TORKORNOO (MRS), J.A.

The Plaintiff Respondent herein has been a debtor of the Defendant Appellant bank since 2006. The Appellant bank sued him in suit number BFS 29/2012 for inter Alia, recovery of the sum of GH¢316,325.65 as outstanding balance on an overdraft facility of GH¢250,000 granted to him in 2009; and GH¢336,186.55 as balance on a loan facility of GH¢150,000 also granted to him in 2009. Judgment was entered against him on 20^th June 2012 after a trial by Justice Mensah- Homiah. The judgment in that suit can be found from pages 60 to 75 of the Record of Appeal (ROA).

On 16^th December 2013, the Respondent commenced an action with suit number RPC/84/2014 to attack the judgment in suit number BFS/29/12. His contention was that the judgment was obtained by fraud and therefore ought to be set aside. His claims were for:

A declaration that the judgment obtained and or delivered in favor of the Defendant herein in suit titled Stanbic Bank Ghana Limited vrs Osei Yaw Anning was fraudulently and maliciously procured particularly as the Plaintiff herein never obtained any overdraft facility of GH¢250,000.00 on 21^st August, 2009 and a loan of GH¢150,000.00 on the same 21^st August, 2009 as was contended by the Defendant herein during the trial in suit No. BFS 29/2012.

An order setting aside the fraudulent judgment obtained by the Defendant herein at the High Court (Commercial Division), Kumasi in suit No. BFS29/2012 dated the 20^th day of June, 2013 aforesaid and ALL consequential and incidental orders made thereon by the trial High Court in the said suit No. BFS 29/2009.

An interim order restraining the Defendant herein from in anyway whatsoever enforcing and or purporting to execute/enforce the final judgment delivered in suit No. BFS 29/2009 until the final contended by the Defendant herein during the trial in suit No. BFS 29/2009.

A declaration that any document purportedly executed by the parties herein to the effect that in August, 2009 GH¢250,000.00 overdraft facility and GH¢150,000 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

A declaration that the Defendant had on the 20^th day of June, 2013 fraudulently taken judgment for an amount of money more that it was entitled to in law in suit No. BFS 29/2012

The Appellant filed a defence denying the claims. After a trial, the judge held that the judgment in BFS/29/12 was obtained by fraud. On the strength of this finding, he set aside the judgment in BFS/29/12. It is this judgment that has been appealed against. The grounds of appeal are:

i. The learned judge erred in setting aside the judgment of Her Ladyship Angelina Mensah-Homiah (Mrs.) J. dated 20^th June, 2012 on grounds of fraud when in fact the Plaintiff failed to lead any credible evidence that the said judgment in suit No. BFS 29/2012 was procured by fraud.

ii. The learned judge erred in setting aside the judgment of Her Ladyship Angelina Mensah-Homiah (Mrs.) J. dated 20^th June, 2012 in suit No. BDS 29/2012 in spite of the overwhelming evidence and admission by the Plaintiff that he owed the Defendant bank.

iii. The learned judge, by holding that the issues concerning the overdraft and loan facilities granted to the Plaintiff by the Defendant have been properly determined in earlier suit No. BFS 29/2012, erred in allowing a retrial of the same issues in the High Court – a court of coordinate jurisdiction – when in fact all material/available evidence formed part of earlier suit No. BFS 29/2012.

iv. The learned judge erred by relying on two cheque-transactions The learned judge erred by relying on two cheque-transactions (with face value of GH¢59,500.00 and GH¢31,715.00), which was introduced by the Plaintiff only through cross examination, as evidence of fraud on the Plaintiff, when in fact the same evidence had unsuccessfully been presented in suit No. BFS 29/2012.

v. The learned judge, by holding that the Plaintiff failed to raise in his particulars of fraud any dispute over bank cheques, erred in holding that fraud has been perpetuated on the Plaintiff by the Defendant in respect of the two bank cheques.

vi. The learned judge erred by accepting the story of the Plaintiff of a loss of GH¢230,415.00 (which figure is not supported by any record of proceedings) when in fact the Plaintiff had, through his Counsel, merely disputed two cheques with face values of GH¢59,500.00 and GH¢31,715.00.

vii. The judgment is against the weight of the overwhelming evidence adduced at the trial.

