TANKO AMADU J.A

(1) This appeal lies from the judgment of the High Court (Industrial & Labour Division) Accra dated the 21st day of March, 2017.

(2) In the High Court, the Plaintiff/Appellants (hereinafter referred to as the Appellants) took out a writ of summons against the Defendants/Respondents (hereinafter referred to as the Respondents) and claimed the following reliefs per an amended writ and statement of claim.

“a) A declaration that the decision by the Police Administration, headed by the 2nd Defendant to unilaterally dismiss the Plaintiffs before the final determination of the said criminal prosecution was wrongful in law and offended their constitutionally guaranteed right to fair trial.

b) An order directed at the 2nd Defendant to immediately reinstate the Plaintiffs in the Ghana Police Service with the appropriate rank designations.

c) A further order directed at the Defendants to pay all salaries, bonuses and emollitions till date of final payment.

d) An order directed at the 2nd Defendant for General Damages for wrongful dismissal.

e) Costs against the 2nd Defendant.

f) Any further order or orders as to this Honourable Court may seem just”.

(3) In their Amended Statement of claim, the Plaintiffs (Appellants herein) alleged against the Defendants (Respondents herein) inter alia as follows:-

“4) The 1st Plaintiff say that, sometime in May 2005, as a serving Police officer, together with the 2nd, 3rd and 4th Plaintiffs, they were summoned and instructed by the then Cantonments District Police Crime Officer, One Assistant Superintendent of Police, Cashman Blewusi to effect the arrest of some suspected drug peddlers at the 5) Hotel Babylon in Lartebiokorshie in Accra.

Plaintiffs state again that, soon after effecting the arrest of the said suspected drug peddlers called Banato and Derrick Osei Wusu and were escorting them to the Cantonments Police Station through Adabraka, they were waylaid by some police personnel from the Accra Central Police Station at main Accra Psychiatry Hospital traffic intersection.

6) Plaintiffs aver that a confrontation ensured during which the suspected drug peddlers bolted away after which Plaintiffs continued to their duty posts at Cantonments Police Station.

7) 1st Plaintiff says that, a few days later, he together with the 2nd, 3rd and 4th Plaintiffs received a signal to report at the Regional Police Commander’s order at the Central Police Station and upon their arrival; they were arrested and detained. Plaintiffs state that, subsequently, their statements were taken, and later arraigned before the Circuit Court, Accra on charges of conspiracy and extortion.

8) Plaintiff say that, during the pendency of the case and without waiting for its outcome in the Law Court, the Police Administration headed by the 2nd Defendant, interdicted them and later dismissed them from the Ghana Police Service before the said case could be determined on its merits by the Law Courts.

9) Plaintiffs state that, even though they immediately filed an appeal to the 2nd Defendant in January 2006, against the decision of the Central Disciplinary Board of the Police Service to dismiss them, the 2nd Defendant refused and/or neglected to hear the said appeal.

10) 1st Plaintiff states that, upon enquires, he was told that, his dismissal together with that of 2nd, 3rd and 4th Plaintiffs were as a result of the criminal prosecution pending against them on charges of conspiracy and extortion.

11) Plaintiff states further that, after a long trial spanning for about 3 years, the Circuit Court presided over by Justice Elizabeth Edusei acquitted and discharged them on the said charges of conspiracy and extortion in a judgment dated 9th October 2008.

12) The Plaintiffs contend that, their acquittal and discharge of the said charges demonstrate that the decision by the Ghana Police Service to dismiss them before the case was determined by the Law Court on its merits was premature and wrongful in law.

13) Plaintiffs say that, they immediately alerted the Ghana Police Service Administration about their acquittal and discharge of the said charges and thus should be reinstated but the Police Administration will neither reply nor cause their reinstatement into the Ghana Police Service.

14) Plaintiff say that, the 2nd Defendant who is the head of the Ghana Police Service will not reinstate them in the Ghana Police Service unless compelled by this Honourable Court to so do”.

