Addae v Mintah (Civil Appeal No. H1/019/2025) [2025] GHACA 19 (15 May 2025)

1 IN THE COURT OF APPEAL KUMASI – GHANA AD - 2025 CORAM: MENSAH-DATSA (MRS.), JA (PRESIDING) ALEX OWUSU OFORI, JA KWAMINA BAIDEN, JA CIVIL APPEAL NO. H1/019/2025 DATED: 15TH MAY, 2025 MADAM AKOSUA ADDAE PLAINTIFF/RESPONDENT SUING PER LAWFUL ATTORNEY HAYFORD OFFEI AGYEMANG OF EJISU-ASHANTI V OKESEKU MINTAH SUBSTITUTED DEFENDANT/APPELLANT BY LAWRENCE MINTAH AFARI OF EJISU-ASHANTI JUDGMENT KWAMINA BAIDEN, JA. The parties hereto Plaintiff/Respondent hereinafter referred to as the Respondent and the Defendant/Appellant hereinafter referred to as the Appellant were parties to a suit in the Circuit Court, Kumasi in respect of land connected to the suit giving rise to this appeal. 2 The Respondent claimed that the Appellant had demolished her structure on the land the subject-matter of the suit between them in the Circuit Court in which the Respondent obtained judgment against the Appellant. The Plaintiff (Respondent herein) claim against the Defendant (Appellant herein) as follows: i. An Order for the Recovery of Two Hundred and Six Thousand Ghana Cedis (GH¢206,000) with interest from February 2018 until date of final payment. ii. Any other Order (s) the Court may deem fit, just and equitable in the circumstance of the case. It is the case of the Respondent that somewhere in the year 1997 she (Plaintiff) bought a Plot of land designated as Plot 35 Block E Ejisu from the Defendant who subsequently attempted to interfere with her possession, peaceful enjoyment and occupation of the Plot in issue. She therefore commenced an action at the Circuit Court, Kumasi and had judgment in her favour in 2013 against the Appellant. The Respondent, upon the judgment, caused execution to be levied for the recovery of possession of this plot of land by law. The Appellant, thereafter, attempted again to interfere with Respondent’s possession whereupon she cited him for contempt of Court. Whilst the contempt proceedings were pending, Appellant appealed against the Circuit Court decision by filing a Notice of Appeal but appeared not to pursue it. To the utter surprise of the Respondent, the Appellant employed a caterpillar and pulled down her building structure at roofing level and its walls. According to the particulars of damages cost of fence walls destroyed/damaged by the defendant in 2013 cost Ten 3 Thousand Ghana Cedis (GH¢10,000) whilst the e stimated cost of building structure destroyed/damaged was One Hundred and Ninety- Six Thousand Ghana Cedis totalling GH¢206,000 (Two Hundred and Six Thousand Ghana Cedis). She denied the defence of the Appellant that the structure was for one Kwame Togbe insisting she was bona fide owner of the property Plot 35 Block 'E' Ejisu, a fact known to the Appellant for many years. The Appellant had known this by many means such as a Police station reportage against him before he commenced the action against the non - existing Kwame Togbe in the High Court , an action she considered frivolous and fraudulent. The said Kwame Togbe was only a carpenter of the Respondent engaged to only roof the building. Kwame Togbe worked for a total of 5 (five) days for the fixtures and left in the year 1998 before 2000 when the Appellant obtained a default judgment at the High Court against him. As far back or prior to the year 2000 and thereafter the Appellant had been reported severally to the police at Ejisu for interference in respect of the same Plot 35 Block 'E' Ejisu and he could not take any action and obtain a default judgment against any person when in fact he the Appellant knew that the Respondent had interest in the land in dispute. Kwame Togbe did not have any interest in the land in dispute and was not even available till date . Kwame Togbe stated categorically that the land in dispute belonged to the Respondent. The Respondent still has t he receipt the Appellant issued to her as far back as 1997 completely extinguishing and relinquishing his interest in the land. It is the case of the Respondent that immediately it came to her notice that the Appellant had sued Kwame Togbe and the matter was in Court, she immediately sought to join the 4 action to protect her interest except that he r application was strangely refused and an interpleader action by her was also refused. She immediately instituted the fresh action at the Circuit Court to prote ct her interest which the Appellant participated in until judgment was delivered in the year 2013. The Appellant subsequently obtained a judgment in the High Court judgment against Kwame Togbe and secret ly executed it after the Respondent had executed her 2013 judgment having taken all the necessary execution processes to recover possession, with notice to the Appellant. The Respondent asserts that the Appellant fraudulently manipulated the judicial system as an aid to his wrongful schemes. Appellant is liable to pay for all the costs of all the properties he destroyed. The Appellant’s defence to the case was that he had not unlawfully caused damage to nor destroyed the Respondent's property. House number 34 Plot 35 Block 'E' Ejisu was his self-acquired property and he had documents on it. He had been in possession of the said land for a long time and he occupied two additional plots in addition to the disputed plot in the same area or place. One Kwame Togbe trespassed on to this plot of land and started building on it. He commenced an action against him in 2000 at the High Court for declaration of title, recovery of possession and perpetual injunction. In 2013 , the court gave judgment in favour of the Defendant for all the reliefs sought. He recovered and took possession of the plot of land. At the time he obtained judgment the said Kwame had constructed two uncompleted room to window level. 