AMOA AND ANOTHER v. ABEKA

UDGMENT OF APALOO J.A.

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.

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 [p.443] 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:

"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."

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.

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."

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