• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  ACCRA - A.D 2018
  

AHMED MUDDY ADAM - (Plaintiff)

vs.

FRANK NUAMAH - (Defendant)

JUDGMENT

---

 

ADJEI, J.A.

 

For the purposes of this interlocutory appeal the Plaintiff/Respondent will be referred to as Plaintiff and the Defendant/Appellant as Defendant. The Plaintiff instituted the action which has culminated in this appeal at the High Court, Accra claiming for the following reliefs:

 

“i. A declaration that the judgment of this Court dated the 27^th day of March 2015 was procured by fraud, misrepresentation, breach of the rules of natural justice and want of jurisdiction.

 

ii. An order setting aside the judgment of this Court dated 27^th March, 2015 pursuant to (i) above.

 

iii. An order of perpetual injunction restraining the defendant/respondent, his agents, servants, assigns, privies and/or any person(s) howsoever claiming through them from entering upon or interfering with Plaintiff’s right to, ownership of and quiet enjoyment of all that piece or parcel of land situate or lying and being at Roman Ridge measuring 0.51 acre and bounded on the North East by land measuring 250 feet more or less, South East by a proposed road measuring 100 feet more or less, on the South West by a lane measuring 140 feet more or less, North West by land measuring 150 feet more or less”

 

 

 

Upon service of the writ and statement of claim on the Defendant, the Defendant entered conditional appearance, filed statement of defence and subsequently filed an application to strike out the pleadings on several grounds including; failing to disclose a cause of action, being frivolous and vexatious and constituting an abuse of the process of the Court. The Plaintiff opposed the application on inter alia, that he had pleaded fraud and the question of fraud must be gone into, the identity of the land in the previous suit and the present one are not the same and must be determined, and furthermore, the Plaintiff in the earlier suit which the Defendant claims to be the same person as Plaintiff herein is not the Defendant. The trial High Court Judge heard the parties and on 10^th July, 2017 dismissed the application. The reasons assigned by the trial High Court Judge for the dismissal of the Defendant’s application were that the description of the land in dispute is different from the one being relied on by the Defendant in the previous judgment; the identities of the parties in both suit are not the same; and, finally, the Plaintiff pleaded fraud and gave particulars of same and any of the above reasons cannot be resolved without evidence.

 

 

 

The Defendant dissatisfied with the reasons offered by the trial High Court Judge to justify the dismissal of the Defendant’s application on 20^th July, 2017 filed an appeal to this Court. The grounds of appeal contained in the notice of appeal are as follows:

 

“1. The learned High Court Judge, erred in law and in fact when he set down the following issues for determination in the application and proceeded to make findings in respect of the same namely:

 

a. Whether or not the plaintiff was given proper notice and therefore the judgment did not breach the rules of natural justice; and

 

b. Whether or not the land being claimed by the plaintiff in this case is the same as the land claimed by the defendant in suit number L205/2002.

 

2. The trial Judge erred when he failed, neglected or refused to take cognizance (in his ruling) of the fact that two separate courts of coordinate jurisdiction had in suits numbered L205/2002 and CR 785,2016 pronounced on the same issue of absence of notice to Plaintiff/Respondent after Plaintiff/respondent had made submissions on his case.

 

3. The trial Judge based his decision on the identity of the land solely on the submissions of the Plaintiff/Respondent without considering the Defendant/Appellant’s contention that the issue of the identity of the land had already been decided by two courts of coordinate jurisdiction in suits numbered L205/2002 and CR785/2016.

 

4. The ruling was against the weight of the evidence”.

 

 

 

Before resolving the grounds of appeal we would first address the competence of the application filed by the Defendant before the trial High Court, which has culminated to this appeal. The Plaintiff in his written submission stated that the Defendant’s application was grounded on conditional appearance instead of appearance and being a procedural irregularity, it may be raised even on appeal. There are several decisions to the effect that procedural irregularity which may not require the taking of fresh evidence may be raised for the first time on appeal. Some of these judgments are Abinaba v Enyimadu [1953] 12 WACA 171 and National Investments Bank Ltd. and 2 Others v Standard Bank Offshore Trust Company Limited (suing on behalf of certain investor in promissory notes: Spynx Capital Markets PCC Investor & Tricon Trade Management Limited) substituted by Dominion Corporate Trustees Limited [2017] 113 G.M.J 176 SC.