Appellant counsel argued the grounds of appeal in several pages of submissions. His first point was that suit no RPC 84/2014 was only commenced in a bid to frustrate the ends of justice after the judgment in BFS 29/2012. He claimed that all the assertions of fraud turned out to be baseless and unsubstantiated and that the trial judge’s finding of fraud constituted a judicial volte-face, even in the face of overwhelming evidence. He pointed to Respondent’s testimony on oath in BFS 29/2012 found on page 986 of the ROA, in which he admitted owing Appellant and negotiating to pay GH¢452,000 in settlement of the debt in 2010. Again, on Exhibit 3 in that suit dated 24th December 2010 found on page 992, the Respondent herein had written a letter proposing to pay GH¢452,000 in full settlement of his debt.

It was his submission that the trial judge’s finding that since Respondent had denied issuing two cheques which showed on his bank statement, the Appellant should have produced them and by not producing them, the bank had defrauded the Respondent was wrong. This is because the same bank statements were at all material times available to the Plaintiff/ Respondent during the trial of BFS 29/2012 and the subsequent RPC 84/2014 and any claims premised on its contents should have been raised in those cases.

He pointed out that these cheques did not form part of the Respondent’s case in the two cases neither did he allege any fraud in relation to them. It was Appellant counsel’s submission that the claims of fraud were not supported by any credible evidence, while the evidence on the adjudged debt was overwhelming, and so the trial judge’s finding of fraud was against the weight of evidence.

To establish fraud, he submitted inter alia that there must be false representation made either knowingly, or without belief in its truth or recklessly. These are the trajectories in the locus classicus on the definition of fraud – Derry v Peek 1889 14 App Cas 337 HL and emphasized in the Ghanaian case of Dzotepe v Hahormene 11 & Ors 1984-86 1 GLR 289; and 1987-88 2 GLR 681.

He submitted that in RPC 84/2014, Respondent had not presented evidence of any false representation or deceit by Appellant but had sought to deny that he took the loan and overdraft facilities. He then changed his story during the trial to dispute the quantum of indebtedness and based on these assertions, alleged that he had been defrauded. The Respondent had tried to deny transfers on his bank account statements but this had been exposed as untrue when Exhibits were tendered (Exhibits 11, 12, 13 and C series) to confirm that the transfers in issue were all transfers by the Respondent himself to his other accounts with Appellant bank, and they were done to facilitate his filling station business. He pointed out that a vague allegation such as the ones made by Respondent cannot suffice to invoke the powers of the court for a new trial.

He cited Osei-Ansong & Passion International School v Ghana Airprt Co Ltd 2013-2014 1 SCGLR 25 where the Court of Appeal reversed a decision of the high court to allow a re-litigation based on allegation of fraud on the ground that the facts alleged made it clear that the new suit was an abuse of the court process; so there was no need to allow a trial and the Supreme Court upheld.

Again in Poku v Poku 2007 -2008 2 SCGLR 996, the Supreme Court did not mince words that if the evidence being sought to be tendered in a new process after a trial was readily and easily available during the earlier trial, then the principle that litigation ought to be brought to an end ought to apply against such a new suit. This is in the public interest and ought to be done as a matter of public policy. And in the instant case, the alleged evidence on which the alleged fraud was supposed to stand – whether the bank cheques identified by the court or alleged charges or transfers, were all available to the Respondent in the earlier suit no BFS 29/2012.

The Respondent took a long time to make his submissions available because of issues with the capability of his counsel Hansen Kodua to represent him. Eventually, he filed his written submissions through a new counsel on 23^rd May 2017. First, counsel admitted on page 5 of his submissions that Respondent’s debt with Appellant stood at GH¢400,000 in 2009 and this was converted into a loan of GH¢250,000 and overdraft of GH¢150,000 on 21^st August 2009. His submission was that these facilities were covered in two different documents on 21^st August 2009, though no new sums were paid to him.

