ACCRA - A.D 2018

DATE:  30 RD APRIL, 2018
SUIT NO:  IRL/40/13


The parties are at id idem that the subject matter of this dispute has been the subject of a previous litigation in Suit No IRL/25/11 in a matter titled Sabat Motors v Pergah Transport. In that Suit No IRL/25/11 1st Defendant took out an amended writ as seen in Ex ‘11’ for:

1. Declaration of title to Plot No 29 Light Industrial area, Ring road, Accra and the building thereon

2. Perpetual injunction against the Defendant [Plaintiff herein] by itself, its personnel, servants, agents and heirs from in any way adversely dealing with the property the subject matter of the suit

3. General damages for illegal occupation of the property of the Plaintiffs [sic], unlawful possession and use.

4. An order by the Court that the Defendants are encroachers who have fraudulently acquired Plot No 29 belonging to the Plaintiffs [sic].


Plaintiff herein entered conditional appearance in that suit as Defendant but failed to take further action. Judgment in default of defence was obtained against him. One Alex Abban, Esq came to set the judgment aside and leave granted for the Plaintiff herein to file its defence to the claim of 1st Defendant herein in that suit. Plaintiff decided not to file a statement of defence nor attend the trial. The action was tried by Barbara Ward Acquah J and judgment granted in favour of 1st defendant herein. Plaintiff appealed against the decision but failed to pursue the appeal. With its options virtually foreclosed regarding the previous suit it commenced this instant action and in the amended writ issued against the 1st Defendant the Plaintiff claims the following reliefs:

a. Order setting aside the judgment in Suit No IRL/25/11 as obtained by fraud.

b. Declaration of title to Plot No 29, Light Industrial area , Ring Road Accra and the building thereon.

c. Order for specific performance on the 1st Defendant to observe the agreement for the sale of land dated 4th July, 2006 and executed between the Plaintiff and the Defendant.

d. Perpetual injunction restraining the Defendant, its assigns, agents and all persons claiming through it from interfering with Plaintiff’s occupation and possession of the property.

e. Order on the Defendant to pay general damages to Plaintiff.

f. Cost on full indemnity basis to Plaintiff.

g. Further (other) order as the court may seem meet.


1st Defendant on the other hand has not only parried the claims of the Plaintiff but has counter claim for the following reliefs:

a)    Declaration of title to Plot No 29 Light Industrial Area Ring Road, Accra and the building thereon.

b)    Perpetual injunction against the Plaintiff company by itself, its personnel, servants, agents and heirs from in any way adversely dealing with the property the subject matter of the suit.

c)    General damages for illegal occupation of the property of the 1st defendant, unlawful possession and use.

d)    An order by the court that the 2nd, 3rd and 4th Defendants are fraudsters who have fraudulently and unlawfully purported to sell property No 29, Light Industrial Area, Ring Road Accra belonging to the 1st defendant to the Plaintiff.

e)    Order against the Plaintiff to surrender and or vacate the property No 29 Light Industrial Area, Ring Road Accra belonging to the 1st defendant.

f)     An order that 2nd, 3rd and 4th Defendant refund the illegal money they have received under the fraudulent transaction to the Plaintiff forthwith with cost.



Plaintiff claim that it had been the sitting tenant of 1st Defendant’s property Plot No 29, Light

Industrial area Ring Road with a decision later by the 1st Defendant to dispose of that property whereupon it was offered the option to purchase that property. To Plaintiff by an agreement for the sale of land dated 4th July, 2006 executed between the parties, the 1st Defendant agreed to sell the said property to him. And that the agreement was executed in the office of 1st Defendant and with its Chief Executive Officer (CEO) then, Patrick Ahadzi. Plaintiff further avers to have paid a substantial part of the purchase price to 1st Defendant’s account with Merchant Bank. Plaintiff contends that 1st Defendant then undertook to transfer title to the name of Plaintiff upon a determination of a suit involving 1st Defendant and Divesture and Implementation Committee (DIC) then pending before the court. To Plaintiff, in wilful breach of the agreement between the parties for the sale, 1st Defendant mischievously caused its lawyers to issue a writ against the Plaintiff for declaration of title to the property. Plaintiff contends that the act of 1st Defendant issuing the writ and obtaining judgment was fraudulent on the basis that 1st Defendant knew or ought to have known that Plaintiff was in legitimate occupation and possession of the property as the beneficial owner and that the judgment was obtained based on fraudulent misrepresentations and hence the reliefs it seeks on the endorsement on the writ of summons.



