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 28. The power to dismiss an action before trial, whether under the rules of court or under the court’s inherent power to prevent abuse of its process, is a serious 11 of 22 power, and it is exercised sparingly. In OKOFOH ESTATES LTD. V. MODERN SIGNS LTD. [1996 -97] SCGLR 224 , this Court treated the striking out of a pleading as a step to be taken only where, on the face of the pleading itself, the action is plainly unsustainable and discloses no reasonable cause of action. On such an application the court does not weigh evidence or try the dispute. It asks a narrow question: assuming the pleaded facts to be true, could the plaintiff succeed? If he could, the matter must go to trial, however unlikely his eventual success may seem. 29. Where the action is one for fraud, the court is slower still to act at the threshold. There is a good reason for this caution. To dismiss a fraud action summarily is to decide, without a trial, the very issue the action exists to resolve. It is to pronounce on the honesty of a party’s conduct on the strength of affidavits and argument, and without the testing of evidence that a trial provides. The law will not ordinarily do this. A litigant who alleges, with proper particularity, that he has been the victim of a fraud practised upon the court is entitled to his day in court to prove it. 30. It must be understood however, that, the reluctance to dismiss summarily does not mean that any allegation of fraud, however loosely framed, is enough to force a trial. The pleader must give particulars, and the particulars must be capable, if proved, of a mounting to fraud. A bare assertion of dishonesty, unsupported by particulars, may be struck out, for it discloses nothing to try. The question, then, is whether the present particulars cross that line? 31. Before that, it is important to observe that, on an application to dismiss before trial, whether under the rules or under the inherent jurisdiction, the court assumes the pleaded facts in favour of the party whose pleading is attacked. It does not ask whether those facts are true, or even whether they are likely to be true. It asks only whether, taken at their highest and assumed to be established, they would in law 12 of 22 support the relief claimed. If they would, the pleading discloses a triable cause and must be allowed to go forward, and the truth of the matter is left to be decided where it ought to be decided, on the evidence. To approach the matter otherwise, to weigh the probabilities on affidavit, would be to convert a threshold application into a trial conducted on paper and without witnesses, which is precisely what the law forbids. The Appellant’s submissions, in substance, invite that forbidden exercise: they ask us to conclude that the Respondents will not be able to prove their allegations. That may turn out to be so. But it is not a conclu sion open to us, or to any court, on an application of this kind. How fraud must be pleaded 32. Because ground (c) turns on the adequacy of the Respondents’ pleading, it is convenient to state, shortly, what the law requires of a party who alleges fraud. The requirement has two limbs, and they pull in different directions, which is why the plea of fr aud is among the more demanding in our practice. The first limb is that fraud must be specifically pleaded. It is not enough to use the word, or to allege dishonesty in general terms. The pleader must set out the particulars: the representations or concealments relied on, the facts said to make them fraudulent, and the knowledge or intention attributed to the party charged. The purpose of this rule is fairness. A party accused of fraud is entitled to know, with precision, the case he must meet, so that he c an prepare to meet it; and a court is entitled to see, on the face of the pleading, that there is a real allegation to try and not merely a cloud of insinuation. 33. The second limb concerns proof, and it bears on pleading only indirectly. Fraud, once pleaded, must be proved to a high standard. It is never presumed. The court will not infer it from facts equally consistent with honesty, and the more serious the imputation the more convincing the evidence the court will require before it is satisfied. These two limbs are sometimes confused, and the confusion lay at the 13 of 22 root of part of the Appellant’s argument. He pointed to the strictness of the standard of proof as though it were a reason to doubt the sufficiency of the pleading. But the two are distinct. The strictness of proof is a hurdle the Respondents must clear at trial; it tells us nothing about whether their pleading discloses a triable case. A pleading may be impeccable and the proof may yet fail, or the pleading may be defective and the underlying facts true. The only question on a threshold application is the sufficiency of the pleading, and to that question the strictness of the eventual standard of proof is simply beside the point. Ground (c): the pleaded particulars disclose a triable allegation of fraud 34. Ground (c) asks us to hold that what the Respondents have pleaded does not amount to fraud. We cannot so hold. In paragraph 5 of their Statement of Claim the Respondents plead, among other things, three matters. They say the Appellant sued persons who held no more than possession of the land, rather than the Respondents themselves, who had held a registered land title certificate since 2014, of which the Appellant had actual or at least constructive notice. They say the Appellant knew, or ought to have known, of an earlier deed of gift, but denied any knowledge of it. And they say the Appellant arranged for ground rent to be paid to himself personally, when he knew that it ought to have been paid to the Office of the Administrator of Stool Lands. 35. These are not the vague and conclusory averments the Appellant describes. Each identifies a specific act or omission, attaches to it a specific state of knowledge, and explains how it is said to have misled the first court. Taken together, they assert that the Appellant obtained his judgment by keeping material facts from the court and by misstating others, and that the court, deprived of the true picture, decided as it did. Whether those assertions are true is not a matter for us, and it is not a 14 of 22 matter for any court on a summary application. It is the business of the trial. But that the assertions are capable, if proved, of constituting fraud is, in our view, beyond serious argument. They raise a triable issue, and the courts below were right to send that issue to trial. Ground (c) therefore fails. 36. The particulars re quire closer examination, because doing so shows why they cannot be dismissed as empty. Take the first: that the Appellant sued persons who held mere possession, rather than the Respondents who held a registered title of which the Appellant had notice. If that is established, it raises a real question whether the first action was framed so as to obtain judgment against those least able to resist it, while the true owners, who held the title certificate, were kept outside the litigation. Take the second: that the Appellant denied knowledge of an earlier deed of gift which he knew or ought to have known existed. A deliberate denial of knowledge of a material instrument, if proved, is a classic ingredient of fraud, for it is the suppression of a fact the court was entitled to have before it. Take the third: that the Appellant procured ground rent to be paid to himself when he k new it was due to the Office of the Administrator of Stool Lands. That allegation, if made out, bears directly on the capacity in which the Appellant claimed and on the honesty of the case he put to the court. We do not say that any of these matters is tru e. We say only that each is a concrete, particularised allegation which, if proved, could support a finding of fraud, and that none of them can be resolved without hearing evidence. 37. Our decision should however, not be misread as having proclaimed the Respondents victors in the fresh action. To hold that the Respondents have pleaded a triable case of fraud is a long way from holding that they have proved one. The burden they will carry at trial is heavy. Fraud is never presumed and never lightly inferred; it must be established by clear and cogent evidence, and the graver the allegation the st ronger the evidence the court will look for. The 15 of 22 Respondents may yet fail to discharge that burden. But the weight of the burden is a reason to hold a trial, not a reason to refuse one. The strictness of the standard of proof protects the Appellant at the trial; it does not entitle him to avoid the trial altogether. Ground (b): the fresh action is not an abuse of the process of the court 38. Ground (b) is the Appellant’s abuse -of-process argument. It rests on the rule in HENDERSON V. HENDERSON (1843) 3 HARE 100, the rule of public policy that a party must bring his whole case forward at once and may not, except in special circumstances, return to court with claims he could and should have raised the first time. The rule was described by the English Court of Appeal in BARROW V. BANKSIDE AGENCY LTD [1996] 1 WLR 257, and it has been applied many times in this jurisdiction. Its purpose is to prevent the oppression of a defendant by successive suits and to bring litigation to an end. It is a salutary rule, and we have no wish to weaken it. 39. But it does not assist the Appellant, for two principal reasons. The first lies in the rule’s own terms. It bars the raising of fresh matter only “in the absence of special circumstances.” An allegation that the earlier judgment was itself obtained by fraud is the very archetype of a special circumstance. If it were otherwise, the rule designed to protect the integrity of litigation would become a shield for the litigant who has corrupted it, which cannot be right. 