DR. EMMANUEL WOBIL QUAINOO & ANOR. VRS ALBERT NKANSAH DARKWA (GJ/1213/2020) [2023] GHAHC 576 (9 November 2023)

IN THE HIGH COURT OF JUSTICE GHANA (GENERAL JURISDICTION COURT 4) HELD IN ACCRA ON FRIDAY THE 9TH DAY OF NOVEMBER, 2023 BEFORE HER LADYSHIP OLIVIA OBENG OWUSU, (MRS.) J. SUIT NO: GJ/1213/2020 1. DR. EMMANUEL WOBIL QUAINOO 2. DR. NAA ADORKOR ALLOTEY ALL OF 3921 RAIN TREE CIRCLE, UNION TOWN, OH 44685 USA :: PLAINTIFFS/APPLICANTS VRS ALBERT NKANSAH DARKWA H/NO. C5 ABUOM JUNCTION, KWABENYA-ACCRA :: DEFENDANTS/ RESPONDENTS ACCRA ============================================================================= ============================================================================= R U L I N G This is an application by Learned Counsel for the Defendant/ Applicant (hereafter referred to as the Defendant ) to set aside the Writ of Summons pursuant to Order 9 rule 8 of The High Court (Civil Procedure) Rules, 2004 CI 47. The facts on which the counsel seeks to rely on are contained in an affidavit and a number of documents filed to support the application. The main grounds for the application can be found in paragraphs 7-14 of the affidavit in support, and I reproduce same: Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 1 | P a g e “7 . That the instant application has been filed to set aside the Writ of Summons on the grounds that it is an abuse of Court process and vexatious. 8. That on 30th October 2022 the Defendant herein filed a Writ of Summons against Plaintiffs herein at Amasaman High Court with the following title: ALBERT NKANSAH DARKWA PLAINTIFF H/No C5 Abuom Junction Kwabenya- Accra Vrs 1. DR. EMMANUEL WOBIL QUAINOO 2. DR. NAA ADOKOR ALLOTEY 3. GEORGE OFORI KORANKYE DEFENDANTS All of Burma Camp-Accra 9. That on the 21st day of February 2022 the Amasaman High Court delivered its judgment in that matter in favor of the plaintiff therein and Defendant herein. Annexed as Exhibit AN is a copy of the judgment. 10. That the parties and the issues in both suits are the same 11. That upon the delivering of the Judgement the issues between the parties was settled and if the Plaintiffs herein were dissatisfied they should have appealed instead of filing a new Writ. 12. That the Plaintiffs herein are estopped from issuing a new Writ at Accra on the grounds of “Res Judicata” 13. That the cause of action between the parties reached its finality when the Amasaman Court rendered its final Judgment, hence the Plaintiffs herein are “claim preclusion” 14. That the writ was issued in bad faith and same is vexatious and abuse of Court processes” Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 2 | P a g e The Plaintiffs/Respondents (hereafter referred to as the Plaintiffs) also filed their affidavit in answer. The material portions of the affidavit in opposition are the depositions contained in paragraphs 5,6,8,9,10,22,23 and 24 which reads as follows: 5. That the Plaintiffs/Respondents have been served with the Defendant/Applicant’s Motion on Notice to Set Aside Writ of Summons which motion was filed on 13th July 2022 and the Plaintiffs/Respondents are vehemently opposed to it. 6. That in response to paragraph 7 of the affidavit in support I am advised by Counsel and verily believe same to be true that the instant suit is neither vexatious nor an abuse of the Court process. 8 That I am advised by counsel and verily believe same to be true that the instant application is misconceived and same is without merit as the Applicant has failed to demonstrate that the Judgment in issue was regularly obtained. 9. That I am advised by Counsel and verily believe same to be true that the law is settled that a Judgment procured by fraud could only be set aside by the issuance of a Writ of Summons and Statement of Claim. 10. That I am advised by counsel and verily believe same to be true that the particulars of fraud for which reason the instant writ was issued were listed in paragraph 36(i-vii) of the Plaintiff’s Statement of Claim…. 22. That it is obvious from the foregoing that the Plaintiffs/Respondents have made a prima facie case that the Judgment procured in Suit No. E1/AHC/25/21 was procured by deception. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 3 | P a g e 23. That I am advised by counsel and verily believe same to be true that the instant application is rather frivolous and an abuse of the Court processes because the applicant himself knows very well that the said Judgment he seeks to rely on is tainted by fraud. 