5 The Respondent was aware of the suit against Kwame Togbe and at a point in time even applied to join it but the application was refused. At the execution stage, the Respondent interpleaded but her application was again rejected. According to the Appellant it was after he had obtained judgment against Kwame Togbe that the Respondent instituted another action against him at the Circuit Court in respect of the same plot of land. The Appellant found it strange that the Respondent obtained judgment against him in respect of the same plot number 35 Block 'E' Ejisu at the Circuit Court. At that time, he was in possession of the plot and the court had decreed an injunction against the Defendant , Kwame Togbe who the Respondent indicated in the Circuit Court case that he was her agent contracted to build a house on the land on her behalf. The Appellant states further that when the said Circuit Court judgment was obtained the Respondent started to build a fence wall around the plot of land without any Writ of Possession Order and recourse to the law. He therefore caused his lawyer to write to warn the Plaintiff to stop her trespass action. The Appellant appealed against the judgment of the Circuit Court and went ahead to obtain a stay of execution order against the execution of the Circuit Court judgment. It is the case of the Appellant that the Respondent forcefully entered the land and destroyed his properties on the land and started constructing fence wall around the plot of land. He therefore took steps to execute the judgment he had obtained from the High Court after going through all the legal processes and securing an order from the supervising High court judge for the provision of Police assistance for the recovery of the property to the knowledge of the Respondent. The Appellant’s position is that he has not caused any damage to the Respondent’s property and is therefore not liable to her claim. 6 The Appellant was surprised that the Respondent brought the action against him which he considered as a frivolous claim after she had failed on several occasions to cite him for contempt of court. There were two pending contempt proceedings against him in the same High Court, but different court rooms at the time of this suit. ISSUES: 1. Whether or not the Plaintiff is entitled to recover the claim with interest. 2. Whether or not the Plaintiff bought the Plot of Land known as Plot 35 Block 'E' Ejisu from the Defendant. 3. Whether or not after the Plaintiff's Judgment in her favor, Execution processes were effected to recover possession of Plot 35 Block 'E' Ejisu in dispute. 4. Whether or not the Defendant has severally attempted to interfere with the property in issue and did finally forcefully pulled down all building structures (destroyed properties) by means of fraudulent Judicial Process. 5. Whether or not the High Court Judgment and the subsequent Execution processes were fraudulently procured without Notice to the Plaintiff. 6. Whether or not the Defendant foreknew that the Plot 35 Block 'E' the Plaintiff asserted her ownership contention prior to his default action against Kwame Togbe. 7. Whether or not the enforcement of the Judgment against Kwame Togbe affected the Plaintiff's interest and possessive rights in law. 8. Whether or not the Defendant has filed a Notice of Appeal against the Judgment in Plaintiff's favor. 9. Whether or not the execution process was procured under fraud without recourse to Plaintiff. 10. Whether or not the Defendant has ever been in possession of Plot 35 Block Ejisu. 7 11. Whether or not Defendant have forcefully entered Plot 35 Block 'E' to destroy Plaintiff's properties. 12. Any other issues the pleadings may raise in the cause of proceedings. Trial Court: The trial Court approached the resolution of the suit by first indicating that it would deal with the two (2) judgments from the Circuit Court in favour of the Respondent against the Appellant and the High Court in favour of the Appellant against Kwame Togbe. The agreed issues set down for determination at the Directions stage were twelve (12). However, based on a review of the case and the reliefs sought by the Plaintiff, the trial Court set down seven (7) issues for trial which it formulated. The issues were: i. Whether or not the Plaintiff obtained judgment in respect of Plot 35 Block 'E' Ejisu against the Defendant at the Circuit Court - Kumasi. ii. Whether or not the judgment has been appealed against and same stayed by the Court of Appeal, Kumasi. iii. Whether or not after the Defendant also obtained Judgment in respect of the same Plot 35 Block 'E' Ejisu – Kumasi against Kwame Togbe. iv. Whether or not Kwame Togbe has any interest or right in Plot 35 Block E, Ejisu – Kumasi for which he can be sued. v. Whether or not th is High Court has jurisdiction to determine the suit herein which is mainly founded on the plaintiff’s Circuit Court judgment which has been stayed by the Court of Appeal, Kumasi for almost ten (10) years now. vi. Whether or not the Defendant upon obtaining Stay of Execution against Plaintiff’s Circuit Court Judgment in respect of Plot 35 Block E, Ejisu, can take steps to execute another judgment in respect of the same property in dispute 8 with it without notice to the plaintiff who obtained judgment against him in respect of the same property. vii. Whether or not the Plaintiff is entitled to her reliefs as endorsed on the writ of summons and statement of claim. The trial Court dealt with issues i & ii together (page 308 of ROA) followed by issues iii & iv together (pages 310 & 312 of ROA) and then continued with issues v & vi together (page 314 of ROA) before concluding with issue vii (page 316 of ROA). From M. Wolley v S. Fattal [2013-2014] 2 SCGLR 1070 we note the following: 1. The Court is not tied down to the issues identified and agreed at the Directions stage. 