KUMASI - A.D 2015
ALBERT FYNN - (Defendant)

SUIT NO:  TOCC/157/15

By his amended writ of summons and statement of claim filed on 24/05/2011, the Plaintiff herein claimed the following reliefs :


A declaration that Defendant Fraudulently obtained Judgment in suit Number C2/368/08 titled SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD VRS 1. JOHN FREEMAN DONKOR 2. AGYIN when defendant represented that SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD was a creature known in law when the said company was unknown to company law regime in Ghana


A declaration that the said SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD had no capacity in law to have instituted the said action in suit C2/368/08.


Setting aside judgment obtained by fraud in the said suit C2/368/08 and all its consequential orders.




Simply put, the case of the Plaintiff was that he was sued at the High Court in Kumasi in a suit entitled SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD v. 1. JOHN FREEMAN DONKOR and 2. Agyin Suit No: C2/368/08. Judgment was entered in favour of the said SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD on 23/11/09. It was the Plaintiff's case that the said judgment was obtained by fraud, and he gave particulars of fraud as set out below:


SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD is not registered with the Registrar - General's Department as a company Limited by Shares


Defendant represented himself as Managing Director of SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD knowing very well that the said company was unincorporated.


The Plaintiff went on to say that SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD had no capacity to institute the said action and that the Writ of Summons and subsequent judgment obtained on 23/11/09 was procured by fraud and same is void, and ought to be set aside.




In his statement of defence filed on 22/11/10, the Defendant admitted that he was a Director of the company in issue in whose favour judgment was entered, but denied the allegation of fraud and the particulars there under. The Defendant further averred that the Plaintiff is not entitled to the reliefs sought, and counterclaimed as follows:


An order for recovery of an amount of GH¢37,320.00 being outstanding balance of monies plaintiff collected from defendant for purposes of renovating his hotel out of a total amount of GH¢44, 625.00


Interest on the said sum at current bank rate


Damages for breach of contract.


At the application for directions stage the court (differently constituted) adopted the issues filed on 22/12/10 and the additional issues filed on 18/01/11, as the issues set down for trial, namely:


Whether or not Defendant represented himself as the Managing Director of Small Scale Assistance Company Ltd in suit no. C2/368/08?


Whether or not Managing Director of Small Scale Assistance Company Ltd is registered under the laws of Ghana as a company limited by shares?


Whether or not Small Scale Assistance Company Ltd had capacity to institute suit no. C2/368/08 ?


Whether or not the judgment in suit no. C2/368/08 was obtained by fraud?


Whether or not the Defendant's counterclaim is statute barred?


Whether or not Defendant is estopped per rem judicatam from re-litigating matters in suit no. C2/368/08?


Whether or not Defendant is entitled to his counterclaim?


Whether or not there was any suit between Plaintiff and Defendant titled suit no. C2/368/08?


Whether or not estoppel per rem judicatam were applicable to this case?


Whether or not the issue of plaintiff's capacity was tenable even though plaintiff had filed a defence and never challenged same?


. Whether or not the plaintiff whose hands are tainted could rely on fraud to avoid liability?


Whether or not at the current stage or process of execution reached by the defendant, this honourable court could exercise its discretion in favour of plaintiff?


I see the issue of estoppel per rem judicatam as very crucial at this point. The law is that such an issue must always be determined first before taking evidence on the merits. Unfortunately, in the instant case, evidence has already been taken but that does not preclude the court from singling out that issue for determination before going into the merits of the case, if necessary. Indeed, in Appiah v Addai (1962) 1 GLR 345 SC, the court took the view that where a defendant does not even plead estoppel, but the Plaintiff's statement of claim indicates the existence of a valid arbitration (if i may add, judgment), then the issue of estoppel should be dealt with before evidence on the merits of the case. In that case, the Supreme Court ruled that the local court erred not only in basing its decision on the alleged weakness of defendant's case, but also by their failure to determine the essential issue of estoppel pleaded by the defendant


Counsel for the Plaintiff in the instant case conveniently limited his closing arguments on this issue as it pertains to the Defendant's counterclaim. He argued that since the Defendant has already obtained judgment in respect of the reliefs sought in his counterclaim, he cannot seek the same reliefs at this forum. Counsel cited and relied on Dzidzenyo v Tsaku & Ors (2007/2008) SCGLR 531 where the court held thus:


It is well settled under the rule of estoppel that, if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot bring an action on the same claim or issue...