 

 

 

The Supreme Court in the case of Republic v High Court, Accra; ex parte Aryeetey (Ankrah Interested Party [2003-2004] SCGLR 398 unambiguously stated the circumstances under which conditional appearance may be entered. The grounds upon which a defendant may conditional appearance are; to intend to object to the issue or service of the writ or notice of the writ; to object to the jurisdiction of the Court; to apply to set aside the writ or notice of the writ or the service of same. The Plaintiff’s position is that the Defendant entered conditional appearance and premised the application to strike out the pleadings on it and it is a procedural impropriety which cannot be waived as it is not one of the grounds which conditional appearance may be entered. The available information from the record of appeal indicates that the Defendant entered conditional appearance on 14^th June, 2017 at 2.00 pm, filed statement of defence on 14^th June, 2017 at 2.00 pm and filed motion to strike out the pleadings on 14^th June, 2017 at 2.12 pm. We are satisfied that the Defendant filed his statement of defence before filing the application to strike out the pleadings. The filing of statement of defence is an evidence of submission to the jurisdiction of the Court by the Defendant. Where a defendant enters conditional appearance and follows it with statement of defence, the filing of the statement of defence automatically converts the conditional appearance to appearance and will prevent the Defendant from raising any ground which could have been raised on the conditional appearance unless the said ground is jurisdictional and goes to the root of the matter. We hold that the Defendant having taken a fresh step by filing statement of defence lost any right he could have enjoyed under unconditional appearance.

 

 

 

We further hold that any step taken by the defendant after filing his statement of defence cannot be grounded on the conditional appearance which by operation of law became appearance after the filing of statement of defence. The preliminary objection raised under this heading is without merits and same is overruled.

 

 

 

The second preliminary objection raised by the Plaintiff is that the Defendant failed to demonstrate the part of the pleadings to be struck out and thereby renders the application incompetent.

 

 

 

The substance of the Defendant’s application was to strike out the Plaintiff’s statement of claim. It provides thus:

 

“... for an order of this honourable Court that plaintiff’s statement of claim be struck out and the action dismissed for disclosing no reasonable cause of action; for being frivolous and vexatious, and for being an abuse of the process of the Court ...”

 

 

 

The application therefore enjoined this court to examine the entire statement of claim and struck out every paragraph of same for failing to disclose a cause of action. The preliminary objection is without merits and same is dismissed.

 

 

 

The third objection seeks to challenge the competence of Ground I of the appeal to the extent that the Defendant raised an error of law but failed to give particulars of the errors. The ground 1 of the appeal provides thus:

 

“The learned High Court Judge, erred in law and in fact when he set down the following issues for determination in the application and proceeded to make findings in respect of the same namely:

 

a. Whether or not the plaintiff was given proper notice and therefore the judgment did not breach the rules of natural justice; and

 

b. Whether or not the land being claimed by the Plaintiff in this case is the same as the land claimed by the defendant in suit number L205/2002”.

 

 

 

Rule 8 sub rule (4) of the Court of Appeal Rules, C.I. 19 provides that where a party files ground of appeal and alleges misdirection or error in law, that party shall clearly give particulars of the misdirection or error of law. Non -compliance with Rule 8 sub rule (4) of C.I. 19 is fatal as the respondent is required to know the error of law, the court below is alleged to have committed.

 

 

 

We are satisfied that the error in law allegedly made by the trial Court was in respect of the two issues raised and we are of the opinion that the objection is without merits and same is dismissed.

 

 

 

We address ground 1 of the appeal which attacks the ruling of the trial High Court Judge on the premise that he suo motu raised the issue of the identity of the land in dispute vis-à-vis the land in the previous suit and further raised the issue as to whether or not the Plaintiff was denied a hearing in the previous suit.

