TAKYI VRS. ADANSI VII (E12/37/2023) [2024] GHAHC 477 (26 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON WEDNESDAY THE 26TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E12/37/2023 EKOW TAKYI - PLAINTIFF VRS EBUSUAPANYIN NANA ADANSI VII - DEFENDANT JUDGMENT By a Writ of Summons and Statement of Claim filed on 4th October, 2022 the Plaintiff claims against the Defendant the following reliefs: a. An order setting aside the judgment delivered on 28th April, 2021 in favour of the Defendant herein in the case entitled Ebusuapanyin Nana Adansi VIII v Ekow Takyi (Suit No. E12/191/2018) on grounds of fraud. b. An order of perpetual injunction restraining the Defendant herein from styling himself and ever parading himself as the Ebusuapanyin of the Kona Royal family of Moree. Events culminating into this instant action are straightforward. The Plaintiff describes himself as the Head of the Kona Royal family of Moree and resides at Moree. He was appointed the head of the family in 2005. According to the Plaintiff, there has been a protracted conflict between the Plaintiff and the Defendant as to who is the accredited head of family. This conflict resulted in the Defendant herein commencing an action in the High Court on 7th June, 2018 (Suit No. E12/19/2018) claiming for the following reliefs: 1 1. A declaration that the Defendant (the Plaintiff therein) is the head of the Kona Royal family of Moree. 2. An order of perpetual injunction to restrain the Plaintiff (the Defendant therein) from ever parading himself as the Ebusuapanyin of the Kona Royal family of Moree. Whiles the matter was still pending before the Court, it was referred to the Central Regional House of Chiefs in November, 2020 to attempt out of court settlement. The Plaintiff states that the letter of invitation from the Central Regional House of Chiefs to the parties revealed that the Defendant herein sent the matter to Nananom himself for settlement while same was pending before the Court. The first hearing before Nananom at the Central Regional House of Chiefs took place on 26th November, 2020. However, due to the attitude of the Defendant herein and his supporters at the Regional House of Chiefs, the Plaintiff herein wrote to Nananom to refer the matter back to the High Court. Consequently, Nananom did not complete trying the case and so no decision was made on the matter. The Plaintiff maintains that the Defendant filed a report dated 11th March, 2021 purported to be a report of the Arbitration Committee of the Central Regional House of Chiefs on the matter. Based on this said report, the Court on 28th April, 2021 gave its decision in favour of the Defendant herein. The gravamen of the Plaintiff’s case is that the purported report filed by the Defendant herein was procured by fraud and the particulars of fraud are as reproduced below: a. That the Defendant knew very well that Nananom did not complete sitting on the matter between himself and the Plaintiff herein. 2 b. That the Defendant knew that the report he filed at the High Court did not contain the decision of Nananom at the Central Regional House of Chiefs. c. That the Defendant herein knew that the report dated 11th March, 2021 filed by him at the High Court was fraudulent. In the light of the fraud perpetuated by the Defendant to obtain judgment in his favour as Plaintiff in Suit No. E12/191/2018, the Plaintiff has commenced this action for the above-mentioned reliefs. Conversely, the Defendant avers otherwise and denies any fraud on his part. The case of the Defendant is that after Suit No. E12/191/2018 was referred to the Central Regional House of Chiefs for settlement, both parties stated their case and were extensively cross-examined on 26th November, 2020. At the end of the hearing for the day, the panel ordered the parties to submit documents in support of their case to the Registrar of the House and witnesses brought to the next sitting. To this end, the case was adjourned to 26th February, 2021. On the said 26th February, 2021 the Plaintiff herein failed to attend the hearing at the House of Chiefs and also failed to file any document as ordered by the House of Chiefs. The Defendant herein complied and filed documents and went along with four (4) witnesses. The Chairman of the panel informed them that the Plaintiff had brought a letter indicating that the matter be remitted back to the High Court and for that reason, the hearing had concluded and that the Committee would send