(4) The Defendants (Respondents herein) contested the action per their Amended Statement of Defence where they pleaded inter alia that:-

“3) The Defendants say that the action of the Plaintiffs is statute-barred.

4) The Defendants further say that the Plaintiffs were dismissed fromthe Ghana Police Service on 16th December 2005 and so their action is statute-barred.

5) The Defendants deny paragraph 4 of the Statement of Claim and contend that on 27th May 2005 the Plaintiffs embarked upon an unlawful search, a search which was not authorized, for alleged cocaine dealers and ended up arresting Bamfo and Derrick Osei Owusu and eventually extorted Eighteen Thousand United States Dollars ($18,000.00), Six Hundred Pounds Sterling (£600.00) and Three Million Cedis (₡3 million) (old Cedis) from them.

6) In further answer to paragraph 4 of the Statement of Claim, the Defendants say that the Plaintiffs were never summoned and instructed by the then District Officer, to effect the arrest of the alleged drug peddlers.

7) The Defendants deny paragraph 5 of the Statement of Claim and say that contrary to the Plaintiff’s assertions, the Police personnel from the Regional CID, Accra had information to the operation carried out by the Plaintiff’s and consequently apprehended the Plaintiffs and the alleged drug peddlers.

8) In further denial, the Defendants contend that before the arrest of the Plaintiffs and the alleged drug peddlers by the Regional CID Police personnel, the Plaintiff’s had demanded an amount of Sixty Thousand United States Dollars from the alleged drug peddlers so as to set them free but the alleged drug peddlers could not provide such an amount. In the alternative the suspected drug peddlers suggested to Plaintiffs to go with them to see some people who probably could raise the Sixty Thousand Dollars being demanded from them.

9) The Defendants further contend that as a result of the suggestion as obtained under paragraph 8 above was that an amount of Eighteen Thousand Dollars, Six Hundred Pounds Sterling and Three Million Cedis (old Cedis) was realized from the enterprise. These various sums of money were found on the Plaintiffs when they were arrested and subjected to search by the Regional CID Police personnel from Accra.

10) The Defendants deny paragraphs 6 of the statement of claim and say that after the arrest of the Plaintiffs and the alleged drug peddlers, the arresting officers (i.e. the Regional CID personnel) paraded them and consequent upon a search on the Plaintiffs, a polythene bag found on the 4th Plaintiff, No.29247 D/Sgt. Stanley Gbeglo recorded 163 thumb size oval shape substance suspected to be cocaine Eighteen Thousand Dollars ($18,000.00), Six Hundred Pounds Sterling (£600.00) and other monies as averred under paragraph 9 of the Statement of Defence above. Based on this revelation, the Plaintiffs were investigated, charged for misconduct, tried and ultimately dismissed from the Police Service.

11) Paragraph 7 of the Statement of Claim is denied save that the Plaintiffs were arrested, their statements taken and ultimately arraigned before the Circuit Court, Accra on charges of conspiracy and extortion.

12) Paragraph 8 of the Statement of Claim is denied and in answer say that the Police Service disciplinary proceedings do not depend on the outcome of trials in court to arrive at their decisions.

13) Paragraph 9 of the Statement of Claim is denied and in answer the Defendants contend that the appeal of the Defendants were determined and dismissed by the Police Administration and same communicated to the Plaintiffs.

14) In further answer to paragraph 9 of the Statement of Claim, the Defendants contend that in any event, it was open to the Plaintiffs to have visited the Police Headquarters registry to ascertain the outcome of the appeal which they did not. In any case, the appeal was dismissed.

15) Paragraph 10 of the Statement of Claim is denied and the Defendants contend that contrary to the Plaintiffs’ assertion, the Plaintiffs were investigated, charged for misconduct, tried by way of Service Enquiry and ultimately dismissed from the Police Service.

