E. K. SOSU, A. K. QUAYE & 1553 OTHERS v. GHANA PORTS AND HARBOURS AUTHORITY

AYEBI J.A.

I have read in advance the opinion just delivered by my learned brother Gyaesayor J.A. I am entirely in agreement with him that this interlocutory appeal should fail because the whole action is statute-barred not only by virtue of section 92(1) of Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160) but also by virtue of section 4(1)(b) of the Limitation Act, 1972 (NRCD 54).

In the plaintiffs/appellants’ endorsement on the writ, their claim is for “severance pay due plaintiffs in 1989 arising from plaintiffs’ employment with defendant which was terminated in 1989”. It is clear from this endorsement that plaintiffs/appellants’ cause of action against their employer, the defendant/respondent herein arose in 1989. That being so, this action launched in 2000 is completely out of time and moribund in limine.

It is therefore not of place for the defendant/respondent to set down for legal argument the issue as to “whether the plaintiffs’ action herein is statute-barred by virtue of section 92(1) of Ghana Ports and Harbours Authority Law, 1986 (PNDCL 160)”. In fact this is the sole statute pleaded and set down for legal argument.

But in her submission counsel for the defendant/respondent invoked section 4 of the Limitation Act, 1972 (NRCD 54) to further show that the action being founded on a breach of a contractual right is as at 2000 when it was launched statute-barred. The application of s.4 of NRCD 54 is my concern in this short comment.

It is provided in section 4(1)(b) of NRCD 54 that:

“A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of

(b) an action founded on simple contract”

Under the rules of court, Order 11 r.8(1) of C.I. 47, any limitation provision amongst others which a defendant alleges makes a claim not maintainable or which if not pleaded specifically, might take the opposite party by surprise, must be pleaded specifically. But this limitation provision in NRCD 54 was not pleaded by defendant/respondent.

Counsel for plaintiffs/appellants in his reply to the legal submissions of the defendant/respondent limited himself only to s.92(1) of PNDC Law 160. When the court reminded him that the defendant/respondent’s counsel’s submission was extended to s.4 of the Limitation Act, appellants’ counsel responded that, whether or not the action is statute-barred under s.4 of NRCD 54 has not also been set down for legal argument. Rather counsel for appe