VANDERPUYE vs. NARTEY [1977]DLCA1436

Date	1977-12-28
Suit No.
Citation No.	[1977]DLCA1436

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.

[1977]DLCA1436
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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>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 428<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:
28 DECEMBER
1976<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">

W.A. N. ADUMUA-BOSSMAN FOR THE APPELLANT.<o:p></o:p>

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:0in 0in 0in 0in">

AMISSAH, KINGSLEY-NYINAH AND HAYFRON-BENJAMIN
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>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><o:p>&nbsp;</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><o:p>&nbsp;</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><o:p>&nbsp;</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><o:p>&nbsp;</o:p>In this
case we were satisfied at the hearing that the learned judge ought not to have
shut out the appli</main>