IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
JESSE W.N FLAMER AND ANOTHER - (Plaintiffs/Appellants) vs.
KOFI AGYEMANG AND ANOTHER - (Defendants/Respondents)
DATE: 26 TH JULY, 2018
APPEAL NO: H1/54/18
JUDGES: F.G. KORBIEH J.A. (PRESIDING), CECILIA H. SOWAH (MRS.) J.A., H. A. KWOFIE J.A.
C. S. SACKEY FOR THE PLAINTIFFS/APPELLANTS
PETER ZWENNES FOR THE DEFENDANTS/RESPONDENTS
F.G. KORBIEH, J.A.
This is an interlocutory appeal from the ruling of the Land Division of an Accra High Court given on the 24/6/2016 in which the trial High Court dismissed the plaintiffs/appellants’ action to set aside a judgment allegedly obtained by fraud by the defendants/respondents from another Accra High Court. The brief historical antecedent of the case leading to the afore-mentioned ruling is as follows.The plaintiffs/appellants (hereinafter referred to only as the plaintiffs) sued the defendants/respondents (hereinafter referred to only as the defendants) in the Land Division of an Accra High Court seeking the following reliefs:
a) Declaration that the statutory declaration made by Ernest AmmahAnsah in 1977 describing the OdaiNtow Family Lands at Kwabenya and Ashongman is not a true reflection of the land adjudged in the OdaiNtow Family in the Bosompim&Ors v. Martei&Ors case of 1904.
b) A declaration that the 1977 statutory declaration made by Ernest AmmahAnteh describing the OdaiNtow family lands as adjudged in the 1904 Bosompim Judgment was fraudulently made.
c) A declaration that the judgment delivered by the High Court presided over by His Lordship Justice P. Bright Mensah dated 17th January, 2013 describing the OdaiNtow family as the owners of lands so described and captured in the description as contained in the 1977 statutory declaration was obtained by fraud.
d) An order of the court to set aside the judgment dated 17th January, 2013 delivered by Lordship Justice P. Bright Mensah in Suit No. BL/746/5005 on grounds of fraud.
These reliefs werecontained in the plaintiffs’ writ of summons. In the accompanying statement of claim, the plaintiffs averred, amongst other things, that the 1st plaintiff was the owner of the land described in the first schedule while the 2nd plaintiff was the allodial owner of the land described in the second schedule in the statement of claim. They had also averred as follows: that in 2005 the 1st plaintiff sued the defendants and the 2nd plaintiff was subsequent joined to the suit in Suit No. BL/746/2005; that in the said suit, the defendants counterclaimed for declaration of ownership of the same land and traced their root of title to the OdaiNtow family of Ashongman. The plaintiffs further averred that the defendants had pleaded that their grantors’ ownership of the land in dispute had been confirmed by a judgment delivered in 1904 in the case of Bosompin& Another v. Martei& Another by Justice Bradford Griffiths.
The plaintiffs again averred that one Moses Tawiahtestified in Suit No. BL 746/2005 as the lawful representative of the OdaiNtow family. They also averred that it was based on the evidence of the said Moses Tawiah that Justice P. Bright Mensah delivered his judgment dated 17th January, 2013. The plaintiffs however also averred that the 1904 judgment has its own judgment plan which have boundaries different from the boundaries described in the 1977 statutory declaration and which was in the possession of the plaintiffs at all material times. The plaintiffs therefore averred that the defendants had deliberately misrepresented the facts to the court and were therefore guilty of fraud. In their statement of defence, the defendants denied all the material facts allegations of fact alleged by the plaintiffs and averred that the judgment of Justice Bright Mensah had ordered that Land Certificate No. GA. 6187 be revoked as having been obtained by fraud and its record be expunged from the Land Title Registry.
The defendants further averred that in arriving at his decision in the judgment delivered on the 31st July, 2013, Justice Bright Mensah did not confine himself to only the statutory declaration mentioned by the plaintiffs but to other extensive pieces of evidence led by the defendants. They also averred that the plaintiffs had appealed against the judgment of Justice Bright Mensah and settled the record of appeal which was still pending. The defendants therefore averred that the action was instituted in utter bad faith with the intention of circumventing the rules and trying to use the back door to avoid the binding effect of the judgment of the 31st July, 2013. The defendants therefore further averred that the action was not only frivolous and vexatious but an abuse of the court process and ought to be either struck out or stayed pending the outcome of the plaintiffs’ appeal.