their report to the High Court that made the referral to them. Meanwhile, on 17th December, 2020 the Registrar of the House of Chiefs appeared in Court and informed the Court that settlement was on-going. The Court obliged and further adjourned the suit to 13th January, 2021. On 12th April 2021, the lawyer for the Plaintiff who was present in court requested 3 for an adjournment to enable him procure a copy of the report of the Arbitration Committee and his request was granted. The suit was again adjourned to 28th April, 2021. On 27th April, 2021, Counsel for the Plaintiff filed a process at the Registry of the High Court titled RE: REPORT OF THE CUSTOMARY ARBITRATION COMMITTEE. On the said 28th April, 2021 the High Court, Cape Coast, presided over by H/L Justice Kwasi Boakye stated that the Arbitration Committee of the Central Regional House of Chief wrote to the court announcing their decision in the matter referred to them. The Court therefore adopted the report of the Arbitration Committee of the House as its consent judgment and proceeded to strike out the suit as settled and made no orders as to cost. The Defendant maintains that he never filed any report purporting to be the report of the Arbitral Committee. However, the Defendant state that it was the Plaintiff who filed the said report at the Registry of the Court. The Defendant states that, like the Plaintiff, he obtained a copy of the Arbitration Committee report from the Registry of the Central Regional House of Chiefs. The Defendant categorically states that the Court in entering judgment for the Defendant herein stated that “the Committee in a report dated 11th March, 2021 wrote to the Court announcing its decision.” Therefore, the Defendant says it is erroneous for the Plaintiff to allege fraud on the part of the Defendant. After the close of pleadings, the issues were set out in the Application for Direction filed on 14th March, 2023 were adopted as issues for trial. However, upon a close reading of the pleadings so far filed, I am satisfied that the issues apropos to the effective determination of this suit are as follows: a. Whether or not the consent judgment dated 28th April, 2021 was procured by the Defendant through fraud. 4 b. Whether or not the consent judgment dated 28th April, 2021 is a nullity and ought to be set aside. c. Whether or not relief (b) indorsed on the Plaintiff’s Writ of Summons and Statement of Claim is appropriate in a suit alleging fraud such as this instant case. I am of the respectful view, although the above issues were not included in the agreed issues, I find them to be crucial or germane to the determination of this case. Thus, on the authority of FATTAL V WOLLEY [2013-2014] 2 SCGLR 1070 this Court is not barred from addressing these issues merely on the ground that they were not included in the agreed issues. As a matter of principle, the burden of proof rests on he who asserts or alleges. The law requires the categorical establishment of a fact a party alleges, most especially, when same has been denied by his opponent. See ZABRAMA V SEGBEDZI (1991) 2 GLR 221. Failing to adduce such evidence as to convince a reasonable mind, such as this Court, would be detrimental to the case of the person who alleges as he risks his case being dismissed. As a general rule, the standard of proof in civil cases in Ghana is proof by a preponderance of the probabilities. This has been defined by section 12(2) of the Evidence Act, 1975 (N.R.C.D. 323) to be the certainty of belief in the mind of the Court by which it is convinced that existence of a fact is more probable than its non-existence. See ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. However, it is worthwhile to note that an exception to this rule lies where a party alleges the commission of a crime against the other and same is directly 5 in issue. In this case, the standard of proof is proof beyond a reasonable doubt. This is adequately provided for in section 13(1) of the Evidence Act as follows: “In any 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.” Therefore, in cases where a party alleges fraud in a civil suit (such as this instant case), he/she bears the onus to prove same beyond reasonable doubt. See FENUKU V JOHN TEYE [2001-2002] SCGLR 985 and SASU BAMFO V SINTIM [2012] SCGLR 136; JANET TAGOE V ALFRED NII TETTEH [2016] 98 GMJ 125 at p.147-148, C.A. Fraud, according to Yaw Appau, JSC in the case of NANA ASUMADU II (DECEASED) SUBSTITUTED BY: NANA DARKU AMPEM AND ANOR. V. AGYA AMEYAW [2019-2020] 1 SCLRG 681 is “… 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 criminal wrong. 