AZOKA v. ATTORNEY-GENERAL [1966] GLR 520

Division: HIGH COURT, TAMALE

Date: 20 JUNE 1966

Before: CHARLES J.

NATURE OF PROCEEDINGS

ACTION against the defendant for damages for injuries sustained as a result of the negligence of a public officer. The facts are sufficiently set out in the judgment.

COUNSEL

E. O. Appiah for the plaintiff.

Michael Danso, Assistant State Attorney, for the defendant.

JUDGMENT OF CHARLES J.

In this action the plaintiff claims the sum of £G1,000 as damages for injuries suffered by him as a result of the negligence of Kodjo Gbeddie an employee of the Regional Organisation of the Upper Region, while he was driving motor vehicle No. NG 54 in the course of his employment.

The plaintiff was a passenger in the front seat of motor car No. SG 9619 which was being driven by Bogna Frafra on 16 September 1963 from Bawku to Bolgatanga along a laterite road at about 35 miles per hour. The driver Bogna Frafra says that he was approaching the market place about four miles from Bolgatanga when he saw a tipper truck driven from a bush road onto the main road. He sounded his horn to warn the driver of the tipper truck which was about twenty yards away from him but the tipper truck did not stop but rather went onto the middle of the road and turned right. It was when the truck was in the process of turning right that the accident occurred. The car was totally wrecked and the plaintiff sustained injuries. The front of the car was hooked onto the rear of the truck which dragged it about twelve feet away from the point of impact. The plaintiff’s evidence as to the cause of the accident was corroborated by the plaintiff’s first witness.

Kodjo Gbeddie, the driver of the tipper truck No. NG 54 stated that on 16 September 1963, he was driving the truck from Bolgatanga

[p.522] of [1966] GLR 520 to Tamale to collect gas oil and petrol. He left the Regional Office, Bolgatanga, at about 10.15 a.m. and he drove the truck towards Zuarungu market to collect a travelling bag for his brother. As the truck approached the Bolgatanga and Bawku main road he brought it to a stand-still and sent his mate to collect the bag. Before he drove the truck onto the main road he looked to the left and to the right to see if any vehicle was coming along the main road but he saw no vehicle. While he was driving the truck onto the main road he saw a lot of dust in the Bawku direction and that a Peugeot car was coming towards him. He stopped the truck when it was halfway on the road and he later heard an impact. He applied his handbrake, came down from the truck and noticed that the front of the Peugeot car had hit the left rear tyre of the truck. Kodjo Gbeddie stated that if Bogna Frafra was not driving very fast he could have avoided the accident.

Under cross-examination Kodjo Gbeddie admitted that there was no bush on the left or right side at the junction of the main road and the bush road he was travelling on, and that he was able to see 100 yards along the left side of the main road and 200 yards along the right side of the main road. He was about to cross from the bush road onto the left side of the main road but when he saw the car coming from Bawku he stopped the truck when its front wheels were on the right side of the main road. The evidence given by Kodjo Gbeddie could not be true because the impact between the two vehicles occurred on the main road. If it is true that only the front wheels of the truck were on the main road when the impact occurred then the impact would have occurred on the minor road as the rear wheels of the tipper truck were on the minor road and the front of the Peugeot car ran into the left rear tyre of the truck. I do not believe that Kodjo Gbeddie stopped at the junction and looked both to the left and right before driving the truck onto the main road because if he did look he would have seen the Peugeot car as he could have seen 100 yards to the left and 200 yards to the right. I do not believe that the Peugeot car was travelling so fast that it raised up a lot of dust and thereby prevented Kodjo Gbeddie from seeing the car in time as suggested in his evidence.

On the evidence I find the accident was caused by the negligence of Kodjo Gbeddie in driving the truck from a minor road onto a main road without first ascertaining whether any vehicle was travelling along the main road. I also find that Kodjo Gbeddie drove the truck from the minor road to the main road and as the driver of the Peugeot car only saw the truck for the first time when he was about twenty yards away from it he could not avoid the accident.

[p.523] of [1966] GLR 520

The state attorney has submitted that this action is statute-barred as the driver Kodjo Gbeddie, in respect of whose act the action is brought, was at the material time in the employment of the Government of Ghana and therefore a public officer and as the action was brought more than three months after the cause of action arose the action is not maintainable by virtue of the provisions of sections 2 (1) and 3 (1) of the Public Officers Act, 1962.1 Counsel for the plaintiff conceded that Kodjo Gbeddie was a public officer but contended that Act 114 has no application in this case because the person whose act is the subject-matter of this claim is not the person sued and the Act is confined to public officers and not the State whom the Attorney-General represents. It therefore behoves me to examine the relevant provisions and ascertain their effect.

Section 2 (1) (a) of the Public Officers Act, 1962, provides:

“the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect, or default complained of, or in the case of a continuance of injury or damage, within three months next after the ceasing thereof. . ..”

Section 3 of the said Act provides:

“(1) All proceedings and documents in or incidental to an action brought in contravention of this Act shall be void.

(2) Where complaint is made that a public officer is dealt with in contravention of this Act by any process, execution or order issued out of any Court, and is made to that Court or any Court superior to it, the Court shall enquire into the complaint and shall, if it is satisfied that the complaint is well-founded, discharge the public officer without fee, and may award reasonable costs to the person making the complaint, which may be recovered as if such costs had been awarded in his favour in the proceedings instituted against him.”

Section 2 (1) (a) of the Public Officers Act, 1962, does not extinguish the liability of public officers. It only bars the remedy against the public officer whose act is the subject-matter of the action if an action is brought more than three months after the cause of action arose. The Public Officers Act, 1962, only applies to public officers whose acts are the subject-matter of a cause of action and it does not enure to the benefit of his employers. The Attorney-General is only a nominal defendant in this case as the action is really brought [p.524] of [1966] GLR 520 against the State as the employer of Kodjo Gbeddie. Neither the Attorney-General nor the State can invoke the protection afforded by the Public Officers Act, 1962, as they do not come within the ambit of its provisions. If the Public Officers Act, 1962, had not merely barred the remedy but also extinguished the liability of the defendant then the State could not be held liable for the act of the defendant because a principal or master could only be held liable for the acts of his agents or servants if the agents or servants are liable in law.

It is clear that this action has been brought against the State, i.e. the Government of Ghana which is the employer of Kodjo Gbeddie and that the Attorney-General is only a nominal defendant. The Public Officers Act, 1962, enures to the benefit of public officers per se but not to their employers and I am fortified in this view by the fact that the Local Government Act, 1961,2 was passed to protect local authorities.

The damages suffered by the plaintiff have been greatly inflated according to the evidence adduced. I therefore enter judgment in favour of the plaintiff against the defendant in the sum of ¢240.00 with costs assessed at ¢40.00 inclusive of fee to counsel.

DECISION

Judgment for the plaintiff.

S. K. T.