He pointed to the elements of fraud to be strange withdrawals of money from Respondent’s current account ‘and some illegitimate charges and excessive interest on his then existing debt with the Appellant’. But notwithstanding these opening submissions, he went on to say on page 7 and I quote ‘My lords, the Respondent categorically denied ever taking any facility of GH¢150,000 in the nature of an overdraft and a loan of GH¢250,000 all in August 21^st 2009. The Appellant who vehemently and positively contended that such payments were made never proved any such payments into the accounts of the Respondent but only tendered documents which the Respondent for such amounts yet, same was claimed and granted at (sic) in suit no BFS 29/2013’.

The two positions were difficult for me to reconcile, because they are contradictory of each other. In one breath, Respondent’s counsel admitted having a debt which was split into a loan and overdraft in August 2009. In another breath, he contended that he did not receive any such fresh sums so the documentation on the debt and overdraft were not authentic and the claim for their nonpayment was wrong.

Be that as it may, the opening articulation of Respondent’s case supports the case made against him by the Appellant all along, which formed the basis for the judgment in BFS 29/2012. It also seems as if Respondent was arguing that if it signed the 21^st August 2009 agreements, then fresh sums ought to have been credited to his accounts, and since no fresh sums were credited, those documents were evidence of fraud.

Respondent counsel also submitted that the Appellant’s witness had testified that the bank’s claims were based on facilities in the sums of GH¢250,000 and GH¢ 245,000 as at March and April 2013 and this was evidence of fraud, because it left unanswered the claims on August 2009 facilities.

And he pointed to several cases setting out the principles guiding the discharge of burden of proof to assert that Appellant carried a burden to prove that it gave Respondent the loan and overdraft that attracted the interest and became the debt claimed in BFS 29/2012 and that the totality of the testimonies proved that the bank was claiming more than it was due from the Respondent.

Respondent counsel also went on to point to Exhibit E tendered by Respondent’s accountant in which GH¢256,721 worth of transfers had been made from Respondent’s bank statements into other accounts and interest amounting to GH¢400,000 and over had been charged on to his account and said this was evidence of fraud. He pointed to bank cheques that had been posted to credit and debit sums on the Respondent’s accounts and submitted that therein lay the evidence of fraud because the transfers were not justified.

It was also his argument that even if the Respondent was unable to prove fraud, the holding in Amuzu v Oklika 1998-99 SCGLR 141 and Appiah & Anther v Asamoah 2003 -2004 SCGLR 226, was that nothing deterred the trial judge from making a finding of fraud if such a finding was appropriate from the evidence, even if a case with such particulars of fraud had not been made.

Now we must begin this judgment by saying that it is not a light thing for one court of coordinate jurisdiction to assume jurisdiction over a case that another court has sat on, dealt with, and disposed off. And it should be a matter of extreme weight for a party who has submitted himself to a full trial to turn round and say that the judgment against him was fraudulently procured, and therefore the judgment should be set aside. Fraud resides within the criminal arena, and must only be alleged when there is evidence beyond reasonable doubt.

It is well settled in our jurisdiction what the parameters of the concept of ‘procuring a judgment by fraud’ are. Cases such as Dzotepe v Hahormene 111 1987 -88 2 GLR, 681; Ahyia v Amoa 1987 -88 2 GLR 289; Sasu v Amua-Sakyi & Another 2003 - 2004 2 SCGLR 742, Brutuw v Aferiba 1984-86 1 GLR, Osei-Ansong and Passion International School v Ghana Airports Company Ltd 2013 – 2014 1 SCGLR 25 have clarified the landscape.

The first principle, deriving from the almost -century old case of Jonesco v Beard 1930 AC 298, is that only the alleged fraud must be the issue for settlement in the case seeking to impeach an earlier judgement on grounds of fraud.

