ADAM VRS NUAMAH (J4/09/2024) [2024] GHASC 49 (11 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024 CORAM: OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC ASEIDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC CIVIL APPEAL NO. J4/09/2024 11TH NOVEMBER, 2024 AHMED MUDDY ADAM ……. PLAINTIFF/APPELLANT/RESPONDENT VRS FRANK NUAMAH ……. DEFENDANT/RESPONDENT/APPELLANT JUDGMENT DARKO ASARE JSC; 1. My Lords, the question argued upon the hearing of this appeal is one of some considerable importance. It invites a reconsideration of the critical issue Page 1 of 69 concerning the circumstances under which a judgment entered in default proceedings may be vacated on grounds of fraud. 2. This issue has lately become a matter of growing concern within the legal community, prompting expressions of concern from this Court regarding the proliferating practice of litigants leveraging unfounded allegations of fraud to undermine the finality of judgments rendered by courts of competent jurisdiction. See for instance, the views expressed by our illustrious Pwamang JSC in the recent case of John Bobie v 21 Century Constructions Ltd & 7 Ors, Civil Appeal No. J4/5/2014 (9th March 2016). 3. It reflects a tension between, on the one hand, the public policy consideration in favour of the finality of litigation and, on the other, the desire to do justice in individual cases and not permit vexatious litigants to benefit from their misuse of the court system. 4. The facts on which this instant appeal turned, which were found by the two lower courts not to be in controversy, may be briefly stated. FACTS 5. The Appellant herein (as Plaintiff), instituted an action on the 4th day of April 2002 against one Adjei Darko at the High Court, Accra in suit no L205/2002, titled Frank Nuamah v Adjei Darko. The said suit no. L205/2002 was presided over by Ocran J. Page 2 of 69 6. During the pendency of the action, one Francis Don Lartey was joined as the 2nd Defendant upon his own motion. Subsequently, upon an application by the Appellant (then Plaintiff), the Respondent was joined as the 3rd Defendant, pursuant to disclosures made in pleadings filed by Francis Don Lartey, wherein he averred that his interests in the disputed land had been assigned to the Respondent 7. No steps having been taken by any of the Defendants including the Respondent herein (as 3rd Defendant), to defend their interests in the said suit no. L205/2002, default judgment was entered against them and a date set for the Appellant to prove his claim, following which the trial court entered final judgment in favour of the Appellant on the 27th of May 2015. An application by the Respondent to set aside the default judgment on grounds that the said judgment had been obtained without any notice to him, was refused by Ocran J. Significantly, the Respondent did not appeal against this decision 8. The Appellant subsequently took steps to execute the judgment and later successfully instituted contempt proceedings against the Respondent for obstructing the execution processes. After his conviction for contempt of court, the Respondent instituted the instant proceedings now under appeal to set aside the earlier proceedings in suit no L205/2002 on grounds of fraud. The reliefs endorsed on the writ of summons prayed as follows: - “i. A declaration that the judgment of this Court dated the 27th day of March 2015 was procured by fraud, misrepresentation, breach of the rules of natural justice and want of jurisdiction. Page 3 of 69 ii. An order setting aside the judgment of this Court dated 27th March, 2015 pursuant to (i) above. iii. An order of perpetual injunction restraining the defendant/respondent, his agents, servants, assigns, privies and/or any person(s) howsoever claiming through them from entering upon or interfering with Plaintiff’s right to, ownership of and quiet enjoyment of all that piece or parcel of land situate or lying and being at Roman Ridge measuring 0.51 acre and bounded on the North East by land measuring 250 feet more or less, South East by a proposed road measuring 100 feet more or less, on the South West by a lane measuring 140 feet more or less, North West by land measuring 150 feet more or less”. 9. At the trial, the Respondent (as Plaintiff) contended that although the Appellant (as Defendant) claimed to have brought to his attention, the proceedings leading to the judgment in the said suit, the Respondent only got to know of the judgment sought to be enforced after the contempt proceedings were initiated against him. In particular he contended that he was misled by the fraudulent misrepresentations of the Appellant and by the concealment of relevant information touching on services of proper notices of hearing, which resulted in his inability to defend the action in suit no L205/2002. He further maintained that the Appellant was not properly seised with a valid cause of action and further urged the trial court to declare that the entry of judgment in suit no. L205/2002, was vitiated on grounds of mis-description of the disputed land and for misnomer of the Respondent 10. The Appellant on his part, denied that he had in any way misled the Respondent or had been guilty of any act which constituted a fraud on the trial court. He insisted that proper notices of hearing were duly served on the Respondent at Page 4 of 69 all material times, prior to the delivery of the judgment in suit no L205/2002, and that it was the Respondent who by his own default had neglected to appear at the trial and defend his interests. He controverted the allegation that the judgment obtained in suit no L205/2002 was tainted by fraud. 11. After a full-scale trial, the learned trial Judge in what we consider to be a well- reasoned judgment, expressed herself as finding no favour with the contentions urged on her by the Respondent. She concluded that the judgment in suit no L205/2002 was not vitiated by fraud, and proceeded to dismiss the Respondent’s action in its entirety. 12. Obviously aggrieved and dissatisfied with the judgment of the trial court, the Respondent forthwith lodged an appeal to the Court of Appeal and formulated a myriad of grounds of appeal which in a nut shell no more than complained that the decision of the trial court was against the weight of the evidence on the record, and not warranted by law 13. The Court of Appeal allowed the appeal and reversed the judgment of the trial court, the learned Justices of Appeal forming the view that sufficient evidence existed on the record to support the Respondent’s allegations that the judgment obtained in suit no. L205/2022 was vitiated by fraud. 14. It is this judgment of the Court of Appeal that is presently under appeal to this Court. The following grounds of appeal have been formulated: - i) The holding by the Court of Appeal that there was no evidence that the plaintiff/appellant/respondent had been served with notice of the date for trial in the case Page 5 of 69 of Frank Nuamah v. Adjei Darko & 2 ors. (Suit No. L205/02) was against the weight of the evidence ii) The holding by the Court of Appeal that the judgment of the High Court dated 27th March 2015 in the suit titled Frank Nuamah v. Adjei Darko & 2 ors. (Suit No. L205/02) was procured by the fraud defendant/respondent/ appellant was against the weight of the evidence iii) The Court of Appeal erred in law when it held that the High Court lacked jurisdiction to proceed to hear the matter and enter the judgment of the 27th of March 2015 ANALYSIS 15. In the instant case, the Court of Appeal, had resolved the fundamental issue of fraud in favour of the Respondent, concluding as follows: - “In the instant case, while the evidence of non-service of the hearing notice of the commencement of trial was so clear and was admitted by the Defendant's attorney, the said default was alleged to have been suppressed by the Defendant from the court below during the first trial proceedings and thereafter had the undue advantage of proceeding with the case on the blind side of the Plaintiff. The conduct of the court in the first proceedings, his default in ensuring service of the Defendant of purportedly suppressing or concealing from the trial - hearing notice on the Plaintiff, falls within the definition of civil fraud as was applied by this court in the case of Good Shepherd Mission v Sykes & Others [1997-1998] 1 GLR 978 at 991……” 16. It is this conclusion that has drawn such acerbic criticism from learned counsel for the Appellant who forcefully contends that the said determination is against Page 6 of 69 the weight of the evidence on the record. Conversely learned Counsel for the Respondent contends that the Court of Appeal’s judgment is impregnable and should not be disturbed. As the apex Court our duty is to examine these rival contentions and determine which is more tenable. 17. Now, the fact that fraud unravels even the most solemn of proceedings is so well entrenched in our civil jurisprudence as not to require any detailed restatement here. 18. Taylor JSC in the oft-cited case of Dzotepe v Hahormene III [1987-88] 2 GLR 681 expounded the proposition in the following words: - "In Kerr on Fraud and Mistake 7th Edition at P 416 it is stated on the authority of De Grey CJ in Duchess of Kingston's Case [1776] 20 st Tr 355 at 357 that "Fraud is an intrinsic, collateral act, which vitiates the most solemn proceedings of court of Justice and Lord Coke is quoted as saying "it avoids all judicial acts ecclesiastical and temporal" 19. Generally speaking, the Courts have established broad principles governing the setting aside of judgments on grounds of fraud, including: - Particulars of fraud must be specifically pleaded and strictly proven. - Only fraud may be alleged and proven. - Fraudulent facts must directly cause the impugned judgment. - Material deception of both parties and the court must be shown. - Prohibition against re-litigating previously available issues - There was new evidence before the court Page 7 of 69 20. These principles reinforce the proposition of the law that such an action is an independent claim, in which it is only the fraud and its impact on the original decision that needs to be proved. The court’s task is not to retry the issues in the underlying action, or to speculate as to how the trial judge would have ruled if the full and accurate evidence had been before them. See cases like John Kwadwo Bobie v. 21st Century Co. Ltd & 7 others; Civil Appeal No. J4/5/2014 (9th March 2016); Okwei Mensah (Decd) (acting by) Adumuah Okwei v Laryea (Decd) (acting by) Ashieteye Laryea & Another [2011] 1 SCGLR 317, and Brutuw v Aferiba [1984-86] 1 G. L. R 25 21. In our considered view, the fundamental issues to be resolved in this appeal, after a careful examination of the grounds of appeal, alongside the record of appeal as well as the submissions filed by learned Counsels for the Parties herein, can be stated thus: — i) Whether the Respondent’s pleading sets forth a cognizable claim of fraud ii) Whether the Appellant had fraudulently concealed from the trial court in suit no LS205/2022 the fact that the Respondent had not been served with notice of the date of trial before judgment was obtained in that suit iii) Whether there was sufficient evidence to warrant a conclusion that the judgment in suit no: L205/2002 was procured by the fraud of the Appellant 22. The focal point of this delivery will therefore be directed at answering the main questions identified from our examination of the record. i) Whether the Respondent’s pleading sets forth a cognizable claim of fraud Page 8 of 69 23. We must begin our enquiry by making the observation first and foremost that the Respondent's attempt to impeach the judgment in Suit No. L205/2002 on grounds of fraud appears to have been accompanied by reliance on supplementary facts, devoid of any fraudulent element. 24. Indeed, it seems quite plain to us that notwithstanding the manner in which the Respondent articulated his pleadings, his clear intent was to expand the scope of his challenge beyond the core fraud allegation. This is borne out by the pleadings submitted to the lower court, which interposed extraneous matters, including the alleged mis-description of the land, misidentification of the Respondent, and questionable validity of the Appellant's cause of action in Suit No. L205/2002 25. After meticulous consideration, we have determined that the allegations regarding absence of cause of action, mis-description of the subject matter, and misidentification of a party do not provide a legitimate foundation for a claim of fraud. Clearly, the validity of a cause of action, for instance, is a legal issue and cannot be construed as fraudulent conduct by one party against another in the context of litigation. In the case of Okwei Mensah (Decd) (acting by) Adumuah Okwei v Laryea (Decd) (acting by) Ashieteye Laryea & Another [2011] 1 SCGLR 317, Yeboah JSC expressed similar views of the law when he posited as follows: - “If there is a misrepresentation of a matter of law as to the legal consequences of admitted facts, in the absence of actual fraud no court will grant any relief based on fraud.” Page 9 of 69 26. In the case the case of Brutuw v Aferiba [1984-86] 1 G. L. R 25., Francois JA (as he then was) in characteristic felicitous language articulated the same position of the law as follows: - “In a suit charging fraud there is clear impropriety for a plaintiff to reopen his entire case. Jonesco v. Beard [1930] A. C. 298 at 300-301, H. L. is authority for the principle that where a judgment is attacked for fraud fraud only must be in issue. It is not a rehearing of the whole case. Unfortunately learned counsel for the plaintiff proceeded even at the appeal stage to subvert this principle, acting as if everything was at large. See also John Bobie v 21 Century Constructions Ltd & 7 Ors, (supra) 27. By interposing additional claims beyond the central issue of fraud in his pleadings, the Respondent plainly attempted to revive a previously adjudicated suit, thereby flagrantly contravening the well-established legal principle that a party seeking to vacate a judgment on grounds of fraud must rely solely on that ground, to the exclusion of all other considerations. This clear aberration can hardly be ignored by any court of law. 28. On principle and sound authority therefore, all the urgings made to this Court on behalf of those complaints touching on absence of a valid cause of action, mis-description of the disputed land and misidentification of the Respondent, are in the context of this particular litigation, altogether tenuous. Accordingly, we do not intend to burden this delivery with any consideration of those issues, save to emphasise that the claims relating thereto reflect a complete mis- Page 10 of 69 apprehension of the true nature of an action seeking to set aside a judgment on grounds of fraud. Resultantly, it must be rejected outright. 