At the close of pleadings, several issues were set down by both sides for determination. But included in the defendants’ notice of additional issues was the notification that issue 1(c) of their additional issues should be “set down for preliminary legal argument as its determination may substantially dispose of this action and render the trial of the entire case unnecessary.” Pursuant to that notification, the defendants filed an application to dismiss the plaintiffs’ action as an abuse of the court process. Although it does not appear patent on the record, the trial court ordered counsel for the parties to file written addresses in defence of their respect positions on the issue which they did. On the 24th June, 2016, the trial judge gave her ruling in which she decided that the plaintiffs’ action be dismissed. The plaintiffs appealed against the decision and are now in this Court on the following grounds of appeal:
a) The ruling is highly against the weight of evidence before the court.
b) The trial judge erred when she breached the principles of stare decisis by preferring principles espoused in the Court of Appeal judgment as against the direction given by the Supreme Court on the mode of impeachment of a judgment obtained by fraud.
c) The court went into grave error when it failed to appreciate that a judgment obtained by fraud can only be impeached by the commencement of a fresh writ of summons irrespective of the pendency of an appeal against the judgment of the court.
d) The judge erred when she held that the instant action amounts to re-litigating the action in Suit No. BL 746/2005.
e) The judge erred when she held that the right to issue a fresh writ to set aside a judgment on grounds of fraud is open and only confined to situations where the party alleging fraud has chosen not to appeal the very judgment which he seeks to set aside on grounds of fraud.
f) The judge erred when she construed the pleaded fact supporting the particularization of the alleged fraud and relief sought before the court as re-litigating or re-opening and forcing the re-hearing of the entire dispute in Suit No. BL 746/2005.
g) The learned judge went into error of judgment when she failed to appreciate that the issue set down for trial was only to determine the fraud and nothing else.
h) The judge erred when she failed to appreciate that even though the appellant appealed the judgment in Suit No. BL 746/2005, fraud was not one of the grounds of appeal.
i) The judge erred when she preferred and indeed based her ruling on the fact that the sworn evidence of a witness in Suit No BL 746/2005 cannot be used in another court because no judgment has been given in that suit on that evidence.
j) Additional grounds to be filed upon receipt of the record of appeal.
For the record, no additional grounds of appeal were filed. The reliefs sought from this Court are as follows: to set aside the entire ruling of the trial High Court and to restore the suit on the Cause List of the High Court for determination.We now come to the hearing of the appeal itself. As is the norm and practice in this Court, the parties, through their respective lawyers, filed their written submissions in which they argued their positions for and against the grant or dismissal of the appeal. Counsel for the appellants naturally argued that the trial High Court judge was wrong to have granted the defendants’ application on the preliminary legal objection and that the suit ought to have gone on to full trial on the merits. Counsel for the defendants, on the other hand, lauded the decision of the trial judge to terminate proceedings at that stage because what the plaintiffs were attempting to do was to re-open a case they had lost and re-litigate it.
We shall proceed to look at a synopsis of both arguments and then do our own analysis with a view to determining what the applicable law really ought to be in a situation such as we have on hand. A gist of the arguments of counsel for the appellants is as follows. He summarized the facts of the case and gave a summary of the evidence one Moses Tawiah who had testified for the defendants in the earlier suit. In that evidence, Moses Tawiah had tendered in evidence the 1977 statutory declaration which claimed itself to be based on the 1904 (Bosompim v. Martei) judgment and which allegedly had found that the OdaiNtow family owned 12,690 acres of land. Counsel contended that based on both the oral and documentary evidence of the said Moses Tawiah, the representative of the OdaiNtow family, grantors of the defendants herein, the trial court in the earlier suit gave judgment declaring title in 12,690 acres of land in the Odai Now family. However, unknown to the plaintiffs but in the exclusive knowledge of the OdaiNtow family, the 1904 judgment in fact had a judgment plan whose boundaries were far less in size than that presented to the court in Suit No. BL 746/2005.
