GHANA RAILWAY AND PORTS AUTHORITY v. OKAKBU AND OTHERS [1972] 2 GLR 6
HIGH COURT, ACCRA
Date: 1 MARCH 1972
BEFORE: ABBAN J.
CASES REFERRED TO
(1) Wyatt v. Gems [1893] 2 Q.B. 225; 62 L.J.M.C. 158; 69 L.T. 456; 57 J.P. 665; 42 W.R. 28; 9
T.L.R. 546; 37 S.J. 601; 17 Cox C.C. 679; 5 R. 507.
(2) Sheffield Corporation v. Sheffield Electric Light Co. [1898] 1 Ch. 203; 67 L.J.Ch. 113; 77 L.T.
616; 62 J.P. 87; 46 W.R. 485.
(3) Lybbe v. Hart (1885) 29 Ch.D. 8; 54 L.J.Ch. 680; 52 L.T. 634; 1 T.L.R. 235, C.A.
(4) Great Western Railway Co. v. Swindon and Cheltenham Extension Railway Co. (1884) 9 App.Cas.
787; 53 L.J.Ch. 1075; 51 L.T. 798; 48 J.P. 821; 32 W.R. 957, H.L.
(5) Re Berrey; Lewis v. Berrey [1936] Ch. 274; 105 L.J.Ch. 38; 154 L.T. 335.
(6) Tsiboe v. Kumasi Municipal Council [1959] G.L.R. 253.
(7) Gawley v. Belfast Corporation [1908] 2 I.R. 34, C.A.
(8) Carey v. Bermondsey Metropolitan Borough (1903) 67 J.P. 111; 20 T.L.R. 2; 2 L.G.R. 219, C.A.
(9) Freeborn v. Leeming [1926] 1 K.B. 160; 95 L.J.K.B. 114; 134 L.T. 117; 90 J.P. 53; 42 T.L.R. 119;
70 S.J. 264; 24 L.G.R. 9, C.A.
(10) Ohene v. Principal Secretary, Ministry of Finance [1971] 1 G.L.R. 102.
NATURE OF PROCEEDINGS
APPLICATION for an order to set aside the service of a writ of summons on the ground that the action
was statute-barred. The facts are sufficiently set out in the ruling.
COUNSEL
M. A. F. Ribeiro, Senior State Attorney, for the applicants.
C. B. K. Zwennes for the respondents.
JUDGMENT OF ABBAN J.
The applicants as the co-defendants have moved the court under Order 12, r. 24 of the Supreme [High] Court (Civil Procedure) [p.8] of [1972] 2 GLR 6 Rules, 1954 (L.N. 140A), for an order setting aside the service of the writ of summons effected on them.
Their main ground is that the action is statue-barred. The said rule reads as follows:
“A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a
conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service.”
The first, second and third plaintiffs together with three other persons were passengers on a vehicle driven by the second defendant. The said vehicle collided with a train at the railway level crossing at Alajo, Accra; and as a result the first, second and third plaintiffs sustained injuries, but the other three passengers were killed. The first, second and third plaintiffs therefore instituted the present action claiming damages for personal injuries. The fourth, fifth and sixth plaintiffs, as the personal representatives of those three deceased persons, are also claiming damages for and on behalf of the dependants of the said deceased persons. The action was originally brought against the first and second defendants but on the application of the plaintiffs, the court joined the Ghana Railway and Ports Authority as co-defendants. The writ of summons, the statement of claim and all the other relevant documents were served on the co-defendants in pursuance of the order for joinder. The co-defendants hereinafter called the Railway and Ports Authority then entered conditional appearance and filed the present motion.
Learned counsel for the Railway and Ports Authority, in his argument, contended that having regard to section 90 (1) of the Railways Ordinance, Cap. 233 (1951 Rev.), the action is statute-barred, since it was not brought within six months after the date of the commencement of the cause of action. He relied on certain English cases some of which will be referred to in due course. The next submission of learned counsel for the Railway and Ports Authority was that the action is not maintainable against them because they are not a legal entity capable of being sued. Counsel argued that the general manager of the Railway and Ports Authority was the person who should have been sued having regard to section 89 (2) of Cap. 233, and that the action ought to be struck out as against the co-defendants.
In his reply, learned counsel for the plaintiffs contended that the Railway and Ports Authority were served with the motion for joinder, but they never opposed it. Counsel therefore submitted that they should be deemed to have waived their protection, if any, under section 90 (1) of Cap. 233. Learned counsel also contended that the Railway and Ports Authority did not plead the section timeously and, in the circumstances, they should be estopped from raising it now. It was again argued on behalf of the plaintiffs that the Civil Liability Act, 1963 (Act 176), as subsequently amended by the Civil Liability Act, 1963 (Amendment) Decree, 1968 (N.L.C.D. 322), extends to all civil causes of action in
[p.9] of [1972] 2 GLR 6 which damages are claimed for personal injuries or for death due to negligence, and that Act 176 and N.L.C.D. 322 have removed all causes of action of this nature from the ambit of the Railways Ordinance, Cap. 233. Counsel therefore submitted that the said Ordinance is no longer effective or operative and cannot be relied upon by the Railway and Ports Authority. As regards the other contention of the Railway and Ports Authority, learned counsel for the plaintiffs submitted that the Railway and Ports Authority are a legal entity and can be sued; and, in any case, the court has power under Order 16, r. 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to substitute the proper person, namely, the General Manager of the Railway and Ports Authority.