29. Having so determined, we will now turn our attention to a consideration of the main issue which engaged the Court of Appeal and which it seems to us, constituted the cornerstone of the judgment under appeal before this Court. ii) Whether the Appellant had fraudulently concealed from the trial court in suit no LS205/2022 the fact that the Respondent had not been served with notice of the date of trial before judgment was obtained in that suit 30. We have carefully reviewed the record of appeal and we unhesitatingly agree with learned Counsel for the Appellant that in reaching the conclusion that the Respondent had not been served with hearing notice for the commencement of the trial in suit no L205/2022, the Court of Appeal poignantly lost sight of one key piece of evidence, whereby the trial Judge Ocran J had explicitly verified and satisfied himself as to the endorsement of a notice of the date for hearing of the Appellant’s (then Plaintiff) claim on an Entry of Judgment filed in the suit in question. 31. At page 144 of the record of appeal, Ocran J is found to have delivered himself as follows: - “The Plaintiff then filed entry of interlocutory judgment on which the date to (sic) proof title was indicated” (emphasis) Page 11 of 69 32. The far-reaching ramifications of this critical finding of fact by Ocran J in suit no L05/2002, and its overarching impact on other major issues raised in this appeal would momentarily be made manifest. 33. For now, it is sufficient to say that the learned Justices of Appeal would long have hesitated before reaching their conclusions, had they properly apprehended and applied their minds to the salient evidence establishing that Ocran J. had previously verified the presence on the record, of adequate notice of the date for trial in that suit. The learned Justices of Appeal failed to do so, and on this ground alone, we are persuaded that their decision must be reversible. 34. Quite apart from the above, our examination of the record yields another pertinent piece of evidence which was even more dispositive and rendered the decision reached by the Court of Appeal faulty. 35. At paragraph 31 of his affidavit in support of motion to set aside the impugned default judgment in suit no. L205/2022, dated the 27th March 2015, the Respondent deposed under oath as follows: - 31. That my lawyers have advised me and I verily believe same to be true that by an order of this Court dated the 12th of January 2015…., exhibited hereto and marked L, this Court ordered among others that I be served with the entry of interlocutory judgment in which was incorporated the date on which the Plaintiff was required to prove his right to the land in the following manner: - (emphasis) Page 12 of 69 36. This critical piece of affidavit evidence under oath clearly suggests that the Respondent well and truly acknowledged the presence on the record of adequate notice of the hearing date specified in the Entry of Judgment. Regrettably, the Court of Appeal failed to consider, let alone evaluate the substantial significance of this critical piece of evidence in relation to the issue before it. 37. Apart from constituting an admission against interest as held by this Court in the famous case of Akufo-Addo v. Catheline, [1992] 1 GLR 377 citing with approval the dictum of Fletcher Moulton L. J. in Tucker v. Oldbury Urban Council (1912) 2 K. B. 317, at 32, the Respondent’s depositions under oath Respondent also appears to be caught by the conclusive presumption examined in such cases as Kusi & Kusi V Bonsu [2010] SCGLR 60 @ 64 where this Court held that by s.25 of the Evidence Act 1975 (NRCD 323) facts recited in a written document are conclusively presumed to be true between parties and all claiming under them thereby creating an estoppel by written conduct. 38. From the available evidence on the record therefore, it becomes too plain for argument or dispute that having regard to the explicit representations by the Respondent on the record, it was not open to him to set up a contrary case denying the presence on the record, of adequate notice of the hearing date for proof of the Appellant’s (as Plaintiff) claim on the merits in suit no. L205/2002. Lamentably, the learned Justices of Appeal failed to properly evaluate and draw appropriate inferences from the established evidence on the record and in this, we think, they erred. Page 13 of 69 39. We now turn to a consideration of the second leg of the Court of Appeal’s decision by which it determined that the judgment procured in suit no L205/2002 was procured by evidence tainted with fraud. iii) Whether there was sufficient evidence to warrant a conclusion that the judgment in suit no: L205/2002 was procured by the fraud of the Appellant 40. Underlying the Court of Appeal's finding of fraudulent procurement of the judgment in Suit No. L205/2002 was its determination that the evidence relating to the bailiff's certificates of service was marred by material misrepresentations, fraudulent suppressions, and concealment attributable to the Appellant. 41. In reaching the above conclusions, the Court of Appeal reasoned that even though the affidavits verifying service of various notices on the Respondent were all deposed to by one bailiff, they contained different signatures and this ought to have warranted a full-scale investigation by the trial court. This however was not done. 42. The Court of Appeal further took the view that the evidence purporting to establish service of notices on the Respondent in Suit No. L205/2002 was compromised. Consequently, it rejected the trial court's reliance on these postings to establish notice of trial, concluding that they lacked evidentiary value and were therefore “irrelevant." 43. We have on our part scrupulously examined the judgment of the Court of Appeal in the light of the established evidence on the record and regrettably, Page 14 of 69 we are unable to find any justifiable basis for its conclusions. We set out our reasons hereinafter. 44. As already indicated above, the authorities recognize certain general principles governing an action to set aside a judgment on grounds of fraud but for purposes of this segment of our consideration, we intend to focus on three of these requirements, namely: - i) the successful party (or someone for whom it must take responsibility) committed conscious and deliberate dishonesty, ii)the party alleging fraud must establish that both himself and the court were materially deceived by the party in whose favour judgment was entered, and that the dishonest conduct was material to the original decision, and iii)there was new evidence, which was not discoverable at first instance, through the use of ordinary diligence. See the views of Atuguba JSC in Dr Kwame Appiah Poku v Kojo Nsafoah Poku Civil Appeal No. J4/6/2010 dated 26th May 2010, citing with approval the case of Anyimah III v. Kodia IV (1962) 2 GLR 1 45. We will now undertake a review of the evidence on record in relation to the three-fold criteria articulated above, with a view to determining whether the Court of Appeal's determination of fraud was well-founded in law and fact. i) Fraudulent Conduct Attributable to Appellant Page 15 of 69 46. From the nature of the case of fraud put forward in this case, perhaps the primary inquiry to be addressed is whether the record establishes that Ocran J was induced into error by a specific and material act or omission attributable to the Appellant, leading to an erroneous assumption that the Respondent had been duly served with hearing notices before delivering judgment in Suit No. L205/2002 47. As previously held, our examination of the record reveals no credible evidence to support the Court of Appeal's determination that the Appellant intentionally withheld the fact that there was no notice of the hearing date in Suit No. L205/2002. With this allegation thus dismissed, our review of the record yields no additional evidence suggestive of fraudulent conduct by the Appellant. 48. Preliminarily, as to the claim that the Appellant presented falsified certificates and affidavits of service bearing forged signatures, we observe that any potential falsehoods in the service process do not necessarily imply personal culpability on the part of the Appellant, considering that service of process, falls within the purview of court bailiffs and process servers, who operate independently of the parties' control. 49. Again, even if it is true as determined by the Court of Appeal that the various certificates of service contained varying signatures of the bailiff who purportedly effected those services, we are not satisfied that the record reflected any hard evidence establishing any direct nexus between those anomalies and any specific fraudulent conduct on the part of the Appellant. Page 16 of 69 50. This is more so when it is remembered that the provisions of Order 7 Rule 9 of CI 47 provide that an affidavit of service signed by the person who effects service shall, “on production without proof of signature, be prima facie evidence of service”. 51. On the authority of such cases as Bank of West Africa Ltd v Ackun [1963] 1 GLR 176, this provision has the effect of invoking a presumption of regularity, thereby placing the burden on the Respondent to establish that the documents of service were forged or fabricated, and that the Appellant, and no one else, was culpable, always bearing in mind that the standard of proof required to discharge such allegations, is one of proof beyond reasonable doubt. See Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 and Sasu Bamfo v Sintim [2012] 1 SCGLR 136. 52. The Respondent having failed to discharge the onerous burden thrust upon him, it is the judgment of this Court that he has woefully failed to meet the first criteria for vacating a judgment on grounds of fraud, and this, we deem to be fatal to his entire action. The Court of Appeal failed to advert its mind to these critical lapses in the Respondent’s action and this was erroneous on its part. ii) Impugned Conduct Directly Induced Court to be Mis-led 53. Apart from failing to meet the first test required to support an action based on fraud, we are also not satisfied that the Respondent succeeded in adducing sufficient evidence to meet the second test which requires that the alleged fraudulent conduct must have the effect of deceiving the court. Page 17 of 69 54. We have earlier noted that it was Ocran J who himself verified from the record and satisfied himself as to the existence of appropriate notices of hearing per the Entry of Judgment, before proceeding to hear evidence in proof of the Appellant’s claim. Seen in this light therefore we fail to see how it can be said with any degree of certainty that Ocran J was deceived by any conduct bordering on fraud on the part of the Appellant or any other person under his instructions. 55. The failure to prove that there was any evidence to suggest that Ocran J was misled into entering the impugned judgment in suit no L205/2002, was fatal to the Respondent’s action founded on fraud. The Court of Appeal on account of this vulnerability alone, ought to have restrained itself from interfering with the trial court’s verdict, dismissing the Respondent’s action at first instance. Presence of new evidence, which was not discoverable at first instance, through the use of ordinary diligence. 56. By the same token it seems to us that the last leg of the three-pronged test which requires new evidence to establish the presence of fraud is also absent in this suit. 57. The law is that the new evidence relied on to prove fraud ought not to have been available at the trial of the suit where the impugned judgment was obtained. It is also required that the said new evidence ought not to have been discoverable through the use of ordinary diligence, even though the weight of contemporary judicial thinking appears to be shifting in favour of the position Page 18 of 69 that failure to discover the new evidence through the use of ordinary diligence may not always be necessarily fatal. See the recent case of Takhar v Gracefield Developments Ltd [2020] UKSC 13 where there were pronouncements made by the Court which seemed to suggest that the innocent party is not obliged to show that the fraud could not have been discovered before the original trial by reasonable diligence on his or her part, especially where the alleged fraud had not been in issue in the original proceedings, even if the judgment was entered after a trial on the merits. 58. The pivotal question arising from the facts of this case is, what evidence was relied upon by the Court of Appeal to vacate the impugned judgment obtained in Suit No. L205/2002 and whether that meets the threshold of 'new' evidence required to sustain an action for fraud. 59. The evidence adduced to prove fraud consisted of certificates and affidavits of service executed by the court bailiff proving services of various notices on the Respondent in the course of the proceedings held in suit no. L205/2002. This is the evidence which was determined by the Court of Appeal to be questionable in character and imputed fraud on the part of the Appellant. 60. Notably, this same evidence had previously undergone rigorous scrutiny in prior judicial proceedings, where their authenticity was extensively tested and verified. 