GHANA RAILWAY AND PORTS AUTHORITY v. OKAKBU AND OTHERS

JUDGMENT OF ABBAN J.

The applicants as the co-defendants have moved the court under Order 12, r. 24 of the Supreme [High] Court (Civil Procedure) [p.8] Rules, 1954 (L.N. 140A), for an order setting aside the service of the writ of summons effected on them. Their main ground is that the action is statue-barred. The said rule reads as follows:

"A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service."

The first, second and third plaintiffs together with three other persons were passengers on a vehicle driven by the second defendant. The said vehicle collided with a train at the railway level crossing at Alajo, Accra; and as a result the first, second and third plaintiffs sustained injuries, but the other three passengers were killed. The first, second and third plaintiffs therefore instituted the present action claiming damages for personal injuries. The fourth, fifth and sixth plaintiffs, as the personal representatives of those three deceased persons, are also claiming damages for and on behalf of the dependants of the said deceased persons. The action was originally brought against the first and second defendants but on the application of the plaintiffs, the court joined the Ghana Railway and Ports Authority as co-defendants. The writ of summons, the statement of claim and all the other relevant documents were served on the co-defendants in pursuance of the order for joinder. The co-defendants hereinafter called the Railway and Ports Authority then entered conditional appearance and filed the present motion.

Learned counsel for the Railway and Ports Authority, in his argument, contended that having regard to section 90 (1) of the Railways Ordinance, Cap. 233 (1951 Rev.), the action is statute-barred, since it was not brought within six months after the date of the commencement of the cause of action. He relied on certain English cases some of which will be referred to in due course. The next submission of learned counsel for the Railway and Ports Authority was that the action is not maintainable against them because they are not a legal entity capable of being sued. Counsel argued that the general manager of the Railway and Ports Authority was the person who should have been sued having regard to section 89 (2) o