BUOBUH vs. MINISTER OF INTERIOR AND ANOTHER [1973]DLCA2371

Date	1973-07-16
Suit No.
Citation No.	[1973]DLCA2371

LASSEY JA

ARCHER JA

ANNAN J.A.

DR. EKOW DANIELS FOR THE APPELLANT.

N. M. C. DODOO CHIEF STATE ATTORNEY FOR THE RESPONDENTS.

[1973]DLCA2371
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													<main id="main" class="content" style="min-height: 60rem" >BUOBUH<o:p></o:p>&nbsp;vs. <o:p></o:p>MINISTER OF INTERIOR AND ANOTHER <o:p></o:p>[COURT OF APPEAL,
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;[1973]
1 GLR 304<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:
16 JULY 1973.<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">

DR. EKOW DANIELS FOR THE APPELLANT.<o:p></o:p>

N. M. C. DODOO, CHIEF STATE ATTORNEY, 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">

LASSEY, ARCHER AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 </main>