2. If while hearing the case, an issue becomes irrelevant, moot or not germane , the Court has no duty to receive evidence and adjudicate on it. 3. On the other hand, if during the trial a crucial issue which has been left out emanates from either the pleadings or the evidence, the court cannot refuse to address it on grounds that it was not included in the agreed issues. In so far as the issues set down by the trial Court for determination, different from the agreed issues, were relevant, it could not be faulted. We however, ob served that it left out the issue of fraud which it dealt with extensively in the judgment. Issues 4, 5 and 9 of the agreed issues were about fraud. The trial Court found that the judgment obtained by the Appellant in the High Court was obtained by fraud and declared it as well as all other processes based on it including the execution null and void. It granted the Respondent’s claim against the Appellant involving damages, interest and costs. Some of the exhibits tendered in the suit are: 9 1. Receipt of Purchase from Appellant to Respondent - 5th April 1993 2. Circuit Court Judgment – 12th August, 2013 Exhibit D 3. Notice of Appeal by Appellant – 20/8/13 4. Execution processes of Respondent – Exhibit E 5. High Court Judgment – 18th October, 2013 Exhibit 4 6. Entry of Judgment against Kwame Togbe – dated 1/11/13 Exhibit 5 7. Order for writ of possession 10/12/21 8. Writ of possession – 14/11/16 9. Supervising High Court Judge’s letter to Police Commander – 9/2/2016. The Appellant, dissatisfied with the judgement, appealed on the grounds set out below: GROUNDS OF APPEAL a) That the judgment is against the weight of evidence. b) The judge erred by setting aside a High Court judgment on grounds of fraud when neither fraud was pleaded nor evidence lead on fraud. c) The judge erred when she set aside a High Court judgment on grounds of fraud in addition to granting other relieves (sic) for the Plaintiff in the same suit. d) The judge erred when she somoto (sic) vacated and set aside a court of Appeal Stay of Execution on the subject matter in suit number 58/03 where no demand on same was made by any of the parties. e) That the judge exceeded her jurisdiction by setting aside a High Court judgment and Court of Appeals of stay of (sic) execution. f) The judge erred on the assessment of damage to the subject matter. g) The Cost of GH¢20,000.00 against the Defendant is extremely high in the circumstance of this matter. h) Other grounds of appeal will be canvassed upon obtaining a copy of the full judgment. 10 Relief Sought from the Court of Appeal a. The entire judgment should be set aside and judgment entered in favour of the Defendant/ Appellant. b. The cost must be set aside. We state from the onset that Counsel for the Appellant argued only four (4) out of the seven (7) grounds of appeal. The four grounds are Grounds a, b, c and e. At page 4 of his written submissions, Counsel only listed 5 grounds of appeal, two grounds short of what he set out in the notice of appeal. His submissions covered only 4 of the 5 listed grounds of appeal. He provided no reason for excluding 3 grounds from his submissions . The obvious consequence is that they are deemed abandoned. Further, at the point of submissions, he formulated some of the grounds differently from how they were formulated in the notice of appeal. This affected grounds e, c and slightly b. This is to be avoided as it could amount to an amendment of the ground without leave resulting in the disqualification of the ground. No additional ground was filed although indication was given that it might be filed. Counsel for the Respondent did not also help us. His grounds and submissions thereon were shrouded in loads of material fit for the trial Court. There was a lot of concentration on the issues before the trial Court. At page 5 of his written submissions, he argues ground “a” without any distinct heading. He follows it with ground “e” at page 10 where he heads distinctly. Then at page 24, the sub -heading “ground of appeal ” appears and without numbering the grounds, argues grounds “c” and “b”. 11 Counsel should pay more attention to the rules of this Court and the related practice. Counsel is at liberty to abandon grounds of appeal on the Notice of Appeal as well as argue grounds together. All it takes is to notify the Court in the submissions. The Court finds it very useful. We begin with consideration of the grounds related to fraud and the setting aside of the High Court judgment. Ground b) – The judge erred by setting aside a High Court judgment on grounds of fraud when neither fraud was pleaded nor evidence lead on fraud. Ground c) - The judge erred when she set aside a High Court judgment on grounds of fraud in addition to granting other relieves (sic) for the Plaintiff in the same suit. Ground e) - That the judge exceeded her jurisdiction by setting aside a High Court judgment and Court of Appeals of stay of execution. The decisions governing the setting aside of a judgment on grounds that it was obtained by fraud, set out rules and the way and manner it should be made. In Randolph v Captan & Another (1959) GLR 347 at 351 it was held that the particulars of fraud should be pleaded, or it should be disregarded. In Brutuw v Aferiba [1984 -86] 1 GLR 25 it was decided that to overturn a judgment of a court of competent jurisdiction on ground of fraud, the facts alleged to constitute fraud must be proved to amount to fraud and constitute it. Again, in such a case only fraud must be in issue. It is not an opportunity to re-open the case. The decision in Dzotope v Hahomene [1984 -86] 1 GLR 289 CA 12 reinforced the position that to set aside a judgment on ground of fraud, the fraud must relate to matters which prima facie would be a reason for setting aside the judgment and not collateral matters. Other relevant cases include Adumuah Okwei v Ashieteye [2011] 1 SCGLR 317 at 324 and Ansong and Another v Ghana Airports Company, Suit