61. Thus, for instance, in the earlier proceedings had before Ocran J in suit no L205/2002, upon an application to set aside the impugned judgment, the same question we are called upon to answer in this appeal was answered by the trial Page 19 of 69 court in the negative, holding that there was no evidence that those documents had been forged or were not authentic. Again, in contempt proceedings intituled The Republic v Alhaji Adams numbered CR 785/16, held before the High Court, differently constituted by Mensah J, the authenticity of these same documents came under intense judicial scrutiny; again, they were verified and authenticated by the court. 62. Instructively, Mensah J in the afore-mentioned contempt proceedings, had this to say regarding the evidence relied upon to support Respondent’s claim of fraud: - “Per the processes filed in this court the Respondent cannot be in denial of having knowledge of the suit leading to the execution.” [page 90 Vol. 1 Record of Appeal] 63. Given the prior judicial determinations upholding the authenticity of these documents, can the Respondent re-litigate this issue by presenting the same documents as novel evidence to support a claim of fraud? We hold that they cannot. 64. We hold that permitting parties to repeatedly re-litigate issues already resolved in prior judicial proceedings would subvert the fundamental principle of judicial finality, contravening the well-established policy of promoting closure and certainty in legal disputes. 65. It follows therefore, upon a careful review of the record on appeal, that the allegations impugning the authenticity of the certificates and affidavits of Page 20 of 69 service do not meet the threshold of “new” evidence required to sustain an action for fraud. The Court of Appeal misconstrued the applicable law on this issue, and we hold respectfully, that it committed reversible error. 66. Beyond the concerns we have raised touching on the denigrated character of the evidence relied on by the Respondent to support his action of fraud, we must also question the manner in which the Court of Appeal peremptorily assigned the burden of proof without regard to the peculiar circumstances it was confronted with. 67. It is true as held by the Court of Appeal that as a general proposition of the law, if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative. See cases like George Akpass v Ghana Commercial Bank Ltd [Unreported; Civil Appeal No J4/08/2021; 6 June 2021; SC], citing with approval the case of Boakye v Asamoah & Anor. [1974] 1 GLR 38. 68. However, it is equally true that the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption of law has arisen. See similar views expressed by the Sarkodee-Addo JSC in the case of Bank of West Africa Ltd v Ackun [1963] 1 GLR 176 at page 181 69. In the present case, certain legal presumptions and consequences arise from the factual determinations made by Ocran J in Suit No. LS 205/2002 regarding Page 21 of 69 evidence of notice of the trial as appeared in the Entry of Judgment on the record. Sections 126(1), 37(1), and 39(1) of the Evidence Act, 1975 (NRCD 323), collectively establish that a judgment of a superior court of competent jurisdiction constitutes an admissible official document, and a presumption of regularity attaches to the performance of official duties and the lawful exercise of jurisdiction. 70. Meanwhile section 20 of the same NRCD 323, imposes on the party against whom the presumption operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact. See GPHA v Nova Complex Ltd [2007-2008] SCGLR 806 71. It logically follows therefore that the burden of rebutting those factual determinations in Ocran J’s judgment, concerning notice of the date of the trial as reflected in the Entry of Judgment, ought to have rested on the party making such challenge, (in this case the Respondent) and not the Appellant. The Court of Appeal failed to grasp the correct legal principle on this point, and we conclude, with due deference, that it erred in its determinations 72. From the above exposition of the facts and the law, it becomes abundantly clear that not only did the Court of Appeal, fail to correctly identify the nature of the dispute before the Court, the primary issues involved, the nature of the evidence led, and the correct approach in resolving those issues, but more importantly, the findings and conclusions reached were faulty and reversible. 73. In the final analysis, it is sufficient to say that when the record of appeal has been reviewed in its entirety, we are inclined to give the same answer as did the Page 22 of 69 learned trial Judge in the court of first instance and it is this: the Respondent’s claim of fraud against the judgment in suit no L205/2002 was not substantiated, rendering the reliefs sought in his writ of summons entirely without merit. CONCLUSION 74. All said, we think that sufficient reasons have been assigned to dispose of this appeal in favour of the Appellant the result of which is that the appeal succeeds and the judgment of the Court of Appeal is hereby set aside. The judgment of the trial court is restored and the Respondent’s action based on fraud is hereby dismissed in its entirety. (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) (SGD.) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD.) LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION ASIEDU JSC: [1.0]. Introduction: Page 23 of 69 My lords, the main issue in this appeal is whether or not fraud has been successfully proved by the Plaintiff/Respondent herein to warrant the setting aside by the Court of Appeal of the judgment delivered by the trial High Court on the 20th day of November 2020 in Suit Number LD/0626/2017. [1.1]. Facts: My lords, in April 2002, Frank Nuamah the Defendant/Appellant herein instituted an action in suit number L205/2002 against one Adjei Darko for declaration of title and recovery of possession of a parcel of land situate and being at Roman Ridge in Accra. In the course of the proceedings, specifically in 2007, Francis Don Lartey successfully applied to be joined thereto as the 2nd Defendant on the ground that the land claimed by Frank Nuamah was his property; having acquired same in the year 1970 from the Osu Stool. Again, in 2014, Alhaji Adams was joined to the suit as the 3rd defendant. Frank Nuamah eventually obtained judgment in the matter against the Defendants therein on the 27th March 2014. (See pages 79 to 81 of volume 1 of the record of appeal). This judgment was executed by the Deputy Sheriff who placed Frank Nuamah in possession of the property. Subsequently, by the engagement of thugs and force, the Plaintiff/Respondent, re-entered the land as a result of which he was cited and convicted for contempt of court in suit number CR/785/16 on the 2nd May 2017. [1.2]. After his committal for contempt of court, the Plaintiff/Respondent applied, unsuccessfully, to have the judgment entered against him in Suit Number L.205/2002 set aside. Following the above, the Plaintiff/Respondent instituted the action culminating in the instant appeal before the High Court in Suit Number LD/0626/2017. Page 24 of 69 [1.3]. After hearing evidence in Suit Number LD/0626/2017, the trial High Court, found that the Plaintiff/Respondent could not prove his claim against the Defendant/Appellant in the matter. The court therefore dismissed the Plaintiff’s suit. Dissatisfied with the judgment of the High Court, the Plaintiff lodged an appeal with the Court of Appeal which found for the Plaintiff and therefore reversed the judgment of the trial High Court in a judgment delivered on the 10th November 2022. It is against the judgment of the Court of Appeal, that the instant appeal was filed by the Defendant/Appellant herein on the 1st day of December 2022. [2.0]. Grounds of Appeal: In this appeal, the Defendant/Appellant had raised three grounds of appeal as follows: “(1). The holding by the Court of Appeal that there was no evidence that the Plaintiff/ Appellant/Respondent had been served with notice of the date for the trial in the case of Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L205/02) was against the weight of evidence. (2). The holding by the Court of Appeal that the judgment of the High Court dated 27th March 2015 (sic) in the suit titled Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L205/02) was procured by the fraud of the defendant/respondent/appellant was against the weight of the evidence. (3). The Court of Appeal erred in law when it held that the High Court lacked jurisdiction to proceed to hear the matter and enter the judgment of the 27th of March 2015”. (sic). By virtue of these grounds of appeal, the Defendant/Appellant prays this court for “an order from the Supreme Court setting aside the ruling of the Court of Appeal [and] re-instating the judgment of the High Court.” Page 25 of 69 [3.0]. Consideration of the Appeal: As already pointed out, after hearing evidence the trial High Court, entered judgment for the Defendant/Appellant. However, the Court of Appeal reversed the judgment of the High Court and instead entered judgment for the Plaintiff/Respondent herein. Clearly, therefore the two lower courts were not concurrent in the determination of the suit. In Gregory vs Tandoh IV & Hansen [2010] SCGLR 971, this court held in holding 2 that: “Where findings of fact such as in the instant case had been made by the trial court and concurred in by the first appellate court, that is, the Court of Appeal, then the second appellate court, such as the Supreme Court, must be slow in coming to different conclusions unless it was satisfied that there were strong pieces of evidence on record which made it manifestly clear that the findings of the trial court and the first appellate court were perverse. However, a second appellate court, like the Supreme Court, could and was entitled to depart from the findings of fact made by the trial court and concurred in by the first appellate court under the following circumstances: First, where from the record of appeal, the findings of fact by the trial court were clearly not supported by evidence and the reasons in support of the findings were unsatisfactory; second, where the findings of fact by the trial court could be seen from the record of appeal to be either perverse or inconsistent with the totality of the evidence led by the witnesses and the surrounding circumstances of the entire evidence on record; third, where the findings of fact by the trial court were consistently inconsistent with important documentary evidence on record; and Page 26 of 69 fourth, where the first appellate court had wrongly applied a principle of law. In all such situations, the second appellate court must feel free to interfere with the said findings of fact, in order to ensure that absolute justice was done in the case.” To the extent that the Court of Appeal differed from the High Court with respect to the findings and determination of the suit placed before them, this court, which is the final appellate court of the land, is at liberty to critically examine the evidence on record and come to its own conclusion. This principle was asserted when this court in Duodu vs Benewah [2012] 2 SCGLR 1306, held that: “It is well settled that; an appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. The appellate court must not disturb the findings of the trial court if they are supported by the evidence…. The Supreme Court’s duty as the final appellate court, is also to review the evidence on record to ascertain whether the findings were supported by the evidence on record, there being no concurrent findings of facts from the lower courts. And the duty of the Appellant is to demonstrate that the Court of Appeal was in error in reversing the findings of facts made by the trial judge.” [3.1]. The writ of summons and statement of claim: Ground three (3) of the grounds of appeal is to the effect that “the Court of Appeal erred in law when it held that the High Court lacked jurisdiction to proceed to hear the matter and enter the judgment of the 27th of March 2015” (sic). In view of the claims made by the Plaintiff/Respondent (hereafter referred to as the Plaintiff), it is of utmost importance for this court, in considering this ground of appeal, to carefully scrutinize the endorsement on the writ of summons and the statement of Page 27 of 69 claim. The Plaintiff instituted the instant action, in Suit Number LD/0626/2017, on the 31st May 2017. By the writ, the Plaintiff claims against the Defendant/Appellant (hereafter referred to as the Defendant) as follows: “(i). A declaration that the judgment of this court dated the 27th day of March 2015 was procured by fraud, misrepresentation, breach of the rules of natural justice and want of jurisdiction. (ii). An order setting aside the judgment of this court dated 27/03/15 pursuant to (i) above. (iii). An order of perpetual injunction restraining the defendant/respondent, his agents, servants, assigns, privies and or any person(s) howsoever claiming through them from entering upon or interfering with plaintiff’s right to ownership of and quiet enjoyment of all that piece or parcel of land situate or lying and being at Roman Ridge measuring 0.51 acre and bounded on the North East by land measuring 250 feet more or less, South East by a proposed road measuring 100 feet more or less, on the South West by a Lane measuring 140 feet more or less, North West by land measuring 150 feet more or less. (iv). Damages for trespass unto Plaintiff’s land described in (iii) above”. In the statement of claim which accompanied the writ of summons, the Plaintiff pleaded suit number L205/2002 which was filed by the defendant against one Adjei Darko in April 2002. Subsequently, one Francis Don Lartey and Alhaji Adams were joined to the suit as the 2nd and the 3rd defendants. The writ of summons and the statement of claim were accordingly amended. The Plaintiff says that the writ was not served on him although he was convicted for contempt of court in respect of the execution of the judgment given in the suit. The Plaintiff also claims that he is not Alhaji Adams who was joined as the 3rd Page 28 of 69 defendant. In particular, the Plaintiff pleaded at paragraph 19 and 20 of the statement of claim that: “19. Plaintiff avers that at all times material to be present suit, the defendant knew or ought reasonably