THE TRUST BANK LIMITED v. G.K. APPIAH & SONS LTD & OTHERS
April 20, 2011
SUPREME COURT
GHANA
CORAM
- MRS. WOOD C.J, (PRESIDING)
- DOTSE, J.S.C
- YEBOAH, J.S.C
- GBADEGBE, J.S.C
- MRS. AKOTO-BAMFO, J.S.C
April 20, 2011
SUPREME COURT
GHANA
CORAM
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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.
AI Generated Summary
Plaintiff bank sued various defendants, including Kofi Appiah, to recover an outstanding debt from banking facilities extended to the 1st Defendant Company, with interest at 43%. In earlier suit AB1/2003 involving the same parties and facts, the plaintiff obtained summary and final judgment; execution ensued, including an installment payment order and release of a seized truck. Judgment against Kofi Appiah was set aside for non-service. The plaintiff later obtained leave to discontinue AB1/2003 with liberty to re-file and then brought this action. The defendants pleaded fraud and res judicata; the trial Commercial High Court dismissed the suit on estoppel per rem judicatam. The Court of Appeal unanimously affirmed, varying only to allow the claim against Kofi Appiah to proceed on the merits. On further appeal, the Supreme Court strictly construed Order 17 rule 2(1), held the discontinuance order was a nullity that could be ignored, applied res judicata to bar the fresh suit against the three respondents, and affirmed the Court of Appeal.