IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
FERYUST LTD - (Plaintiff/Respondent)
OHENE AGYEKUM ALIAS 2 GUYS - (Plaintiff/Applicant)
DATE: 14TH JANUARY, 2019
SUIT NO: C1/17/20110
JUDGES: FRANCIS OBIRI (HIGH COURT JUDGE)
CHARLES AGBANU FOR RESPONDENT
KWAME ADOM APPIAH FOR APPLICANT
On 8th November, the defendant/applicant hereinafter called the applicant filed the instant application through his counsel. The gravamen of the application is that, the plaintiff action should be dismissed for being an abuse of the court process. The application is supported by affidavit. The main contention of the applicant can be found in paragraphs 6, 8 and 9. I will quote them in this ruling.
(6) That I have been advised and verily believe same to be true that, the plaintiff, having pleaded fraud in order to challenge and have a consent judgment entered in my favour set aside, he is not permitted to set up any other reliefs in this particular suit except on the issue of fraud and fraud only.
(8) That I am advised and verily believe same to be true that, until and unless the valid consent judgment entered by the High Court in 2002, Exhibit OA is set aside, a court of coordinate jurisdiction lacks jurisdiction to make pronouncement or orders to adversely affect the potency of Exhibit OA2.
(9) That I am advised and verily believe same to be true that, the plaintiff having put in several other issues apart from the one touching on fraud, the writ sins against the time honoured principle that when a judgment is challenged on the basis that it was procured by fraud, the court is not entitled to entertain any other issue but that of fraud alone. The motion was moved on 18th December 2018. Counsel for the applicant in moving the motion relied on the motion paper and the supporting affidavit. He also relied on decided authorities including the case of Okwei Mensah (deceased) (Acting by Adumuah Okwei V Laryea (deceased) Acting by Ashieteye Laryea (deceased) & Anor (2011) 1 SCGLR 317.
He contended that, since the plaintiff did not limit his reliefs to only the issue of fraud in respect of the consent judgment but added other reliefs, the plaintiff has abused the court process. Therefore, the writ should be struck out or dismissed.
He also attached exhibits to the application and referred to them in his submission. I have gone through the exhibits, the application and all the processes filed in this case.
The application was filed on 8th December 2018. The plaintiff/respondent hereinafter called the respondent counsel was served on 8th November 2018 as per the affidavit of service commissioned on 9th November 2018. He did not file any affidavit in opposition. It does not however, mean an automatic grant of the application.
In the case of Amidu (No) V Attorney General, Waterville Holdings and Woyome (No1) (2013-2014) 1 SCGLR 112, the Supreme Court held per Dotse JSC, as follows: “The duty of a trial court judge or magistrate is to ensure that, cases brought up before them are not only legitimate but, based on sound principles of law. A trial judge or Magistrate is not to accept, hook, line and sinker claims brought before it on the basis that the defendants have not put up a defence. A court must therefore examine the documents before her and interrogate the issues before granting a relief. The court should not be in a haste to grant a relief without critically examining the documents before her. This applies to even ex-parte motion which is one sided”.
I will use the same legal lenses as admonished above to examine this application.
I have seen from the endorsement by the respondent that apart from the relief that the consent judgment should be set aside on grounds of fraud, he has added other reliefs. Now the issue is as to whether same should lead to the dismissal of the plaintiff writ of summons.
It is trite that, a consent judgment obtained before a court of competent jurisdiction can be set aside on grounds of fraud, mistake or any vitiating factor; regardless of its finality.
Therefore, if a High Court gives a consent judgment, a fresh action before a High Court will lie to impugn the consent judgment on grounds of fraud, mistake or other vitiating factors, it is therefore not a matter of appeal.
See: Republic V High Court (Commercial Division) Accra Ex-parte, The Trust Bank Ltd (Ampomah Photo Lab Ltd & 3 Ors Interested parties) (2009) SCGLR 164.