to have known that Plaintiff’s name is not Alhaji Adams the reason being that in earlier proceedings before this court intituled Republic v Adjei Darko and Republic v Alhaji Adams Plaintiff had indicated to this court that he is known as AHMED MUDDY ADAM. 20. Plaintiff avers that having been informed that the plaintiff’s name is AHMED MUDDY ADAM, the defendant ought to have duly and properly amended the title of the suit to reflect the plaintiff’s name but that the plaintiff nevertheless proceeded with the suit ostensibly against Alhaji Adams thereby misrepresenting to the Court that the plaintiff is the person sued.” Particulars of misrepresentation i. Representing to the court that the plaintiff is the defendant in the said suit when at all times material to the representation the defendant knew to be false. ii. Procuring orders for substituted service by falsely representing to the court that by such service the steps being taken in the proceedings will come to the plaintiff’s attention knowing fully well that since Plaintiff does not answer to the name Alhaji Adams, notice of the steps in the proceedings will not come to the plaintiff’s attention by such service. Page 29 of 69 iii. Falsely representing to the court that the plaintiff was properly notified of the steps being taken in the proceedings by reason of the execution of the orders for substituted service when at all times material to the said representation the defendant knew the representation to be false.” At paragraph 22 of the statement of claim the Plaintiff further pleaded that: “Plaintiff avers that the misrepresentations above pleaded apart, the defendant made additional misrepresentations to the Court which if brought to the attention of the Court, the Court would not have entered judgment against the plaintiff the particulars of such representations being the facts pleaded below.” At paragraph 23, the Plaintiff made averments concerning representations made by the Defendant about the identity of the land which was the subject matter of the suit as against the identity of the land in respect of which judgment was entered in favour of the Defendant about which the Defendant went into execution. The Plaintiff says that the judgment entered in favour of the Defendant was obtained pursuant to the breach of the rules of natural justice. Again, the Plaintiff pleaded that the Defendant’s writ in the said action did not disclosed a cause of action against the Plaintiff and that as a result the judgment was fraudulently obtained and also given without jurisdiction. On these grounds the Plaintiff prayed the High Court to set aside the judgment given by the High Court in Suit Number L.205/2002. Before this court, the Plaintiff submitted at page 2 of his statement of case filed on the 19th February 2024 that: Page 30 of 69 “although a number of issues were set down for hearing in the High Court, a key issue that the High Court was required to determine in the proceedings before the High Court was the question whether or not the judgment of the court below dated the 27th day of March 2014 was procured by fraud, misrepresentation, breach of the rules of natural justice and want of jurisdiction”. [3.2]. It is pertinent to point out that the courts have over the years stated that whenever a person seeks to have a judgment of a court of competent jurisdiction set aside on grounds of fraud, that person may do so by a fresh action instituted in that regard in which the only cause of action opened to that person is a plea of fraud with particulars of the alleged fraud set out by the person in his statement of claim. Indeed, in that wise the person is not entitled to plead any other cause of action except the plea of fraud. Thus, in Dzotepe vs. Hahormene III [1987-88] 2 GLR 681 this court pointed out at page 684 that: “The settled practice of the court is that the proper method of impeaching a completed judgment on the ground of fraud is by action in which the particulars of fraud must be exactly given, and the allegation established by strict proof.” Again, in Okwei Mensah (Decd.) (acting by) Adumuah Okwei vs. Laryea (Decd.) (acting by) vs. Ahieteye Laryea & Another [2011] 1 SCGLR 317, this court held at page 328 of the report that: “In seeking to be relieved from the effects of the previous judgment, the appellant, i.e., the Plaintiff relied on fraud. But in the action, the Plaintiff also sought to rely on certain other facts not amounting to fraud contrary to settled judicial opinion that a party which seeks to set aside a judgment on grounds of fraud must plead fraud and no other facts: See Brutuw vs Aferiba [1984-86] 1 GLR 25, CA; and Cole vs. Langford [1896] 2 QB 36. Delivering his judgment in the Brutuw case (supra), Page 31 of 69 Francois JA (as he then was) (as stated at page 38) made the following pronouncement: “An important observation must be made here. In a suit charging fraud, there is clear impropriety for a plaintiff to reopen his entire case. Jonesco v. Beard [1930] A. C. 298 at 300-301, H. L. is authority for the principle that where a judgment is attacked for fraud, fraud only must be in issue. It is not a rehearing of the whole case’”. In addition to his claim in relief (i) for a declaration that the judgment of the High Court in Suit Number L.205/2002 was obtained by fraud, the Plaintiff in his writ of summons also asked for a declaration that the said judgment was also obtained by a breach of the rules of natural justice and also for want of jurisdiction in the High Court. Furthermore, in relief (iii) of his endorsement, the Plaintiff asked for perpetual injunction to restrain the Defendant and his agents, servants, assigns and privies and other persons claiming through the defendant from entering upon or interfering with the Plaintiff’s right and quiet enjoyment of the land subject matter of the Suit in L.205/2002. In the fourth relief endorsed on the writ, the Plaintiff prayed the trial High Court for damages for trespass unto the Plaintiff’s land. [3.3]. A claim for a declaration that a judgment was obtained in breach of the rules of natural justice and a claim that the court which gave the judgment lacked jurisdiction to hear the case is not the same as a claim that the judgment was obtained by fraud. The endorsement for a declaration that the judgment was obtained in breach of the rules of natural justice as well as the endorsement for a declaration that the court which heard Suit Number L205/2002 lacked jurisdiction to do so, are causes of action which were not Page 32 of 69 opened to the Plaintiff to make when he had sued for a declaration that the judgment was obtained by fraud. Further to the above, a claim for perpetual injunction against the Defendant and his privies as well as the claim for damages for trespass are claims which are not only offensive of the rule on the cause of action available to a Plaintiff where he seeks to set aside judgment on grounds of fraud, as shown in the authorities quoted above but also constitutes claims which cannot be determined without going into the merit of the suit brought before the High Court in Suit Number L.205/2002. They are reliefs that put the title of the land, subject matter of the action in Suit Number L.205/2002 in issue. This is so because a party who prays the court for an order of injunction and damages for trespass to land automatically places the title of the land in issue. These claims therefore have no place in an action for a declaration that judgment had been obtained by fraud. Consequently, they are not opened to the Plaintiff to make in his endorsement on the writ of summons. [3.4]. It is the duty of the trial court and consequently the Court of Appeal, to sift through the reliefs endorsed on the writ of summons; where other reliefs are sought in addition to the relief for a declaration that a judgment was obtained by fraud and strike out the other reliefs or limit the Plaintiff to the proof of his claim for a declaration that the judgment sought to be upset was obtained by fraud. It is not given to the trial court or the Court of Appeal to entertain reliefs other than the claim that the judgment was obtained by fraud and make pronouncement on them. Litigation will never come to an end if the courts are to do so. Thus, in Nana Asumadu II (Substituted by Nana Darku AMPEM) & Another vs. Agya Ameyaw [2019-2020] 1 SCLRG 681, this court at page 695 stated as follows: Page 33 of 69 “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a crime. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs. Having pleaded fraud, the particulars of which the plaintiff provided under paragraph 6 of their statement of claim … which connotes the imputation of crime on the part of the defendant in obtaining the judgment, the law requires the plaintiffs to establish that allegation clearly and convincingly and beyond reasonable doubt …. The facts on record did not permit the trial court to re-open the dispute over title to Diaso lands, as the parties and the reliefs claimed in this suit were the same as those in Suit No. LS. 45/2000. The trial court should have identified the allegation of fraud as the main issue in the matter before it and address that issue only, but it did not do so. It did not even make any findings of fact on the issue of fraud, which makes the trial court’s judgment incurably bad”. Unfortunately, their lordships at the Court of Appeal did not see through the Plaintiff’s reliefs as they stated, among others, in their judgment at page 202 volume 2 of the record of appeal (ROA) that: “The instant appeal is inviting the court to determine the narrow issue which is, whether or not the Plaintiff was duly served with hearing notice of the trial proceedings to determine the case. The finding of this court is that the Plaintiff was not heard in the said proceedings. Since the Plaintiff was not heard, the Plaintiff has the chance of proving his ownership of the land before the trial court (sic). Page 34 of 69 Also, the jurisdictional points raised in the grounds of appeal can be raised when the case goes before the court below”. At page 204 of the record the learned justices of appeal held in conclusion of their judgment that: “Having found from the evidence on record that the Plaintiff was not served with hearing notice of the trial, a breach of the rules of natural justice had occurred with the result that the said trial court lacked the jurisdiction to so proceed to hear the matter and enter judgment against the Plaintiff. The appeal thus succeeds. Accordingly, the judgment of the High Court of 27th March 2015 against the Plaintiff is hereby set aside”. Clearly, the learned justices of the Court of Appeal missed the issue before them. The main issue before the Court of Appeal was not the non-service of hearing notice on the Plaintiff before the hearing of the suit in L.205/2002. The issue before the Court of Appeal was not whether or not the High Court in determining the suit in L.205/2002 breached the rules of natural justice. The issue before the Court of Appeal was not whether or not the High Court, in suit number L.205/2002 lacked jurisdiction to entertain suit number L.205/2002. As already pointed out herein, when a party sue to set a judgment aside on grounds of fraud, the only issue, the only cause of action opened to that party is the issue of fraud. The party alleging fraud is bound by law to lead very cogent evidence to prove his allegation of fraud beyond reasonable doubt. A party cannot allege fraud as the basis to set aside a judgment of a court and then lead evidence to establish some other cause of action. We hold therefore that the Court of Appeal erred in setting aside the judgment of the trial High Court in suit number LD/0626/2017 on the basis of non-service of hearing notice, breach of the rules of natural justice and lack of jurisdiction in the High Court. Page 35 of 69 [3.5]. Propriety of the grounds of appeal: In his statement of case, the Plaintiff argued that grounds of appeal are incompetent in that they failed to comply with the mandatory provisions in rule 6(2)(f) of the Supreme Court Rules, 1996, CI.16. In particular, it was argued that the grounds of appeal “merely alleges an error in law or misdirection without setting out the particular error in law or misdirection”. A scrutiny of grounds (1) and (2) of the grounds of appeal will reveal that the words “error in law” and “misdirection” were not used by the Defendant in these two grounds of appeal. How can it therefore be legitimately argued that these two grounds allege error in law or misdirection to call for the supply of those errors of law or misdirection? It is in ground (3) of the grounds of appeal that the Plaintiff stated that the “Court of Appeal erred in law” but immediately thereafter, the Plaintiff supplied that said error in law by stating therein that “when it held that the High Court lacked jurisdiction to proceed to hear the matter and enter the judgment of the 27th of March 2015”. (sic). The particulars of the alleged error in law are therefore given by the expression immediately following the allegation of error in law. The grounds of appeal therefore satisfy the requirement of the rule 6(2)(f) of CI. 16 which provides that: “(2) A notice of civil appeal shall set forth the grounds of appeal and shall state— (f) the particulars of a misdirection or an error in law, if that is alleged.” It must be pointed out that the rules do not provide any special format for stating the particulars of misdirection or error in law. Hence, to the extent that the particulars can be found in the ground of appeal which contains those allegations, the requirement of the rule becomes satisfied. In the instant matter, grounds (1) and (2) are no other than the Page 36 of 69 general grounds of appeal that the judgment is against the weight of evidence. That ground of appeal seeks to attack the evaluation of the evidence presented to the trial court and is therefore exempted from the demands of particulars. See rule 6(2) (f) and (5) of CI. 16. We hold therefore that the grounds of appeal in the Notice of Appeal herein are all competent. [4.0]. Service/Non-Service of Hearing Notice: In ground (1) of the grounds of