AKYINFU vs. MBROH [1961]DLHC562

Date	1961-12-04
Suit No.
Citation No.	[1961]DLHC562

SCOTT J

R. E. BANNERMAN FOR E. AKUFO-ADDO FOR PLAINTIFF-APPLICANT

R. J. HAYFRON-BENJAMIN FOR DEFENDANT-RESPONDENT.

[1961]DLHC562
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&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;AKYINFU

&nbsp;[HIGH COURT, CAPE COAST]

[1961] GLR 750

DATE: 4TH DECEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

R.
E. BANNERMAN FOR E. AKUFO-ADDO FOR PLAINTIFF-APPLICANT ,R. J. HAYFRON-BENJAMIN
FOR DEFENDANT-RESPONDENT.

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SCOTT J.

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&nbsp;

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.

(1) a document signed by one J.S.O. Fletcher on behalf of Charles
Bannerman in which reference is made to the fact that Daddie had a portion on
the left side of Addoko’s land and that Daddie’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 1</main>