The arguments advanced in this application have raised certain fundamental questions of some
importance, namely, whether section 90 (1) of the Railways Ordinance, Cap. 233, is in conflict with
section 16 (1) and (6) of the Civil Liability Act, 1963 (Act 176), as amended by N.L.C.D. 322 and should therefore be considered as repealed by implication by the latter Act. Or whether section 90 (1) of Cap.
233 is still effective and the Railway and Ports Authority should be allowed to take advantage of the
shorter period of limitation provided under the said section.
Section 16 (1) of the Civil Liability Act, 1963(Act 176), provides that:
“Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.” Section 16 (6) of Act 176 also provides that, “the action shall be commenced within three years after the death.” In the case of personal injuries, by virtue of section 30A of the Act (see the Civil Liability Act, 1963 (Amendment) Decree, 1968 N.L.C.D. 322), the period of limitation is also three years.
Consequently, under Act 176 as amended by N.L.C.D. 322, whether the negligence, default or the
omission results in death or in physical injuries, the action by the personal representative of the deceased or by the injured party will not become statute-barred until after three years from the date of the accrual of the cause of action.
The accident in the present case occurred on 12 June 1969. The writ of summons was issued on 16 July 1970. The Railway and Ports Authority were joined on 15 November 1971, and copies of the writ and the pleadings were served on the Railway and Ports Authority on 5 December 1971. It is therefore clear that the writ was issued more than one year after the date of the commencement of the cause of action, and the Railway and Ports Authority were made a party to the suit after more than two years, but within three years after 12 June 1969, [p.10] of [1972] 2 GLR 6 the date on which the cause of action accrued. So that under Act 176, as amended, the plaintiffs’ action is not statute-barred. But it is statute-barred if the provisions of section 90 (1) of the Railways Ordinance, Cap. 233, are applicable, because the period of limitation prescribed by that section is six months. That section reads, “No action shall be brought against the railway administration unless the same be commenced within six months after the cause of action arose.” This Ordinance came into force on 1 July 1935, and was still in force in 1963 when Act 176 was passed. Sections 36, 37, and 39 of Act 176 and the Schedule thereto show the repeal and amendments of a number of scattered statutory provisions dealing with causes of action arising out of negligence, default and so on; prominent amongst them is an English Act, the Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), which before 1963 was applicable to Ghana. But nothing was said about the Railways Ordinance, Cap. 233, in those repealing sections of Act 176 referred to above.
However, can it be argued that Act 176 repealed section 90 (1) of Cap. 233 by implication? It is an
elementary rule that an earlier statute must give way to a later, if the provisions of the later enactment are so inconsistent with, or repugnant to those of the earlier that the two cannot be reconciled; and one Act may repeal another expressly or by implication. It is enough if there are words which by necessary implication repeal it. Repeal by implication was clearly regarded as possible by the court in Wyatt v. Gems [1893] 2 Q.B. 225; and in the case of Sheffield Corporation v. Sheffield Electric Light Co. [1898] 1 Ch. 203, such repeal was held to have taken place. But it seems to me that a repeal by implication is often looked upon with disfavour and is not imputed to the legislature without necessity or strong reason being shown by the party imputing it: See Lybbe v. Hart (1885) 29 Ch.D. 8 at p. 15, C.A. per Chitty J. and the dictum of Lord Bramwell in Great Western Railway Co. v. Swindon and Cheltenham Extension Railway Co. (1884) 9 App.Cas. 787 at p. 809, H.L.
In the instructive judgment of Farwell J. in Re Berrey; Lewis v. Berrey [1936] Ch. 274, the learned judge at p. 279 said: “It is well settled that the Court does not construe a later Act as repealing an earlier Act unless it is impossible to make the two Acts or the two sections of the Act stand together, i.e. if the section of the later Act can only be given a sensible meaning if it is treated as impliedly repealing the section of the earlier Act.
In my judgment there is no such impossibility in this case.”
I must observe that this statement of the law was referred to with approval by Murphy J. in Tsiboe v.
Kumasi Municipal Council [1959] G.L.R. 253.
Bearing these principles in mind, I have considered the two statutes—Act 176 and Cap. 233—side by
side, and I have come to the conclusion that their objects are different and their provisions do not conflict.
