Arthur V Mainoo (C1/108/23) [2024] GHAHC 429 (7 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN THE ASHANTI REGION, KUMASI ON THURSDAY DAY THE 7TH DAY OF NOVEMBER, 2024 BEFORE HER LADYSHIP JUSTICE HANNAH TAYLOR (MRS). SUIT NO. C1/108/23 MARY ARTHUR … PLAINTIFF/RESPONDENT H/NO. PLOT 8 BLOCK 1A ASUOYEBOAH – KUMASI VRS. KINGSLEY SARFO MAINOO … DEFENDANT/APPLICANT H/NO. PLOT 7 BLOCK 1A ASUOYEBOAH – KUMASI _____________________________________________________ RULING _____________________________________________________ The defendant/applicant who shall be referred to in this application as defendant prays the court for an order striking out the plaintiff/respondent who shall be referred to as the plaintiff’s action. The application has been brought under order 11 rule 18 and Order 8 rule 9 of the High Court (Civil Procedure) Rules, 2004, CI47 as amended. Order 11 rule 18 on striking out pleadings provide; - 18(1) The Court may at any stage of the proceedings order any pleading or anything in any pleading be struck out on grounds that (a) It discloses no reasonable cause of action or defence; or (b) It is scandalous, frivolous or vexatious; or (c) It may prejudice, embarrass, or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (2) No evidence whatsoever shall be admissible on an application brought under sub- rule (1) (a). Order 9 Rule 8 of C. I 47 permits a defendant who has filed a conditional appearance to apply for an order to set aside the writ of summons within 14 days. The defendant strongly convinced that the court can set aside the plaintiff’s writ of summons relies on the facts set out in the affidavit in support to buttress the prayer. The defendant deposed that the parties were married but per a petition for a divorce as per the Exhibit “B” he filed, to which the plaintiff filed an answer per Exhibit “C”, she prayed for a declaration that, she has a half share in property, House number 8, Block 1A Asuoyeboah – Kumasi. Therefore, parties filed their witness statements per Exhibit “D” after the case was set down for trial and judgement subsequently delivered on 11th February, 2022 as per Exhibit “E” after a trial. The property, the subject of the suit was distributed in the proportion of 65% to defendant with 35% to the plaintiff herein. An entry of judgement has been served as per the Exhibit “F”, and the property was valued based on an order granted by the Court per the Exhibit “G”. A valuer was appointed by the Registrar of the Court as per the Exhibit “H” and an application for the reserve price was to be fixed by the Exhibit “I”. It was at this stage that the plaintiff has initiated the present suit as an afterthought alleging fraud. However, all these facts alleging fraud were part and parcel of the earlier matrimonial case. By her own writ of summons, the facts are not facts which came to her knowledge after the judgement in the matrimonial case. Further, the assignment being referred to as the basis for a new action when it was being tendered was not objected to and it is too late to raise the issue of its authenticity or otherwise in another court. The present action, for all intent and purposes is without merit. The plaintiff is opposed to this application as per the affidavit in opposition filed on her behalf. It is contended that the Court delivering its judgment relied on a fraudulent assignment. This being the case, the judgement of the Court is tainted with fraud. Also, during the cause of trial, the plaintiff had suffered stroke as evidenced by Exhibit M1 series and same hindered her participation in the court’s proceedings. Had she not been indisposed she would have noticed the fraud perpetuated by the defendant. Further, upon discovery of the fraud perpetuated by defendant, she communicated same to her former lawyer and he was to oppose the application for an order to value the subject property but he did not oppose the application, hence she changed her lawyer and instituted the present action as the judgement in suit number C5/14/2019 in respect of house number 8 Block 1A Asuoyeboah, Kumasi was obtained by fraud. \ The deponent emphasized that, the signatures on the assignment not bearing the true signature of the late Edson Kwame Owusu and with Exhibit M3 series, the assignment which bears the true and actual signature of the late Edson Kwame Owusu, fraud was perpetuated on the court. The institution of the present action is necessary for the allegation of fraud to be heard on its merits. The defendant has filed a