Other judicial authorities which counsel invited the court to consider are : (i) DAHABIEH V SA TURQUI & BROS (2001-2002) SCGLR 498; (ii) In Re Sekyedumase Stool : Nyame v Kesse aka Konto (1998-99) SCGLR 476 at 478.


For the Defendant, Counsel spent ample time on the issue of fraud, which is his view has no place here at all, in the sense that no such fraud was ever perpetrated on the Plaintiff herein. He invited the Court to dismiss the Plaintiff's claims as the same have been brought in bad faith.


It is not in dispute that a suit commenced at the High Court, Kumasi, titled SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD v 1. JOHN FREEMAN DONKOR 2. AGYIN Suit No. C2/368/08, was determined on its merits to the knowledge of the parties to the instant suit, who participated in the trial in different capacities. It is also not in doubt that the appeal against the Plaintiff in suit no C2/368/08 at the Court of Appeal, Kumasi, by the Defendant therein was determined in its favour.


The Court of appeal judgment was exhibited by the Defendant in the instant case to his witness statement as exhibit " AFCD 5" In exhibit " AFCD 5", the Learned Justices quoted the first ground of appeal and the arguments in support of the same at pages 3 and 4 thus:


"The learned Trial Judge erred in law in giving effect to an illegal transaction"


Counsel for the Defendants argued that the purported loan transaction between the Plaintiff and the Defendants was illegal and ought not to have been given judicial blessing because;


(a) The Plaintiff was not a registered company and so had no capacity to transact business as a company; and

(b)The Plaintiff lacked capacity to issue the writ in a capacity it did not have".


The arguments canvassed by Counsel for the Plaintiff/ Respondent therein are contained in page 6 of exhibit "AFCD 5" as follows:


The answer of Counsel for the Plaintiff in respect of the arguments and submissions supra was very short. Counsel argued that it does not lie with the Defendants to raise the capacity of the Plaintiff at this stage even though capacity can be raised at any time even on appeal. The reason being that the defendants did not challenge the capacity of the Plaintiff, no documents were tendered, which is on record in respect of the registration of the Plaintiff's company and there was no evidence led to show that the Plaintiff was not a registered company.


Counsel further argued that the onus is on the Defendants who are raising the issue of capacity to have proven that on the balance of probabilities that the Plaintiff was not registered as a company at the trial as this court cannot know whether the plaintiff was registered as a company or not..."


After considering the numerous arguments advanced by both counsel, their Lordships expressed their unanimous view on pages 7 to 9 of exhibit " AFCD 5" and dismissed that ground of appeal thus:


... It is clear from the above excerpts from the record that the issue of capacity of the Plaintiff was put to rest after counsel for the Defendants had satisfied himself that the Plaintiff has been certified as an incorporated company under the laws of this country. However, we observed from the cross-examination of counsel for the Defendants in respect of the Plaintiff's representative that he kept using the words "company", 'proprietor" and "director' anyhow without appreciating their legal impact and implication. ..


Therefore, we find it mischievous on the part of counsel for the Defendants to turn round and attempt to use answers which he had solicited from the Plaintiffs out of the confusion counsel himself had created. In the absence of the Certificate of incorporation before us, we are unable to agree with Counsel for the Defendants that the plaintiff had no capacity when from the record of appeal Counsel had the opportunity , as well as, the trial court to see it."


The Court of Appeal also considered ground (ii) which reads (see page 12 of exhibit AFCD 5):


"The Learned Trial judge erred in permitting the Plaintiff to benefit from its fraudulent act"


After considering all the submissions made by both counsel, the Court of Appeal made its findings and conclusions, disbelieving the allegation of fraud. These are contained in pages, 13 to 18 of exhibit "AFCD 5". All the remaining grounds of appeal were dismissed.


After losing miserably at the Court of Appeal, the Plaintiff herein has again raised the issue of "capacity" and "fraud" before this court in a fresh action, using the same arguments which he had advanced at the Court of Appeal. Flowing from the above, what are the legal implications? A thorough discussion of the law on estoppel per res judicata will be useful at this point.


