FIADZORGBE VRS KPOGO (H1/166/2021) [2022] GHACA 122 (20 October 2022)

IN THESUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: MARGARET WELBOURNE JA PRESIDING P. BRIGHT MENSAH JA NOVISI ARYENE JA BETWEEN: FRANCIS KOJO FIADZORGBE … PLAINTIFF/APPELLANT SUIT NO. H1/166/2021 20TH OCTOBER 2022 Vs NOBLE KPOGO … DEFENDANT/RESPONDENT ========================================================= JUDGMENT BRIGHT MENSAH JA: My Lords, the instant appeal raises for our active consideration, the crucial issue as to whether this case falls within the category of cases that can reasonably be held that a party shall not be permitted to overturn judgments that had ran through the superior courts of judicature up to the Supreme Court, by raising a new consideration when the matter has previously been settled between the parties. The common ground in the instant case is that there was a previous suit between the plaintiff/appellant herein and the defendant/respondent’s deceased father conveniently described as his predecessor-in-title. The case went in favour of the defendant/respondent’s predecessor-in-title which case the plaintiff/appellant lost both appeals in the Court of Appeal and the Supreme Court. However, the new consideration the plaintiff/appellant contends in the instant case is the allegation that the judgment of the High Court in the earlier Suit No. HCT/73/94 intutled J. M KPOGO v F. K FIADZORGE delivered 26/06/1996 and affirmed by both the Court of Appeal and the Supreme Court, was obtained by fraud. In determining this appeal, we have for our useful guidance the principle Earl of Solborne established in the English case of Boswell v Coaks (No. 2) (1894) 86 LT 365 which principle Sowah CJ re-echoed in Penkro v Kumnipa [1987-88] 1 GLR 558 @ 562 that runs follows: “…………. Courts should not be ready to permit unsuccessful parties to attempt to overturn judgments by raising new con- siderations. For that reason, it is essential that a party seeking to overturn a judgment demonstrates that he or she does so only upon footing or matters discovered since judgment was entered.” Historical background: It is recalled that in or about the year, 1996 one J. M Kpogo, the deceased father of the defendant/respondent herein, sued the plaintiff/appellant herein in the High Court, Tema in a suit concerning a piece or parcel of land situate and lying at Ashiaman that the plaintiff/appellant had claimed the defendant/ respondent’s had sold to him. The case went to trial. At the close of the full trial, the trial High Court gave judgment in favour of the defendant/ respondent’s father. The plaintiff/appellant tendered in that case and marked Exhibit 5, an arbitration report which report, he claimed was issued by a panel of arbitrators that had gone into the matter between the parties touching and concerning the disputed land. The basis for tendering Exhibit 5 was that the arbitrators made an award in his favour, claiming that the said J. M Kpogo, the defendant/respondent’s father had sold the disputed land to him, plaintiff/appellant and that he had then been directed to receive the balance of the purchase price and the said Kpogo ordered to receive same if paid. As stated supra, the trial High Court having determined all the issues raised in the case delivered judgment in favour of the defendant/respondent’s successor-in-title, his deceased father. Being dissatisfied with the said judgment, the plaintiff/appellant herein appealed to the Court of Appeal which appeal was dismissed. The plaintiff/appellant lodged a second appeal to the Supreme Court. There too, the appeal was dismissed. Now, the plaintiff/appellant having lost the suit in all the 3 courts ran back to the High Court, Accra [Land Division] and sued Noble Kpogo described in the writ of summons as the customary successor of J. M Kpogo [deceased], claiming the reliefs listed hereunder: 1. Declaration that the judgment of the Tema High Court in suit No. HCT/73/94 intuitled J. M Kpogo v F. K Fiadzorgbe dated the 26th day of June 1996, was obtained by fraud. 2. An order to set aside the said judgment. 3. Declaration that the plaintiff purchased the land the subject matter of dispute in suit No. HCT/73/96 intuitled J. M Kpogo v F. K FIADZORGBE. 