Banking - Loan and overdraft
facilities - Recovery of
- Interest on the sums -
Fresh action –
setting aside judgment - Whether
or not judgment was
fraudulently and maliciously
procured - Whether or not
the judgment is against the
weight of evidence on record -
whether the writ placed before
second High Court judge was
competent and whether the High
Court had the jurisdiction to
entertain same - Whether or not
dissatisfied party on the first
court’s decision on the issues
before him could only have
redress on appeal.
HEADNOTES
The Appellant herein
had been the customer of the
respondent bank for a number of
years and had been a beneficiary
of loan and overdraft facilities
from the respondent bank since
2006. The appellant at a point
in time defaulted in the
repayment of the loan
facilities. The High Cour gave
judgment in favour of the
respondent for the recovery of
the sums claimed The appellant
did not appeal against this
judgment but instituted a fresh
action in the Commercial
Division of the High Court,
Kumasi before another judge. The
High Court reversed the earlier
judgment of the same High Court
differently constituted, on
ground of fraud. The respondent
dissatisfied with the judgment
appealed to the Court of appeal,
Kumasi. The Court of Appeal
allowed the appeal, set aside
the judgment and affirmed
thefrist judgment of the High
Court
HELD
These finding in our
opinion are well supported by
the evidence on record, they are
therefore sound and need not be
disturbed. The trial court upon
discovering from the pleadings
that the issues before him had
already been determined by a
court of co-ordinate
jurisdiction, and that the
allegation of fraud was not
particularized, he should have
exercised the powers given him
by Order 11 Rule 18 (1) to
strike out the action. Aside the
allegation of fraud by the
appellant was not based on any
new facts that were not
available to him at the trial of
suit N0 BFS 29/2012. The
institution of a fresh suit is a
clear abuse of the court process
and that calls for the dismissal
of the suit as vexatious and an
abuse of process. The appeal we
find has no merit and must fail.
The appeal is dismissed
accordingly.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure Rules) 2004, C. I. 47
CASES REFERRED TO IN JUDGMENT
Djin v Musa Baako [2007-2008] 1
SCGLR 686
DZOTEPE v. HAHORMENE III
[1987-88] 2 GLR 681-712
BRUTUW v. AFERIBA [1984-86] 1
GLR 25-41
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE (MRS), JSC: -
COUNSEL
STEPHEN ALEWABA FOR
THE
PLAINTIFF/RESPONDENT/APPELLANT.
DR. POKU ADUSEI FOR
THE DEFENDANT /APPELLANT/
RESPONDENT.
DORDZIE (MRS), JSC:-
FACTS:
The Appellant herein had been
the customer of the respondent
bank for a number of years and
had been a beneficiary of loan
and overdraft facilities from
the respondent bank since 2006.
The appellant at a point in time
defaulted in the repayment of
the loan facilities. On
4/11/2011 the respondent
commenced an action against him
for the recovery of:
(a) The sum of Gh¢ 336,186.55
being the outstanding balance as
at 30/9/11 on a term loan the
appellant obtained from the
bank.
(b) The sum of GHc 316,325.65
being the outstanding balance as
at 30/9/11 on an overdraft
facility granted the appellant
by the respondent. The
respondent further prayed for
interest on the sums claimed at
the prevailing bank rate from
30/9/11 till date of judgment.
This suit was commenced at the
Commercial Division of the High
Court, Kumasi and it is numbered
BFS 29/2012.
The High Court presided over by
Mensa-Homiah J, gave judgment in
favour of the respondent for the
recovery of the sums claimed.
The said judgment is dated 20th
June 2012. The appellant did
not appeal against this judgment
but instituted a fresh action in
the Commercial Division of the
High Court, Kumasi, this time
presided over by Emmanuel
Ankamah J. The said suit is
numbered RPC 84/2014.
The appellant prayed for the
following reliefs in suit N0 RPC
84/2014:
a)
A Declaration that the judgment
obtained by the defendant in
suit No.BFS 29/2012 dated the 20th
day of June, 2012 titled:
STANBIC BANK GHANA LIMTED v OSEI
YAW ANNING Trading under the
name and style THE NEW CHAMPOIN
ENTERPRISE was fraudulently and
maliciously procured
particularly as the plaintiff
herein never obtained any
overdraft facility of GHc
250,000.00 on 21st
August, 2009 and a loan of
150,000.00 on the same 21st
August, 2009 as was contended by
the defendant during the trial
in suit No. BFS 29/2012.
b)
An order setting aside the said
judgment obtained by the
defendant and ALL consequential
and incidental orders made
thereon by the trial High Court
judge in suit N0.BFS 29/2012.
c)
An interim order restraining the
defendant from in anyway
whatsoever enforcing and or
purporting to execute the final
judgment delivered in suit No.
BFS 29/2012 until the final
determination of this suit and
or otherwise expressly ordered
by this court.
d)
A declaration that any document
executed by the parties herein
to the effect that in August
2009 GH¢250,000.00 overdraft
facility and GH¢150,000.00 loan
facility totaling GH¢400,000.00
attracting 32.70% and 27%
respectively were granted by the
defendant to the plaintiff was
fraudulently executed as no such
event ever occurred.
e)
A declaration that the defendant
had on the 20th day
of June, 2012 fraudulently taken
judgment for an amount of money
more than it was entitled to in
law in suit N0. BFS 29/2012.