They [p.11] of [1972] 2 GLR 6 run in parallel lines without meeting and they should be read together. Consequently, I hold that it is not necessary in this case to imply a repeal of section 90 (1) of Cap. 233. My view is that the legislature when passing Act 176 intentionally left section 90 (1) of Cap. 233 untouched, in order that it will continue to give special protection to the Railway and Ports Authority. In the circumstances, the co-defendants are entitled to rely on the shorter period of limitation prescribed by section 90 (1) of Cap. 233. In Gawley v. Belfast Corporation [1908] 2 I.R. 34, C.A. cited by the learned counsel for the co-defendants, an action was brought by a widow under the Fatal Accidents Act, 1846. Her husband was injured on 13 June 1906 and the husband brought the action against the defendants on 30 July of the same year. He however died on 28 February 1907. His widow brought her action in April 1907. The defendants, a statutory corporation, pleaded that her action had not been brought within six months from the date of the alleged action of negligence and that it was barred by the Public Authorities Protection Act, 1893 (56 & 57 Vit., c. 61). The Irish Court of Appeal, in a unanimous judgment, held that the defendants’ plea was valid and that the action failed. Another case of some interest is that of Carey v. Bermondsey Metropolitan Borough (1903) 67 J.P. 111.
The plaintiff had been injured by falling over a projection in the road which had been put there through the negligence of the servants of the defendants. The fall and the injury occurred more than six months before action was brought. At the time the action was brought, the plaintiff was still suffering from the injury. The defendants pleaded the Public Authorities Protection Act, 1893, s. 1 (a). Channel J. held at p. 111 that the action was statute-barred, not having been brought “within six months next after the act, neglect or default complained of.” This decision was affirmed by the Court of Appeal in England, and was later followed by the same Court of Appeal in Freeborn v. Leeming [1926] 1 K.B. 160, C.A.
The decisions in the cases just cited seem to imply that in an action under the Fatal Accidents Act, 1846, against defendants to whom the Public Authorities Protection Act, 1893, is otherwise applicable, the time limit within which the action can be brought is that limited by the latter and not that limited by the former Act. Section 1 (a) of the Public Authorities Protection Act, 1893, and section 90 (1) of Cap. 233, with which we are concerned in this case, have substantial similarity. As for Act 176, it more or less succeeded the Fatal Accidents Act, 1846. I am therefore of the opinion that the principles laid down in those English and Irish cases should apply with equal force in the present case. In the circumstances, I hold that inasmuch as the writ of summons in the case herein was not issued till more than six months had elapsed after 12 June 1969, the date on which the cause of action accrued, the action is statute-barred in view of section 90 (1) of the Railways Ordinance, Cap. 233, so far as the Railway and Ports Authority are concerned; and that the wider limit of time, that is, the three years [p.12] of [1972] 2 GLR 6 provided under Act 176 as amended, will not apply where the defendants, or the co-defendants, are the Ghana Railway and Ports Authority.
I think the other contention that the Railway and Ports Authority did not plead Cap. 233 timeously is
untenable, because they brought the present application at the first available opportunity. In any case, it appears to me that section 90 (1) of Cap. 233 has been expressed in terms which make one wonder whether the section permits the party entitled to the benefit thereof to exercise a discretion to waive it. Be that as it may, the conduct of the Railway and Ports Authority did not amount to a waiver. Furthermore, it must be remembered that the section was intended for the protection of the railway administration where they are defendants. In other words, it was designed to protect the railway administration from the consequences of torts committed by their servants where six months have elapsed after the commission of the act in question. Thus, the true construction of that section, I think, is that six months after the date on which the cause of action arose, no suit or action will lie or can be maintained against the railway administration. So that unless the delay was due to fraud on the part of the railway administration, the question of estoppel cannot also arise.
I will briefly deal with the argument of learned counsel for the Railway and Ports Authority that they are not a legal entity. The fallacy of this contention is exposed by section 89 (1) of the Railways Ordinance, Cap. 233. This section makes it abundantly clear that the railway administration can be sued, “notwithstanding, any law for the time being in force relating to suits by or against the Government.” The procedure as to how they can be sued is what is laid down in section 89 (2) which, in substance, provides that in suing the railway administration, the general manager should be made the nominal defendant and the fact that the plaintiffs herein joined the Railway and Ports Authority instead of their general manager, cannot deprive them of their legal entity which has in fact been entrenched in the said section 89 (1) of the Railway Ordinance, Cap. 233.
I would have therefore exercised my powers under Order 16, r. 11 of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A), and have substituted the said general manager for the Railway and Ports Authority if the proceedings against them had been instituted within the statutory period of six months: See Ohene v. Principal Secretary, Ministry of Finance [1971] 1 G.L.R. 102 at p. 104 per
Hayfron-Benjamin J.
For the reasons given above, the Railway and Ports Authority’s application will be granted. The action against them will be and is hereby struck out.
DECISION
Application granted.
S.O.