appeal, the Defendant/Appellant states that “the holding by the Court of Appeal that there was no evidence that the Plaintiff/Appellant/Respondent had been served with notice of the date for the trial in the case of Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L.205/02) was against the weight of evidence”. Under this ground of appeal, the Defendant argues that there was enough evidence on record that the Plaintiff/Respondent was served with notice to attend the trial leading to the judgment in suit number L.205/2002 and that therefore the Court of Appeal erred in finding otherwise. It was further argued on behalf of the Defendant that the issue of the service of hearing notice on the Plaintiff to attend the trial in suit number L.205/2002 had already been raised unsuccessfully in an application by the Plaintiff to set aside the judgment and that it was not opened to the Plaintiff herein to raise this issue any longer. In response, the Plaintiff/Respondent argued that the finding by the trial court that the Plaintiff was served with hearing notice for the trial in suit number L.205/2002 ‘was most baffling’. According to counsel for the Plaintiff, the “key question that the High Court had to determine was the question whether or not Respondent was notified of the date of trial on which the court heard evidence and gave judgment”. The Plaintiff/Respondent submitted further that "not one piece of evidence was put before the High Court to suggest even remotely that Respondent was notified of the date of the trial. All the affidavits of service put before the High Court referred to proceedings other than the date Page 37 of 69 of trial. The submission therefore that Respondent had no notice of the date of the trial cannot be controverted by one single piece of evidence”. [4.1]. On the 26th day of May 2017, the Plaintiff/Respondent filed a notice of motion for “an order setting aside the judgment [of the] court dated the 27th day of March 2015”. The motion was accompanied by an affidavit sworn by the Plaintiff herein. Exhibit 10 which can be found at page 163 volume 1 of the record of appeal contains the said motion and the attached affidavit. Paragraph 29 to 35 of the affidavit is very germane to the issue being discussed. In these paragraphs the Plaintiff deposed as follows: “29. That in so far as my deposition that the judgment sought to be set aside was delivered against me in breach of the rules of natural justice is concerned, I depose emphatically that I had no notice whatsoever of the trial proceedings resulting in the judgment of this Court sought to be executed against me. 30. That upon procuring some of the processes leading to the judgment of the Court, my lawyers have confirmed my instructions to them that I had no knowledge of the processes that resulted in the judgment sought to be executed against me and which I seek by this application to set aside. 31. That my lawyers have advised me and I verily believe same to be true that by an order of this Court dated the 12th day of January 2015, exhibited hereto and marked L this court ordered among others that I be served with the entry of interlocutory judgment in which was incorporated, the date on which the plaintiff was required to prove his right to the land in the following manner: i. Posting same on the property in dispute which, as per the plaintiff’s endorsement on his writ of summons is situate at Roman Ridge. Page 38 of 69 ii. Posting copies on the notice board of the Court. 32. That a reading of the proof of service of the entry of the interlocutory judgment which is exhibited hereto and marked M will reveal that the entry of interlocutory judgment was posted at a location at Dzorwulu instead of Roman Ridge as ordered by this Court or must be necessarily implied into it. 33. That my lawyers’ curiosity was initially aroused by the fact that the bailiff; DANIEL Y. FEVLO whose affidavit of service was relied upon to prove that the entry of interlocutory judgment was indeed posted on the land in dispute, situate at Roman Ridge as ordered by this Court had earlier sworn to an affidavit proving service on Alhaji Adams of the plaintiff’s amended writ of summons and statement of claim at Roman Ridge. Exhibited hereto and marked N is a copy of the proof of service about which I have just deposed. 34. That a cursory comparison of exhibits M and N attached hereto will reveal that although they were purportedly sworn by the same bailiff: DANIEL Y FEVLO the handwritings in them are different and the signatures are different thereby satisfactorily explaining the point of curiosity which engaged my lawyers the subject matter of my deposition at paragraph 33 above. 35. That my depositions at paragraphs 28 to 34 herein put beyond doubt my case that I had no notice of the processes leading to the judgment of this Court sought to be executed against me and which is sought to be set aside by way of the application before this Court the reason being that, exhibit L confirms without a shred of doubt that the order of this Court directing service on me of the notice of trial, was not complied with.” Page 39 of 69 The above depositions constitute clear evidence that the issue of service or non-service of hearing notice indicating the date for the trial of suit number L.205/2002 was key to the application to set aside the said judgment. The court heard the motion and, in a ruling, dated the 8th day of June 2017, which is captured at page 176 volume 1 of the record of appeal, the court found that the application was unmeritorious. The court therefore dismissed the said application. The procedure in a situation such as this, where an applicant is dissatisfied with a ruling of the High Court such as the one referred to at page 176 of volume 1 of the record, is for the applicant to lodge an appeal against the ruling to the appropriate court; in this case, the Court of Appeal. Article 137(1) and (2) of the Constitution, 1992 makes this clear. It states that: “137. Jurisdiction of the Court of Appeal (1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law. (2) Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.” These provisions are repeated in section 11(1) and (2) of the Courts Act, 1993, Act 459 as amended. Thus, it is not open to the dissatisfied party, in this case, the Plaintiff, to start a fresh action and urge upon the court in that action the very issue that had been determined against which he had the right to appeal which he failed to utilise. If it were not so, litigation will never come to an end. The issue of whether or not the Plaintiff was Page 40 of 69 served with the hearing notice leading to the judgment in Suit number L.205/2002 was raised by the Plaintiff/Respondent in his application to have that judgment set aside and once a ruling was given by the High Court on the application, the remedy opened to the Plaintiff was to appeal. Consequently, we hereby endorse the principle of law stated in Rawanji Brothers and Others vs. Patterson Zochonis and Co., Ltd. (Consolidated) [1975] 2 GLR 352, that: “Where an issue had in substance been fundamental to the decision in an earlier proceeding between the same parties, each of the parties to the earlier proceedings would be estopped from re-litigating that issue in any subsequent action between the same parties.” The same principle is stated in Mensah vs. Bimpeh [1980] GLR 141the effect that: “The definite finding of the Court of Appeal on the crucial issue of non-service of hearing notice which was raised unsuccessfully by B. could not be re-opened. That finding, not being obiter, raised an “issue estoppel” against B.” In the English case of Rachel vs Magrath (1889) LR 14 AC, Lord Halsbury drummed home the point when he stated that: “I think it will be a scandal to the administration of justice if the same question having been disposed of by one case, the litigant was to be permitted by changing the form of the proceedings to set up the case again. I believe there must be an inherent jurisdiction in every court of justice to prevent an abuse of its procedure.” Page 41 of 69 As stated therefore, the issue of whether or not hearing notice leading to the judgment in suit number L.205/2002 was served on the Plaintiff herein was determined by the High Court and if the Plaintiff was aggrieved by that ruling his remedy laid in an appeal and not a fresh action. Thus, in Nana Asumadu II (Substituted by Nana Darku AMPEM) & Another vs. Agya Ameyaw (supra) this court held that: “Having pleaded fraud, the particulars of which the plaintiff provided under paragraph 6 of their statement of claim … which connotes the imputation of crime on the part of the defendant in obtaining the judgment, the law requires the plaintiffs to establish that allegation clearly and convincingly and beyond reasonable doubt …. The facts on record did not permit the trial court to re-open the dispute over title to Diaso lands, as the parties and the reliefs claimed in this suit were the same as those in Suit No. LS. 45/2000. The trial court should have identified the allegation of fraud as the main issue in the matter before it and address that issue only, but it did not do so.” The position of the law therefore is that where an issue had been brought up and determined by a court, the aggrieved party will not be allowed to institute a fresh action to ventilate the very issue that had already been determined by the court. The remedy opened to such a party is to lodge an appeal against the judgment or the ruling given by the court. The main aim of this rule is to ensure that litigation comes to an end. In the instant matter therefore, the remedy available to the within-named Plaintiff was to appeal and not to institute a fresh action and raise the issue of the service or non-service of hearing notice for a fresh determination by the trial High Court. Page 42 of 69 [4.2]. Unfortunately, their lordships at the Court of Appeal treated the issue before them as though the suit was about the allegation of non-service of hearing notice leading to the judgment in suit number L.205/2002. At page 187 volume 2 of the record of appeal, the Court of Appeal stated, among others, that: “The fundamental issue in this case, in our view, is the complaint by the Plaintiff that the court below erred in law when it held that the evidence adduced before the said court confirmed that the Plaintiff was duly served with notice of the date of the trial resulting in the judgment of the High Court dated the 27th March 2015 in suit number L.205/2002 intituled Frank Nuamah vs Adjei Darko & 2 Others” After making the observation quoted above the Court of Appeal then proceeded to determine whether or not hearing notice was served on the Plaintiff. At page 202 of the record, the Court of Appeal stated that: “The instant appeal is inviting the court to determine the narrow issue which is, whether or not the Plaintiff was duly served with hearing notice of the trial proceedings to determine the case.” With the greatest respect to their lordships at the Court of Appeal, the fundamental issue before them was not whether or not the Plaintiff was duly served with hearing notice, and the appeal before the Court did not, in law, invite the Court of Appeal to determine the issue of service or non-service of hearing notice. As stated herein, where a party seeks to set a judgment aside on grounds of fraud in a fresh action, the only remedy available to him is an order to set aside the judgment on grounds of fraud. This calls for proof of the allegation of fraud and none other. In the instant matter, the only issue that the law permits the Plaintiff to prove is the allegation of fraud. Indeed, the Court of Appeal like Page 43 of 69 the High Court can only examine the allegation of fraud before the High Court to find out whether that allegation was proved or not. It is not within the powers of the Court of Appeal in that instance to set the judgment aside on any other ground apart from fraud. The whole judgment of the Court of Appeal was based on its enquiry with respect to the allegation of non-service of hearing notice. In the end the Court held as stated in this judgment that: “Having found from the evidence on record that the Plaintiff was not served with hearing notice of the trial, a breach of the rules of natural justice had occurred with the result that the said trial court lacked the jurisdiction to so proceed to hear the matter and enter judgment against the Plaintiff. The appeal thus succeeds. Accordingly, the judgment of the High Court of 27th March 2015 against the Plaintiff is hereby set aside”. Thus, the basis for setting aside the judgment by the Court of Appeal was not grounded on proof of fraud but on non-service of hearing notice. The Court of Appeal therefore erred on the basis for which they proceeded to set aside the judgment. That path was, with respect, not opened to them. [5.0]. Allegation of fraud: The Defendant/Appellant says in his second ground of appeal that “the holding by the Court of Appeal that the judgment of the High Court dated 27th March 2015 (sic) in the suit titled Frank Nuamah vs. Adjei Darko & 2 Others (Suit No. L205/02) was procured by the fraud of the defendant/respondent/appellant was against the weight of the evidence”. Page 44 of 69 [5.1]. On this ground, it has been submitted on behalf of the Defendant/Appellant that the Court of Appeal found fraud on grounds which were neither pleaded nor proved and described them as ‘concealment or suppression of evidence’ and that fraud, in whatever form it is described is a very serious allegation to make and for that matter it requires strong evidence. For that reason, counsel argued, the Respondent had a duty to prove the issue of fraud beyond reasonable doubt. According to counsel the position adopted by the Court of Appeal could be summed up as follows: “(1). The Appellant had a duty to ensure service. (2). The Appellant failed to perform the said duty and therefore; (3). The Appellant knowing he failed to perform the duty, concealed the fact of his failure from the court.” Counsel submitted that no evidence was presented to the trial court from which the Court of Appeal could infer or impute fraud to the Defendant/Appellant. In