REPUBLIC v. HIGH COURT, KOFORIDUA; EX PARTE NSOWAA
1990
SUPREME COURT
GHANA
CORAM
- SOWAH C.J.
- ADADE
- FRANCOIS
- WUAKU
- AMUA-SEKYI JJ.S.C
Areas of Law
- Civil Procedure
- Tort Law
- Insurance Law
- Probate and Succession
1990
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court judgment, delivered by Amua-Sekyi J.S.C., concerns an application by the representative of Kwame Peprahs dependants to quash a High Court decision via certiorari. Peprah died on 11 October 1980 after being struck by a motor vehicle. The dependants cause of action lay under the Civil Liability Act, but the Limitation Decree required suit within three years. The applicant obtained ex parte leave to sue out of time and filed a writ against the driver and owner. The case was transferred to Koforidua, where Abakah J. declined to interfere with the extension order but dismissed the suit, relying on Akrong v. Bulley, because the applicant was allegedly not administratrix when the writ issued. The Supreme Court held the insurance forgery did not justify extension of time, found the dismissal on administration grounds wrong, but declined certiorari and refused to revive the original action, noting a fresh suit had been filed and parallel actions would be abusive.
JUDGMENT OF AMUA-SEKYI J.S.C.
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.
The cause of action of the dependants is derived from section 16 of the Civil Liability Act, 1963 (Act 176) which states:
“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.”
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.
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.
Upon being served with the writ and statement of claim, the defendants put up several defences, among them the defences that the [p.680] 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.
The suit having been transferred to the High Court, Koforidua