No. J4/24/2012 [2013] GHASC 139 (23 January 2013) . In the latter case, the Supreme Court per Adinyira JSC stated that the pleadings should show that the court was deceived into giving the impugned judgment by means of a false case known to be false. In Bobie v 21st Century Construction Co. Ltd & Others [2016] GHASC 72 (9 March 2016) it was further emphasized that fraud should be proved satisfactorily in accordance with the appropriate standard of proof which is proof beyond reasonable doubt. The Court per Pwamang JSC quoted this statement from Punjabi Brothers v Namih [1962] 2 GLR 48 at 50 made by Adumoah-Bossman JSC that: “I apprehend that although it is open to a party against whom judgment has been given to institute a fresh action to claim the setting aside of that judgment on the ground of fraud and/or misrepresentation (see Kojo Pon v Atta Fua, (sic) (1929) F.C ’26-’29 552. in which the leading English cases on the subject are discussed) it does not appear open to him, without first getting the judgment set aside, and while it is still subsisting, of full force and effect, to ask another court of co-ordinate jurisdiction in an other case in which other issues are raised, to pronounce a judgment of a superior court, which has not been set aside, to be null and void. The law seems to be clearly enough settled that so long as a judgment of a superior court remains undischarged and of full force and effect, i t is not competent to another court of co-ordinate jurisdiction to pronounce against its validity, however palpably erroneous it may appear to be … if, therefore, there are features about a 13 judgment as to render it liable to be set aside, clearly the proper step to take is to get it set aside first.” We have quoted this at length because in our view, the trial Judge’s use of fraud in setting aside the judgment of a court of competent and co -ordinate jurisdiction fell squarely within this admonition to avoid setting aside a judgment of coordinate jurisdiction in this manner. The claim in the suit was not for the setting aside of the judgments and order of the two courts and yet the trial Judge ended up setting aside the judgment and the order of the High Court. This must be avoided at all costs. The decisions in Nana Asumadu II (substituted by Nana Darku Ampem) & Another v Agya Ameyaw [2019-2020] 1SCLRG 681, Antwi v Appiahen [2023] GHASC 24 (18 May 2023) and Adam v Nuamah (J4/09/2024) [2024] GHASC 49 (11 November 2024) all caution against mixing a claim to set aside a judgment or order on ground of fraud with other reliefs. In Adam v Nuamah [supra] the Supreme Court per Darko Asare JSC said: “Taylor JSC in the oft-cited case of Dzotepe v Hahormene III [1987-88] 2GLR 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" 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. 14 - 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 These principles reinforce the proposition of 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.” (Page 7). “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 9). The cumulative weight of the decision s is that setting aside a previous judgment on grounds of fraud is a cause of action so it should be a relief in the action. The fraud must be properly pleaded and particulars of the fraud given. The standard of proof is proof beyond reasonable doubt. These requirements enable the opponent to respond appropriately and for the Court to determine it. Darko Asare JSC continued thus: 15 “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. 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. 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.” In 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 16 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) 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. 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 misapprehension of the true nature of an action seeking to set aside a judgment on grounds of fraud. Resultantly, it must be rejected outright .” (pages 9-11) Other claims mixed with fraud were rejected as indicated above. Adjei-Frimpong JSC in Adam v Nuamah [supra] gave the rational for trying the fraud as the sole issue not mixed with other matters and it is that the success of the allegation of fraud in setting aside the judgment may result in a “third trial” namely a fresh trial or continuation of the action whose judgment has been set aside. 17 The trial Judge acted contrary to settled legal principles for setting aside judgments on grounds of fraud. We are therefore unable to affirm that part of her judgment and we set aside the same. These two grounds succeed. Having determined grounds b and c and allowed them, we think it sufficient, and no useful purpose will be served in considering ground e. Ground (a) – The ruling was against the weight of evidence. The effect of setting aside part of the decision dealing with the High Court judgment having been obtained by fraud is that the suit is being considered, in the exercise of our rehearing functions, based on the clai m or reliefs sought by the Respondent as set out below: i. An Order for the Recovery of Two Hundred and Six Thousand Ghana Cedis (GH¢206,000) with interest from February 2018 until date of final payment. ii. Any other Order(s) the Court may deem fit, just and equitable in the circumstance of the case. This omnibus ground of appeal is therefore being dealt with on that basis. As set out in Rule 8 of the Court of Appeal Rules (CI 19) and explained in several cases, a few of which are mentioned here, an appeal is a rehearing. This Court is under a duty to study the entire record to find whether the judgment under appeal was justified as supported by the evidence on record. We are also entitled to make up our m inds on the facts and to draw inferences to the same extent as the trial Court could do. See Tuakwa v Bosom [2001-2002] SCGLR 61, Fofie v Zanyo [1991] 2 GLR 472 and Praka v Ketewa [1964] GLR 423. 