AKIM AKROSO STOOL AND OTHERS vs. AKIM MANSO STOOL AND OTHERS [1989]DLCA517

Date	1989-01-26
Suit No.
Citation No.	[1989]DLCA517

OSEI-HWERE J.A

AMPIAH J.A

LAMPTEY J.A.

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANTS.

SHORT FOR THE RESPONDENTS.

[1989]DLCA517
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													<main id="main" class="content" style="min-height: 60rem" >AKIM AKROSO STOOL AND OTHERS <o:p></o:p>vs. <o:p></o:p>AKIM MANSO STOOL AND OTHERS <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90]1 GLR 100<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:
26 JANUARY
1989<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">

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANTS.<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">

OSEI-HWERE, AMPIAH AND LAMPTEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH JA.<o:p></o:p>This
appeal by the plaintiffs is from the decision of Twumasi J. in the High Court,
Koforidua given on 24 June 1985. The plaintiffs in that action claimed for a
declaration of title to a piece of land called Afotem or Essienkyeimu near Akim
Manso and Akim Akroso. They also claimed for an order to deliver for
cancellation a conveyance dated 6 April 1948 and registered as D.R. No. 763 48
between Nana Kweku Bamfo II of Akim Manso and others and Messrs Kweku Mensah
and others on grounds of fraud and for recovery of possession of the land
described in the said conveyance and an order of perpetual injunction against
the defendants.<o:p></o:p><o:p>&nbsp;</o:p>Though
the plaintiffs conceded to the estoppel raised against them by reason of the
various judgments pleaded, they contended that since the conveyance upon which
the judgments had been obtained was fraudulent, the judgments themselves were
vitiated by the fraud and should not be made to stand.<o:p></o:p>In the
pleadings the following main issues arose for determination by the court:<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">(1) Whether or not the two stools
were joint owner of the land in dispute.<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">(2) Whether the plaintiffs were
estopped by the various judgments pleaded and by their conduct from relitigating
over the same land.<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">(3) Whether the conveyance dated
6 April 1948 was vitiated by fraud.<o:p></o:p>The
question of estoppel was set down for preliminary legal arguments. Counsel for
the plaintiffs conceded that the judgments pleaded created an estoppel on the
second plaintiffs but submitted that since those judgments were vitiated by the
fraud contained in the conveyance dated 6 April 1948 the plaintiffs could not
be bound by those judgments. The learned trial judge after meticulously
evaluating the evidence in those previous proceedings found that not only the
second plaintiffs but also the first plaintiffs, i.e. the stool of Akim Akroso,
was bound by those judgments. The first plaintiffs, even though not parties to
these proceedings, had all the time been aware of the litigations in which the
second plaintiffs had referred to them as their grantor. The Akim Akroso stool
had not joined in those litigations but had rather asked its gyasehene to
testify for its grantees, the second plaintiffs. I agree wholly with the
learned trial judge that under these circumstances the first plaintiffs were
also inextricably bound by the judgments pleaded.<o:p></o:p><o:p>&nbsp;</o:p>Against
this estoppel, the plaintiffs had pleaded fraud. Fraud is said to be an
extrinsic collateral act which vitiates the most solemn proceedings of courts
of justice: see Kingston’s (Duchess) Case (1776) 168 E.R. 175. Thus, however
solid a judgment may be to create an estoppel, once fraud is alleged and proved
against that judgment that judgment cannot stand. But as was stated in Jonesco
v. Beard [1930] A.C. 298 at 300, H.L. per Lord Buckmaster:<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">“It has
long been settled practice of the Court that the proper method of impeaching a
completed judgment on the ground of fraud is by action in which, as in an other
action based on fraud, the particulars of the fraud must be exactly given and
the allegation established by the strict proof such a charge requires.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs had not specifica</main>