1st Defendant in a strongly worded response has denied the claims of Plaintiff and has rather claimed that it was 2nd, 3rd and 4th Defendants who without the consent of 1st Defendant conspired with Plaintiff to sell the 1st Defendants property to Plaintiff. It denied having entered into any tenancy agreement with Plaintiff or any agreement to sell the property to Plaintiff since as at the date quoted by Plaintiff 1st Defendant claim that it was then not even the owner of the property as there was litigation over the property. 1st Defendant further contends that whatever sale made between Patrick Ahadzi, then chair of the Board of Directors masquerading as Managing Director was fraudulent and done without the knowledge and consent of 1st Defendant. 1st Defendant took the opportunity to respond to the allegation levelled against it of fraudulent misrepresentation in the judgment it obtained in Suit No IRL/25/2011 by claiming that there was nothing fraudulent about the judgment it obtained as Plaintiff was served with the writ, statement of claim and Plaintiff duly entered appearance to the writ but subsequently refused to participate in the proceedings despite due service of the necessary processes on him. That when judgment was taken against the Plaintiff it later applied for leave to file a defence, which said application was granted but Plaintiff again went to sleep. Judgment was then entered on behalf of 1st Defendant which said judgment was never overturned on appeal. Without specifically mentioning a plea of res judicata in its pleadings it states that “1st Defendant will at the hearing rely on the judgment in Suit No IRL/25/2011”.



The 2nd, 3rd and 4th Defendants on the other hand have all denied the allegation of fraud made against them by 1st Defendant regarding the alleged sale of the property in dispute.



The following issues were set for determination at the application for directions stage:

Whether or not Plaintiff and the Defendant executed an agreement for the sale of the property in dispute.

Whether or not the Plaintiff paid substantial part of the purchase price to the Defendant pursuant to the agreement.

Whether or not at the time the Defendant commenced the proceedings in the Suit No. IRL/25/11 it knew or ought to have known that the property in that dispute had already been sold by the Defendant itself to the Plaintiff.

Whether or not Plaintiff is entitled to his claim

Any other issues raised by the pleadings



Plaintiff testified through its Chief Executive Officer, Kabenla Badoe, Alex Osei Owusu as Pw1 and Frank Boakye Agyin on a subpoena by the Plaintiff, having been a lawyer that represented 1st Defendant in the alleged transaction for the sale of the res litiga. They tendered three crucial documents on behalf of the Plaintiff being one an agreement for the sale of land between Sabat Motors Ltd and Pergah Transport Ltd as Ex ‘A’, a statement of account in the name of Pergah Transport from 2005 to 2007 as Ex ‘B’ and finally a correspondence from Merchant Bank (Ghana) Ltd showing a transfer of an amount of Gh¢205,700.00 as Ex ‘C’. 1st Defendant on the other hand testified through Nelson Kofi Sena and tendered over a dozen documents among which were a letter written by 4th Defendant to Social Security Bank using 1st Defendant’s letter head as Ex ‘1’, writ of summons issued by Sabat Motors against Pergah Transport in Suit No IRL25/2011 as well as proceedings as Ex ‘9’ series, the judgment of Barbara Ward Acquah J in the previous proceedings between 1st Defendant and Plaintiff as Ex ‘9G’, a notice of appeal filed at the Court of Appeal by Plaintiff against the judgment as Ex ‘10’, a ruling by the High Court presided over by Ofori Atta J convicting Reiss Atsu Ahadzi, Uriah Allotey and Nanka Bruce for contempt of court as Ex ‘12’, minutes of the Board of directors emergency meeting on the 22nd of January, 2009 as Ex ‘13’. 2nd, 3rd and 4th Defendants on one hand who put in a joint statement of defence testified through Reiss Atsu Ahadzi.



