DZOTEPE vs. HAHORMENE III [1988]DLSC735

Date	1988-05-18
Suit No.
Citation No.	[1988]DLSC735

TAYLOR JSC

FRANCOIS JSC

ABBAN JSC

AMUA-SEKYI J.S.C.

AMPIAH J.A.

NANA AKUFO-ADDO (WITH HIM AFARI-YEBOAH) FOR THE DEFENDANT-APPELLANT.

SENEYA FOR THE PLAINTIFF-RESPONDENTS.

[1988]DLSC735
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													<main id="main" class="content" style="min-height: 60rem" >DZOTEPE <o:p></o:p>vs. <o:p></o:p>HAHORMENE III <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 2 GLR 681<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
18 MAY 1988<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NANA AKUFO-ADDO (WITH HIM AFARI-YEBOAH) FOR THE
DEFENDANT-APPELLANT. <o:p></o:p>

SENEYA FOR THE PLAINTIFF-RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

TAYLOR, FRANCOIS, ABBAN, AMUA-SEKYI J.J.S.C.
AND AMPIAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 that the
plaintiffs were estopped from re-litigating that issue. Secondly, counsel
submitted that for the court to set aside a judgment on the ground of fraud,
the fraud must relate to matters which prima facie would be a reason for
setting the judgment aside if they were established by proof and not matters
which were merely collateral.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In the
Duchess of Kingston’s Case (1776) 20 St Tr 355 at 357, the principle was laid
down thus, “Fraud is an extrinsic collateral act which vitiates the most solemn
proceedings of Courts of Justice.” And as Lord Longdale stated in Perry v
Meddowcroft (1846) 50 ER 529 at 534:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“... if a
sentence, decree or judgment of any Court can be shewn to have been obtained by
fraud or collusion, it is not to be used in any court as evidence against the
right of the party who might be precluded by a sentence properly obtained ... A
sentence may be refused the respect which would otherwise be due to it, if it
can be shewn, as it may, be shewn, that the sentence was obtained by fraud and
collusion.”<o:p></o:p><o:p>&nbsp;</o:p>The
settled practice of the court is that the proper method of impeaching a
completed judgment on the ground of fraud is by action in which the particulars
of fraud must be exactly given and the allegation established by strict proof.<o:p></o:p><o:p>&nbsp;</o:p>In 1953
one Moses Kwesi Agbemabiese for himself and on behalf of the George Agbemabiese
family of Tegbi took action at the Anloga Native Court B undeniably against
some members of the plaintiffs’ family for, among other things, a declaration
of title to a piece or parcel of land situate lying and being at Tegbi,
commonly known and called Tovie tribal land. On 14 May 1953, the court gave
judgment for Moses Kwesi Agbemabiese decreeing title in the land in him. In
1971 Moses Kwesi Agbemabiese again on behalf of the George Agbemabiese family
took action against almost the same defendants, the plaintiffs herein, at the
Circuit Court, Ho for a declaration of title to the same land. In this latter
action he raised the issue of estoppel per rem judicatam against the defendants
therein. Whereupon the said defendants counterclaimed for an order setting
aside the 1953 judgment on the ground of fraud. His Honour Mr E. T. A. Torto on
28 May 1976 dismissed the plaintiff’s claim and set aside the judgment of 1953
upholding the fraud alleged by the defendants therein. The plaintiff in that
case appealed to the Court of Appeal which, on 11 May 1978, allowed the appeal
and entered judgment for the plaintiff, upholding the issue of estoppel raised
against the defendants. The defendants (the plaintiffs herein) did not appeal
that judgment but decided almost immediately to take the present action. On 16
June 1978 the plaintiffs herein for themselves and on behalf of the Torvie
tribe of Tegbi filed a writ of summons at the High Court, Ho against the
defendant herein (successor to the late Moses Kwashie Agbemabiese) for an order
setting aside the judgment of 1953 by t</main>