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

Page 1 of 69 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. Page 3 of 69 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 well- reasoned 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 the evidence 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 991……” 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) Page 12 of 69 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. 34. Quite apart from the above, our examination of the record yields an other pertinent piece of evidence which was even more dispositive and rendered the decision reached by the Court of Appeal faulty. 35. At paragraph 31 of his affidavit in support of motion to set aside the impugned default judgment in suit no. L205/2022, date d the 27th March 2015, the Respondent deposed under oath as follows: - 31. That my lawyers have advised me and I verily believe same to be true that by an order of this Court dated the 12th of January 2015…., exhibited hereto and marked L, this Court ordered among others that I be served with the entry of interlocutory judgment in which was incorporated the date on which the Plaintiff was required to prove his right to the land in the following manner: - (emphasis) Page 13 of 69 36. This critical piece of affidavit evidence under oath clearly suggests that the Respondent well and truly acknowledged the presence on the record of adequate notice of the hearing date specified in the Entry of Judgment. Regrettably, the Court of Appeal failed to consider, let alone evaluate the substantial significance of this critical piece of evidence in relation to the issue before it. 37. Apart from constituting an admission against interest as held by this Court in the famous case of Akufo-Addo v. Catheline, [1992] 1 GLR 377 citing with approval the dictum of Fletcher Moulton L.J. in Tucker v. Oldbury Urban Council (1912) 2 K.B. 317, at 32, the Respondent’s depositions under oath Respondent also appears to be caught by the conclusive presumption examined in such cases as Kusi & Kusi V Bonsu [2010] SCGLR 60 @ 64 where this Court held that by s.25 of the Evidence Act 1975 (NRCD 323) facts recited in a written document are conclusively presumed to be true between parties and all claiming under them thereby creating an estoppel by written conduct. 38. From the available evidence on the record therefore, it becomes too plain for argument or dispute that having regard to the explicit representations by the Respondent on the record, it was not open to him to set up a contrary case denying the presence on the record, of adequate notice of the hearing date for proof of the Appellant’s (as Plaintiff) claim on the merits in suit no. L205/2002. Lamentably, the learned Justices of Appeal failed to properly evaluate and draw appropriate inferences from the established evidence on the record and in this, we think, they erred. Page 14 of 69 39. We now turn to a consideration of the second leg of the Court of Appeal’s decision by which it determined that the judgment p rocured in suit no L205/2002 was procured by evidence tainted with fraud. iii) Whether there was sufficient evidence to warrant a conclusion that the judgment in suit no: L205/2002 was procured by the fraud of the Appellant 40. Underlying the Court of Appeal's finding of fraudulent procurement of the judgment in Suit No. L205/2002 was its determination that the evidence relating to the bailiff's certificates of service was marred by material misrepresentations, fraudulent suppressions, and concealment attributable to the Appellant. 41. In reaching the above conclusions, the Court of Appeal reasoned that even though the affidavits verifying service of various notices on the Respondent were all deposed to by one bailiff, they contained different signatures and this ought to have warranted a full-scale investigation by the trial court. This however was not done. 42. The Court of Appeal further took the view that the evidence purporting to establish service of notices on the Respondent in Suit No. L205/2002 was compromised. Consequently, it rejected the trial court's reliance on these postings to establish notice of trial, concluding that they lacked evidentiary value and were therefore “irrelevant." 43. We have on our part scrupulously examined the judgment of the Court of Appeal in the light of the established evidence on the record and regrettably, Page 15 of 69 we are unable to find any justifiable basis for its conclusions. We set out our reasons hereinafter. 44. As already indicated above, the authorities recognize certain general principles governing an action to set aside a judgment on grounds of fraud but for purposes of this segment of our consideration, we intend to focus on three of these requirements, namely: - i) the successful party (or someone for whom it must take responsibility) committed conscious and deliberate dishonesty, ii)the party alleging fraud must establish that both himself and the court were materially deceived by the party in whose favour judgment was entered, and that the dishonest conduct was material to the original decision, and iii)there was new evidence, which was not discoverable at first instance, through the use of ordinary diligence. See the views of Atuguba JSC in Dr Kwame Appiah Poku v Kojo Nsafoah Poku Civil Appeal No. J4/6/2010 dated 26th May 2010, citing with approval the case of Anyimah III v. Kodia IV (1962) 2 GLR 1 45. We will now undertake a review of the evidence on record in relation to the three-fold criteria articulated above, with a view to determining whether the Court of Appeal's determination of fraud was well-founded in law and fact. i) Fraudulent Conduct Attributable to Appellant Page 16 of 69 46. From the nature of the case of fraud put forward in this case, perhaps the primary inquiry to be addressed is whether the record establishes that Ocran J was induced into error by a specific and material act or omission attributable to the Appellant, leading to an erroneous assumption that the Respondent had been duly served with hearing notices before delivering judgment in Suit No. L205/2002 47. As previously held, our examination of the record reveals no credible evidence to support the Court of Appeal's determination that the Appellant intentionally withheld the fact that there was no notice of the hearing date in Suit No. L205/2002. With this allegation thus dismissed, our review of the record yields no additional evidence suggestive of fraudulent conduct by the Appellant. 