This was the position stated by the Supreme Court in holding 2 of Osei Ansong and Passion International School v Ghana Airports Company (cited supra). It said ‘The settled law and practice of the courts was that the proper method of impeaching a 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.

The call for strict proof is in line with the position of the law on the criminal standard required to prove fraud. In Teye v Feneku 2001 -2002 SCGLR 985 the Supreme Court held that fraud, even when alleged in a civil case, is criminal conduct and must be prosecuted with the standards applied to criminal cases.

In Dzotepe v Hahormene 111 1987 -88 2 GLR, 681 judgment was obtained from the Anloga native Court B in 1953 by the tendering of a plan of the disputed land. The plan was later found to have been altered to give the impression that the land belonged to the Defendant/judgment creditor’s predecessor. The judgment was successfully appealed in the Circuit Court, Ho. On appeal against the Circuit Court decision to the Court of Appeal, the Court of Appeal allowed the appeal on the ground that the Anloga native court judgment based on the altered plan constituted res judicata against the parties and could not be reversed on appeal because of the altered plan. To discharge the effect of the plan would require the Native Court judgment being set aside by a court of competent jurisdiction.

A fresh action was commenced in the High Court Ho for a declaration that the Anloga Native court judgment and the Court of Appeal judgment affirming it were null and void because they had been obtained by fraud. The Plaintiffs in the Ho action obtained judgment that the fraud alleged regarding the altering of the plan which led to the decision in MA’s favor in 1953 had been established. The court granted the declaration that the 1953 judgment was a nullity. He went on to decree title in the Plaintiffs who were judgment debtors in the Anloga Native court. An appeal against the Ho High court judgment was dismissed by the Court of Appeal. On further appeal to the Supreme Court, the Supreme Court by a majority of three- two also dismissed the appeal.

In holding one, the Supreme Court directed that ‘the proper method of impeaching a completed judgment on the ground of fraud was by action in which the particulars of fraud must be exactly given and the allegation established by strict proof’ (emphasis mine).

As added by Francois JSC (in his dissenting judgment) on page 700 in Dzotepe v Harhomene 111 cited supra, ‘in a suit charging fraud there is clear impropriety for a Plaintiff to reopen his entire case.’

The primary issue the second court must be focused on is whether proper incidents of fraud have been particularized against the conduct of the trial in the first case. Where the fraud charged is in relation to matters that were considered by the first court, it cannot form a reason to assume jurisdiction to try the case de novo.

The Supreme Court spoke on the public policy need for this strict position in holding one of Osei Ansong and Passion International School v Ghana Airports Company thus ‘the doctrine of abuse of process, commonly referred to as the rule in Henderson v Henderson 1843 Hare 100 required the parties, when a matter has become the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it might be finally decided….It was a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a Defendant should not be oppressed by successive suits when one would do’

In holding 2 of the Supreme Court in Sasu v Amua-Sakyi & Another 2003 - 2004 2 SCGLR 742 the court said inter alia on page 746 ‘A judgment obtained by fraud, could not be a judgment in which the issue of fraud had itself been considered and determined; ….Where the issue of fraud had itself been considered in the judgment alleged to be vitiated by the fraud, the remedy of the aggrieved party is an appeal against the court that has decided against him or her on that issue’.

This introduces the next factor that has to be identified by the court invited to impeach the judgment of another, and without which, s/he should be very slow to walk into that undertaking. The fraud in issue should be a fraud perpetrated on the court, and a fraud that led to the judgment being given in favor of the judgment creditor.

Date-Bah JSC said in Sasu v Amua-Sakyi & Another cited supra on page 774, ‘Logically, it should be a judgment obtained by fraud which was not apparent to the trial judge or court. Subsequently, the aggrieved party may in a fresh action then lead evidence of the fraud to vitiate the earlier judgment induced by the fraud’ (emphasis mine)

This is the context that compels a declaration that the judgment is null and void because of fraud. The judgment is declared null and void because as Francois JSC said in his dissenting opinion at page 701 in Dzotepe v Harhomene 111 ‘A judgment obtained by fraud is in the eyes of the court no judgment as it is not founded on the intrinsic merits of the case, but is borne of an attempt to overreach the courts by deceit and falsehood’.

