Hakim and Others v Osikan (J4/12/2026) [2026] GHASC 73 (3 June 2026)

1 of 22 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D.2026

Coram

AMADU JSC (PRESIDING) ADJEI-FRIMPONG JSC DZAMEFE JSC BARTELS-KODWO JSC AMALEBOBA JSC

Civil Appeal

NO: J4/12/2026

3RD JUNE, 2026

1. JEAN-CLAUDE GEORGE HAKIM

2. VIVIANNE GEORGE HAKIM PLAINTIFFS/RESPONDENTS/

3. SUZANNE GEORGE HAKIM RESPONDENTS/RESPONDENTS

4. CLAUDINE GEORGE HAKIM

VRS

NUUMO NOI OSIKAN III ……………. DEFENDANT/APPLICANT/ APPELLANT/APPELLANT

2 of 22

Judgment

BARTELS-KODWO JSC: - I. INTRODUCTION

1. Fraud unravels everything. The maxim is old, and the courts have repeated it often, because it states a truth the law cannot do without. A judgment of a court of competent jurisdiction is among the weightiest acts our legal order knows: it binds the parties, commands obedience, and brings their dispute to an end, and the law has good reasons for wanting disputes to end. But a judgment is only as good as the process that produced it. Where that process has been corrupted by deceit, the judgment that emerges is not entitled to the respect the law ordinarily pays it. A litigant who wins by hiding what he was bound to reveal, or by asserting what he knew to be false, has not really won at all. He has obtained a piece of paper that wears the appearance of a judgment. The law has always reserved to itself the power to look behind that appearance.

2. This appeal is about who may exercise that power, and when. The Appellant obtained judgment against the Respondents in the High Court. The Respondents say that judgment was procured by fraud, and they have begun a fresh action asking the court to set it as ide on that ground. The Appellant says they may not do so. He raises four objections. He says the High Court had no jurisdiction to hear the fresh action while an appeal against the same judgment was still pending. He says the fresh action is an abuse of the process of the court. He says the matters the Respondents have pleaded do not amount to fraud at all. And he says that, even if they do, the Respondents were not vigilant and have come too late. 3 of 22

3. Both the High Court and the Court of Appeal rejected each of those objections. The Appellant now asks this Court to reach a different conclusion.

4. One preliminary matter of practice should be disposed of before we go further. Both sides have headed the processes containing their arguments “Written Submissions.” That is the wrong label. Before this Court, the process by which a party argues its case is a Statement of Case, as rule 15 of the Supreme Court Rules, 1996 (C.I. 16) provides. “Written submission” is the language of the trial court, and the Court of Appeal; it does not belong here. The mislabelling has caused no prejudice and so, we shall examine the arguments contained in each in doing justice to the case. II. THE FACTUAL BACKGROUND

5. The dispute is about land at Osu, in Accra. In Suit No. LD/0779/2019 intituled Nii Okwei Kinka Dowuona VI (substituted by Nii Ako Nortei IV, substituted by Nuumo Noi Osikan) v. Georgette Hakim (substituted by Jean -Claude George Hakim & Anor.) , the Appellant, then the plaintiff, sued in the High Court (Land Division). On 20th October, 2022, judgment was given in favour of the Appellant.

6. The Respondents were dissatisfied with that judgment, and they responded on two fronts. First, they appealed to the Court of Appeal, attacking the judgment on its merits. That appeal has not yet been heard, and remains pending. Second, while the appeal was still pending, they issued a fresh writ in the High Court, Adenta , in Suit No. C1/111/2023. In that action they did not ask the court to revisit the merits of the first judgment. They asked it to set the judgment aside on one ground only, namely that it had been obtained by fraud. They set out the particulars of the alleged fraud in paragraph 5 of their Statement of Claim in the fresh action.

7. The Appellant met the fresh action not with a defence to the fraud, but with an application to have the suit thrown out before trial. He advanced two grounds. 4 of 22 The first was that the action was an abuse of the process of the court. The second was that the High Court had no jurisdiction to entertain it at all, because of the appeal pending at the Court of Appeal against the very judgment the Respondents sought to impeach. It is the dismissal of that application, and the dismissal of the appeal that followed, that have brought the matter to this Court. III. THE RESPECTIVE CASES OF THE PARTIES The case for the Appellant

8. First, on jurisdiction, he says the High Court could not lawfully entertain the fresh action while an appeal against the same judgment was alive at the Court of Appeal. To allow the two to proceed together, he argues, is to permit two courts to deal at the same time with the fate of a single judgment, which the orderly administration of justice cannot tolerate.

9. Second, on abuse of process, he says the fresh action is in substance a second attempt to relitigate a matter already decided between the same parties over the same land. It offends, he submits, the rule in HENDERSON V. HENDERSON (1843) 3 HARE 100 , which requires a litigant to bring his whole case at one time and not in instalments. The capacity in which the Respondents sued, and the effect of the relevant Vesting Assent, were matters that could and should have been raised in the first trial.

