RANDOLPH vs. CAPTAN & ANOR. [1959]DLHC2053

Date	1959-10-10
Suit No.
Citation No.	[1959]DLHC2053

OLLENNU J.

PLAINTIFF IN PERSON.

QUASHIE-IDUN (FOR AKUFO-ADDO) FOR DEFENDANTS.

[1959]DLHC2053
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													<main id="main" class="content" style="min-height: 60rem" ><o:p>&nbsp;</o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">RANDOLPH <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">CAPTAN &amp; ANOR.<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 347<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
10TH OCTOBER, 1959..<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

PLAINTIFF
IN PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>(His
lordship referred to the pleadings, and continued:)<o:p></o:p>Upon
those pleadings the plea that the dispute was res judicata by reason of the
judgments pleaded became a preliminary issue to be determined. The plaintiff
appeared in person the day hearing commenced. He was sworn, and had started to
give his evidence when Counsel for the defendants asked that the preliminary
issue should be determined first, because, if it were sustained, it would
finally dispose of the whole suit.<o:p></o:p><o:p>&nbsp;</o:p>The Court
agreed to that procedure, and called upon the defendants to establish their
defence. In support of their plea Counsel for the defendants put in certified
copies of the writ of Summons in the suit pleaded, the judgments therein relied
upon, the order for pleadings, the application (with supporting affidavit of
the plaintiff herein) for joinder in that suit as co-defendant, the pleadings
in the said suit, the record of a statement made by the plaintiff’s Counsel in
that suit to the effect that his defence was contained in the affidavit,
together with the Leases and Assignment pleaded by the defendants.<o:p></o:p><o:p>&nbsp;</o:p>Upon
these, Counsel submitted that the principal parties to this suit are the same
as those in the former suit (namely, the Kreshiet family and J. H W. Randolph),
and that the subject-matter of this suit is identical with that in the former
suit, as are the issues raised in the two suits. Upon those submissions Counsel
for the defendants asked the Court to dismiss the plaintiff’s claim on the
grounds that it was res judicata.<o:p></o:p>When
called upon to rely to the submissions made on behalf of the defendants, the
plaintiff said that he admitted the existence of the judgments and of the
proceedings tendered, but he contended that the judgments were ineffective
because they were obtained by fraud. He said that he would lead evidence later
to establish this allegation of fraud. The Court pointed out to him that as he
had not specified the fraud alleged in his reply to the statement of defendant,
and had not given any particulars of it, evidence could not be received on that
issue. At that stage the plaintiff applied for and was granted, an adjournment
to enable him to get his Counsel to attend at the next hearing to argue the
legal points. The case had later to be adjourned a second time, as the
plaintiff’s Counsel did not attend on the date to which it was originally
adjourned. Counsel appeared on the third occasion, and the Court explained to
him the point which Counsel for the defendants had made in his absence.<o:p></o:p><o:p>&nbsp;</o:p>On the
question of the allegation of fraud, Counsel for the plaintiff submitted that
it was for the defendants, if they required specification of the fraud alleged
and particulars thereof, to have applied to the plaintiff for them, and since
no such application had been made, he was entitled to lead evidence to prove
it. I shall deal with this point at a later stage in this ruling.<o:p></o:p>