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.” Further, in the case of DERRY V PEEK [1889] 14 APP.CAS.337, it was held that: “Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, careless, whether it be true or false.” In applying the above case laws on what constitutes fraud to this instant case, the Plaintiff bears the onus of satisfying this Court beyond reasonable doubt 6 that the judgment dated 28th April, 2021 is indeed tainted by fraud. The crux of the Plaintiff’s case is that by virtue of his letter dated 10th December, 2020 (EXHIBIT KT D) wherein he requested the matter before the Arbitration Committee to be referred back to the Court for trial, there is no way the Arbitration Committee could reach finality in the matter. Therefore, the Defendant in filing the purported report of the Committee knowing very well that the Committee did not complete or finalise the resolution of the matter and as a result of which judgment was entered in favour of the Defendant on the basis of the said report is fraudulent. From the Witness Statement of the Plaintiff, the Defendant knew very well that the report he filed at the High Court did not contain any decision of Nananom and that the said report, on the basis of which the Court entered judgment in the favour of the Defendant is fictitious. Upon a careful evaluation of the evidence adduced in this case, I find the above allegation against the Defendant unfounded or not supported by the evidence. Per the Plaintiff’s own EXHIBIT KT F which is the court note for 28th April, 2021 (that is, the faithful day the consent judgment was entered), it is clear on the face of Exhibit KT F that it was the Plaintiff (the Defendant therein) who caused a copy of the Report from the Arbitration Committee to be filed on 27th April, 2021. For a better appreciation of this judgment, I shall reproduce the relevant portions of Exhibit KT F as follows: NB: The Defendant has now filed a copy of the Report from the Arbitration Committee of the Regional House of Chief on 27th April, 2021. 7 By Court: The Arbitration Committee of the Central Regional House of Chiefs arbitrated over the matter which was referred to it by the Court. The Committee in a Report dated 11th March, 2021 wrote to the Court announcing its decision. The decision is to the effect that the Committee found for the Plaintiff. This Suit having been settled by Nananom, I adopt the Report as Consent Judgment for the Parties to the Suit. Suit struck out as settled. No order as to costs. From the above, there is no indication of the role the Defendant herein played in the adoption of the said report as consent judgment. It is clear that the very act the Plaintiff accuses the Defendant herein of (that is, the filing of the Report) was done by the Plaintiff himself. Secondly, the Court made it clear that the Committee in a Report dated 11th March, 2021 wrote to the Court announcing its decision. Surprisingly, the Plaintiff herein, who now contends that the Committee reached no settlement because he opted out of the arbitration, was in Court that faithful day and raised no object whatsoever to the adoption of the report as Consent Judgment. On the totality of the evidence, the allegation of fraud levelled against the Defendant cannot be justified nor supported by the evidence on record. The evidence adduced by the Plaintiff is wholly insufficient or inadequate and falls short of the standard of proof required of the Plaintiff. The allegation of fraud therefore fails. 8 Be that as it may, a crucial issue which rears its head for determination is whether or not the consent judgment dated 28th April, 2021 is a nullity and ought to be set aside. Although this is an action primarily to set aside the consent judgment on grounds of fraud, this is an issue which arises directly from the pleadings and evidence has been adduced on same by the Parties. I am not oblivious of the rule that in an action impeaching a judgment on grounds of fraud, the court can only determine the issue of fraud and not use it to rehear the whole case. Put differently, the law is that in a suit charging fraud, it will be a clear impropriety for the Plaintiff to reopen his case. See BRUTUW V AFERIBA [1984-86] 1 GLR 25. The above rule notwithstanding, it is also true that the policy of the law is to deny void orders the coercive