Sesieme Vrs Gbomitta [2022] GHAHC 94 (19 December 2022)

Page 1 of 15 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON MONDAY 19 DECEMBER 2022 BEFORE JUSTICE GEORGE BUADI, J SUIT NO. E12/17/2022 SESIEME JONATHAN } …… PLAINTIFF Versus WOGON GBOMITTA } ……. DEFENDANT JUDGMENT Plaintiff’s case Just over a year ago, that is, on 4 October 2021, Plaintiff commenced this action by writ of summons against Defendant for the following reliefs: i A declaration that Defendant has sold the land in dispute to Plaintiff herein. ii A declaration that the judgment obtained in Suit No. E12/28/2021 was fraudulently obtained. An order setting aside the said fraudulent judgment. Punitive cost. iii iv Plaintiff’s case is that he entered into a land purchase contract with Defendant over the subject matter land for which reason an indenture was executed between him and Defendant on 6 April 1978 to signify the sale of the land. According to him, he updated the old site plan with GPS technology which necessitated a new indenture to be prepared, which Defendant, once again endorsed with other witnesses. 1 | P a g e Page 2 of 15 Plaintiff says that Defendant sued him to compel him to release the indenture with the contention that the indenture got into his mother's custody just to verify the documents and to assist her to decide to purchase parts of the land. Claiming to be sick at the time of the suit, Plaintiff avers that he could not file a defence to the suit resulting in Defendant securing a default judgment against him. According to Plaintiff, the default judgment that Defendant obtained against him is fraudulent. Plaintiff cites the particulars of fraud as “[m]isrepresenting to the Court that [the] title documents executed pursuant to a valid land purchase was merely given to Plaintiff's mother for verification purpose”, for which cause the indenture was upon orders of the Court under the default judgment released to Defendant. Plaintiff states that Defendant is riding on the said fraudulent judgment to destroy Plaintiff’s boundary pillars and to retake possession of the land that he had divested his interest since 1978, averring that Defendant would not stop his unlawful activities on his land unless the Court orders him. Defendant’s case Defendant entered appearance not only to deny Plaintiff’s claims but also to make a counterclaim for the following reliefs: A declaration of title to the subject matter land commonly known and called AVEKOR LAND which covers an approximate area of 5.06 acres more or less and bounded as follows: On North West by the property of MATHIAS P. FORMADJA On North East by the property of the VENDOR On South East by TIMOTHY Y. AVEGE 2 | P a g e On the South West by the VENDOR Page 3 of 15 3 Recovery of possession. A further declaration that Plaintiff did not buy any landed property from Defendant or at all. An order of perpetual injunction to restrain the Plaintiff or his assigns, agents, successors in title, worker of whatever description from in any way having anything to do with the said land and should not enter same for any purpose whatsoever. 6 General damages for trespass. Costs including lawyer's fees. According to Defendant, there is no purchase agreement with Plaintiff, as Plaintiff in 1978 was a little boy running errands for his late mother and could not have entered into any such purchase agreement with Plaintiff on the subject matter land. Defendant denies that an indenture was ever executed by him for Plaintiff in 1978; neither has he ever executed an indenture transferring title over the subject matter land for or to Plaintiff let alone an update of such document in October 2016. Defendant states that Plaintiff's mother had in 1983 expressed interest to buy four (4) plots of land from him but made a prior request for documents covering the land for her surveyor's use in verifying ownership of the land; indeed, depositing ¢400.00 (GH¢0.40) for her intended purchase. Defendant denies ever signing any purported document for Plaintiff let alone for the preparation of a new document. Defendant states that when the trial court ordered Plaintiff in Suit No. E12/28/2021 to release the said document to him, Plaintiff disobeyed the order for which he 3 | P a g e Page 4 of 15 was convicted of contempt of court in Suit No. E12/53/2021 intituled The Republic v. Sesieme Jonathan; Ex-parte Wogon Gbormita with further order to sign a bond to be of good behaviour for six months. Further to the conviction of contempt by the High Court was an order for perpetual injunction restraining Plaintiff never to use any copy of Defendant's landed document in whatever form or manner and to hand over Defendant's landed document to him which he complied. Defendant states that Plaintiff was present in court on the day the court granted his application for judgment in default of appearance. Before the grant, the trial judge, according to Defendant asked Plaintiff a series of questions, to which Plaintiff gave various answers including the fact that he was 52 years at the time he purportedly purchased the subject matter in 1978. The judge then proceeded to uphold his application for default judgment. Defendant denies that the judgment was obtained by fraud, adding that there could not have been any such misrepresentation to the court about Defendant's landed document. 