4. An order of perpetual injunction to restrain the defendant by himself, servants, agents, assigns, workmen, privies or other- wise howsoever from interfering with the plaintiff’s possession of the land, the subject matter of dispute in suit No. HCT/73/96 intutled J. M KPOGO v F. K FIADZORGBE and from doing anything that will interfere with plaintiff’s interest in the said land. At the close of pleadings, issues the appellant raised for the consideration of the lower court and for trial, as contained in his application for directions that appears on pp 24-25 of the record of appeal [roa] are reproduced here below: a. Whether or not the earlier suit, suit No. HCT/73/94 was procured by fraud. b. Whether or not outcome of the police investigations which forms the basis of the fraud being alleged by the plaintiff herein could have been discovered with due diligence by the plaintiff during the pendency of the previous suit. c. Whether or not the plaintiff is entitled to the reliefs he is claiming. d. Any other issues arising from the pleadings. It is pertinent to observe that at the hearing of the application for directions, the lower court ruled that the current suit is an abuse of the legal process, the court having observed that the appellant had lost in all cases, that is in the trial High Court through to the Supreme Court concerning and touching the same land, the subject matter of the instant appeal. Accordingly, the lower court invoked its inherent powers and Order 11 r 18(1)(a) of the High Court [Civil Procedure] Rules, 2004 (C I 47) to strike out the pleadings and proceeded to dismiss and indeed, dismissed the case in its entirety. Yet, the lower court also reasoned that the appellant did not sue the estate of the late John Kpogo but the customary successor personally which in the opinion of the lower court was procedurally wrong. The court explained that the appellant’s amended statement of claim did not disclose the capacity in which the respondent was sued. The ruling of the lower court appears on pp 25A-25B & 26-27 [roa]. Being dissatisfied with the said ruling, the plaintiff/appellant has appealed to this court on a number of grounds listed here below, that is to say: 1. The court erred by dismissing the plaintiff’s suit when there are triable issues raised on the pleadings. 2. The court erred when it invoked its inherent jurisdiction to dismiss plaintiff’s suit when triable issues were raised on the pleadings. 3. The court erred by summarily dismissing the plaintiff’s suit when plaintiff has raised the question of fraud. 4. The court erred when it dismissed the plaintiff’s suit on the grounds that the plaintiff should have sued the Estate of the late John Kpogo instead of the customary successor of John Kpogo who died intestate and when no letters of administration has been granted to any person. 5. Further grounds may be filed upon receipt of the record. See: pp 28 – 29 [roa]. So far as the records go, no additional grounds of appeal were filed. In this appeal, the plaintiff/appellant shall henceforth be simply referred to as the appellant and the defendant/respondent, the respondent. First, I intend to deal with the 4th ground of appeal and having done that I shall then proceed to consider the other grounds of appeal by combining all of them since they all speak to the same issue. That is to say, the lower court erred in law in dismissing the suit at the preliminary stage of the proceedings when the appellant contends that the case raised triable issues. Before proceeding to consider the merits or otherwise of the appeal, I need to put it on record that it is a right proposal of law to state that the trial courts have the power inherent in its jurisdiction to strike out pleadings or dismiss a suit at the application for direction stage in appropriate cases when circumstances warrant it. The proposition that a case may be dismissed or pleadings be struck out at an application for direction stage is rooted in our case law. See: Amoako v Amados [1975] 1 GLR 401. Therefore, I am of the considered opinion that the learned trial judge reserved the power to do what he did in our present case. The caveat, however, is whether he rightly exercised that judicial discretion in the context of the law having regard to the facts of the case put before the lower court. The answer to the question is dovetailed in the discourse to the 1st – 3rd grounds of appeal. 