supplementary affidavit in support in which he denied the allegation of fraud, the reliance of stroke as plaintiff has always been of sound mind and testified in the earlier suit CS/14/2019. After the judgment as well, plaintiff fully participated in the past judgement processes by paying her share of cost for the valuation as per the Exhibit “J”. Fraud undoubtedly vitiates all things. Thus, in the case of MASS PROJECTS LTD (NO. 2) V. STANDARD CHARTERED BANK & YOO MART LTD. (No. 2) [2013 – 2014] 1 SCGLR 309, the Supreme Court held “fraud vitiates every conduct, an allegation of fraud, if proven and sustained will wipe and sweep away everything in its trail as the thing had never existed”. On procedure for impeaching a judgement obtained by fraud, the settled law and practice of the courts is that the proper method was by action in which the particulars of the fraud must be exactly given and the allegation established by strict proof. The case of OSEI ASHONG & PASSION INTERNATIONAL SCHOOL V. GHANA AIRPORTS CO. LTD. [2013 – 2014] 1 SCGLR 25 relevant. In the present suit, the plaintiff seeks the following reliefs: - i. Order setting aside the judgment of the court in Suit Number C5/14/2019 in respect of House Number 8 Block 1A, Asuoyeboah, Kumasi as same was obtained by fraud. ii. Declaration of title in favour of plaintiff as the legal owner of House Number 8 Block 1A, Asuoyeboah, Kumasi and as described in the Schedule. iii. Perpetual injunction restraining defendant, his assigns, agents and all persons claiming through him, from interfering with plaintiff’s occupation and possession of House Number 8 Block 1A, Asuoyeboah, Kumasi. iv. Order staying the execution of the judgment of the court in Suit Number C5/14/2019 in respect of House Number 8 Block 1A, Asuoyeboah, Kumasi. v. Order on defendant to pay general damages to plaintiff. vi. Cost on full indemnity basis including counsel’s fees pursuant to the requisite scale of fees as for the time being prescribed by the Ghana bar Association. vii. Further order(s) as to the honourable court may seem meet. In the earlier suit, the petition for divorce, suit No. C5/14/19 the defendant herein as the petitioner, had sought the following reliefs: - a) That the ordinance marriage entered between the petitioner and respondent be dissolved. b) A declaration by the Honourable Court that the petitioner is the sole owner of House Number 8 Block 1A Asuoyeboah – Kumasi and recovery of possession of the said house from the respondent. c) A declaration by the Honourable Court that the Petitioner is the owner of a ten- acre farm land situate at Enweneso No. 2 and a further order by the Court that one building plot situate at Feyiase is joint property of the Petitioner and the respondent. d) Any relief(s) appropriate in the circumstance of the case. In plaintiff’s (then respondent) answer, she cross petitioned for; - a) b) The ordinance marriage contracted between the parties be dissolved. A declaration that the respondent has a half share in property with House Number 8 Block 1A, Asuoyeboah – Kumasi. c) A declaration that the 10 – acre land at Enweneso No. 2 is for the children of the marriage. d) A further order that the building plot at Feyiase is the sole property of the respondent. e) A declaration that the respondent has a half share in the house situate at Kasoa in the Central Region. f) An order for the respondent to be given Kia Truck Vehicle. Considering the reliefs sought in the present suit and the suit C5/14/2019, the subject matter House Number 8 Block 1A, Asuoyeboah was one of the subject properties, the court was called upon to make a determination. While the plaintiff prayed for a declaration for joint ownership of the disputed property herein, the defendant now prays for a declaration of title as the legal owner of the house, thus, the sole owner. The reason for instituting the present action as deposed is that the Court in the Suit No. C5/14/2019 has relied on an assignment which was fraudulently obtained to obtain a 65% interest in the disputed property. The assignment was tendered without objection, neither was the fraudulent nature of the assignment complained of not pointed out to the court. Plaintiff in paragraph 17 of her statement of claim avers that for her indisposition, she would have noticed the said fraud perpetuated by the defendant. The picture created by the plaintiff is that the fraudulent nature of the assignment was bare on the face of the document and she would have identified same had