48. Preliminarily, as to the claim that the Appellant presented falsified certificates and affidavits of service bearing forged signatures, we observe that any potential falsehoods in the service process do not necessarily imply personal culpability on the part of the Appellant, considering that service of process, falls within the purview of court bailiffs and process servers, who operate independently of the parties' control. 49. Again, even if it is true as determined by the Court of Appeal that the various certificates of service contained varying signatures of the bailiff who purportedly effected those services, we are not satisfied that the record reflected any hard evidence establishing any direct nexus between those anomalies and any specific fraudulent conduct on the part of the Appellant. Page 17 of 69 50. This is more so when it is remembered that the provisions of Order 7 Rule 9 of CI 47 provide that an affidavit of service signed by the person who effects service shall, “on production without proof of signature, be prima facie evidence of service”. 51. On the authority of such cases as Bank of West Africa Ltd v Ackun [1963] 1 GLR 176, this provision has the effect of invoking a presumption of regularity, thereby placing the burden on the Respondent to establish that the documents of service were forged or fabricated, and that the Appellant, and no one else, was culpable, always bearing in mind that the standard of proof required to discharge such allegations, is one of proof beyond reasonable doubt. See Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 and Sasu Bamfo v Sintim [2012] 1 SCGLR 136. 52. The Respondent having failed to discharge the onerous burden thrust upon him, it is the judgment of this Court that he has woefully failed to meet the first criteria for vacating a judgment on grounds of fraud, and this, we deem to be fatal to his entire action. The Court of Appeal failed to advert its mind to these critical lapses in the Respondent’s action and this was erroneous on its part. ii) Impugned Conduct Directly Induced Court to be Mis-led 53. Apart from failing to meet the first test required to support an action based on fraud, we are also not satisfied that the Respondent succeeded in adducing sufficient evidence to meet the second test which requires that the alleged fraudulent conduct must have the effect of deceiving the court. Page 18 of 69 54. We have earlier noted that it was Ocran J who himself verified from the record and satisfied himself as to the existence of appropriate notices of hearing per the Entry of Judgment, before proceeding to hear evidence in proof of the Appellant’s claim. Seen in this light therefore we fail to see how it can be said with any degree of certainty that Ocran J was deceived by any conduct bordering on fraud on the part of the Appellant or any other person under his instructions. 55. The failure to prove that there was any evidence to suggest that Ocran J was misled into entering the impugned judgment in suit no L205/2002, was fatal to the Respondent’s action founded on fraud. The Court of Appeal on account of this vulnerability alone, ought to have restrained itself from interfering with the trial court’s verdict, dismissing the Respondent’s action at first instance. Presence of new evidence, which was not discoverable at first instance, through the use of ordinary diligence. 56. By the same token it seems to us that the last leg of the three-pronged test which requires new evidence to establish the presence of fraud is also absent in this suit. 57. The law is that the new evidence relied on to prove fraud ought not to have been available at the trial of the suit where th e impugned judgment was obtained. It is also required that the said new evidence ought not to have been discoverable through the use of ordinary diligence, even though the weight of contemporary judicial thinking appears to be shifting in favour of the position Page 19 of 69 that failure to discover the new evidence through the use of ordinary diligence may not always be necessarily fatal. See the recent case of Takhar v Gracefield Developments Ltd [2020] UKSC 13 where there were pronouncements made by the Court which seemed to suggest that the innocent party is not obliged to show that the fraud could not have been discovered before the original trial by reasonable diligence on his or her part, especially where the alleged fraud had not been in issue in the original proceedings, even if the judgment was entered after a trial on the merits. 58. The pivotal question arising from the facts of this case is, what evidence was relied upon by the Court of Appeal to vacate the impugned judgment obtained in Suit No. L205/2002 and whether that meets the threshold of 'new' evidence required to sustain an action for fraud. 