10. Third, on the substance of the allegation, he says that what the Respondents have pleaded as fraud is nothing of the kind. The particulars, he submits, are vague and conclusory, framed to arouse the court’s suspicion rather than to disclose a genuine cause of action, and they do not meet the strict standard the law requires of a plea of fraud. 5 of 22

11. Fourth, and in the alternative, he invokes the principle that a litigant must be vigilant at first instance, as this Court applied it in the Poku litigation. Whatever the Respondents now complain of, he says, was known to them, or could have been known to them, at the first trial; having failed to raise it then, they cannot raise it now by way of a fresh action. The case for the Respondents

12. The Respondents answer each proposition directly. On jurisdiction, they say the pending appeal and the fresh action are aimed at two different things. The appeal questions whether the first judgment was right. The fresh action questions whether it was hone stly obtained. Because the two inquiries do not overlap, the existence of the appeal does not deprive the High Court of its jurisdiction to try the fraud.

13. On abuse of process, they say the rule in Henderson v. Henderson does not catch a fresh action founded on fraud, because the fraud was neither raised nor decided in the first suit, and could not have been. A charge that the earlier judgment was procured by deceit is, they argue, the very kind of special circumstance that takes a case outside the rule.

14. On the substance, they say their particulars are concrete and specific. They name the conduct complained of: the suing of the wrong persons in the face of a registered title, the denial of knowledge of a prior deed of gift, and the diversion of ground rent that should have gone to the Office of the Administrator of Stool Lands. They say the law sets its face against the summary dismissal of a properly particularised plea of fraud, and that they are entitled to prove their case at a trial.

15. On vigilance, they say the principle does not reach them, because their complaint is not of evidence they neglected to lead, but of a fraud worked upon the court itself, the whole design of which was that the deception should not be visible to 6 of 22 the trial judge. One cannot, they argue, be condemned for failing to detect what was deliberately hidden. IV. THE DECISIONS OF THE COURTS BELOW The High Court, Adenta

16. The High Court dismissed the Appellant’s application. It held that an action to set aside a judgment on the ground of fraud is a special circumstance, and that the bringing of such an action is not an abuse of the process of the court merely because an app eal against the same judgment is pending on other grounds. The allegation of fraud, the court reasoned, raised a question of fact that could only be resolved by hearing evidence, and could not be decided on affidavits in a summary application. On that basis, the court held that it retained jurisdiction and that the action was properly before it, and it allowed the suit to proceed. The Court of Appeal

17. The Appellant appealed, and the Court of Appeal dismissed that appeal in a unanimous judgment dated 25th April, 2024. The Court of Appeal agreed with the High Court in substance. It held that fraud is a serious matter that goes to the legitimacy of a judgment, and that when fraud is properly raised it must be tried on evidence and cannot be dismissed at the threshold. It held that the fresh action was not a relitigation of a settled question, because the impeachment of a judgment for fraud is a distinct cause of action. And on the question of jurisdiction, it held that the appeal and the fresh action rested on different facts, the one going to the merits and the other to the separate question of fraud, so that the pending appeal did not strip the High Court of its power to hear the action. It is against that judgment that the present appeal lies. 7 of 22 V. THE GROUNDS OF APPEAL

18. By his Notice of Appeal dated 22nd November, 2024, the Appellant relies on four

Grounds

a. The Court of Appeal erred in failing to hold that the trial High Court had no jurisdiction to determine Suit No. C1/111/2023 while an appeal against the judgment of 20th October, 2022 in Suit No. LD/0779/2019 was pending at the Court of Appeal. b. The Court of Appeal erred in holding that Suit No. C1/111/2023 did not constitute an abuse of the process of the court, having regard to the earlier judgment in Suit No. LD/0779/2019 between substantially the same parties and over the same subject matter. c. The Court of Appeal erred in failing to hold that the allegation of fraud raised by the Respondents does not, in law, constitute fraud. d. The courts below erred in failing to dismiss the suit on the principle of the need to be vigilant at first instance, as applied by this Court in In Re Poku (Decd); Appiah Poku & Ors v. Nsafoa Poku & Ors.[2011] 1 SCGLR 162

19. The four grounds do not all stand on the same footing. Three of them, grounds (b), (c) and (d), are really one question seen from three sides: whether the Respondents’ action can be stopped before any witness is heard. The remaining ground, ground (a), raises the separate and prior question whether the High Court had jurisdiction to entertain the action at all. We deal first with the three threshold grounds, and last with the question of jurisdiction. We take that order deliberately, because the strength of the jurisdictional objection cannot fairly be measured until the true nature of the fresh action, as an action to impeach a judgment for fraud, has been understood. 8 of 22 VI. GROUNDS (b), (c) AND (d): CAN THE ACTION BE STOPPED AT THE THRESHOLD?