 

 

 

The trial High Court Judge was invited to strike out the pleadings on the basis that they disclose no reasonable cause of action, they are frivolous and vexatious and also constitutes an abuse of the process of the court and was therefore required to raise the issues involved and resolved same in accordance with law. With respect to the resolution of whether or not the plaintiff’s action discloses no reasonable cause of action, the trial High Court Judge is required to raise the issue concerned and resolved it within the limits of the pleadings.

 

 

 

Order11 Rule 18(1) (a) and (2) High Court (Civil Procedure) Rules C.I. 47 regulates the power of the Court to strike out pleadings at any stage of the proceedings on the ground that it discloses no cause of action or defence. The law is that a court in striking out any pleading or anything in any pleading on the grounds that it discloses no reasonable cause of action is forbidden from taking evidence of whatever form. The Judge is bound to determine that ground purely on the pleadings. We are of the opinion that the trial Judge did not err in law or fact when he raised the issues to determine whether he could strike out any pleading or anything in any grounds upon which the Defendant’s application was premised. We dismiss ground 1 of the appeal as without merits.

 

 

 

We address ground 2 of the appeal which provides that the trial High Court Judge erred in law by not dismissing the suit as constituting the abuse of the process of the Court. The trial High Court Judge raised the issue of the identity of the land in the present suit and the previous suit in which judgment was given in favour of the Defendant and came to the conclusion that there is the need for him to go into the merits of the case to determine whether the two lands are the same.

 

 

 

The High Court in Suit No. L 205/02 entered judgment for the plaintiff with respect to parcel of land situate and lying at Roman Ridge, Accra containing an approximate area of 0.34 acre and bounded on the North by the vendor’s land measuring 150 feet more or less and on the South West by road measuring 85 feet more or less and delineated in exhibit ‘B’.

 

 

 

The 2^nd Defendant in the previous suit, thus the Plaintiff’s grantor lost the suit with two other persons including the Plaintiff. The Plaintiff was not originally a party to the suit but was subsequently joined as 3^rd Defendant. The Defendant executed the judgment. The Plaintiff’s  grantor in his supporting affidavit to the application for joinder filed on 26^th June, 2017 admitted that he is the bonafide owner of a land at Roman Ridge, Accra measuring approximately 0.34. Paragraph 3 and 4 of the said affidavit in support provides thus:

 

“3. That on 4^th April, 2002, the Plaintiff issued a writ of summons against the defendant in respect of the land in dispute situate and lying at Roman Ridge, measuring approximately 0.34 acre”.

 

4. The land in dispute is however my bonafide property which was acquired on 12^th June,1970 from the Osu Stool, in respect of which deeds of Conveyance was duly executed”.

 

 

 

The Plaintiff’s grantor in his application for joinder unambiguously admitted that the land which the Defendant claimed in the previous suit as Plaintiff, was the same land he acquired from Osu Stool on 12^th June 1970. The Plaintiff’s grantor in an affidavit on opposition filed to resist the contempt application brought against him by the Defendant herein deposed that he had alienated his said land to the Plaintiff herein.

 

 

 

We are satisfied that the land on which the Defendant litigated with the Plaintiff’s grantor with respect to the land measuring 0.34 acre was the same land the Plaintiff’s grantor granted to the Plaintiff. The trial Judge erred in law by holding that the identity of the two lands were in dispute as the Plaintiff’s grantor asserted title to the 0.34 acre land and could only pass title to the parcel of land owned by him and not what he did not have.

 

 

 

The second issue was about the identity of the 3^rd defendant in the previous suit. The 3^rd defendant was one Alhaji Adams. The Plaintiff in his pleadings averred that he is known as Ahmed Muddy Adam.

 

 

 

We are satisfied that the issue about the identity of the Plaintiff was raised and resolved by the High Court in the contempt suit intituled: The Republic v Alhaji Adam Ex parte Frank Nuamah.

 

 

 

The High Court in making a finding of fact to the identity of the plaintiff concluded thus:

 

“From the totality of the evidence before this court notwithstanding the claim by the respondent that he assumes another name, the evidence clearly points to him as the one who had been sued as the 3^rd defendant in the Suit No. L 205/2002 as Alhaji Adams which other name he himself has used before”.

 

 

 

We are satisfied that the 3^rd Defendant in the previous suit is the Plaintiff herein as the identity of the plaintiff was found by the High Court differently constituted. The identity of the Plaintiff has been once resolved by a High Court and the issue cannot be revisited in another suit.

