On principle of public policy nobody should be allowed to take advantage of his own wrong.
Introduction
With this doctrine the decision in Bodner v Banque Pariba comes to mind. The court held thus: “Federal courts have found the statute of limitations must accrue from the date of the last wrongful act where there is a continuous wrong. Leonhard v United States, 633 F. 2d 599, 613 (2d Cir. 1980). Thus, under the continuous violation doctrine, “the limitation period for a continuing offence does not began until the offence is completed.” United States v Rivera-Ventura, 72 F. 3d 277, 281 (2d Cir. 1995)… The nature of Plaintiffs claim is such that the continued denial of their assets, as well as facts and information relating thereto, if proven, constitutes a continuing violation…” In this case the plaintiff, Jews, brought an action in the year 2000 for the recovery of their assets and damages from the Defendant bank. The basis of their claims is that the defendants have connived with the Nazi and the Vichy regimes during their World War II occupation of France to expropriate their private properties. The defendant pleaded the statute of limitation. The Plaintiff in turn pleaded continuing violation, namely, that every single day that the defendant refused to return the properties or, in lieu of that, pay compensation to them, constitute a new and fresh violation. The doctrine is to the effect that if one violates a statute for a long period of time he cannot invoke the doctrine of estoppel or the statute of limitation to seek refuge upon his wrongful conduct. In the words of Amegatcher JSC is instructive “the police administration at the time should count themselves fortunate to have escaped the punishment for the unreasonable delay, ……failure to comply with the orders and direction of the Supreme Court given 28years ago and mustering the courage to plead that the enforcement of the orders and directions have been caught by the statute of limitation.”
Meaning of the doctrine ‘Continuous Violation’
The continuing violation doctrine is one of such doctrines which statutes of limitation are incapable of overriding. Strictly speaking, the continuing doctrine is not exactly an exception to the statute of limitation. It is, in fact, consistent with statute of limitation. It indeed, acknowledges the limitations that a statute may place on the claim. It however, looks at the totality of the wrongful behavior complained of in determining whether the limitation that the statute places on the wrong is triggered. The basis of the doctrine is that the wrongful behavior complained of or another similar wrongful behavior which is consequent upon the initial wrongful behaviour complained of continues, even after the cause of action had fully accrued in respect of the initial wrongful behavior. In such a case, a new cause of action is deemed to accrue every single day that the wrongful behavior persists, thereby shifting the accrual date of the cause of action forward. It also means that until the wrongful behavior abates, each new day becomes the beginning of a new cause of action to which the putative defendant may be liable. The doctrine is rooted on the consequences of a breach of constitution or any enactment. The question is can a person who has continuously breached an order of a court or the Constitution 1992 seek refuge under estoppel or the statutes of limitation? I do not think so. This paper analyses the circumstances under which estoppel and the statutes of limitation cannot be invoked as shield or even as a sword to override an act or conduct of any person which contravenes the Constitution 1992.
Analysis
In Aboagye Mensah & 2 Ors v Yaw Boakye (Execution of Consent Judgment/Abuse of Process) the Supreme Court in rejecting the idea that estoppel can be used to prevent a person from ventilating his constitutional rights held per Amadu JSC: “The law is that previous conduct would not constitute an estoppel preventing the exercise of constitutional rights or enjoyment of constitutional remedy”. The Supreme Court per Tanko, JSC referred to a number of case in the Ghanaian jurisprudence and decided as follows: In New Patriotic Party v Attorney-Generall, this Court stated as follows: “Our first reaction is that such equitable defences-acquiescence and inaction or conduct –must not be allowed to operate as a shield to prevent citizen from ventilating and enforcing his constitutional rights. Otherwise, sooner or later, the good intentions of the framers of the Constitution, will be defeated.” The Supreme Court continued thus: In Re Kwabeng Stool: Karikari v Ababio II, estoppel was said to be wholly inapplicable if it is meant to cure non-compliance with statutes. At page 531 of the report in the case under reference, this Court held as follows: “Estoppel of all kinds, however, are subject to one general rule: they cannot override the laws of the land. Thus, where particular formality is required by statute, no estoppel will cure the defect and jurisdiction cannot be given to the court by estoppel, where statute denies it….” Again, Attorney-General v Sweater & Socks Factory Limited the Supreme Court opined that the abuse of the process principle does not apply if in the new action, the courts attention is being drawn to either a breach of the Constitution or a jurisdictional error. In the case under reference, this Court per Wood (CJ) stated as follows: “More importantly, it is very clear from the abuse if process doctrine as discernible from all the decisions of this court, without a single exception that special circumstances, would justify its exclusion or applicability and allow the litigation of issues which could have or ought to have been brought up for adjudication in a previous action, but were not. Given that estoppels of all kinds cannot override the laws of the land, I would include, constitutional questions, jurisdictional questions arising from alleged constitutional or statutory violations, such as the one raised before us, as some of the exceptional grounds on which, in a fresh action involving the same parties or privies, defendant cannot subsequently rely on the plea of the abuse of process.” The above decisions indicates that when a person violates the constitution 1992, statutes, jurisdiction, he cannot invoke the doctrine of estoppel or the Statute of Limitation as shield to seek a remedy from the court.
This is because every violation constitute a new and fresh violation. It is trite learning that the Constitution 1992 is the Supreme Law of the land. Article 2 of the Constitution 1992 gives right to any person who alleges that any act or omission of any person is inconsistent with, or is in contravention of a provision of the constitution, to bring an action in the Supreme Court for a declaration to that effect. The effect of any orders made by the Supreme Court on the entire citizenry and the repercussions for disobedience are provided for in articles 2(3) and (4) as follows: “(3) Any person or group of persons of whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction. (4) Failure to obey out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under the Constitution and shall, in the case of the President or the Vice-President constitute a ground for removal from office under this constitution.”
The above constitutional provisions sanctions any person who refuses to obey an order made by the Supreme Court. The offence for such a sanction is high crime.. So persons cannot hide under the statute of limitation or estoppel as shield or sword to override an act or conduct of any person which contravenes the Constitution 1992. For the purpose of this article the case that comes to mind is Inspector Shitu Wabi & 79 Ors v Inspector General of Police & Attorney-General. I disagree with the majority opinion of the Supreme Court. I however, I associate myself with the minority opinion delivered by Amegaticher JSC.
Facts of the case Prior to the coming into force of the Constitution 1992, the conditions of service of members of the Ghana Police Service, then a Police Force, were governed by the Police Service Act, 1970 (Act 350), the Police Service (Amendment) Decree, …