BUOBUH vs. MINISTER OF INTERIOR AND ANOTHER [1973] 2 GLR 304

CASES REFERRED TO

(1) Konadu v. Attorney-General [1971] 1 G.L.R. 130.

(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 Lloyds Rep. 571, C.A.

(4) Tobin v. R. (1864) 16 C.B. (N.S.) 310; 33 L.J.C.P. 199; 10 Jur. (N.S.) 1029; 10 L.T. 762; 12 W.R.

838.

(5) Raleigh v. Goschen [1898] 1 Ch. 73; 67 L.J.Ch. 59; 77 L.T. 429; 46 W. R. 90.

NATURE OF PROCEEDINGS

APPEAL against the ruling of the High Court, Accra, that the plaintiff’s action for damages for an alleged assault committed by two prison officers was statute-barred.

COUNSEL

Dr. Ekow Daniels for the appellant.

N. M. C. Dodoo, Chief State Attorney, for the respondents.

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JUDGMENT OF ARCHER J.A.

The plaintiff, a prison officer, employed by the State, claimed damages for assault and battery committed on him by two fellow prison officers on 23 January 1967 at the Ussher Fort Prison, Accra. His writ of summons was issued originally against the Minister of Interior but later on he applied to join the Attorney-General also as a defendant. There is no doubt that these two defendants were sued as representatives of the plaintiff’s employers, that is, the State.

By their statement of defence, the defendants pleaded that on the day of the alleged assault and battery, there was a struggle between the plaintiff and the other two prison officers for the recovery of a letter which the plaintiff had put into his mouth to chew in order to prevent the other officers from reading it, and in their attempt to retrieve the letter from the plaintiff’s mouth, no more force was applied in the attempt than was necessary in the circumstances.

When the trial commenced, the defendants submitted that as the prison officers who were alleged to have committed the assault were public officers, the writ of summons should have been issued within three months of the act complained of, that is from 23 January 1967. But as the writ was issued on 7 February 1970, the action was statute-barred by virtue of section 2 (1) (a) of the Public Officers Act, 1962 (Act 114). The plaintiff, on the other hand, maintained that his action was against the government under article 170 of the Constitution, 1969, now suspended, and not against the two prison officers.

In his ruling, the learned High Court judge, sitting at Accra, was of the opinion that the first defendant (the Minister of the Interior) was a public officer and therefore the action was barred by Act 114. As regards the second defendant (the Attorney-General) the learned judge was of the opinion that as the alleged tortfeasors were also public officers, there was no liability attaching to them for which the Republic could be vicariously liable. The court below therefore dismissed the plaintiff’s claim.

Four weeks later, a similar case came before the High Court at Accra (see Konadu v. Attorney-General [1971] 1 G.L.R. 130) and the same learned judge, with unrestrained candour confessed that his earlier ruling in the present plaintiff’s case was wrong. Learned counsel for the plaintiff in this appeal now relies on the judgment in Konadu v. Attorney-General (supra). One would have thought that as the court below has rightly taken the wind out of the sails of this court, that should have ended the matter but learned counsel for the defendants thought otherwise and maintained that the Public Officers Act, 1962, applied to the defendants when the writ of summons was issued. The Limitation Decree, 1972 (N.R.C.D. 54), has repealed paragraphs (a) and (b) of section 2 (1) of the Public Officers Act, 1962, and the question now is whether it is worth writing a long judgment on statutory provisions which are now dead wood. However, in view of the uncompromising stand taken by the learned state attorney in the court below and in this court, an effort should be made to demonstrate that the learned state attorneys are patently wrong in their submissions.

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In the Konadu case, reliance was placed on the two English cases of Broom v. Morgan [1953] 1 Q.B. 597, C.A. and Midland Silicones Ltd. v. Scruttons Ltd. [1960] 2 All E.R. 737, C.A. which re-affirmed the principle that the common law immunity of a servant cannot be enjoyed by his master or employer when the latter is sued. I do not consider these two cases very relevant because they deal respectively with common law doctrines that (1) husband and wife cannot sue each other in tort because they are regarded as one person and (2) a person who is not a party to a contract is not entitled to the benefit of a term of the contract.

In the present appeal, the subject-matter is an express statutory limitation in favour of specified persons and the question is whether the defendants fall within the class of those specified persons. My own approach is to trace the legislative antecedents of the Public Officers Act, 1962 (Act 114). The first enactment in this country was the Public Officers’ Protection Ordinance, 1895 (No. 2 of 1895) subsequently re-enacted as Cap. 27 (1951 Rev.), section 2 of which reads:

“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 ordinance or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such ordinance, duty, or authority, the following provisions shall have effect⎯ (1) 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 case of a continuance of injury or damage, within three months next after the ceasing thereof …”

Why was the 1895 Ordinance passed? Bracton is reported to have said in the year 1234:

“Our lord King cannot be summoned or receive a command from anyone.’ This doctrine is expressed today by the statement that ‘The King can do no wrong’. The Crown is not therefore liable to be sued in tort, and this immunity protects the Crown from liability for acts done by the servants of the Crown; for if the King is not liable for personal negligence he cannot be brought under the ordinary rule by which a principal is liable for the acts of his agent, viz. qui facit per alium facit per se.”