Counsel contended that these facts come to his clients’ knowledge when Moses Tawiah testified in two consolidated suits: Suit No L678/2002 and Suit No. L442/98. Counsel therefore argued that since the representative of the OdaiNtow family had deliberately concealed the judgment plan in the 1904 judgment from the court in Suit No. BL. 746/2005, judgment in the case was tainted with fraud hence the new suit initiated the plaintiffs to set it aside. Counsel then proceeded to argue ground C of his grounds of appeal first. The thrust of his argument was that the court went into grave error when it failed to appreciate that a judgment obtained by fraud can only be impeached by the commencement of a fresh writ of summons irrespective of the pendency of an appeal against the judgment of the court. He contended that it was trite that a judgment obtained by fraud can only be impeached by the issuance of a fresh writ of summons to set aside the previous suit including the judgment obtained because the basic principle of law is that fraud vitiates everything. He disagreed with the trial court’s interpretation of the case of Ahyia v. Amoah [1987-88] 2 GLR 289 and argued that an aggrieved party, such as the plaintiff herein, who had an appeal pending, could either elect to pursue the appeal or start a fresh by writ of summons. Counsel went on to cite the case of Dzotope v. Hahormene III [1987-88] 2 GLR 681to buttress his point.
Counsel next argued ground E of appeal. He contended that the position of the trial judge that a party alleging fraud could only start a fresh action if the party had not filed an appeal was untenable and not be supported by the law. He again cited the case of Dzotopev. Hahormene (supra) to support his argument. He relied on his arguments on grounds C and E to cover grounds D and H. So he moved on to ground B which is couched as follows: the trial judge erred when she breached the principles of stare decisis by preferring principles espoused in the Court of Appeal judgment as against the direction given by the Supreme Court on the mode of impeachment of a judgment obtained by fraud. On this ground, counsel argued on two fronts; one was that the trial judge erred when she concluded that once there was an appeal pending, the plaintiffs had no choice but to pursue the appeal and possibly seek leave to adduce fresh evidence to prove the fraud they were alleging; the other was that a binding Supreme Court decision had been cited during the hearing of the application and she had ignored it and rather depended on the Appeal Court version of the same case thus breaching the legal principle of stare decisis.
Counsel then moved on to ground F which posited that the judge erred when she construed the pleaded facts supporting the particularization of the alleged fraud and relief sought before the court as re-litigating or re-opening and forcing the re-hearing of the entire dispute in Suit No. BL 746/2005. Counsel argued that the issues set down for determination showed that the trial court was being called upon to decide whether or not there was a judgment plan in the case of Bosompim v. Martei and whether or not the same had all along been in the custody of the OdaiNtow family or not. Counsel went on to argue that fraud being a crime, it has to be proved strictly, hence it has to be particularized in order to bring out its necessary ingredients in order to lay the necessary grounds for it to be successfully proved. Counsel therefore contended that this could not have been done by affidavit evidence and the issuance of a writ of summons was necessary in order to be able to achieve the desired goal of adequately satisfying the legal requirement of proving fraud.
The last ground of appeal canvassed by counsel for the plaintiffs was ground I which stipulated that the judge erred when she preferred and indeed based her ruling on the fact that the sworn evidence of a witness in Suit No BL 746/2005 cannot be used in another court because no judgment has been given in that suit on that evidence. Counsel contended that whereas in Suit No. BL. 746/2005, Moses Tawiah, the witness for the defendants’ grantors testified and tendered documents that indicated that the OdoiNtow family owned 12, 690 acres of land, in Suit No. 678/2002 entituledNiiNgleshieAddy v. T.T. Menash (substituted by Moses Mensah) the same Moses Tawiah conceded that the real judgment plan in 1904 judgment was not the same as that which he tendered in Suit No. BL 746/2005; going on to explain that the essence of attaching the evidence was to establish their source of discovery of the fraud. Counsel concluded that this Court should set aside the ruling of the trial court and restore the suit to the High Court to be tried to determine whether indeed the judgment in Suit No. BL. 746/2005 was obtained by fraud.
The response of counsel for the defendants was quite similar to that of counsel for the plaintiffs in approach. He also summarized the facts of the case before going on to deal with the issues raised by his leaned friend under the various grounds of appeal. He treated ground A as abandoned since counsel for the plaintiffs made no mention of it and called on us to do the same. He next took grounds B, C and E together because, in his view, they constituted the crux or gravamen of the appeal.He argued that his learned friend had misunderstood the position of the trial judge because the trial judge did not take the entrenched position that the only option open to the plaintiffs was to pursue their appeal, citing several passages in the ruling where the trial judge had made it clear that the law permitted a judgment obtained by fraud to be set aside through the commencement of a fresh action. He continued that what the trial judge actually said was that the plaintiffs’ action was an attempt to re-litigate the whole case under the pretext of an action for fraud.