59. The evidence adduced to prove fraud consisted of certificates and affidavits of service executed by the court bailiff proving services of various notices on the Respondent in the course of the proceedings held in suit no. L205/2002. This is the evidence which was determined by the Court of Appeal to be questionable in character and imputed fraud on the part of the Appellant. 60. Notably, this same evidence had previously undergone rigorous scrutiny in prior judicial proceedings, where their authenticity was extensively tested and verified. 61. Thus, for instance, in the earlier proceedings had before Ocran J in suit no L205/2002, upon an application to set aside the impugned judgment, the same question we are called upon to answer in this appeal was answered by the trial Page 20 of 69 court in the negative, holding that there was no evidence that those documents had been forged or were not authentic. Again, in contempt proceedings intituled The Republic v Alhaji Adams numbered CR 785/16, held before the High Court, differently constituted by Mensah J, the authenticity of these same documents came under intense judicial scrutiny; again, they were verified and authenticated by the court. 62. Instructively, Mensah J in the afore-mentioned contempt proceedings, had this to say regarding the evidence relied upon to support Respondent’s claim of fraud: - “Per the processes filed in this court the Respondent cannot be in denial of having knowledge of the suit leading to the execution.” [page 90 Vol. 1 Record of Appeal] 63. Given the prior judicial determinations upholding the authenticity of these documents, can the Respondent re-litigate this issue by presenting the same documents as novel evidence to support a claim of fraud? We hold that they cannot. 64. We hold that permitting parties to repeatedly re-litigate issues already resolved in prior judicial proceedings would subvert the fundamental principle of judicial finality, contravening the well-established policy of promoting closure and certainty in legal disputes. 65. It follows therefore, upon a careful review of the record on appeal, that the allegations impugning the authenticity of the certificates and affidavits of Page 21 of 69 service do not meet the threshold of “new” evidence required to sustain an action for fraud. The Court of Appeal misconstrued the applicable law on this issue, and we hold respectfully, that it committed reversible error. 66. Beyond the concerns we have raised touching on the denigrated character of the evidence relied on by the Respondent to support his action of fraud, we must also question the manner in which the Court of Appeal peremptorily assigned the burden of proof without regard to the peculiar circumstances it was confronted with. 67. It is true as held by the Court of Appeal that as a general proposition of the law, if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative. See cases like George Akpass v Ghana Commercial Bank Ltd [Unreported; Civil Appeal No J4/08/2021; 6 June 2021; SC], citing with approval the case of Boakye v Asamoah & Anor. [1974] 1 GLR 38. 68. However, it is equally true that the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption of law has arisen. See similar views expressed by the Sarkodee-Addo JSC in the case of Bank of West Africa Ltd v Ackun [1963] 1 GLR 176 at page 181 69. In the present case, certain legal presumptions and consequences arise from the factual determinations made by Ocran J in Suit No. LS 205/2002 regarding Page 22 of 69 evidence of notice of the trial as appeared in the Entry of Judgment on the record. Sections 126(1), 37(1), and 39(1) of the Evidence Act, 1975 (NRCD 323), collectively establish that a judgment of a superior court of competent jurisdiction constitutes an admissible official document, and a presumption of regularity attaches to the performance of official duties and the lawful exercise of jurisdiction. 70. Meanwhile section 20 of the same NRCD 323, imposes on the party against whom the presumption operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact. See GPHA v Nova Complex Ltd [2007-2008] SCGLR 806 71. It logically follows therefore that the burden of rebutting those factual determinations in Ocran J’s judgment, concerning notice of the date of the trial as reflected in the Entry of Judgment, ought to have rested on the party making such challenge, (in this case the Respondent) and not the Appellant. The Court of Appeal failed to grasp the correct legal principle on this point, and we conclude, with due deference, that it erred in its determinations 72. From the above exposition of the facts and the law, it becomes abundantly clear that not only did the Court of Appeal, fail to correctly identify the nature of the dispute before the Court, the primary issues involved, the nature of the evidence led, and the correct approach in resolving those issues, but more importantly, the findings and conclusions reached were faulty and reversible. 73. In the final analysis, it is sufficient to say that when the record of appeal has been reviewed in its entirety, we are inclined to give the same answer as did the Page 23 of 69 learned trial Judge in the court of first instance and it is this: the Respondent’s claim of fraud against the judgment in suit no L205/2002 was not substantiated, rendering the reliefs sought in his writ of summons entirely without merit. CONCLUSION 74. All said, we think that sufficient reasons have been assigned to dispose of this appeal in favour of the Appellant the result of which is that the appeal succeeds and the judgment of the Court of Appeal is hereby set aside. The judgment of the trial court is restored and the Respondent’s action based on fraud is hereby dismissed in its entirety. (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) (SGD.) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION ASIEDU JSC: [1.0]. Introduction: Page 24 of 69 My lords, the main issue in this appeal is whether or not fraud has been successfully proved by the Plaintiff/Respondent herein to warrant the setting aside by the Court of Appeal of the judgment delivered by the trial High Court on the 20th day of November 2020 in Suit Number LD/0626/2017. [1.1]. Facts: My lords, in April 2002, Frank Nuamah the Defendant/Appellant herein instituted an action in suit number L205/2002 against one Adjei Darko for declaration of title and recovery of possession of a parcel of land situate and being at Roman Ridge in Accra. In the course of the proceedings, specifically in 2007, Francis Don Lartey successfully applied to be joined thereto as the 2nd Defendant on the ground that the land claimed by Frank Nuamah was his property; having acquired same in the year 1970 from the Osu Stool. Again, in 2014, Alhaji Adams was joined to the suit as the 3rd defendant. Frank Nuamah eventually obtained judgment in the matter against the Defendants therein on the 27th March 2014. (See pages 79 to 81 of volume 1 of the record of appeal). This judgment was executed by the Deputy Sheriff who placed Frank Nuamah in possession of the property. Subsequently, by the engagement of thugs and force, the Plaintiff/Respondent, re-entered the land as a result of which he was cited and convicted for contempt of court in suit number CR/785/16 on the 2nd May 2017. [1.2]. After his committal for contempt of court, the Plaintiff/Respondent applied, unsuccessfully, to have the judgment entered against him in Suit Number L.205/2002 set aside. Following the above, the Plaintiff/Respondent instituted the action culminating in the instant appeal before the High Court in Suit Number LD/0626/2017. Page 25 of 69 [1.3]. After hearing evidence in Suit Number LD/0626/2017, the trial High Court, found that the Plaintiff/Respondent could not prove his claim against the Defendant/Appellant in the matter. The court therefore dismissed the Plaintiff’s suit. Dissatisfied with the judgment of the High Court, the Plaintiff lodged an appeal with the Court of Appeal which found for the Plaintiff and therefore reversed the judgment of the trial High Court in a judgment delivered on the 10th November 2022. It is against the judgment of the Court of Appeal, that the instant appeal was filed by the Defendant/Appellant herein on the 1st day of December 2022. [2.0]. Grounds of Appeal: In this appeal, the Defendant/Appellant had raised three grounds of appeal as follows: “(1). 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 the trial in the case of Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L205/02) was against the weight of evidence. (2). The holding by the Court of Appeal that the judgment of the High Court dated 27th March 2015 (sic) in the suit titled Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L205/02) was procured by the fraud of the defendant/respondent/appellant was against the weight of the evidence. (3). 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 27 th of March 2015”. (sic). By virtue of these grounds of appeal, the Defendant/Appellant prays this court for “an order from the Supreme Court setting aside the ruling of the Court of Appeal [and] re-instating the judgment of the High Court.” Page 26 of 69 [3.0]. Consideration of the Appeal: As already pointed out, after hearing evidence the trial High Court, entered judgment for the Defendant/Appellant. However, the Court of Appeal reversed the judgment of the High Court and instead entered judgment for the Plaintiff/Respondent herein. Clearly, therefore the two lower courts were not concurrent in the determination of the suit. In Gregory vs Tandoh IV & Hansen [2010] SCGLR 971, this court held in holding 2 that: “Where findings of fact such as in the instant case had been made by the trial court and concurred in by the first appellate court, that is, the Court of Appeal, then the second appellate court, such as the Supreme Court, must be slow in coming to different conclusions unless it was satisfied that there were strong pieces of evidence on record which made it manifestly clear that the findings of the trial court and the first appellate court were perverse. However, a second appellate court, like the Supreme Court, could and was entitled to depart from the findings of fact made by the trial court and concurred in by the first appellate court under the following circumstances: First, where from the record of appeal, the findings of fact by the trial court were clearly not supported by evidence and the reasons in support of the findings were unsatisfactory; second, where the findings of fact by the trial court could be seen from the record of appeal to be either perverse or inconsistent with the totality of the evidence led by the witnesses and the surrounding circumstances of the entire evidence on record; third, where the findings of fact by the trial court were consistently inconsistent with important documentary evidence on record; and Page 27 of 69 fourth, where the first appellate court had wrongly applied a principle of law. In all such situations, the second appellate court must feel free to interfere with the said findings of fact, in order to ensure that absolute justice was done in the case.” To the extent that the Court of Appeal differed from the High Court with respect to the findings and determination of the suit placed before them, this court, which is the final appellate court of the land, is at liberty to critically examine the evidence on record and come to its own conclusion. This principle was asserted