16) In further answer, the Defendants say that the Plaintiffs were charge variously and collectively as follows:-

i) Leaving his or their duty posts which he/they had been assigned without permission which amounts to failure to perform in a manner, a duty imposed on them; failure to notify his/their superiors in rank about the alleged drug peddlers together with the substance suspected to be cocaine discovered on the suspects and extortion.

17) Additionally, in response to paragraph 10 of the Statement of claim, the Defendants contend that the Plaintiffs were dismissed from the Service after they were found guilty of misconduct and convicted thereof and not because of the criminal trial then pending.

18) Paragraph 11 of the Statement of claim is admitted.

19) Paragraph 12 of the Statement of claim is denied and the Defendants contend that there is no law which says that decisions arising from service enquiry proceedings should be based or contingent upon the outcome of court trials. Statutory provisions gives recognition to the fact that one could be tried criminally and administratively as well on issues arising out of the same transaction. Section 9(2) of the Criminal Offences Act 1960 (Act 29) so provides.

20) In further answer the Defendants say that the trial of the Plaintiffs was proper and lawful. Article 19 (16)(b) of the 1992 Constitution of Ghana supports the above assertion.

21) Paragraph 13 of the Statement of Claim is denied and the Defendants say that granted that the Plaintiffs were acquitted and discharged of the criminal charges, same does not absolve them automatically of the administrative trial and the conviction arising therefrom, unless so declared by a court of competent jurisdiction which is not so in the instant case”.

(5) At the directions stage, the Trial Court set down the following issues for determination;

(a) Whether or not Plaintiff’s action is statute barred?

(b) Whether or not Plaintiffs were not instructed by the then District officer to effect the arrest of the alleged narcotic peddlers.

(c) Whether or not the Police Disciplinary proceedings in question does not infringe Sections 32,

33 and 34 of the Public Service Commission Regulations.

(d) Whether or not the judgment of the Circuit Court Accra which acquitted and discharged the Plaintiffs herein of all charges leveled against them does not amount to a declaration by a court of competent jurisdiction.

(e) Any other issues arising out of the pleadings.

(6) At the end of the trial, the Trial Court reproduced its earlier determination of the issue of limitation statute, and the same being crucial to the subsistence of the Appellants’ action. The court then delivered itself by examining the provisions of the Police Service Act 1970 (Act 350) and concluded that, since it is the said statute which regulates the appointments and dismissals of its employees and the statute not having provided for any time limits within which an aggrieved officer could bring action in court, the Appellants’ action was not statute barred. However, upon a further evaluation of the evidence adduced at the trial, the Trial Court found that the Appellants had failed to discharge their burden of proof and consequently dismissed their claim.

(7) It is from this judgment that the Appellants have by notice filed on 20/6/2017 appealed to this court on grounds set out as follows:-

“a)The Learned Trial Judge erred in law when she held that the dismissal of the Plaintiffs/Appellants was not wrongful.

(8) PARTICULARS:

(i)The Learned Trial Judge failed to consider the facts and merits of each of the Plaintiffs/Appellants individual cases and instead lumped the individual cases together as one.

(ii)The Learned Judge treated Plaintiffs/Appellants’ contract of employment as a simple private contract without regard to the laws guiding Plaintiffs/Appellants employment as public officers.

b) The Learned Judge erred when she held that Plaintiffs/Appellants particularly 1st , 2nd and 3rd Plaintiff’s/Appellant were on a frolic of their own without considering the principle than 1st, 2nd and 3rd Plaintiffs/Appellant were duty bound to obey the orders of 4th Plaintiff/Appellant who was their senior in rank.

(c) That the judgment is against the weight of evidence.

(d) Further grounds of appeal to be filed on receipt of the record of proceeding”.

Based on these grounds, the Appellants seek relief to set aside the whole judgment of the Trial Court which strangely included the issue of limitation statute resolved in their favour.

