ADAM VRS NUAMAH (J4/09/2024) [2024] GHASC 49 (11 November 2024)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024

Coram

OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC ASEIDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC

Civil Appeal

NO. J4/09/2024

11TH NOVEMBER, 2024

AHMED MUDDY ADAM ……. PLAINTIFF/APPELLANT/RESPONDENT VRS FRANK NUAMAH ……. DEFENDANT/RESPONDENT/APPELLANT

Judgment

DARKO ASARE JSC;

1. My Lords, the question argued upon the hearing of this appeal is one of some considerable importance. It invites a reconsideration of the critical issue Page 2 of 69

concerning the circumstances under which a judgment entered in default proceedings may be vacated on grounds of fraud.

2. This issue has lately become a matter of growing concern within the legal community, prompting expressions of concern from this Court regarding the proliferating practice of litigants leveraging unfounded allegations of fraud to undermine the finality of judgments rendered by courts of competent jurisdiction. See for instance, the views expressed by our illustrious Pwamang JSC in the recent case of John Bobie v 21 Century Constructions Ltd & 7 Ors, Civil Appeal No. J4/5/2014 (9th March 2016).

3. It reflects a tension between, on the one hand, the public policy consideration in favour of the finality of litigation and, on the other, the desire to do justice in individual cases and not permit vexatious litigants to benefit from their misuse of the court system.

4. The facts on which this instant appeal turned, which were found by the two lower courts not to be in controversy, may be briefly stated.

Facts

5. The Appellant herein (as Plaintiff), instituted an action on the 4th day of April 2002 against one Adjei Darko at the High Court, Accra in suit no L205/2002, titled Frank Nuamah v Adjei Darko. The said suit no. L205/2002 was presided over by Ocran J.

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6. During the pendency of the action, one Francis Don Lartey was joined as the 2nd Defendant upon his own motion. Subsequently, upon an application by the Appellant (then Plaintiff), the Respondent was joined as the 3rd Defendant, pursuant to disclosures made in pleadings filed by Francis Don Lartey, wherein he averred that his interests in the disputed land had been assigned to the Respondent

7. No steps having been taken by any of the Defendants including the Respondent herein (as 3rd Defendant), to defend their interests in the said suit no. L205/2002, default judgment was entered against them and a date set for the Appellant to prove his claim, following which the trial court entered final judgment in favour of the Appellant on the 27th of May 2015. An application by the Respondent to set aside the default judgment on grounds that the said judgment had been obtained without any notice to him, was refused by Ocran J. Significantly, the Respondent did not appeal against this decision

8. The Appellant subsequently took steps to execute the judgment and later successfully instituted contempt proceedings against the Respondent for obstructing the execution processes. After his conviction for contempt of court, the Respondent instituted the instant proceedings now under appeal to set aside the earlier proceedings in suit no L205/2002 on grounds of fraud. The reliefs endorsed on the writ of summons prayed as follows: -

“i. A declaration that the judgment of this Court dated the 27th day of March 2015 was procured by fraud, misrepresentation, breach of the rules of natural justice and want of jurisdiction. Page 4 of 69

ii. An order setting aside the judgment of this Court dated 27th March, 2015 pursuant to (i) above. iii. An order of perpetual injunction restraining the defendant/respondent, his agents, servants, assigns, privies and/or any person(s) howsoever claiming through them from entering upon or interfering with Plaintiff’s right to, ownership of and quiet enjoyment of all that piece or parcel of land situate or lying and being at Roman Ridge measuring 0.51 acre and bounded on the North East by land measuring 250 feet more or less, South East by a proposed road measuring 100 feet more or less, on the South West by a lane measuring 140 feet more or less, North West by land measuring 150 feet more or less”.

9. At the trial, the Respondent (as Plaintiff) contended that although the Appellant (as Defendant) claimed to have brought to his attention, the proceedings leading to the judgment in the said suit, t he Respondent only got to know of the judgment sought to be enforced after the contempt proceedings were initiated against him. In particular he contended that he was misled by the fraudulent misrepresentations of the Appellant and by the concealment of re levant information touching on services of proper notices of hearing, which resulted in his inability to defend the action in suit no L205/2002. He further maintained that the Appellant was not properly seised with a valid cause of action and further urged the trial court to declare that the entry of judgment in suit no. L205/2002, was vitiated on grounds of mis-description of the disputed land and for misnomer of the Respondent

10. The Appellant on his part, denied that he had in any way misled the Respondent or had been guilty of any act which constituted a fraud on the trial court. He insisted that proper notices of hearing were duly served on the Respondent at Page 5 of 69

all material times, prior to the delivery of the judgment in suit no L205/2002, and that it was the Respondent who by his own default had neglected to appear at the trial and defend his interests. He controverted the allegation that the judgment obtained in suit no L205/2002 was tainted by fraud.

