HIGH COURT, ACCRA
DATE: 17 NOVEMBER 1970
ABOAGYE J.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION by the defendants to an action by the plaintiff for damages for an alleged assault committed by two prison officers.
COUNSEL
Dr. Ekow Daniels for the plaintiff.
K. A. Anson, State Attorney, for the respondents.
JUDGMENT OF ABOAGYE J.
The plaintiff herein claims against the defendants N¢1,200.00 damages for an alleged assault on him on 23 January 1967, by Messrs. J. O. A. Lamptey and J. K. Commey both of whom were prison officers at the material time. The action was instituted against the first defendant, the Minister of Interior, as “the Minister responsible for Interior of which the Prison Services form part” and as the minister under whose control and direction all prison officers worked at the material time. The writ of summons was issued on 9 March 1970, and on 24 July 1970, after a summons for directions had been heard, upon the plaintiff’s application, the second defendant, the Attorney-General was added to the Minister of Interior as second defendant because, according to the plaintiff, “the Attorney-General is a proper person to be added also as a person representing the Republic of Ghana.”
Dr. Ekow Daniels, learned counsel for the plaintiff, had on 7 February 1970, served the Attorney-General with a notice of intention to commence an action against the Republic and a copy of the said notice had been filed in the registry of this court. In view of this it is hardly understandable why the writ was in the first instance issued against the Minister of Interior since section 10 (2) of the State Proceedings Act, 1961 (Act 51), provides that, “the Attorney-General, or any officer authorised in that behalf by him, or any officer specified in that behalf under any law for the time being in force” is the proper person to be sued as the representative of the Republic. It was not averred by the plaintiff that the Minister of Interior had been authorised by the Attorney-General to represent him and paragraph 2 of the statement of claim shows clearly that the Minister of Interior was not sued as the representative of the Republic
In paragraph 10 of their statement of defence the defendants pleaded that the plaintiff’s action is barred by the Public Officers Act, 1962 (Act 114). The preliminary point whether or not the plaintiff’s action is statute-barred was therefore argued by counsel on 3 November 1970,
[p.129] of [1971] 1 GLR 127
as the whole suit would be disposed of if it was ruled in favour of the defendants. Section 2 (1) (a) of Act 114 reads:
“2. (1) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any enactment or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such enactment, duty, or authority, the following provisions shall have effect, that is to say —
(a) 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.”
And section 7 of the Act defines “public officer” as, “(a) any person in the service of the Government, (b) any person in the service of any local authority.”
The Minister of Interior is in the service of the government and therefore a public officer. If therefore he is sued qua the Minister responsible for the Prisons Services then he can seek protection under section 2 of Act 114. The act complained of, namely, the alleged assault on the plaintiff, took place on 23 January 1967. Any claim for damages against a public officer qua public officer based on the said assault must therefore have been commenced not later than three months from 23 January 1967. The action against the Minister of Interior is therefore barred by section 2 (1) (a) of Act 114.
As regards the claim against the Republic represented by the Attorney-General, the liability of the Republic is vicarious and dependent on the liability of her servants or employees, Messrs. Lamptey and Commey who are the alleged tortfeasors. Both Lamptey and Commey are public officers and therefore any cause of action in tort against them arising out of their alleged assault on the plaintiff was barred by section 2 (1) (a) of Act 114 on or about 23 April 1967. Therefore, at the time the plaintiff commenced this suit against the Republic there was no liability on Lamptey and Commey for which the Republic can be made vicariously liable. The plea that the plaintiff’s action is statute-barred is therefore well grounded and I uphold it and dismiss the plaintiff’s action with N¢42. 00 costs to each of the defendants.
DECISION
Objection upheld.
Action dismissed.
T. G. K.
