ABEKA v. AMOA AND ANOTHER
[HIGH COURT, CAPE COAST]
Date: 20 FEBRUARY 1973
COUNSEL
Sackeyfio for the plaintiff.
Patrick Djamson for the defendants.
JUDGMENT OF EDWARD WIREDU J.
On 13 February 1970, the plaintiff as an administrator of the estates of Ama Kate Gyedua and Kofi Yesu both late of Agona Nsaba issued out of this court a writ of summons claiming damages from the defendants for and on behalf of the dependents of the deceased who were killed in a motor accident involving a vehicle owned by the second defendant which at the material time of the accident was under the control and management of the first defendant. In his supporting statement of claim the plaintiff pleaded as follows:
“(1) The plaintiff is the administrator of the estates of Ama Kate Gyeduah and Kofi Yesu both deceased of Agona Nsaba, and he sues for and on behalf of the estates of the deceased persons.
(2) The first defendant was the driver and servant at all material times of the second defendant. The second defendant was the master of the first defendant at all material times.
(3) On 13 February 1967 the first defendant was driving vehicle No. GE 6148 belonging to the second defendant from Oda direction towards Agona Swedru. On reaching Nsaba the first defendant drove so negligently that he hit Ama Kate Gyedua (deceased) who was carrying her baby Kofi Yesu (deceased) at her back and she fell with her baby. Both of them died on the spot. The time was about 5.30 a.m.
(4) Particulars of negligence:
(a) Driving without due care and attention for other users of the road. The first defendant suddenly swerved from his nearside to this offside to where the deceased persons were and ran them down.
(b) Failing to apply brakes in order to stop vehicle from running into the deceased mother and child.
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(5) As a result of the negligent driving of the first defendant the deceased mother and child died at Nsaba on 13 February 1967, after they had been run down by vehicle No. GE 6148 owned by the second defendant and driven by the first defendant, servant of the second defendant.
(6) Wherefore the plaintiff claims as endorsed on the writ of summons herein for the estates of the two deceased persons.”
On 8 April 1970, Messrs. Lynes Quashie-Idun & Co., of Accra entered an appearance on behalf of the defendants and later filed a statement of defence in the following form:
“(1) The defendants make no admission of the averments contained in paragraph (1) of the statement of claim and put the plaintiff to strict proof thereof.
(2) Paragraph (2) is admitted.
(3) The defendants deny that the first defendant was negligent as alleged in paragraph (3) or at all; further the defendants deny every particular of negligence pleaded.
(4) The defendants say that the said Ama Kate Gyedua crossed the road so suddenly at a curve that the first defendant could not avoid a collision.
(5) The defendants contend that the accident was caused wholly or in the alternative contributed to through the negligence of the said Ama Kate Gyedua.
Particulars of negligence
(a) Failing to keep a proper look-out for the traffic on the road.
(b) Failing to observe the road before attempting to cross.
(c) Attempting to cross the road when it was unsafe and dangerous to do so.
(d) Failing to have proper regard for her own and her baby’s safety.
(6) The defendants deny that Ama Kate Gyedua and her baby son, Kofi Yesu, died as result of the said
accident, but assuming that the deceased were killed in the accident as alleged, which is denied, the defendants deny that the death of the deceased persons was caused by their negligence.
(7) The defendants will contend that the plaintiff’s action is statute-barred by reason of the fact that the action was not commenced within three years after the death of Ama Kate Gyedua and her child in accordance with the provisions of the Civil Liability Act.
(8) Save and except as hereinbefore expressly admitted the defendants deny each and every allegation of
fact contained in the plaintiff’s statement of claim as if the same were herein set out in detail and traversed seriatim.”
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A reply was filed on behalf of the plaintiff joining issue with the defendants on the matters raised in the defence. Paragraph (3) of the reply which is relevant for the purpose of this ruling read as follows:
“(3) The action is not statute-barred as pleaded in paragraph (7) of the defence. The cause of action arose on 13 February 1967, and the writ herein was sealed on 13 February 1970. It is within and not outside the three year period as provided for in the Civil Liability Act.” And on 8 January 1973, the following issues as set out in the plaintiff’s summons for directions:
“(a) Whether the plaintiff is the administrator of the estates of the two deceased persons on behalf of which he sues.
(b) Whether the first defendant was negligent.
(c) Whether the deceased, Ama Kate Gyedua, crossed the road suddenly and collided with the vehicle.
(d) Whether the deceased mother was negligent or contributed to the accident.
(e) Whether the deceased persons died as a result of the accident.
(f) Whether the action is statute-barred.
(g) Whether the plaintiff is entitled to his claim.