The question for the determination of the court in this suit is quite straight forward and I have been amazed at the level to which Plaintiff deliberately set out to obfuscate the issues and proceed with the trial as if there has been no judicial pronouncement on the matter before the court. The bases of the claim of Plaintiff in this suit is that the previous suit IRL/25/11 in which 1st Defendant obtained judgment was procured by fraud and therefore ought to be set aside. And I had expected that the one issue for determination of the court would have been as to whether or not 1st Defendant obtained judgment in Suit IRL/25/11 by fraud and it is only when Plaintiff has succeeded in proving fraud that the floodgate as to whether or not there had been a sale by 1st Defendant can be re-opened. Unfortunately what resembled an issue of fraud was somehow disguised and subsumed under issue 3 in the application for directions as to whether when 1st Defendant commenced action in Suit No IRL/25/11 1st Defendant knew the res litiga to have been sold to Plaintiff. Until Plaintiff has satisfied the court that the decision of Barbara Ward Acquah J obtained by 1st Defendant was fraudulent, it would be needless for the court to go down the very road trodden by the parties by resurrecting the very issues that a court of competent and co-ordinate jurisdiction has exhaustively dealt with.


And throughout the trial Plaintiff went about its evidence as if this is totally a fresh trial by tendering Exhibits ‘A’ to ‘C’ and calling witnesses including Frank Boagye Agyen, who was subpoed to testify of some negotiations the parties engaged in leading to an alleged sale. That course that Plaintiff took and which was a bait which 1st Defendant fell for it is totally not permissible. This is based on the principle clearly stated by Francois JA in the case of BRETUW v AFERIBA [1984-86] 1 GLR 25 at holding 2 as follows:

“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 …”.

See also the judgment of the Supreme Court in OKWEI NOI MENSAH ALIAS MENSAH MAMFE (DECD) ACTING BY ADUMUAH OKWEI v LARYEA [2011] SCGLR 317.


This action took on the nature of a re-hearing as if this court was a court of appeal presiding over the review and correctness of the decision of another High Court.

For Plaintiff and 1st Defendant having sinned against this principle this court will only be guided by the admonition supra and my task would be to focus on the first claim of the Plaintiff that he seeks in this court for an order to set aside the judgment in Suit No IRL/25/11 as obtained by fraud. Interestingly counsel for Plaintiff in his closing address even omitted to state this first relief in his address as one of his reliefs when same is clearly borne out from the writ originally filed as well as the amended writ.


As the authorities are settled that a judgment obtained by fraud is no judgment at all and to succeed in setting aside the judgment alleged to have been obtained by fraud, the facts alleged must be proved to amount to fraud and the judgment under attack would automatically be affirmed upon failure to prove the charge of fraud. So if Plaintiff fails to prove fraud the judgment subsisting over Plot 29, Light Industrial will stand unimpeached and whether there was a sale or not would not be delved into for a second time.

In DR. APPIAH POKU v KOJO NSAFOA POKU [2011] 1SCGLR 162 Atuguba JSC noted on fraud as follows:

“It is an entrenched trite principle of law that fraud unravels everything and that a judgment obtained by fraud can be impeached by fresh action. One such encumbrance which is relevant to the facts of this case is the necessity to exercise diligence at the first instance”.

Dr. Twum JSC in the case of BROWN v QUARSHIGAH [2003-2004] 2 SCGLR 930 and at 946 stated as follows:

‘at common law a charge of fraud is such a terrible thing to bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’


The standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:

‘In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.