18 A lot of energy was spent by Counsel for the Appellant on the cases tried by the Circuit Court and especially the High Court to the extent that it appeared as if those cases were being retried. We have no doubt that this occurred because it was raised in the pleadings and the trial, and the trial Judge focused a lot on the High Court judgment in resolving the suit. The result is that some confusion was introduced into the handling of this matter. The two judgments the trial judge focused on dealt with reliefs different from the reliefs in the instant case. The Circuit Court case for which judgment was given on 12th August, 2013 - Exhibit D – dealt with 2 reliefs: 1). Declaration of title and recovery of possession to plot number 35 Block E, Ejisu, and 2). An order of perpetual injunction restraining the defendant his agents, labourers, relatives etc from further interfering with the work of the plaintiff on the aforementioned plot. See ROA 31 The reliefs sought in the High Court case for which judgment was given on 18th October, 2013 – Exhibit 4 – were 1). Declaration of title, 2). Recovery of possession of plot no. 35 block ‘E’ Ejisu, 3). Damages for trespass, and 4). Perpetual injunction. See ROA 2097. The reliefs in the instant case are: i. An Order for the Recovery of Two Hundred and Six Thousand Ghana Cedis (GH¢206,000) with interest from February 2018 until date of final payment. ii. Any other Order(s) the Court may deem fit, just and equitable in the circumstance of the case. It is these two reliefs which should have taken centre stage in the determination of the instant suit. A lot of the evidence on these two cases covering matters which had been determined should not have been received. In M. Wolley v S. Fattal [supra] at page 1076 Georgina Wood CJ said that “Thus, if in the course of the hearing, an agreed issue is found to be irrelevant, moot, or even not germane to the action under trial, there is no 19 duty cast on the court to receive evidence and adjudicate on it .” The trial Judge ought to have taken this principle into account in receiving evidence at the trial and restricted the evidence to that which was relevant to the claim before her especially as the Circuit Court case was on appeal. The proper question that ought to have been asked was whether in relation to these reliefs, the Respondent had a cause of action. It is appropriate to refer to the dictum of Pwamang JSC in the case of: Dalex Finance and leasing Company Ltd v Amanor [2021] GHASC 153 (1 4 April 2021) at page 9 “The best approach to gain a good appreciation of this case , which admittedly is complicated and gave us anxious moments during consideration of ou r judgment, is to first consider the cause of action that, in law, can be sued upon by the Plaintiff against John Oseku Ankrah. After this has been done, then an examination of the arguments on whether 3rd defendant is liable for his actions can be undertaken. This is critical because the legal basis on which the 3 rd defendant may be liable for the actions of its Finance Manager will depend on the nature of the cause of action, either in contract or in tort against John Oseku Ankrah.” The background to this case as indicated above is that in respect of the same piece of land there are two judgments: 1. Circuit Court Judgment in a suit between the Respondent and the Appellant 2. High Court Judgment in a suit between the Appellant and Kwame Togbe. The instant suit does not involve Kwame Togbe . It involves the very parties who were parties to the suit in the Circuit Court. Between them, there subsists a judgment in favour of the Respondent. That judgment granted the reliefs sought by the Respondent against 20 the Appellant which included a declaration of title, recovery of possession and perpetual injunction. This is the judgment which is subsisting and against which the Appellant had lodged an appeal pending for over ten years. What then is the issue in the instant suit? After the judgment in Exhibit D, the Appellant who lost the case has gone to demolish structure including a fence wall on the land claiming he did so based on the High Court judgment he won against Kwame Togbe on 18th October, 2013 about two months after he had lost the case in the Circuit Court in respect of the same piece of land. Does the Respondent have a cause of action against the Appellant in respect of the demolition of the fence wall on the land? This is the germane question that ought to have engaged the trial Court and the lawyers. It is trite law that a judgment or order of a court of competent jurisdiction remains valid until set aside or reversed . See Abraham alias Salloum v Salloum [1989 -90] 2 GLR 19 and Republic v High Court, Accra; Ex Parte Afoda and Another [2001 -2002 1 GLR 416. Even void orders or judgments had to be set aside first before losing their force as Court orders or judgments. The Circuit Court judgment Exhibit D is valid and binding on the Respondent and Appellant. It could not be disregarded. The reliefs granted prevented the Appellant from entering the land and doing what he did notwithstanding his claim that it was in lawful execution of the High Court judgment against Kwame Togbe. The Respondent therefore had a valid cause of action as the action of the Appellant was subsequent to her being declared as the owner of the land by the Circuit Court. This means that the judgment of the High Court against Kwame Togbe and the order for Stay of Execution of this Court in respect of the Circuit Court judgment were no obstacle to the resolution of the instant case. The stay of execution order had not reversed the declaration of the Respondent as the owner of the land. 21 Was there evidence in proof of the Respondent's claim per the rules of evidence ? The pleadings in this case are very revealing as far as the demolition is concerned. We set them out extensively. The Statement of Claim states as follows in the Paragraphs below: 3. The Plaintiff says that somewhere in the year 1997 she (Plaintiff) bought a Plot of land designated as Plot 35 Block E Ejisu from the defendant. 