(9) APPELLANTS’ SUBMISSIONS

 The Appellants made submissions on grounds (a)(i) together with ground (b) and (d) before making submissions on Ground (a)(ii). I would have preferred to examine and determine the merits or otherwise of the grounds in the same sequence as the Appellants did in their written submission. It is however rather strange that the Appellants having formulated a ground of appeal alleging error of law and particularizing same as required by the rules found it more convenient to argue a substantially legal point of law with other grounds which relate to the Trial Court’s perception of the evidence adduced at the trial. In lumping the submissions together, the Appellants have simplified what they propose are essential to the determination of the three grounds compositely. They submit that a determination of the grounds involve an examination of the entire record; an exercise which will reveal that the Trial Court was wrong in refusing to set aside the decision of the Central Disciplinary Board of the Ghana Police Service which recommended the dismissal of the Appellants from service.

(10) The Appellants have cited the case of OPPONG KOFI & OTHERS VS. ATTIBRUKUSU III (2011) SC GLR 176 and have referred to the statement of the Supreme Court therein on the duty imposed on the Appellate court in the in the where a ground of appeal alleges that the evidence adduced at the trial is against the weight of evidence. In the said case, the Supreme Court as in many other cases said as follows: “Essentially the effect of that ground of appeal, was to invite the Court of Appeal to review the whole of the evidence, documentary and oral, adduced at the trial and come out with a pronouncement on the weight of evidence in support of the judgment of the Trial Court or otherwise. Where findings were based on established facts, the Appellate Court was in the same position as the Trial Court and it could draw its own inferences from the established facts”.

(11) Now, it is settled that where the Trial Court that heard the evidence has made findings based on the evidence and had come to a conclusion in a case, an Appellate court ought not disturb those findings except there is no evidence on record to support the findings or that the reasons for the findings are unsatisfactory. An Appellate Court may also reverse the findings of the Trial Court where they are based on a wrong proposition of the law or rules of evidence or where the findings are inconsistent with documentary evidence on record. This principled approach has been settled through the cases by a line of authorities such as the case of ACHORO & ANOR. VS. AKANFELA [1996-1997] SC GLR 209, OKINE (DECD) RE: DODOO VS. OKINE [2003-2004] SC GLR 582 AND KOGLEX LTD. (NO.2) VS. FIELD [2000] SC GLR175. As a matter of judicial duty therefore, this court is bound to determine whether or not one or more of the following may have affected the sustainability of the judgment on appeal. These are whether;

(i) The findings of the Trial Court are perverse and cannot be reasonably supported by the mass of evidence on record.

(ii) The findings could be inferences from established fails and therefore the Appellate court is in a vantage position first as the Trial Court to arrive at the move probable conclusions than those arrived at by the Trial Court.

(iii)The Trial Court applied the wrong principles of law to the evidence adduced.

(12) It is provided in Rule 8(1) of the Court of Appeal rules that “An appeal to the court shall be by way of rehearing……………..”. This provision underlines the foundation jurisdiction of the Court of Appeal. In the celebrated and often cited case of TUAKWA VS. BOSOM [2001-2002] SC GLR 61, Sophia Akuffo JSC (as she then was) stated inter alia as follows:-

“An appeal is by way of rehearing particularly where the Appellant alleges in his notice of appeal that the decision of the Trial Court is against the weight of evidence”.

(13) Having set out the jurisdictional basis on which this appeal will be determined, I shall now revisit the notice of appeal and the record in order to determine the crucial foundation issue arising from this appeal which the Trial Judge had resolved in favour of the Appellants but the same Appellants have expressly indicated to this court in paragraph 1 of the notice of appeal that their complain is about the whole decision delivered by the Trial Court on 21st March 2017. Further, having settled a ground of appeal alleging that the judgment is against the weight of evidence, on the strength of several authorities and by virtue of the power of this court pursuant to Rule 8(1) of C.I.19, the entire case as founded on the record of appeal is before this court for rehearing and determination.

(14) At page 31 of the record of appeal, the Respondents pleaded in paragraphs 3 and 4 of their Statement of Defence as follows:

“3) The Defendants say that the action of the Plaintiffs is     statute barred.