What is the allegation of fraud made by Plaintiff and what was the evidence in support of same to be entitled to set aside the judgment of Barbara Ward Acquah J? Plaintiff particularize what he deems to be incidents of fraud in Suit No IRL/25/11 at paragraph 14 of its amended statement of claim as follows:

i. Executing the agreement aforesaid with the Plaintiff for the sale of the property to the Plaintiff

ii. Receiving money from the Plaintiff pursuant to the sale of the property to the Plaintiff

iii. Defendant instituting action for the recovery of possession when it knew it had actually disposed of the said property to the Plaintiff as per the agreement dated 4th July, 2006”


Does even a cursory look at this particulars strike one that this could constitute fraud? It became clear during the cross examination as to what Plaintiff claim to be fraud perpetuated against him when Kabella Badoe the Chief Executive Officer of Plaintiff came under cross examination from A. A. Kwakye, Esq of blessed memory, in the following:

“Q: Mr. Badoe, you said Sabat Motors brought action against you seeking declaration that the property you are occupying belongs to it, did you receive the writ and statement of claim of the said action

A: My Lord we receive the writ and forwarded to our lawyers

Q: And you know do you not know that your lawyers entered conditional appearance as Ex ‘9B’ refers

A: Yes My Lord

Q: And they never took further action not so

A: Yes My Lord

Q: Then the case proceeded in accordance with the Rules and practice of the High Court, not so?

A: Yes My Lord

Q: And in the course of the proceedings your lawyer appeared and sought permission to be allowed to formally come into the case to represent your interest, are you aware of that

A: Yes My Lord

Q: He was permitted to do

A: Yes My Lord

Q: Then he failed to come back properly as required by law and practice not so

A: Yes My Lord

Q: So the High Court proceeded to hear the case and gave judgment in favour of Sabat that the property belonged to Sabat not so

A: Yes My Lord

Q: And it is this judgment we obtained you have brought us to Your Lordship to be set aside on the grounds that we have defrauded you is that not so?

A: Yes My Lord

Q: Just because we have come to court to say that the property belong to us and that we have not sold it to you we have perpetuated fraud is that not so?

A: Yes My Lord

Q: I am putting it to you that Sabat Motors had not defrauded you in bringing the case to court to seek declaration that the property belong to Sabat.

A: My Lord from Pergah’s point of view it was defrauding. Pergah entered into an agreement with Sabat Motors. Pergah took a loan to pay the property to Sabat motors in accordance with the agreement”.


Clearly, as A. A. Kwakye, Esq., dissected the entire of claim of fraud of Plaintiff in the cross examination of Plaintiff’s representative that the basis of fraud allegation is that their lawyers failed to diligently defend them in Suit No IRL/25/11 and having lost that action and going on appeal and failing to pursue the appeal, the Plaintiff appears to harbour the thinking that it was entitled to come back at its own pleasure because in its view it has a good case. Plaintiff is not saying he was not served with the writ nor the judgment obtained was without his knowledge but that it had the option to refuse to come to court and after exhausting his right of appeal can turn round to claim fraud against 1st defendant. Is this proof of fraud? Does the above exchanges meet even the civil burden let alone the criminal standard of proof beyond reasonable as required by law for an allegation of fraud to be proved.

It would be a tragedy of monstrous proportion for a judgment of a court to be set aside on grounds of fraud simply because a party had grossly been negligent in defending its cause and with judgment obtained against him now choose to come to court at his own time to shout that he was now ready to be heard and therefore the court should set aside the previous judgment. The evidence of Pw1, Alex Osei Owusu, a lawyer under cross examination, showed a calculated attempt to evade questions whiles prevaricating on several occasions. A few instances on record will suffice:

“Q: Did you or did you not know as a fact that Sabat Motors brought action against Pergah Transport claiming the property against your company

A: My Lord I am aware

Q: Was it your firm that entered appearance in that case on behalf of Pergah Transport?

A: My Lord I am aware Lawyer Abban conducted a case but as to whether the case was conducted from Akufo Addo Prempeh & Co or from present firm, Cardinal Law Firm, I will have to refresh my memory.

Q: Have a look at Ex ‘9B’

A: Yes My Lord

Q: Were you in any way involved in that?

A: My Lord the cases firm brief executed by lawyer Alex Abban on behalf of the firm; Akufo Addo Prempeh &


Q: Do you know or do not know that as a fact that even though these appearance made by Akufo Addo Prempeh & Co was conditional, the Plaintiff never pursued their conditional appearance. Are you aware of that?

