Essuman Vrs Sam [2022] GHAHC 45 (23 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON WEDNESDAY THE 23RD DAY OF NOVEMBER, 2022, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. SUIT NO. EI2/49/18 DATE:23RDNOVEMBER, 2022. EBUSUAPANYIN FRANCIS KWAME ESSUMAN … PLAINTIFF (FOR HIMSELF AND AS REPRESENTING THE ROYAL ANONA FAMILY OF MANKESIM) H/NO. D4 MANKESSIM KROFU. VRS. VIDA SAM … DEFENDANT H/NO. 131 OLD ASHONGMAN, ACCRA. J U D G M E N T The Plaintiff on the 17th day of May, 2018 caused a Writ of Summons to be issued against the Defendant herein and claimed for the following reliefs: I. A declaration that the document prepared by the Defendant dated 3rd February, 2017, and addressed to the Registrar, High Court, Agona Swedru in the case EBUSUAPANYIN KWAME ESSUMAN VRS. VIDA SAM SUIT NO. C1/16/2017 ENTITLED: RE: CONSENT THAT WRIT BE WITHDRAWN WITHOUT LIBERTY is a nullity, fraudulent and void and of no legal effect. II. An order of the Court setting aside the said document dated 3rd February, 2017,as fraudulent, null and void and of no legal effect. III. A declaration that the document prepared by the Defendant entitled : WITHDRAWAL BY CONSENT ORDER 17 RULE 3OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47), And filed by Defendant before the High Court, Agona Swedru on 6/2/17 is null and void per reason of fraud. IV. An order of the High Court setting aside the said document filed on 06/02/17 at the High Court, Agona Swedru. V. A declaration that the Order of the High Court, Agona Swedru, presided over by His Lordship Justice Peter Dei Offei, made on 4th Day of April, 2017, striking out the case Ebusuapanyin Kwame Essuman, vrs Vida Sam, Suit No. C1/16/2011 without liberty to re-apply was procured by the Defendant through fraud. VI. An order of the Court setting aside the said order of the High Court, Agona Swedru, dated 4th April, 2017. VII. Perpetual injunction restraining the Defendant, by herself agents, servants, workmen, assigns, personal representatives, administrators, privies, labourers, contractors, or howsoever from dealing with or having anything to do with the piece or parcel of land situate lying and being at Agona Swedru and bounded on or towards the North by the land of Justus Hagan measuring 212 feet more or less, on or towards the South by the land of K. B Korsah measuring 212 feet more or less, on or towards the East by the main road to Nsaba measuring 225 feet more or less, and on or towards the West by land of Tuyee measuring 200 feet more or less. VIII. Further or other reliefs. IX. Costs including solicitor’s legal fees. BRIEF FACTS OF THE CASE It is the case of the Plaintiff that he is the Head of Family of the Royal Anona Family of Mankessim Krofu and the Defendant is also the great granddaughter of one Madam Elizabeth Ampah a.k.a Essie Wu (deceased) and a member of the Royal Anona family of Mankessim Krofu. The Plaintiff contends that on 31st day of August 2010 he commenced an action at the High Court, Agona Swedru, against the Defendant in the Suit entitled: EBUSUAPANYIN FRANCIS KWAME ESSUMAN FOR HIMSELF AND AS REPRESENTING THE ROYAL ANONA FAMILY OF MAKESSIM KROFU VRS. 1. VIDA SAM H/NO. 131, OLD ASHOMANG, ACCRA 2. IVY MACBEENAM, AGONA SWEDRU (SUIT NO. C1/16/2011) According to the Plaintiff, he filed a notice to discontinue the suit against the 2nd Defendant therein Ivy Mac Beenam on 16th May, 2011 and same was granted. The Plaintiff further contends that on the endorsement of his said writ of summons, dated 31st day of August 2010 he claimed against the Defendant herein as follows: I. A declaration that the authority to manage, control and deal with that piece or parcel of land situate, lying and being at Agona Swedru and bounded on or towards the North by the land of Justice Hagan measuring 2021 feet more or less, on or towards the South by the land of K. B Korsah measuring 212 feet more or less, on or towards the East by the main road to Nsaba measuring 225 feet more or less, and on or towards the West by land of Tuyee measuring 200 feet more or less, is vested in the Royal Anona Family of Mankessim Krofu. II. A declaration of title to the said piece or parcel of land. III. Recovery of possession. IV. An order of the Honourable Court setting aside the devises made by Essie Wu Alias Elizabeth Ampah in her purported will dated 12th day of August 1957 and particular the device under clause 7 thereof made to her granddaughter Efua Kakraba and her children one of whom is the 1st Defendant herein Vida Sam. According to the Plaintiff, while the matter was pending, the Defendant tried to deal with the land in the center of the town and described in relief (1) of the endorsement to the said writ of summons in Suit No. C1/16/2011 and which land is again described in paragraph 5(1) of the statement of claim and was compelled to bring an