Kumakye v. G.W.S.C. [1977] 2 GLR 257.

KUMAKYE v. GHANA WATER AND SEWERAGE CORPORATION [1972-77] 2 GLR 257-262.

 JUDGMENT OF EDWARD WIREDU J.

STATUTORY REFERENCE
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Edward Wiredu J. 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.

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.

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."

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

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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.

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.

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.

Capacity to maintain actions in the High Court is governed by Order 16 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). Part II of Order 16 is headed "Persons under Disability." This part which covers rules 14 to 20 is in the following terms:

"14. Infants may sue as plaintiffs by their next friends and may, in like manner, defend by their guardians appointed for that purpose.

15. Lunatics and persons of unsound mind not so found by inquisition may respectively sue as plaintiffs in any action by their committee or next friend, and may in like manner defend any action by their committees or guardians appointed for that purpose.

16. Nothing in rule 14 or 15 of this Order shall prevent a married woman acting as next friend or guardian.

17. An infant shall not enter an appearance except by his guardian ad litem. No order for the appointment of such guardian shall be necessary, but the solicitor applying to enter such appearance, shall make and file an affidavit in the Form No. 14, in Appendix A, Part V, with such variations as circumstances may require.

18. Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last rule mentioned.

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19. Before the name of any person shall be used in any action as next friend of any infant, or other party, or as relator, such person shall sign a written authority to the solicitor for that purpose and the authority shall be filed in the Registry of the Court in which the cause or matter is proceeding.

20. In all causes or matters to which any infant or person of unsound mind, whether so found by inquisition or not, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall if given with the consent of the Court or a Judge by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent. Provided that no such consent by any committee of a lunatic shall be valid as between him and the lunatic unless given with the sanction of the Chief Justice."

The word "disability" has not been defined in L.N. 140A. A careful perusal of rules 14 and 15 of Order 16, however, gives some guide as to those considered "persons under disability." These include infants, lunatics and persons of unsound mind. Rules 14, 15 and 17 of Order 16 do not render infants or lunatics incompetent to maintain actions as plaintiffs or to be sued. They rather provide that infants, lunatics and persons of unsound mind may sue as plaintiffs but only by their next friends. They provide the mode by which infant plaintiffs may commence actions or enter appearance when sued. The language of rule 14 of Order 16 of L.N. 140A makes it apparently clear that in actions by infants under that rule they sue as plaintiffs.

The overriding rule relating to the commencement of any civil proceedings by an infant is that he can only do so by his next friend. The words "may sue" of rule 14 are equivalent to "shall sue." I hold in my ruling therefore that in the instant case the proper plaintiff is the infant and not the mother by whom she sued as her next friend. The submission by learned counsel for the defendant to the contrary is therefore rejected as untenable.

It is also clear from the above exercise that the term "disability" is a feature of the common law as well as statutory law. Support for this view can be found in the law of contract. Persons considered infants, lunatics and even drunkards are grouped as persons under disability in the law of contract and the law relating to infant's contracts is the common law as modified by the Infants' Relief Act, 1874 (37 & 38 Vict , c. 62): see Chitty on Contracts (23rd ed.), Vol. 1, Part II, para 384 at pp. 184-185.

Having held that the infant Veronica Kumakye in the instant case is the proper plaintiff we now come to consider the next crucial point in this case whether the objection raised against her action is sustainable?

It was conceded in the course of the arguments by counsel that the Limitation Decree, 1972 (N.R.C.D. 54), did not apply to this case and

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therefore the extension of time afforded under section 16 (1) cannot be invoked to aid the plaintiff. It was also conceded that the plaintiff's action was brought under section 30A (1) of Act 176 as inserted by the Civil Liability Act, 1963 (Amendment) Decree, 1968 (N.L.C.D. 322). It was further conceded that the Civil Liability Act, 1963, does not contain any provision extending time in favour of infants and for that matter any other person under a disability. This omission is of course understandable. The 1963 Act is not a general statute of limitation.

Prior to the coming into operation of Act 176 the general law of limitation governing actions in Ghana was the English Limitation Act, 1623 (21 Ja. 1, c. 16), s. 3 which was a statute of general application: see Ayer v. Kumordzie [1964] G.L.R. 527. The Limitation Act, 1623, was not repealed by Act 176. The only section of the latter Act which is inconsistent with the provisions of the 1623 Act is section 30A (supra) which provides a three-year period for maintaining actions for personal injuries, etc. instead of the six-year limit provided under the old English statute. It is therefore necessary to call in aid in determining the issue raised in this case both the Limitation Act, 1623, and the Civil Liability Act, 1963, in so far as the two are not inconsistent.

Section 30A (1) of Act 176 as inserted by the Civil Liability Act 1963 (Amendment) Decree, 1968 (N.L.C.D. 322), upon which the plaintiff's action is founded reads as follows:

"30A. (1) An action claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued."

It renders an action unmaintainable after the expiration of three years from the date when the cause of action accrued. A cause of action cannot accrue under the limitation law unless there be a person in existence capable of suing and another person being sued.

There is no doubt that the accident about which the plaintiff is complaining occurred on 12 February 1972. The present action was commenced on 3 November 1975 a period well outside the statutory three-year period. There is also no dispute about the fact that the infant plaintiff was under disability both when the accident occurred and at the time when she commenced her action against the defendant corporation. As held earlier above she cannot seek refuge under section 16 (1) of N.R.C.D. 54 for reasons stated. The question here therefore is how far does the 1623 Act seek to protect the plaintiff?

Section 7 of the 1623 Act which is analogous to section 16 (1) of N.R.C.D. 54 is in the following language.

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"7. Provided nevertheless, that if any person or persons that is or shall be entitled to any such action of trespass, detinue, action for trover, replevin, actions of account, actions of debts, action of trespass for assault, menace, battery, wounding or imprisonment, actions upon the case for words, be or shall be at the time of any such cause of action given or accrued, fallen or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited after their coming to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other parsons having no such impediment should have done."

Under section 7 an infant has an extension of time up to three years after attaining the age of 21.

The general effect of section 30A (1) of Act 176 and section 7 of the Limitation Act, 1623, is to prevent the plaintiff's action being statute-barred until three years after she attains the age of 21.

It appears that his exemption granted under section 7 of the 1623 Act does not affect any case where the right of action accrued to some person not under disability through whom the person under disability claims. It is a saving clause and itself imposes no disability so that a plaintiff to whom it applies may while he is under a disability bring his action in the same way as if the statutory provision has not been passed and may also do so within the statutory period after determination of the disability: see Forbes v. Smith (1855) 11 Exch. 161.

It follows in my ruling that the infant plaintiff having commenced her present action whilst still under disability is within the statutory three-year limit provided under section 30A (1) of Act 176 by virtue of section 7 of the Limitation Act, 1623. The objection raised against the action therefore cannot be sustained and this same is accordingly rejected. Preliminary objection dismissed.

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