the words of counsel “it was erroneous for the Court of Appeal to elevate an allegation of suppression of evidence made in submissions by counsel to the level of proof required to set aside the judgment of a High Court.” Counsel concluded his arguments by submitting that the allegation of fraud was not proved. [5.2]. In response, it was submitted on behalf of the Defendant/Respondent that “the evidence adduced by the Appellant at the High Court clearly established the fact that the court was misled by a false representation into giving the judgment the subject matter of the instant proceedings”. According to counsel, the “Respondent’s case on fraud in so far as the Respondent’s pleadings are concerned deal with four main areas of misrepresentation, which are (i) notice of the date of the trial; (ii) Plaintiff’s identity; (iii) identity of the land in dispute; and (iv) cause of action. According to counsel, the trial court failed to “capture the key procedural requirement of notice to the parties of the date of the trial on the basis of which the court gave its judgment”. It was further submitted on behalf of counsel that “the evidence adduced at the court will confirm that Appellant misrepresented to the court the fact that Respondent had no notice of the date of the trial. Page 45 of 69 The reason is that Appellant had an obligation to draw the court’s attention to the lack of service of a hearing notice on the parties as to the date of the trial prior to the date of the trial”. According to the Respondent, “it is the deliberate withholding from the court information regarding service on the parties as to the date of the trial which constitutes the acts of misrepresentation”. It was also submitted on behalf of the Respondent that the Respondent is not and has never been known as Alhaji Adams and that the Appellant falsely represented to the court that the Respondent was the person named as the 3rd Defendant in the suit. It was further argued on behalf of the Respondent that “to the extent that Appellant insists that the judgment which was set aside affects his land, then Appellant deliberately misrepresented to the court that the land belongs to him (Appellant) when Appellant knew that the lands are distinct”. [5.3]. Where a party, (particularly a defendant) perceives that the writ of summons and the statement of claim of his opponent discloses no cause of action and yet judgment had been entered in favour of the opponent, the remedy available to him is to apply to the court to have the said judgment set aside especially where he alleges that he was not served with the writ leading to the said judgment. The party may also appeal against the judgment. An allegation as to the non-existence of a cause of action is a ground to apply to the trial court to dismiss the action under Order 11 rule 18(1)(a) of the High Court (Civil Procedure) Rules, 2004, CI.47 which provides that: “18. Striking out pleadings (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a) it discloses no reasonable cause of action or defence; and may order the action to be stayed or dismissed or judgment to be entered accordingly”. Page 46 of 69 Accordingly, on the 26th May 2017, the Defendant/Respondent herein filed an application with a supporting affidavit to set aside the entire judgment delivered by the court on the 27th March 2015. Exhibit 10 found at page 163 volume 1 of the record of appeal attests to this fact. As part of the depositions in the supporting affidavit to the application to set aside judgment, the Defendant deposed at paragraph 26 as follows: “26. That I maintain my deposition at paragraph 25 above and depose that I have been advised by my lawyers and verily believe same to be true that the Plaintiff’s suit therefore discloses no cause of action at all against Alhaji Adams and less still myself for which reason this court ought to have refused Plaintiff’s reliefs sought against me in the suit”. The application to set aside the judgment, as already pointed out, was dismissed by the court on the 8th June 2017. See exhibit 11 at page 176 volume 1 of the record. Having been dismissed therefore the remedy available to the Plaintiff/Respondent herein was to file an appeal against the dismissal of the application. The available remedy is not to institute a fresh action on the allegation, among others, that the alleged non-disclosure of a cause of action amounts to fraud on the part of the Defendant/Appellant. Indeed, whether or not a cause of action is disclosed by a writ of summons and a statement of claim is a pure question of law for the determination of the court. It is not an issue of fact for which one could be accused of fraud. That is why under Order 11 rule 18(2) of the Rules of the High Court, no evidence is admissible when a party applies to strike out a pleading on the grounds of fraud. The contention on behalf of the Respondent that the alleged non- disclosure of a cause of action in the writ leading to the judgment in suit number L.205/2002 is tantamount to fraud against the Appellant does not meet the requirements of the law. Page 47 of 69 [5.4]. Again, a contention that the land being claimed by Defendant herein is not identical with the land possessed by the Plaintiff does not create a cause of action in fraud. This contention dovetails into the allegation by the Plaintiff/Respondent that he is not the same person as Alhaji Adams who was the 3rd Defendant in suit number L.205/2002. In this respect, it was argued by counsel for the Defendant/Respondent that: “Respondent also contends that to the extent that Appellant insists the judgment which was set aside affects his land, then Appellant deliberately misrepresented to the court that the land belongs to him (Appellant) when Appellant knew that the lands are distinct…” The logic in the above submission is difficult to fathom. That just because Appellant says that the judgment set aside by the Court of Appeal affects his land, it implies that the Appellant misrepresented to the court that the land is owned by him. In the first place, the judgment set aside by the Court of Appeal was a judgment which dismissed the Plaintiff’s action and claim that the judgment in suit number L.205/2002 was obtained by fraud. The central issue which was lost on the Court of Appeal in respect of the judgment which was set aside by that court was whether or not the Appellant obtained the judgment in suit number L.205/2002 by fraud. Ownership of the land which was the subject matter in suit number L205/2002 was not an issue in the judgment set aside by the Court of Appeal. Hence, Appellant could not be heard to say that the judgment set aside by the Court of Appeal affected his land. That argument is a non-sequitur. The Plaintiff/Respondent made admissions, in his supporting affidavit to the motion to set aside the judgment in suit number L.205/2002, that he acquired his land from the 2nd Defendant in suit number L.205/2002. Paragraphs 38 and 40 at pages 172 and 174 respectively, speak to this fact. The Plaintiff/Respondent again admitted this fact during Page 48 of 69 cross examination at page 196B. In an application for an order to review his conviction for contempt of court marked as exhibit 2 which can be found at pages 136 to 139 of volume 1 of the record, the 2nd Defendant, Francis Don Lartey, in suit number L.205/2002 caused one Nii Kojo Yaw Sackey to swear to an affidavit that, the workers who were found working on the land in dispute leading to his conviction for contempt of court were the workers of Alhaji Adams and that “all the proceedings were taken against Alhaji Adams…”. On this deposition, counsel argued on behalf of the Plaintiff/Respondent that, “all that the deponent says in exhibit 2 is that he has the authority of Francis Don Lartey to depose to the affidavit on his behalf. Nowhere does the deponent say that the facts to which he deposed to were related to him by Francis Don Lartey”. This submission is very strange indeed. That the deponent has authority to swear to an affidavit but that the principal on whose behalf the affidavit is sworn cannot take responsibility for the content of the affidavit. We wish to make it clear that once a principal authorises an agent to swear to an affidavit on the behalf of the principal, the principal takes full responsibility for the content of the affidavit and the content thereof is as binding on the principal in the same manner and degree that it would have bound him if he had sworn to the affidavit personally. The depositions in the affidavit coupled with the admissions by the Plaintiff/Respondent together shows that, the Alhaji Adams who was mentioned in the affidavit is the same person as the Plaintiff/Respondent herein and for that matter the Plaintiff/Respondent cannot be heard to say that the Defendant/Appellant misrepresented his Plaintiff’s identity to the court in suit number L.205/2002. [5.5]. The Plaintiff/Respondent finally argues that no hearing notice was served on the parties with respect to “the date of the trial on the basis of which the court gave its judgment”. Counsel, referred to exhibit ‘J’ an affidavit of service and submitted that “the Page 49 of 69 bailiff was never entrusted with any hearing notice for service on the parties to the suit before the court as to the date of the trial before the trial resulting in the judgment of the court sought to be set aside…”. Counsel then submitted that “it is by reason of the evidence just discussed that Respondent contends in this submission that the judgment of the court which was set aside by the Court of Appeal was procured by fraud…” Counsel continued his submission and stated that “the evidence adduced at the court will confirm that Appellant misrepresented to the court the fact that Respondent had no notice of the date of the trial. The reason is that Appellant had an obligation to draw the court’s attention to the lack of service of hearing notice on the parties as to the date of the trial, prior to the date of the trial”. [6.0]. A careful reading of the judgment of the Court of Appeal shows that the judgment of their lordships dwelt on the alleged non-service of hearing notice. Judgment was indeed founded on the alleged non-service of hearing notice on the Plaintiff/Respondent. For instance, at page 187 of the record, the Court of Appeal opined that the main issue before them “is the complaint by the Plaintiff that the court below erred in law when it held that the evidence adduced before the court confirmed that the Plaintiff was duly served with notice of the date for trial resulting in the judgment of the High Court dated the 27th March 2015 in suit number L.205/2002…It is important to underscore that this complaint deals with notice of the date of trial and no other date”. Again, at page 202 of the record of appeal, the Court of Appeal observed that “The instant appeal is inviting the court to determine the narrow issue which is, whether or not the Plaintiff was duly served with hearing notice of the trial proceedings to determine the case”. Their lordships then delved into a discussion of whether or not hearing notice of the date of the trial was served on the Plaintiff/Respondent. Finally, their lordships concluded their judgment, as already quoted by holding that: Page 50 of 69 “Having found from the evidence on record that the Plaintiff was not served with hearing notice of the trial, a breach of the rules of natural justice had occurred with the result that the said trial court lacked the jurisdiction to so proceed to hear the matter and enter judgment against the Plaintiff. The appeal thus succeeds. Accordingly, the judgment of the High Court of 27th March 2015 against the Plaintiff is hereby set aside”. As earlier stated in this judgment, the main issue before their lordships was not the non- service of the hearing notice of the date of the trial. Rather the main issue was whether the Defendant/Appellant herein perpetrated fraud on the Plaintiff/Respondent by virtue of the alleged non-service of the hearing notice. On the issue of fraud, the Court of Appeal stated at page 198 of the record that: “In the instant case, while the evidence of non-service of the hearing notice of the commencement of trial was so clear and was admitted by the Defendant’s attorney, the said default was alleged to have been suppressed by the Defendant from the court below during the first trial proceedings and thereafter had the undue advantage of proceeding with the case on the blind side of the Plaintiff. The conduct of the Defendant of purportedly suppressing or concealing from the trial court in the first proceedings, his default in ensuring service of the hearing notice on the Plaintiff, falls within the definition of fraud…” It is very clear from the above statement that the Court of Appeal did not make any clear and unequivocal finding of suppression or concealment of the alleged non-service of hearing notice by the Defendant/Appellant. The Court of Appeal rather relied on the allegation of suppression of non-service to come to its conclusion that it “falls within the definition of fraud”. With respect to their lordships at the Court of Appeal, the fact that Page 51 of 69 hearing notice had not been served by a party is not evidence of fraud. Fraud entails elements and ingredients beyond allegation of non-service. To constitute fraud, in this context, it must be proved that there was an intentional and deliberate action on the part of the Defendant/Appellant to actually deceive the court into thinking that service of hearing had been effected on the Plaintiff when in fact it had not. The learned editors of Halsbury’s Laws of England (5th ed.) Volume 47 state at page 16 paragraph 13 that: “The court has never ventured to lay down, as a general proposition, what constitutes fraud. Actual fraud arises from acts and circumstances of imposition. It usually takes either the form of a statement of what is false or suppression of what is true.” At page 17 the learned editors write: “A person is guilty of fraud if: (1) he dishonestly makes a false representation, and intends, by making the representation, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss; (2) he dishonestly