when this court in Duodu vs Benewah [2012] 2 SCGLR 1306, held that: “It is well settled that; an appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. The appellate court must not disturb the findings of the trial court if they are supported by the evidence…. The Supreme Court’s duty as the final appellate court, is also to review the evidence on record to ascertain whether the findings were supported by the evidence on record, there being no concurrent findings of facts from the lower courts. And the duty of the Appellant is to demonstrate that the Court of Appeal was in error in reversing the findings of facts made by the trial judge.” [3.1]. The writ of summons and statement of claim: Ground three (3) of the grounds of appeal is to the effect that “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” (sic). In view of the claims made by the Plaintiff/Respondent (hereafter referred to as the Plaintiff), it is of utmost importance for this court, in considering this ground of appeal, to carefully scrutinize the endorsement on the writ of summons and the statement of Page 28 of 69 claim. The Plaintiff instituted the instant action, in Suit Number LD/0626/2017, on the 31st May 2017. By the writ, the Plaintiff claims against the Defendant/Appellant (hereafter referred to as the Defendant) 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. (ii). An order setting aside the judgment of this court dated 27/03/15 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. (iv). Damages for trespass unto Plaintiff’s land described in (iii) above”. In the statement of claim which accompanied the writ of summons, the Plaintiff pleaded suit number L205/2002 which was filed by the defendant against one Adjei Darko in April 2002. Subsequently, one Francis Don Lartey and Alhaji Adams were joined to the suit as the 2nd and the 3rd defendants. The writ of summons and the statement of claim were accordingly amended. The Plaintiff says that the writ was not served on him although he was convicted for contempt of court in respect of the execution of the judgment given in the suit. The Plaintiff also claims that he is not Alhaji Adams who was joined as the 3rd Page 29 of 69 defendant. In particular, the Plaintiff pleaded at paragraph 19 and 20 of the statement of claim that: “19. Plaintiff avers that at all times material to be present suit, the defendant knew or ought reasonably to have known that Plaintiff’s name is not Alhaji Adams the reason being that in earlier proceedings before this court intituled Republic v Adjei Darko and Republic v Alhaji Adams Plaintiff had indicated to this court that he is known as AHMED MUDDY ADAM. 20. Plaintiff avers that having been informed that the plaintiff’s name is AHMED MUDDY ADAM, the defendant ought to have duly and properly amended the title of the suit to reflect the plaintiff’s name but that the plaintiff nevertheless proceeded with the suit ostensibly against Alhaji Adams thereby misrepresenting to the Court that the plaintiff is the person sued.” Particulars of misrepresentation i. Representing to the court that the plaintiff is the defendant in the said suit when at all times material to the representation the defendant knew to be false. ii. Procuring orders for substituted service by falsely representing to the court that by such service the steps being taken in the proceedings will come to the plaintiff’s attention knowing fully well that since Plaintiff does not answer to the name Alhaji Adams, notice of the steps in the proceedings will not come to the plaintiff’s attention by such service. Page 30 of 69 iii. Falsely representing to the court that the plaintiff was properly notified of the steps being taken in the proceedings by reason of the execution of the orders for substituted service when at all times material to the said representation the defendant knew the representation to be false.” At paragraph 22 of the statement of claim the Plaintiff further pleaded that: “Plaintiff avers that the misrepresentations above pleaded apart, the defendant made additional misrepresentations to the Court which if brought to the attention of the Court, the Court would not have entered judgment against the plaintiff the particulars of such representations being the facts pleaded below.” At paragraph 23, the Plaintiff made averments concerning representations made by the Defendant about the identity of the land which was the subject matter of the suit as against the identity of the land in respect of which judgment was entered in favour of the Defendant about which the Defendant went into execution. The Plaintiff says that the judgment entered in favour of the Defendant was obtained pursuant to the breach of the rules of natural justice. Again, the Plaintiff pleaded that the Defendant’s writ in the said action did not disclosed a cause of action against the Plaintiff and that as a result the judgment was fraudulently obtained and also given without jurisdiction. On these grounds the Plaintiff prayed the High Court to set aside the judgment given by the High Court in Suit Number L.205/2002. Before this court, the Plaintiff submitted at page 2 of his statement of case filed on the 19th February 2024 that: Page 31 of 69 “although a number of issues were set down for hearing in the High Court, a key issue that the High Court was required to determine in the proceedings before the High Court was the question whether or not the judgment of the court below dated the 27th day of March 2014 was procured by fraud, misrepresentation, breach of the rules of natural justice and want of jurisdiction”. [3.2]. It is pertinent to point out that the courts have over the years stated that whenever a person seeks to