4) The Defendants further say that the Plaintiffs were dismissed from the Ghana Police Service on 16th December 2005 and so their action is statute barred”.

(15) At page 35 of the record, the Appellants filed a reply which is not only sketchy but evasive. They merely stated in a two paragraphed statement as follows:-

“1) Plaintiffs join issues with the Defendants on their Statement of Defence generally.

2) Plaintiffs will rely on their statement of claim by way of reply”.

Clearly the allegation of the Respondents that the Appellants action had been caught by limitation statute was not positively denied with particulars as to date, circumstances, nor any plea of the exceptions on the effect of limitation contained under the provisions of Sections 16, to 22 of the Limitation Act 1972 (NRCD 54).

(16) RESOLUTION OF THE ISSUE OF LIMITATION BY THE TRIAL COURT

As I have already set out, the parties had settled the issue of the effect of limitation statute themselves as per paragraph 1 of the Appellant’s application for directions (page 36 of the record). In the judgment on appeal, the Trial Court while not disputing the facts as pleaded by the Respondents delivered itself in the following words:

“By a preliminary motion filed by the Defendants herein, they prayed the Court to strike out the Plaintiffs writ and statement of claim pursuant to Section 4(1)(b) of the Limitation Act 1972 (NCRD 54). Their case was that this present action of the Plaintiffs is statute barred because the Plaintiffs were dismissed effective 16th December 2005 and this present action, filed on the 1st of November 2013 and subsequently amended on the 9th of May 2014 exceeded the statutory period of six (6) years within which they should have brought their present action. On 24th February 2016, this court pronounced that this action is not statute barred. The court maintain this position. Employment issues could not be termed “actions founded on simple contract within the context of Section 4(1) (b). Section 34 the interpretation Section of NRCD 54 does not define “simple contracts”. The dictionary meaning of the simple contracts are contracts, the evidence of which is oral or in writing, not under seal and require consideration to be valid. An employment contract is a kind used in Labour Law to attribute rights and responsibilities between parties to a bargain. The Plaintiffs were employed by the Ghana Police Service which is a public entity set up and governed by statute, the Police Service Act. The Police Service Act of 1970, (Act 350) is an act to provide for the organization of the Police service and for other matter connected therewith. This statute regulates appointments and dismissal of employees. This statute does not provide for any time frame within which an aggrieved employee can bring an action to court. The Police Service is a statutory organization and if it wanted to limit the time in bringing such actions would have expressly stated so. I find as a fact that Plaintiffs action is not statute barred”.

(17) There is to my mind a serious difficulty with the Trial Judge’s legal reasoning on this issue particularly as it appears to have insulated all court actions by police officers sanctioned one way or the other from the bounds of limitation periods within which their rights of action may subsist. In doing so, the Trial Judge’s thinking pattern is that being a statutory organization, if the Police Service intended to limit time within which actions may be brought by its erring or sanctioned officers the Police service Act 1970, (Act 350) would have expressly provided as such.

(18) The difficulty in accepting this reasoning which is the foundation for the finding that the Appellants’ action was not statute barred is that the Police Service by itself is not a legislative institution and cannot make laws. In fact, its regulations which are part of subsidiary legislation also pass through the scrutiny of parliament which enacts laws under the constitution. What is obvious is that the Trial Court did not advert its mind to the general provisions contained in Part IV Section 30(1) of the Limitation Act 1972 (NRCD 54) which provides that:

“30(1) This Decree shall apply to proceedings by or against the

Republic as if the Republic were a private individual”. Therefore by insulating the Appellants’ action from the effect of the limitation provisions only because the Police Service Act 1970 Act 350 has no specific time lines for actions by police officers cannot be logical and good legal reasoning. The absence of specific provisions in any particular statute automatically brings all matters relating to limitation within the purview of the statute of general application which is the Limitation Act 1972 (NRCD 54).