4th ground of appeal: As a matter of law, upon the death of a person both his moveable and immovable properties devolve on his personal representative. Where the person dies intestate his property devolves on his customary law successor but where he dies testate, on his executor. Unlike an executor who necessarily has to obtain a Probate insofar as the administration of the estate is concerned, a customary successor may or not apply for Letters of Administration [L/A]. His power to administer the estate is derived from customary law. In support of this legal proposition, I find as a useful guide, the legal reasoning of Benin J [as he then was] as espoused in In re: Estate of Amos Ekow Sackey [dec’d]; Adwoa Ansaba v Isaiah E. Mbeah & anr – High Court, Cape Coast (unreported) dated 30/04/1992. One of the key issues that turned for determination in In re: Estate of Amos Sackey (supra) was in whom the estate of intestate vested or devolved. The learned trial judge having carefully considered the issues raised in the case, held as follows: “……………… By customary law as later affirmed by legislation ie S. 1(2)(a) of Act 63 [Administration of Estates Act] the entire estate of an intestate vests in the customary successor. Unlike an executor who by S. 61 of Act 63 must necessarily take out a grant of Probate of a testator, a customary successor does not derive his power or right to administer the intestate estate by a grant of Letters of Administration but the mere fact that he has been duly appointed the customary successor. He may or may not apply for Letters of Administration…………………………..” In our present case, the appellant had pleaded in paragraph 2 of his statement of claim and same repeated in his amended statement of claim that the respondent is the customary successor of his late father, John Kpogo. Significantly, the respondent in his statement of defence in response to that averment admitted that fact and averred further that additionally he is the administrator of, and beneficiary of the estate of the deceased, John Kpogo. Now, having regard to the admitted fact and the common ground that the respondent is the customary successor to his late father and a beneficiary to his estate, the late John Kpogo having died intestate, I do agree with the submissions of learned Counsel for the appellant that the lower court erred in law when it dismissed the suit on the ground that the capacity in which the respondent was sued was not disclosed in the writ. To that extent, the 4th ground of appeal is allowed. With the legality of the decision of the lower court whether it was the estate of John Kpogo deceased that was to be sued disposed of, I now turn my attention to discussing the 1st – 3rd grounds of appeal. 1st – 3rd Grounds of appeal: It has been submitted on behalf of the appellant quite strongly that the judgment of the High Court which judgment was affirmed by the Court of Appeal and the Supreme Court was obtained by fraud. Having sued in the present suit, the appellant gave the particulars of fraud as follows: 1. The report of the arbitration committee failed to capture the fact that the plaintiff paid the said balance of c50,000. to defendant’s late father through the Secretary of the Committee. 2. The thumbprint of the Chairman of the Arbitration Committee in the committee’s report which he denied as not being his thumbprint was found to be his after the investigations. This is the kernel of the appellant’s allegation of fraud. According to the appellant, when he obtained a copy of the Arbitration Committee report, the impugned report he realized that the report has been forged since it did not capture the fact that he [appellant] had paid the balance of c50,000. of the purchase of the land to the Secretary to the Arbitration Committee who in turn had also tendered the money to the respondent’s father. As a result, the appellant claims he lodged a complaint of fraud and forgery with the Tema Police against the Chairman and the Secretary of the Arbitration Committee in the persons of Togbe Kofi Ahiable and Gerald Kwaku, respectively. In his written address p. 6, learned Counsel for the appellant explained that the Police carried out their investigations into the allegations levelled against the Chairman and the Secretary of the Arbitration Committee. However, the findings of the Police became available only after the trial in the Tema High Court. According to Counsel, the Police findings not being made available to the court in the earlier trial had resulted in miscarriage of justice against the appellant. Accordingly, that formed the basis of the institution of the instant suit and which is on appeal to this court. This is a wholly unattractive submission and I am not the least impressed with it. I shall revisit the issue. In support of his contention that the judgment of the Tema High Court was procured by fraud, learned Counsel for the appellant referred this court to Okofoh Estates v Modern Sign Ltd [1996-97] SCGLR 224 in which case