have a judgment of a court of competent jurisdiction set aside on grounds of fraud, that person may do so by a fresh action instituted in that regard i n which the only cause of action opened to that person is a plea of fraud with particulars of the alleged fraud set out by the person in his statement of claim. Indeed, in that wise the person is not entitled to plead any other cause of action except the plea of fraud. Thus, in Dzotepe vs. Hahormene III [1987-88] 2 GLR 681 this court pointed out at page 684 that: “The settled practice of the court is that the proper method of impeaching a completed judgment on the ground of fraud is by action in which the particulars of fraud must be exactly given, and the allegation established by strict proof.” Again, in Okwei Mensah (Decd.) (acting by) Adumuah Okwei vs. Laryea (Decd.) (acting by) vs. Ahieteye Laryea & Another [2011] 1 SCGLR 317, this court held at page 328 of the report that: “In seeking to be relieved from the effects of the previous judgment, the appellant, i.e., the Plaintiff relied on fraud. But in the action, the Plaintiff also sought to rely on certain other facts not amounting to fraud contrary to settled judicial opinion that a party which seeks to set aside a judgment on grounds of fraud must plead fraud and no other facts: See Brutuw vs Aferiba [1984-86] 1 GLR 25, CA; and Cole vs. Langford [1896] 2 QB 36. Delivering his judgment in the Brutuw case (supra), Page 32 of 69 Francois JA (as he then was) (as stated at page 38) made the following pronouncement: “An important observation must be made here. 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’”. In addition to his claim in relief (i) for a declaration that the judgment of the High Court in Suit Number L.205/2002 was obtained by fraud, the Plaintiff in his writ of summons also asked for a declaration that the said judgment was also obtained by a breach of the rules of natural justice and also for want of jurisdiction in the High Court. Furthermore, in relief (iii) of his endorsement, the Plaintiff asked for perpetual injunction to restrain the Defendant and his agents, servants, assigns and privies and other persons claiming through the defendant from entering upon or interfering with the Plaintiff’s right and quiet enjoyment of the land subject matter of the Suit in L.205/2002. In the fourth relief endorsed on the writ, the Plaintiff prayed the trial High Court for damages for trespass unto the Plaintiff’s land. [3.3]. A claim for a declaration that a judgment was obtained in breach of the rules of natural justice and a claim that the court which gave the judgment lacked jurisdiction to hear the case is not the same as a claim that the judgment was obtained by fraud. The endorsement for a declaration that the judgment was obtained in breach of the rules of natural justice as well as the endorsement for a declaration that the court which heard Suit Number L205/2002 lacked jurisdiction to do so, are causes of action which were not Page 33 of 69 opened to the Plaintiff to make when he had sued for a declaration that the judgment was obtained by fraud. Further to the above, a claim for perpetual injunction against the Defendant and his privies as well as the claim for damages for trespas s are claims which are not only offensive of the rule on the cause of action available to a Plaintiff where he seeks to set aside judgment on grounds of fraud, as shown in the authorities quoted above but also constitutes claims which cannot be determined without going into the merit of the suit brought before the High Court in Suit Number L.205/2002. They are reliefs that put the title of the land, subject matter of the action in Suit Number L.205/2002 in issue. This is so because a party who prays the court for an order of injunction and damages for trespass to land automatically places the title of the land in issue. These claims therefore have no place in an action for a declaration that judgment had been obtained by fraud. Consequently, they are not opened to the Plaintiff to make in his endorsement on the writ of summons. [3.4]. It is the duty of the trial court and consequently the Court of Appeal, to sift through the reliefs endorsed on the writ of summons; where other reliefs are sought in addition to the relief for a declaration that a judgment was obtained by fraud and strike out the other reliefs or limit the Plaintiff to the proof of his claim for a declaration that the judgment sought to be upset was obtained by fraud. It is not given to the trial court or the Court of Appeal to entertain reliefs other than the claim that the judgment was obtained by fraud and make pronouncement on them. Litigation will never come to an end if the courts are to do so. Thus, in Nana Asumadu II (Substituted by Nana Darku AMPEM) & Another vs. Agya Ameyaw [2019-2020] 1 SCLRG 681, this court at page 695 stated as follows: Page 34 of 69 “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a crime. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs. Having pleaded fraud, the particulars of which the plaintiff provided under paragraph 6 of their statement of claim … which connotes the imputation of crime on the part of the defendant in obtaining the judgment, the law requires the plaintiffs to establish that allegation clearly and convincingly and beyond reasonable doubt …. The facts on record did not permit the trial court to re-open the dispute over title to Diaso lands, as the parties and the reliefs claimed in this suit were the same as those in Suit No. LS. 45/2000. The trial court should have identified the allegation of fraud as the main issue in the matter before it and address that issue only, but it did not do so. It did not even make any findings of fact on the issue of fraud, which makes the trial court’s judgment incurably bad”. Unfortunately, their lordships at the Court of Appeal did not see through the Plaintiff’s reliefs as they stated, among others, in their judgment at page 202 volume 2 of the record of appeal (ROA) that: “The instant appeal is inviting the court to determine the narrow issue which is, whether or not the Plaintiff was duly served with hearing notice of the trial proceedings to determine the case. The finding of this court is that the Plaintiff was not heard in the said proceedings. Since the Plaintiff was not heard, the Plaintiff has the chance of proving his ownership of the land before the trial court (sic). Page 35 of 69 Also, the jurisdictional points raised in the grounds of appeal can be raised when the case goes before the court below”. At page 204 of the record the learned justices of appeal held in conclusion of their judgment that: “Having found from the evidence on record that the Plaintiff was not served with hearing notice of the trial, a breach of the rules of natural justice had occurred with the result that the said trial court lacked the jurisdiction to so proceed to hear the matter and enter judgment against the Plaintiff. The appeal thus succeeds. Accordingly, the judgment of the High Court of 27 th March 2015 against the Plaintiff is hereby set aside”. Clearly, the learned justices of the Court of Appeal missed the issue before them. The main issue before the Court of Appeal was not the non-service of hearing notice on the Plaintiff before the hearing of the suit in L.205/2002. The issue before the Court of Appeal was not whether or not the High Court in determining the suit in L.205/2002 breached the rules of natural justice. The issue before the Court of Appeal was not whether or not the High Court, in suit number L.205/2002 lacked jurisdiction to entertain suit number L.205/2002. As already pointed out herein, when a party sue to set a judgment aside on grounds of fraud, the only issue, the only cause of action opened to that party is the issue of fraud. The party alleging fraud is bound by law to lead very cogent evidence to prove his allegation of fraud beyond reasonable doubt. A party cannot allege fraud as the basis to set aside a judgment of a court and then lead evidence to establish some other cause of action. We hold therefore that the Court of Appeal erred in setting aside the judgment of the trial High Court in suit number LD/0626/2017 on the basis of non-service of hearing notice, breach of the rules of natural justice and lack of jurisdiction in the High Court. Page 36 of 69 [3.5]. Propriety of the grounds of appeal: In his statement of case, the Plaintiff argued that grounds of appeal are incompetent in that they failed to comply with the mandatory provisions in rule 6(2)(f) of the Supreme Court Rules, 1996, CI.16. In particular, it was argued that the grounds of appeal “merely alleges an error in law or misdirection without setting out the particular error in law or misdirection”. A scrutiny of grounds (1) and (2) of the grounds of appeal will reveal that the words “error in law” and “misdirection” were not used by the Defendant in these two grounds of appeal. How can it therefore be legitimately argued that these two grounds allege error in law or misdirection to call for the supply of those errors of law or misdirection? It is in ground (3) of the grounds of appeal that the Plaintiff stated that the “Court of Appeal erred in law” but immediately thereafter, the Plaintiff supplied that said error in law by stating therein that “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”. (sic). The particulars of the alleged error in law are therefore given by the expression immediately following the allegation of error in law. The grounds of appeal therefore satisfy the requirement of the rule 6(2)(f) of CI. 16 which provides that: “(2) A notice of civil appeal shall set forth the grounds of appeal and shall state— (f) the particulars of a misdirection or an error in law, if that is alleged.” It must be pointed out that the rules do not provide any special format for stating the particulars of misdirection or error in law. Hence, to the extent that the particulars can be found in the ground of appeal which contains those allegations, the requirement of the rule becomes satisfied. In the instant matter, grounds (1) and (2) are no other than the Page 37 of 69 general grounds of appeal that the judgment is against the weight of evidence. That ground of appeal seeks to attack the evaluation of the evidence presented to the trial court and is therefore exempted from the demands of particulars. See rule 6(2) (f) and (5) of CI. 16. We hold therefore that the grounds of appeal in the Notice of Appeal herein are all competent. [4.0]. Service/Non-Service of Hearing Notice: In ground (1) of the grounds of appeal, the Defendant/Appellant states that “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 the trial in the case of Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L.205/02) was against the weight of evidence”. Under this ground of appeal, the Defendant argues that there was enough evidence on record that the Plaintiff/Respondent was served with notice to attend the trial leading to the judgment in suit number L.205/2002 and that therefore the Court of Appeal erred in finding otherwise. It was further argued on behalf of the Defendant that the issue of the service of hearing notice on the Plaintiff to attend the trial in suit number L.205/2002 had already been raised unsuccessfully in an application by the Plaintiff to set aside the judgment and that it was not opened to the