VANDERPUYE vs. NARTEY [1976]DLCA7969

Date	1976-12-28
Suit No.
Citation No.	[1976]DLCA7969

AMISSAH JA

KINGSLEY-NYINAH JA

HAYFRON-BENJAMIN J.A.

W.A. N. ADUMUA-BOSSMAN FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1976]DLCA7969
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													<main id="main" class="content" style="min-height: 60rem" >VANDERPUYE <o:p></o:p>vs.<o:p></o:p>NARTEY <o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28TH DECEMBER, 1976<o:p></o:p>

</div>COUNSEL.<o:p></o:p>W.A.
N. ADUMUA-BOSSMAN FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

NO
APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<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:0cm 0cm 1.0pt 0cm">

AMISSAH JA, KINGSLEY-NYINAH JA, HAYFRON-BENJAMIN
J.A.<o:p></o:p>

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

</div>JUDGMENT OF AMISSAH J.A.<o:p></o:p>Amissah J. A. delivered the judgment of the court. In July this
year we allowed the appeal of Dr. Nee Attoh Vanderpuye, the appellant, against
a decision of Edusei J. dismissing a motion brought by the appellant. The
motion was for an order for the interim protection of property pending the
final determination of the case between the parties, and the payment of moneys
absolutely to the appellant. Our order upon allowing the appeal was that the
Registrar-General or his representative be appointed as receiver to protect the
property in the case pending its determination. We made no order in respect of
the payments of the moneys. The grounds for the learned High Court judge’s
dismissal of the motion were that another application similar to the present in
all material particulars had been before Griffiths-Randolph J. earlier and had
been dismissed. If the applicant was aggrieved by that ruling his proper
course, according to Edusei J., was either to appeal against it or in an
appropriate instance to ask for a review. Failing that, the aggrieved person
could not be heard to say that he had in his possession new evidence which
entitled him to move the court anew on the same issue.<o:p></o:p>Subsequently, the learned judge must have been assailed by doubts
as to the correctness of his order. For he magnanimously admitted to such
doubts when leave of him was sought for an appeal to be lodged against his
ruling. The complaint of the appellant on this point was that the learned judge
had treated the application as res judicata. But although there was
justification in seeking an end to interlocutory applications on the same
point, there was nothing preventing the presentation of a fresh motion if fresh
material on the issue became available. The applicant was, therefore, not
advocating an unrestricted right to bring any number of motions on the same
subject before the court. He recognised the limitations which the court’s power
to dismiss applications for frivolity or vexatiousness imposed on the
unsuccessful applicant considering a fresh application. But he contended that
this power, the dimensions of which were left to the discretion of the court to
determine, was wide enough to control the applicant who after losing once on an
application decided to importune the courts with further applications based on
the same request. Once some fresh material which could weigh with a court in
deciding the merits of the application afresh is introduced, however, the
situation was different. The applicant was entitled to re-apply even though he
had lost in the previous round.<o:p></o:p>The submission seems to us to have much merit. This is not an area
where reported decisions are available. And counsel did not refer us to any.
But one practical example ought to put his case beyond dispute. Assume an
applicant in a land case bringing a motion for an interim injunction but
failing to secure it on the ground that the respondent has not been responsible
for activities occurring on the land. Assume subsequently there is irrefutable
evidence that the respondent has been carrying on such activities. Would the
court summarily dismiss the fresh application brought summarily on the ground
that a similar application on the point had been dealt with? If that were so
parties to a case would acquire immunity from a simple victory in an
interlocutory matter, thereby obtaining a licence to act exactly as they please
on the issue, however adversely that may affect the interest of their opponents
while the substantive case is in progress. But it is well known that the situation
of the parties in relation to one another during the currency of a case may
keep altering from time to time and the courts would find themselves incapable
of giving interlocutory relief if some principle like res judicata were to be
introduced into this area to fix positions which cannot and, indeed, ought not
to be so fixed.<o:p></o:p>If there is new matter which changes the positions of the parties,
a court should look at it to determine whether the prayer in a motion for
interlocutory relief ought to be granted despite the fact that a similar motion
has already been disposed of in relation to the same question. The courts must
be left to determine at their discretion when a party is using their processes
to pursue his frivolous or vexatious ends.<o:p></o:p>In this case we were satisfied at the hearing that the learned
judge ought not to have shut out the applicant on the preliminary objection
that he had already brought a similar application unsuccessfully on the issue.
The applicant had raised fresh points which appeared genuine enough and which
if true might on a fair examination induce a court to grant him the relief that
he sought.<o:p></o:p>