A: My Lord the Plaintiff in this matter is Pergah Transport and Sabat Motors are the Defendants”.


This is startling. A firm of lawyers who have come to court to set aside a judgment are now feigning little knowledge of the very suit they are here to set aside and deliberately evading direct questions. Further cross examination of Pw1 exposed more of the calculated attempted to be economical with the truth as the following also shows:

Q: Are you aware that Pergah Transport entered conditional appearance

A: I cannot recall

Q: I put it to you that the Solicitors who appeared to file conditional appearance for Pergah Transport as Defendant, did not pursue the case.

A: My Solicitor who was personally responsible for the conduct will be able to react to this. So I don’t know.

Q: Do you know or do you not know that the Plaintiff pursued the case to the end and obtained judgment in the case against Pergah Transport for ownership and title of the property in dispute.

A: My Lord I aware of the status of present case in reaction to Suit No IRL 25/11 to the extent that present case is seeking to impeach the purported judgment of Suit No IRL 25/11”.


The above exchanges being another example of evasive answers and pretence of lack of knowledge of the previous suit by Pw1 who had played a pivotal in the past dealings of Plaintiff. The question is how can a lawyer give evidence to impeach a previous judgment when he pretend not to know what transpired in the previous suit. It is only a proper appraisal of the proceedings and the judgment in the previous suit that will inform any diligent person of the need to impeach a judgment. A judgment is not impeached in court simply because a party does not like the outcome and took the option not to come to court. ‘I don’t recall’, ‘I don’t recall’ as answers to obvious questions asked Pw1 shows how he was evasive with his answers regarding the previous suit. Section 80 of the Evidence Act, NRCD 323 list among others factors for impeaching the credibility of the testimony of a witness to be the ability of the witness to recollect, perceive and relate events. And this Pw1 failed woefully before the court. Time and space perhaps will not permit me to further expose the evidence of Pw1 as not credible beyond what I have demonstrated. The standard of the burden cast on Plaintiff was to have proved the allegation of fraud beyond reasonable and failing woefully to do so even by the civil standard of preponderance of probabilities. On the other hand Exhibit ‘9’ series is a testament to what transpired in the previous action between Plaintiff and 1st defendant where there was a trial of the action being an action involving land even when Plaintiff was granted leave to file a defence and he failed to do so. If a judgment had been obtained in court not on the blind side of a party but was aware of the proceedings but ignored it behaving like the ostrich burying its head in the sand, it is totally reprehensible for such a party to allege fraud as if fraud is made out lightly. Plaintiff has been completely indolent and negligent and I have never come across a judgment that has been set aside as a result of indolence. And such laxity cannot crystallize into fraud. Plaintiff’s claim accordingly collapses and I dismiss all the reliefs of Plaintiff endorsed on the writ it issued.



1st Defendant per its amended statement of defence has a counter claim first against Plaintiff and then

2nd, 3rd and 4th Defendants jointly and severally. It is the law that a counter claim is a separate and independent action and the Defendant is under the same obligation to discharge its burden as if he were Plaintiff. In the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 Dotse JSC noted as follows on the effect of counter claim as follows:

‘whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’


Similar rendition was also noted by the Supreme Court in the case of JOSEPH AKONU BAFFOE v

LAWRENCE BUAKU J4/6/2012 by Julius Ansah JSC that:

“In essence a defendant’s counter claim is treated in the same way as the plaintiff’s case. The roles are reversed and the defendant (as plaintiff in the counter claim) assumes the burden to prove his case. In effect because a counter claim has the nature of an independent action…”

See also the following cases: NII ODOI KWAO ASUMANG & 2 ORS. v. WILLIAM SOWAH

CHARWAY & 14 ORS. [2014] 75 GMJ 108, CA at p. 135; J.K.KPOGO v. F.K. FIADZORGBE, Civil Appeal No. J4/9/2012, dated 6thMay, 2015, FOSUHENE v. OWUSU [2011] 32 GMJ 163.

How was 1st Defendant able to satisfy the test in respect of its claim against Plaintiff and then the 2nd to 4th Defendants?