Plaintiff herein to raise this issue any longer. In response, the Plaintiff/Respondent argued that the finding by the trial court that the Plaintiff was served with hearing notice for the trial in suit number L.205/2002 ‘was most baffling’. According to counsel for the Plaintiff, the “key question that the High Court had to determine was the question whether or not Respondent was notified of the date of trial on which the court heard evidence and gave judgment”. The Plaintiff/Respondent submitted further that "not one piece of evidence was put befor e the High Court to suggest even remotely that Respondent was notified of the date of the trial. All the affidavits of service put before the High Court referred to proceedings other than the date Page 38 of 69 of trial. The submission therefore that Respondent had no notice of the date of the trial cannot be controverted by one single piece of evidence”. [4.1]. On the 26th day of May 2017, the Plaintiff/Respondent filed a notice of motion for “an order setting aside the judgment [of the] court dated the 27th day of March 2015”. The motion was accompanied by an affidavit sworn by the Plaintiff herein. Exhibit 10 which can be found at page 163 volume 1 of the record of appeal contains the said motion and the attached affidavit. Paragraph 29 to 35 of the affidavit is very germane to the issue being discussed. In these paragraphs the Plaintiff deposed as follows: “29. That in so far as my deposition that the judgment sought to be set aside was delivered against me in breach of the rules of natural justice is concerned, I depose emphatically that I had no notice whatsoever of the trial proceedings resulting in the judgment of this Court sought to be executed against me. 30. That upon procuring some of the processes leading to the judgment of the Court, my lawyers have confirmed my instructions to them that I had no knowledge of the processes that resulted in the judgment sought to be executed against me and which I seek by this application to set aside. 31. That my lawyers have advised me and I verily believe same to be true that by an order of this Court dated the 12th day of January 2015, exhibited hereto and marked L this court ordered among others that I be served with the entry of interlocutory judgment in which was incorporated, the date on which the plaintiff was required to prove his right to the land in the following manner: i. Posting same on the property in dispute which, as per the plaintiff’s endorsement on his writ of summons is situate at Roman Ridge. Page 39 of 69 ii. Posting copies on the notice board of the Court. 32. That a reading of the proof of service of the entry of the interlocutory judgment which is exhibited hereto and marked M will reveal that the entry of interlocutory judgment was posted at a location at Dzorwulu instead of Roman Ridge as ordered by this Court or must be necessarily implied into it. 33. That my lawyers’ curiosity was initially aroused by the fact that the bailiff; DANIEL Y. FEVLO whose affidavit of service was relied upon to prove that the entry of interlocutory judgment was indeed posted on the land in dispute, situate at Roman Ridge as ordered by this Court had earlier sworn to an affidavit proving service on Alhaji Adams of the plaintiff’s amended writ of summons and statement of claim at Roman Ridge. Exhibited hereto and marked N is a copy of the proof of service about which I have just deposed. 34. That a cursory comparison of exhibits M and N attached hereto will reveal that although they were purportedly sworn by the same bailiff: DANIEL Y FEVLO the handwritings in them are different and the signatures are different thereby satisfactorily explaining the point of curiosity which engaged my lawyers the subject matter of my deposition at paragraph 33 above. 35. That my depositions at paragraphs 28 to 34 herein put beyond doubt my case that I had no notice of the processes leading to the judgment of this Court sought to be executed against me and which is sought to be set aside by way of the application before this Court the reason being that, exhibit L confirms without a shred of doubt that the order of this Court directing service on me of the notice of trial, was not complied with.” Page 40 of 69 The above depositions constitute clear evidence that the issue of service or non-service of hearing notice indicating the date for the trial of suit number L.205/2002 was key to the application to set aside the said judgment. The court heard the motion and, in a ruling, dated the 8th day of June 2017, which is captured at page 176 volume 1 of the record of appeal, the court found that the application was unmeritorious. The court therefore dismissed the said application. The procedure in a situation such as this, where an applicant is dissatisfied with a ruling of the High Court such as the one referred to at page 176 of volume 1 of the record, is for the applicant to lodge an appeal against the ruling to the appropriate court; in this case, the Court of Appeal. Article 137(1) and (2) of the Constitution, 1992 makes this clear. It states that: “137. Jurisdiction of the Court of Appeal (1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law. (2) Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.” These provisions are repeated in section 11(1) and (2) of the Courts Act, 1993, Act 459 as amended. Thus, it is not open to the dissatisfied party, in this case, the Plaintiff, to start a fresh action and urge upon the court in that action the very issue t hat had been determined against which he had the right to appeal which he failed to utilise. If it were not so, litigation will never come to an end. The issue of whether or not the Plaintiff was