DENNIS LAW ONLINE REPORT www.dennislawgh.

com

UNION MORTGAGE BANK LTD & ANOR

(PLAINTIFFS/RESPONDENTS)

vs.
ALHAJI FATAU EL-AZIZ & 15 ORS
(DEFENDANTS/APPLICANTS)
[HIGH COURT, ACCRA]
SUIT NO. CM/BDC/0511/2021 DATE: 25TH APRIL, 2022

COUNSEL
KWAKU ANSA-ASARE FOR PLAINTIFFS/RESPONDENTS
ACE ANAN ANKOMAH FOR 1ST, 2ND, 3RD, 5TH, 7TH, 8TH, 9TH, 11TH AND 15TH
DEFENDANTS/APPLICANTS

CORAM:
HIS LORDSHIP FRANCIS OBIRI ‘J’.

RULING

This ruling is in respect of a motion on notice filed by the 2nd, 7th and 9th
Defendants/Applicants (hereinafter referred to as the Applicants) on 14th May, 2021. The
motion is praying the Court for an Order to strike out paragraphs 1-3 and 5 to 45 of the
Plaintiffs (hereinafter called the Respondents) statement of claim.

The basis of the Applicants prayer is that, the Respondents statement of claim is
scandalous, frivolous and vexatious and an abuse of the process of the Court.

The Applicants also prayed for the Respondents Writ to be dismissed on the grounds that
it is an abuse of the Court process.

The motion is supported by affidavit and exhibits. I wish to quote the relevant
paragraphs of the affidavit in support in this ruling.

3. That this action is misconceived, vexatious and an abuse of the processes of this
Honourable Court as 2nd Plaintiff has raised the same issues, and which

1
DENNIS LAW ONLINE REPORT www.dennislawgh.com

issues have been finally determined in another action entitled Kwame Charles
Serbeh-Yiadom v Stanbic Bank Ghana Limited. (Suit no. FTC 8/2001)

4. That this action is again an abuse of the process, since 2nd Plaintiff has been barred
from ever litigating the issues raised in this action in another action entitled
Professor Kwame Serbeh Yiadom v Stanbic Africa Holdings Limited and Stanbic
Bank Ghana Limited. (suit no. AC 194/2009)

5. That further, this action is also an abuse of the process since 2nd Plaintiff has been
further barred from ever litigating the issues raised in this action, which was found
to be an abuse of process, in yet another action entitled Professor Kwame Charles
Serbeh Yiadom v Alhaji Fattau El-Aziz. (suit no. OCC/18/2012)

6. That also, this action is an abuse of the process since the decision in the Third Suit
has been affirmed by the Court of Appeal in the case entitled Professor Kwame
Charles Serbeh Yiadom v Alhaji Fattau El-Aziz. (suit no. H1/188/2013)

7. That Plaintiffs commenced this action by filing a Writ of Summons and Statement
of Claim dated 8th April, 2021 for the reliefs endorsed thereon.

8. That 2nd Defendant entered conditional appearance on 19th April, 2021 and 7th and
9th Defendants entered appearance on 10th May, 2021.

9. That the purported 1st Plaintiff is 2nd Defendant albeit now operating under a new
name because, 1st Plaintiff’s name was changed to the name of 2nd Defendant on
9th July, 1999 as confirmed by a Written Special Resolution dated 9th July, 1999,
minutes of an Extraordinary General Meeting held on 9th July, 1999, and minutes
of the meeting of the Board of Directors held on 9th July, 1999 (copies of the written
special resolution, extract of the minutes of the Extraordinary General Meeting and
extract of the minutes of the Board of Directors Meeting are hereby attached and
marked respectively as exhibits DI 1, DI 2, and DI 3.

2
DENNIS LAW ONLINE REPORT www.dennislawgh.com

10. That the Registrar of Companies approved of the name change and on 27th July,
1999, issued 2nd Defendant with a replacement certificate of incorporation bearing
its new name (a copy of the certificate of incorporation of 2nd Defendant is hereby
attached and marked as exhibit DI 4)

11. That there is no entity by the purported 1st Plaintiff’s name in the Registrar of
Companies in the Company’s Registry at the Registrar-General’s Department as
confirmed by a letter dated 6th May, 2021 from the Registrar-General’s Department
(a copy of the letter from the Registrar General’s Department is hereby attached
and marked as exhibit DI 5.

