AKYINFU v. MBROH [1961] GLR 750

DIVISION: IN THE HIGH COURT, CAPE COAST

DATE: 4TH DECEMBER, 1961

BEFORE: SCOTT J.

CASES REFERRED TO

(1) Hosking v. Terry (1862) 15 Moo. 493; 15 E.R. 581

(2) Young v. Keighly (1809) 16 Ves. 351; 33 E.R. 1015

NATURE OF PROCEEDINGS

RULING on an application for leave to issue a fresh writ of summons.

COUNSEL

R. E. Bannerman for E. Akufo-Addo for plaintiff-applicant.

R. J. Hayfron-Benjamin for defendant-respondent.

JUDGMENT OF SCOTT J.

This is an application seeking leave for the issue of a fresh writ of summons out of this court for determination of the plaintiff-applicant’s title to the land described in the affidavit of the applicant Kwabena Agyir Kofi and which land was the subject-matter in the consolidated suits civil appeal 15/47—Odikro Kwasi Akyinfu v. Safohene Kojo Mbroh and Essie Oduma v. Kojo Mbroh. The grounds on which this application is made as set out in applicant’s affidavit are that since the delivery, on the 4th December 1947, of the West African Court of Appeal judgment in the suit civil appeal No. 15/47 above referred to, fresh evidence has come to light which could not with reasonable diligence have been discovered at the trial, and that such evidence would have altered the ultimate decision of the suit. Counsel for the applicant in support of his arguments for the granting of leave has cited several authorities which all tend to show that the power to grant such leave does lie in the court, and this has been conceded by counsel for the respondent. The evidence, however on which the applicant relies is: (1) a document signed by one J.S.O. Fletcher on behalf of Charles Bannerman in which

[p.751] of [1961] GLR 750 reference is made to the fact that Daddie had a portion on the left side of Addoko’s land and thatbDaddie’s land was not included in the portion sold to Quah Attah; and (2) a document undated and signed by one Quamin Acquah which contains references to boundary marks, and which names of trees counsel for applicant contends are the boundaries of the land. Counsel for applicant further contends that Quamin Acquah is the predecessor of the applicant and the land referred to in the document is the land owned by the predecessor of Acquah.

In respect of the first document purported to be signed by one J. S. O. Fletcher there has been no evidence whatever as to who Fletcher was and it is difficult to see how that document could be admitted into evidence. As far as the second document is concerned it is in my view of no evidentiary value as there is nothing in that document to connect it up with the land in dispute. This is supported by the remarks of Lord Eldon in Young v. Keighly,1(1) quoted in Hosking v. Terry,2(2) one of the authorities cited by counsel for the applicant:

“The evidence, the discovery of which is supposed to form a ground for this application, is very material; and I am persuaded, that by refusing this application I decide against the Plaintiff in a case, in which he might, perhaps with confidence, have contended, that upon the evidence he was entitled to the whole money. On the other hand, it is most incumbent on the Court to take care, that the same subject shall not be put in a course of repeated litigation; and that, with a view to the termination of suit, the necessity of using reasonably active diligence in the first instance should be imposed upon parties. The Court must not therefore be induced by any persuasion as to the fact, that the Plaintiff had originally a demand, which he could clearly have sustained, to break down rules established to prevent general mischief at the expense even of particular injury.”

This matter has been ventilated in several tribunals, the last being in the West African Court of Appeal in 1947.

In this application I find no evidence to support the contention that these documents could not have been discovered with reasonable diligence at the time of the trial and further that the documents themselves afford no material evidence which could have altered the decision of the suit. The application will accordingly be refused.

DECISION

Application dismissed.