fails to disclose to another person information which he is under a legal duty to disclose and intends, by failing to disclose the information, to make a gain for himself or another or to cause loss to another or to expose another to a risk of loss; or (3) he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuses that position, and intends, by means of the abuse of that position, to make a gain for himself or another, or to cause loss to another or expose another to a risk of loss”. That element of wilful act, that element of intentional act to suppress the non-service of the hearing notice was not actually proved by the Plaintiff/Respondent. The Plaintiff Page 52 of 69 merely led evidence to show, allegedly, that he was not served with hearing notice of the date of the trial. The Plaintiff failed to lead evidence to show that the alleged non-service of hearing notice was a deliberate and wilful act calculated with the intention of deceiving the court into believing what does not exist. Is it the case that whenever a party to a civil suit is alleged to have defaulted in the service of hearing notice on his opponent, that party has, by that allegation or that default, committed fraud? That is very doubtful! It is not just any evidence that is capable of proving fraud. Fraud is a criminal offence and therefore evidence adduced to establish fraud must be of such quality as is capable of proving the offence beyond reasonable doubt. Thus, section 11(1) and (2) of the Evidence Act, 1975, NRCD 323 states in no uncertain terms that: “11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt”. Section 13(1) of NRCD 323 puts the matter beyond reasonable debate when it provides that: “13. Proof of crime (1) In a 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”. See Aryeh & Akakpo vs. Ayaa Iddrisu [2010] SCGLR 891. Page 53 of 69 This court, therefore, pointed out in Osei-Ansong & Passion International School vs. Ghana Airports Co. Ltd. [2013-2014] SCGLR 25 that: “The settled law and practice of the courts was that the proper method of impeaching a 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”. As stated earlier, the evidence adduced by the Plaintiff/Respondent was not of that quality that proves that the Defendant/Appellant deliberately and intentionally defaulted in serving hearing notice on the Plaintiff/Respondent. [6.1]. We have already pointed out in this judgment that where a party alleges that judgment had been given against him without the benefit of notice of the hearing being given to him, the remedy open to that party is to apply to have that judgment set aside or appeal against that judgment. And, where an application for an order to set aside the judgment is refused the remedy available to the party is to appeal and not to institute a fresh action and allege the non-service as amounting to fraud as the Plaintiff sought to do in this case. The Plaintiff/Respondent indeed applied to set aside the judgment in suit number L.205/2002. That application, as pointed out was refused by the court. However, instead of appealing the ruling of the court, the Plaintiff/Respondent chose to institute this present action. We deem that to be an abuse of the process of the court. It is not surprising therefore that the Plaintiff/Respondent failed to adduce the needed evidence to prove the allegation of fraud beyond reasonable doubt. Page 54 of 69 [6.2]. The circumstances under which this court, as a second appellate court may interfere with the judgment of the first appellate court have been succinctly stated in Koglex Ltd. (No.2) vs. Field [2000] SCGLR 175. At page 184 to 185, the Court, speaking through Acquah JSC (as he then was), held that: “Briefly, the primary duty of an appellate Court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself that the said findings are supported by the evidence on record. Where there is no such evidence that findings ought to be set aside. However, where such findings of the trial Court are based solely on the demeanor and credibility of witnesses, then the trial Court which had the opportunity of seeing and hearing the witnesses, is in a decidedly better position than an appellate Court. And therefore, an appellate Court should be extremely slow in interfering with such findings. On the other hand, where the findings are based on established facts, then the appellate Court is in the same position as the trial Court and can draw its own inferences from those established facts. “A second appellate Court, like the Supreme Court, is bound by the same principles set out above. It must satisfy itself that the judgment of the first appellate Court was justified or supported by evidence on record. Where there was no such evidence that finding ought to be set aside”. However, where the first appellate Court has confirmed the findings of the trial Court, the second appellate Court is not to interfere with the concurrent findings unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice is apparent in the way in which the lower Court dealt with the facts. Page 55 of 69 It is therefore clear that, a second appellate Court, like this Supreme Court can and is entitled to depart from findings of fact made by the trial Court and concurred in by the first appellate Court under the following circumstances: 1. Where from the record the findings of fact by the trial Court are clearly not supported by evidence on record and the reasons in support of the findings are unsatisfactory. 2. Where the findings of fact by the trial Court can be seen from the record to be either perverse or inconsistent with the totality of evidence led by the witnesses and the surrounding circumstances of the entire evidence on record. 3. Where the findings of fact made by the trial Court are consistently inconsistent with important documentary evidence on record. 4. Where the first appellate Court had wrongly applied the principle of law in Achoro vrs Akanfela [1996-1997] SCGLR 209 and other cases on the principle, the second appellate Court must feel free to interfere with the said findings of fact, in order to ensure that absolute justice is done in the case.” [6.3]. Conclusion: We are satisfied that the first appellate court, the Court of Appeal, misconceived the main issue which was before the trial judge and which was the sole issue on appeal, to wit: whether or not the judgment in suit number L.205/2002 was obtained by the fraud of the Defendant/Appellant herein. Indeed, as a result of the failure to grasp the main issue the wrong principle of law was applied to decide the case as though the issue before the court was the breach of the rules of natural justice. We hold that the Plaintiff/Respondent herein failed to prove his allegation of fraud against the Defendant/Appellant beyond reasonable doubt. The appeal therefore succeeds. We therefore set aside the judgment of Page 56 of 69 the Court of Appeal dated the 10th November 2022 and restores the judgment of the trial High Court in Suit Number LD/0626/2017 dated the 20th day of November 2020. (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) CONCURRING OPINION ADJEI-FRIMPONG JSC: My Lords, subject to what follows, I agree entirely with the sound reasoning and conclusions of my esteemed brother Asiedu JSC which I have had the privilege of perusing. I choose to contribute this piece to add impetus to the conclusion. I mainly reason that, by the conclusion we come to, we end up preferring the decision of the single trial judge to that of the learned and respected justices of the Court of Appeal, a position this Court should at all times be slow and have strong cause to take. By the way, the case itself has its roots in a different suit in the High Court to which the Defendant/Respondent/Appellant (henceforth “Defendant”) was not originally a party. It all started when a certain Frank Nuamah commenced an action against one Adjei Darko to claim a plot of land situate at Roman Ridge, Accra. That was Suit No L.205/2002 intituled Frank Nuamah v Adjei Darko. Interestingly, in the entire trajectory of that whole litigation, the said Adjei Darko never surfaced. In the course of that suit however, one Francis Don Lartey (Don Lartey), claiming to be the owner of the subject plot, successfully applied to join in it. Page 57 of 69 Sequel to his joinder, Don Lartey was to find himself in trouble. He was convicted by the Court for contempt, for flouting a subsisting order of interlocutory injunction. This conviction appears to have launched into the litigation the Plaintiff/Appellant/Respondent (henceforth “the Plaintiff”). This is what transpired. Don Lartey had sought a review of his committal for contempt. In his application for the purpose, he disclosed that he had disposed of the plot to one ‘Alhaji Adams’ who incidentally, was the one developing it. This individual was thought to be the Plaintiff, a controversy that has raged on throughout this litigation. Upon Don Lartey’s disclosure, the Defendant mounted contempt proceedings against the Plaintiff (as Alhaji Adams). This was unsuccessful. The reason was that the Plaintiff was not a party to the said suit. He was thus left off the hook. Not resting at that however, the Defendant successfully applied to join the Plaintiff to the action. The writ was amended and ordered to be served on the Plaintiff by substituted service. This was supposed to have been duly done even though the position is roundly disputed. Later, on the footing that all the Defendants in the suit had been served with the relevant processes but failed to defend the action, the High Court, coram Ocran J proceeded to hear the matter and give judgment in favour of the Defendant herein (Plaintiff therein). The judgment appeared to have been duly executed culminating in the Defendant being placed in possession of the land. Months thereafter, and for the second time, the Plaintiff was made to face a fresh contempt charge over the land. He was alleged to have, with the aid of thugs, forcibly re- entered and taken possession of it. This time, he was not fortunate. The High Court Coram Daniel Mensah J convicted him. Apparently aggrieved by these developments, Page 58 of 69 the Plaintiff sought to have the judgment of Ocran J set aside. His Lordship however dismissed the application as being without merit. Noteworthy it is, that the Plaintiff opted not to exercise his right of appeal against any of the decisions of Ocran J nor that of Daniel Mensah J (in the contempt matter). Rather he sought to file a fresh writ to set aside the substantive judgment of Ocran J on grounds of fraud and when he did, he couched his reliefs as follows: (i) A declaration that the judgment of this Court dated the 27th day of March 2015 [sic]was procured by fraud, misrepresentation breach of rules of natural justice and want of jurisdiction (ii) An order setting aside the judgment of this Court dated 27/03/15 [sic] (iii) An order of perpetual injunction restraining the defendant/respondent, his agents, servants assigns, privies and/or any person(s) howsoever claiming through them from entering upon or interfering with Plaintiffs right to ownership of and quiet enjoyment of all that piece or parcel of land situate or lying and being at Roman Ridge measuring 0.51 acre and bounded on the North East by land measuring 250 feet more or less, South East by a proposed road measuring 100 feet more or less, on the South West by a lane measuring 140 feet more or less, North West by land measuring 150 feet more or less. (iv) Damages for trespass unto the Plaintiff’s land described in (iii) above. Not much is required to see from the above reliefs that the Plaintiff’s action in reality, attempts a re-litigation of ownership of the land and not merely to have the judgment set aside for fraud. This approach to the Court to set aside a judgment on grounds of fraud must be deprecated. The law regarding bringing such actions is settled. It is fraud and fraud alone that must be an issue. It is not an avenue to allege a fresh cause of action in Page 59 of 69 any shape or colorization. The rationale is to ensure that a clear and precise allegation of fraud is made so that the issue is properly joined on the question whether fraud was established or not. See WOOD V GAHLINGS (1996) TLR 684 C. A. The history behind this established practice which evolved from the exercise of the English Courts’ equitable jurisdiction throws light on the stricture of the practice. This is captured in the statement of SIR GEORGE JESSEL M. R in FLOWER V LLOYD (1877) 6 CH D 297 referred to in the recent decision of the UK Supreme Court in TAKHAR V GRACEFIELD DEVELOPMENTS LIMITED & ORS [2019] UKSC 13 at 19 per Lord SUMPTON thus: “An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action. As applied to judgments obtained by fraud, the historical background was explained by Sir George Jessel MR in Flower v Lloyd (1877) 6 CH D 2 97, 299 -300. Equity has always exercised a special jurisdiction to reverse transactions obtained by fraud. A party to earlier litigation was entitled to bring an original bill in equity to set aside the judgment given in that litigation on the ground that it was obtained by fraud. Such a bill could be brought without leave, because it was brought in support of a substantive right. If the fact and materiality of the fraud were established, the party bringing the bill was absolutely entitled to have the earlier judgment set aside. In this respect, an original bill differed from a bill of review on the basis of further evidence, which was essentially procedural and did require leave. After the fusion of law and equity in the 1870, the procedure by way of original bill was superseded by a procedure by action on the same juridical basis.” On the footing of this passage, the learned judge espoused: Page 60 of 69 “The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not the underlying dispute…” And it was to same effect, I believe, that Lord Buckmaster in HIP FOONG HONG V H. NEOTIA & CO (1918) AC 888 observed: “A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail; but in the present case their Lordships are unable to say that such a case has been established. They think the judgment of the Supreme Court was in its