3.0 Directions for trial and issues the court set down for trial 3.1 Exactly a year ago, on 20 December 2021, Plaintiff, in his application for directions, sought the court to set down the following issues for determination: a b Whether or not Plaintiff could buy the subject matter land in 1978? Whether or not Plaintiff bought the subject matter land from Defendant? c Whether or not Defendant ever sold any part or all of the subject matter land to Plaintiff? 4 | P a g e Page 5 of 15 Considering the existence of a judgment of this court, differently constituted that Plaintiff claims was secured by fraud, the court, during the consideration of the application, ignored all the issues that Plaintiff had set down to be considered for trial. The court set down the sole issue of fraud for determination. This is what the court held after considering the application for directions: The subject matter, indeed, the cause of action implicit in the suit calls for setting aside the judgment obtained with respect to the subject matter land. Indeed, the writ is endorsed with the relief “a declaration that the judgment obtained in Suit No. E12/28/2021 was fraudulently obtained”. Being so, the law requires the court not to allow the parties to open up the trial to engage in any other issue except the fraud allegation and its requisite proof. I shall, therefore, set down as the sole issue for trial whether or not the judgment allegedly obtained in Suit No. E12/28/2021 is tainted with fraud. Unfortunately, this sole or core issue is not part of the issues the lawyers have put down for trial. I shall … ignore all the issues set down for trial. 3.2 Plaintiff’s case is contained in the witness statement he filed attached with Exhibits A, B and C. Plaintiff’s case is supported by two other witnesses whose witness statements contained no exhibit attachments. As regards Defendant, he relies solely on his witness statement attached with Exhibits 1, 2, 3, 4, 4A and 4B. The defendant filed a supplementary witness statement upon leave attached with Exhibit 3. The issue of fraud that the court set out as the sole issue for trial was made pursuant to the decision of the Court of Appeal in Brutuw v Aferiba [1984-86] 1 GLR 25 at page 28. The court held that: 5 | P a g e Page 6 of 15 In a suit charging fraud, it would be a clear impropriety for a plaintiff to re- open his case. Where a judgment was attacked for fraud, fraud only must be in issue for it was not a rehearing of the whole case. (Emphasis added) The Court’s decision in Brutuw v Aferiba was berthed on the decision of the House of Lords in Jonesco v Beard [1930] AC 298, in which the House laid down the principle at pp. 300-301 that; “where a judgment is attacked for fraud, fraud only must be in issue and that it is not a rehearing of the whole case”. Neither is it for hearing of any other issue or case. If the sole issue is one of fraud, I fail to consider the propriety and legitimacy of considering any other issue or the counterclaim that Defendant filed and strongly argued by learned counsel for Defendant for its consideration by the court. I am afraid the law affords no such exception. I will therefore limit myself to the sole issue of fraud. Besides, per a plethora of caselaw including Domfe v Adu [1984-86] 1 GLR 653 CA (Holding 1); Zanyo v Fofie [1992-93] 3 GBR 1353 SC (Holding 4) a trial court is not under any obligation to consider and make findings of facts on issues or matters the court deems irrelevant to address the central core issue under consideration in the suit. Finding of primary facts and the applicable law As I am always religiously committed to, indeed obliged as a duty, a case is fairly and justly resolved by the correct finding of crucial primary facts on the issue under consideration. It is also trite learning that issues set down in a case are resolved largely by or through evidence from cross-examination, which remains a crucial advocacy tool and which if properly and carefully applied, is capable of unearthing crucial facts that