(19) Let me digress for a moment and place on record that I am aware that the parties did not specifically address this issue in their written submissions. In fact, the Respondents have not invoked this court’s jurisdiction pursuant to Rule 15 of C.I.19 that the judgment of the Trial Court be varied. And their reason for not doing so is not farfetched. It is because even on the merits of the case, the Respondents won in the Trial Court. The issue of limitation statute raised by the Respondents, in the Trial Court is a fundamental issue. It is legal in nature and if resolved in favour of the Respondents, the Trial Court would not have wasted judicial time into going through the mass of evidence and deliver judgment on the merits. I have already said that given the scope of jurisdiction of this court under Rule 8(1) of C.I.19, we are enjoined to exercise our power of rehearing, and the issue of limitation being one of a legal nature it can be re visited by this court and we hereby so do. Our approach is also founded on the power of this court under Rule 32 which provides:-

“32 POWER TO GIVE JUDGMENT AND MAKE ORDER

(1)The Court may, in respect of an appeal before it gives a judgment and make an order that ought to have been made, and make a further or any other order as the case may require, including an order as to costs”.

(2) The powers of the court

(a) May be exercised although the Appellant may have asked that a part only of a decision be reversed or varied; and

(b) May be exercised in favour of all or any of the Respondents or parties although the Respondents or parties may not have appealed from or complained of the decision”.

(20) In the instant case, the undisputed facts are that the Appellants were dismissed from the Police Service on 16th December 2005 after having undergone a service enquiry in accordance with the relevant service regulations. They were also charged before the Circuit Court for various offences. It is not in dispute that the administrative proceedings of the Central Disciplinary Board of the Police Service and the criminal proceedings are mutually exclusive. Their writ in the Trial Court was first issued on 1st November 2013 and was amended on 9th May, 2014. The date of amendment is inconsequential. The Respondents raised the issue of limitation statute which if upheld would have deprived the Trial Court with the jurisdiction to entertain the Appellants’ action. The Trial Court refused the application and confirmed its ruling and reasons thereof on the face of judgment on appeal before us. The Appellants themselves complain in their notice of appeal about the whole decision and I have earlier set out the jurisdictional basis of our having to revisit the issue of limitation because it is a gateway issue and jurisdictional in nature.

(21) If the Respondents’ plea were upheld it would have constituted an absolute defence to the Appellants’ action. In the case of HILTON VS. SUTTON SYSTEM LAUNDRY [1946] KB 65 at 73 Lord Green M.R. explained the effect of a plea of limitation in the following words “once the axe falls, it falls, and the Defendant who is fortunate to have acquired the benefit of a statute of limitation is entitled of course to insist upon his strict right” Lord Griffiths in the case of DONOVAN VS. GWENTOYS LTD. [1990] WLR 472 at 479 put it in these words “The primary purpose of the limitation period is to protect a Defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal”.

(22) When the question confronted the Supreme Court in the case of EBUSUAPANYIN YAW STEPHENS VS. KWESI APOH [2010]2 MLRG 12 at 26 Anin Yeboah JSC speaking for the court said “It is therefore the law that if the action succeeds on a plea of limitation, lack of jurisdiction, or lack of locus standi, the Trial Court for that matter the Appellate Court should not proceed to determine the merits of the case irrespective of the evidence”. While the English cases are persuasive, the latter by virtue of Article 125(3) of the constitution is binding on this court.

