DZOTEPE vs. HAHORMENE III

The plaintiffs, representing the Tovie tribe of Tegbi, sought to set aside a 1953 judgment of the Anloga Native Court B which declared title to disputed land in favor of Moses Kwesi Agbemabiese, predecessor of the defendant. The plaintiffs alleged the 1953 judgment was obtained by fraud, specifically that a plan of the land tendered in evidence was a fraudulent alteration of the original 1906 Flothmire plan, misrepresenting tribal land as personal property of Moses Agbemabiese. The defendant relied on the 1953 judgment as estoppel. The dispute involved multiple proceedings over decades, including a 1971 Circuit Court suit and a 1978 Court of Appeal decision affirming the 1953 judgment as estoppel. The plaintiffs initiated fresh proceedings in 1978 to challenge the 1953 judgment on grounds of fraud.

JUDGMENT OF AMPIAH J.A. Ampiah J.A. delivered the first judgment at the invitation of Taylor J.S.C. This is an appeal from the decision of the Court of Appeal affirming the decision of the High Court. The plaintiffs had brought an action in the High Court, Ho on 14 June 1978 against the defendant seeking an order to set aside a judgment of the Anloga Native Court B dated 14 May 1953 on grounds of fraud. The learned trial judge had found there was fraud and so had on 27 July 1984 given judgment for the plaintiff and set aside the judgment of the Anloga Native Court B. Aggrieved by that decision, the defendant had appealed to the Court of Appeal. On 14 November 1985 the Court of Appeal had unanimously dismissed the appeal and affirmed the decision of the trial court. The defendant has appealed to this court against that judgment. Arguing the appeal, counsel for the defendant submitted that as far as the issue of title to the land was concerned, the matter was res judicatam and...