He therefore urged us to dismiss grounds B, C and E. He then moved to respond to ground F and proceeded as follows. He argued that the trial judge had adequately justified herself in saying that the plaintiffs were trying to re-litigate the whole case because of the elaborate nature of their pleadings and cited the case of In re Sekyedumase Stool; Nyame v. Kesealias Konto; [1998-99] SCGLR 476(where the Supreme court held that an application could be made to strike out a statement of claim on the ground of judgment estoppel). He also cited the case of Brutuw v. Aferiba [1984-86] GLR 25, CA. Counsel went to quote from the ruling where the trial judge alleged that almost all the documents the plaintiffs proffered to prove their charge of fraud existed during the trial before Justice Bright Mensah. He therefore concluded that the appeal ought to fail on that score also. Counsel’s last submission was on ground I. He defended the trial judge’s decision that the evidence of Moses Tawiah in Suit No. L. 678/2002 which had been attached as exhibit NA5 to the plaintiffs’ (then as respondents’) affidavit in opposition to the applicationwas inadmissible as evidence and hence was of no probative value before her. According to counsel, the trial judge’s reason for rejecting that piece of evidence was that the suit in which it was given was still on-going and had not been evaluated hence it could not be the basis to overturn the judgment of a court of competent jurisdiction. Counsel finally concluded that the ruling appealed against had not occasioned a miscarriage of justice and ought to be allowed to stand and so the appeal should be dismissed.
Our approach to this appeal is to take grounds C, D, E and H together as did counsel for both the plaintiffs and the defendants and analyze them together because they, more or less, constitute the core of this appeal. While considering these grounds, we will also consider grounds B and I alongside. The combined effect of these six grounds of appeal is that the trial judge erred in deciding that, because the plaintiffs had an appeal pending, they could not, at the same time, commence a fresh action to set aside the judgment of a court of competent jurisdiction and such related matters. Even though the trial judge cited some cases that seemed to suggest that she agreed that one could have an appeal pending yet commence a fresh action to set aside a judgment obtained by fraud, she ultimately took the view that the authorities did not permit a party to have an appeal and still file a fresh action to set aside a judgment obtained by fraud. This is what she said:
“As stated previously it is trite learning that a judgment alleged to have been obtained by fraud may be set aside by a fresh action in which the fraud is pleaded and proven. It appears however that the legal authorities on this principle have been confined mainly to situations where the party alleging the fraud has chosen not to appeal against the very judgment which he seeks to set aside.”
There was simply no legal basis for the trial judge to make this statement. None of the cases she cited either directly or indirectly suggested that a litigant who filed an appeal against a judgment or ruling was barred from bringing a fresh action to have the judgment or ruling set aside on grounds of fraud. In the case of Ahyia v. Amoah(supra) (which she cited) it was held as follows:
(2) The law was that if a judgment of the High Court had been obtained by fraud it might be impeached by original action without the leave of the court, or in cases where an appeal might be brought on such judgment, by appeal to the Court of Appeal where further evidence might by leave of the Court of Appeal, where necessary, be admitted for the purpose of establishing the alleged fraud. Consequently, where the fraud became known whilst the judgment was on appeal the aggrieved party might ask the leave of the Court of Appeal to adduce further evidence to establish the fraud alleged. Otherwise it was the settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud was by action in which the particulars of the fraud might be exactly given and the allegation might be established by strict.
She went on touse the case of Ahyia v. Amoah(supra) to come to the decision that it was wiser for the plaintiffs to continue with their appeal and adduce fresh evidence of fraud with the leave of the Court of Appeal rather than institute a fresh action to set aside the judgment obtained by fraud. Her reason for this decision was one of convenience rather than law. She speculated that there was the “possibility of the two cases (i.e. the appeal and the fresh action) running concurrently and the two courts (i.e. the Court of Appeal and the High Court) rendering different decisions which are at variance to complicate matters.” It is however hardly possible to imagine a situation where the same parties would be litigating two such parallel cases simultaneously. The more likely scenario is that the plaintiffs would allow the appeal to be struck out for want of prosecution.