The High Court presided over by
Ankamah J entertained this suit
and reversed the earlier
judgment of the same High Court
differently constituted, dated
20th June 2012 on
ground of fraud.
The respondent dissatisfied with
the judgment of E. Ankamah J
appealed to the Court of appeal,
Kumasi. The Court of Appeal
allowed the appeal, set aside
the judgment of Ankamah J and
affirmed the 20/6/12 judgment of
Mensa-Homiah J.
The appellant dissatisfied with
the Court of Appeal decision is
in this court praying that the
Court of Appeal decision be
reversed and Ankamah J’s
judgment of the High Court be
restored.
The sole ground of appeal
canvassed by the appellant is
the omnibus ground that the
judgment is against the weight
of evidence on record.
It is trite learning that an
appellant who relies on this
ground of appeal has the duty to
demonstrate to the appellate
court that there are lapses in
the judgment appealed against,
correction of those lapses would
tilt the scale of justice in his
favour. See Djin v Musa
Baako [2007-2008] 1 SCGLR 686.
A lengthy statement of case was
filed on behalf of the appellant
but counsel for the appellant
failed to address the lapses the
appellant is complaining of in
the judgment the subject matter
of this appeal.
A preliminary issue which in our
view ought to be addressed
promptly is whether the writ
placed before Ankamah J was
competent and whether the High
Court had the jurisdiction to
entertain same. In the Ankamah J
judgment, the judge made
findings that the subject matter
of the suit before him was res
judicata because the issues
before him were determined in
Suit N0.BFS 29/2012 by
Mensa–Homiah J. He further
commented that a dissatisfied
party on the first court’s
decision on the issues before
him could only have redress on
appeal.
He however decided to entertain
the fresh writ which reopens the
matter because he alleged the 20th
June 2012 judgment was obtained
by fraud. How the trial judge
came to this conclusion is
illogical because it is part of
his findings that the allegation
of fraud by the appellant was
never particularized in the
pleadings before him. Fraud is a
criminal offence therefore the
law requires it is
particularized by the pleadings
and strictly proved. Order 11
Rule 8 (1) of the High Court
(Civil Procedure Rules) 2004, C.
I. 47 numerates fraud as one of
the matters to be specifically
pleaded mandatorily.
The trial judge having made a
finding that Fraud was not
particularized in the pleadings
before him, it follows that he
has no reason to retry issues
which had already been
determined by a court of
co-ordinate jurisdiction.
Circumstances that legally
permit a court of coordinate
jurisdiction to entertain a
fresh action on an issue which
would have been res judicata
have been well established by
case law. This court in
DZOTEPE v. HAHORMENE III
[1987-88] 2 GLR 681-712
considered the
issue and held
as follows: “the settled
practice of the court was that
the proper method of impeaching
a completed judgment on the
ground of fraud was by action in
which the particulars of the
fraud must be exactly given and
the allegation established by
strict proof”
In BRUTUW v. AFERIBA
[1984-86] 1 GLR 25-41 The Court
of Appeal also emphasized this
position of the law and held:
“But
in order to overturn a judgment
of a court of competent
jurisdiction on the grounds of
fraud, the facts alleged to
constitute the fraud must be
proved to amount to fraud and
constitute it. The judgments
assailed would be automatically
and effectively affirmed on
failure to discharge that burden
of proof.
From the judgment of
the Court of Appeal which is the
subject matter of appeal before
us, the court below carefully
reviewed the evidence adduced at
the trial and found that the
facts alleged to constitute
fraud had not been proved to
amount to fraud. The findings of
the Court of Appeal specifically
are as follows:
a) The particulars of fraud
alleged in the suit before
Ankamah J do not constitute
facts that support the alleged
fraud and do not give any ground
to reopen the case already
decided by Mensah - Homiah J.
b) The court further
found that the pleadings do not
disclose any cause of action and
therefore the action should have
been struck out.
c) It is a further
finding of the Court of Appeal
that the appellant failed to
lead any credible evidence that
the Mensah - Homiah J judgment
was procured by fraud. The trial
judge erred by relying on
transactions relating to 2
cheques which were only
questioned by counsel for the
appellant through cross
examination as evidence of
fraud.
These finding in our
opinion are well supported by
the evidence on record, they are
therefore sound and need not be
disturbed.
The trial court upon
discovering from the pleadings
that the issues before him had
already been determined by a
court of co-ordinate
jurisdiction, and that the
allegation of fraud was not
particularized, he should have
exercised the powers given him
by Order 11 Rule 18 (1) to
strike out the action.
Aside the allegation
of fraud by the appellant was
not based on any new facts that
were not available to him at the
trial of suit N0 BFS 29/2012.
The institution of a fresh suit
is a clear abuse of the court
process and that calls for the
dismissal of the suit as
vexatious and an abuse of
process.
The appeal we find
has no merit and must fail. The
appeal is dismissed accordingly.
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the
conclusion and reasoning of my
sister Dordzie, JSC.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the
conclusion and reasoning of my
sister Dordzie, JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the
conclusion and reasoning of my
sister Dordzie, JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER, JSC:-
I agree with the
conclusion and reasoning of my
sister Dordzie, JSC.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
STEPHEN ALEWABA FOR
THE PTLAINTIFF/RESPONDENT/APPELLANT.
DR. POKU ADUSEI FOR
THE DEFENDANT /APPELLANT/
RESPONDEN.
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