First the claim against Plaintiff. 1st Defendant seeks among other reliefs against Plaintiff a declaration of title to Property No 29, Light Industrial area, perpetual injunction, etc. 1st Defendant had been to court in suit No IRL25/11 seeking the reliefs of declaration of title to Plot 29, Light Industrial area, perpetual injunction etc. Barbara Ward Acquah J gave judgment in favour of 1st Defendant granting it the reliefs. This judgment has not been set aside as fraudulent. In other words the said judgment is valid and operating. So if the High Court has granted a valid judgment in favour of 1st Defendant how come the same successful party is urging the court to make the same declarations and pronouncements that it had made through another High Court. The courts do not speak in vain and repetitive declarations and pronouncements is not what makes an order of a superior court efficacious. A court declares and decrees and it is for the successful party to execute the judgment. Any further declarations will not fulfil any declarations of Barbara Ward Acquah J. as it is needless to make another such decrees. The reliefs a, b and c that 1st Defendant seeks against plaintiff in its counter claim for the reasons just provided is dismissed as superfluous. The justice of the case however demands that I grant relief e for an order for recover of possession in favour of 1st Defendant.



On hindsight I confess that did err by granting a motion for joinder of 2nd, 3rd and 4th Defendants to this suit. The reasons are not far-fetched. Being a suit by Plaintiff to set aside a previous judgment contested between the Plaintiff and 1st Defendant that was the sole issue in contention and not the opening of the floodgates as if the issue of the legitimacy of the alleged sale was before the court. That had been determined in the previous suit. Accordingly for the reasons given for the dismissal of the counterclaim for a declaration against Plaintiff the relief d of the counterclaim of 1st defendant against 2nd to 4th Defendants for a declaration that they are fraudsters would be declined as 1st Defendant had the opportunity to have brought all its case in the previous suit but not to be bringing them piecemeal. See the principle in HENDERSON v HENDERSON [1843] 114 HARE. Again I fail to appreciate the relief f of the counter claim of 1st Defendant for an order that 2nd, 3rd and 4th Defendant refund the illegal money they have received under the fraudulent transaction to the Plaintiff forthwith with cost. Why should 1st Defendant attempt to moan more than the bereaved? 1st Defendant is not a party to the alleged payment between 2nd to 4th defendants and that of the Plaintiff. At least Barbara Ward Acquah has found that there was no sale. So why would 1st Defendant be desirous of seeking to collect Plaintiff’s money for him. Plaintiff is competent to recover its money from whosoever collected the monies and I dismiss relief f of the counter claim as 1st defendant lacks the locus to demand a refund of the monies of Plaintiff. Save for relief e of the counter claim of 1st Defendant which is granted the court dismiss the entire claim of Plaintiff and the counter claim of 1st Defendant.



Award of cost is always at the discretion of the court and the principles are governed by those set out in Order 74 Rules 2 and 3 which states as follows:

“2(3) without prejudice to the powers and discretion of the court, an award of costs shall ordinarily be designed to

(a) Compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made; and

(b) Provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer.

(4) In assessing the amount of costs to be awarded to any party, the court may have regard to

(a) the amount of expenses , including travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings;

(b) The amount of court fees paid by that party or that party’s lawyer in relation to the proceedings.

(c) The length and complexity of the proceedings;

(d) The conduct of the parties and their lawyers during the proceedings; and

(e) any previous order as to costs made in the proceedings”.


I take into consideration the frivolous nature of the claim of Plaintiff who had lost an action and think he can resurrect the same issue before the court by masquerading it as setting aside a judgment for fraud, the chequered history of the suit having been transferred to this court as the Judge who was conducting the trial was swept away in the Anas scandal, the number of adjournments that this suit has suffered before the court, the cost visited on 1st Defendant to defend this action and think it fair to award cost assessed at Gh¢20,000.00 in favour of 1st defendant against Plaintiff.


On the other hand as there was no need for 1st Defendant to have put 2nd to 4th defendants to any expense to defend the counter claim against them, I will award cost of Gh¢5,000.00 against 1st Defendant in favour of 2nd, 3rd and 4th Defendants.