In any case, the very case she cited and used as authority to bar the plaintiffs from proceeding with their fresh action clearly demonstrated that a litigant could institute a fresh action even whilst an appeal was pending, provided he could prove the fraud being alleged. It is trite that fraud vitiates everything and a judgment obtained by fraud has its legitimacy put in issue. Therefore, once the plaintiffs questioned the legitimacy of the judgment given in Suit no. BL 746/2005 on account of fraud, it was not the duty of the trial judge to be so protective of that judgment. It was held in the case of the Republic v. High Court, Accra; Ex Parte Aryeetey(Ankrah Interested Party) [2003-2004] SCGLR 398 SC as follows:
(1) fraud is a serious sin against the administration of justice; it vitiates everything. Thus a judgment obtained through fraud can be set aside; and when a judgment is impeached for fraud its legitimacy is put in issue and cannot operate as estoppel per rem judicatem provided the alleged fraud is properly and adequately raised. As a matter of practice and procedure, a judgment can be impeached on grounds of fraud only by fresh action where the necessary particulars of fraud must be distinctly stated in the pleadings; it is not permissible to infer fraud from general situations of facts.
In the case of Brutuw v. Aferiba (supra) the Court of Appeal held as follows:
(1) a judgment obtained by fraud was in the eyes of the courts no judgment as it was not founded on the intrinsic merits of the case. 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 of proof…
(2) In a suit charging fraud it would be a clear impropriety for a plaintiff to re-open his case. Where a judgment was attacked for fraud, fraud only must be in issue for it was not a rehearing of the whole case. It was therefore wrong for the plaintiff's counsel to have canvassed both before the trial court and the Court of Appeal the issue that the original transaction between the ancestors of the plaintiff and the defendants over the land was a pledge rather than a sale especially as the plaintiff had admitted the sale in his pleadings and given evidence on it.
Even though the trial judge cited and used this case, she clearly did not appreciate its import and therefore applied it out of context. We believe it was holding (2) of that case that misled her. Had she read the case as a whole, she would have realized that it was a case of setting aside a judgment obtained by fraud that was being tried. It is therefore only during the trial for fraud that the parameters can be set for the parties and especially the plaintiffs. In any case, if one were to look at the issues set out by the plaintiffs in their application for directions, one would realize that they were all germane to the issue of fraud. In the case of Dzotope v. Hahormene III [1987-88] 2 GLR 681 (already cited above) the Supreme Court held as follows:
(1) 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. Fraud was an issue of fact to be determined by the court. Accordingly, where that issue had not been determined either by the trial court or the appellate court, the party alleging it had the right to have that issue determined by any court of competent jurisdiction at any time. On the evidence, even though the Circuit Court, Ho determined the issue of fraud and found as a fact that the 1953 judgment of the Anloga Native Court B had been obtained by fraud, the Court of Appeal in allowing the appeal from that decision in the 1978 judgment did not discuss or consider the issue of fraud at all but rather rested its decision on the issue of estoppel. The plaintiffs were therefore entitled to have the issue of fraud determined by either a higher appellate court or by a fresh action in any court of competent jurisdiction as long as the issue of fraud remained undetermined properly, because fraud, whenever and wherever found would vitiate all proceedings, even the most solemn proceedings of a court of justice. The plaintiffs were therefore justified in instituting the fresh action to have the issue of fraud determined.