the other party’s wish is they are never known or brought to light. Indeed, evidence from the cross-examination of the parties in the 6 | P a g e Page 7 of 15 suit revealed very crucial facts, which for very good reasons, I shall restrain myself from commenting thereon except on the sole fraud issue. Under cross-examination, there was a suggestion to Defendant by learned counsel for Plaintiff that there had been a customary arbitration over the subject matter land. Though Defendant initially denied the fact of any arbitration, he later admitted that the Anlo chiefs had arbitrated over the matter. Indeed, this is what Defendant said in his answer to a question as to the outcome of the arbitration: Qn So you [are claiming that you] never sat upon this case with any Chief here in Ho. Ans Yes, we did. Qn What was the outcome of that meeting? Ans At the meeting, I was shown an indenture and I was asked whether it bears my signature and I answered … in the affirmative. I asked them to bring the original copy of the indenture, which was brought [on the] third day, but I was not allowed to touch it. It was just shown to me so I sued them afterwards [for] the failure to give me the Indenture. Qn I am putting it to you that, that meeting declared Jonathan as the owner [of the subject matter land] Ans Not true, and I left the meeting when they refused to give me the document. Qn How did the meeting conclude in your absence? Ans Not necessary. Qn So you cannot tell the Court the conclusion, you cannot tell the conclusion of the meeting. 7 | P a g e Page 8 of 15 Ans That is correct. Qn You failed to tell the Court that there was such an arbitration between you and Jonathan. Ans It was not necessary to tell the Court, as it was not a genuine meeting. Qn I am putting it to you that you [had] no basis for suing Jonathan as in Exhibit D without praying for [a] declaration for title to the land. Ans The Court has power. (Emphasis added) I feel obliged to reiterate the anchor of Defendant’s case, which is a total denial of execution of any document purportedly transferring any piece of his land to Plaintiff but I find him admitting as quoted just above that “[a]t the meeting, I was shown an indenture and I was asked whether it bears my signature and I answered … in the affirmative”. Indeed, from the evidence above, It is certain that the subject matter land and documents covering it including its indenture was, or had been a subject matter of arbitration before whom Defendant admitted to having affirmed his signature on the indenture that transferred the interest in the subject matter land to Plaintiff. I find also that thereafter on 16 October 2020, Defendant issued a writ of summons against Plaintiff herein – E12/28/2021 (Exhibit D) not for a declaration of title to the subject matter land but rather, among other reliefs, for: a An order of the court compelling Defendant (Plaintiff herein) to release Plaintiff (Defendant herein) landed document within 24 hours of the order. b A declaration of the court that the Defendant's (Plaintiff herein) conduct had caused Plaintiff grave injury 8 | P a g e Page 9 of 15 Plaintiff acknowledged that Defendant filed Suit No. E12/28/2021 (Exhibit D) against him and that the court granted Defendant a default judgment because “he was sick at the time and was unable to file a defence”. I take notice that the judgment was not in default of defence but rather of appearance. Curiously, Plaintiff was present in court when the court differently constituted granted the application for the default judgement. I find no evidence on record that Plaintiff who was present in court explained to the court why he could not enter an appearance. However, in his evidence under oath before this court, Plaintiff stated that “… during the cause of the trial I was medically unfit hence unable to prosecute the case to its logical conclusion”. Well, it is uncertain whether Plaintiff made this known to the court. All the same, one would have thought, perhaps upon hindsight that, the court differently constituted, would have regarded Plaintiff's attendance and presence in court as having submitted to the court’s jurisdiction not only to the Defendant’s writ but also his application for judgement in default of appearance though out of time. As justice demands, my view was for the court to have entered an appearance for Plaintiff herein and possibly adjourn consideration of the application by extending the time for Plaintiff to respond formally to the application for judgment in default of appearance. The court strictly deemed the lack of formal opposition to the application as a presumption of Plaintiff’s admission of no case to