KWAME BOAKYE v. ANANE ASARE
1999
COURT OF APPEAL
GHANA
CORAM
- WOOD, J.A. (PRESIDING)
- BROBBEY, J.A.
- AFREH J.A
Areas of Law
- Alternative dispute resolution
- Contract Law
- Civil Procedure
1999
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involved the respondent pursuing an appeal despite a settlement agreement, leading to a judgment in his favor. The appellant claimed fraud, as the respondent did not disclose the settlement to the Court of Appeal. The High Court dismissed the appellant's case, but the Court of Appeal found that the judgment was obtained by fraud and should be set aside. The court emphasized the importance of transparency and honoring settlements in judicial proceedings.
JUDGMENT
WOOD, J. A.:
I agree that the appeal be allowed. The trial judge’s finding that while the appeal was pending in this Court, the parties submitted themselves and the matter to arbitration and compromised the decision of the trial High Court is unimpeachable. It is supported by evidence on the record. That being so, the Court ought also to have held in the appellants favour that the failure to make the following disclosure to the Court amounts to or constitutes fraud on the appellants.
(a) The fact of the compromise
(b) The fact that the parties have agreed to discontinue the pending appeal and not to persue it.
Not surprisingly, for the record supports such a view, the trial judge found that by proceeding to prosecute the appeal in the absence of the appellant and without making a full and frank disclosure of their respective positions the respondent had practised a deceit on his opponent.
Apaloo JSC's speech in Barclays Bank DCO vrs: HEWARD MILLS 1964 GLR 332 would clearly support the view that the respondent’s fraudulent misrepresentations (for clearly that in effect is what his non disclosures amount to) are sufficient grounds upon which the judgment so obtained could be set aside on the grounds of fraud.
His Lordship stated: "we are not aware of no rule of law which lays down that if a man is misled by this naked form of deceit from resisting an action against himself, he cannot subsequently ask that judgment obtained against him be set aside, if he subsequently discovered the truth. We think a judgment can properly be said to be obtained by fraud even if no evidence was led and where, as in this case the respondent abstained from offering resistence because of fraud". (Emphasis Mine)
The principle of law clearly discernible from the speech of his Lordship is that it is not only cases in which fraud is practised directly on the court that one could succeed in setting aside the decision so obtained, as for example obtained a judgment by fraud practised directly on court.
In the circumstances I think the learned trial judge erred in dismissing the appellant case. I would set aside the dismissal and in its place grant the appellant’s prayer.
G. T. WOOD (MRS.)
JUSTICE OF APPEAL COURT.
AFREH, J. A.:
This is an appeal against the judgment of D.K. Okyere J, sitting in the High Court, Sunyani, on 18/10/93.
By his Writ issued on 4/1/89 (as amended) the plaintiff/appellant (appellant) claimed against the defendant/Respondent (respondent) fo