24. In the circumstances I pray that the instant application is dismissed.” Arguing in support of the application it is submitted by Learned Counsel for the Defendant that the instant suit is an abuse of the court process and vexatious. On this learned counsel contends that there is a final judgment in Suit No. E1/AHC/25/2021 by the Amasaman High Court in respect of the same subject matter before this court. He submits that the Plaintiffs are therefore estopped by the Judgment in Suit No. E1/AHC/25/2021 from bringing the instant action. Counsel also makes the point that the plaintiffs’ action is procedurally flawed. He maintains that issuing the Writ is wrong in procedure and must not be entertained. It is his contention that the Plaintiffs’ remedy lies in an application for Judicial Review. He invites the Court to strike out the Writ and order the Plaintiffs to follow due process. Learned Counsel for the Plaintiffs, in opposing the application argues that the instant application is frivolous and lacks merit in law or fact. The instant suit, according to him is neither an abuse of the court processes nor is it vexatious. He goes on to contend that the Defendant has failed to demonstrate that the Judgment in Suit No. E1/AHC/25/2021 was regularly obtained and that same is not tainted by fraud or deception. In further amplification of this he submits that the plaintiffs have established a prima facie case that Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 4 | P a g e the Judgment in Suit No. E1/AHC/25/2021 was procured by fraud. To him Defendant’s counsel’s contention that the plaintiffs are estopped per rem judicatam is untenable. On the question of procedure Learned Counsel for the Plaintiffs submits that the proper method for impeaching a Judgment on the ground of fraud is by action. The plaintiffs have therefore complied with the procedure governing the type of action they have taken. In his view the instant application is rather an abuse of the Court process intended to delay and frustrate the instant suit. The court should not accede to the application. From the arguments presented by learned counsel the following issues are to be determined by the court. 1. Whether the Plaintiffs are estopped by the Judgment in Suit No. E1/AHC/25/21 from bringing the instant action. 2. Whether the instant action is an abuse of the court process. The Defendant’s motion follows an Entry of Conditional Appearance on the 30th of June 2022. Under Order 9 rule 7 (8) of C. I 47 an Entry of Conditional Appearance reserves to a Defendant the right to apply to set aside the Writ of Summons. It must be noted that the Defendant has captioned his application as being presented to this Court under Order 9 rule 8 of C. I 47. Order 9 r. 8 of CI 47 provides that "A Defendant may at any time before filing appearance or if the Defendant has filed conditional appearance within 14 days after filing appearance apply to the court for an order to (a) set aside the writ or service of the writ Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 5 | P a g e (b) declare that the writ or notice of it has not been served on the defendant; or (c) discharge any order that gives leave to serve the notice on the defendant outside the country.” Order 9 rule 8 of C. I 47 therefore has prescribed the mode for objecting to an irregularity in the issuance or service of a Writ of Summons or an informality connected therewith. A Defendant wishing to take objection to an irregularity in the issuance or service of a Writ of Summons or an informality connected therewith, has therefore first of all to enter a Conditional Appearance, i.e. an appearance under protest, which serves to indicate to the other side that he has some reservations about the Writ of Summons served on him and then file an application to have the case struck out. The legal position was lucidly and impressively explained by the Supreme Court in the case of AMISSAH-ABADOO V ABADOO - [1973] 1GLR 490. In that case the Court held that a Defendant might enter Conditional Appearance where he intends to have the Writ or the service of the Writ set aside on the ground of irregularity in the Writ or the service of it or to deny jurisdiction. See also the case of REPUBLIC V HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] SCGLR 398 where at page 408 the Supreme Court stated as follows: “For the avoidance of doubt we would like to reiterate that a Conditional Appearance is to enable the Defendant who intends to object to the issue of the Writ or notice of the Writ on him, or to object to the jurisdiction of the Court, to apply to the Court to set aside the Writ or notice of the Writ or the service thereof on him. Such an application may encompass any irregularity or defect in the issue 6 | P a g e Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 or service of the Writ or notice of the Writ, e.g. any defect in the Writ or order to amend or renew the Writ, or for Substituted Service or service out of the jurisdiction. It is not permissible for a Defendant who has entered a Conditional Appearance to move the Court to have the Writ set aside because he has a legal defence, even if unimpeachaeble, to the action; certainly such an application is not available to a Defendant, who seeks to rely on a plea of res judicata since this plea to be successful must satisfy certain requirements which can only be revealed through evidence.” In the instant case the Defendant's application does not attack the Plaintiffs’ Writ on any of the grounds stated above. It is the contention of the Defendant that the Plaintiffs are estopped by the Judgment in Suit No. E1/AHC/25/21 from bringing the instant action. The law is clear and settled that where it is intended that a Judgment should operate conclusively as an estoppel the matter of estoppel should be expressly