KWAME BOAKYE v. ANANE ASARE
2004
SUPREME COURT
CORAM
- ACQUAH J.S.C. (PRESIDING)
- ATUGUBA J.S.C.
- SOPHIA AKUFFO J.S.C.
- ADZOE J.S.C.
- BADDOO J.S.C
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Alternative dispute resolution
2004
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Atuguba J.S.C., dismissed an appeal challenging a Court of Appeal decision that permitted setting aside an appellate judgment as fraudulently obtained. The dispute began with a District Court land title case; although the appellants predecessor first prevailed, the High Court, Sunyani, reversed in favor of the opposing party. Before the subsequent appeal was heard, the parties settled the boundary dispute, agreed to withdraw the appeal, and made payments indicating acceptance. Despite this, the appellant prosecuted the appeal in the respondents absence and obtained judgment. The respondent then sued in the High Court to set aside that judgment for fraud. While the High Court found the settlement proved, it dismissed on the view that fraud must be practised on the court. The Court of Appeal reversed, and the Supreme Court upheld, emphasizing that suppressio veri and non-disclosure of the settlement constitute fraud, that the compromise left no live issue, and that concurrent factual findings would not be disturbed.
J U D G M E N T
ATUGUBA J.S.C.
In this case the appellant's predecessor had sued the respondent and another in a District Court over title to some land. He obtained judgment there. However, on appeal the High Court, Sunyani reversed the said Judgment in favour of the respondent. Dissatisfied, the appellant's said predecessor appealed to the Court of Appeal.
Before the appeal could be heard the appellant's said predecessor died and the appellant was duly substituted in his stead.
The respondent maintains that after the said substitution and before the said appeal could be heard, he and the appellant had had the subject-matter of the appeal amicably compromised out of court and had even gone further to agree to have the said pending appeal with drawn.
All this notwithstanding, the respondent complains, the appellant went ahead and prosecuted the said appeal, obtaining judgment in his favour, in his (respondent's) absence.
The respondent therefore sued the appellant in the High court, sunyani, to have the said judgment set aside on grounds of fraud. Although the High Court upheld the respondent's case as to the facts, it dismissed his action on legal grounds. The trial judge, D.K. Okyere, J, in an otherwise lucid judgment, relying on GBADAGO V. TSILI (1957) 2 WALR II held as follows: "What fraud did the defendant perpetrate on the Court of Appeal? He only failed to disclose to that Court that he and the Plaintiff had come to a compromise. Would the Court of Appeal's decision have been different if they had learnt of that disclosure? In my opinion it would not. In Gbadago v: Sili (1955) 2 W.A.L.R. 11 Van Lare J (as he then was) said at p.15,
"I concede that the essence of an action to set aside a judgment on the ground of fraud is constituted by the following:
(a) that the judgment was in fact delivered or pronounced in this case the allegation is that the offending portion was not in fact delivered nor pronounced;
(b) that the judgment sought to be set aside was delivered relying upon evidence which has been proved to have been obtained by fraud; and that but for the said fraudulent evidence the judgment would have been otherwise.
In this case there is no suggestion that there was any piece of evidence fraudulently procured to enable that portion of the judgment complained of to be obtained." (e.s).
The Plaintiff pleaded in paragraph 21 the following particulars of fraud in his amended statement of claim filed on November 12,1993:
(a) The Defen