Koteye Vrs Kassar [2022] GHAHC 111 (25 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (LAND DIVISION) ACCRA HELD ON TUESDAY THE 25TH DAY OF OCTOBER, 2022 BEFORE HER LADYSHIP JUSTICE JENNIFER MYERS AHMED (MRS), JUSTICE OF THE HIGH COURT. ------------------------------------------------------------------------------------------------------ BEN NIKOI KOTEYE : PLAINTIFF SUIT NO. FAL/297/2014 VRS SAUSAN KASSAR : DEFENDANT --------------------------------------------------------------------------------------------------- PLAINTIFFS: DEFENDANTS: Absent Absent COUNSEL FOR PLAINTIFFS: Mr. Charles Amon Kotei - Present COUNSEL FOR 2ND DEFENDANT: Mr. Ralph Poku-Adusei h/b of Mr. Kwame Boafo Akuffo - Present ------------------------------------------------------------------------------------------------------ R U L I N G By his amended writ of summons and statement of claim filed on the 3rd of December, 2019, the reliefs sought by the plaintiff are as follows: i. A declaration that the judgment of the High Court Land Division dated the 26th of July, 2013 in favor of the defendant interest herein was fraudulently procured. ii. An order setting aside the judgment of the High Court Land Division dated the 26th of July, 2013 in favor of the defendant herein. iii. A declaration that all that piece or parcel of land described in the schedule contained in the statement of claim forms part and parcel of La Klaunaa Quarter lands. In the accompanying statement of claim, the fraud was particularised as follows at paragraph 9: (i) (ii) Defendant’s indenture dated the 24th day of May was not executed by the plaintiff. Defendant misled the court to believe that she paid $60.000.00 to him which said sum the plaintiff never sighted nor received. In paragraph 10, the plaintiff averred that the defendant’s misrepresentation to the court renders the judgment entered in her favor fraudulent and that same ought to be set aside. In Brutuw v Aferiba [1984-86] 1 ELR 25, the court held that a judgment obtained by fraud was in the eyes of the courts no judgment as it was not founded on the intrinsic merits of the case. But in order to overturn a judgment of a court of competent jurisdiction on the grounds of fraud, the facts alleged to constitute the fraud must be proved to amount to fraud and constitute it. The judgments assailed would be automatically and effectively affirmed on failure to discharge that of proof. Similarly, in Osei-Ansong & Passion International School v Ghana Airports Co. Ltd [2013-2014] I SCGLR 25 the court held that the settled law and practice of the court is that the proper method of impeaching a judgment on the ground of fraud was by action in which the particulars of fraud must be exactly given and the allegation established by strict proof. I have already stated the particulars pleaded by the plaintiff who was (at the time the writ was issued in the name of Nii Kotey Amli III) holding a power of attorney from Nii Kotey Amli III, did not specify that Nii Kotey Amli’s signature had been forged by the defendant herein. In his amended reply, the plaintiff again at paragraph 2 provided further particulars of fraud as follows: (i) “Nii Samuel Ashie Neequaye is literate a fact admitted by defendant’s witness (PW2) during cross-examination and has always signed documents as a principal elder of Klanoa Quarker. He never thumb printed and no jurat was provided. (ii) Whoever drafted the lease made provision for only one witness and it was only an afterthought that whoever perpetrated the fraud decided to include the name of Samuel Ashie Neequaye because he know him as principal elder and so wrote his name at the signature column of the would be witness.” Despite the allusion to the alleged fraud by the plaintiff herein, the issue of forgery of the defendant's indenture has not arisen in this court. The gravamen of the plaintiff’s case is that the judgment he seeks to set aside was procured by misrepresentation and thus fraudulent. There has been nothing said about the forgery or otherwise of the signature of the late Nii Kotey Amli. Paragraphs 14, 15, & 16 of the plaintiff’s witness statement are to the effect that one Dr. Kotey Dsane, the son of the late Nii Amli III, after testifying in the previous suit, later appeared before the principal elders of Klanaa Quarker to answer questions on his testimony that led to the judgment he seeks to have set aside being entered for the defendant herein. At this meeting the plaintiff deposed that Dr. Kotey Dsane stated that everything he had said at the previous trial had been told to him by his brother, one Amasa Dsane who was in actuality the one who had dealt with the plaintiff and not their father the late Nii Kotey Amli III. The plaintiff deposed further at paragraph 18 of his witness statement that; “I submit that the judgment dated the 26th of July, 2013 is fraudulent and same was obtained by misrepresentation.” It has never been the plaintiff’s case that the defendant’s document was forged. If that was the basis for the plea of fraud, in the view of this court, same should have been succinctly stated in the particulars provided. This alleged forgery has also not arisen in the testimony of the plaintiff and his witness. Not having done so, the plaintiff herein cannot now seek to have the defendant’s indenture submitted to forensic examination when no foundation has been laid in the pleading and the evidence adduced warranting such a request. (MRS) (SGD) JENNIFER ANNE MYERS AHMED JUSTICE OF THE HIGH COURT. 4