REPUBLIC vs. HIGH COURT, KOFORIDUA; EX PARTE NSOWAA [1990]DLSC674

Date	1990-04-25
Suit No.
Citation No.	[1990]DLSC674

SOWAH C.J.

ADADE JSC

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI J.S.C

APPIAH AMPONSAH FOR THE APPLICANT.

CANN FOR THE RESPONDENTS.

[1990]DLSC674
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>HIGH COURT, KOFORIDUA; EX PARTE NSOWAA<o:p></o:p>[SUPREME COURT, ACCRA] <o:p></o:p>[1980] GLR 677<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:
25
APRIL 1990<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">

APPIAH AMPONSAH FOR THE APPLICANT.<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">

SOWAH C.J., ADADE, FRANCOIS, WUAKU AND<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.S.C.<o:p></o:p>Amua-Sekyi
J.S.C. delivered the ruling of the court. On 11 October 1980 one Kwame Peprah
was knocked down by a motor vehicle. He sustained injuries from which he died
on the same day. Thereafter, his dependants, represented by the applicant,
engaged the services of a so-called insurance claims agent to pursue their
claim for compensation for the death of the said Peprah. She says that after
some correspondence with the State Insurance Corporation she was eventually
told on 5 November 1985 that the insurance cover note was a forgery and that
the insurance company would not accept liability on behalf of the assured.<o:p></o:p><o:p>&nbsp;</o:p>The cause
of action of the dependants is derived from section 16 of the Civil Liability
Act, 1963 (Act 176) which states:<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">“16. (1)
Where the death of a person is caused by the fault of another such as would
have entitled the party injured, but for his death, to maintain an action and
recover damages in respect thereof, the person who would have been so liable
shall be liable to an action for damages for the benefit of the dependants of
the deceased.”<o:p></o:p><o:p>&nbsp;</o:p>Sections
3 (2) of the Limitation Decree, 1972 (N.R.C.D. 54) sets a time limit of three
years from the death for the bringing of an action under section 16 of Act 176.
Thus, if the applicant desired to sue she had up to 10 October 1983 to do so.
In the absence of any enabling provision in the law she would have no right to
sue after that date.<o:p></o:p>Sections
23 (1) and (2) and 25 (2) of N.R.C.D. 54 give to a person in the position of
the applicant, a right to apply for leave to sue after the period of limitation
laid down in section 3 (2) has expired. By section 24 (1) if the application
for leave is made before the issue of the writ it shall be made ex parte. The
applicant put in one which came before Ampiah J.A. sitting as an additional
judge of the High Court, Accra. He granted it and the applicant issued a writ
against the driver and the owner of the vehicle on 26 May 1986. The applicant
sued as administratrix of the estate of Kwame Peprah.<o:p></o:p><o:p>&nbsp;</o:p>Upon
being served with the writ and statement of claim, the defendants put up
several defences, among them the defences that the action was statute-barred
and that at the time the writ was issued the applicant was not the
administratrix of the estate of Peprah. It appears that the letters of
administration issued out to the applicant bore the date 28 May 1986.<o:p></o:p><o:p>&nbsp;</o:p>The suit
having been transferred to the High Court, Koforidua for hearing, the case came
before Abakah J. On an application under Order 25 of the High Court (Civil
Procedure) Rules, 1954 (L.N. 140A) to strike out the suit he held that as the
order extending time within which to sue was made by a judge of co-ordinate
jurisdiction he could not interfere with it. He however upheld the objection
that at the time the writ was issued the applicant was not an administratrix
and, following Akrong v. Bulley [1965] G.L.R. 469, S.C., dismissed her action.
The applicant says she is aggrieved by this decision and has come before us to
ask for an order of certiorari to quash the decision for error of law on the
face of the record.<o:p></o:p><o:p>&nbsp;</o:p>