(See Robinson’s Public Authorities and Legal Liability, p. 6.)

As a result of this common law doctrine it was held in Tobin v. R. (1864) 10 L.T. 762 that a petition of right will not lie to recover compensation for the wrongful act of a servant of the Crown in the supposed performance of his duty. The remedy is against the person who did the wrong. The raison d’etre for this doctrine was explained by Erle C.J. in the Tobin case at p. 764 as follows:

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“‘The King can do no wrong,’ which ancient and fundamental maxim is not to be understood as if every transaction by the Government was of course just and lawful, but means only two things: first, whatever is exceptionable in the conduct of public officers is not to be imputed to the King, nor is he answerable for it personally to his people; for this doctrine would destroy the constitutional independence of the Crown; and secondly, that the prerogative of the Crown extends not to do any injury.”

This common law doctrine undoubtedly applied in this country until Ghana became a Republic in 1960. Until the Crown Proceedings Act, 1947 (10 & 11 Geo. 6, c. 44), was passed in England, servants of the Crown were personally liable for torts committed by them in the performance of their duties. However, in order to protect these public officers various statutes were passed from 1601 to 1890 imposing a time limit within which action should be brought, the venue for the trial and the costs to be awarded if the plaintiff lost his action. In 1893 the Public Authorities Protection Act, 1893 (56 & 57 Vict., c. 61), was passed in England and its preamble reads: “An Act to generalize and amend certain statutory provisions for the protection of persons acting in the execution of statutory and other public duties.” The 1893 Act repealed the diverse provisions in 107 enactments listed in the schedule to the Act, that is, from the Poor Relief Act, 1601 (43 Eliz. 1, c. 2), to the Inland Revenue Regulation Act, 1890 (53 & 54 Vict., c. 21). A cursory glance through some of these enactments indicates that they were meant to protect, for example, justices of the peace, jurors and juries and bailiffs in inferior courts and a variety of persons who discharged public duties. The majority of these Acts were passed before 1875 and some of them might have applied to this country as statutes of general application. After the English Act of 1893 had been enacted, the local Public Officers’ Protection Ordinance of 1895 was passed and section 2 is an almost complete plagianism of section 1 of the English Act, except that instead of six months, a three month limitation was imposed.

Before Ghana’s Republican Constitution in 1960, public officers were servants of the Crown and because the Crown could not be sued for the acts and defaults of its servants, the Public Officers’ Protection Ordinance 1895 was passed to impose a time limit within which an action could be brought against public officers. The Public Officers Act, 1962 (Act 114), repealed Cap. 27 (1951 Rev.), but retained the statutory limitation in favour of public officers until the Limitation Decree, 1972 (N.R.C.D. 54), abolished this privilege last year. It follows that this limitation has always been in favour of public officers when they are sued personally or individually because their employers, formerly, the Crown could not be sued.

In 1877, the Petitions of Right Ordinance, 1877 (No. 12 of 1877) subsequently re-enacted by Cap. 18 (1951 Rev.) was passed to make provision relating to suits by and against the government and as to the course thereof. Section 4 of the Ordinance provides:

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“All claims against the general Government of the Gold Coast, being of the same nature as claims which may be preferred against the Crown in England by petition, manifestation, or plea of right, may, with the consent of the Minister given in accordance with the advice of the Attorney-General be preferred in the proper Divisional Court of the Supreme Court in a suit instituted by the claimant as plaintiff against the Attorney-General as defendant, or such other officer as the Minister may from time to time designate for that purpose.”

This Ordinance continued to be existing law even after Ghana became a Republic. It follows that as far back as 1877, actions against the general government of the country were regulated by one piece of legislation in which there was no special statutory limitation of time within which actions could be brought against the government. However as far back as 1895, there has been special legislation regulating actions brought against public officers for torts committed by them because their employer, the government, could not be sued on account of a common law doctrine. But in the case of these public officers, any action against them personally must be brought within three months and not afterwards or otherwise.

The State Proceedings Act, 1961 (Act 51), repealed the Petitions of Right Ordinance, Cap. 18, but re-enacted some of its provisions and laid down the procedure to be followed when an action was intended to be instituted against the Republic. Nowhere is it stated in this Act, that the action against the Republic should be brought within three months as laid down in the Public Officers Act. The State Proceedings Act, 1961, also for the first time made the Republic liable for the wrongful acts of its servants and agents acting within the scope of their office or employment. See section 3 (1) (a) of Act 51 which was repealed by the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), para. 69 because article 170 of the Constitution, 1969, had enacted similar provisions.