This is precisely what the plaintiffs herein were trying to do. As contended by counsel for the plaintiffs, which is borne out by the record,the attention of the trial judge was drawn to this case. (See page 184 of the ROA) Rather strangely, she chose to rely on the Court of Appeal version of the same case which has been reported as Dzotope v. Hahormene III & Others [1984-86] 1 GLR 289; apparently because that was the version cited by counsel for the defendants!Even then, a careful reading of holding (1) of that case did not make it applicable to the circumstances of this case. Holding (1) reads as follows:
(1) in an action to set aside a judgment on the ground of fraud, the fraud must relate to matters which prima facie would be a reason for setting the judgment aside if they were established by proof and not to matters which were merely collateral…
It cannot be said that the issues raised by the plaintiffs in this case were collateral issues. But apart from misinterpreting the Court of Appeal decision in as Dzotope v. Hahormene (supra), the trial judge erred seriously by going against the time-honoured principle of stare decisis. Stare decisis is a common law principle which posits that courts, especially lower courts, should stand by things decided. This is the same as the doctrine of judicial precedent and has to do with the hierarchy of the courts. It has found expression in our statute law and it is provided in article 129 (3) of the Constitution as follows:
“The Supreme Court may, while treating its own previous decisions as binding, depart from a previous decision when it appears right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”
Under this common law rule and particularly this constitutional provision, the trial judge was bound to follow the decision in as Dzotope v. Hahormene III as pronounced by the Supreme Court and not as given by the Court of Appeal. In the case of Republic v.National House of Chiefs; Ex Parte Krukoko II (Enimil VI, Interested Party) [2008-2009] SCGLR 385, it was held as follows:
(2) (Date-Bah and Anin- Yeboah, JJSC dissenting.) The Provisional National Defense Council (Establishment) Proclamation, 1981 saved and continued in existence all the courts established under article 114(5) of the Constitution, 1979. Thus, the Court of Appeal as established under the Constitution, 1979 continued under the same constitutional regime with its functions, composition, and jurisdiction intact. Under section 3(1) of the transitional provisions of the Constitution, 1992 the Supreme Court, Court of Appeal and High Court in existence before the coming into force of the Constitution, 1992 were to be deemed to have been established under the Constitution, 1992. Thus, there had been no constitutional break or vacuum in the courts' structure under the Constitution, 1979 through the Provisional National Defense Council era to the Constitution, 1992, and no difference in the superior courts' structure, jurisdictional powers and composition. Accordingly, there could not be any difference in the weight to attach to the decisions of the Court of Appeal or indeed any of the regular courts pre - and post - January 1993. By the combined effect of articles 129(3) and 136(5) of the Constitution, 1992 (which were similar in content with articles 116(3) and 121(3) of the Constitution, 1979) the Court of Appeal was bound to follow the decisions of the Supreme Court on questions of law, and the High Court was bound to follow the decisions of the Court of Appeal on questions of law, unless the lower court distinguished the previous judgment from the one before it both on the facts and the law. Accordingly, both the pre - and post - 1993 judgments of the Court of Appeal had the same authoritative binding effect on the High Court.
Therefore,the Supreme Court decision in Dzotope v. Hahormene III [1987-88] 2 GLR 681, even though given before the coming into force of the 1992 Constitution, wasjust as binding on the trial court as if the decision had been given under the 1992 Constitution. The trial judge also refused to allow the plaintiffs to proceed with their case because they had failed to plead Suit No. L 678/2002 specifically. Then again she said that because that suit was still in court, the evidence adduced therein, not having been evaluated, had no probative value and could therefore not be admitted in the case before us. And yet again she contended that since the plaintiffs’ appeal was at an advanced stage, the fresh action was ill-advised. We have already dealt with the issue of the plaintiffs instituting a fresh action whilst their appeal is pending. So we will deal with the two issues of not pleading Suit No. L 678/ 2002 and the evidence adduced in that suit. In the first place, paragraphs 24 to 28 put beyond doubt that the plaintiffs pleaded fraud against the defendants. Indeed, the rest of the paragraphs to the very end made it abundantly clear that the plaintiffs were out to prove a case of fraud against the defendants. It was held by the Supreme Court in Appeah and Another v. Asamoah [2003-2004] SCGLR 226that:
“(4) Fraud would vitiate everything. And ordinarily, fraud should be pleaded. It had not been pleaded in the instant case. Notwithstanding the rules on pleadings, the law was that where there was clear evidence of fraud on the face of the record, the court could not ignore it.
So the failure of the plaintiffs to plead Suit No. L 678/2002 did not detract from the effectiveness of the rest of their pleadings from which fraud could clearly be inferred. Besides, Suit No. 678/2002 and the evidence sought to be adduced under it was, strictly speaking evidence, which, under the rules, ought not to be pleaded. In the worst case scenario, the plaintiffs could always ask for leave to amend their pleadings in order to plead matters that they consider necessary in order to bring their pleadings in line with their evidence. In the case of Adjeley v. Sowa and Another  GLR 954 it was held that:
Where it appeared that the way a party had framed his case would not lead to a decision on the real matter in controversy it was a matter of right on his part to have it corrected if it could be done without injustice to the other party. However negligent or careless a party might have been and however late the proposed amendment, it ought to be granted if it was made bona fide and caused no injustice to the other party or the other party could be compensated by costs or otherwise.