11. After a full-scale trial, the learned trial Judge in what we consider to be a wellreasoned judgment, expressed herself as finding no favour with the contentions urged on her by the Respondent. She concluded that the judgment in suit no L205/2002 was not vitiated by fraud, and proceeded to dismiss the Respondent’s action in its entirety.

12. Obviously aggrieved and dissatisfied with the judgment of the trial court, the Respondent forthwith lodged an appeal to the Court of Appeal and formulated a myriad of grounds of appeal which in a nut shell no more than complained that the decision of the trial court was against the weight of the evidence on the record, and not warranted by law

13. The Court of Appeal allowed the appeal and reversed the judgment of the trial court, the learned Justices of Appeal forming the view that sufficient evidence existed on the record to support the Respondent’s allegations that the judgment obtained in suit no. L205/2022 was vitiated by fraud.

14. It is this judgment of the Court of Appeal that is presently under appeal to this Court. The following grounds of appeal have been formulated: -

i) The holding by the Court of Appeal that there was no evidence that the plaintiff/appellant/respondent had been served with notice of the date for trial in the case Page 6 of 69

of Frank Nuamah v. Adjei Darko & 2 ors. (Suit No. L205/02) was against the weight of

The Evidence

ii) The holding by the Court of Appeal that the judgment of the High Court dated 27th March 2015 in the suit titled Frank Nuamah v. Adjei Darko & 2 ors. (Suit No. L205/02) was procured by the fraud defendant/respondent/ appellant was against the weight of iii) The Court of Appeal erred in law when it held that the High Court lacked jurisdiction to proceed to hear the matter and enter the judgment of the 27th of March 2015

Analysis

15. In the instant case, the Court of Appeal, had resolved the fundamental issue of fraud in favour of the Respondent, concluding as follows: -

“In the instant case, while the evidence of non-service of the hearing notice of the commencement of trial was so clear and was admitted by the Defendant's attorney, the said default was alleged to have been suppressed by the Defendant from the court below during the first trial proceedings and thereafter had the undue advantage of proceeding with the case on the blind side of the Plaintiff. The conduct of the court in the first proceedings, his default in ensuring service of the Defendant of purportedly suppressing or concealing from the trial - hearing notice on the Plaintiff, falls within the definition of civil fraud as was applied by this court in the case of Good Shepherd Mission v Sykes & Others [1997 -1998] 1 GLR 978 at

16. It is this conclusion that has drawn such acerbic criticism from learned counsel for the Appellant who forcefully contends that the said determination is against Page 7 of 69

the weight of the evidence on the record. Conversely learned Counsel for the Respondent contends that the Court of Appeal’s judgment is impregnable and should not be disturbed. As the apex Court our duty is to examine these rival contentions and determine which is more tenable.

17. Now, the fact that fraud unravels even the most solemn of proceedings is so well entrenched in our civil jurisprudence as not to require any detailed restatement here.

18. Taylor JSC in the oft-cited case of Dzotepe v Hahormene III [1987-88] 2 GLR 681 expounded the proposition in the following words: -

"In Kerr on Fraud and Mistake 7th Edition at P 416 it is stated on the authority of De Grey CJ in Duchess of Kingston's Case [1776] 20 st Tr 355 at 357 that "Fraud is an intrinsic, collateral act, which vitiates the most solemn proceedings of court of Justice and Lord Coke is quoted as saying "it avoids all judicial acts ecclesiastical and temporal"

19. Generally speaking, the Courts have established broad principles governing the setting aside of judgments on grounds of fraud, including:

- Particulars of fraud must be specifically pleaded and strictly proven. - Only fraud may be alleged and proven. - Fraudulent facts must directly cause the impugned judgment. - Material deception of both parties and the court must be shown. - Prohibition against re-litigating previously available issues - There was new evidence before the court Page 8 of 69

20. These principles reinforce the proposition of the law that such an action is an independent claim, in which it is only the fraud and its impact on the original decision that needs to be proved. The court’s task is not to retry the issues in the underlying action, or to speculate as to how the trial judge would have ruled if the full and accurate evidence had been before them. See cases like John Kwadwo Bobie v. 21st Century Co. Ltd & 7 others; Civil Appeal No. J4/5/2014 (9th March 2016); Okwei Mensah (Decd) (acting by) Adumuah Okwei v Laryea (Decd) (acting by) Ashieteye Laryea & Another [2011] 1 SCGLR 317, and Brutuw v Aferiba [1984-86] 1 G.L.R 25

21. In our considered view, the fundamental issues to be resolved in this appeal, after a careful examination of the grounds of appeal, alongside the record of appeal as well as the submissions filed by learned Counsels for the Parties herein, can be stated thus: —

i) Whether the Respondent’s pleading sets forth a cognizable claim of fraud ii) Whether the Appellant had fraudulently concealed from the trial court in suit no LS205/2022 the fact that the Respondent had not been served with notice of the date of trial before judgment was obtained in that suit iii) Whether there was sufficient evidence to warrant a conclusion that t he judgment in suit no: L205/2002 was procured by the fraud of the Appellant

22. The focal point of this delivery will therefore be directed at answering the main questions identified from our examination of the record.

i) Whether the Respondent’s pleading sets forth a cognizable claim of fraud Page 9 of 69

23. We must begin our enquiry by making the observation first and foremost that the Respondent's attempt to impeach the judgment in Suit No. L205/2002 on grounds of fraud appears to have been accompanied by reliance on supplementary facts, devoid of any fraudulent element.

