FERYUST LTD v. OHENE AGYEKUM ALIAS 2 GUYS
2019
HIGH COURT
GHANA
CORAM
- FRANCIS OBIRI
Areas of Law
- Civil Procedure
- Fraud
- Consent Judgment
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
The court dismissed the application to strike out the plaintiff's writ, holding that the court can proceed to determine the merits of the case. The plaintiff's addition of other reliefs does not constitute an abuse of court process.
RULING
On 8th November, the defendant/applicant hereinafter called the applicant filed the instant application through his counsel. The gravamen of the application is that, the plaintiff action should be dismissed for being an abuse of the court process. The application is supported by affidavit. The main contention of the applicant can be found in paragraphs 6, 8 and 9. I will quote them in this ruling.
(6) That I have been advised and verily believe same to be true that, the plaintiff, having pleaded fraud in order to challenge and have a consent judgment entered in my favour set aside, he is not permitted to set up any other reliefs in this particular suit except on the issue of fraud and fraud only.
(8) That I am advised and verily believe same to be true that, until and unless the valid consent judgment entered by the High Court in 2002, Exhibit OA is set aside, a court of coordinate jurisdiction lacks jurisdiction to make pronouncement or orders to adversely affect the potency of Exhibit OA2.
(9) That I am advised and verily believe same to be true that, the plaintiff having put in several other issues apart from the one touching on fraud, the writ sins against the time honoured principle that when a judgment is challenged on the basis that it was procured by fraud, the court is not entitled to entertain any other issue but that of fraud alone. The motion was moved on 18th December 2018. Counsel for the applicant in moving the motion relied on the motion paper and the supporting affidavit. He also relied on decided authorities including the case of Okwei Mensah (deceased) (Acting by Adumuah Okwei V Laryea (deceased) Acting by Ashieteye Laryea (deceased) & Anor (2011) 1 SCGLR 317.
He contended that, since the plaintiff did not limit his reliefs to only the issue of fraud in respect of the consent judgment but added other reliefs, the plaintiff has abused the court process. Therefore, the writ should be struck out or dismissed.
He also attached exhibits to the application and referred to them in his submission. I have gone through the exhibits, the application and all the processes filed in this case.
The application was filed on 8th December 2018. The plaintiff/respondent hereinafter called the respondent counsel was served on 8th November 2018 as per the affidavit of service commissioned on 9th November 2018. He did not file any affidavit in opposition. It does not however, mean an automatic grant of the application.
In the case of Amidu (No)