Defendant’s application for judgment notwithstanding his presence in court. I reiterate the fact that the judgment was just for recovery of documents; not for declaration of title nor possession of the land, and so evidence was not taken as 9 | P a g e Page 10 of 15 required by the rules for the default judgment creditor to have led evidence of his title to the land. All the same, the issue I am confronted with here is proof of the fraud allegation. What did Defendant herein do wrong that could be termed as fraudulent? Where is the fraud in all these? Though the plaintiff pleaded the issue of misrepresentation as particulars of the fraud, he failed to state so in his evidence under oath. It is trite law that pleadings are not evidence and that a party who wishes the court to regard allegations, and claims in his pleadings as part of his evidence need to repeat those claims in his evidence under oath. Indeed, it is a trite practice that the court relies not on pleadings but rather on evidence given under oath to make its decisions. All the same, conceivably the allegation of misrepresentation was not new, nor one of a prejudicial surprise to Defendant, as it was a subject matter of extensive cross- examination. I find it needful to reiterate particulars of the fraud allegation as one of: “[m]isrepresenting to the court that the title documents executed pursuant to a valid land purchase was merely given to the plaintiff’s mother for verification purpose”. The anchor of Defendant’s case, firstly is that, he gave the indenture on the subject matter to Plaintiff’s late mother for verification purposes when the mother expressed interest in buying portions thereof, Secondly, Defendant’s case is that of total denial of ever executing any indenture transferring his interest over the subject matter land to Plaintiff. Unfortunately, Plaintiff’s mother is dead, and there is no affirmation of Defendant’s claim. The law compels the court to view with utmost suspicion this claim of Defendant. Indeed, the law has always been that statements and actions and omissions attributable to a deceased need to be scrutinized strictly and accepted only with great caution. Bisi v Tabiri (aka) Asare [1987-88] 1 GLR 360; 10 | P a g e Page 11 of 15 Moses v Anane [1989-90] 2 GLR 694; Amankwah v Nsiah [1994-95] GLR 758. Juxtaposing the death of Plaintiff’s mother and therefore the non-corroboration of Defendant’s claim that she managed to secure access to the indenture barely for verification purposes is the crucial fact of admission by Defendant to having affirmed execution of the indenture that on its face has since 1978 transferred the title and ownership of the subject matter land to Plaintiff, not Plaintiff’s late mother. Defendant does not seem to recognize the outcome, thus the validity of findings of the arbitration over the subject matter by the Anlo Chiefs. All the same, on the sole ground of his admission before this court of having endorsed and affirmed his signature on the indenture, he is deemed on the face of the indenture to have transferred his interest not only of the land per se but also the indenture that formed the basis of his action at the High Court, differently constituted where he secured judgment in default though Plaintiff was present in court. Besides, there is no evidence on record that Defendant had per a court of competent jurisdiction invalidated the proceedings, findings and outcome of the arbitration before or at the time he commenced the action at the High Court against Plaintiff for the indenture covering the land. The inference in all these is that notwithstanding the presence of Plaintiff in court, the court’s decision was based largely on Defendant’s claim of entitlement to the land documents, particularly on grounds that the documents came into possession of Plaintiff’s late mother by default. Most importantly, by his admission before the arbitration and restatement of the admission before this court, my view is that at the time of the action, Defendant had no legitimate right, interest or any claim to the indenture or documents over the land. I find that Defendant secured the 11 | P a g e court’s order for judgment in default largely due to Defendant’s misrepresentation of facts to the court. Page 12 of 15 Intrinsic in a charge of fraud is dishonesty which per our Rules of Court, indeed as earlier decided in Boyd and Forrest v Glasgow and South Western Railway Co [1915] SC 20 must appear from the particulars. In Adumuah Okwei v Ashieteye Laryea [2011] 1 SCGLR 317 at 324 para. 2, the Supreme Court speaking through Anin Yeboah JSC stated among others that a plaintiff was required in matters such as this to provide the