13. That the purported 1st Plaintiff is, in law and in fact, now 2nd Defendant (under its
new registered name) and therefore cannot institute this action against itself.

14. That 2nd Plaintiff is illegally holding himself out as a Director of the purported 1st
Plaintiff and purporting to act on its behalf while having no capacity or authority
to do so.

16. That on 2nd October, 2000, 2nd Plaintiff commenced the First Suit by causing to
issue a Writ of Summons and statement of Claim against 2nd Defendant herein for
the reliefs endorsed thereon (a copy of the Writ of Summons and statement of
Claim is hereby attached and together marked as exhibit DI 6.

19. That at the close of pleadings, a total of 11 issues were set down for determination
(a copy of the Application for directions is hereby attached and marked as (Exhibit
DI 10).

20. That evidence was led and on 27th February, 2003, His Lordship Amonoo-Monney
JA, sitting as an additional High Court Judge, entered judgment for the Defendant
(2nd Defendant herein) dismissing all but the Plaintiff’s (2nd Plaintiff herein) relief
(c) (a copy of the 27th February, 2003 judgment is hereby attached and marked as
exhibit DI 11.

3
DENNIS LAW ONLINE REPORT www.dennislawgh.com

21. That the issues raised in this suit particularly those relating to 2nd Plaintiff’s
shareholding in 2nd Defendant’s bank, the increase of 2nd Defendant’s authorised
shares from 1 million to 5 million and the subsequent sale of majority shares in 2nd
Defendant to Stanbic Africa Holdings Limited have been finally and conclusively
determined by the judgment (exhibit DI 11) in the first suit.

22. That 2nd Plaintiff did not appeal against Exhibit DI 11 and it remains unchallenged.

23. That 2nd Plaintiff is thus estopped from proceeding with this action and
demanding the determination of the same issues raised and determined by this
Honourable Court in Exhibit DI 11.

24. That in the first suit, 2nd Plaintiff herein made the same allegations of fraud stated
in paragraphs 27(f) and 28 of the Statement of Claim and had every opportunity
to seek its corresponding reliefs, but failed to do so and is consequently estopped
from now seeking same in this Suit.

25. That on 2nd March 2010, 2nd Plaintiff commenced the second suit by causing to
issue a Writ of Summons and Statement of Claim against 2nd Defendant herein and
Stanbic Africa Holdings Limited for the reliefs endorsed thereon (a copy of the
writ of summons and statement of claim is hereby attached and together marked
as exhibit DI 12.

26. That in the second suit, 2nd Plaintiff herein sought to re-litigate issues relating to
his shareholding in 2nd Defendant herein, among others, which issues had been
conclusively determined in the first suit and purported issues of fraud which he
could have raised but failed to raise in the first suit.

28. That on 9th April 2010, the Defendants in the second suit filed a motion to strike
the Plaintiff’s (2nd Plaintiff herein) pleadings out and dismiss his action for being
and abuse of the Court’s process (a copy of the motion (without exhibits) is hereby
attached and marked as exhibit DI 15.

4
DENNIS LAW ONLINE REPORT www.dennislawgh.com

29. That on 27th May 2010, His Lordship Edward Amoako Asante J (as he then was)
dismissed the second suit as an abuse of process and barred 2nd Plaintiff herein
from further litigating the matter (a copy of the Court’s ruling dated 27th May, 2010
is hereby attached and marked as exhibit DI 16.

30. That 2nd Plaintiff did not appeal against Exhibit DI 16 and it remains unchallenged
to date.

31. That 2nd Plaintiff was in Court when the Court delivered its ruling and is, and has
always been, aware of the bar preventing him from further litigating the matter.

32. That contrary to the bar against him from further litigating the matter, on 7th
March, 2012, 2nd Plaintiff herein commenced a third suit in the Commercial
Division of the High Court by causing to issue a writ of summons and statement
of claim against 1st Defendant herein, a privy of 2nd Defendant herein. Copies of
the writ of summons and statement of claim is hereby attached and together
marked as exhibit DI 17

33. That again in that suit, 2nd Plaintiff herein sought to re-litigate issues relating to his
shareholding in 2nd Defendant herein, among others, which issues had been
conclusively determined in the first suit and purported issues of fraud that he
could have raised but failed to, in the first suit.

