GRACE ASUAMAH & ANOTHER v. FELICIA ADOFO
2021
COURT OF APPEAL
GHANA
CORAM
- MARGARET WELBOURNE (MRS) JA PRESIDING
- AMMA GAISIE (MRS) JA
- ADJEI FRIMPONG JA
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (per Adjei Frimpong JA, with Margaret Welbourne JA and Amma Gaisie JA concurring) reviewed a challenge to a High Court judgment in consolidated suits L 437/94 and 2281/93 concerning land disputes between Felicia Adofo and Grace Asuamah/Victor Owusu. After the Chief Justice transferred the suits to the Land Court, Justice Kwasi Dapaah ordered service on counsel and substituted service, heard the matter in the respondents’ absence under Order 36, dismissed their claims/counterclaims, and entered judgment for Adofo. In 2014, Asuamah began a fresh action alleging the Dapaah judgment was procured by fraud via misrepresented service; Owusu joined, and Justice Amo Yartey found fraud and, beyond setting aside, declared title and granted injunctions. On appeal, the Court of Appeal held that service on counsel constituted notice, substituted service was properly directed, fraud was not proved, and the trial judge erred by effectively reviewing Justice Dapaah and by granting impermissible merits relief. The appellate court allowed the appeal and set aside the trial judgment.
J U D G M E N T
ADJEI FRIMPONG JA:
The quest of this appeal is essentially, to determine whether or not the conclusion of the trial court that, the judgment pronounced in two previous consolidated suits was obtained by fraud, can be justified. As it pertained in the trial court, the issue of fraud relative to the aforesaid judgment lies at the heart of this appeal. For convenience, we first relate the short history of the dispute as follows:
Sometime around 1993 and 1994, two separate suits were commenced at the High Court Accra. The first suit bearing number L 437/94 was entitled:
FELICIA ADOFO
VRS
VICTOR OWUSU
KWAKU OBENG
MRS OBENG.
The plaintiff in that suit was Felicia Adofo, mother and predecessor of the present defendant/appellant (appellant). She had sought as against the three defendants, a declaration of title and other ancillary reliefs in respect of a plot of land described as situate at Dome Village Accra. The 1st defendant in that suit Victor Owusu is one of the respondents in this appeal. From the record, he was substituted for his late brother, one H.O Boateng in that action. He mounted a counterclaim against the plaintiff for a plot of land which he claimed his brother acquired from the Neefu Family.
The other suit, bearing number 2281/93 was commenced by Grace Asuamah and entitled:
GRACE ASUAMAH
VRS
FELICIA ADOFO.
The plaintiff in this other suit made some monetary claim against the defendant Grace Adofo, the plaintiff in the first suit. Apparently, as the monetary claim was in relation to the land, subject matter of the first suit, Grace Adofo mounted a counterclaim seeking against Asuamah, the same reliefs she had sought in the first suit. Grace Asuamah is one of the plaintiffs/respondents (respondents) before us.
In the course of the proceedings, the suits were consolidated and subsequently placed before Kwasi Dapaah J at the Land Court, for trial. This was based on a warrant of transfer under the hand of the Chief Justice pursuant to Section 104 of the Courts Act. 1993 (Act 459) as amended. It was whilst the matter was pending before Kwasi Dapaah J that the controversy culminating in this appeal ensued. We shall presently state the rival accounts of the parties.
From the record however, the learned Judge upon making various orders for purposes of service of hearing notices on the respondents and satisfying himself that they had notice of the trial for which they did not appear, proceeded to hear the matter in their abse