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October 10, 1959
HIGH COURT
GHANA
CORAM
(His lordship referred to the pleadings, and continued:)
Upon those pleadings the plea that the dispute was res judicata by reason of the judgments pleaded became a preliminary issue to be determined. The plaintiff appeared in person the day hearing commenced. He was sworn, and had started to give his evidence when Counsel for the defendants asked that the preliminary issue should be determined first, because, if it were sustained, it would finally dispose of the whole suit.
The Court agreed to that procedure, and called upon the defendants to establish their defence. In support of their plea Counsel for the defendants put in certified copies of the writ of Summons in the suit pleaded, the judgments therein relied upon, the order for pleadings, the application (with supporting affidavit of the plaintiff herein) for joinder in that suit as co-defendant, the pleadings in the said suit, the record of a statement made by the plaintiff's Counsel in that suit to the effect that his defence was contained in the affidavit, together with the Leases and Assignment pleaded by the defendants.
[p.349]
Upon these, Counsel submitted that the principal parties to this suit are the same as those in the former suit (namely, the Kreshiet family and J. H W. Randolph), and that the subject-matter of this suit is identical with that in the former suit, as are the issues raised in the two suits. Upon those submissions Counsel for the defendants asked the Court to dismiss the plaintiff's claim on the grounds that it was res judicata.
When called upon to rely to the submissions made on behalf of the defendants, the plaintiff said that he admitted the existence of the judgments and of the proceedings tendered, but he contended that the judgments were ineffective because they were obtained by fraud. He said that he would lead evidence later to establish this allegation of fraud. The Court pointed out to him that as he had not specified the fraud alleged in his reply to the statement of defendant, and had not given any particulars of it, evidence could not be received on that issue. At that stage the plaintiff applied for and was granted, an adjournment to enable him to get his Counsel to attend at the next hearing to argue the legal points. The case had later to be adjourned a second time, as the plaintiff's Counsel did not attend on the date to which it was originally adjourned. Counsel appeared on the third occasion, and the Court explained to him the point which Counsel fo
AI Generated Summary
OLLENNU J addressed a preliminary objection of estoppel per rem judicatam in a suit mirroring an earlier litigation involving the Kreshiet family and J. H. W. Randolph. Defendants produced certified copies of the writ, judgments, pleadings, an application supported by the present plaintiff’s affidavit for joinder in the prior suit, and the relevant leases and assignment, arguing identity of parties, subject matter, and issues. The plaintiff admitted the prior judgments but alleged they were obtained by fraud. Recognizing authorities that fraud vitiates judgments and can be raised defensively, the court emphasized the mandatory pleading standard in Order 19 rule 6, requiring precise particulars. Because the plaintiff’s reply contained only a general averment, the court refused to admit evidence of fraud, held the res judicata defence unanswered, and dismissed the claim with costs, noting the prior judgment by Dean C.J. had been affirmed by the Privy Council.