KUMAKYE vs. GHANA WATER AND SEWERAGE CORPORATION [1977]DLHC1345

Date	1977-04-20
Suit No.
Citation No.	[1977]DLHC1345

EDWARD WIREDU J.

M. BAWUMIA FOR THE PLAINTIFF.

I. MAHAMA FOR THE DEFENDANT.

[1977]DLHC1345
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													<main id="main" class="content" style="min-height: 60rem" >KUMAKYE <o:p></o:p>vs. <o:p></o:p>GHANA WATER AND SEWERAGE CORPORATION <o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1977] 2 GLR 257<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20 APRIL 1977<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. BAWUMIA FOR THE PLAINTIFF.<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">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>On 12
February 1972, the plaintiff, an infant, was drawing water from the defendant
corporation’s water tanker bearing registration number GL 3893 when it suddenly
reversed and ran over her right foot causing an extensive injury to the skin.<o:p></o:p><o:p>&nbsp;</o:p>On 3
November 1975, she brought an action against the corporation by her mother as
her next friend claiming damages for the injuries she sustained in the said
accident. She bases her claim on the negligence of the corporation’s driver.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant corporation deny being responsible for the plaintiff’s injuries and
pleaded that the accident was due to the plaintiff’s own fault. By paragraph
(5) of their statement of defence they pleaded: “The defendants say that the
action is not maintainable as it is statute-barred.”<o:p></o:p><o:p>&nbsp;</o:p>In the
summons for directions, the issue raised by paragraph (5) of the statement of
defence was agreed to and set down for determination as a preliminary
objection. In support of his objection to the plaintiff’s action, learned
counsel for the corporation submitted that, the time limit set down for
maintaining actions for personal injuries under the Civil Liability Act, 1963
(Act 176), was three years. He argued that the plaintiff’s action commenced on
3 November 1975 was well outside the statutory three-year period, and therefore
was not maintainable. When counsel’s attention was drawn to section 16 (1) of
the Limitation Decree, 1972 (N.R.C.D. 54), he argued firstly that, at the time
the accident in question happened, the Decree had not come into operation. He
argued secondly that even if section 16 (1) of N.R.C.D. 54 was applicable, the
infant should not be permitted to seek refuge under it since her mother as her
adult next friend should have brought the action within the three-year limit.
It was the contention of learned counsel that in actions by infants the proper
plaintiffs are their adult next friends. Counsel finally argued that since Act
176 on which the present action was founded made no provision for the extension
of the three-year limit analogous to section 16 (1) of N.R.C.D. 54 in favour of
infants, the action should be dismissed as unmaintainable.<o:p></o:p><o:p>&nbsp;</o:p>For the
plaintiff it was conceded that N.R.C.D. 54 did not apply and the plaintiff
therefore could not seek refuge under the extension provided by section 16 (1).
Counsel however argued that Limitation Acts are beneficial Acts and must be
construed liberally and not strictly. He argued that even though Act 176 did
not make any provision for extending the time limit within which to maintain
actions by infants in respect of personal injury claims, the general principle
of the common law has always sought to protect persons under disability.
Counsel contended that generally, such persons were always considered
incompetent to maintain actions until their disability ceased. He argued that
in the instant case, the proper plaintiff was the infant plaintiff herself and
not the person by whom she maintained her action as the next friend. He
therefore submitted as untenable the submission by learned counsel for the
defendant that in infant actions the proper plaintiffs are their adult next
friends.<o:p></o:p><o:p>&nbsp;</o:p>This case
raises for consideration the following: (a) whether an infant is incapacitated
to maintain an action as a proper plaintiff so that in claims such as the
instant case the proper plaintiff is the next friend, and (b) whether the
plaintiff’s action is unmaintainable as having become statute-barred.<o:p></o:p><o:p>&nbsp;</o:p>