It is provided under Order 11 rule 18(1) (b) and (d) of the High Court (Civil Procedure) Rules, 2004, C. I. 47 that: “The Court may at any stage of the proceedings order any pleadings or anything in any pleadings to be struck out on the grounds that: (b) it is scandalous, frivolous or vexatious 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”. Defendant has mounted this application under Order 11 rule 18(b) & (d) seeking an order for the dismissal of the suit on the grounds that the suit is vexatious and constitute an abuse of the judicial process.
In the affidavit that accompanied the application defendant claim that in the writ filed by plaintiff they seek to set aside the judgment obtained by defendant in Suit No BFS/356/2014 on grounds of fraud.
And the reasons plaintiffs provide in support of the fraud allegations is that in the grant of the loan to plaintiff/respondents herein the defendant/applicant failed to disclose the meaning and effect of the writ that was issued and served plaintiffs.
And the second allegation in support of the fraud allegation is that the solicitors of defendant concealed from the court the fact that the transaction between them was a mortgage transaction as defendant did not also comply with the mandatory demand notice provision under the Home Mortgage Finance Act.
These allegations, defendant contends are frivolous and vexatious and that same out to be struck out and the suit dismissed accordingly.
Plaintiff/Respondents have resisted the attempt by defendant to have the writ struck out on the ground that the application is without any basis in law.
To plaintiff the judgment obtained by Ghana Home Loans in Suit No BFS/356/2014 was tainted with fraud on the basis that defendant failed in his duty to inform the trial court that it was a mortgage action, that a demand notice was not brought to the notice of the mortgagors as required by law, that the mortgagee knew the mortgagors to be illiterates and were not put on notice to get an independent legal opinion.
The Black’s Law Dictionary, 8th edition defines ‘abuse of process’ as follows: “There is said to be an abuse of process when an adversary through themalicious and unfounded use of some regular legal proceeding obtainssome advantage over his opponent”. Dotse JSC relying on this principle noted in the case of NAOS HOLDING v COMMERCIAL BANK GHANA LTD [2011] SCGLR note