it not been her health condition. Section 6(1) of the Evidence Act provides that; - “In every action, and at every stage of thereof, any objection to the admissibility of evidence by a party affected thereby shall be made at the time the evidence is offered.” The case of DANIELLI CONSTRUCTION LTD V MABEY & JOHNSON LTD [2007- 2008] SCGLR 65, Ansah JSC stated, - “The plaintiff company did not cross examine the witness of the defendant company in the witness box when he gave the evidence; the plaintiff company did not also tender any evidence to challenge the veracity of the evidence in Exhibit 2 and the inference was that it admitted the import of the evidence.” Why the plaintiff did not challenge the document, the assignment when she was represented by a lawyer and the reason now offered will not open the doors of litigation on the same subject. I find this excuse untenable. It seems clearly, that plaintiff is seeking to repackage her claims and to demand a prayer for sole ownership. In NAOS HOLDING INC. V. GHANA COMMERCIAL BANK LTD [2011] 1 SCGLR 492 at 500, the Supreme Court stated, that “the principle of abuse of process is discernable has been postulated on the fact that the matters in controversy have been determined by a court of competent jurisdiction between the same parties and basically on the same subject matter and that it would therefore be an abuse of the process of the court to allow a suitor to have an open ended opportunity to be litigating and re-ligating over and over again in respect of the same issue which has over the period and in previous decisions been decided against him.” Per the holding 2 of the Naos case supra, the Court also held “The doctrine of abuse of process commonly referred to as the rule in HENDERSON V HENDERSON (1843) 3 HARE 100 requires the parties, “when a matter becomes the subject of litigation between them in a court of competent jurisdiction to bring their whole case before the Court so that all aspects of it may be finally decided (subject of course to any appeal) once and for all. In the absence of any of special circumstances, the parties cannot return to the Court to advance arguments, claims, of defences which they could have put forward for the decision on the first occasion but failed to raise…. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do’’. Of course, special circumstance could generate another suit. In the Osei- Ansong case supra, per the holding 1, the Supreme Court among other things stated; “The special circumstance must however be clearly spelt out. In this case the special circumstance seems to be the allegation of fraud. A party certainly has a right to set aside a judgment however obtained, it be by default or upon admission or after a full trial on grounds of fraud.” In this case the assignment which is alleged to be embedded with seeds of deceit was not the basis for division of the disputed property between the parties. In the judgement per Exhibit “E”, no reference was made to an assignment to come up with the distribution of the disputed property. Of the property in contention, all that the court said is as follows; - “In respect of the house at Asuoyeboah, the evidence indicates that the house was built in the course of the marriage of the parties. It therefore cannot be the exclusive property of either the petitioner or the respondent. However, from the evidence before me, the contribution of the petitioner was far more than the respondent. I am therefore of the view that, both parties are entitled to portions of the house at Asuoyeboah which is in dispute. However, the equities of this case do not call for half share each of the house at Asuoyeboah.” Then the court proceeded to distribute the property in 65% for the defendant and 35%for the plaintiff. The claim of the assignment being the basis of the judgment clearly, is unfounded. The plaintiff during the trial as deposed, was represented by a lawyer and ought to have challenged the veracity of the assignment and nothing prevented her from also presenting any contrary evidence. The step taken by the plaintiff is a march towards piecemeal litigation which offends the rule in Henderson and Henderson. In all, I find that this case initiated by the plaintiff seeks to oppress the defendant by successive suits when one would do and constituting an abuse of the process of Court. [SGD] JUSTICE HANNAH TAYLOR(MRS) JUSTICE OF THE HIGH COURT LAWYERS MATTHEW APPIAH FOR DEFENDANT/APPLICANT PAA KWESI KUDOADZI FOR PLAINTIFF/RESPONDENT 12