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J U D G M E N T
ATUGUBA J.S.C.
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.
Before the appeal could be heard
the appellant's said predecessor
died and the appellant was duly
substituted in his stead.
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.
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.
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,
"I concede that the essence of
an action to set aside a
judgment on the ground of fraud
is constituted by the
following:
(a)
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;
(b)
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.
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).
The Plaintiff pleaded in
paragraph 21 the following
particulars of fraud in his
amended statement of claim filed
on November 12,1993:
(a) The Defendant pursuing the
appeal despite his compromise of
the judgment.
(c)
The Defendant's failure to bring
to the notice of the Court of
Appeal the
compromise."
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."
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.
The appellant challenges that
judgment of the Court of Appeal
on the following grounds:
"(a) The judgment is against the
weight of evidence as adjudged
(sic) before the High
Court Sunyani.
(b) It was wrong in law for
their Lordships to hold that
fraud was perpetrated by the
respondent."
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.
The trial judge had no doubt at
all about the facts of the
matter. He said:
"I am satisfied that there is
very credible and overwhelming
evidence that a lot of
people including PWs 1,3 and 4
and Amaadi of Suntreso (a
boundary owner) went to the land
and laid the boundary between
the parites sometime in 1988.
The event was not a
secret but an open exercise.
I find the defendant an
untruthful witness. I find that
those who sent to the land
demarcated the boundary in
the presence of the
Plaintiff and the defendant and
the three grantees, namely
Kwabena Grunshie, Atia Kussasi
and Borbor. The only issue for
determination is what was the
purpose of laying a boundary at
a time when there was a pending
appeal at the Court of Appeal
between the parties. consequent
upon the judgment of the High
Court the plaintiff was in
possession of the land in
dispute. He had ejected Kwabena
Grunshie and Atia Kussasi from
the land. They and Borbor had
worked on the land as a result
of the grants made to them by
the defendant's predecessor,
Alhassan Awuah. They were
desirous of having their
portions of the farms they had
made. I accept the evidence of
Benjamin Osei, (PW5) and find
that initially, it was Kwabena
Grunshie who lodged a complaint
against the Plaintiff, and
evidenced by the summons dated
October 15,1987 (exhibit "1").
It is worthy of note that
subsequent upon the settlement
of the boundary between the
parties, Kwame Boakye,
Plaintiff, in whose portion of
the land the farms of Kwabena
Grunshie and Atia Kussasi got,
released portions of the farms
to them. The Plaintiff demanded,
and was paid C6,000.00 by these
two grantees. The release of the
farms by the plaintiff to them
confirms that there was a
boundary demarcation between the
parties. I am
satisfied that there was a
settlement between the
parties and that each of
them paid C1,OOO.OO to signify
his acceptance of the
boundary between them. I find
further that the parties agreed
not to pursue the appeal which
was then pending in the Court
of Appeal. They thus
compromised the jUdgment of
the High Court"(e.s.)
These clear and unimpeachable
findings of facts were
unanimously concurred in by the
Court of Appeal. The appellant
is thus confronted with the hard
face of concurrent findings of
facts by two lower tribunals
against him.
The appellant has not pointed to
any thing that shows that these
two lower tribunals committed a
blunder or error in the
assessment of the evidence which
has occasioned a miscarriage of
justice. See ARCHORO V. AKANFELA
(1996-97) SCGLR 209. The
appellant resorted to
misconceived peripheral attacks
on the evidence in a bid to
dislodge the one solidly
established central fact,
namely, the reaching of a
compromise by the parties over
the pending appeal. In similar
circumstances in KANKAM VS.