24. Indeed, it seems quite plain to us that notwithstanding the manner in which the Respondent articulated his pleadings, his clear intent was to expand the scope of his challenge beyond the core fraud allegation. This is borne out by the pleadings submitted to the lower court, which interposed extraneous matters, including the alleged mis-description of the land, misidentification of the Respondent, and questionable validity of the Appellant's cause of action in Suit No. L205/2002

25. After meticulous consideration, we have determined that the allegations regarding absence of cause of action, mis-description of the subject matter, and misidentification of a party do not provide a legitimate foundation for a claim of fraud. Clearly, the validity of a cause of action, for instance, is a legal issue and cannot be construed as fraudulent conduct by one party against another in the context of litigation. In the case of Okwei Mensah (Decd) (acting by) Adumuah Okwei v Laryea (Decd) (acting by) Ashieteye Laryea & Another [2011] 1 SCGLR 317, Yeboah JSC expressed similar views of the law when he posited as follows: -

“If there is a misrepresentation of a matter of law as to the legal consequences of admitted facts, in the absence of actual fraud no court will grant any relief based on fraud.” Page 10 of 69

26. In the case the case of Brutuw v Aferiba [1984-86] 1 G.L.R 25., Francois JA (as he then was) in characteristic felicitous language articulated the same position of the law as follows: -

“In a suit charging fraud there is clear impropriety for a plaintiff to reopen his entire case. Jonesco v. Beard [1930] A.C. 298 at 300-301, H.L. is authority for the principle that where a judgment is attacked for fraud fraud only must be in issue. It is not a rehearing of the whole case. Unfortunately learned counsel for the plaintiff proceeded even at the appeal stage to subvert this principle, acting as if everything was at large. See also John Bobie v 21 Century Constructions Ltd & 7 Ors, (supra)

27. By interposing additional claims beyond the central issue of fraud in his pleadings, the Respondent plainly attempted to revive a previously adjudicated suit, thereby flagrantly contravening the well-established legal principle that a party seeking to vacate a judgment on grounds of fraud must rely solely on that ground, to the exclusion of all other considerations. This clear aberration can hardly be ignored by any court of law.

28. On principle and sound authority therefore, all the urgings made to this Court on behalf of those complaints touching on absence of a valid cause of action, mis-description of the disputed land and misidentification of the Respondent, are in the context of this particular litigation, altogether tenuous. Accordingly, we do not intend to burden this delivery with any consideration of those issues, save to emphasise that the claims relating thereto reflect a complete mis - Page 11 of 69

apprehension of the true nature of an action seeking to set aside a judgment on grounds of fraud. Resultantly, it must be rejected outright.

29. Having so determined, we will now turn our attention to a consideration of the main issue which engaged the Court of Appeal and which it seems to us, constituted the cornerstone of the judgment under appeal before this Court.

ii) Whether the Appellant had fraudulently concealed from the trial court in suit no LS205/2022 the fact that the Respondent had not been served with notice of the date of trial before judgment was obtained in that suit

30. We have carefully reviewed the record of appeal and we unhesitatingly agree with learned Counsel for the Appellant that in reaching the conclusion that the Respondent had not been served with hearing notice for the commencement of the trial in suit no L205/2022, the Court of Appeal poignantly lost sight of one key piece of evidence, whereby the trial Judge Ocran J had explicitly verified and satisfied himself as to the endorsement of a notice of the date for hearing of the Appellant’s (then Plaintiff) claim on an Entry of Judgment filed in the suit in question.

31. At page 144 of the record of appeal, Ocran J is found to have delivered himself as follows: -

“The Plaintiff then filed entry of interlocutory judgment on which the date to (sic) proof title was indicated” (emphasis)

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32. The far-reaching ramifications of this critical finding of fact by Ocran J in suit no L05/2002, and its overarching impact on other major issues raised in this appeal would momentarily be made manifest.

33. For now, it is sufficient to say that the learned Justices of Appeal would long have hesitated before reaching their conclusions, had they properly apprehended and applied their minds to the salient evidence establishing that Ocran J. had previously verified the presence on the record, of adequate notice of the date for trial in that suit. The learned Justices of Appeal failed to do so, and on this ground alone, we are persuaded that their decision must be reversible.