AMOA AND ANOTHER vs. ABEKA [1976]DLCA349

Date	1976-02-24
Suit No.
Citation No.	[1976]DLCA349

APALOO J.A

ANIN J.A

FRANCOIS J.A.

LOKKO FOR THE APPELLANTS.

SACKEYFIO FOR THE RESPONDENTS.

[1976]DLCA349
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													<main id="main" class="content" style="min-height: 60rem" >AMOA AND ANOTHER<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;ABEKA<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 441<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:
24 FEBRUARY 1976/<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">

LOKKO FOR THE APPELLANTS.<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">

APALOO, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>At about
5.30 a.m. on 13 February 1967, an accident took place at Nsaba on the Oda-Nsaba
road. The first appellant, who was then driving vehicle No. GE 6148, knocked
down and instantly killed a pedestrian, one Madam Ama Kate Gyaduah. She was
then carrying on her back her baby boy Kofi Yesu. He died with his mother. On
the third anniversary of their deaths, that is 13 February 1970, the
respondent, who claims to be the administrator of the estates of both deceased,
issued against both appellants a writ claiming damages for the benefit of the
estates of the deceased.<o:p></o:p><o:p>&nbsp;</o:p>The first
appellant was sued as the tortfeasor and the second appellants who were owners
and masters of the first appellant were sued on the principle of respondent
superior. It was alleged that the accident occurred through the negligent
driving of the first appellant. Both appellants filed a defence in which they
denied negligence. They said the deceased crossed the road in a curve so
suddenly that it was impossible to avoid a collision. Accordingly, the
appellants pleaded that either the adult deceased was the author of her own
fate or at any rate contributed to it. In the penultimate paragraph of the
defence, the appellants also pleaded that:<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">“the
action is statute-barred by reason of the fact that the action was not
commenced within three years after the death of Ama Kate Gyaduah and her child
in accordance with the provisions of the Civil Liability Act.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The
respondent denied that the action was taken outside the statutory period and
pleaded that “it is within and not outside the three-year period as provided
for in the Civil Liability Act, 1963 (Act 176).” At the request of the parties,
this issue was set down for preliminary argument because it was conceded that
if the appellants were right in their interpretation of the relevant statute,
the suit ought to be dismissed in limine.<o:p></o:p><o:p>&nbsp;</o:p>On 17
January 1973, rival argument was addressed to the court by counsel on the true
meaning and correct application of section 16 (6) of the Civil Liability Act,
1963 (Act 176), on which reliance was placed. That subsection provides that,
“The action shall be commenced within three years after the death.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge, Edward Wiredu J., examined the rival contentions with
great care, He sought but found no assistance from any decided case in this
country. He said he was accordingly thrown back on text-writers and English
case law. Having examined them alongside the provisions of our Civil Liability
Act, 1963 (Act 176), and the Interpretation Act, 1960 (C.A. 4), he came to the
conclusion that “the plaintiff’s action is within time.” He therefore ruled
that the preliminary objection failed and ordered that hearing should proceed
on its merits. The appellants invite us to say that that ruling was wrong and
should be reversed.<o:p></o:p><o:p>&nbsp;</o:p>In coming
to the conclusion that the action was not barred by statute, the learned judge
professedly followed the decisions of Havers J. in Marren v. Dawson Bentley
&amp; Co., Ltd. [</main>