application for interlocutory injunction against Defendant herein. The Plaintiff states that, the Defendant through her Counsel in the said Suit No. C1/16/2011 filed her response on 14th March 2013 and the Court presided over by his Lordship Justice Peter Dei Offei restrained the Defendant herein from dealing with the land situate in the Centre of the town, Agona Swedru opposite the former UAC building. The Defendant appealed against the said interlocutory Injunction granted against her to the Court of Appeal, Cape Coast in Civil Appeal No. H1/14/15 but the Court of Appeal affirmed the injunction granted against the Defendant herein by the trial Court, in Suit No. C1/16/2011. The Plaintiff states that the Defendant still persisted in wanting to develop the said parcel of land in the centre of the town of Agona Swedru and indeed went into the land to manufacture blocks, for which reason Plaintiff was compelled to commence contempt proceedings against Defendant with suit No. C12/21/2014. The Plaintiff states that in January 2017, he suddenly received a call from the Defendant on her cell phone saying she wanted to smoke the peace pipe with the Plaintiff. The Plaintiff states that his response to Defendant overtures was that whatever she hadunder her sleeves ought to be heard by some of the elders of the Royal Anona Family of Mankessim Krofu. According to the Plaintiff, at the appointed day for said meeting, on 4thFebruary, 2017 he went along with one John Kingsley Amoah a.k.a KobinaOfosu a family member from Accra. Then another family member called Wilberforce Kofi Yamoah resident at Mankessim and now deceased. The Defendant was also accompanied by her elder sister Grace Sam. The Plaintiff states that after exchanging pleasantries, the Defendant pleaded with him to let bygones be bygones and Plaintiff should see her as a repentant erring member of the Anona Family of Mankessim Krofu. The Plaintiff states that the Defendant then started that the main purpose of the meeting was to intercede with Plaintiff to go to the High Court, Agona Swedru, to seek its permission to settle the matter amicably between them with most of the elders of the Royal Anona Family of Mankessim being present,after which the outcome would be reported back to the Court. The Plaintiff states that he then asked the Defendant the form the intimation to the Court of the intended settlement would take, where upon the Defendant replied that the papers to seek the permission of the Court was already with her. According to the Plaintiff, the Defendant then pulled out two sheets of paper from the hand bag she was carrying and the Defendant signed the first paper and gave it to the Plaintiff, then showed him where to sign and he did. The Plaintiff states that of the second sheet of paper, the Defendant again signed her portion and then showed him (Plaintiff) his portion to sign which he did. The Plaintiff states that John Kingsley Amoah and Grace Sam signed their respective portions as witnesses and the Defendant collected back the two (2) sheets of papers. The Plaintiff states that the Defendant then told the Plaintiff that she would inform him (Plaintiff) the date they would meet at the High Court, Agona Swedru to seek its permission to settle the matter and report back as planned. The Plaintiff states that getting to the end of the month of March 2017 the Defendant called him on her cell phone and gave him the court dates as 4th April, 2017. The Plaintiff further states that he arrived in court on4th April, 2017 a little late only to find that the Defendant had engaged somebody called Yaw AsieduAggrey to represent him (Plaintiff) and the said suit No. C1/16/201 had been called and struck out as withdrawn without liberty to re-apply. The Plaintiff states that, it was later he appreciated the full import of the document he had signed. The Plaintiff contends that the events that culminated in the order of the High Court, Agona Swedru was premeditated and schemed by the Defendant in collusion with a lawyer probably the counsel for the Defendant because they were legal in content and they could only be prepared by a lawyer who knew about C. I 47. The Plaintiff said he will additionally apply to the Court to order the Defendant to disclose the name of the said lawyer who had to bend so low to prepare the documents in question given the fact that their intendments were to get the order as Defendant had on 4th April 2017, which was fraudulent and particularized same thus; PARTICULARS OF FRAUD a. Defendant dishonestly engaged the assistance of a lawyer to connive with him to draft the said letter dated 3rd February, 2017, without the knowledge of the Plaintiff as to its content and effect of which was to persuade knowingly the Court, that the parties herein, that is, Suit No. C1/16/2011, were ad Idem that there