A third factor which must be present if a case is to be made for impeaching a judgment as tainted by fraud is the factor that the alleged fraud should not have been a fraud that the Plaintiff could have raised as part of the first suit. See the first holding in Osei Ansong and Passion International School v Ghana Airports Company cited supra.

In Sasu v Amua-Sekyi cited supra, Date-Bah JSC again said on page 774 ‘…in his counterclaim before Apaloo J (the earlier case), the Appellant should have brought forth his full case and the rule in Henderson v Henderson would not permit him to present his case piecemeal by bringing a subsequent case seeking to set aside the Court of Appeal judgment for fraud’

So in this case on appeal it is important to establish – could the evidence of deceit alleged in the particulars of fraud have been presented to the original court? Were they issues that should have been identified in the original action and set out for resolution? If so, then the judgment cannot be said to have been obtained by fraud. They are issues that should have been settled with all the other issues in the first case.

Having reviewed the foundations for dealing with the case before us, we will now conduct the re-hearing required by the Court of Appeal Rules 1997 CI 19 for every appeal and determine the grounds of appeal as they fall within the structure of this evaluation.

Rule 8(1) of CI 19 directs inter alia that

8. Notice and grounds of appeal

(1) An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal

(2) the notice of appeal shall be filed n the registry of the Court below and,

a. shall set out the grounds of appeal;

In Agyeiwa v P & T Corporation 2007-2008 SC GLR 985 the Supreme Court clarified that it is the duty of the appellate court to analyse the entire record of appeal before arriving at its own decision on whether the trial court was right in its decision. This evaluation is to be conducted within the grounds of appeal.

A cursory look at the particulars of fraud found in the Statement of Claim and on pages 11 and 12 of the ROA show that they only reflect an effort to rehash the matters dealt with in the first trial.

The first is:

The Defendant’s allegation that the Plaintiff had taken an overdraft of GH¢250,000.00 and a loan of GH¢150,000.00 all in August, 2009 when the Plaintiff herein in August, 2009 never took any such overdraft or loan facility from the Defendant.

Now these ‘particulars of fraud’ do not in any manner attack the manner of trial, or the evidence in BFS 29/2012, neither do they allege an attempt to deceive that court. It only speaks of the ‘allegation’ concerning the source of debt and the position that the debts were not contracted. But the whole of that suit was built squarely around this overdraft and loan debts incurred from August 2009. These facilities were the central issues placed before the court by the Appellant and Plaintiff in that suit. Thus if it was the Respondent’s case that he never took any such overdraft or loan, all that the law required of him was to deny this allegation and defend himself against it. And well he did. He filed a statement of defence and testified in the case. The bank statements were presented and revealed that his balances truly stood at these figures in August 2009. Judgment was entered against him after consideration of the pleadings, testimonies and Exhibits. By the standards of the decisions in Dzotepe v Harhomene 111 and the cases cited earlier, these particulars of fraud could not provide proper grounds for reopening a completed case on grounds of fraud.

As quoted from Francois JA in Brutuw v Aferiba 1984-86 1 GLR 25 at 31 when he sat in the Supreme Court in Dzotepe v Harhomene 111 and by the Supreme Court in Osei-Ansong & PIS v Ghana Airports Co. Ltd ‘The judicial edifice was not constructed to lend a ready ear to every cry of fraud from suitors who have lost on the merits. For if charges of fraud are not examined closely, the stratagem would subvert the very foundation of the administration of justice and undermine the hallowed principle that a victorious party is entitled to the fruits of his judgment and should not be deprived of them without just cause. ‘. The first particulars of fraud should not have been countenanced in the trial which led to this appeal.

