Abuse of judicial process and setting aside judgment for fraud

Estoppel – Abuse of judicial process – Plea of – Doctrine of judicial process – Application – Exceptions to doctrine – Special circumstances like fraud – Practice and procedure – Judgment – Setting aside – Fraud – Remedy by aggrieved party – Proper method to set aside judgment on grounds of fraud – Meaning of allegation of fraud – High Court (Civil Procedure) Rule, 2004 (CI 47), Order 11, r12(1)(a).

SUPREME COURT, ACCRA
(Civil Appeal No J4/24/2012)

Published Thursday, November 28, 2013

OSEI-ANSONG  &  PASSION INTERNATIONAL SCHOOL
v
GHANA AIRPORTS CO LTD

BEFORE THEIR LORDSHIPS: ATUGUBA, SOPHIA  ADINYIRA, R  C  OWUSU, DOTSE AND BAFFOE-BONNIE JJSC
 
Judgment on  January 23, 2013

The relevant facts of the case were as follows: The plaintiffs-appellants had earlier been sued in the High Court, Kumasi, by the defendant-respondent Ghana Airports Co Ltd, for, inter alia, recovery of possession of the portion of the Kumasi Airport and damages for trespass.

The plaintiffs admitted the claim of the defendant company which applied and obtained in the High Court, summary judgment under Order 14 of the High Court (Civil Procedure) Rules, 2004 (CI 47). Subsequently, the plaintiffs issued a writ to set aside the earlier judgment of the High Court on grounds of fraud.

The plaintiffs alleged that they had been deceived by the representations made by defendant company and other bodies like the Ashanti Regional Lands Commission, the Regional Police Command of the Ashanti Region and the Regional Coordinating Council, Ashanti Region, into believing that the disputed land was owned by the defendant company.

The defendant entered conditional appearance and applied for the suit to be struck out on grounds of abuse of court process as the same matter had been litigated before a court of co-ordinate jurisdiction. However, the trial judge held that the plaintiffs had made allegation of fraud and had given particulars of the alleged fraud.

Accordingly, the plaintiffs must be given the opportunity to prove their case as the court could not, without taking evidence, come to any conclusion at that stage.

He, therefore, dismissed the application to set aside the writ. The Court of Appeal set aside the ruling of the High Court and dismissed the suit, holding that there was no proper allegation of fraud on the face of the pleadings.

The plaintiffs appealed against the decision of the Court of Appeal to the Supreme Court on the grounds, inter alia, that the Court of Appeal had erred in holding that the plaintiff's writ was an abuse of the court process.

In considering the appeal, the Supreme Court referred to the relevant provision in rule 12(1)(a) of Order 11 of the High Court (Civil Procedure) Rules, 2004 (CI 47), which states as follows: “(1) Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words, (a)  particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies;…”

On these facts, the Supreme Court unanimously dismissed the appeal by the plaintiffs from the judgment of the Court of Appeal on the grounds, inter alia: First, the doctrine of abuse of process, commonly referred to as the rule in Henderson v Henderson required the parties, when a matter has become the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it might be finally decided (subject, to any appeal) once and for all. In the absence of special circumstances, the parties could not return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise.

The rule was not based on the doctrine of res judicata in a narrow sense, or even on any strict doctrine of issue or cause of action estoppel. It was a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do.

The special circumstance must, however, be clearly spelt out. In the instant case, the special circumstance, seemed to be the allegation of fraud by the plaintiffs. A party certainly had a right to set aside a judgment, however, obtained, be it by default or upon admissions or after a full trial on the ground of fraud.

Second, the settled law and practice of the courts was that the proper method of impeaching a judgment on the ground of fraud was by action in which the particulars of the fraud must be exactly given and the allegation established by strict proof. Reference might in that regard, also be made to the provision in rule 12(1)(a) of Order 11, of the High Court (Civil Procedure) Rules, 2004 (CI 47), stated above.

In the instant case, the Supreme Court would concur with the decision of the Court of Appeal that the plaintiffs were not required to have pleaded evidence in proof of fraud, but it was important for the plaintiffs to have pleaded facts or made averments that had the potential to demonstrate patently that the defendant had either admitted that it had deliberately made false representations or acted in such a way that its claim to the land in dispute could be nothing but fraudulent.

In delivering the judgment of the Supreme Court, Her Ladyship Sophia Adinyira JSC explained the court’s decision as follows:  “[The Supreme Court] must stress that fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the courts. Francois JSC in his dissenting opinion in Dzotepe v Hahormene III [1987-88] 2 GLR 681 at 701 aptly put it as follows: ‘There is no denying the fact that a judgment obtained by fraud is in the eyes of the court no judgment, as it is not founded on the intrinsic merits of the case, but is borne of an attempt to overreach the courts by deceit and falsehood…But the fact that the courts abhor fraud should not make them insensitive to the just claims of victorious parties.

The judicial edifice was not constructed to lend a ready ear to every cry of fraud from suitors who had lost on the merits. If charges of fraud are not examined closely, the stratagem would subvert the very administration of justice and undermine the hallowed principle that a victorious party is entitled to the fruits of his judgment and should not be deprived of his victory without just cause…’  In Kerr on Frauds and Mistakes (7th ed)...the learned author stated that fraud in all cases, implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he was entitled to.”