pleaded. See the cases of BEDU AND OTHERS V AGBI AND OTHERS [1972] 2 GLR 238 and NANA AKOTO III V NANA KWASI AGYIMAN I AND NANA KWAKU DUA III V NANA KWASI AGYIMAN I (CONSOLIDATED APPEALS) [1962 ] 1 GLR 524. It seems to me therefore that the issue of estoppel cannot be determined in the manner in which the Defendant seeks to pray the Court. I am firmly of the view that the application in its present form should be dismissed as not sanctioned by the rules of procedure. In the event I am wrong in the view I hold and the conclusion I have reached, I will consider whether the Plaintiffs are estopped by the judgment in Suit No. E1/AHC/25/21 from bringing the instant action. The present suit is an action to set aside the Judgment in Suit No. E1/AHC/25/21 on the ground of fraud. The plaintiffs have given particulars of the alleged fraud. The validity of the judgment in Suit No. E1/AHC/25/21 has thus been put in issue in the instant action. The decided cases show that where the validity of a previous Judgment is put in issue on grounds of fraud the previous Judgment cannot be a bar to the subsequent proceedings. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 7 | P a g e See the case of AGYILIHA AND ANOTHER V TAYEE [1975] 1 GLR 433. In the light of the authorities it must be concluded that the Judgment in Suit No. E1/AHC/25/21 cannot be a bar to the instant action. Thus the argument about estoppel based on res judicata is misconceived. This leads me to the issue of whether the instant action is an abuse of the Court process. “Abuse of Process” according to the OSBORN’S CONCISE LAW DICTIONARY (8TH ED) EDITED BY LESLIE RUTHERFORD AND SHEILA BONE is “.. A frivolous or vexatious action as e.g. setting up a case which has already been decided by competent Court”. In BARRONS DICTIONARY OF LEGAL TERMS (4TH ED) BY STEPHEN H. GIFIS “abuse of process” is defined as “improper use of legal process.” A Court has an inherent jurisdiction to dismiss an action which is an abuse of its legal machinery. Under its Inherent Jurisdiction, the Court would prevent a party seeking to raise anew substantially the same question already decided by a Court of competent jurisdiction in prior proceedings between him and another party. See the cases of AMOAKO V AMADOS AND OTHERS [1975] 1 GLR 401 and NAOS HOLDING INC V GHANA COMMERCIAL BANK LTD [2011] 1 SCGLR 492. Therefore, where an issue has not been determined either by the trial Court, the party alleging it has the right to have that issue determined by any Court of competent jurisdiction at any time. In the instant case the issue of fraud has never been considered. The Plaintiffs have decided to have the issue determined by this action. I am of the opinion that they are entitled to do so for as was said in the case of DZOTEPE V HARHOMENE III [1987-88] 2 GLR 681 “fraud, whenever and wherever found, would vitiate all proceedings even the most solemn proceedings of a Court of Justice.” Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 8 | P a g e I find no rule of procedure or case law inhibiting the Plaintiffs’ right to commence this action under the circumstances. The authorities indicate that the proper method of impeaching a completed Judgment on the ground of fraud is by action in which the particulars of the fraud must be exactly given and the allegation established by strict proof. See the case of DZOTEPE V HARHOMENE III supra. In accordance with Order 11 Rule 12 (1) (a) of C. I. 47 the Plaintiffs have given particulars of the alleged fraud in paragraph 36 of the Statement of Claim. In the result I am of the view that all the points and arguments urged in support of this application are misconceived and untenable. The application to set aside the Writ of Summons fails. It is accordingly dismissed. There will be costs of One thousand Ghana Cedis (GH¢1,000.00) for the Plaintiffs. (SGD.) H/L OLIVIA OBENG OWUSU (MRS.) JUSTICE OF THE HIGH COURT PARTIES: PLAINTIFFS ABSENT DEFENDANT REPRESENTED BY DANIEL ROGER TETTEH KWADWO OSEI ODAME FOR PLAINTIFFS/RESPONDENTS PRESENT GODWIN NARTEY FOR DEFENDANT/RESPONDENT PRESENT COUNSEL: Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 9 | P a g e REFERENCES: CASES REFERRED TO: 1. AMISSAH-ABADOO V ABADOO - [1973] 1GLR 490. 2. REPUBLIC V HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) [2003-2004] Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 10 | P a g e 3. BEDU AND OTHERS V AGBI AND OTHERS [1972] 2 GLR 238 4. NANA AKOTO III V NANA KWASI AGYIMAN I AND NANA KWAKU DUA III V NANA KWASI AGYIMAN I(CONSOLIDATED APPEALS) [1962 ] 1 GLR 524. 5. AGYILIHA AND ANOTHER V TAYEE [1975] 1 GLR 433. 6. AMOAKO V AMADOS AND OTHERS [1975] 1 GLR 401 7. NAOS HOLDING INC V GHANA COMMERCIAL BANK LTD [2011] 1 SCGLR 492. 8. DZOTEPE V HARHOMENE III [1987-88] 2 GLR 681 2 GLR 681 ENACTMENT: THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47) BOOKS: 1. BARRONS DICTIONARY OF LEGAL TERMS (4TH ED) BY STEPHEN H. GIFIS 2. OSBORN’S CONCISE LAW DICTIONARY (8TH ED) EDITED BY LESLIE RUTHERFORD AND SHEILA BONE Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 11 | P a g e Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 10/11/2023 at GJ4 12 | P a g e