The second particulars of fraud read:

The Defendant converting the alleged outstanding balance of GH¢250,000.00 into a fresh overdraft when to the factual knowledge of the Defendant the Plaintiff never took any such fresh overdraft from the Defendant in August, 2009.

Again, these are not particulars of fraud that purported or urged that evidence had been concealed from the Homiah-Mensah court. This was a matter that should have been dealt with in the confines of that case. The third particulars of fraud are in similar craft. It reads

The Defendant over charging interest on the GH¢150,000.00 overdraft taken in 2006 by fraudulently compounding the interest instead of on simple interest basis as agreed between the parties

This deals only with the rate of interest charged on the debt that Appellant sued the Respondent on. This issue properly belonged to the original trial and was disposed off in the judgment of the court. The fourth particulars of fraud fare no better. They only repeat the first particulars

The Defendant’s allegation that it granted the Plaintiff a loan of GH¢150,000.00 all in August, 2009 when the Plaintiff herein in August, 2009 never took any such loan facility from the Defendant.

The fifth and last particulars of fraud read…

Every document executed or purportedly 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 was granted by the Defendant to the Plaintiff was fraudulently executed as no such event ever occurred or took place at the bank.

These particulars of fraud attack the documents that allegedly support the debt of the Respondent. To my mind, it is the only particulars of fraud that remotely come near a justification to try this second case. It alleges that the documents supporting the transaction were fraudulently executed. However, even this allegation is so obscurely crafted that it still fails the standard required of an allegation of fraud against judgment. Though Respondent counsel claimed that the documents complained about were fraudulently executed ‘as no such event ever occurred or took place at the bank’, he does not state who executed the documents fraudulently and how these alleged fraudulently executed documents led to the judgment. He left these obscure words hanging. And the trial proved that these documents expressed his proper transactions with the bank in August 2009.

The above were all the particulars of fraud that were supposed to attack the essence of the first trial and judgment. We do not hesitate to find that they presented no reason to reopen the whole suit which was completed in BFS 29/2012 on grounds of fraud, in the light of the case law spanning Dzotepe v Harhomene 111 to Osei-Ansong (all cited supra).

These pleadings should have been struck out as disclosing no cause of action, and being vexatious, under Order 18 rule 1 of CI 47 as happened in Osei Ansong & PIS v Ghana Airports Co cited supra, where the Court of Appeal reversed the ruling of the High Court refusing to strike out the suit on grounds of abuse of court process when the pleadings showed clearly that the subject matter of the suit had been litigated before a court of coordinate jurisdiction and concluded thereon. On appeal to the Supreme Court, it unanimously dismissed the appeal against the judgment of the Court of Appeal and affirmed the decision that the relitigation was an abuse of process.

And these were the very submissions of counsel for Appellant in this appeal. We accept all his submissions to this effect. He said on page 14 of his submissions that this suit no RPC 84/2014, should not have even proceeded to trial and we wholeheartedly agree with him.

Order 18 rule 1 reads -

Striking out pleadings

18 (1) The Court may at any stage of the proceedings order any pleadings or anything in any pleading to be struck out on the grounds that

It discloses no reasonable cause of action or defence

Its scandalous, frivolous or vexatious or

It may prejudice, embarrass, or delay the fair trial of the action; or

It is otherwise an abuse of the process of the court.

Our evaluation is that when a trial court is faced with such an important case as a claim to set aside a duly completed trial and judgment on grounds of fraud, the court ought to satisfy itself from the pleadings that it is not a case that is scandalous, vexatious, and an abuse of the process of court. Where the pleadings disclose no cause of action, the court ought to prevent an abuse of the court’s process.