the Supreme Court speaking through Wiredu JSC postulated that a judgment obtained by fraud passes no right under it so does a forged document obtained by fraud. The respondent, on the other hand, through his lawyer has argued quite strongly that the statement of defence filed 29/01/2019 raised various legal issues that go to the competence or validity of the current suit the appellant mounted. These include the issue of estoppel per rem judicatam on the account that the land, the subject matter of the earlier suit tried and determined on its merits is the same as the subject matter of the present suit; issues sought to be tried in the current suit were the same as those raised in the earlier suit and/or were issues that could or ought to have been raised at the trial in the earlier suit but were not so raised; the facts the appellant narrated in his statement of claim in the current suit are virtually the same or touch the same subject matter in the earlier suit; the parties are practically the suit with the current respondent being the son and the administrator of the estate of J. M Kpogo, the plaintiff in the earlier suit. Learned Counsel for the respondent has argued further that the particulars of fraud contained in the statement of claim show plainly that the facts the appellant claims he discovered after the trial in the earlier suit were indeed in existence during the trial and the appellant had every opportunity to discover them if due diligence was exercised. Additionally, Counsel thinks the mounting of the current suit is an vile attempt by the appellant to re-litigate matters already raised and determined in the earlier suit. Therefore, this new suit constitutes nothing but a blatant abuse of process, Counsel insisted. Now, the established rule of practice for the determination of an allegation/issue of fraud is that fraud shall be pleaded and proved strictly. This requirement is sanctioned by Order 11 r 8 of the High Court [Civil Procedure] Rules, 2004 that stipulates: (1) A party shall, in any pleading subsequent to a statement of claim, plead specifically any matter, for example, per- formance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or © which raises issues of fact not arising out of the preceding pleading. [emphasis highlighted] It is a settled rule of law that fraud vitiates everything, even solemn judgments of the superior courts. Indeed, the case of Frimpong v Nyarko [1998-99] SCGLR 734 gives an apt summary of the state of the law as follows: “Fraud vitiates everything and when a court of law in the course of its proceedings has cause to believe that fraud has been committed, it is duty-bound to quash whatever has been done in the strength of that.” Equally, the case Dzotepe v Hahormene III [1987-88] 2 GLR 681 illustrates the principle that a judgment obtained by fraud shall not be permitted to operate as an estoppel once the fraud was discovered and exposed in a court of competent jurisdiction. The Supreme Court explained in that case since such fraudulent judgment is a nullity. Nonetheless, I have critically and carefully studied the pleadings filed as well as the ruling of the lower court, the subject matter of the instant appeal and do roundly agree with the well though-out and reasoned submissions of learned Counsel for the respondent that the current suit is absolutely an abuse of the legal process for the reasons canvassed supra. Significantly, the records show clearly that the arbitration report the anchor sheet on which the appellant relies for the allegation of fraud was in existence and in possession of the appellant during the trial of the earlier suit. Indeed, the records show that the appellant tendered the arbitration report in the earlier report as Exhibit 5. It is therefore a complete lie for the appellant to say now that the report was discovered after the trial. The law is certain that an appeal is by way of rehearing the case. The Court of Appeal Rules, C. I 19 per rule 8(1) provides that any appeal to the court shall be by way of re- hearing. Therefore, granted that the arbitration report was discovered after the trial in the Tema High Court the appellant reserved the right to apply to the Court of Appeal to adduce fresh evidence when the matter was pending before the appellate court. The appellant kept mute on it both in the Court of Appeal and the Supreme Court. The legal consequence of his default in adducing such fresh evidence is that the appellant is clearly estopped from raising it now. Yet, the other point worthy of consideration is