BUACHI III (1964) GLR 138 S.G it
was held, as per holding (1) as
follows: "(1) in as much as
the parties to the 1935
settlement were present while
Miln was inspecting the boundary
in dispute and they certified in
writing that they accepted and
consented to the Miln
demarcation as correct the Miln
demarcation constituted a
final settlement of the
boundary dispute which bound
both parties." "Again in
ZOGLI v. GANYO (1977) 1GLR 297
C.A at 302, Amissah J.A (Jiagge
and Kinsley-Nyinah JJA
concurring), stated with
characteristic clarity of
thought as follows: "I may
have some reservations, on a
reading of the
evidence, as to whether all the
requirements of a
customary arbitration, ...
were present in the instant
case. But that is of no
consequence in this case.
whether the proceedings were an
arbitration or a
negotiated settlement,
everything had been done which
made the award binding on the
parties. As such the
respondent was entitled to
enforce the award and it was no
more open to the appellant to
relitigate the issue!" These
words aptly cover this case. The
first ground of appeal therefore
fails. The second ground of
appeal is also unmeritorious.
The conduct of the appellant in
prosecuting the appeal contrary
to the terms of the settlement
between him and the respondent
is clearly fraudulent. Fraud, as
is well known has many faces. In
this case when the respondent
applied to the Court of Appeal
by Civil Motion No. 165/88,to
set aside the said judgment see
exhibit “B", at page 61 of the
Record of Appeal, the court
unanimously ruled as follows:
"We are of the opinion
that if the appellant's
allegations are true, then the
respondent acted fraudulently in
coming to this Court to pursue
their appeal and also for
failing to bring to the notice
of the court the said
compromise of the
judgment in the applicants'
favour. The Respondent is
however denying the allegation
and we do not feel it will be
appropriate for us to go into
the matters asserted and denied.
We feel that the applicants can
have their proper cause
of action if so
intended. So far as
this Court is concerned the
appeal was listed before us
and properly heard. We
accordingly dismiss the
application with ¢5,OOO.OO costs
to the Respondent." It is
crystal clear, that the Court of
Appeal was saying that in the
absence of any disclosure to the
contrary, they thought they had
duly heard the appeal.
Again, in BARCLAYS BANK (D.C.O)
v. HEWARD-MILLS (1964) GLR 332
at 338, s.c. Apaloo JSC,
delivering the unanimous
judgment of the court, stated
both the facts and the law, with
characteristic ability as
follows:
“The first ground of appeal
contains a miscellany of
complaints. It was submitted
that the judgment of the
court below was erroneous
because the respondent failed to
allege or to prove fraud
practised on the Sekondi High
Court. It was further contended
that inasmuch as the
judgment in the High court
Sekondi was obtained by default
and no evidence was offered, it
was impossible for fraud to have
been practised upon that court.
It was submitted that in any
event, the representation
alleged in paragraph 5 of the
statement of claim was incapable
of constituting fraud on that
court. Counsel for the
appellants referred us to the
case of Flower v. Lloyd
[(1877) 37 T.L.R'<N.SJ 419,C.AJ
As counsel for the appellants
stood firmly on the ground that
the action could not succeed
without the alleged fraud being
practised on the court itself,
he argued what is a
necessary corollary of his main
contention; that the court
further erred inasmuch as it
heard evidence on matters
extraneous to the issue, namely,
whether or not fraud was
practiced on the court.
Accordingly, counsel submitted
that the order setting aside the
judgment was ill-conceived and
ought to be set aside.
We are unable to share that view
of the matter. As we
understood it, the ground
of which the respondent
complained, was that Edward
Ramia acting in collusion with
the manager of the bank,
falsely represented to him that
the sum which the appellants
claimed in the action,
represented sums genuinely
overdrawn by the partnership. He
only learnt the truth
afterwards, that is the
partnership's large indebtedness
arose as a result of a large
debit transfer from Edward Ramia
Ltd. to the partnership account.
The respondent said, if he
had known this to be the truth
he would have defended the
appellants' action at Sekondi.
The learned trial Judge found
this to be the true position. We
are aware of no rule
of law which lays down that
if a man is misled by
this naked form of deceit
from resisting an action against
himself, he cannot subsequently
ask that judgment obtained
against him be set aside, if
he subsequently discovered
the truth. In our opinion,
the case of Flowerv.