Therefore, if the respondent contention is that, the consent judgment was obtained by recourse to fraud then, he can issue a fresh action before a court of coordinate jurisdiction to have it set aside.
It is trite that, the High Court can terminate a trial when it is frivolous vexatious or abuse of court process etc. under order 11 rule 18 of C 147. However, it has been held by a number of authorities that such discretion is to be exercised sparingly and with extreme care. It must also be a clear case where the action is clearly unsustainable, plain and obvious that it is beyond doubt frivolous and vexatious. It must also be shown that, an amendment could not cure the defect in the pleadings or the endorsement to cloth the court with jurisdiction to entertain it.
See: Gbenartey & Glei V Netas Properties and Investment & Ors. (2015-2016) 1 SCGLR 605. Jonah V Kulendi & Kulendi (2013-2014)1 SCGLR 272 SC Okofo Estates Ltd. V Modern Signs Ltd & Anor(1996-1997) SCGLR 224
In this case, the plaintiff has pleaded fraud in respect of the consent judgment which the defendant has denied. It has been set down in the application for direction filed on 13th November 2013 for determination as issue “C”.
Fraud is such a serious matter that when it is raised before a court, it should be investigated by evidence and the proceedings vacated if it is proved. It does not matter whether it is judgment, pleadings etc.
See: Dzotepe V Hahormene III (1987-88) 2 GLR 681.
Mass Products Ltd V Standard Chartered Bank & Anor (2014) 69 GMJ 39 SC.
An allegation of fraud goes to the root of every transaction. A Judgment which is obtained by fraud passes no right under it.
A denial of allegation of fraud raises triable issue which a court cannot determine summarily.
See: Okofo Estates V Modern signs Ltd (supra).
I have also indicated that, a case or pleadings will be struck out where amendment cannot cure the defects. In this case, the plaintiff writ can be amended to cure the defect the applicant has raised.
In some instances, a court can even amend a relief or a title of a case suo muto where such relief has not been asked for by a party.
See: In Re Asamoah (deceased) Agyeiwaa & Anor V Manu (2013-14) 2 SCGLR 909.
In Re Gomoah Ajumako Paramount Stool; Acquah V Apaa & Anor (1998-1999) SCGLR 312
Again, in practice, even if fraud is raised with other issue(s), the court will determine the issue of fraud first, before it will proceed to examine the other issue(s).
This is because; if it is successful, the other issues may not even be considered at all.
It has also been held that, the rules of procedure should be treated as a handmaid and not a mistress to ensure substantial justice in each case. There should also be flexibility in enforcing the rules of court in terms of procedure to ensure justice in all cases.
See: Halle & Sonns AS V Bank of Ghana (2011) SCGLR 378.
Awuni V West African Examination Council (2003-2004) 1 SCGLR 471
Luke Mensah V Attorney-General (2003-2004) 122
The applicant contention that the respondent cannot ask for any other relief apart from the issue of fraud appears to be his rock of Gibraltar upon which this application is founded. I searched through the legal anatomy of this country and came across the same issue which was raised before the Supreme Court.
In SIC Insurance Co. Ltd V Ivory Finance Co. Ltd. and Ors (2018) 121 GMJ 69, the issue before the Supreme Court was as to whether, a trial judge erred when he disposed the plaintiff case when issue of fraud based on consent judgment was raised in addition to other reliefs. And it is the same contention that the applicant is making in this application. The Supreme Court referred to the Okwei Mensah case (supra) but added that, it is not so fundamental error if a party adds other reliefs to deny a court the opportunity to proceed with the case and hear it on its merits. The facts in the SIC Insurance Co. Ltd V Ivory Finance Co. Ltd & 4 Ors (supra) falls on all fours with the present application.
I am bound by the decision in the SIC Insurance Co. Ltd V Ivory Finance Co. Ltd (supra) by the principle of stare decisis. From the above rendition, I therefore hold that, the court can go ahead and determine the merits of the case. The application fails as a result and same is dismissed.
(HIGH COURT JUDGE)