GHANA RAILWAY AND PORTS AUTHORITY vs. OKAKBU AND OTHERS [1972]DLHC2221

Date	1972-03-01
Suit No.
Citation No.	[1972]DLHC2221

ABBAN J.

M. A. F. RIBEIRO SENIOR STATE ATTORNEY FOR THE APPLICANTS.

C. B. K. ZWENNES FOR THE RESPONDENTS.

[1972]DLHC2221
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													<main id="main" class="content" style="min-height: 60rem" >GHANA RAILWAY AND PORTS AUTHORITY <o:p></o:p>vs. <o:p></o:p>OKAKBU AND OTHERS <o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 2 GLR 6<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
1 MARCH 1972.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

M. A. F. RIBEIRO, SENIOR STATE ATTORNEY, FOR THE APPLICANTS.<o:p></o:p>

C. B. K. ZWENNES FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABBAN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.<o:p></o:p>The
applicants as the co-defendants have moved the court under Order 12, r. 24 of
the Supreme [High] Court (Civil Procedure) 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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p><</main>