INFITCO COMPANY LIMITED v. FRIGO LIMITED
2019
SUPREME COURT
GHANA
CORAM
- YEBOAH, JSC (PRESIDING)
- GBADEGBE, JSC
- APPAU, JSC
- MARFUL-SAU, JSC
- AMEGATCHER, JSC
Areas of Law
- Civil Procedure
2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
On a further appeal concerning a motion to dismiss, the Supreme Court of Ghana, per Gbadegbe, JSC, examined whether the defendants application properly fell within Order 33 rule 5 of the High Court (Civil Procedure) Rules, CI 47. The underlying dispute involved a cold-store construction contract for which the plaintiff paid US$400,000 and sought a US$250,000 refund after alleging breach. The defendant pleaded limitation, but the plaintiffs reply denied it, creating disputed facts. The Court clarified that limitation, when disputed, must be tried as a preliminary issue ordered by the court under Order 33 rules 3 5; a party cannot file a motion that predetermines dismissal and relies on affidavit evidence to resolve contested facts. The Supreme Court held the motion incompetent, declined to consider the grounds of appeal, dismissed the appeal, affirmed the Court of Appeal for different reasons, and remitted the action to the High Court for trial.
JUDGMENT
GBADEGBE, JSC: -
This is an appeal from the decision of the Court of Appeal. By its decision, the Court of Appeal upheld the trial High Court’s order of dismissal of an application to dismiss the action herein on a point of law. The circumstances in which the appeal arises may be stated shortly as follows. For convenience, in these proceedings, the parties shall bear the same designation that they bore in the trial court and accordingly the respondent herein shall be described simply as the plaintiff and the appellant herein as the defendant.
The plaintiff claiming that the defendant had breached its contractual undertaking to construct a cold store for him took out the writ of summons herein claiming a refund of the sum of US $250,000.00 which it considered as due out of an amount of US$ 400,000.00 which he had paid to the defendant towards the execution of the contract. In her defence to the action, the defendant averred among others that the action was statute barred. As the appeal herein turns on a process founded on the said plea, it is useful to refer to it in extenso in paragraph 11 of the statement of defence filed by the defendant to the action. By the said pleading, it was averred thus:
“The Defendant says that the Plaintiff’s claim is statute barred.”
Subsequently, the plaintiff filed a reply in which he denied the said plea; the said process was filed in the registry of the trial court on June 12, 2015. Certain other steps were pursued in the matter which would be referred to in the course of this delivery in so far as they have a bearing on the issues to be resolved in the instant appeal. Since the proceedings herein is concerned with the defendant’s aforesaid application, we turn our attention at once to the said process that was filed on November 17, 2015.
The said application was heard by the trial court and dismissed; the defendant claiming to have been aggrieved with the said ruling appealed to the Court of Appeal. The defendant’s appeal suffered a dismissal and we are now faced in these proceedings with a further appeal to us.
As the parties to the proceedings herein having filed their respective statements of case and the matter adjourned for judgment, this delivery is directed towards the resolution of the questions arising for decision in the matter. Having read the record of proceedings and considered the written briefs submitted to us by the parties, the critical question that in our view comes up for consideration i