4. The Plaintiff says that the defendant subsequently attempted to interfere with her plaintiff's possession, peaceful enjoyment and occupation of the Plot in issue. 5. The Plaintiff says that she (plaintiff) commenced an action at the Circuit Court, Kumasi and had judgment in her Plaintiff's favour in the year 2013 against the defendant. 6. The Plaintiff says that she (plaintiff) consequently upon the Judgment caused execution for the recovery of possession of this Plot of land by law. 7. The Plaintiff says that thereafter, the defendant attempted again to interfere where she plaintiff cited him (defendant) for Contempt of Court. 8. The Plaintiff says that in the course of the Contempt proceedings in Court against him (defendant), he (defendant) caused a Notice of Appeal purported to appeal against the decision of the trial Circuit Court but he (defendant) never pursued the appeal. 9. The Plaintiff says that to her (plaintiff) shock and amazement the defendant had employed caterpillar and pulled down her (plaintiffs) building structure completed awaiting roofing and its walls. Particulars of Damages /Destruction (i) First construction cost of fence walls destroyed/damaged by the defendant in the year 2013 at Ten Thousand Ghana Cedis (GH¢10,000). (ii) Estimated cost of building structure destroyed/damaged at One Hundred and Ninety - Six Thousand Ghana Cedis (GH¢196,000). 22 10. The Plaintiff says that she shall tender the Valuation Report to the Court in the course of proceedings. 11. The Plaintiff says that the total cost of destruction/damage (both previous and present) is: Two Hundred and Six Thousand Ghana Cedis (GH¢206,000). The response of the Defendant in the Statement of Defence is as follows: 2. The Defendant denies paragraphs 3, 4, 6, 7, 8, 9, 11, 12, 13 and 14 of the Statement of Claim. 3. The Defendant in general response states that he has not unlawfully caused damage to nor destroyed the Plaintiff's property and is thus not liable to the frivolous claim been made by the Plaintiff. 4. The Defendant states that house number 34 Plot 35 Block 'E' Ejisu is his self - acquired property and has documents on same. 5. The Defendant avers that he had been in possession of the said land for a long time. 6. The Defendant furthers state that, he occupy (sic) two additional plots in addition to this disputed plot in the same area or place. 7. The Defendant again states that at a point in time, one Kwame Togbe trespassed on to this plot of land and started building on same. 8. The Defendant again states that he in 2000 institute (sic) an action against the said Kwame Togbe at the High Court for Declaration of title, recovery of possession and perpetual injunction. 9. The Defendant (sic) in 2013 the court gave judgment in favour of the Defendant in all the reliefs. sought. 10. The Defendant continue to say that he recovered possession and took possession of the plot of land. 23 11. The Defendant continue as at the time he obtained judgments (sic) the said Kwame had constructed two uncompleted room to window level 12. The Defendant states further that during the pendency of this case with Kwame Togbe, the Plaintiff herein was very much aware and at a point in time even applied to join same which said application was refused. 13. The Defendant continue that even at the execution stage the Plaintiff herein interpleaded but her application was again rejected. 14. The Defendant says that it was after he had obtained judgment against Kwame Togbe that the Plaintiff herein instituted another action against him at the Circuit Court in respect of the same plot of land. 15. The Defendant continue that for strange circumstances, the Plaintiff herein obtained judgment against me on the same plot number 35 Block 'E' Ejisu at the Circuit Court. 16. The Defendant continue that as at that time he was in possession of the plot and the court had decreed an injunction against the Defendant who according to the Plaintiff herein was her agent. 17. The Defendant further states that the Plaintiff herein in his suit in Circuit Court against me indicated that the Kwame Togbe was her agent and had contracted him to build the said house on her behalf. 18. The Defendant further states that when the said Circuit Court judgment was obtained the Plaintiff started to build fence wall around the Plot without any Writ of Possession Order and recourse to the law. 19. The Defendant continue that he caused his lawyer to write to warn the Plaintiff to stop her trespass action. 20. The Defendant states that he filed an appeal against the said judgment of the Circuit Court and went ahead to obtained a stay of execution order against the execution of the Circuit Court judgment. 24 21. The Defendant continue that the Plaintiff forcefully entered the land and destroyed his properties on the land and started constructing fence wall around the plot of land. 22. The Defendant continue that he then took steps to execute the judgment he had obtained from the High Court. 23. The Defendant further avers that he went through all the legal processes and had an order from the supervising High court judge and with the assistance of the Police took possession of the property to the knowledge of the Plaintiff herein. 