THE TRUST BANK LIMITED vs. G.K. APPIAH & SONS LIMITED, GODFRED APPIAH AND GEORGE K. APPIAH [2011]DLSC2627

THE TRUST BANK LIMITED vs. G.K. APPIAH & SONS LIMITED, GODFRED APPIAH AND GEORGE... [2011]DLSC2627

Date	2011-04-20
Suit No.	CIVIL APPEAL NO. J4/51/2010
Citation No.	[2011]DLSC2627

WOOD (MRS) CJ (PRESIDING)

DOTSE JSC

YEBOAH JSC

GBADEGBE JSC

AKOTO-BAMFO JSC

KOFI PEASAH BOADU FOR THE PLAINTIFF/APPELLANT/APPELLANT

KWASI AFRIFA WITH HIM KWABENA POKU MENSAH FOR THE DEFENDANTS/ RESPONDENTS/RESPONDENTS.

[2011]DLSC2627
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													<main id="main" class="content" style="min-height: 60rem" >THE TRUST BANK LIMITED<o:p></o:p>vs.<o:p></o:p>G.K. APPIAH &amp; SONS
LIMITED, GODFRED APPIAH AND GEORGE K. APPIAH<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/51/2010 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 20TH APRIL, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KOFI PEASAH BOADU FOR THE
PLAINTIFF/APPELLANT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWASI
AFRIFA WITH HIM KWABENA POKU MENSAH FOR THE DEFENDANTS/
RESPONDENTS/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;
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WOOD
(MRS) CJ, (PRESIDING) DOTSE, JSC YEBOAH, JSC GBADEGBE, JSC AND AKOTO-BAMFO, JSC<o:p></o:p>

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

</div>WOOD (MRS.) C.J<o:p></o:p>On
the 10th July, 2008, the Court of Appeal unanimously affirmed,
subject to a slight variation, the decision of the trial High Court dated the
26th January, 2007. The plaintiff/ appellant /appellant, has
approached this court, yet again questioning the decision of the appellate
court, on two grounds, namely that:<o:p></o:p>“The
judgment is against the weight of evidence.<o:p></o:p>The
learned Justices of the Court of Appeal erred in law when they held that
Plaintiff/Appellant is stopped per rem judicatam from initiating this suit.”<o:p></o:p>It
would be useful to briefly set out the facts leading to this appeal. The appellants
have sued the defendants/respondents respondents and one Kofi Appiah, (as 3rd
defendants), in the High Court, Commercial Division, to recover the sum of ¢544,870,775.63
(old cedis) being balance due and owing on account of banking facilities
extended to 1st Defendant Company by plaintiff Bank on 19th
August 2002 and interest on the sum at 43 % per annum.<o:p></o:p>What
appears on the face of the accompanying statement of claim as a simple banking transaction
was challenged on two principal grounds. As averred in the statement of
defence, first on the grounds of fraud, with particulars being set out as was
required under the rules of court. Second and described as a “monumental abuse
of the processes of court”, on the grounds of res judicata, in that, “in
respect of the same transaction culminating in the instant suit the plaintiff
has already issued a writ in the suit entitled.”<o:p></o:p>The
trial judge, after reviewing the evidence on both sides of the legal divide
dismissed the appellant’s suit in its entirety on the main ground of estoppel
per rem judicatam.<o:p></o:p>On
appeal, their Lordships substantially affirmed the decision of the trial court,
only varying it slightly and the reasons in support thereof, in respect of the
said Kofi Appiah, the third defendant in the original action. The appellate
court ruled that, on the facts, the plea of estoppel per rem judicata did not
avail him. The court thus ordered that the action against him be disposed of on
the merits. &nbsp;<o:p></o:p>This
being the correct state of affairs, the appeal cannot possibly be directed at
the entire decision of the court, dated the 10th of July, 2008, as
appears in the notice of appeal, but only that part of the decision dismissing
the suit as against the three appellants in these proceedings before us. In
other words, our intervention should be limited to the orders against the three
respondents only. <o:p></o:p>Both
the trial and appellate courts rightly reckoned that on the face of the
evidence led at the trial,(interestingly not on the face of the pleadings, but
the evidence), a crucial issue for determination was whether or not the
appellants are caught by the plea of res judicata. These were predicated on the
basic fact that as alleged by the respondents, a court of competent
jurisdiction had in an earlier suit numbered AB1/2003, in respect of the same
parties and based on the same facts, determined all the relevant issues
connected thereto, in favour of the appellants, and with final judgment
culminating in their favour. <o:p></o:p>Should
we in court reverse this decision on the grounds that it is erroneous as not
being supported by the evidence? &nbsp;The
appellant’s counsel has urged us to arguing that the plea was not sustainable
on the law and evidence presented to the trial court. They had argued that
there was no subsisting decision in respect of the earlier case numbered AB1/2003
which could successfully support the res judicata plea. They contend that they
had successfully sought and been granted leave to discontinue the action, with
liberty to institute a fresh action. T</main>