KWAME BOAKYE vs. ANANE ASARE CIVIL APPEAL NO. 19/2003 14TH JULY, 2004 [2004]DLSC2396

Date	2004-07-14
Suit No.	CIVIL APPEAL NO. 19/2003
Citation No.	[2004]DLSC2396

ACQUAH J.S.C. (PRESIDING)

ATUGUBA J.S.C

SOPHIA AKUFFO J.S.C

ADZOE J.S.C

BADDOO J.S.C.

MR. IVAN QUANSAH FOR APPELLANT.

MR. KIZTO BEYUO FOR RESPONDENT.

[2004]DLSC2396
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													<main id="main" class="content" style="min-height: 60rem" >KWAME BOAKYE<o:p></o:p>vs.<o:p></o:p>ANANE ASARE&nbsp;&nbsp; CIVIL
APPEAL NO. 19/2003 14TH JULY, 2004<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 19/2003<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: 14TH JULY, 2004.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MR. IVAN QUANSAH FOR APPELLANT.<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">

MR.
KIZTO BEYUO FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ACQUAH
J.S.C. (PRESIDING), ATUGUBA J.S.C. , SOPHIA AKUFFO J.S.C. , ADZOE J.S.C. ,
BADDOO J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;ATUGUBA
J.S.C.<o:p></o:p>In
this case the appellant's predecessor had sued the respondent and another in a
District Court over title to some land. He obtained judgment there. However, on
appeal the High Court, Sunyani reversed the said Judgment in favour of the
respondent. Dissatisfied, the appellant's said predecessor appealed to the
Court of Appeal.<o:p></o:p>Before
the appeal could be heard the appellant's said predecessor died and the
appellant was duly substituted in his stead.<o:p></o:p>The
respondent maintains that after the said substitution and before the said
appeal could be heard, he and the appellant had had the subject-matter of the
appeal amicably compromised out of court and had even gone further to agree to
have the said pending appeal with drawn.<o:p></o:p>All
this notwithstanding, the respondent complains, the appellant went ahead and
prosecuted the said appeal, obtaining judgment in his favour, in his
(respondent's) absence.<o:p></o:p>The
respondent therefore sued the appellant in the High court, sunyani, to have the
said judgment set aside on grounds of fraud. Although the High Court upheld the
respondent's case as to the facts, it dismissed his action on legal grounds.
The trial judge, D.K. Okyere, J, in an otherwise lucid judgment, relying on
GBADAGO V. TSILI (1957) 2 WALR II held as follows: "What fraud did the
defendant perpetrate on the Court of Appeal? He only failed to disclose to that
Court that he and the Plaintiff had come to a compromise. Would the Court of
Appeal's decision have been different if they had learnt of that disclosure? In
my opinion it would not. In Gbadago v: Sili (1955) 2 W.A.L.R. 11 Van Lare J (as
he then was) said at p.15,<o:p></o:p>&nbsp;"I concede that the essence of an action
to set aside a judgment on the ground of fraud is constituted by the
following:<o:p></o:p>&nbsp;(a)&nbsp;&nbsp;
that the judgment was in fact delivered or pronounced in this case the
allegation is that the offending portion was not in fact delivered nor
pronounced; <o:p></o:p>&nbsp;(b)&nbsp;&nbsp;
that the judgment sought to be set aside was delivered relying upon
evidence which has been proved to have been obtained by fraud; and that but for
the said fraudulent evidence the judgment would have been otherwise.<o:p></o:p>In
this case there is no suggestion that there was any piece of evidence
fraudulently procured to enable that portion of the judgment complained of to
be obtained." (e.s).<o:p></o:p>The
Plaintiff pleaded in paragraph 21 the following particulars of fraud in his
amended statement of claim filed on November 12,1993:<o:p></o:p>(a)
The Defendant pursuing the appeal despite his compromise of the judgment.<o:p></o:p>(c)
The Defendant's failure to bring to the notice of the Court of Appeal the&nbsp;&nbsp; &nbsp;compromise."<o:p></o:p>I
do not think that these contributed to the appeal being allowed by the Court of
Appeal. The Judgment was therefore not obtained by fraud. The claim is consequently
dismissed with ¢150,OOO.OO costs for the defendant."<o:p></o:p>The
Court of Appeal, on appeal to it by the respondent herein, reversed the trial
judge's said legal conclusion, holding that a judgment can be set aside for
fraud even though the fraud has not been practised on the court itself.<o:p></o:p>The
appellant challenges that judgment of the Court of Appeal on the following
grounds:<o:p></o:p>"(a) The judgment is against the
weight of evidence as adjudged (sic) before the High&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;&nbsp;&nbsp;
Court Sunyani.<o:p></o:p>&nbsp;<o:p></o:p>(b) It was wrong in law for their
Lordships to hold that fraud was perpetrated by the <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;
respondent."<o:p></o:p>The
first ground of appeal has no merit. The evidence was all one way. The
defendant called no witness. The~s were all disinterested persons.<o:p></o:p></span</main>