But what is particularly difficult about this case is that having undertaken the trial based on these particulars of fraud, the trial judge decided this case, not on the proof of any of these alleged particulars of fraud, but on a ground that was never raised in the pleadings before him or set down as an issue for resolution

On page 8 of his judgment, the trial judge asked himself ‘The question is, is there any evidence on record that shows that the Defendant perpetrated fraud on the Plaintiff herein in its dealing with the Plaintiff (SIC)”

He then went on to say that ‘something dramatic happened’ during the cross examination of the bank’s witness on 17^th July 2015. He quoted this ‘drama’ over 5 pages of the judgment. The essence of the drama in the cross examination was that on 30^th September 2009, the sum of GH 59,500 had been credited to the Respondent’s current account and a bank cheque numbered 0007266 used to debit the same sum of GHC 59,500 from the current account. Respondent’s counsel put to the Appellant’s witness that those two transactions were without the knowledge and approval of Respondent. The witness denied this.

Another set of questions regarding the use of a cheque of New Champion for the sum of GHC 31,715 which was debited and credited on 4^th September 2009 followed. Once again, the witness denied that there was anything untoward about these transactions.

After copiously setting out this cross-examination, the court said ‘The total withdrawals described as bank cheques was according to the counsel for the Plaintiff GH230,415. These as I said were done according to the Plaintiff without his consent and or knowledge. The Plaintiff denied ever authorizing the Defendant bank to issue any bank cheque on his behalf neither did he himself personally issue a cheque to be drawn on his account with the Defendant which said cheque was described as bank cheque.

The bank cheques in controversy are in the exclusive custody of the Defendant. Once the Plaintiff denied any knowledge of them the burden is/was shifted unto the Defendant to prove that the Plaintiff indeed issued or the Defendant issued them on the instructions of the Plaintiff.

……

The bank statement on which this fraud was detected is part/was part of the proceedings before the court. the court cannot therefore ignore the evidence of fraud on the face of same…’

This conclusion is extremely difficult to appreciate. As stated earlier, being a matter that must be proved to a criminal standard, the particulars allegedly proved must have been particularized to allow for the other party to appropriately answer the charge. In this particular case, as complained about in the grounds of appeal, there was no mention of these alleged bank cheques in the pleadings or issues set down for resolution.

For the judgment to be set aside on grounds of fraud relating to these two cheques value at Gh¢59,500 and GH¢31,715 the Respondent should have alleged that particularly in RDC/84/2014 the court should have investigated that accusation and arrive at the conclusion that they were fraudulently posted after hearing all the parties.

But the sober truth is that there was no assertion about these bank cheques in pleadings, and no case made by even the Plaintiff /Respondent regarding the bank cheques in his own testimony. As the Judge himself pointed out, it was in cross examination of the Defendant Appellant’s witness, when Respondent had closed his case, that questions were asked about the bank cheques. By this time, the Respondent had closed his case. So when and how did the ‘Plaintiff deny authorizing bank cheques”?

It seems that suo motu, the court elevated the questions in cross examination to the status of an issue set down for resolution as part of the case before him. And after doing this, instead of placing the burden of proof on the person who allegedly asserted that he had not withdrawn money with the bank cheques, the Judge turned to place the burden of producing evidence on the Appellant for the simple reason that the Appellant had custody of the bank cheques.

With respect, even if the Respondent’s counsel had raised issues in cross examination regarding these bank cheques, and had thereby made them a subject for resolution (an argument we do not agree with), the burden could not still shift to the Respondent to produce evidence on these bank cheques. This is because by Section 11 of the Evidence Act 1975 NRCD 323, the burden of producing evidence lies on the person who will lose a case if he does not produce evidence, and not on the one who has custody of the evidence. Section 11 (1) and (2) read

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue

(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

Now it is the Respondent who had brought a case of fraud to court, and so carried a burden to prove that fraud. And the rules of court gave him several instruments to obtain the bank cheques if it was his case that they were not issued by him. He could have applied for an order against the bank to produce the cheques under the rules on discovery, production and inspection of documents found under Order 21 of The High Court (Civil Procedure) Rules, 2004 CI 47, and he could have done that at any stage of the proceedings. But he did not do that. So the questions asked in cross examination could not transfer a burden on Respondent to bring the cheques to court. And this is especially so because Appellant’s witness effectively answered the questions raised about the alleged bank cheques.