20. It helps to begin with the principle that runs through the whole appeal. That a completed judgment may be set aside if it was obtained by fraud is not open to argument. It is one of the settled rules of our law, and it rests on the simplest of foundations: a court will not lend its authority to a result that deceit has produced. The classic statement in our jurisprudence is that of Taylor JSC in DZOTEPE V. HAHORMENE III [1987 -88] 2 GLR 681 , who borrowed the language of the Duchess of Kingston’s Case. Fraud, he said, is an intrinsic and collateral wrong that vitiates the most solemn proceedings of a court of justice; in Lord Coke’s words, it “avoids all judicial acts, ecclesiastical and temporal.”

21. This Court returned to the point in REPUBLIC V. HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR

398. It held there that a judgment obtained by fraud may be set aside, and that once a judgment is impeached for fraud its legitimacy is put in issue, so that it can no longer be relied on as an estoppel per rem judicatam. The reasoning is important for the present case. A judgment that may have been procured by fraud cannot, while that question is open, be treated as the final and conclusive word on anything. Its conclusive force is exactly what the allegation of fraud calls into doubt.

22. Two consequences follow. The first is a matter of procedure. The accepted way to impeach a completed judgment for fraud is by a fresh action, in which the fraud is distinctly pleaded and, in due course, strictly proved. It is not done by a passing allegation in some collateral pro ceeding, but by a deliberate suit directed to that end. Secondly, because fraud attacks the integrity of the judgment rather than its correctness, it is by its nature something the impugned judgment did not decide. A court does not, and cannot, pass judgment on the fraud by which it was itself 9 of 22 deceived. Once that is grasped, several of the Appellant’s arguments lose their force, as we shall show.

23. It is useful, at this stage, to draw a distinction that the argument before us tended to blur. Not every allegation of fraud in litigation is of the same kind, and the kind matters. The law has long recognised a difference between fraud practised by one party upon another, and fraud practised upon the court itself. The first describes the ordinary case in which a litigant deceives his opponent into some disadvantage, for example by a false representation that induces a settlement or a compromise. The second, and graver, describes the case in w hich a litigant deceives the tribunal, by placing before it evidence he knows to be false, or by suppressing what he is bound to disclose, so that the court is led to a conclusion it would not otherwise have reached. The present allegation is of the second kind. The Respondents do not merely say they were misled. They say the High Court was misled, and that the judgment is the product of that deception.

24. The distinction has a practical bearing on the issues in this appeal. Where the complaint is of fraud on the court, the considerations that ordinarily favour finality carry less weight, because finality presupposes a genuine adjudication, and a judgment procured by deceiving the court is not a genuine adjudication at all. It is also why the principle of vigilance, to which we shall come, operates differently in the two cases. A party can fairly be expected to be vigilant about the conduct of his opponent towards him, for that conduct is, in the ordinary case, before his eyes. He cannot so easily be expected to detect a fraud whose very design is to be invisible to the court and, with it, to him. We say more about this when we reach ground (d).

25. None of this dilutes the strictness with which fraud must be pleaded and proved. The graver the allegation, the clearer the pleading and the stronger the proof the law requires. But strictness of proof is a standard to be met at trial. It is not a reason 10 of 22 to deny the trial, and it does not change the essential character of the cause of action, which is the impeachment of a judgment said to have been obtained by deceiving the court that gave it.

26. Behind the technical arguments lies a tension of policy that it is as well to acknowledge openly, because it explains why the law strikes the balance it does. On one side stands the principle of finality. Litigation must come to an end. A defendant who has won should be able to rest on his victory, and should not be vexed by repeated suits over the same matter. The doctrines of res judicata, of estoppel, and of abuse of process all serve that principle, and they serve it well. The public has an interest in finality no less than the parties do, for a system in which judgments could be reopened at will would be no system at all.

27. On the other side stands the principle of integrity. A judgment commands respect because it is the considered decision of a court that has heard the parties and weighed the evidence. That respect is earned by the honesty of the process. Where the process has been corrupted by fraud, the foundation of the respect is gone, and to insist on finality in such a case would be to protect not a judgment but a fraud. The law resolves the tension not by abandoning finality, but by recognising a narrow and demanding exception to it. Finality yields to integrity only where fraud is alleged with particularity and then proved to the strict standard. The exception is narrow precisely so that the rule of finality is not swallowed by it. A litigant cannot escape the bar of res judicata merely by uttering the word “fraud.” He must plead it properly, and he must prove it. But where he does both, the law prefers the integrity of its judgments to the comfort of their finality, and rightly so. The law is slow to dismiss a fraud action without a trial