35. That on 16th July, 2012 the Defendant in the third suit filed a motion to strike the
pleadings of the Plaintiff therein (2nd Plaintiff herein) out and dismiss his action
for being an abuse of the Court’s process (a copy of the motion is hereby attached
and marked as exhibit DI 19.

36. That on 27th September, 2012, Her Ladyship Justice Barbara Ackah-Yensu J (as she
then was) dismissed the third suit for being an abuse of process and further barred

5
DENNIS LAW ONLINE REPORT www.dennislawgh.com

the Plaintiff (2nd Plaintiff herein) from further litigating the matter (a copy of the
ruling dated 27th September, 2012 is hereby attached and marked as exhibit DI 20.

37. That in exhibit DI 20, the court specifically found that the issues raised in the third
suit were essentially the same as those raised in the second suit, which had been
dismissed as already determined in previous actions, and was an abuse of process.

38. That 2nd Plaintiff herein appealed against exhibit DI 20 and on 12th December, 2013,
the Court of Appeal dismissed the appeal, affirmed exhibit DI 20 and found inter
alia that the third suit was clearly in breach of the bar against 2nd Plaintiff from
further litigating the matter. A copy of the Court of Appeal judgment dated 12th
December, 2013 is hereby attached and marked as exhibit DI 21

39. That 2nd Plaintiff did not appeal against exhibit DI 21 and it remains unchallenged
to date.

40. That in intentional, blatant and contumelious breach of the existing bars against
him from re-litigating the matter, 2nd Plaintiff has filed this action raising the same
issues relating to his shareholding in 2nd Defendant and 2nd Defendant’s name
change, among others.

41. That 2nd Plaintiff also makes allegations of fraud that he made in the first suit and
which he had the opportunity to seek its corresponding reliefs in the first suit, but
failed to do.

42. That in any event, any claim for fraud by 2nd Plaintiff against 2nd Defendant are
statute-barred.

43. That 2nd Plaintiff is also purporting to raise issues with the name change of Union
Mortgage Bank to the name of 2nd Defendant, when he was well aware of that facts
and surrounding information at least from the time he filed the first suit.

6
DENNIS LAW ONLINE REPORT www.dennislawgh.com

46. That at all times material and relevant to this action, 2nd Plaintiff knew that 2nd
Defendant had the registered name ‘Union Mortgage Bank Limited’ before the
registered name was changed to Stanbic Bank Ghana Limited and he cannot
contend belatedly that the name change was wrongly done.

47. That 2nd Plaintiff also wrongfully contends that an action filed by Union Mortgage
Bank before its name was changed, entitled Union Mortgage Bank v Charles
Kwame Serbeh Yiadom (suit no. Misc./152/1997) is a nullity for non-compliance
with a condition precedent in the judgment delivered by the Court in that matter.

48. That in a wrongful attempt to avoid the bars against re-litigating the matters
concerning 2nd Defendant’s shareholding, 2nd Plaintiff also contends that the first
and second suits are legal nullities because they were obtained by fraud because,
2nd Defendant did not exist in 2000 and 2010.

49. That further, in a barely-disguised attempt to avoid the bars against him re-
litigating the matter (SIC), 2nd Plaintiff has deliberately included other parties in
this action by firstly including the purported 1st Plaintiff which entity is the 2nd
Defendant and secondly including other Defendants who have no involvement or
bearing on the issues he claims to have, thereby further abusing the process and
attempting to mislead the Court.

50. That in further unlawful attempt to avoid the bars against him from re-litigating
the matter, 2nd Plaintiff claims that he has discovered new and important matters
bordering on fraud, by way of alleged searches conducted at the Registrar –
General’s Department and on which basis the judgments and decisions in the first,
second and third suits and the actions entitled Kwame Charles Serbeh-Yiadom v
Stanbic Bank Ghana Ltd (suit no. Misc 2145/2000), Union Mortgage Bank v
Kwame Charles Serbeh-Yiadom (Suit No. Misc152/97) and Kwame Charles
Serbeh-Yiadom v Alhaji Fattau El-Aziz (suit no. HI/188/13) should be declared
null and void and of no effect for having been procured by fraud.