Lloyd (supra) is no warrant for
the proposition that a
judgment obtained by fraud
cannot be set aside unless the
fraud was committed of
the court itself. AS we read it,
that judgment merely decided
that where it is discovered that
a judgment was obtained
by fraud, or that new matter has
been discovered which would have
entitled a plaintiff
under the old practice to file
a bill for review, the
proper course for the plaintiff
to adopt, is to commence an
original action in the High
Court impeaching the decree.
That, in our view, is precisely
what the respondent did in this
case. We think that a
judgment can properly be said to
be obtained by fraud even if no
evidence was led and where,
as in this case, the
respondent abstained from
offering resistence because
of the fraud. The view which
we have formed of the
law, is re-inforced by the
decision of the English
Court of Appeal in the
case of Thorne v. Smith
[(1947) 1 ALLER 39, C.A]
In that case, the landlord
of a dwelling house having
represented to the tenant that
he requires the house for his
own occupation, gave the tenant
notice to quit and brought an
action against him in the
country court claiming
possession under the Rent
Restriction Act. The tenant,
who was legally represented,
attended at the court on the day
fixed for hearing but did not
context the landlord’s claim and
an order for possession was made
against him by consent. On the
possession being given, the
landlord did not enter into
occupation, but put the property
into the hands of estate agents
for sale, and it was sold with
vacant possession. The tenant
upon learning this, brought an
action against him claiming
compensation on the ground that
the order for possession was
obtained by misrepresentation.
In resisting the claim, it was
contended for the landlord,
inter alia, that the possession
was not "obtained" by the
misrepresentation, although it
was the misrepresentation by the
landlord which made the tenant
consent to judgment. I
cannot accede to any such
contention. The word 'obtain'
raises the issue of cause and
effect; and the mere
introduction of the tenant's
consensual submission to what he
foresaw would be the inevitable
result In the judge's mind of
the fact (as he thought> that
the landlord bona fide wanted
the house for his own
occupation, does not sever the
casual (sic) nexus between the
landlord's misrepresentation and
the court's order. The order
made was, in my opinion, plainly
caused by the misrepresentation
and it was therefore so
obtained within the meaning
of the section; for there was
no 'new cause intervening'.
A refinement
of the main argument was
suggested in the further
submission that the
misrepresentation could not be
said to have been made to the
Court by any oral or documentary
evidence. That refinement is in
my view meaningless, and is
not the sort of argument which
parliament intended to be
applied in county courts for the
solution of disputes between
landlords and tenants."
We respectfully endorsed this
reasoning.
We think that the
Judgment obtained against
the respondent at Sekondi
was obtained by the
lowest possible form of
deceit, and on the facts
which the learned trial
judge found, he was
entitled to and was
indeed right in setting aside
the judgment." (e.sJ The
naked suppressio veri on
the part of the appellant
relating to the existence of the
compromise of the High Court
judgment and of his right of
appeal, was fraud practised both
on the court and the respondent,
and either ground vitiates the
judgment so obtained. The fact
of the compromise meant that
there was no live issue for the
Court of Appeal to hear and
determine; but the said conduct
of the appellant in going ahead
to prosecute his appeal without
any disclosure meant that it was
all well if the appeal was
heard, on its merits.
The appellant, in developing his
arguments on his grounds of
appeal, strayed into other
matters, such as that the COR
had no jurisdiction to hold an
arbitration, etc, but as these
do not have any weight I need
not deal with them any further.
The appellant's reliance on
GBEDEMAH V. OFORI (1991) 1 GLR
345 C.A. is in breach of the
clearly distinguishable facts of
this case.
For all the foregoing reasons
the appeal is dismissed.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
G. K. ACQUAH
CHIEF JUSTICE
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
S.G. BADDO
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Ivan Quansah for Appellant.
Mr. Kizto Beyuo for Respondent.
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