had been a prior meeting between the Plaintiff and Defendant herein including the principal members and elder of the said Royal Anona Family of Mankessim Krofu on 3rd February 2017, and that which meeting there had been agreement that Plaintiff and Defendant and the family had consented that the said suit (No. C1/16/2011) is withdrawn without liberty to re- apply. b. The Defendant dishonestly carried two documents with her to Mankessim on the 4th day of February, 2017, acknowledging that he (Plaintiff) was privy to the preparation of the said document on the said date 3rd February, 2017, and further acknowledged that there had been in fact been a prior agreement on or before 3rd February , 2017 by the parties herein together with the said Anona Family of Mankessim and which by inadvertence Plaintiff and his two (2) witnesses could not sign the document by Defendant thus necessitating the need to transport the said document by Defendant to Mankessim to get these signature including Defendant’s signature herself and her witness on 4th February, 2017. c. Defendant dishonestly and with the connivance of a lawyer preparing a court process bearing the title of the Suit No. C1/11/2011, prepared in February, 2017 without a date, and transporting the said document in her bag on 24th February to Mankessim to secure the signatures of the Plaintiff and his witness at Mankessim quoting an order from CI. 47, that is ORDER 17 RULE 3 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47),. d. That the document titled, withdrawal by consent ORDER 17 RULE 3OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47), bore no date showing when it was prepared and who prepared it, but bore the signatures of Plaintiff and Defendant, taken on 4/2/2011. Implying that same was simultaneously prepared by both Plaintiff and Defendant even though none of them is a lawyer capableof eliciting the precise Orders of the Rule, i.e. C. I. 47. e. That these two documents mentioned supra prepared by the Defendant with the assistance of a lawyer were designed to induce the Plaintiff to sign the death warrant of the suit No. C1/11/2011 commenced by the Plaintiff when Defendant transported same to Plaintiff at Mankessim on 4th February, 2017, and represented the documents to Plaintiff they were intended to seek the permission of the Court to settle the dispute between them amicably and report to the Court the outcome thereof, when in fact on the 4th February, 2017, Defendant took these documents to Plaintiff, she knew them to be false and untrue. f. That by means of the said representation by the Defendant on 4th February, 2017, at Mankessim, the Plaintiff acting on the faith thereof and in the belief that they were to seek the was to induce Plaintiff to sign these documents, albeit, mistakenly, which inexorably let to the said order of the Court order dated 4th April, 2017. PARTICULARS OF MISTAKE a. That all time when Defendant went to Mankessim on 4th February, 2017 and made the representation that she was at Mankessim to seek Plaintiff’s signature to seek permission of the Court to settle the dispute between them amicably and report back to the Court, little did the Plaintiff know that what were the contents of the said two documents was contrary to what Defendant had told Plaintiff. b. In the premises the Defendant is not and was not bound by the said order of the Court, dated 4th April, 2017 as same fraudulent, and cannot be enforced against defendant and the said order ought to be set aside. The Plaintiff states that presently the Defendant had engaged workers who are developing the land on which injunction was placed in the said suit No. CI/16/2011. The Plaintiff states that the Defendant is changing the character of the land and she threatens and intends to continue with her unlawful acts unless restrained. The Defendant in her statement of Defence denied the allegation leveled against her. The Defendant further denied the particulars of fraud and contends that the Plaintiff was the one who dictated the terms of settlement and read, understood and consented to them before appending his signature. The Defendant says that, the Plaintiff signed the terms of settlement and agreed to discontinue the case out of court, is estopped from raising these same matters again. According to the Defendant, the Plaintiff is not entitled to his claims. At the stage of Direction, the issues settled down for trial were: ISSUES: ISSUES FILED BY THE DEFENDANT: a. Whether or not Judgment/Order to discontinue was obtained by fraud? b. Whether or not other issues arising out of the pleadings? ISSUES FILED BY THE PLAINTIFF: 1. Whether or not on 27th June, 2012, at a time when to the knowledge of counsel for the Defendant, Plaintiff was acting by two by two Attorneys, namely; Nana Amoaa IV and Solomon Kojo Assan, and contrary to the code of ethics, went out of his way to solicit the views of the Plaintiff as to whether he was privy to the action commenced by these Attorneys, there by ferreting Plaintiff to concede to amicable settlement abs to abandon his attorneys. 