24. The Defendant continue to state that he has not caused any damage to the Plaintiff property and he is therefore not liable to the demand being made on him. 25. The Defendant again state that it surprises him that the Plaintiff now brings this frivolous claim against him after she had failed on several occasions to cite him for contempt of court. From the Statement s of Claim and Defence, whilst the Appellant ( Defendant) denies causing damage to the Respondent’s (Plaintiff’s) property , the Appellant has averments in the Statement of Defence which show that the Respondent was developing the land and he caused his lawyer to write to warn her. This development continued and the Appellant went through the lawful processes of the Court to go into execution to demolish the development. He then concluded that he was not liable for the demolition and the Respondent’s claim. The Respondent however, insisted that the Appellant was liable. This was the state of the pleadings on which the evidence was given. There was no departure from them. Pages 17-123 of the Record of Appeal has the witness statements with exhibits of the parties. From ROA 128-162 and ROA 177-238 is the evidence of the parties and their witnesses as well as the witness statement of the substituted Appellant (Defendant) after the death of the original Defendant. 25 The evidence in the case concentrated heavily on matters which had been dealt with in the Circuit Court case namely the acquisition by the Respondent of the land in dispute from the original Appellant. This largely constituted a reopening of a matter that had already been dealt with by the Circuit Court with a final judgment between the Respondent and the Appellant which was on appeal. As stated above, t he trial Judge ought to have restricted the evidence to the issue of demolition on the structures on the land. On that issue the Appellant says it was done as a lawful execution of a judgment of the High Court he obtained against Kwame To gbe. This ran through the pleadings, witness statements and cross-examination. What is the effect of the Appellant’s admission that the execution that resulted in the demolition of the property which the Respondent claims to be hers was at his instance? It is undisputed that: 1. Appellant was sued in the Circuit Court in respect of the same land. 2. Appellant participated in the case including the trial. 3. Appellant sued Kwame Togbe in the High Court. 4. Judgment was given in the Circuit Court case 2 months prior to the judgment in the High Court Case. 5. At the time the Appellant was pursuing the execution in respect of the land he knew that the Respondent had obtained judgment in respect of it against him. 6. Appellant did not inform the Registrar or Sheriff that the Respondent had obtained judgment against him before or during the execution. 7. Appellant knew he had appealed against the Circuit Court judgment and obtained an order for stay of execution against it. 8. The following Court processes had been instituted or concluded to the knowledge of the parties especially the Appellant: i. Execution of the High Court Judgment 26 ii. Stay of Execution at the Court of Appeal iii. Application to Court of Appeal to lift Stay of Execution iv. Interpleader Action v. Contempt Applications With all this knowledge in the Appellant, can it be said that he is not liable and that the Sheriff was respon sible for the demolition? We have looked at the case of Agyekum v Alawiye [1987-88] 1 GLR 1 and the principles expounded in it. It affirmed that wrongful execution could land the judgment -creditor in an action for trespass. Alawiye was held not to be liable for lack of evidence that he or his solicitor or anyone on his behalf made the Sheriff his agent. We have also looked at the cases of Access Bank Ltd v Big Boys Company Ltd [2020] GHACA 5 (26 November 2020 ) and Ankoma v City Investment Company Ltd [2012] 2 SCGLR 1123. In these two cases, the judgment-creditors were held liable for the wrongful execution carried out by the deputy sheriff. The execution depends on the instructions given to the deputy sheriff by the judgment-creditor, in this case, the Appellant. We think the facts in the instant case are peculiar. The matters we have listed above were peculiarly within the knowledge of the Appellant . He did not disclose the fact of the victory of the Respondent in the Circuit Court to the Sheriff to enable him independently to decide on what to do. Secondly, the Appellant was singularly aware of the Respondent’s development on the land and damned the consequences whether the execution would affect her property or not. It is evident from the evidence that before any of the two cases went to court, the parties herein had dealings in respect of the land. We also put emphasis on the fact that in respect of the land, the Appellant knew beyond any shadow of doubt that the Respondent had obtained a judgment against him which had declared her the owner. Why did he keep this very critical and vital information from the sheriff when he was providing the particulars for the execution? There can be no excuse. 27 In these circumstances, our conclusion is that the Sheriff became a servant or agent of the Appellant and carried out Appellant’s directions for him. The Appellant is therefore liable. The trial Judge found that the Appellant was liable because the judgment which was executed at h is instance was a void judgment and for that matter the Respondent was entitled to her claim against the Appellant. We hold the Appellant liable for a different reason. The sheriff became the Appellant’s servant or agent and upon his instructions the Respondent’s structures including the fence wall were demolished . The reliefs granted the Respondent by the trial Court are supportable by the evidence on record and this Court has no reason to disturb same. The Appellant is liable for the demolition and the Respondent is entitled to her claim. Before concluding, we wish to deal with a matter we find disturbing in this appeal. We find in the conduct of the Appellant some abuse of the process of the court. Abuse of the process of the Court is defined in Antwi v Appiahen [2023] GHASC 24 (18 May 2023) The phrase “abuse of the