THE TRUST BANK LIMITED v. G.K. APPIAH & SONS LTD & OTHERS

WOOD (MRS.) C.J

On the 10th July, 2008, the Court of Appeal unanimously affirmed, subject to a slight variation, the decision of the trial High Court dated the 26th January, 2007. The plaintiff/ appellant /appellant, has approached this court, yet again questioning the decision of the appellate court, on two grounds, namely that:

“The judgment is against the weight of evidence.

The learned Justices of the Court of Appeal erred in law when they held that Plaintiff/Appellant is stopped per rem judicatam from initiating this suit.”

It would be useful to briefly set out the facts leading to this appeal. The appellants have sued the defendants/respondents respondents and one Kofi Appiah, (as 3rd defendants), in the High Court, Commercial Division, to recover the sum of ¢544,870,775.63 (old cedis) being balance due and owing on account of banking facilities extended to 1st Defendant Company by plaintiff Bank on 19th August 2002 and interest on the sum at 43 % per annum.

What appears on the face of the accompanying statement of claim as a simple banking transaction was challenged on two principal grounds. As averred in the statement of defence, first on the grounds of fraud, with particulars being set out as was required under the rules of court. Second and described as a “monumental abuse of the processes of court”, on the grounds of res judicata, in that, “in respect of the same transaction culminating in the instant suit the plaintiff has already issued a writ in the suit entitled.”

The trial judge, after reviewing the evidence on both sides of the legal divide dismissed the appellant’s suit in its entirety on the main ground of estoppel per rem judicatam.

On appeal, their Lordships substantially affirmed the decision of the trial court, only varying it slightly and the reasons in support thereof, in respect of the said Kofi Appiah, the third defendant in the original action. The appellate court ruled that, on the facts, the plea of estoppel per rem judicata did not avail him. The court thus ordered that the action against him be disposed of on the merits.

This being the correct state of affairs, the appeal cannot possibly be directed at the entire decision of the court, dated the 10th of July, 2008, as appears in the notice of appeal, but only that part of the decision dismissing the suit as against the three appellants in these proceedings before us. In other words, our intervention should be limited to the orders against the three respondents only.