2. Whether or not subsequent thereto Defendant called Plaintiff on her cell phone that she was prepared to smoke peace pipe with Plaintiff and thus scheduled a meeting with Plaintiff at the palace of the Anona Family at Mankesim on 4th February, 2017. 3. Whether or not on the said date 4th February, 2017, and prior to the scheduled meeting at Mankessim counsel for the Defendant had already crafted a notice of discontinuance on legal language the effect of which implied that Plaintiff had, as at 3rd February, 2017, and even prior to the said meeting on 4th February, 2017, agreed with the Defendant that both parties were never to be entertained by the court again upon the discontinuance of the suit. 4. Whether or not on 4th February, 2017, Defendant carried along with her to Mankessim two documents one of which read that Plaintiff was privy to the preparation of the said documents on 3rd February, 2017 at meeting of both Plaintiff and Defendant at Mankessim in the presence of the Family when Defendant knew no such pre-arrangement has taken place. 5. Whether or not Defendant on 4th February, 2017 cunningly pulled out of the bag she was carrying the said document already signed by her and gave same to the Plaintiff to sign his portion when she knew Plaintiff had no knowledge of its contents let alone the particular order under C. I. 47 which the document had been prepared. Whether or not the said document, titled WITHDRAWAL BY COUNSEL ORDER 17 RULE 3OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47). 6. , was prepared by counsel for the Defendant to be delivered to the Plaintiff at Mankessim by the Defendant to secure Plaintiff’s signature even though Plaintiff was not a lawyer, and did not understand the legal import thereof. 7. Whether or not the said document prepared knowingly to secure the signature of Plaintiff when he had no knowledge of the law, amounted to fraud. 8. Whether or not Plaintiff signed the said document mistakenly and in the belief that it was a letter to seek the permission of the Court to settle the matter between the parties with their lawyers and to report back to the Court with terms of settlement to be filed and signed by their respective lawyers. 9. Whether or not the said documents were procured by fraud. 10. Whether or not the document filed on 6th December, 2017, is void by reason of fraud, a nullity and of no legal effect. 11. Whether or not the order of the High Court, Agona Swedru, dated the 4th day April, 2017 whereby the suit was struck out as settled with the order without liberty to the parties to apply is null and void and same procured by fraud. 12. Whether or not Plaintiff is entitled to the relief’s he is seeking as set out on the endorsement to his writ of summons. 13. Any other issues as may appear on the pleadings. THE BURDEN OF PROOF IN A CIVIL ACTION GENERALLY AND EXCEPTIONS Section 14 of the Evidence Act 1975 NRCD 323 provides thus: “Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting". The provision above is in line with the general position at law in the determination of issues by the court in a civil discourse. Therefore, in order to enable the court decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. Also, Sections 10, 11, 12, and 14 of the Evidence Act 1975, sets out the standard of proof in any civil discourse. Section 10 (1) and (2) of the EVIDENCE ACT, 19751 defines the burden of persuasion thus: (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non- existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11(1)(4) of NRCD 323 deals with the burden of producing evidence and defines same thus: (NRCD 323) (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Again, Section 12(1)(2) NRCD 323 provides for the Proof by a Preponderance of the Probabilities states: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. SEE:ZABRAMA VRS. SEGBEDZI2 AND MAJOLAGBE VRS. LARBI AND ORS3 EXCEPTION WHEN FRAUD OR CRIME IS ALLEGED In the instant case before this court, the main allegation is fraud which has a standard beyond reasonable doubt though in a civil discourse such as the instant case. This is provided in Section 13(1) of the Evidence Act 1975, NRCD 323 which states: “(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” 2[1991] 2 GLR 223 3[1959] GLR 190 – 195 The burden of proof in the instant case is proof beyond reasonable doubt though in a civil case. The exception is provided under Section 13(1) of the Evidence Act 1975 when crime such as fraud or forgery among others, are alleged and are in issue for determination. See: 1. SASU BANFO VRS. SINTIM [ 2012] 1 SCGLR 136 at holding 3. 