Notwithstanding the provisions of the State Proceedings Act, 1961, as regards the liability of the Republic for the acts of its servants, the Public Officers Act, 1962, continued to be existing law so that if a claimant chose to sue the Republic for the wrongs of its servants, the provisions of the State Proceedings Act applied, and when the claimant elected to sue the servants personally, section 2 (1) (a) of the Public Officers Act applied and the claimant had to bring his action within three months. It was only last year, when the Limitation Decree, 1972, came into force, that proceedings against the State or public officers personally became subject to the uniform periods of limitation laid down in that Decree.

What was the law when the plaintiff instituted his action in February 1970? The Constitution of the Second Republic, now suspended, was in force, and article 170 provided:

“(1) Where any person has any claim against the Government that claim may be enforced as of right by proceedings taken against

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the Government for that purpose without the grant of a fiat or the use of the process known as petition of right.

(2) The Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject (a) in respect of torts committed by its employees or agents . . .”

In February 1970, the Public Officers Act, 1962, was still in force. The plaintiff was therefore entitled to look either to article 170 of the Constitution for redress or to proceed against the two prison officers, the alleged tortfeasors, under the provisions of the Public Officers Act, 1962. He decided on the former course obviously because, if he had chosen the latter, the statutory limitation in Act 114 would have barred his claim. There is nothing in article 170 of the Constitution, 1969, which provides that the three month limitation in Act 114 shall apply to all claims against the government under article 170. Indeed section 7 of the Public Officers Act, 1962, defines a public officer to mean: “(a) any person in the service of the Government, (b) any person in the service of any local authority.” In other words for the purposes of the Public Officers Act, public officer does not include the government or the State. The two actions against the State on the one hand and against public officers on the other are different in various respects. In Raleigh v. Goschen [1898] 1 Ch. 73 at p. 81 Romer J. put it this way:

“. . . an action against the defendants in their official capacity, supposing it to lie, would differ in most material respects from an action against them as individuals, as will be seen when consideration is paid to questions of discovery, and to the form of any interlocutory injunction or final judgment that could be obtained by the plaintiffs, and as to how and against whom such injunction or judgment could be enforced.”

This distinction has been preserved by the State Proceedings Act, 1961 (see the provisions of sections 13-17 of Act 51).

When the State is sued, the State Proceedings Act, 1961, applies and as such the court has no power to grant against the Republic an injunction or to order specific performance or to order recovery or delivery of land or other property but the court may in lieu thereof make an order declaratory of the rights of the parties. Furthermore no execution or attachment can issue against the government. Whereas, when public officers are sued personally, a judgment creditor can proceed against them by way of execution or attachment of their private properties. In other words, the ordinary rules of procedure apply to them. The only exception is that under section 13 (2) of the State Proceedings Act no injunction or order shall be granted against a servant of the Republic if the effect would be to grant a relief against the Republic which could not have been obtained in proceedings against the Republic. Apart from this exception, the other provisions of the

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State Proceedings Act do not apply to public officers when they are sued personally for wrongs committed by them in their official duties. Moreover when the Attorney-General or other officer is sued as a defendant under the State Proceedings Act, he is not sued as a public officer, he merely represents the State because the State cannot be brought into the court room in flesh and bone.

So far I have attempted to show that since 1877 there has always been a special and separate procedure when the government is sued as a defendant and also, that since 1893 until last year, there has been a peculiar statutory provision which requires all actions against public officers, sued personally for wrongs committed by them in their public duties, to be commenced within three months of the act complained of. The three month statutory limitation has never applied when the government or the State is sued. It seems to me therefore that all the submissions made by the learned counsel for the defendants are not tenable and the appeal must be allowed.

Finally, I wish to point out that as the plaintiff has made it clear that his action is against the State, he can sue only one representative of the State. Section 10 (2) of the State Proceedings Act (Act 51) provides: “(2) Civil proceedings against the Republic may be instituted against 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.” There is no provision for plurality of defendants and it is not understood why the plaintiff has chosen to sue both the Minister of Interior and the Attorney-General as defendants. The preposition “or”

in section 10 (2) does not mean “and.” As there is no evidence that the Minister of Interior has been specified in any law or that he has been authorised by the Attorney-General, the provisions of section 10 (2) must prevail and in my view the Minister of Interior should be struck out as a defendant in this case. I would therefore allow the appeal and set aside the ruling of the court below and remit the case to the High Court, Accra, for trial with the Attorney-General as the sole defendant representing the State. JUDGMENT OF LASSEY J.A.

I agree.

JUDGMENT OF ANNAN J.A.

I also agree.

DECISION Appeal allowed.

Case remitted to court below for trial with Attorney- General as sole defendant.

S. E. K.