JOHN FREEMAN DONKOR v. ALBERT FYNN
2015
HIGH COURT
GHANA
CORAM
- HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
2015
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Plaintiff sought to set aside a High Court judgment obtained in favor of SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD on grounds of fraud, arguing that the company was not legally registered. The Defendant denied the fraud allegations and counterclaimed for outstanding monies, interest, and breach of contract damages. The court identified key issues including the company's registration status, capacity to sue, and applicability of estoppel per rem judicatam. The court concluded that since issues of fraud and capacity had already been adjudicated by the Court of Appeal, the Plaintiff could not re-litigate these issues. Consequently, both the Plaintiff's suit and the Defendant's counterclaim were dismissed.
JUDGMENT
By his amended writ of summons and statement of claim filed on 24/05/2011, the Plaintiff herein claimed the following reliefs :
A declaration that Defendant Fraudulently obtained Judgment in suit Number C2/368/08 titled SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD VRS 1. JOHN FREEMAN DONKOR 2. AGYIN when defendant represented that SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD was a creature known in law when the said company was unknown to company law regime in Ghana
A declaration that the said SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD had no capacity in law to have instituted the said action in suit C2/368/08.
Setting aside judgment obtained by fraud in the said suit C2/368/08 and all its consequential orders.
Costs.
Simply put, the case of the Plaintiff was that he was sued at the High Court in Kumasi in a suit entitled SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD v. 1. JOHN FREEMAN DONKOR and 2. Agyin Suit No: C2/368/08. Judgment was entered in favour of the said SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD on 23/11/09. It was the Plaintiff's case that the said judgment was obtained by fraud, and he gave particulars of fraud as set out below:
SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD is not registered with the Registrar - General's Department as a company Limited by Shares
Defendant represented himself as Managing Director of SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD knowing very well that the said company was unincorporated.
The Plaintiff went on to say that SMALL SCALE FINANCIAL ASSISTANCE COMPANY LTD had no capacity to institute the said action and that the Writ of Summons and subsequent judgment obtained on 23/11/09 was procured by fraud and same is void, and ought to be set aside.
In his statement of defence filed on 22/11/10, the Defendant admitted that he was a Director of the company in issue in whose favour judgment was entered, but denied the allegation of fraud and the particulars there under. The Defendant further averred that the Plaintiff is not entitled to the reliefs sought, and counterclaimed as follows:
An order for recovery of an amount of GH¢37,320.00 being outstanding balance of monies plaintiff collected from defendant for purposes of renovating his hotel out of a total amount of GH¢44, 625.00
Interest on the said sum at current bank rate
Damages for breach of contract.
At the application for directions stage the court (differently constituted) adopted the issues filed on 22/12/10 and the additional i