2. FENAKU VRS. JOHN TEYE [2001 – 2002] SCGLR at holding 5. The Plaintiff has a duty to establish his case by leading evidence sufficient enough to meet the legal standard set by law in a civil discourse where crime such as fraud is alleged and in issue, which standard is proof beyond reasonable doubt. I will proceed to examine the evidence adduced by the parties in relation to the issues set out in this case and the law, in order to determine whether or not the parties have discharged their respective burden of proof to the standard as prescribed by the Evidence Act and case law. In this suit, the issues to be determined are those issues set out in the application for directions and additional issues, as well as issues dictated by law arising from the pleadings filed by the parties. However in the instant case, the main issue gleaning from the pleadings of the respective parties as well as the issues filed by the parties is; “Whether or not the withdrawal by Consent of the suit titled( CI/16/2011) Ebusuapanyin Francis Essuman for himself and as Representing the Royal the Royal Anona Family of Mankessim v Vida Sam then pending at the High Court Agona Swedru, was procured by fraud of mistake” I will therefore deal with issue (a) as raised by the Defendant, dovetailed into the issues raised by the Plaintiff and make a determination. THE EVIDENCE, ANALYSIS AND THE APPLICABLE LAW In his evidence before this court, the Plaintiff Ebusuapanyin Francis Kwame Essuman stated that he is the Head of the Royal Anona family of Krofu, currently a farmer and further stated that the Defendant is a member of the same family. The Plaintiff averred thathe brought an action on behalf of the Royal Anona family for himself,against the Defendant herein and 1st Defendant thereinand one Ivy Macbeenam the 2ndDefendant therein, on the 31st day of August 2010 at the High Court , Agona Swedru per Exhibit A. The Plaintiff further averred that he discontinued the suit against the 2nd Defendant therein Ivy Macbeenam on 16th day of May 2011 per Exhibit B. According to the Plaintiff, whilst the case was pending, he gave Power of Attorney to Nana Amoa IV of Mankessim Krofu and Solomon Kojo Assan who are members of the family to prosecute the case in his stead per Exhibit ‘C’. In his evidence before this court, the Plaintiff stated almost all that he stated in his statement of claim. The Plaintiff stated that he received a letter from the Counsel of the Defendant through the Defendant seeking to find out whether he genuinely commenced the action and gave power of attorney to that effect or it was one of his attorneys Nana Amoah IV that has initiated the suit using his name. According to the Plaintiff, the Defendant said her lawyer meant no harm and that litigation must end, so that they can engage an investor to develop the land for all members of the family to benefit per Exhibit ‘D’. The Plaintiff also tendered in evidence the alleged agreement to withdraw the action with consent without liberty to re- apply per Exhibit ‘E’as well as the alleged withdrawal by consent addressed to the court High Court Agona Swedru, per Exhibit ‘E1’. According to the Plaintiff his understanding was that the documents signed was to seek permission from the court to try settlement and report back to the court. Mr. John Kingsley Amoah ‘PW1’ in his evidence corroborated the evidence of the Plaintiff and added that after signing the alleged agreement, they were waiting to hear that the court had granted them the permission to settle the matter amicably but heard that the court rather made an order that the parties have been denied the liberty to bring any action touching on the properties in dispute before the court. In her evidence before this court, the Defendant averred that she initially initiated an action against one Ivy Mac Beenem at the Circuit Court Agona Swedru per Exhibit ‘A’ and when the Plaintiff tried to join, he was denied so he (Plaintiff) initiated an action at the High Court Agona Swedru against her (Defendant). The Defendant said the Plaintiff once called a meeting with the larger family at Agona Swedru to deliberate on how they could preserve the properties left by her grandmother. The Defendant averred that the case pending at the High Court was raised where she stated that the subject matter of the suit was her grandmother’s self- acquired property. The Defendant said she then referred them to the grandmother’s will to that effect and no one contradicted what she said. The Defendant averred that thereafter, a family meeting was held at Mankessim to end the suit pending at the High Court, Agona Swedru came up again for deliberation. The Defendant further averred that after the family had thoroughly discussed it, the conclusion was that the matter should be withdrawn from the