HIGH COURT, SEKONDI
Date: 13 MAY 1974
CHARLES CRABBE J
CASES REFERRED TO
(1) Lewis v. Hughes [1916] 1 K.B. 831; 85 L.J.K.B. 1019; 114 L.T. 643; 80 J.P. 265; 60 S.J. 367, C.A.
(2) The Ydun [1899] P. 236; 68 L.J.P. 101; 81 L.T. 10; 15 T.L.R. 361; 8 Asp.M.L.C. 551, C.A.
(3) Watton v. Watton (1866) L. R. 1 P. & D. 227.
NATURE OF PROCEEDINGS
PRELIMINARY RULING on whether the plaintiff s action for damages commenced after the repeal of section 19 (1) of Act 358 by N.R.C.D. 54 was statute-barred.
COUNSEL
K. E. Amua-Sekyi for the plaintiff.
Carson for the defendants.
JUDGMENT OF CHARLES CRABBE J
The plaintiff is claiming from the defendant corporation damages for the death of one Araba Boani her daughter. It is alleged that on 4 October 1972 one Solomon Kwao Ankatsia, servant or agent of the defendant corporation, negligently knocked Araba Boani down on the Takoradi-Tarkwa road near the junction leading to Egyam.
The defendant corporation denied liability and pleadings took their normal course, the issues to be tried being agreed upon. Counsel agreed also that there was a preliminary legal issue which should be determined before evidence was heard. The issue is whether the action is statute-barred?
Counsel for the defendant corporation contended that on the writ it did appear that the cause of action arose on 4 October 1972, the day of the accident. Under subsection (1) of section 19 of the Railway and Ports Act, 1971 (Act 358), there was a period of limitation up to twelve months within which the action ought to have been brought. The writ was filed on 12 November 1973, outside the period limited by the Railway and Ports Act, 1971.
[p.260] of [1974] 2 GLR 258
The Limitation Decree, 1972 (N.R.C.D. 54), came into operation on 1 January 1973, that is, two months after the cause of action arose. The Limitation Decree, 1972, repealed section 19 of the Railway and Ports Act, 1971. But he submitted that the Limitation Decree, 1972, did not affect any cause of action which arose before it came into force. It applied only to causes of action which arose after 1 January 1973. The law thus in force at the time the cause of action arose should be the law to govern the matter. He relied on Maxwell on Interpretation of Statutes (12th ed.) at p. 215, and on Lewis v. Hughes [1916] K.B. 831, C.A. He thought that the provisions of section 33 of the Limitation Decree, 1972, did not help the plaintiff.
Counsel for the plaintiff argued that the presumption against retrospective application of statutes did not apply to matters which affect practice and procedure. In matters of procedure the law was that all alterations were retrospective unless a contrary intention appeared in the statute concerned. Statutes limiting time within which an action could be brought or specific steps taken and action brought before the courts belonged to the class of statutes affecting procedure and, therefore, such statutes were retrospective. He concluded by citing The Ydun [1899] P. 236 at pp. 241 and 246, C.A. and Watton v. Watton (1866) L.R. 1 P. &.D. 227.
The provisions of section 19 of the Railway and Ports Act, 1971 (Act 358), provide for a period of six months in the case of the railways or twelve months in the case of the ports, within which a suit could be brought against the authority. I would want to emphasize the word “within.” They also require that one month’s written notice, at least, shall be given before an action is brought against the authority.
Counsel for the authority conceded that for the purposes of this case the twelve month period would be applicable. The accident in respect of which the cause of action arose occurred on 4 October 1972. At that date the law applicable, in so far as time is concerned, was subsection (1) of section 19 of the Railway and Ports Act, 1971.
Since the cause of action arose on 4 October 1972, the plaintiff had, as at that time, twelve months within which to bring her action against the authority. Time began to run as from 4 October 1972. For, as at that date, there was a complete cause of action against the authority.
I had indicated earlier that I would want to emphasize the word “within.” I do so because, in my view, much of the essence of subsection (1) of section 19 of the Railway and Ports Act, 1971, depends upon the construction of that word for the purposes of this case. It seems to me that the word “within” in the context connotes a period of time during which an action against the authority could be brought. Thus, when on 4 October 1972, the cause of action against the authority became complete, the plaintiff in this action acquired a right to sue the authority by virtue of the alleged negligence of a servant of the authority.
That right, because it had to be exercised within twelve months became a right which could be exercised at any time during the period of twelve months stated, and immediately before the expiration of that period. It was then a continuous right—a right to sue the authority which did not
[p.261] of [1974] 2 GLR 258
abate in time or in sequence so long as the twelve month period continued to last. The plaintiff had the right to sue the authority any day during the twelve month period. That twelve month period was to last, under the provisions of subsection (1) of section 19 of the Railway and Ports Act, 1971, up to 3 October 1973.
When on 1 January 1973, the Limitation Decree, 1972, came into force, the right of the plaintiff to sue the authority had not abated. The period within which the plaintiff could sue had not run out. The plaintiff still had some nine months within which to exercise her right. Section 35 of, and the First Schedule to, the Limitation Decree, 1972, repealed subsection (1) of section 19 of the Railway and Ports Act, 1971.
