MAGNUS DE GRAFT MENDS & ORS vs MARY ATTA BOAKYE & ORS
2015
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP SIR DENNIS ADJEI J.A, SITTING AS AN ADDITIONAL HIGH COURT JUDGE
Areas of Law
- Civil Procedure
- Evidence Law
- Probate and Succession
2015
HIGH COURT
GHANA
CORAM
AI Generated Summary
The plaintiff sought to set aside a District Court judgment on grounds of fraud and breach of natural justice. The court found that the plaintiff and his mother failed to exercise diligence in appearing for the hearing and did not prove fraud. In the consolidated suit, the court ruled that the auction of House No. 16 Sowutuom was void due to improper auction procedures and that the property formed part of the intestate estate of the late Samuel De-Graft Mends. The plaintiff's claims in Bmisc 99/2011 were dismissed, while the claims regarding the auction in BFA 35/2011 were upheld, declaring the auction and subsequent sale null and void.
In suit No. Bmisc 99/2011, the plaintiff instituted the action against the defendant seeking for the following reliefs:
“1. An Order of the Court setting aside the judgment of the District Court Kaneshie dated 14th December, 2005 on the grounds of fraud.
2. A further Order declaring the judgment against the plaintiff herein (then 1st defendant) dated 14th December, 2005 void on the grounds that he was not heard breaching the audi alteram rule thus depriving the Court of the jurisdiction to pronounce judgment in the matter”. The plaintiff whose first relief is to impugn the District Court Judgment on grounds of fraud gave three particulars of fraud.
The particulars of fraud committed by the defendant were given as follows:
“a. The defendant (then plaintiff) knew that the plaintiff (then 1st defendant) was in lawful custody as the date and time she took judgment against the defendants in their absence.
b. The defendant (the plaintiff) concealed the fact that the plaintiff (then 1st defendant) was in prison custody from the Magistrate for the sole purpose of taking judgment against him in his absence.
c. That the defendant knew the plaintiff (then 1st defendant) was disputing her claim and with intent to obtain judgment unfairly chose to take judgment when the plaintiff was on remand at James Fort prison”. The second attack on the District Court Judgment was that it was taken in breach of the rules of natural Justice.
The plaintiff in paragraphs 7 and 8 of his statement of claim stated that at the time the judgment was rendered against him, he had filed an affidavit in opposition indicating that he was not liable but the District Court blatantly ignored the affidavit in opposition and therefore denied him a hearing.
The defendant resisted the plaintiff’s claim and pleaded that the judgment was validly entered in her favour and there was no element of fraud and the particulars of fraud alleged by the plaintiff were unfounded.
The defendant further stated that the plaintiffs in the District Court suit were given a hearing but lost genuinely on the merits of the case.
At the close of the pleadings, the defendant filed five issues in the application for directions.
The plaintiff also filed five additional issues.
In all, ten issues were raised but the relevant ones are only four and would be addressed in the course of this judgment.
The suit with No. BFA 35/2011 arose as a result of the subject matter of the execution in the District Court suit.
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