KONADU AND ANOTHER v. ATTORNEY-GENERAL [1971] 1 GLR 130

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 22 DECEMBER 1970

BEFORE: ABOAGYE J.

CASES REFERRED TO

(1) Buobuh v. Minister of Interior [1971] 1 G.L.R. 127; digested in (1971) C.C. 24.

(2) Broom v. Morgan [1953] 1 Q.B. 597; [1953] 2 W.L.R.737; 97 S.J. 247; [1953] 1 All E.R. 849, C.A.

(3) Midland Silicones Ltd. v. Scruttons Ltd. [1961] 1 Q.B. 106; [1960] 3 W.L.R. 372; [1960] 2 All E.R. 737; 104 S.J. 603; [1960] 1 Lloyd Rep. 571, C.A.

(4) Bartonshill Coal Co. v. McGuire (1858) 3 Macqueen 266; 31 L.T. (o.s.) 255; 22 J.P. 560; 4 Jur. (N.S.) 767, H.L.

[p.131] of [1971] 1 GLR 130

NATURE OF PROCEEDINGS

RULING on the preliminary objection taken by the defendant on the grounds that the plaintiff’s action was statute-barred.

COUNSEL

U. V. Campbell for the plaintiffs.

N. M. C. Dodoo, Principal State Attorney, for the defendant.

JUDGMENT OF ABOAGYE J.

The plaintiffs, cloth sellers, have sued the Attorney-General as the representative of the Republic of Ghana for “the sum of N¢28,750.00 being the value of 1,250 pieces of cotton wax prints (cloths) the property of the plaintiffs unlawfully seized, detained and or converted by the defendant.” The facts which gave rise to this suit are clearly set out in paragraphs (3) – (9) inclusive of the statement of claim. The said paragraphs read as follows:

“(3) The plaintiffs acting jointly and together proceeded from Kumasi to Kpandu in the Volta Region some time in and around 31 March 1968 and there purchased in the local market various pieces of wax print totalling in number 1,250 pieces at a total cost of N¢28,750.00.

(4) The plaintiffs after effecting their purchases of wax prints at Kpandu caused the said wax prints to be put on vehicle No. ER 1889 driven or in the charge of one F. K. Darko for delivery at Kumasi with the first plaintiff Amma Konadu accompanying and in charge of the said goods.

(5) On reaching somewhere between Asesewa and Adukrom, Akwapim, one Inspector R. A. Nutsugah and Corporal D. K. Ahiabu intercepted and stopped the vehicle ER 1889 with the passengers and goods thereon.

(6) The said Inspector R. A. Nutsugah and Corporal D. K. Ahiabu were at the material time the servants and agents of the defendant acting as a border guard anti-smuggling patrol in the course of their employment with the said defendant.

(7) The said Inspector R. A. Nutsugah and Corporal D. K. Ahiabu without any explanation caused and procured the first plaintiff to be put on a taxi cab and sent to Koforidua and thereafter caused the vehicle ER 1889 to be escorted to Tema with the driver F. K. Darko.

(8) The plaintiffs on or about 1 April 1968, proceeded to Tema to claim their goods but were informed that the goods were being held on suspicion that they were contraband goods which plaintiffs categorically deny.

(9) The plaintiffs have repeatedly demanded the return of their goods and have repeatedly denied that they were contraband goods but to date and despite their demands the defendant has refused to deliver them up to the plaintiffs or either of them and thereby converted the same to its own use and wrongfully deprived the plaintiffs of the same.”

[p.132] of [1971] 1 GLR 130

It is clear from paragraphs (3) and (8) above that the plaintiffs’ cloths were seized on 31 March 1968, and were detained up to and inclusive of 1 April 1968, when the plaintiffs demanded their return and the defendant refused to surrender them to the plaintiffs. Exhibit 1 tendered in evidence by learned counsel for the defendant shows that the cloths were sold before 13 August 1969, the date of the exhibit. The plaintiffs’ causes of action for detinue and conversion therefore arose before 13 August 1969. The plaintiffs commenced this suit on 22 September 1970, and the defendant has pleaded in paragraph 11 (b) of the statement of defence that the plaintiffs’ action is barred by the Public Officers Act, 1962 (Act 114). It was argued on behalf of the defendant that the acts which gave cause to this suit were done by the servants of the defendant, public officers, in the execution of their public duty.

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

“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.”

The plaintiffs could therefore not commence any action in tort against the said servants of the defendant more than three months after the cause of action had arisen. Counsel for the defendant argued that the defendant had been sued essentially for alleged tortious acts of public officers acting in the course of their duties and submitted, relying on the ruling of this court in the case of Buobuh v. Minister of Interior [1971] 1 G.L.R. 127 that the liability of the defendant is vicarious and dependent on that of the servants and since any action against the servants is barred by section 2 (1) (a) of the Public Officers Act, 1962, the action against the defendant is also barred.

In his able and learned reply, Mr. Campbell for the plaintiffs submitted that the action has been brought against the Republic and not its public officers or servants and whatever immunity from action is enjoyed by the servants cannot vicariously be enjoyed by the Republic. In support of his submission counsel cited the case of Broom v. Morgan [1953] 2 W.L.R. 737, C.A. and Midland Silicones Ltd. v. Scruttons Ltd. [1960] 2 All E.R. 737, C.A. Both cases are authorities for the proposition that here is nothing like vicarious immunity at common law. Immunity has to be conferred on a person either by a statute or contract. In the former case, in which a married woman sued the employer of her husband for a tort committed on her by her husband, all the three Lord Justices of [p.133] of [1971] 1 GLR 130

Appeal, Singleton, Denning and Hodson, stated quite clearly that the immunity of a servant is personal to him and cannot cover his master. At page 745, Denning L.J. (as he then was), referred to the Bartonshill cases (1858) 3 Macqueen 266 in which the House of Lords had decided that the master’s liability was based on the principle that the servant’s act was his act, and continued to say, “If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master is not thereby absolved. The master’s liability is his own liability and remains on him notwithstanding the immunity of the servant.” At page 747, Hodson L.J. stated, “Immunity is given to the husband personally, but the immunity does not extend to the master, and the master who is vicariously responsible cannot shelter behind the servant.”

The Public Officers Act, 1962, as its preamble shows, was enacted to protect Public officers from legal proceedings in respect of liabilities incurred by them in the execution of their official duties. “Public officer” is defined by section 7 of the Act as “(a) any person in the service of the Government, (b) any person in the service of any local authority.”

The Republic of Ghana is certainly not a public officer and on the authorities of Broom v. Morgan and

Midland Silicones Ltd. v Scruttons Ltd. (supra) which I consider very sound in all respects, it cannot to borrow the words of Singleton L.J. in Broom v. Morgan, hide behind the skirts of the immunity of its servants. The effect of this ruling is a humble confession that the one I delivered only four weeks ago in Buobuh v. Minister of Interior (Supra) was wrong in so far as the suit against the Republic was concerned, but I must say that I would not have fallen into the error if I had had from Dr. Ekow Daniels the great assistance I had from Mr. Campbell.

In the result I overrule the objection that the plaintiffs’ action is statute-barred and the suit is to take its normal course.

DECISION

Objection overruled.

N. A. Y.