conclusion correct. They have only to add that, where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can properly be defined, fought out, and determined …” Our courts should also have in mind, for purposes of insisting on determining fraud as the sole cause of action in such cases, the ‘third trial’ phenomenon that ensues in the event the fraud allegation is established. The effect of such eventuality is that the judgment is set aside, and the case goes on for a third trial on the merits. This adds to the policy rationale for disallowing any other cause of action to be entertained in addition to that of fraud in such actions. For if in the end, the fraud allegation prevails, there is an opportunity in the ‘third trial’ to ventilate the underlying claim. This Court must therefore reaffirm and be emphatic on its position in such cases as Okwei Mensah (Decd) (acting by) Adumuah Okwei vs Laryea (Decd) Ahieteye Laryea & Anor [2011]1 SCGLR 317 and SIC Insurance vs Ivory Finance Company Ltd & Others civil Appeal No. J4/48/2017 (21st Page 61 of 69 February 2018) thus; where an action is brought to set aside a judgment on grounds of fraud, it will not be permissible to plead any other point either factual or legal that has the effect of raising a substantive issue or a cause of action aside that of fraud. The foregoing must lead me to the overarching issue in this case which is whether or not the judgment of Ocran J in the suit intituled Frank Nuamah v Adjei Darko (hereafter to be called the “original judgment”) was obtained by fraud. The trial judge had answered the issue in the negative. The Court of Appeal however decided otherwise hence the instant appeal, the grounds of which are not material to reproduce for my purpose. In the statement of claim, the Plaintiff’s fraud allegation was particularized in a miscellaneous fashion. The essence was however captured by the trial judge as follows: “That the Plaintiff is not known by the name “Alhaji Adams” as referred to in Suit No. L205/2002 which he seeks to set aside. That the processes were not properly served on him but were represented by the court [sic] to have been served. That the land in dispute is not the one and the same and as such the Defendant had no cause of action against him.” [Page 327 Vol 1 ROA] It is significant to note that not only were these matters alluded to in the Plaintiff’s affidavit in support of his application to set aside the original judgment which was dismissed by Ocran J as being without merit but were also the crux of the defence put up before Daniel Mensah J in the contempt application. Let me for now, limit myself to the findings made by Daniel Mensah J in the contempt proceedings. On the issue about the name Alhaji Adams, the judge found: Page 62 of 69 “The respondent has told the court in this application that he is not Alhaji Adams but Ahmed Muddy Adam and had attached his national identity card. But the question to be posed at this point is whether the claim by the respondent backed by his national ID is conclusive on the point. I don’t think so because of the dispute firstly between the applicant and the respondent’s grantor Francis Tetteh Don Lartey who had stated through his grandson that he had assigned his interest in the property to the respondent. In the said application the respondent had been referred to as Alhaji Adams same as being referred to in this application. What is more the name Alhaji Adams had been used to file the contempt application in 2009. In the said application which the Court dismissed against the respondent, the respondent complicated matters by filing for entry of cost of GHC1000 awarded in his favour. In fact he did not raise any objection prior to and even after the ruling. To make matters even worst [sic] his own grantor had mentioned his name as Alhaji Adams such that it would make sense to refer to him as such. From the totality if the evidence before this court notwithstanding the claim by the respondent that he assumes another name, the evidence clearly points to him as the one who had been sued as the 3rd defendant in the suit No L205/2002 as Alhaji Adams which other name he himself had used before.” [Page 88—89 Vol 1 ROA] Then on the issue about service of the processes on the Plaintiff, he found: “Before I would go to determine this issue, the respondent had stated that he had not been served with any processes leading to the judgment and even after neither has any of the occupants been served… In the judgment of the court dated 27th March, 2014 the High Court presided over by Mr. Justice S. H. Ocran in delivering the judgment of the court had this to say: “—Two other parties were joined to the suit as 2nd and 3rd defendants and amended writ of summons and amended statement of claim were served on them by Page 63 of 69 substituted service. As the defendants failed or refused to react to the amended writ and statement of claim default judgment was entered against them. The plaintiff then filed entry of interlocutory judgment on which the date to prove title was indicated. This was also served on the defendants by substituted service and on the 29th January, 2015 the plaintiff proved his title per his attorney Christopher Adomako…” It is the said proof that culminated in the judgment of this court which the respondent as 3rd defendant in the suit had been served by substituted service together with the two (2) defendants… Per the processes filed in this court the respondent cannot be in denial of having knowledge of the suit leading to the execution.” [Page 89-90 Vol1 ROA] Finally, concerning the identity of the land, he observed the following: “From the processes filed in this case, one is not left in doubt the identity of the land in question. The plaintiff had sued two (2) persons as the 1st and 2nd defendants and it was as result of the 2nd defendant applying for review of conviction of contempt that he filed exhibit M in which he averred the following in paragraph 13 of his affidavit in support. 13. that the workers allegedly working on the land were not the agents of my grandfather as he had disposed the land to one Alhaji Adams. The said affidavit had been sworn to by Nii Kojo Yaw Sackey grandson to Francis Tetteh Don Lartey asking for the review of conviction and sentence for contempt of court on the 17th September, 2009. That was the first time that the respondent’s name had been given in the suit. Per the processes filed in this court by the respondent it is not in doubt that he claims from the said Francis Tetteh Don Lartey… To the extent that the applicant had sued for the recovery of the land in dispute from 2nd persons including the respondent’s grantor and later the respondent himself, it stands to reason the land in dispute refers to one and only land being the land over which the High Court had decreed title in the applicant culminating in the execution being levied on it on the 18th May 2016.” [Page 87-88 Vol 1 ROA] Page 64 of 69 Now it was partly, if not mainly, based on these findings that the learned trial judge in the instant suit declined to set aside the judgment on grounds of fraud as she thought the matters put forth had been resolved particularly, by the court in the contempt application. In the words of the trial judge: “In the same vein, the issues on service of the process and identity of the land have been dealt with and findings of fact made on them in the said judgment, which judgment on the record is unchallenged. In my view, the evidence adduced in this case in proof of the allegation of fraud and misrepresentation does not meet the required evidential burden and as such the case of the Plaintiff on that score will fail.” [Page 329, VOL 1 ROA] This position raises the threshold question of whether in the face of these findings by Daniel Mensah J, the Plaintiff was at liberty to re-litigate the same matters before the trial court in the suit to set aside the judgment of Ocran J on grounds of fraud. Put differently, could the issues about the Plaintiff’s identity (as Alhaji Adams), the identity of the land and the service of the processes in respect of which findings had been made in the contempt proceedings be relitigated in the fresh suit to set aside the judgment on grounds of fraud. Counsel for the Plaintiff argues that the matters could be re-litigated. His thinking is that the contempt application involved different issues. He submits: “The judgment of the High Court also found that the issues raised for determination by Respondent had been previously determined by the High Court in the contempt proceedings between the parties. This finding cannot be correct. The reason for the above submission is simple. In contempt proceedings the issue to be determined is whether or not Page 65 of 69 a person acted in contempt of court. In this case, Respondent raised a number of issues including his identity and the identity of the land.” [Page18 of Plaintiff/Appellant/Respondent’s statement of case filed on 19/02/2024] This proposition by Counsel is difficult to accept. Whilst it is true that the central issue in every contempt application is whether the person charged was in contempt of court, it does not mean no other issue could arise in such proceedings. And as he himself admits, there were issues of identity of the Plaintiff, identity of the land and service of the processes on the Plaintiff which as shown from the passages quoted were determined by Daniel Mensah J. This was a civil contempt. The Plaintiff was alleged to have flouted subsisting orders and processes of the High Court. I know of no law (and Counsel cited no authority for his proposition) which says that specific issues finally determined by a court of competent jurisdiction between parties and privies in civil contempt proceedings cannot operated as issues estoppel. Even if they could not so operate, this would have been a proper case to invoke the rule on abuse of process that would render an attempt to relitigate the matters impermissible. At the very least, if neither of the two applied, I believe the trial judge was entitled to consider the findings of Daniel Mensah J that had rejected the testimony of the Plaintiff on those salient matters for purposes of deciding whether the Plaintiff had proffered credible evidence to discharge the onerous burden he had assumed to prove the allegation of fraud. It is in this sense that I understand the learned trial judge when she concluded: In my view, the evidence adduced in this case in proof of the allegation of fraud and misrepresentation does not meet the required evidential burden and as such the case of the Plaintiff on that score will fail. Page 66 of 69 Outside the original judgment, matters upon which the fraud allegation was anchored had been litigated and determined twice in the application before Ocran J and in the contempt proceedings before Daniel Mensah J. The policy rationale behind cause of action and issue estoppels and indeed the rule against abuse of process was so profound in this matter that it rightly operated on the mind of the learned trial judge. In PETER OSEI ASSIBEY VRS LANDS COMMISSION, Suit No. J4/66/2019, I had the opening to emphasize the principles in the following words: “My Lords, from a public interest perspective, duplication of proceedings is a burden on justice delivery. Apart from wasting the ever-constrained time and resources of the courts, there is the risk of churning our conflicting decisions which may expose the administration of justice to opprobrium. From a private interest perspective, litigation must not be vexatious and oppressive to suitors. This is the raison d’etre of estoppel per rem judicatam, encased in two latin maxins, interest reipublicae ut sit finis litium, and nemo debet bis vexari pro una et eadem causa. The doctrine, put in plain words means, when a matter has been fully adjudicated upon by a court of competent authority and a final decision delivered between a Claimant and a Defendant, the parties and their privies are precluded from relitigating the same matter over again in any subsequent proceeding. Then again, where one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties by a court of competent jurisdiction, then, as a general rule, neither party nor his privy is allowed to relitigate that or those issues all over again in another action between the parties or the privies. As is often said, it is permissible for a party to swallow two separate cherries in successive gulps but not so to take two bites at the same cherry. There comes a time in the life of a dispute where the courts must be sick and tired of the contest and boldly tell the protagonists to go and rest.” Page 67 of 69 It is true the action came in the garb of one to set aside a judgment on grounds of fraud. Understandably, there is always a juridical tension between estoppel and fraud. See OSEI ANSONG & ANOR VRS GHANA AIRPORTS COMPANY LIMITED [2013-2014]1 SCGLR 25. The distinction here however is that, prior to commencing the suit to impugn the original action on grounds of fraud, the generality of the matters on which the allegation was based had been litigated to finality in two separate actions. The findings and conclusions were clearly before the learned justices of the Court of Appeal. I question their decision to ignore them. Indeed, reading their judgement, it appears they, to my mind, erroneously reduced the issue of whether fraud was committed, the burden of proof of which heavily lay on the Plaintiff to, whether the notice of date of hearing was served on the Plaintiff which burden they appeared to have levied upon the Defendant. Their Lordships clearly missed this fundamental point and, in the end, failed to consider critical matters on record. Their decision, in my view, rested on a faulty premise which was bound to render their conclusion unsupportable. I suggest that my Lords have no alternative than to allow the appeal. I allow it. (SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) COUNSEL KWAKU OSEI ASARE ESQ FOR THE DEFENDANT/RESPONDENT/APPELLANT WITH REBECCA AKOSUA ASAMOAH ADDO ESQ. AND KWESI HAYFORD BENJAMIN ESQ. Page 68 of 69 BAAFUOR GYAWU BONSU ASHIA ESQ. FOR THE PLAINTIFF/APPELLANT/ RESPONDENT. Page 69 of 69