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ATOO v. TOWN CLERK OF SEKONDI - TAKORADI


  • appeal
  • 1961-06-26
  • SUPREME COURT
  • GLR 413-416
  • Print

KORSAH, C.J., SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Practice and Procedure?-Action against municipal council?-Whether premature in that no written notice thereof served on council?-Whether statute-barred?-Whether objections not previously canvassed can be raised before Supreme Court?-Municipal Councils Ordinance, (No. 9 of 1953), ss. 149 and 150.

Headnotes

The appellant's house was sold by auction on the 29th January, 1955, for alleged non-payment of rates pursuant to an order obtained by the Sekondi/Takoradi Municipal Council in the district magistrate's court. The appellant, although aware of the sale on the 2nd February, 1955, did not commence these proceedings to have the sale set aside on the ground that the council had obtained the court order by means of fraud and misrepresentation until the 19th November, 1956, i.e. after a period of twenty-one months had elapsed, contrary to section 150 of the Municipal Councils Ordinance, No. 9 of 1953 which provides: When any suit is commenced against a Council for any act done in pursuance or execution or intended execution of an Ordinance or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority, such suit shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof."Further he failed to serve notice on the council in compliance with section 149 of the Ordinance which provides: [p.414]"No suit shall be commenced against a Council until one month at least after written notice of intention to commence the same has been served upon such Council by the intending plaintiff or his agent.Such notice shall state the cause of action the name and place of abode of the intending plaintiff and the relief which he claims."In the district magistrate's court the appellant's claim was dismissed on the ground that he had failed to prove fraud or misrepresentation. An appeal to the High Court, Sekondi, was dismissed for the same reason.On appeal to the Supreme Court, counsel for the respondent council raised a preliminary objection, which for the first time canvassed the view that the appellant's failure to comply with sections 149 and 150 of the Ordinance, supra, was fatal. Counsel for the appellant argued that since these sections were not specifically pleaded nor canvassed in the lower courts, they could not now be raised in the Supreme Court.

Judgement

APPEAL from the judgment of Smith, J. in the High Court, Sekondi, delivered on the 3rd May, 1960, (unreported) affirming the judgment of the Sekondi District Magistrate's Court (K. Dua-Sekyi, Esq.) delivered on the 23rd June, 1959, which dismissed an application by the plaintiff-appellant for an order to set aside the sale of his house on the ground that the order for the said sale was obtained by fraud and misrepresentation. Counsel for the respondent gave notice in writing that he would rely on preliminary objections to the hearing of the appeal and the Supreme Court did not therefore enter into the merits of the case.

JUDGMENT OF AKIWUMI, J.S.C.

Akiwumi, J.S.C. delivered the judgment of the court. At the hearing of this appeal, counsel for the respondent having previously given notice of intention to rely upon preliminary objections and having filed grounds of such objections contends as follows:

"(1) The plaintiff-appellant having failed to comply with section 149 of the Municipal Councils Ordinance (No. 9 of 1953), his action is premature."

[His lordship here read section 149 which is set out in the headnote and continued:] It is not disputed that no notice as required by law was given to the defendant-respondent by the plaintiff or anybody on his behalf. In reply the plaintiff's counsel contends that as the said section was not specifically pleaded nor canvassed in the trial and appellate court, the objection is not tenable at this stage, that is, on appeal to the Supreme Court, and that the defendant-respondent must be deemed to have waived these rights when the defendant submitted to the jurisdiction of the court and took part in the proceedings before the trial court. [p.415]

In our view the relevant sections of the Ordinance1 upon which the objections are founded are expressed in terms which do not permit a party entitled to the benefit thereof to exercise a discretion to waive it. The true interpretation of the section must be that until such notice has been given in writing and has been served upon the town council by the intending plaintiff or his agents, no suit can be maintained against the council.

The second ground upon which the objection is taken reads as follows:

'That the building having been sold on 29th January, 1955 and the plaintiff-appellant being aware of it on the 2nd February, 1955, but waiting until 19th November, 1956 to commence this action to set aside, this action is statute-barred in view of section 150 of the Municipal Councils Ordinance No. 9 of 1953."

[His lordship then read section 150 which is set out in the headnote.]

The plaintiff in his evidence before the trial court said: "The first time I heard that my house had been sold was on the 2nd of February, 1955. This was about two or three days after the sale had taken place." There is evidence on record which is not disputed, proving that the said sale took place on the 29th January, 1955; but this action was commenced on the 19th November, 1956 which period is well over the period of twelve months from the date the plaintiff says he became aware of the sale. It is therefore not disputed by the plaintiff that the action was not taken within the twelve months; but counsel for the plaintiff again contended that this objection not having been specifically pleaded and canvassed in the trial and the appellate court could not now be raised in the Supreme Court.

In support of this contention contention counsel for appellant referred us to Hastings on Fraud and Misrepresentation (7th ed.) at page 609 and submitted that the action having been based on fraud and misrepresentation it could be brought at any time and could not be barred by the expiration of twelve months fixed by section 150 of the said Ordinance.

We are unable to agree with counsel because it is clearly stated in the relevant sections of the Municipal Councils Ordinance2 to which we have referred that in any event the period of limitation will commence to run from the date when the plaintiff had knowledge or became aware of the alleged fraud or misrepresentation. It follows therefore that in this case the period of twelve months began to run from the 2nd February, 1955, when according to plaintiff he became aware that his house had been sold by the direction of the town council on or about the 29th January, 1955.

In the result we are clearly of the opinion that the grounds of objection are well founded and conclusively determine this question as to whether or not this action is maintainable. Therefore if this objection had been raised in the trial court, the presiding magistrate would have been bound to dismiss the plaintiff's claim. We also hold that the fact that this [p.416] objection was not raised in the trial and appellate courts does not prevent the defendant-respondent from raising it here. As we have already indicated the plaintiff-appellant could not institute this suit without complying with sections 149 and 150 of the Municipal Councils Ordinance.

We therefore uphold the objections and accordingly dismiss this appeal with costs fixed at G54 15s.

Decision

<P>Objection upheld.</P> <P>Appeal dismissed.</P>

Plaintiff / Appellant

C. F. Hayfron-Benjamin

Defendant / Respondent

K. D. Gwira

Referals

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