JOHNSON VRS. QUAYE AND ANOTHER (GJ/0523/2023) [2024] GHAHC 120 (22 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION) ACCRA HELD ON FRIDAY, THE 22ND DAY OF MARCH, 2024 BEFORE HIS LORDSHIP JUSTICE PATRICK BAAYEH (J), SUIT NO. GJ/0523/2023 REGINA JOHNSON @ REGINA TORSHIE JOHNSON - PLAINTIFF/RESPONDENT VRS. 1. ASIKU @ IBRAHIM ASIKU QUAYE 2. SUMAILA ASIKU @ SUMAILA QUAYE DEFENDANTS/APPLICANTS JUDGMENT This is an appeal from the judgement of Her Worship MERCY A. KORTEI (as she then was) sitting at the Kaneshie District Court in a judgement dated 14th June, 2011. The facts giving rise to this appeal are that, the Plaintiff/Respondent (now referred to as Plaintiff) issued a Writ of Summons against the Defendants (now referred to as Defendants) on 28th February, 2008 for several reliefs endorsed therein. These are; (A) Against the 1st Defendant, his children, assigns and agents/servants; (i) Recovery of rent arrears of ¢4,100,000 (now ¢410) being rent arrears from September 2004 to January 2008. (ii) Interest thereon at the prevailing bank rate. (iii) Mesne profit (iv) Eviction and recovery of the premises. (B) Against the 2nd Defendant; (i) Injunction restraining the 2nd defendant from continuing with the construction works he has started on Plaintiff’s land. 1 | P a g e (ii) Perpetual Injunction against the 2nd Defendant, his servants, agents and assigns from dealing with the Plaintiff’s land in anyway whatsoever. (iii) An order to demolish the said construction. (iv) Damages for trespass. At the end of the trial, the learned Magistrate gave judgment for the Plaintiff on all her claims and awarded ¢600.00 for the Plaintiff against 2nd Defendant as General Damages. The Judgment of the trial court is found on pages 59 to 71 of the Record of Appeal. On 15th July, 2011 the Defendants filed a Notice of Appeal. Subsequent to the appeal, the 1st Defendant passed on to eternity leaving only the 2nd defendant as the sole Appellant. It appears soon after the judgment and the filing of the Notice of the Appeal, parties went to bed until sometime in 2022 when the Plaintiff sought to execute the judgment. The record of proceedings show that the Defendant(s) filed two grounds of appeal that; (a) The Ruling was a wrong use of direction. (b) Further grounds of appeal will be filled. However, there is nothing on record to show that the Defendant(s) filed further or additional grounds of appeal. In arguing the appeal, Counsel for the Defendant(s) completely abandoned his sole ground of appeal and rather submitted that the judgment was procured by fraud and therefore ought to be set aside. Further that the learned Magistrate did not attach the proper weight to the evidence of the Defendants. As I have indicated above, the Defendant(s) did not file any or further grounds of appeal for determination therefore the only ground of appeal is that “the Ruling was a wrong use of direction”. It has been heard in a plethora of cases that appeal is by way of rehearing especially where the Appellant says the judgment is against the weight of evidence. In the case of MRS. ELIZABETH OSEI (substituted by) PORTIA GILLARD VS MADAM ALICE EFIA KORANG Civil Appeal No. J4/29/2021, The Supreme Court, per ANSAH JSC (as he then was) said; 2 | P a g e “ It is trite learning that when an appeal is by way of rehearing, the Appellate Court has the duty to study the entire record to find whether or not the judgment under appeal was justified or supported by the evidence on record. An Appellate Court is entitled to make up its mind on the facts and draw inferences to the extent as the trial court could do”. Also in the case of DJIN VS MUSAH BAAKO (2007 - 2008) SGLR 686 the Supreme Court held (at holding 1 of the head notes) that; “ Where an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied in his favor could have changed the decision in his favor, or certain pieces of evidence have been wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the Appellate Court the lapses in the judgment being appealed against” See also the case of KORANTENG II & OTHERS VS KLU (1993-1994) 1GLR 280. In spite of these principles as stated in the above cases, an appeal is essentially determined on the basis of the ground of appeal filed by the Appellant. I would therefore analyze the notice of appeal and ground(s) of appeal to determine whether or not the trial Magistrate arrived at the correct conclusions when she entered judgment for the Plaintiff. Order 51 Rule 1(1) of C. I.47 also provides; “ (1) An Appeal from a decision or Order of a District Court to the High Court shall be by way of rehearing and shall be brought by notice in this Order referred to as "the notice of appeal". (4) The notice of appeal shall set out the grounds of appeal and shall state; 3 | P a g e (a) whether the whole or part only of the decision or order of the court below is complained of, in the latter case specifying the part” Order 51 Rule 2 of C. I. 47 also provides for the grounds of appeal. It says; “ (1) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (2) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence. (4) Any ground of appeal or any part of it which is not permitted under this rule may be struck out by the Court on its own motion or on application by the Respondent. (5) The Appellant shall not without leave of the Court rely on any ground of appeal not stated in the notice of appeal”. The only ground of appeal in the instant case is that the ruling was a wrong use of discretion. This ground of appeal is vague and provides no clarity on the Appellant grounds of appeal. It lacks precision. Indeed, the