PARIN NAA FUSEINI ABUBAKAR v. NHADAT ISLAMIC SCHOOL & ORS
2013
COURT OF APPEAL
GHANA
CORAM
- ADJEI, J.A
- LOVELACE-JOHNSON, J.A.
- ACKAH-YENSU, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The defendants appealed the trial judge's decision, challenging the failure to apply the statute of limitations and claiming themselves as bona fide purchasers. The court held that the limitation defense must be specifically pleaded and cannot be raised sua motu, except in cases of fraud. It was determined that the defendants were not bona fide purchasers as their grantor lacked title. Inconsistencies in the plaintiffs witness testimonies were deemed insufficient to affect the judgment. The appeal was dismissed in its entirety.
DENNIS ADJEI, J.A.:
I have the privilege of reading beforehand the judgment of my respected sister Ackah-Yensu, J.A and I agree with her. However, I would like to express a brief opinion on my own particularly on the issues of Limitation, bona fide purchaser of the legal estate without notice and the alleged contradiction in the evidence of the plaintiff’s witnesses.
The ground 6 of the appeal is that the learned trial Judge erred in finding that the plaintiff’s case was not caught by limitation in spite of Defendants’ long constructive possession of over 20 years and notice of its title in the records of the Lands Commission. The defendants filed 10 paragraph statement of defence but did not plead limitation. Order 11 Rule 12 of the High Court (Civil Procedure) rules C.I. 47 require any person raising points of law such as duress, fraud and limitation to plead and give particulars. Rule 12(1) provides as follows:
“12.(1)Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words
(a) Particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and
(b) Where a party pleading alleges any condition of the mind of any person, whether of any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies “.
The defendants did not plead limitation and the trial Judge also gave his judgment without invoking the statute of Limitation NRCD. The defendants who did not plead limitation have turned round to fault the trial Judge for failing to raise limitation as a defence for them. The law is settled that all legal issues which would constitute defence must be specifically pleaded by the person relying on it. The only exception to this rule is fraud which is treated as a scarlet sin and the law requires the courts to raise it suo motu where it is clear on the face of the records. The rational is that fraud is a felony and not a right which can be waived. In the case of Apeah and another vs. Asamoah [2003-2004] 1SCGLR 226 the Supreme Court held that fraud vitiates everything and ordinarily it should be pleaded but where it is not pleaded and there was clear evidence of fraud on the face of the record the court cannot ignore it.
In the case of Dolphyne (No