The plea of res judicata can be invoked in respect of any final judgment delivered by a judicial tribunal (or court) of competent jurisdiction. In Nyame v Kese ( 1998/99) SCGLR 476 at 478, Acquah JSC (as he then was) quoted with approval the explanation by Spencer-Bower & Turner in their book RES JUDICATA (2nd ed.) at page 9 , para 9 thus:


Where a final decision has been pronounced by ... a judicial tribunal of competent jurisdiction over the parties to, and subject-matter of litigation, any party or privy to such litigation, as against any other party or privy thereto... is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim."


His Lordship further explained the principle at pages 478 to 479 of the report thus:


The plea of res judicata really encompasses three types of estoppel: cause of action estoppel, issue estoppel in the strict sence, and issue estoppel in the wider sense. In summary, cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their previes) are the same in both current and previous proceedings. In contrast, issue estoppel arises where suc a defence is not available because the causes of action are not the same in both proceedings. Instead, it operates where issues, whether factual or legal, have either already been determined in previous proceedings between the parties (issue estoppel in strict sense) or where issues should have been litigated in previous proceedings , but owing to "negligence, inadvertence, or even accident", they were not brought before the court ( issue estoppel in wider sense), otherwise known as the rule in Henderson v Henderson..."


I also wish to bring on board the case of AGYILIHA V TAYEE (1975) 1 GLR 433 (holding 1) where the Court stated:


"under the doctrine of defence of estoppel, where a final judgment had been given in an action, a court would have no jurisdiction and it would not permit the same parties to re-open the subject-matter of the litigation in respect of matters decided in the previous action unless so empowered by statute. However, where the validity of a previous judgment was put in issue either on grounds of fraud or lack of jurisdiction, the previous judgment could not be a bar to the subsequent proceedings. (emphasis added)


My observations in the instant case are that, first, the Plaintiff herein was not precluded from conducting a search at the Registrar General's Department when he was a Defendant in the earlier suit, before admitting the capacity of the Defendant . He was duly represented by Counsel and in fact made admissions of facts bothering on the capacity of the Plaintiff therein, and which were also endorsed by the Court of Appeal. Second, the issue of fraud perpetrated by SMALL SCALE FINANCIAL ASSISTANCE LTD or its privies has also been dealt with by the Court of Appeal. The defendant in the instant suit was at all times material the representative of the said SMALL SCALE FINANCIAL ASSISTANCE LTD during the trial of the earlier suit as clearly captured in paragraph 4 of the amended statement of claim filed on 24/05/11.


I therefore find that since the issues of "fraud" and "capacity" have already been determined by the appellate court in Civil Appeal No: H1/37/2012 which arose from suit No. C2/368/08 between SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD and JOHN FREEMAN DONKOR & ANOR, this court is precluded from entertaining the instant action which is clearly based on the same issues. As Coussey JA put it in Basil v Honger ( 1954) 14 WACA 569 at 572: " The plea of res judicata prohibits the court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the court.


In conclusion, i will advert my mind to, and also invite the Plaintiff herein to ponder over what the court said in RE YENDI SKIN AFFAIRS; ANDANI V ABDULAI (1981) GLR 866 per JIAGGE JA, endorsing the statement of Lord Denning M.R. in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb [1965] 2 All E.R. 4 at pp. 8-9, C.A. as follows:


“The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause . . . But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances.”


Their Lordships further observed as follows:


"The parties to litigation are required by the court to bring forward their whole case. The court will not permit the same parties or their privies to open the same subject-matter of litigation in respect of a cause already adjudicated upon by a court of competent jurisdiction except in certain special circumstances. If the parties through negligence, inadvertence or even accident omitted part of their case and the cause was adjudicated upon and disposed of by a court of competent jurisdiction, estoppel per rem judicatam will operate against the parties and their privies, not only in relation to matters actually dealt with in the judgment, but also those which ought to have been brought up then but were not."


By reason of the fact that issues raised by the Plaintiff in his amended statement of claim, and by the defendant in his counterclaim have already been determined by a court of competent jurisdiction, the court is precluded from entertaining the instant action.


In the circumstance, I will dismiss the Plaintiff's suit as well as the defendant's counterclaim, and the same are hereby dismissed.