DEDE AND OTHERS vs. TETTEH AND OTHERS [1975]DLHC378

Date	1975-01-17
Suit No.
Citation No.	[1975]DLHC378

GRIFFITHS-RANDOLPH J.

YAO ASARE FOR THE PLAINTIFFS.

R. KORSAH FOR THE FIRST AND THIRD DEFENDANTS.

OSEI-BONSU FOR THE SECOND AND FOURTH DEFENDANTS.

[1975]DLHC378
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													<main id="main" class="content" style="min-height: 60rem" >DEDE AND OTHERS <o:p></o:p>vs. <o:p></o:p>TETTEH AND OTHERS<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 2 GLR 401<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:
17 JANUARY 1975.<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">

YAO ASARE FOR THE PLAINTIFFS.<o:p></o:p>

R. KORSAH FOR THE FIRST AND THIRD DEFENDANTS.<o:p></o:p>

OSEI-BONSU FOR THE SECOND AND FOURTH DEFENDANTS.<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">

GRIFFITHS-RANDOLPH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF GRIFFITHS-RANDOLPH J.<o:p></o:p>On 3
September 1973, Yao Asare &amp; Co., solicitors issued an ordinary writ of
summons on behalf of the plaintiffs against the defendants; and in it, the
former claimed general damages against the latter jointly and severally,
because of personal injuries they sustained due to the negligent driving of the
first and second defendants, who were servants or agents or both of the third
and fourth defendants respectively.<o:p></o:p><o:p>&nbsp;</o:p>Four days
after the filing of the said writ and accompanying affidavit, an appearance was
entered on behalf of the second and fourth defendants by Mr. Osei-Bonsu, who
also filed a statement of defence on 26 October 1973. An appearance was
entered, too, by Mr. Korsah for the first and third defendants on 12 November
1973; and nine days later he filed a statement of defence on their behalf. Then
a reply and summons for directions were both filed by Yao Asare &amp; Co. on 21
December 1973. The two issues in the latter were on 11 January 1974 adopted for
trial, and the first issue, namely, “Whether or not the plaintiffs’ action is
barred by lapse of time” was set down for trial as a preliminary issue at the
request of Mr. Korsah.<o:p></o:p><o:p>&nbsp;</o:p>At the
trial of that issue on 30 May 1974, Mr. Korsah said that the accident occurred
on 2 September 1970, while the suit was commenced on 3 September 1973, so that
the action was statute-barred, because section 3 (1) of the Limitation Decree,
1972 (N.R.C.D. 54), provided that the action should be brought within three years,
i.e. in this case during the period 2 September 1970 to 1 September 1973; also
that the plaintiffs were therefore two days out of time; and that since the
Decree uses the words “shall not be brought after the expiration of three years
from the date on which the cause of action accrued” it is imperative, therefore
that the action should be dismissed with costs.<o:p></o:p><o:p>&nbsp;</o:p>He also
said he disagreed with the plaintiff’s counsel that 1 and 2 September 1973 were
dies non; and he contended that the question of time running relates not to the
periods of time set down in enactments, but only to periods of time set down in
the rules of court, so that the three years in N.R.C.D. 54 was a period of 36
months, adding that the position was made clear by section 23 (4) of the Interpretation
Act, 1960 (C.A. 4). He explained, too, that a writ of summons may be filed at
any time even during the vacation; but if it is served during the vacation,
time does not run against the defendant who is required to file an appearance
within eight days, until the High Court resumes.<o:p></o:p><o:p>&nbsp;</o:p>In reply
to the above, Yao Asare said he agreed that the accident occurred on 2
September 1970, and the writ was issued on 3 September 1973 but that he
disagreed that the action was barred by the Limitation Decree. He referred to
Order 64, r. 3 of the High Court (Civil Procedure) Rules, 1954 (LN. 140A), and
contended that as 1 September 1973 and 2 September 1973 were a Saturday and a
Sunday, when the offices of the court were not open to the public for legal
business to be transacted, the writ filed on 3 September 1973 was to be
regarded as having been duly taken out. He also said that section 32 of the
Interpretation Act, 1960 (C.A. 4), defined an “enactment” as “an Act or
statutory instrument, or any provision of an Act or statutory instrument,” so
that the rules of court formed a statutory instrument, having been made under
the Courts Ordinance, Cap. 4 (1951 Rev.), and that they had the same strength
as the Decree, since like the Decree they formed an enactment.<o:p></o:p><o:p>&nbsp;</o:p>