court. As a result, the Plaintiff asked the parties to the suit to get a Commissioner of Oath to prepare the notice of withdrawal from court. According to the Defendant, the document was prepared ata Communication Centre in Mankessim. In the case of STATE INSURANCE COMPANY LTD VRS. IVORY FINANCE CO LTD & OTHERS J4/48/2017 dated the 21st of February, 2018 (unreported), a matter that had travelled from the High Court through the Court of Appeal on an allegation of fraud dismissed by the High Court and affirmed by the Court of Appeal. The Supreme Court speaking through Anin Yeboah JSC (As he then was) currently the Chief Justice(CJ) stated at page 7 thus; “In these proceedings, the plaintiff had expressly pleaded fraud with sufficient particulars which the defendants strongly denied which in our respectful opinion was treated lightly by the two lower courts. Fraud qua fraud is such a serious vitiating factor that in judicial proceedings care must be taken not to suppress it when legitimately raised in the course of any proceedings”. See also the case of NII OKWEI DOWUONA VI VRS. UTC ESTATES GHANA LTD &OTHERS SUIT NO. H1/186/2020 unreported dated 26th November 2020 per WELBOURNE J. A. (PRESIDING), Agbevor J. A, Baffour J. A. Indeed the Supreme Court speaking Adinyira JSC in the case of OSEI ANSONG & PASSION AIR LTD VRS. GHANA AIRPORT LTD J4/24/12 dated 23rd January, 2013 in a case when fraud was alleged stated that fraud is not fraud simply because it has been alleged. The pleadings as to fraud must demonstrate on its own the cause of action as the conduct of a Defendant being fraudulent Case law has demonstrated that the court have always examined issues of fraud to ensure that mere allegations of fraud are not entertained. In the instant case, it is not in doubt that the parties met in Mankessimwith some members of their family on 4th day of February 2017 in their quest to seek amicable resolution of the matter between the Plaintiff and Defendant pending at the high Court at Agona Swedru. Even though the head of family has the sole mandate to convey a meeting with some principal elders of the family such as the one held on the 4th day of February 2017. However, the content of Exhibit ‘A’ authored by her Counsel and addressed to the Plaintiff, the Defendant’s role in seeking the purported withdrawal by consent filed by her counsel among other interest shows the meeting was at her instance. I further find that Exhibit‘E’ “consent that writ should be withdrawn without liberty” was boldly written whiles to ‘reapply’ was omitted from the main heading, but it was deliberately included in the content but not conspicuous enough. The statement ‘without liberty’ was not necessary to be part of the heading but only to blind a curious mind who enquires whether to apply or not. I further find that there was no evidence on record to show that a Commissioner of Oath prepared the documents neither was it prepared at Communication Centreat Mankessim as the Defendant would want the court to believe. I also hold that Exhibit ‘E’ was prepared on 3rd February 2017 before the meeting and the parties signed the day of the meeting. Therefore, the evidence of the Plaintiff and‘PW1’ that the Defendant came to the meeting with two prepared documents and urged them to sign is consisted with the state of affairs and the evidence on record. There is no evidence on record to show that the matter was to be withdrawn without liberty to re-apply not even did paragraph 15 of the Defendant’s witness statement convey anything close to that. I find that the statement ‘ without liberty to re-apply was not agreed on by the parties and same was a creation of the Defendant with the support of a legal mind and with the intention to bring the suit to an abrupt end by deceit. As argued on behalf of the Defendant that a party of full age and understanding is bound by his signature whether he reads or understands what he is signing in the absence of any evidence that he was misled by any party when he quoted the case of Y. OPPONG VRS. ANARFI ]2011]2 SCGLR 556. As Counsel rightly argued, being of full age and understanding is not a panacea to deception and that if such a signature is procured by deceit or fraud, one cannot be bound by it. In arguing on behalf of the Plaintiff in his written address quoted the English case of RE LONDON AND GLOBE FINACE COPORATION LTD. [19903]1 Ch 728, Buckely J,where the courtin defining Fraud, held that: To deceive is to apprehend, to induce a man that a thing is true which is false; and which the person practicing the deceit knows or believes to be false. To defraud is to disprove by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action”. Under Cross Examination, the Defendant answered the following question among others: Q. Tell the court who went on Monday 2nd February, 