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). SUITNO. C1/108/23 MARY ARTHUR … PLAINTIFF/RESPONDENT H/NO. PLOT 8BLOCK 1A ASUOYEBOAH–KUMASI VRS. KINGSLEYSARFOMAINOO … DEFENDANT/APPLICANT H/NO. PLOT 7BLOCK 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 1 the plaintiff’s action. The application has been brought under order 11 rule 18 and Order8rule 9ofthe HighCourt(Civil Procedure)Rules, 2004,CI47 asamended. Order11rule 18onstriking out pleadingsprovide; - 18(1) The Court may at any stage of the proceedings order any pleading or anything in any pleading be struck outongrounds that (a) Itdiscloses noreasonable cause ofactionordefence; or (b) Itisscandalous, frivolous orvexatious; or (c) Itmay prejudice, embarrass, ordelay thefair trialofthe action; or (d) It is otherwise an abuse of the process of the Court, and may order the action tobe stayed ordismissed or judgmenttobe 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 foranordertoset aside the writ ofsummons within 14days. The defendant strongly convinced that the court can set aside the plaintiff’s writ of summonsrelies onthe factsset out in the affidavit in supportto buttressthe 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 1AAsuoyeboah–Kumasi. 2 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” afteratrial. The property, the subject of the suit was distributed in the proportion of 65% to defendant with35% to theplaintiff herein. An entry of judgement has been served as per the Exhibit “F”, and the property was valued based onanordergranted by the Courtper 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 thatthe plaintiff hasinitiated the present suit asan afterthoughtalleging 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 afterthe judgement in thematrimonial 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 orotherwise in anothercourt. The present action, forallintent andpurposesis without merit. 3 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 ofhouse number 8Block 1A Asuoyeboah, Kumasiwas 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 allegationoffraudtobe heard onitsmerits. 4 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 inthe earlier suit CS/14/2019. After the judgment as well, plaintiff fully participated in the past judgement processes by paying her share ofcost forthe valuationas perthe Exhibit “J”. Fraud undoubtedly vitiates all things. Thus, in the case ofMASS 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 thinghad neverexisted”. On procedure for impeaching a judgement obtained by fraud, the settled law and practice ofthe courtsis that thepropermethod 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] 1SCGLR25relevant. Inthepresent suit, the plaintiff seeksthe following reliefs: - 5 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 asdescribed inthe Schedule. iii. Perpetual injunction restraining defendant, his assigns, agents and all persons claiming through him, from interfering with plaintiff’s occupation and possessionofHouse Number 8Block1A, Asuoyeboah, Kumasi. iv. Order staying the execution of the judgment of the court in Suit Number C5/14/2019 in respect ofHouse Number 8Block 1A, Asuoyeboah, Kumasi. v. Orderondefendant topaygeneraldamagestoplaintiff. vi. Cost on full indemnity basis including counsel’s fees pursuant to the requisite scale offees asfor thetime being prescribed by theGhana bar Association. vii. Furtherorder(s) asto thehonourable courtmay seem meet. In the earlier suit, the petition for divorce, suit No. C5/14/19 the defendant herein as the petitioner,had sought thefollowing reliefs: - a) That the ordinance marriage entered between the petitioner and respondent be dissolved. 6 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 thesaid house fromthe 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) Anyrelief(s) appropriate in the circumstance ofthe case. Inplaintiff’s (thenrespondent)answer, she cross petitioned for;- a) The ordinance marriage contractedbetween theparties be dissolved. b) A declaration that the respondent has a half share in property with House Number8Block 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 thatthe respondent hasa halfshare in the house situate atKasoa in theCentralRegion. 7 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 courtwas called upontomake adetermination. While the plaintiff prayed for a declaration for joint ownership of the disputed property herein, the defendant now praysfor a declaration oftitle as the legal owner ofthe 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 fraudperpetuated 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 herhealthcondition. Section6(1) oftheEvidence Act provides that;- “In every action, and at every stage of thereof, any objection to the admissibility of evidence by aparty affected therebyshall be made at the time the evidence is offered.” 8 The case of DANIELLI CONSTRUCTION LTD V MABEY & JOHNSON LTD [2007- 2008]SCGLR 65,AnsahJSC 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 tochallenge the veracityofthe evidence in Exhibit 2and theinference was thatit admittedthe importofthe evidence.” Why the plaintiff did not challenge the document, the assignment when she was represented by alawyer and thereasonnow offeredwill not openthe doors oflitigation onthe 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.” Perthe holding 2ofthe Naoscase supra, the Courtalso held “The 9 doctrine ofabuse ofprocess commonly referred toasthe 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 ofcourse toany 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 successivesuits when onewould 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 10 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 notthe basis for division ofthe disputed propertybetweenthe 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 asfollows; - “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 11 presenting any contrary evidence. The step taken by the plaintiff is a march towards piecemeal litigation which offends therule inHendersonand Henderson. In all, I find that this case initiated by the plaintiff seeks to oppress the defendant by successivesuits when onewould do and constituting anabuse ofthe process ofCourt. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS MATTHEW APPIAHFORDEFENDANT/APPLICANT PAA KWESIKUDOADZIFOR PLAINTIFF/RESPONDENT 12