1989, the appellant made some payments to the respondent on exhibit C. The appellant’s claim that the payment made on exhibit C was the arrears of salary for the month of October 1978 and had nothing to do with the claims of the respondent per his writ. But it is my considered opinion that since the claim was part of the claims submitted by the respondent to the appellants in his letter, exhibit N, dated March 1981, payment on exhibit C could constitute payment under NRCD 54. Section 19 of NRCD 54 states as follows:

“19. (1) In the following cases the right of action shall be deemed to have accrued on and not before, the date of payment:

(a) Where any right of action has accrued to recover any debt, and the person liable therefor makes any payment in respect thereof, so however that 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.”

My understanding of this section is that where there is a right of action to recover a debt, there will be fresh accrual if the person liable makes any payment, in which case the period of limitation will start from the date of payment, not before.

In this case, the cause of action arose in 1974. The respondent alleged that he wrote series of letters to appellants in respect of these claims. The last of such letters is exhibit N in connection with the same allowances from 1974 to 1978. It was not until 1989 that the appellant responded by paying exhibit C as arrears of salary for October 1978. It is my considered opinion that since the salary for October 1978 was part of the claims submitted to the appellant in exhibit N by the respondent, payment on exhibit C being part of the claims, could constitute fresh accrual within [p.553] of [1997-1998] 2 GLR 514 section 19 of NRCD 54. The period of limitation will therefore be calculated from September 1989, the date of payment. Since the writ was issued in 1991, the action will not be statute-barred. I so hold.

The trial judge did not make any findings on the claim for the refund of the medical expenses of the respondents’srespondent’s daughter, Sally Ansah. I believe it was an oversight. Since an appeal is by way of rehearing, I think this court is competent to make a finding on the matter. There was the evidence that the respondent incurred medical expenditure of £243.92 in respect of his daughter, Sally Ansah. The expenses were incurred in 1977, but the respondent never submitted the bill to the appellant for payment until he issued the writ in 1991. The respondent also did not include this expenses in the claims he submitted to the appellant in April 1981 per exhibit N.

Since the medical expenditure was not part of the claims submitted to the appellant in exhibit N, in 1981, it could not constitute part of the claims which the appellant company was deemed to have acknowledged, when it paid exhibit C in 1989. The claim for the medical expenditure is therefore clearly statute- barred in 1971. I so hold.

On the question of special damages, the issue is whether the damages being claimed by the respondent are too remote and whether the respondent ought to have taken steps to mitigate his loses. The classic case of Hadley v Baxendale (1854) 9 Exch 341 laid down the principle for determining the remoteness of damages. Alderson B delivering the judgment of the court in the case said:

“Where two parties have made a contract, which one of them have broken, the damages which the other party ought to receive in respect of such a breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation on both parties at the time they made the contract, as the probable result of the breach of it.”

The respondent claims that if his arrears of salary had been paid to him earlier, he would have been able to pay the storage charges and thereby prevent the auction sales of his npersonal effects. It is

[p.554] of [1997-1998] 2 GLR 514 his contention that the damages arose directly from the refusal of the applicant to pay his arrears of salary.

Can the impecuniosityimpecuniosities of the respondent be traced to the acts of the appellant? In Mensah v Andoh [1980] GLR 774, the court in relying on the case of Liesboch Dredger v S S Eddison [1933] AC 449, said that because the impecuniosity was not traceable to the acts of the defendant, the damages arising therefore were not within the legal purview of the consequences of those acts. The corollary therefore is that if the impecuniosity can be traced to the act of the appellant then the damage will be within the legal purview of the consequences of those acts.

However, the respondent was under obligation to mitigate his loss by looking for other sources of funding to pay for the storage charges. There is no evidence that he tried to mitigate his loses. The claim will therefore not be allowed.

With regard to the interest that should be paid, the Supreme Court decision in Royal Dutch Airline (KLM) v Farmex [1989-90] 2 GLR 623, SC is that interest should be calculated up to the date of judgment or payment. In this case, the interest will be calculated up to the date of payment.

The appeal is dismissed with regard to the judgementi concerning the overseas allowances and arrears of salaries. It is allowed with regard to the judgment concerning the special damages. The claim for medical expenses is also dismissed for the reasons above.

Appeal allowed.

SA