following particulars of the alleged fraud against the defendant:  that the defendant on a given date in the course of testifying in the action made a false statement (representation) of a material fact in the action;  That the defendant in making the statement knew that it was false;  That the defendant intended to induce the court to act upon the false statement;  That the court in its judgment acted upon the said false statement resulting in judgment being entered against the plaintiff to his detriment or prejudice. Besides, in Ansong and Anor v Ghana Airports Company1, the Supreme Court, per Adinyira JSC in the course of the said judgment, observed: The pleadings should show that the court was deceived into giving the impugned judgment by means of [a] false case known to be false, or not Suit Number J4/24/2012 dated 23 Jan. 2013 12 | P a g e believed to be true, or made recklessly without any knowledge of the subject. Page 13 of 15 All the same, whether properly particularized or not, a court of competent jurisdiction must not overlook the existence of fraud that has been established with the requisite proof before the court, as fraud is a deliberate deception or misrepresentation of facts to secure unfair or unlawful gain or to deprive a victim of a legal right. Be it civil or criminal, fraud has one connotation - the intentional misrepresentation of facts, as in this instant case. Indeed, as I find in this suit, Defendant succeeded in securing the court’s order to an undeserved right, gain or benefit to the indenture, which on its face repose no such right or interest in Defendant. Curiously, by his admission to having endorsed and affirmed the execution of the indenture as grantor to Plaintiff, the defendant had no right and interest in the land and the indenture to form the basis of his cause of action to secure the default judgment against Plaintiff. In effect, therefore, Defendant’s cause of action on the suit by which he gained access and custody to the indenture on the land was largely by misrepresentation of facts that were intended, indeed succeeded to gain benefit over something he did not deserve or had no interest in or right whatsoever. This is the crux of the issue in the matter. I find the application of the legendary case of Mcfoy v UAC [1961] 3 All ER 1169 at 1173 apt here. That is, every proceeding that is founded on fraud and illegality is bad; incurably bad, as one ‘cannot put something on nothing” and expect it to stay there; it will collapse. Surely Defendant's action at the High Court and the default judgment - Suit No. E12/28/2021 - he succeeded to gain and all subsequent orders made thereunder collapse on the evidence of his admission to having validly signed and affirmed execution of the indenture in 13 | P a g e favour of Plaintiff that invariably transferred title to the land as well as documents executed thereunder into Plaintiff’s name. Page 14 of 15 As was held in Dzotepe v Hahormene III [1987-88] 2 GLR 681 SC, per Taylor and Abban J. J. SC, a judgment obtained by deceit or misrepresentation should never be permitted to operate stay once the fraud was exposed in a court of competent jurisdiction because a fraudulent judgment was a nullity. A judgment of a court, if established to have been obtained by fraud, if allowed to be operative would defeat the raison d’etre of the judicial service that could amount to a judicial endorsement for parties to continue to peddle their corrupt and fraudulent machinations. Conclusion In conclusion, the judgement that Defendant obtained in default of appearance on 9 February 2021 in Suit No. E12/28/2021 (Exhibit D) is hereby set aside as a nullity including all orders the court made pursuant thereto on grounds that the judgment was secured by fraudulent misrepresentation of facts concerning the indenture covering the subject matter land, which per Defendant’s admission before the Anlo chiefs and in this court, he had no right interest or claim thereto to support his claim to the court’s order for the indenture over the land. To this end, I make an order directing Defendant to immediately return the indenture over the subject matter land back to Plaintiff. Further to this, and in consequence therefore, the conviction of Plaintiff by this court for contempt on 15 June 2021 in Suit No. E12/53/2021 based on proceedings and orders of the court differently constituted on 9 February 2021 is also set aside including all orders that the court made thereunder. 14 | P a g e Ordered accordingly. (Sgd.) George Buadi, J. Justice of the High Court (Court 1) Ho Lawyers: 2 Emile Atsu Agbakpe, Esq. for Plaintiff Gordon Akpadie, Esq. for Defendant Page 15 of 15 15 | P a g e