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March 8, 1963
HIGH COURT
GHANA
CORAM
JUDGMENT OF PREMPEH J.
In this action the plaintiff’s claim is for an order setting aside the judgment given by the Land Court, Accra, in suit No. L.S. 110/56 between the plaintiff and defendant herein in which suit the plaintiff claimed a declaration of title to land described by the writ on the ground that new or fresh evidence has been discovered by her which was not available to her at the time of the trial of the said action and that if this fresh evidence had been available at that trial, the judgment delivered would have been different from what it was.
The defendant in paragraph 5 of the statement of defence carried the effect of the previous judgment referred to a little further. He averred that there was an appeal from that judgment to the then appeal court of Ghana, and that the said appeal was dismissed. On the 29th January, 1963, I ordered the preliminary issue to be argued as to whether or not the plaintiff should have first obtained leave of the court before bringing such an action.
Counsel for the plaintiff has submitted that in an action to set aside a previous judgment of the court, the procedure was by a regular writ of summons, and that no leave of the court ought first to be obtained, and in support of this contention, he relied on the cases Kennedy v. Dandrick1 and Jonesco v. Beard.2 It is to be observed that in each of these cases the action was brought to set aside the previous judgment on the ground that it had been obtained by fraud, and it was held that in such case, proceedings could be started to impeach that judgment by a regular action in which the particulars of the fraud must be exactly given.
In the instant case, the plaintiff does not claim to set aside the previous judgment on the ground that it was obtained by fraud. His case is that she has now discovered fresh evidence which was not available to her at the time of the trial of the suit, and which if it were available and had been used, the judgment of the court would have been different. It was held in the case of Falck v. Scottish Imperial Insurance Co.,3 that in such circumstances the leave of the court should first be obtained before bringing a regular action, and that such leave would not be given unless firstly the alleged fresh evidence is shown to the court to be material, secondly that it has been discovered since the decision, and thirdly that it could not with reasonable diligence have been discovered before.
In this case, the plaintiff has not obtained
AI Generated Summary
Prempeh J considered a fresh action brought by the same parties from Land Court, Accra suit L.S. 110/56, in which the plaintiff had previously sought a declaration of title to land. In this new action, she asked the court to set aside that earlier judgment on the basis of newly discovered evidence she said was unavailable at trial and would have altered the outcome. The defendant’s defence pointed out that the earlier judgment had already been appealed to the then appeal court of Ghana and that the appeal was dismissed. The judge ordered argument on a preliminary issue: whether prior leave was required before commencing such an action. Distinguishing fraud-based authorities (Kennedy v. Dandrick; Jonesco v. Beard) from the present non-fraud claim, and relying on Falck v. Scottish Imperial Insurance Co., the court held prior leave was required. Because no leave had been obtained, the action was struck out, liberty to apply was granted, and the defence was awarded 25 guineas costs.