QUAGRAINE vs. DAVIES [1961]DLSC10239

Date	1961-05-31
Suit No.	G L R 291 - 296
Citation No.	[1961]DLSC10239

VISCOUNT SIMONDS

LORD RADCLIFFE

LORD GUEST

J.E. LE QUESNE AND D. JACKSON FOR THE APPELLANT.

S. P. KHAMBATTA Q.C. S. N. BERNSTEIN AND G. CHAKRAVARTTI FOR THE RESPONDENT.

[1961]DLSC10239
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													<main id="main" class="content" style="min-height: 60rem" >QUAGRAINE<o:p></o:p>vs.<o:p></o:p>DAVIES<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>J.E. LE QUESNE AND D. JACKSON FOR THE
APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

S. P. KHAMBATTA,
Q.C., S. N. BERNSTEIN AND G. CHAKRAVARTTI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

VISCOUNT SIMONDS,
LORD RADCLIFFE AND LORD GUEST<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;LORD
GUEST<o:p></o:p>&nbsp;Lord Guest delivered the judgment of their
Lordships.&nbsp; The question raised in this
appeal is a purely procedural point, whether an appeal by the appellants to the
Court of Appeal, Ghana was timeous.&nbsp; But
in order to appreciate the point it is necessary to rehearse briefly the
circumstances under which it arises.<o:p></o:p>&nbsp;The history starts with a Privy Council judgment
in 1929, in a litigation between a caretaker on behalf of the present
respondent in regard to the title to Agissu land.&nbsp; The Board decided in favour of the appellant
but no declaration of title was made.&nbsp; On
the 14th October, 1948, the appellant issued a summons for a claim in trespass
for recovery of possession of the Agissu land relying on the judgment of the
Privy Council.&nbsp; In 1956, the case was
still pending in the native court and it was thereafter transferred to the Land
Court.&nbsp; In the statement of claim the
plaintiff claimed recovery of possession of the Agissu land relying on the
Privy Council judgment and alleging that the respondent was estopped from
claiming ownership of the Agissu land.&nbsp;
The respondent in his defence denied that he was occupying Agissu
land.&nbsp; The Land which he occupied
consisted of three parcels of land known as Nanado, Abberzaboasie and
Abiswa.&nbsp; A dispute was thus disclosed as
to the boundaries of the Agissu land and respondent’s land.<o:p></o:p>&nbsp;After evidence Acolatse, J., on the 21st
December, 1957, gave judgment in favour of the respondent.&nbsp; The appellant on the 4th&nbsp; January,&nbsp;
1958, gave notice of motion under Order 39 of the Rules of the High
Court of Ghana for review of the judgment of Acolatse,&nbsp; J. Affidavits were lodged in support of this
motion and on 8th&nbsp; March, 1958, the judge
made an order which concluded with these words: “This motion is allowed to the
extent of the order above”.&nbsp; The order will
be more fully referred to later.&nbsp;&nbsp;
Thereafter&nbsp; evidence was taken by
the judge and on 31st October, 1959, the&nbsp;
judge gave a ruling dismissing the review .&nbsp; An appeal was tabled on 3rd November, 1959
and on 13th June, 1960, the Court of Appeal dismissed the appeal on the ground
that it had not been timeously taken.&nbsp;&nbsp;
By Rule 9 of the Supreme Court (Court of Appeal) Rules, 1957 an appeal
against a final decision must be taken within three months.<o:p></o:p>&nbsp;When a case is reheard on review, the order
on the rehearing is a new decree and the time for appealing runs from the date
of the order. &nbsp;The question which sharply
arises is thus whether the "ruling" of the 31st October, 1959, is an
order on the rehearing.&nbsp; If it is,&nbsp; then the appeal was brought timeously.&nbsp; If it is not, the appeal is incompetent, as
no appeal lies against a refusal to grant a motion for review.&nbsp;&nbsp; In these circumstances the final judgment
would be that of the 21st December, 1957, in which case the time for appealing
had long expired.<o:p></o:p>&nbsp;Order 39 of the Supreme Court (Civil
Procedure) Rules, 1954, is in the following terms:—<o:p></o:p>&nbsp;"1. (1) Any person considering&nbsp; himself aggrieved—<o:p></o:p>&nbsp;(a) by a judgment or order from which an
appeal is allowed, but from which no appeal has been preferred; or<o:p></o:p>&nbsp;(b) by a judgment&nbsp; or order from which no appeal is allowed; and
who from the discovery of new and important matter or evidence&nbsp; which, after the exercise of due diligence,
was not within his knowledge or could not be produced by him at the time
when&nbsp; the&nbsp;
judgment was given or the order made, or on account of some&nbsp; mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a review of the
judgment given or order made against him, may apply for a review of the
judgment or order to the Judge who gave judgment or made the order.<o:p></o:p>&nbsp;(2) A party who is not appealing from a
judgment or order may apply for a re</main>