(h) Other issues as appear from the pleadings,”
were agreed to and set down as the issues for trial in the case with the exception of issue (f) which on the application of counsel for the defendants under Order 25, rr. 2 and 3 was set down for legal arguments as a preliminary issue on 17 January 1973. The objection raised by learned counsel for the defendants was that the plaintiff’s action was unmaintainable by virtue of section 16 (6) of the Civil Liability Act, 1963, which reads as follows, “The action shall be commenced within three years after the death.” There is no doubt that the plaintiff’s action is founded on section 16 of Act 176. Counsel for the defendant therefore contended that for the plaintiff’s action to be maintainable he should have complied with the provisions of section 16 (6) of Act 176. Continuing counsel submitted that since by paragraph (3) of his statement of claim the death complained of occurred on 13 February 1967, the claim should have been brought within three years after this date. Founding himself on section 23 (2) and (4) of the Interpretation Act, 1960 (C.A. 4), counsel argued that the plaintiff’s action became statute-barred on 10 February 1970. He submitted that computing the period within which the plaintiff’s action could have been brought under section 23 (2) and (4) of C.A. 4, the first year commenced from the date of death to the corresponding date in the following year less one day, that is, 13 February 1967 to 12 February 1968. When thus calculated submitted counsel, the period of three years’ limitation within which the plaintiff’s action was maintainable expired on 10 February 1970. Counsel further submitted that there was a second school of thought where the view was held that when computing time under such situations, the day on which
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the event occurred was to be ignored but he submitted that on the true interpretation of section 22 (3) of C.A. 4, which according to counsel was not even relevant to the present proceedings, that view was erroneous because according to him the relevant provision of Act 176 which is in issue here refers to the occurrence of “an event” and does not make any reference to “a day” as provided under section 22 (3).
He therefore argued that where in an enactment a reference is made in relation to the occurrence of an event then no matter at what time of the day that event occurred, computation of time when the cause of action accrued must include the day on which the event occurred. Counsel finally submitted that if his view on the inapplicability of section 22 (3) of C.A. 4 as argued above was erroneous and that the day of death was excluded the plaintiff would still be out of time since in that event his action would become barred on 11 February 1970.
Replying on behalf of the plaintiff Mr. Sackeyfio submitted that section 22 (3) of C.A. 4 was the relevant provision which should be adopted for the purpose of computing the time within which the plaintiff was by section 16 (6) of Act 176 to maintain his action. According to him when the day on which the death occurred was excluded as the subsection envisages the first year of death in the instant case would commence from 14 February 1967 to 13 February 1968 and so on so that the plaintiff’s action could be unmaintainable only after the expiration of 13 February 1970. Counsel therefore submitted that the plaintiff’s action having been taken on 13 February 1970, was within the language of section 16 (6) of Act 176. The relevant provisions of the Interpretation Act, 1960 (C.A. 4), which call for consideration in this case are sections 22 (3), 23 (1) to (4) which read respectively as follows:
“22. (3) Where in an enactment a period of time is expressed to be reckoned from, or after, a particular day, that day shall not be included in the period.
“23. (1) In an enactment ‘month’ means a calendar month that is to say, a month reckoned according to the calendar.
(2) If the period indicated in the enactment begins on any date other than the first day of any of the twelve months of the calendar it is to be reckoned from the date on which it is to begin to the date in the next month numerically corresponding, less one, or, if there is no corresponding date, to the last day of that month. For example: a month beginning on 15th January ends on 14th February; a month beginning on 31st January ends on 28th February (or 29th February in a leap year).
(3) If the indicated period is one of two, three or more months, it is to be reckoned from the date on which it is to begin to the date numerically corresponding, less one, in the second, third or other successive month thereafter or, if there is no such corresponding date, to the last day of the latter month.
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For example: a period of six months beginning on 15th August ends on 14th February; a
period of six months beginning on 30th or 31st August ends on 28th February (or 29th February in a leap year).
(4) In an enactment ‘year’ means a period of twelve months.” It is significant to note that the wording of subsection (6) of section 16 of Act 176 is in identical language to section 3 of the Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), now amended by the Law Reform (Limitation of Actions) Act, 1954 (2 & 3 Eliz. 2, c. 36), s. 3. This latter statute is the corresponding English law on the subject-matter. No local decided case on the subject was cited to me by counsel in the case and my own personal endeavour in search for one had not been successful. We therefore have no alternative but to examine what the English textbook writers and English case law say on the subject to see how far these can offer us any useful guide in dealing with our present problem. In other words how
far the views of the textbook writers and case law fit in with similar provisions in the laws of Ghana. It is a big relief that on the subject-matter at issue all the English textbook writers and the case law have a common area of agreement. In Clerk & Lindsell on Torts (13th ed.) at p. 60, para. 611 the learned authors have this to say about computation of time under the English Limitation Acts: “In computing the time of limitation, the day on which the cause of action arose is, as a rule, to be excluded, and the day on which the action is commenced is to be included. The principle is that ‘where the act done from which the computation is made is one to which the party against whom it runs is privy, the day of the act done may reasonably be included; but where it is one to which he is a stranger it ought to be excluded.’ If the last day of the period is a Sunday, or other day on which the offices are closed, the plaintiff must issue his writ on the previous day. If he waits until the Monday he will be too late.”