The Limitation Decree, 1972, also provides by paragraph (a) of section 33 that:
“Nothing in this Decree shall —
(a) enable any action to be brought which was barred by the law in force in Ghana immediately before the commencement of this Decree except insofar as the cause of action may be revived by an acknowledgment or part payment given or made in accordance with Part II of this Decree, . .
On 1 January 1973, when the Limitation Decree came into force, the cause of action of the plaintiff in this case was not a cause of action which is covered by the exception regarding acknowledgment or part payment. Nor, even so, had there been a lapse as far as the plaintiff is concerned which had been revived or could be revived in accordance with the provisions of Part II of the Decree.
Equally, the action of the plaintiff against the authority was not barred by any law in force in Ghana immediately before 1 January 1973. The law in force in Ghana immediately before the commencement of the Limitation Decree, 1972 was subsection (1) of section 19 of the Railway and Ports Act, 1971, relative to which the plaintiff had nine months within which to sue the authority as at 1 January 1973. Under the Railway and Ports Act, 1971, the cause of action which had accrued against the authority had not, on I January 1973, been barred so as to debar the plaintiff from suing the authority. The right of the plaintiff to sue the authority, was not thus extinguished by the repeal of subsection (1) of section 19 of the Railway and Ports Act, 1971.
It is a continuous right. And being a continuous right all that the Limitation Decree, 1972, has done is to substitute for the period of twelve months in favour of the plaintiff, a longer period of three years by virtue of the provisions of subsection (1) of section 3 of the Limitation Decree, 1972.
Nor do the provisions of section 8 of the Interpretation Act, 1960 (C.A. 4), help the authority. For under paragraph (c) of subsection (1) of that section, the repeal of section 19 (1) of the Railway and Ports Act, 1971, did not affect the right or privilege of the plaintiff to sue the authority “acquired and accrued” under the repealed enactment, nor did that repeal affect the obligations or liabilities of the authority “acquired,
[p.262] of [1974] 2 GLR 258
accrued or incurred there “under” that is, the provisions section 19 (1) of the Railway and Ports Act, 1971.
By virtue, also, of the provisions of paragraph (e) of subsection (1) of section 8 of the Interpretation Act, 1960, the “remedy in respect of’ the right to sue the authority and the obligation or liability of the authority to be sued by the plaintiff were not affected. And so the plaintiff has the right to enforce his remedies which are attendant upon the right to sue the authority.
It should be noted that the provisions of subsection (1) of section 19 of the Railway and Ports Act, 1971, under which the right to sue could be enforced only dealt with the period within which an action could be brought. They did not deal with the determination of questions as to whether the right to sue existed or did not exist; what steps a plaintiff must take before he exercises his rights—that is dealt with by subsection (2) which subsection is not in issue. Subsection (1) of section 19 also did not create a right for the benefit of the plaintiff. The right of the plaintiff to sue is independent of the provisions of that subsection. As already indicated, it provided a period within which a right acquired not under the Act could be exercised. Its repeal could, if at all, only affect the exercise of the right and not the existence of the right itself. But the repeal did not affect that right.
Since the plaintiff still had the right to sue the authority, as at 1 January 1973, the effect of the Limitation Decree, 1972, as regards the plaintiff is that the plaintiff now has a longer period of three years as from 4 October 1972, during which she could, if she so wishes, sue the authority. That right she exercised on 12 November 1973, when she issued the writ against the authority. Her right to sue would have been extinguished by 3 October 1975.
Even if it is argued that the right of the plaintiff to sue was acquired under the repealed subsection (1) of section 19 of the Railway and Ports Act, 1971, the plaintiff is still safe. For I conceive it as good law that if a right is acquired under a statute, the repeal of the statute under which the right is acquired does not rob the person in whom is vested that right, of the right so acquired. As Puffendorf puts it in his Law of Nature and Nations Bk. 1, ch. 6, s. 6 [as quoted in Craies v on Statute Law (6th ed.), p. 413]:
“The law itself, may be disannulled by the author, but the right acquired by virtue of that law whilst in force must still remain; for, together with a law, to take away all its precedent effects would be a high piece of injustice.”
The repeal, then of subsection (1) of section 19 of the Railway and Ports Act, 1971, did not impair, nor did it take away, the existing right of the plaintiff to sue the authority. If anything, by the algebraic philosophy of elimination by substitution, the Limitation Decree, 1972, may be said to have enhanced the existing right of the plaintiff to sue the defendant corporation, in that it had given the plaintiff three years within which to sue the authority.
[p.263] of [1974] 2 GLR 258
No arguments of retrospectivity need be raised. And as for the prospective operation of the Limitation
Decree, 1972, all I can say is to emphasize, once again, that none of its provisions extinguishes or is intended to extinguish any existing right, howsoever acquired. I thus come to the conclusion that the action of the plaintiff is not statute-barred.
DECISION
Preliminary objection overruled.
S.E.K.