(23) From the reasoning of the Trial Court, the Appellants’ right of action cannot be limited under the provisions of the Limitation Act 1972 (NRCD 54) because being employees of the Police Service, the Police Service Act 1970 (Act 350) not having provided for periods within which service personnel may or may not sue, the Appellants cannot be bound by the general provisions contained in the Limitation Act of 1972 when in fact it is even later in time to Act 350 of 1970. This position is clearly and demonstrably erroneous. A similar issue has been resolved by the Supreme Court in the case of SAMUEL BONNEY AND 4,174 ORS. VS. GHANA PORTS AND HARBOURS AUTHORITY in an unreported judgment dated 29th January 2014 in Civil Appeal No.J4/39/2012. In that case, the court distinguished situations where time limits have been provided in particular statutes and cases where no such provisions have been made as in the instance case in order to determine the scope of the limitation provisions under the Limitation Act 1972 (NRCD 54). In comparing and contrasting the limitation provisions contained in the Ghana Ports and Harbours Authority Act (PNDCL 160) and those contained in NRCD 54, The Supreme Court held inter alia as follows: “The Act (NRCD 54) provides for the Limitation of action over the whole field of civil law (see the memorandum of the Act) ordinarily therefore, the stance of counsel for the Appellants in this court would have been tenable under Section 4 of the Limitation Act 1972 but for Section 92(1) of PNDCL 160 which set up the Ghana Ports and Harbours Authority. PNDCL 160 of 1986 is later legislation and would ordinarily repeal the Limitation Act except that in this case, whereas PNDCL 160 was specifically made in respect of Ports and Harbours and related matters, the Limitation Act is of general application……………”

(24) The Supreme Court further said in determining the scope of the limitation provisions contained in the two statutes that:

“The period of limitation under the Ports and Harbours Authority Law seeks to take the period of Limitation outside the general rule and operation of law. The particular law i.e. Section 92(1) of the Ports and Harbours Authority Law is applicable in an action instituted under the law. It is not a case of preferring Section 92(1) of the Ports and Harbours Authority Law to the Limitation Act of 1972”.

(25) In the instant case, the provisions of the Police Service Act 1970 (Act 350) contain no limitation provisions with respect to actions in court. All actions by police officers therefore naturally come within the purview of the limitation provisions under the Limitation Act (NRCD 54). The Trial Judge in determining the fundamental issue of limitation statute raised by the Respondents held that in the absence of particular provisions in Act 350, the right of actions in court by police officers in ventilation of rights are limitless and that the provisions pursuant to NRCD 54 are not applicable.

(26) This reasoning if sustained would be tantamount to giving the Appellants a right of action in perpetuity. It is inconsistent with the provisions of the Limitation Act 1972 (NRCD 54) and indeed contrary to public policy. We have demonstrated so in this judgment and that is why we shall set aside that aspect of the judgment. Consequently, upon the facts contained in the record of appeal, we hold that the Appellants’ action is statute barred not having been commenced within a period of six years from the date their causes of action accrued in December 2005 in accordance with the provision of Section 4 of the Limitation Act 1972 (NRCD 54).

(27) In the case of AKRONG & ANOR VS. BULLEY [1965]1 GLR 469 Apaloo JA (as he then was) commented on the propriety of an action by a widow seeking relief under the Fatal Accidents Act 1846-64 as amended by the Law Reform (Civil Wrongs) Act 1959. In allowing the appeal he said inter alia as follows:

“But the Plaintiff, or more accurately her advisers, chose to bring the action in a capacity she did not possess and this difficulty is entirely their own making. I am therefore constrained to hold that the writ was a nullity and so are the proceedings and judgment founded upon it. This disposes of this appeal and I abstain from expressing any opinion on the other matter raised in this appeal……………. I need hardly say that I reached this conclusion with no relish especially as the Plaintiff made out an unimpeachable case of negligence against the Defendants on the merits. But the question of capacity, like the plea of limitation is not concerned with merits………………”

(28) Accordingly, we will uphold the Respondents’ plea of limitation statute and dismiss the appeal on grounds that the Appellants’ action in the Trial Court was statute barred and the Trial Court had no jurisdiction to proceed. As the other grounds of appeal have become merely academic we shall refrain from any discussion of them. The let effect is that this appeal wholly fails, and it is hereby dismissed.

(SGD).

I.O. TANKO AMADU

(JUSTICE OF APPEAL)

(SGD).

I AGREE                                                                K.A. ACQUAYE

(JUSTICE OF APPEAL)

(SGD).

I ALSO AGREE                                              B.F. ACKAH-YENSU

(JUSTICE OF APPEAL)