judgment which the Appellant refers to as Ruling was clearly articulated by the learned Magistrate. It is not clear what the Appellant meant by wrong use of discretion. In line with Order Rule 2(2) of C. I. 47 the Supreme Court held in the case of OFOSU ADDO VS GRAPHIC COMMUNICATIONS GROUP LTD (2011) 1 SCGLR 355 that; “ A ground of appeal which is vague or general in its terms or does not disclose a reasonable ground of appeal or is not permitted, except the general ground that the judgment is against the weight of evidence and a ground of appeal or part of which is not permitted under the rule may be 4 | P a g e struck out by the court on its own motion or on application by the Respondent”. It is not clear whether the “wrong use of direction” refers to the proceedings leading to the judgment or the judgment itself because the notice of appeal refers to a Ruling and not Judgment. If by wrong use of discretion, the Appellant(s) meant misdirection, then the law requires that the Appellant(s) provide particulars of the misdirection. But in the instance case counsel for the Appellant(s) rather went on a tangent of his own to argue that the judgment was procured by fraud and that the Magistrate failed to attach the proper weight of the Defendant(s) evidence that the 1st Defendant at a particular point in time used his resources and energy to reclaim the land. As provided by Order 51 Rule 2(5) of C. I. 47, any ground of appeal not stated in the notice of appeal shall not be permitted or that the Appellant cannot rely on any ground not stated in the notice of appeal. The Appellant(s) not having stated in the notice of appeal that the magistrate failed to attach the proper weight to some evidence of the Appellant(s) he cannot rely on it and such grounds are inadmissible. The rationale is that a Respondent who has been dragged to an Appellate Court to defend a judgment he got, ought to know or understand the grounds for the appeal and prepare himself to defend same. To file one notice of appeal and argue a completely unrelated ground of appeal is simply unacceptable and ought not to be entertained. The matters raised in the submission of counsel for the Defendant are completely different from the notice of appeal filed and failed to deal with the real issues filed. The Defendant(s) and for that matter their counsel could have at least filed the omnibus ground of appeal that the judgment is against the weight evidence and allow the court to review the entire record of proceedings to determine whether or not the trial court arrived at the correct conclusion. Not having done that, the Appellant(s) cannot be heard to go on a fishing expedition with the hope that he will land a significant catch. Counsel for the Defendant(s) also argued that the judgment was procured by fraud and for that matter ought to be set aside. It is trite law that where a party alleges that a 5 | P a g e judgment is obtained by means of fraud, he ought to file a fresh action and plead fraud specifically with elaborate particulars. This is so because evidence will have to be led to prove the allegations of fraud. Fraud is such a serious matter that if proved completely wipes out whatever judgment the Respondent obtained and for that matter should not be treated lightly. It is not permissible for counsel for the Defendant(s) to raise the issue of fraud in his submission when the Plaintiff has no opportunity to be heard on the matter. In the case of OSEI ANSONG & PASSION INT. SCHOOL VS GHANA AIRPORT COMPANY LTD. (2013-2014) SCGLR25. The Supreme Court held (in holding two) that; “ The settled law and practice of the court was that the proper method impeaching a judgment on grounds of fraud was by action in which the particulars of the fraud must be exactly given and the allegation established by strict proof”. Also in the case of AHINAKWA II (substituted by) AYIKAI VS OKAIJA III & OTHERS(2011) SCGLR205, The Supreme Court gave the rationale for the rule that any allegation that a judgment was obtained by fraud should issue a fresh suit as; “ The whole point of insisting that proceedings and more particularly proceedings involving or based on an allegation of fraud, should be begun by a writ is to ensure that the procedure consequent on the issue of a writ involving pleadings is followed”. Fraud is not fraud merely because council has stated so in his submissions to the court to excite the feelings of the court. There is no denying of the fact that judgment obtained by fraud is in the eyes of the law no judgment because it is borne out of an attempt to over reach the court by deceit and falsehood. But the fact that the court abhor fraud should not make them insensitive to the just claims of the victorious party to enjoy the fruit of her victory and should not be deprived of her victory without just cause. 6 | P a g e Therefore, if it is the conviction of the Defendant(s) that the Plaintiff obtained her judgment by resort to fraud, the right cause of action is for the Defendant(s) to issue a Writ of Summons and specifically plead fraud and give particulars for the determination of the court. It is unacceptable that the Defendant(s) should be allowed to come through the backdoor when the front door has been shut to him. In the circumstances, I hold that Defendant(s) have failed to prove their case. The appeal is therefore dismissed. Cost of GH¢10, 000 for the Plaintiff. (SGD.) JUSTICE PATRICK BAAYEH (JUSTICE OF THE HIGH COURT) COUNSEL LINDA DANKYI HOLDING BRIEF FOR A. G BOADU FOR THE DEFENDANTS/APPELLANTS MAAME AMA HANY WITH ALEXANDRA TAGOE FOR THE PLAINTIFF/RESPONDENT 7 | P a g e