whether it was permissible for the appellant who had tendered the arbitration report in support of his case to prove that he had paid for the land, the subject matter of both suits could now turn round to say the report was forged. Clearly, the appellant cannot approbate and reprobate at the same time. We need to act on the settled rule of law that the plea of res judicata prohibits the courts from enquiring into the matter already adjudicated upon. It outs the jurisdiction of the court. See: Bassil v Hongah [1954] 14 WACA 569 @ 572 per Coussey JA as adopted with approval by the Supreme Court in Sasu v Amua Sekyi [2003-04] SCGLR 742 @ 757. It is plainly obvious in our present case that the appellant was attempting to re-litigate the whole issues that had been raised in the previous suit and determined on merits. This court cannot endorse the back-door approach by the appellant. The appellant is clearly caught by the plea of res judicata and cannot be allowed to re-litigate the whole issues again. Having regard to the peculiar facts of this current suit, it is worth repeating and emphasizing that the case is clearly an abuse of legal process hinged on the principle commonly known as the rule in Henderson v Henderson (1843) Hare 100 which: “…………….. requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring the whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res jusdicata in a narrow sense, or even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for- ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is detected.” The Supreme Court expatiating on the Henderson v Henderson rule stated it in Naos Holding Inc v Ghana Commercial Bank Ltd [2011] 1 SCGLR 492 to be a rule of public policy based on the desirability in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. It bears emphasis that a party who seeks to set aside a judgment on the basis of fraud must confine his reliefs to that issue only and nothing more. A stream of decided case has settled the rule that where a party seeks to impeach a judgment of a court of competent jurisdiction on ground of fraud he is required plead fraud only. Put differently, a party seeking to overturn a judgment he alleges to have been obtained by fraud is only permitted to seek a declaration that the impugned judgment was obtained by fraud. The party cannot claim any other relief in addition to the allegation of the fraud as was done in our instant case. In our present case, the appellant additionally asked for a declaration that he purchased the land, the subject matter of dispute in suit No. HCT/73/96 intuitled J. M Kpogo v F. K Fiadzorgbe as well as an order of perpetual injunction to restrain the respondent either by himself, servants, agents, assigns, etc from interfering with the appellant’s possession of the land, the subject matter of dispute in suit No. HCT/73/96 intutled J. M Kpogo v F. K Fiadzorgbe and from doing anything that will interfere with his interest in the said land. The principle that a party seeking to overturn a judgment on ground of fraud cannot ask for additional relief(s) was well articulated by Francois JA [as he then was] in Brutuw v Aferiba [1984-86] 1 GLR 25 @ 38 in which case the learned justice posited as follows: “An important observation must be made here. In a suit charging fraud there is clear impropriety for a plaintiff to reopen his entire case. Jonesco v Beard [1930] AC 298 @ 300-301 HL is authority for the principle that where a judgment is attacked for fraud, fraud only must be in issue. It is not a rehearing of the whole case…..” [emphasis underscored]. See also: Okwei Mensah [dec’d] [acting by] Adumuah Okwei v Laryea [dec’d] [acting by] Ashieteye Laryea & anr anr [2011] SCGLR 317. In conclusion, I hold that the instant appeal falls within the category of cases where the appellant who was unsuccessful in the earlier suit, the case having travelled from the trial High Court to the Court of Appeal and the Supreme Court on appeal and in each case he lost, cannot and should not be permitted to attempt to overturn those judgments by raising new considerations. Save our decision on the 4th ground of appeal, the instant appeal lacks any merit. The appeal is frivolous and misconceived. Consequently, it is hereby dismissed. The respondent’s costs assessed at Gh¢10,000. Sgd. P. BRIGHT MENSAH (JUSTICE OF APPEAL) I agree Sgd. MARGARET WELBOURNE (JUSTICE OF APPEAL) I also agree Sgd. NOVISI ARYENE (JUSTICE OF APPEAL) COUNSEL TETTEH JOSIAH WITH DESMOND ABBEY FOR PLAINTIFF/APPELLANT DICK ANYADI FOR DEFENDANT/RESPONDENT 16