2017 to file Exhibit ‘E1’? A. My Lawyer filed it. Q. Exhibit ‘E1’, was it prepared by your Lawyer? A. That is correct. In the instant case before this court, the Defendant made a false representation to the Plaintiff that the mode of seeking leave or permission from the court to amicably settle a matter pending in court and to announce settlement if any for the court to enter a consent judgment, was to sign a document such as Exhibit E to enable Counsel for the Defendant file same as withdrawal with consent without liberty to re-apply was fraudulent and deceit to the highest order. Also the conduct of the Counsel for the Defendant in this whole scenario or drama leaves much to be desired as same raises more questions than answers. In the case of WEST COAST DYEING INDUSTRY LTD; ADAMS VRS. TANDOH [1984-86] 2 GLR AT 605, quoted by Counsel for the Plaintiff,C. A. Osei- Hwere J. A stated thus “fraud, like cancer, calls for a swift remedy. It must be uprooted. Therefore, when fraud is brought to the Court’s notice and there is credible evidence to support it the court is obliged to deal with it swiftly and decidedly. See also: 1. DZOTEPE & ORS VRS. HAHORMENE III (NO.2) [1983-84] 1 GLR 294 2. IN RE AGYEKUM (DECD) AGYEKUM& ORS VRS. TACKIE & ORS [2005-2006] SCGLR 851 at 855. 3. FRIMPONG VRS. NYARKO [1998-99] SCGLR 734 at 743 Also in the case of AIKINS VRS. DARKWA (2013)58 GMJ187 @ 209 AND 211, THE COURT PER AYEBI JA, AT PAGE 209 of the report stated; “Fraud is known as a serious crime to be charged against another”. That is why the law requires in section 13(1) of the NRCD 323 that if fraud is alleged even in a civil suit, it must be proved beyond reasonable doubt as pertains in normal criminal cases. The trial judge considered these particulars of fraud in the light of evidence placed on record. He came to conclusion that the defendant herein committed no fraud in obtaining the Circuit Court Judgment because in all cases he acted in good faith based on professional advice given him” The court proceeded to affirm the findings of fact of the trial Judge on the issue of fraud. Also in page 211 of the report, the court in the case of AIKINS VRS. DARKWA(SUPRA)described the elements of fraud when it stated that what amount to fraud has long been settled in DERRY VRS. PEEKS (1889) 14 APPEAL CASES 337. AT PAGE 374 LORD HERSHELL said: “Fraud is proved when it is shown that false presentation has been made(1) knowingly, or (2) without belief in its truth or (3) recklessly, careless whether it be true or false. These are the element of fraud which plaintiff must prove. See: ”The law as decided by the Superior Court in Ghana, page 68, by ‘Fred Obikyere’. In the instant case before this court, the Plaintiff led evidence beyond reasonable doubt to establish the allegation of fraud against the Defendant and I hold same as a fact. From the foregoing, the Plaintiff is entitled to his claims. See:SASU BANFO VRS. SINTIM (SUPRA) and FENAKU VRS. JOHN TEYE( SUPRA) I have considered the totality of the evidence adduced before this court, the authorities cited, the law and can irresistibly conclude on the evidence led before this court, that the Plaintiff led sufficient evidence to establish his claims beyond reasonable doubt. Accordingly, judgment is entered in favour of the Plaintiff against the Defendant for the following reliefs: I. I declare that the document prepared by the Defendant dated 3rd February 2017 and addressed to the Registrar, High Court, Agona Swedru in the case of EBUS. KWAME ESSUMAN VRS, VIDA SAM, SUIT NUMBER, C1/16/2017titled: Consent that writ be withdrawn without liberty as a nullity, fraudulent, void and of no legal effect. II. That the document dated 3rd February, 2017, is set aside. That the document prepared by the Defendant titled: Withdrawal by counsel ORDER 17 RULE 3OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47). III. And filed at the High Court, Agona Swedru, on 6/2/17 is null and void by reason of fraud. IV. That the document filed on 6th February, 2017, before the High Court, Agona Swedru is accordingly set aside. V. That the order of the High Court, Agona Swedru, made on 4th April, 2017, striking out the case of EBU. KWAME ESSUMANVRS. VIDA SAM, SUIT NO. C1/16/2011, without liberty to re-apply was proved by fraud and same is set aside per relief VI. VI. Giving that the striking out of the suit without liberty to re-apply is set aside, all decisions taken in respect of the suit (C1/16/2017) including the Injunction order still holds and same is affirmed. Costs of Ten Thousand Ghana Cedis (GHc10,000.00) is awarded against the Defendant in favour of the Plaintiff. (SGD) JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE. COUNSEL ROLAND ARTHUR, HOLDING BRIEF OF MR. KOJO ANAN, FOR THE PLAINTIFF PRESENT . FELIX ANYINSAN, FOR THE DEFENDANT PRESENT. /MK/ 23