Even then one cannot really fault the pleadings of the plaintiffs; as explained by them, they had to lay a background to the charge of fraud in order to be able to prove it. This is what is demanded of the plaintiffs in cases such as the Republic v. High Court, Accra; Ex Parte Aryeetey (Ankrah Interested Party). As for the argument that the proposed evidence had not yet been evaluated by the trial judge in Suit No. L. 678/2002, we find that to be no legal argument at all. All that the plaintiffs were trying to do was to demonstrate that they had the necessary evidence to use to convince the court during the trial that the defendants’ grantors had obtained the earlier judgment by fraud. At that juncture, all that they needed to do was to establish a prima facie case that they could prove a case of fraud against the defendants’ grantors. The admissibility or otherwise of that evidence did not lie in it being evaluated by the judge trying the case in L. 678/2002. It formed part of the affidavit evidence of the plaintiffs and ought to have been seen in that light. There is only one test of admissibility of evidence spelt out in the Evidence Act, 1975 (NRCD 323). This test is contained in section 51 which provides as follows:
(1) Relevant evidence is admissible except as otherwise provided by an enactment.
(2) Evidence is not admissible except relevant evidence.
The trial judge appeared not to have appreciated the nature of action instituted by the plaintiffs hence her decision that a “wiser course of action” was to continue to pursue their appeal rather than to institute a fresh course of action. We hold that having regard to the totality of the circumstances of this case, it was not an abuse of the court process for the plaintiffs to institute a new course of action. We therefore allow grounds B,C,E, D, H and I.
We now come to the remaining ground of appeal which is ground F. This ground posits that the judge erred when she construed the pleaded facts supporting the particularization of the alleged fraud and reliefs sought before the court as re-litigating or re-opening and forcing the re-hearing of the entire dispute in Suit No. BL 746/2005. In her ruling the trial judge said that judging from the pleadings of the plaintiffs, their sole aim in instituting the case before us was to re-open and re-litigate the previous case which they had lost. By her own confession, she reached that conclusion by looking at the plaintiffs’ statement of claim and the submission of the defendants as applicants. She then used the case of Nyame v. Kese (supra) to hold that the plaintiffs were estopped from re-litigating the case since it had been decided by a court of competent jurisdiction. We would like to cite again the case of Republic v. High Court, Accra; Ex Parte Aryeetey (Ankrah Interested Party) (supra) and to repeat for emphasis part of what was said in that case: “fraud is a serious sin against the administration of justice; it vitiates everything.
Thus a judgment obtained through fraud can be set aside; and when a judgment is impeached for fraud its legitimacy is put in issue and cannot operate as estoppel per rem judicatem provided the alleged fraud is properly and adequately raised.” Even though Nyame v. Kese (supra) and Republic v. High Court, Accra; Ex Parte Aryeetey (Ankrah Interested Party) (supra) are both Supreme Court decisions, the former pre-dates the latter and by the rules of interpretation,the former is presumed to have been overtaken by the authority of the latter. It was wrong, therefore, for the trial judge to rely on the authority of Nyame v. Kese (supra) to decide that the plaintiffs were estopped from bringing a fresh action in a case where fraud was alleged. Her decision was given per incuriam. Besides, the least she could have done was to have looked at the issues set out by the plaintiffs as a counter-weight to those set out by the defendants/applicants. That would have served as a guide as to whether, indeed, the plaintiffs were only out to re-litigate the old case or to prove fraud. As it was, she took a rather narrow view of the matter and drew conclusions that were neither borne out by the evidence on the record nor supported by the law. As was said by Azu Crabbe, CJ. in the case of Ghana Muslim Representative Council and Others v. Salifu and Others  GLR 246at page 264:
“The court will not permit a plaintiff to be ‘driven from the judgment seat’ without considering his right to be heard, ‘excepting in cases where the cause of action is obviously and almost incontestably bad’: per Fletcher Moulton L.J. in Dyson v. Attorney-General  1 K.B. 410 at p. 419, C.A. And again, as the Lord Justice said later in the same case at p. 420 ‘an order of this kind ought not to be made where there is any reasonable ground for argument as to the maintainability of the action’."
After all, where a plaintiff fails to prove the alleged fraud, the judgment complained about is restored in full and the plaintiff is likely to be mulched in costs. We therefore allow ground F as well.
From all of the foregoing, we allow this appeal in full and set aside the ruling of the trial High Court delivered on the 24th June, 2016. The suit is hereby restored but will be heard by a differently constituted court. The Registrar to carry out.