 

 

 

The High Court in the contempt case further found as a fact that processes in the previous suit were duly served on the Plaintiff who was the 3^rd defendant therein. There was a Daily Graphic Publication of Saturday, 11^th July, 2015 which confirmed the service of Order of substituted service of the processes meant to be served on the Plaintiff herein. The Plaintiff denied service of the processes filed in the previous suit during the hearing of the contempt proceedings and the High Court Judge made a finding of fact to that effect. The High Court Judge found as follows:

 

“It is the said proof that culminated in the judgment of this court which the respondent as 3^rd defendant in the suit had been served by substituted service together with the two (2) defendants. See Daily Graphic publication of Saturday July 11, 2015. Per the processes file in this Court in the respondent cannot deny in denial of having knowledge of the suit leading to the execution”.

 

 

 

The High Court made a definite pronouncement about the service of the processes on the Plaintiff herein through Daily Graphic Publication and he is estopped by it.

 

 

 

All the particulars of misrepresentation and fraud contained in paragraphs 20, 22 and 25 of the statement of claim had been resolved by the High Court in the contempt proceedings and cannot be a subject matter of fresh action as in the case which has culminated in the instant appeal. The particulars of fraud and misrepresentation provided by the Plaintiff constitute an abuse of the process of the court as those matters had been raised and determined in the subsequent contempt proceedings which was a quasi-criminal matter and the standard burden of proof was proof beyond reasonable doubt.

 

 

 

Section 13 of the Evidence Act, NRCD 323 requires evidence in contempt case to be proved beyond reasonable doubt when the burden of persuasion as to the commission of the contemptuous act is on the applicant. We therefore strike out the allegations of misrepresentations and fraud contained in paragraphs 20, 22 and 25 of the Plaintiff’s statement of claim as constituting an abuse of the process of the Court. There are sufficient evidence on record to prove that the Plaintiff was given a hearing in the previous suit and was duly served by substituted service through the Daily Graphic publication of 11^th July, 2015. We further strike out paragraphs 26, 27 and 28 of the Plaintiff’s statement of claim as constituting an abuse of the process of the Court.

 

 

 

The law is settled that a court in the exercise of its inherent jurisdiction may strike out the whole or part of the endorsement on the writ or part of the statement of claim or the whole where it is satisfied that the action constitutes an abuse of its process or abuse of its procedure.

 

 

 

In the case of Lawrence v Lord Norreys [1890] 15 APP cases 210, the House of Lords speaking through Lord Herchell held that a Court of law shall prevent the abuse of its process by invoking the inherent powers vested in it to dismiss such an action.

 

 

 

The case of Wenlock v Moloney and others [1965] 2 ALL ER 871, it was held that the Court in preventing litigants from abusing its process or its procedure by frivolous or vexatious proceedings or procedure shown to abuse its process may dismiss the entire endorsement and the statement of claim.

 

 

 

We are of the opinion that the endorsement on the plaintiff’s writ of summons and the entire statement of claim are frivolous, vexatious and shown to abuse the procedure of the Court and we hereby strike out the entire endorsement and the statement of claim. The appeal succeeds on ground 2 of the appeal and will not serve any useful purpose to determine grounds 3 and 4 of the appeal.

 

 

 

The appeal succeeds and the ruling of the trial High court delivered on 10^th July, 2017 is hereby set aside. The application filed by the Defendant in the trial High Court on 14^th June, 2017 is hereby reheard and granted as prayed.

 

 

 

The Plaintiff’s action is hereby dismissed under Order 11 rule 18(1) ( c) and (d) of the High Court Civil Procedure Rules, C.I. 47.

 

 

 

(SGD.)

 

DENNIS ADJEI

 

JUSTICE OF APPEAL

 

 

 

(SGD.)

 

AYEBI, J.A     I agree                                                E.K. AYEBI

 

(JUSTICE OF APPEAL)

 

 

 

(SGD.)

 

SUURBAAREH, J.A I also agree                      S.G. SUURBAAREH

 

(JUSTICE OF APPEAL)