Paragraph 632 where limitation under the Fatal Accidents Act is discussed reads as follows: “By section 3 of the Fatal Accidents Act, 1846, actions under that Act must be brought within three years after the death of the deceased person.” The method of calculating the period of limitation is to be determined by the law of the court seised of the case. At page 304 of Bingham’s Motor Claims Cases (5th ed.) the learned author has this to say: “Under the Fatal Accidents Act, time runs from the date of death.” In the case of Marren v. Dawson, Bentley & Co., Ltd. [1961] 2 All E.R. 270 it was held that the day on which the cause of action accrued was excluded from the computation of the three years. The decision in the Marren case is in conformity with the rules of interpretation as provided by section 22 (3) of C.A. 4. In that case the plaintiff claimed damages for personal injuries received in an accident. The accident occurred at 1.30 p.m. on 8 November 1954.
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The writ was issued on 8 November 1957. The defendants raised an objection that the action was out of
time since the plaintiff’s claim was limited to writs issued on or before 7 November 1957 but the
objections was overruled.
English statutes of limitation show that the period of limitation runs “from the date on which the cause of
action accrued.” No further explanation of “accrued” is given in any of the amending statutes, i.e. 1939,
1954, etc., so that the authorities of the older law are still in point. There is however some divergence of views in negligence cases. In cases of negligence a general view was held that the cause of action accrued at the time of the negligence because it was then that damage was caused: see the case of Howell v. Young (1826) 5 B. & C. 259. But the case of Backhouse v. Bonomi (1861) 9 H.L.Cas. 503 decided that where the tort was actionable only on proof of actual damage that is when damage is the gist of the action as in nuisance, negligence and deceit, time runs from the damage. This latter view is also supported by Charlesworth on Negligence (4th ed.), p. 613 and dicta from
Cartledge v. Jopling (E.) & Sons Ltd. [1963] A.C. 753, H.L. are quoted as authority. The difficulty which may arise in resolving the computation of time in negligence cases by preferring one of the two above views does not arise in the instant case where both the case law and the textbook writers are unanimous on the law that time runs from the date of death so that one can safely ignore that aspect of the matter. A careful examination of the review of the English law on the computation of time within which to maintain an action under the Fatal Accidents Acts exercised above reveals a consistent uniformity with our own laws. Section 16 (6) of Act 176 appears to have been modelled after section 3 of the Fatal Accidents Act of 1846. In respect of the point at issue the English Act is in substance in pari materia with section 16 (6) of Act 176. The English decided cases therefore will offer useful guides and will be adopted so far as are consistent with the relevant provision of the Interpretation Act, 1960 (C.A.4). It is also significant to note that the period of limitation with regards to personal injuries claims as provided by section 30A (1) of Act 176 as inserted by the Civil Liability Act, 1963 (Amendment) Decree, 1968 (N.L.C.D. 322), in identical in language to section 2 (1) of the Law Reform (Limitation of Actions)
Act, 1954. Applying the principles of calculation as have been gathered from the above analytical examination of the views of the English textbook writers and the case law on the subject to the instant case the following
emerge:
(a) That there can be no doubt that the plaintiff’s cause of action accrued on 13 February 1967,
(b) that time for computing limitation under section 16 (6) of Act 176 begins from 14 February 1967 to 13 February 1970, [p.326] of [1973] 1 GLR 319
(c) that there can be no doubt also that the action taken on or before 13 February 1970 from 14 February 1967, is within the spirit and language of section 16 (6) of Act 176 and therefore maintainable. It follows from the above observations that the correct mode of computing time within the language of section 16 (6) of Act 176 is to exclude the day on which the cause of action accrued. Vide section 22 (3) of C.A. 4 and Marren’s case (supra).
It follows further that Mr. Sackeyfio’s contention that the plaintiff’s action is within time is in my ruling the correct view. The objection against the plaintiff’s action therefore fails and it is accordingly dismissed with costs of ¢40 in favour of the plaintiff. Case is ordered to proceed to hearing on the merits.
DECISION
Preliminary objection overruled.