7
DENNIS LAW ONLINE REPORT www.dennislawgh.com

51. That the said letters from the Registrar-General’s Department dated 30th August,
2019 and 7th May, 2020 respectively do not show any fraud at all, any such
allegations are vigorously denied, and such letters clearly have no bearing on the
previous actions (copies of the letters are hereby attached and marked respectively
as exhibits DI 23’ and DI 24.

52. That even if the alleged new material was relevant to the allegations made (which
is denied) these are matters that 2nd Plaintiff was aware of, at all relevant times, or
could have discovered earlier through a diligent search and thus he cannot
contend they were unavailable to him.

53. That accordingly, 2nd Plaintiff’s contention of discovery of new and important
matter is false and does not constitute a ground for setting aside or declaring as
null and void the judgments and decisions in the first to third suits; and the actions
entitled Kwame Charles Serbeh-Yiadom v Stanbic Bank Ghana Ltd (suit No.
Misc/2145/2000), Union Mortgage Bank v Kwame Charles Serbeh-Yiadom (suit
no. Misc/152/97) and Kwame Charles Serbeh-Yiadom v Alhaji Fattau E; -Aziz
(suit No. H1/188/13).

54. That this action was commenced in bad faith and in complete disregard of the
judicial process.

55. That to permit 2nd Plaintiff to re-litigate issues conclusively determined in the first
suit, matters which are statute-barred and in respect of which he has been barred
by the judgments in the second and third suits from re-litigating, will be an abuse
of the process of court and contrary to the bar on litigation set out above.

56. That accordingly, Defendants respectfully pray, that Plaintiff’s pleadings

contained in paragraphs 1 to 3, and 5 to 45 be struck out for being vexatious and
an abuse of process and then for the entire action to be dismissed and punitive
costs awarded against 2nd Plaintiff.

8
DENNIS LAW ONLINE REPORT www.dennislawgh.com

The Respondents resisted the application by filling affidavit in opposition on 20th May,
2021. I wish to reproduce the relevant paragraphs of the affidavit in opposition in this
ruling

2. That I am one of the two original subscribers/shareholders and amongst the first
five directors of 1st Plaintiff/Respondent Company.

3. That I have the consent and authority of 1st Plaintiff/Respondent Company to

depose to the facts contained in this affidavit which facts, unless otherwise stated,
have become known to me as such subscriber/Shareholder/Director of 1st
Plaintiff/Respondent Company.

5. That in the first place, the plea of estoppel per rem judicatam does not apply
because the judgments which 2nd, 7th and 9th Defendants/Applicants are relying
upon were procured or obtained by fraud, the particulars of which have been
provided in paragraph 27 of the statement of claim.

6. That secondly, exhibit ‘DI 1’ on the basis of which the name of 1st
Plaintiff/Respondent was purportedly changed from Union Mortgage Bank
Limited into Stanbic Bank Ghana Ltd was a fraudulent document containing
certain entries which were not in the original document dated 9th July, 1999.

7. That attached, herewith, as exhibit A’ is the original written special resolution,

dated the 9th day of July, 1999, and filed on 27th July, 1999, at the Registrar-
General’s Department as appears on the face of exhibit ‘A’.

8. That if 2nd Defendant/Applicant had tendered the original written Special

Resolution in evidence in those cases, it would have revealed that Exhibit DI 1’
was a fictitious document which was tendered in evidence, as is being done in the
instant application, to deceive the Court.

9
DENNIS LAW ONLINE REPORT www.dennislawgh.com

9. That a comparison of exhibit “DI 1 and exhibit ‘A’ shows surreptitious entries in
exhibit ‘DI 1’ which is a copy from the original document.

10. That exhibit ‘DI 1’ was intended by 2nd Defendant/Applicant to deceive the
Registrar-General into believing that it was a copy from exhibit ‘A’, the original
and genuine document.

11. That fraud is an offence against the state and it is important that the allegation be
examined and determined once and for all because, it is in everyone’s interest to
bring an end to this question of fraud.

