SASRAKU III vs. ELLIS & WOOD FAMILIES [1984]DLHC681

Date	1984-06-25
Suit No.
Citation No.	[1984]DLHC681

KPEGAH J.

DAWSON FOR THE PLAINTIFF.

N. K. KUDJAWU FOR THE DEFENDANTS.

[1984]DLHC681
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													<main id="main" class="content" style="min-height: 60rem" >SASRAKU III <o:p></o:p>vs. <o:p></o:p>ELLIS &amp; WOOD FAMILIES<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1980] GLR 498<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:
25
JUNE 1987<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">

DAWSON FOR THE PLAINTIFF.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF KPEGAH J.<o:p></o:p>This case
involves a consideration of Order 26, r. 1 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A)—the circumstances under which a plaintiff can
discontinue a case with leave and still retain his cause of action. In the
process, I will necessarily consider the discontinuance of an action without
leave of the court.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff in the instant case, by a writ of summons taken out on 10 July 1984
seeks the following reliefs from the court:<o:p></o:p>“(a) an
order that a deed of conveyance dated 5 February 1986 and a certificate of
purchase dated 18 September 1903 in respect of the Twifu Hemang stool lands be
set aside as void for irregularity and for fraud; (b) declaration of title; and
(c) an order of perpetual injunction.”<o:p></o:p><o:p>&nbsp;</o:p>On 12
July 1984, i.e. two days after the writ was issued, and before entry of
appearance of the defendants, the plaintiff brought an ex parte application for
an order of interim injunction which was granted. This opened the gates for a
series of interlocutory applications by both parties to the detriment, in terms
of speedy trial, of the substantive case itself. But later, pleadings were
finally closed and issues settled for trial. The defendants pleaded estoppel by
acquiescence and estoppel per rem judicatam. I will consider this plea in
greater detail later in this ruling because of its extreme relevance, in my
view, to whether the plaintiff should still retain his cause of action. Suffice
it to say at the moment that the plea is not fanciful but formidable.<o:p></o:p><o:p>&nbsp;</o:p>I will
now return to the specific facts of the case. When the case appeared on my list
after my transfer to Cape Coast, I decided to set it down for hearing. The case
was therefore fixed for hearing on 6 May 1987. <o:p></o:p>On 7
April 1987 the plaintiff, acting per his solicitor, Mr. Dawson, filed a “notice
of discontinuance” asking the defendant to:<o:p></o:p>“TAKE
NOTICE that the plaintiff herein will at the next hearing ask leave to
discontinue this action against the defendants herein with liberty to apply.”<o:p></o:p><o:p>&nbsp;</o:p>As often
happens in our courts, the plaintiff and his counsel did not attend court on
the said adjourned date; obviously taking the view that the notice of
discontinuance filed by the plaintiff is enough to dispose of the matter and
reserve in him the right to bring a fresh action.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the defendants, Mr. N. K. Kudjawu, said he had no objection to the
discontinuance of the action by the plaintiff but urged the court to refuse
liberty to bring a fresh action. Counsel said the case had been going on for
over a century and at every turn the defendants had won and the plaintiff’s
predecessors were declared losers. The last judgment in the case was by Edward
Wiredu J. (as he then was) on 22 July 1974. The plaintiff’s predecessor-in-title
who lost the case filed an appeal but failed to fulfil the conditions of appeal
and the appeal was dismissed by the Court of Appeal. From the records in the
docket, the appeal was dis</main>