process” is a term of art and may be explained to mean the inordinate and mischievous use of the processes of the court not for the purposes of seeking real justice or any legal or equitable remedy but for some collateral end. The Black’s Law Dictionary (8th edition) defines the term at page 11 to mean: “The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope”. The learned editors of the Supreme Court Practice, 1995 (also known as the White Book) Volume 1, published by Sweet and Maxwell state at page 344 28 paragraph 18/19/33 that: “The term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and interests of justice may be material.” In Johnson vs. Gore Wood & Co. [2002] 2 AC 1, Lord Bingham stated that: “But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identi fy any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involve what the court regards as unjust harassment of a party …” Pages 17-19 29 It appears some litigants and lawyers are not paying attention to decisions relating to the abuse of the process of the Court. In Naos Holding Inc. v Ghana Commercial Bank Ltd [2011] 1 SCGLR 492 the Supreme Court per Dotse JSC dealt extensively with abuse of Court process referring to previous decisions such as Naos Holding Inc. v Ghana Commercial Bank Ltd [2005 -2006] SCGLR 407 and Sasu v Amua -Sekyi & anor [2003 - 2004] 2 SCGLR 742 in which Dr. Date-Bah JSC had dealt with the issue. In Opuni v A -G & anor [2022] GHASC 89 (25 May 2022), the Supreme Court dealing with what it considered as an abuse of process, felt there was the need “to send clear and unequivocal signals that, no litigant or legal practitioner would be permitted to play “a game of chess” or treat this court as the “MAKOLA MARKET” where one could go on shopping without any restraint.” pp. 24. Again, in Republic v High Court, Accra & anor; Ex Parte Alhaji Abdul Rashid [2014] GHASC 131 913 February 2014) dealing with an application for prohibition, took special note of the conduct of the Applicant and his Counsel in seeking to delay the progress of the case in the Court below. Their application did not find favour with the Court. A medical report sent by counsel to seek adjournment for a period of one month which the trial judge did not accept was one of the issues in the application before the Supreme Court. In the instant case, we note that the Appellant, after his application for stay of execution had been granted by the Court of Appeal, has not pursued that appeal with the same diligence with which he has pursued the instant appeal. His own case testifies that he has survived several contempt applications. The Appellant and his Counsel do not give this Court a good image when they make such use of the lawful processes of the Court. This Court even refused to vacate the stay of execution order to enable the parties to have the 30 appeal determined expeditiously on 25th June, 2019, almost six (6) years ago. When will the appeal be determined? Let me repeat what I had the opportunity to say in this Court in the case of: IN THE MATTER OF THE COMMITTAL FOR ATTACHMENT FOR CONTEMPT OF COURT: AND IN THE MATTER OF THE REPUBLIC VS. MR. KORKOR OWUSU ACHAW & 7 OTHERS EX PARTE: PRINCE WIAFE & 6 OTHERS CIVIL APPEAL NO. H1/085/2024 DATED: 23RD MAY, 2024 based on a lecture on Abuse of Process: The Court is not against the genuine use of its process to ventilate grievances. However, as the Rt. Hon. Lord Reed noted in his lecture on the topic – Lies, Damned Lies: Abuse of Process and the Dishonest Litigant (Lecture delivered at the University of Edinburgh on 26th October, 2012 as the 5th Annual Lecture at the Centre for Commercial Law), there appears to be many ways in which the court process can be abused to give it a bad image. He referred to a statement by Moses LJ who pointed out “that our system of adversarial justice depends upon openness, transparency and honesty” (page 11 of the Article). These characteristics mentioned by Moses LJ apply with equal force to the system we operate in Ghana. A party who has lost a case must be honest to admit it. His 31 or her lawyer should explain it to him and avoid keeping the matter in Court just to avoid or delay the consequences of the loss. The effort or attempt by a litigant or lawyer or both to ensure that the judicial machinery will not ride to its end on a particular matter is a matter of grave concern. It should be borne in mind that in our system of justice, a matter once brought to court shall be concluded and the consequences may be soft or harsh for the parties. The Court will exercise its power to achieve its ends and will not entertain abuse of its process. The Court should not provide any encouragement to any litigant or Counsel who from processes and circumstances before the Court, does not want a matter to be brought to a fair end in satisfaction of the demands of justice. The following grounds – d, f and g - are deemed abandoned and are struck out as dismissed. Ground d) - The judge erred when she somoto (sic) vacated and set aside a court of Appeal Stay of Execution on the subject matter in suit number 58/03 where no demand on same was made by any of the parties. Ground f) – The judge erred on the assessment of damage to the subject matter. Ground g) – 32 The Cost of GH¢20,000.00 against the Defendant is extremely high in the circumstance of this matter. Conclusion: Subject to the setting aside of the part of the judgment of the trial Court on fraud, the appeal is dismissed as unmeritorious. The damages and costs granted by the trial Court to the Respondent against the Appellant are hereby affirmed. SGD. KWAMINA BAIDEN, JA (JUSTICE OF APPEAL) SGD. I agree GEORGINA MENSAH-DATSA (MRS.), JA (JUSTICE OF APPEAL) SGD. I also agree ALEX OWUSU OFORI, JA (JUSTICE OF APPEAL) COUNSEL: ALFRED A. QUARSHIE ESQ. FOR THE PLAINTIFF/RESPONDENT EMMANUEL ABOAGYE ESQ. FOR THE DEFENDANT/APPELLANT 33