40. Secondly, the rule in Henderson v. Henderson forbids the relitigation of matters that were decided, or could have been decided, in the earlier suit. The fraud the Respondents now allege was not decided in the suit before the trial court and on their case it could not have been, because its whole object was to deceive that court. The matter was not litigated and lost; it was, on the pleaded case, concealed. As 16 of 22 Date-Bah JSC explained in SASU V. AMUA -SEKYI [2003 -2004] SCGLR 742, where he discussed this very doctrine, a judgment obtained by fraud is one in which the issue of fraud has not itself been considered and determined. The fresh action is therefore not a second bite at a settled question. It is the first occasion on which a question that the alleged fraud was kept hidden can be examined at all. 41. The Appellant placed weight on NAOS HOLDING INC. V. GHANA COMMERCIAL BANK (2005 -2006) SCGLR 407 . The case does not carry the weight the Appellant puts on it. Its ratio strikes at a fresh suit brought against the same party, on the same facts, for no valid reason, where a litigant has simply tried again after losing. The Respondents are not in that position. They sued for a valid reason, namely to impeach a judgment for fraud, and they sued on facts that were not, and on their case could not have been, tried in the first suit. Naos Holding condemns the litigant who repeats himself; it says nothing against the litigant who, for the first time, alleges that he was cheated. Ground (b) fails. Ground (d): the principle of vigilance does not bar the action 42. Ground (d) relies on the principle that a litigant must be vigilant at first instance, a principle this Court applied in IN RE POKU (DECD); APPIAH POKU & ORS V NSAFOA POKU & ORS [2011] 1 SCGLR 162. The principle is that a party may not impeach a judgment for fraud where, during the first action, he already knew of the matters now said to be fraudulent, or ought to have known of them, but failed to raise them. We have no quarrel with the principle. Indeed, in the Poku case itself this Court applied it to dismiss the very kind of fresh action the present Respondents have brought, holding that the grounds of fraud relied on there ought to have been raised at the first instance. The Appellant is therefore right to say that the principle exists and that it can be fatal. The question is whether it is fatal here. 17 of 22 43. In our view it is not, at least not on the pleadings as they stand. The vigilance principle disqualifies the litigant who knew of the fraud and sat on his knowledge. The Respondents’ case, as pleaded, is of a different character. They do not say that they had the relevant material and neglected to use it. They say the Appellant practised a fraud on the court itself, by concealing the true holder of the title and by misdirecting the ground rent, and that the whole purpose of the deception was that it should not be apparent to the trial judge. If that is established, then by definition the matters complained of were hidden from view, and a party can hardly be condemned for want of vigilance in failing to detect a fraud designed to defeat detection. The two situations are not the same, and the Poku principle is directed at the first, not the second. 44. Whether the Respondents in truth knew, or ought to have known, of these matters at the time of the first trial is itself a question of fact. It is the sort of question that a trial exists to answer, on evidence and after cross -examination. It cannot be decided against them on a summary application, on affidavits, by assuming the very knowledge they deny. To dismiss the action on the ground of want of vigilance would be to resolve, without a trial and against the Respondents, a contested issue of fact that lies at the heart of the case. That the law does not permit. 45. The point was put plainly by Ampiah JA, (as he then was ), in DZOTEPE V. HAHORMENE III (already cited): fraud is an issue of fact to be determined by the court, and where it has been determined neither by the trial court nor by an appellate court, the party alleging it is entitled to have it determined by a court of competent jurisdiction at any time. The courts below were right to refuse a summary dismissal on the ground of vigilance, and to leave the question to be decided at trial. Ground (d) fails. 1. It follows that grounds (b), (c) and (d) each fail. The Respondents’ action cannot be brought to an end on the pleadings. It must proceed to trial, where the 18 of 22 allegations of fraud, and the Appellant’s answer to them, can be examined on the evidence. GROUND (a): THE PENDING APPEAL AND THE JURISDICTION OF THE HIGH COURT 2. There remains ground (a), the question of jurisdiction. In strict logic it comes first, since a court without jurisdiction need decide nothing else. We have taken it last for a practical reason: the objection can only be assessed once it is clear what kind of action the fresh suit is, and we have now established that it is an action to impeach a judgment for fraud, founded on facts the first suit did not decide. With that established, the jurisdictional objection can be seen for what it is. 3. The Appellant’s contention is that the pendency of the appeal against the judgment of Oppong J. deprived the High Court of jurisdiction to entertain a fresh action to set that judgment aside for fraud. The two proceedings, he says, cannot lawfully run side by side. The argument has a surface attractiveness, but it rests on treating as identical two things the law keeps separate. 