He was asked

Q. Do you agree with me that by this bank cheque, the effect was that, it was the bank that issued that particular cheque out, supposedly on the instructions of the Plaintiff

A. that would not be the case

Q. what was the case

A. on the face of it, this is a cheque withdrawal on behalf made by the customer, on the face of it, once there is a cheque narrated with a number then the customer would have personally done a withdrawal to the tune of this amount.

It would seem that the trial judge chose not to be guided by this clear testimony of someone who knew what a bank cheque was, but to believe that the narrative ‘bank cheque’ in the bank statement meant that the bank had by itself issued a cheque on the Respondent’s account.

All that the court stood on to pronounce them as instruments of fraud was the addresses of Respondent counsel that Respondent did not authorize the issue of those cheques.

Finally, as pointed out by Appellant counsel, all the alleged incidents of unwarranted deductions from the account of Respondent by PW1 were shown to have been transfers to Respondent’s other accounts, or wrong transactions that were corrected by the bank crediting those deductions to the account the very next day.

We therefore agree with ground four of the appeal that ‘The learned judge, by holding that the Plaintiff failed to raise in his particulars of fraud any dispute over bank cheques, erred in holding that fraud has been perpetuated on the Plaintiff by the Defendant in respect of the two bank cheques.’

The remaining grounds of appeal complain that the court’s examination of evidence earlier placed before the Mensah-Homiah court, and his conclusions after evaluation of the same evidence placed before him was erroneous. We agree. Indeed, we believe the trial judge erred because he went looking for fraud within the evidence that had already been examined by the previous court - instead of fraud that was particularized as deceitfully crafted by the Appellant to deceive the first court, as required by the applicable principles in a case like this.

The incidents of the dealings of the Plaintiff and Defendants were the matters that the two of them slugged out before Mensah-Homiah J. And if the Defendant had perpetrated fraud on the Plaintiff, it was part of the rules of the dispute that the parties contend on it. If there was fraud proved within the bank statement without being stated, it was the duty of Mensah Homiah J to evaluate a finding on it as directed by holding 4 of Appeah and Another v Asamoah 2003 -2004 SCGLR 226.

However, the doctrine of res judicata and the rule in Henderson v Henderson 1843 67 ER 313 restrain a court of coordinate jurisdiction from going on a fresh odyssey to find the alleged evidence of fraud and wave it as a trophy that his sister missed, and use it to set aside her judgment.

The third ground of appeal was that the learned judge, by holding that the issues concerning the overdraft and loan facilities granted to the Plaintiff by the Defendant have been properly determined in earlier suit No. BFS 29/2012, erred in allowing a retrial of the same issues in the High Court – a court of coordinate jurisdiction – when in fact all material/available evidence formed part of earlier suit No. BFS 29/2012. We agree with and uphold this ground of appeal too

We agree with the Appellant that the learned judge erred in setting aside the judgment of Mensah-Homiah J. dated 20^th June, 2012 on grounds of fraud when in fact the Respondent failed to lead any credible evidence that the said judgment in suit No. BFS 29/2012 was procured by fraud. The learned judge also erred by relying on transactions relating to two cheques with face value of GH¢59,500.00 and GH¢31,715.00, which were questioned by the Respondent only through cross examination, as evidence of fraud on the Respondent.

We agree that the learned judge erred by accepting that there was loss of GH¢230,415.00 to the Respondent which figure is not supported by any record of proceedings when in fact the record had proved that all duplicated transactions were actually reversed. The appeal is upheld. The judgment of Ankamah J is reversed and that of Homiah Mensah J is restored. Cost of GH¢40,000 in favour of the Appellant against the Respondent.

(Sgd)

Gertrude Torkornoo (Mrs.)

(Justice of Appeal)

(Sgd)

Ayebi                                            I Agree                  E. K. Ayebi

(Justice of Appeal)

(Sgd)

Domakyaareh                         I Also Agree  A. M. Domakyaareh (Mrs.)

        (Justice of Appeal)