TSIBOE v. KUMASI MUNICIPAL COUNCIL

JUDGEMENT OF MURPHY J

I will deal first with the defendants' submission that this suit was instituted out of time. The demolition took place on the 2nd December, 1957, and the writ in this case was issued on the 16th July, 1958.

The defendants rely on section 2 of the Public Officers' Protection Ordinance, the relevant part of which reads as follows:—

"2. Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any ordinance or of any [p.255] public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty, or authority, the following provisions shall have effect—

(1) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect, or default complained of, or in case of a continuance of injury or damage, within three months next after the ceasing thereof:"

"Person" is defined in section 3 (1) of the Interpretation Act, 1957, as including "any company or association or body of persons corporate or incorporate". On the face of it, therefore, the section would seem to apply to a municipal council.

However, section 150 of the Municipal Council's Ordinance, 1953, which is a later enactment than the Public Officers Protection Ordinance, reads as follows:-

"150. When any suit is commenced against a Council for any act done in pursuance or execution or intended execution of an ordinance or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority, such suit shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof".

Various enactments are repealed by section 169 of the Municipal Councils Ordinance, but these do not include the Public Officers' Protection Ordinance.

On behalf of the defendant it has been submitted firstly, that section 2 of the Public Officers Protection Ordinance reproduces (except for a difference in the period of limitation) section 1 of the Public Authorities Protection Act, 1893, which has been held to apply to municipal corporations. Next it has been submitted that the use of the word "Officers" in the title of the Ordinance cannot affect the clear provision