authority of the court or accord them legality as that would turn the court into an instrument of injustice. Where a judgment is void as in this case, no matter how the court comes by the knowledge of its existence, the court on its own motion is required to set same aside. A void judgment cannot be allowed to stand thus, the law requires a judge whose attention is drawn to the nullity to set aside the said judgment. See MOSI V BAGYINA [1963] 1 GLR 337-348; NCS LTD V INTELSAT GLOBAL SALES AND MARKETING LTD [2012] SCGLR 218 at p. 229-230; NAI OTUO TETTEH V OPANYIN KWADWO ABABIO (DECEASED) AND NAI KOJO ADU II (CIVIL APPEAL NO. J4/30/2017) DATED 14TH FEBRUARY, 2018 (DELIVERED BY THE SUPREME COURT). On the totality of the evidence adduces as well as the pleadings so far filed, I am satisfied that a determination of this issue does not in anyway re-open the Plaintiff’s case nor amount to a rehearing of the entire case. A consent judgment is basically is an agreed judgment. It is defined by the 9th Edition of the Black’s Law Dictionary as: 9 “A settlement that becomes a court judgment when the judge sanctions it. In effect, an agreed judgment is merely a contract acknowledged in open court and ordered to be recorded, but it binds the parties as fully as other judgments.” The above decision was quoted with approval by the Supreme Court in the unreported case of ELOI KOFI MENSAH SIMMONS V CATHERINE SIMMONS (CIVIL APPEAL NO. J4/21/2015) DATED 15TH MARCH, 2016. Further, in the case of MARY AMOAH V EDWARD ACQUAH (SUIT NO. H1/122/2010) DATED 21ST OCTOBER, 2010 (DELIVERED BY THE COURT OF APPEAL) the Court held that “A consent judgment is a judgment sanctioned by an agreement between the parties. It is in effect, a contract between the parties. Like all contracts, either oral or written, the terms constituting the contract must be clear and unambiguous.” From the above authorities, the underlying factor for consideration is the agreement of the parties to the terms presented to the judge to be entered as consent judgment. Without any a valid agreement between the parties, which must be apparent to the Court, there cannot be consent judgment. For this reason, the law allows for a consent judgment to be set aside upon establishing that there was no agreement in the first place or upon establishment of any of those factors that vitiate a contract. See REPUBLIC V HIGH COURT (COMMERCIAL DIVISION) ACCRA; EX PARTE THE TRUST BANK LTD (AMPOMAH PHOTO LAB. LTD & 3 OTHERS – INTERESTED PARTIES) [2009] SCGLR 164. To further buttress this point, reference is made to the LUTTERODT V NYARKO & ANOTHER [1999-2000] 1 GLR 29 where the Court held as follows: 10 “The law makes it expressly clear that a consent judgment can be set aside where it was obtained illegally and against public policy, or where it is obtained by fraud or misrepresentation. Other circumstances under which it can be set aside include the following: where a material fact that ought to be disclosed was not disclosed, where it was obtained by duress or where it was concluded under mutual mistake of fact.” From the testimony of the Plaintiff, the Committee commenced trial on 26th November, 2020. However, due to the attitude of the Defendant and his supporters at the office of the Regional House of Chiefs, the Plaintiff resiled from the arbitration and requested that the matter be referred back to the Court for determination. This is evident from the Plaintiff’s EXHIBIT KT D, a letter addressed to the Registrar of the Central Regional House of Chiefs This fact is further admitted by the Defendant in paragraphs 9 and 10 of his Witness Statement. It is also noteworthy that the Plaintiff’s request was duly acknowledged by the Committee in its Report tendered by the Plaintiff as EXHIBITS KT E & G. The same report was tendered by the Defendant as EXHIBIT 4. It is observed that all the copies the Committee’s report tendered in evidence are certified true copies. However, the conclusion of the Committee, which is of interest to this Court, is absent from the Plaintiff’s Exhibit KT G. In the circumstances, I rely on the Defendant’s Exhibit 4 as the true copy of the Committee’s report. I shall therefore reproduce the relevant portion of report for the purposes of address the issue at hand: “The Honourable Committee requested that all supporting documents should be submitted to the Registrar and witnesses brought to the next sitting. Surprisingly when both parties have given their