4. The appeal against Suit No. LD/0779/2019 concerns the merits of the judgment. It asks whether, on the law and the evidence that were before the trial court, that court decided correctly. The fresh action, Suit No. C1/111/2023, concerns the integrity of the judgment. It asks whether, whatever the judgment may look like on its face, it was obtained by fraud. These are not the same question in different dresses. They turn on different facts. They call for different kinds of inquiry, the one confined largely to the existing record, the other requiring fresh evidence of the alleged deceit. And the answer to one does not determine the answer to the other: a judgment may be right on the merits and yet have been procured by fraud, and it may be wrong on the merits without any fraud at all. 19 of 22 5. Because the two proceedings are directed at different questions, the pendency of the appeal does not oust the jurisdiction that the High Court otherwise has to entertain an action impeaching a judgment for fraud. The simple co -existence of an appeal on the merits and a fresh action for fraud is not, without more, an irregularity at all. 6. There is, besides, a sound institutional reason for permitting the two to run together. An appellate court hearing an appeal on the merits is ordinarily confined to the record made below. It is not the natural forum for receiving and testing the fresh evidence by which fraud is usually proved, evidence of what was concealed, what was known, and what was misrepresented. The action to impeach for fraud, begun at first instance, is the proper home for that evidential inquiry, because the trial court can hear w itnesses and resolve the disputed facts. To hold that a pending merits appeal extinguishes the right to bring such an action would leave the victim of a fraud on the court, the very person the law of fraud exists to protect, without an effective remedy at the only level equipped to give him one. We do not think the law works so self-defeating a result. 7. We should not be taken to be indifferent to the concern that underlies the Appellant’s objection. There is a legitimate worry that two courts, dealing at the same time with a single judgment, might reach inconsistent results, or that a litigant might use t he second proceeding to undermine or to overreach the first. That worry is real, but the answer to it is case management, not the denial of jurisdiction. Where an appeal on the merits and a fresh action for fraud are on foot together, the courts have ample means to prevent any unseemly conflict. The trial of the fraud action may, in an appropriate case, be expedited, or the appeal stayed to await its outcome, or the two coordinated so that the fraud is determined before the merits are finally pronounced upo n. The choice among these courses is a matter for the discretion of the courts seised of the respective proceedings, to be 20 of 22 exercised on the facts of the particular case. What matters for present purposes is that the risk of conflict is a reason to manage the two proceedings sensibly, not a reason to shut the door on the fraud action altogether. Ground “a” therefore fails. CONCLUSION AND DISPOSITION 8. We return to where we began. Fraud unravels everything, and the law will not allow a judgment to stand on the strength of its form alone if the substance behind it may be rotten with deceit. The Respondents have pleaded, with the particularity the law requires, that the judgment against them was obtained by fraud. Whether they can prove it is another matter, and it is a matter for the trial court on another day. What they are entitled to is the opportunity to try. Nothing the Appellant has argued, neither t he rule against abuse of process, nor the principle of vigilance, nor the pendency of the appeal on the merits, stands lawfully in the way of that opportunity. 9. The Court of Appeal, in a careful judgment, applied the settled principles correctly and arrived at the right result. We can find no error in its reasoning or its conclusion. The grounds of appeal each fail, and the appeal as a whole is without merit. (SGD.) J. BARTELS-KODWO (JUSTICE OF THE SUPREME COURT) 21 of 22 (SGD.) I. O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) (SGD.) S. DZAMEFE (JUSTICE OF THE SUPREME COURT) (SGD.) H. AMALEBOBA (JUSTICE OF THE SUPREME COURT) COUNSEL KWAME FOSU-GYEABOUR ESQ. FOR DEFENDANT/APPLICANT/APPELLANT/ APPELLANT 22 of 22 EMMANUEL MATE-KOLE ESQ. FOR PLAINTIFFS/RESPONDENTS/ RESPONDENTS/RESPONDENTS WITH MAAME BOAHEMAA FOKUO