evidences, the Honourable Committee Members requested from the parties to submit their documents if 11 any. However, Opanyin Kow Takyi wrote toe the Committee that the matter should be sent back to the High Court without any reasons. The committee further invited parties to meet on Friday 26th February, 2021 to pursue the matter but Opanyin Kow Takyi again did not honour the invitation. The honourable arbitration committee was of the opinion that, a party in an arbitration proceeding cannot withdraw from the process after it has started whiles the necessary conditions for validating the arbitration have been satisfied. Notwithstanding, the committee finds the case of the complainant more convincing and therefore entered judgment in their favour and further ordered that Ebusuapanyin Adansi should make conscious effect to unite all family members to bring lasting peace in the family.” From this report, it is clear that the hearing had not concluded. The committee had adjourned proceedings for Parties to submit documents and bring witnesses to the next hearing. The Plaintiff herein resiled from the arbitration before the Committee could make a final determination as to the rights of the parties before the Committee. In law, the effect of the Plaintiff’s letter withdrawing from the arbitration terminated the proceedings and the Committee was duty bound to refer the matter back to the Court. The right of a party to resile from arbitration is only curtailed when an award has been published. See BUDU V CAESAR & OTHERS [1959] GLR 410. On the authority of this case, the Supreme Court, speaking through Dotse JSC in the case of SOLOMON TACKIE & ANOTHER V JOHN NETTEY & ANOTHER (J4/44/2019) DATED 24TH MARCH, 2021 held that: “Being required to be a voluntary decision of the parties to submit to the arbitration, the parties are therefore at liberty to withdraw and or resile from 12 an arbitration as the decision referred to illustrates. Indeed, this phenomenon has been one of the essential characteristics of an arbitration. A person or group of persons cannot be bound to continue with a customary arbitration if they have lost confidence in the panel. Having thus withdrawn, the 1st Defendant’s predecessor should be deemed as having resiled from the CDR arbitration. The said decision therefore has no effect and lacks validity.” Therefore, having shown a definite intention to resile, it was wrong for the Committee to make final pronouncements on the rights of the Parties especially when, from its own report, hearing had not concluded. Proceedings after the Plaintiff’s letter requesting for the matter to be referred back to the Court is therefore a nullity or void. In essence there was no settlement or agreement for the Court to adopt. From EXHIBIT KT F as reproduced above, the Court was clearly induced by the representation made by the Committee in a Report dated 11th March, 2021 announcing its decision when, in fact, there has been no valid determination of the dispute referred to the Committee in light of the Plaintiff withdrawing from the arbitration. In the words of Lord Denning in the case of MACFOY V UNITED AFRICA COMPANY LTD (1961) 3 ALL ER 1169 (PC), you cannot put something on nothing and expect it to stay there. Public policy would not allow a consent judgment stemming from an invalidity to stand. Consequently, the consent judgment dated 28th April, 2021 is hereby set aside. However, does this conclusion necessarily warrant the grant of an order perpetually restraining the Defendant from carrying himself out or styling himself as the Head of the Kona Royal family of Moree? Without any hesitation, my answer to this question is in the negative. As indicated above, this is an action impeaching a Consent Judgment on grounds of fraud and thus on the authority of BRUTUW V AFERIBA supra, 13 the Plaintiff cannot be allowed to open the whole case. The issue of injunction affects the rights of the Parties and this court cannot determine same without going into the merits of the case to satisfy itself that the Plaintiff has a right or interest worth protecting in law. In this wise, the Plaintiff is not entitled to relief (b) indorsed on the Writ of Summons and Statement of Claim. In the light of the above reasoning, I hereby set aside the consent judgment dated 28th April, 2021 as a void. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL PETER A. KING BADU-PRAH ESQ. FOR THE PLAINTIFF. SAMUEL AHORLU-ADINKRAH ESQ. FOR THE DEFENDANT. 14