12. That I am advised by our counsel and verily believe the same to be true that in the
previous cases whose judgments the 2nd, 7th and 9th Defendants/Applicants seek
to rely upon, the Court neither discussed nor considered the issue of fraud and it
could not have judicially considered that issue because, it had not arisen then as
the fraud was uncovered only recently as can be evident by the search report from
the Registrar-General’s Department dated 7th May, 2020, copy of which is attached
herewith and marked as exhibit ‘B’

13. That I am advised by our counsel and verily believe the same to be true that the
distinctive Ghanaian public and judicial policy requires that a judgment obtained
by fraud should never be permitted in Ghana to operate as an estoppel once the
fraud was exposed in a court of competent jurisdiction, the reason being that a
fraudulent judgment is a nullity.

14. That I am further advised by our counsel and verily believe the same to be true
also that a judgments of a Court, if obtained by fraud, such as the judgment, 2nd,
7th and 9th Defendants/Applicants are relying upon, if allowed to be operative,
when that fraud has been discovered, would be tantamount to judicial
encouragement for bankers of corrupt dealings to continue to peddle their corrupt
machinations.

10
DENNIS LAW ONLINE REPORT www.dennislawgh.com

19. That attached, herewith, and marked as exhibit ‘D’ are the Minutes of Meeting
held on 28th April, 2020, at the Registrar-General’s Department which fortify our
allegation that exhibits ‘DI 1’ and DI 5’ are fraudulent documents.

22. That I maintain our stance that the change of name of 1st Plaintiff Company from
“Union Mortgage Bank Ltd” to Stanbic Bank Ghana Ltd. was procured by fraud
which said fraud is substantiated by a search report from the Registrar-General’s
Department dated 7th May, 2020 which is exhibit ‘B’

23. That this is because, as per exhibit ‘B’, the information supplied by the 2nd, 7th and
9th Defendants/Applicants in support of the change of name from Union
Mortgage Bank Ltd to Stanbic Bank Ghana Ltd, in the system of the Registrar-
General’s Department on 27th July, 1999, was different from the details of the
Company at incorporation.

24. That 1st Plaintiff/Respondent is a separate and distinct company from 2nd
Defendant/Applicant. The 2nd Defendant/Applicant does not exist because, if it
does exist, it will not require exhibits ‘D’ and ‘E’ the certificate of Incorporation
and Certificate to Commence Business.

25. That the fact that 2nd Defendant/Applicant’s corporate identity hinges on the
incorporation of 1st Plaintiff/Respondent is sufficient testimony that 2nd
Defendant/Applicant is non-existent.

26. That also attached, herewith and marked as exhibit ‘F’ is the Banking License 2nd
Defendant/Applicant obtained from Bank of Ghana.

27. That, exhibits ‘D’ ‘E’ and ‘F’ show that, 1st Plaintiff is different from 2nd Defendant
and paragraphs 12,13,14 and 15 of the affidavit in support are deception to mislead
this honourable Court.

11
DENNIS LAW ONLINE REPORT www.dennislawgh.com

28. That the falsification of the records of Union Mortgage Bank Ltd. at the Registrar-
General’s Department by the 2nd Defendant/Applicant as substantiated by exhibit
‘B’ constitute forgery.

29. That in addition, there is new evidence contained in exhibit ‘B’ that 2nd
Plaintiff/Respondent was registered on 8th March, 1994, when its alleged 1st
Directors had not known about Stanbic Bank Ghana Ltd which this honourable
Court must examine at the trial of this action.

30. That the materiality of the new or fresh evidence in exhibit ‘B’ as well as the
procurement of the judgments by fraud under the judgments in the previous suits
render the judgments void ab initio.

35. That I am advised by my lawyer and verily believe the same to be true that it
would be an intolerable infraction of the principles of justice to allow the 2nd, 7th
and 9th Defendants/Applicants to retain the fruits of judgments procured by
fraud.

39. That attached herewith is a copy of the AGREEMENT between STANBIC AFRICA
HOLDINGS LIMITED (SAHL) and UNION MORTGAGE BANK LIMITED (UMB)
and marked as exhibit ‘N’ which the 2nd,7th and 9th Defendants/Applicants have
deliberately suppressed ostensibly to play another deception on this honourable
Court.

41. That I am advised by our counsel and verily believe the same to be true also, that
the issues arising for trial in this action cannot be disposed off by affidavit evidence
and requires actual trial so that the issues can be considered on their merits at trial.

42. That in the premises, I swear to this affidavit in opposition to the present motion
and pray this honourable Court to refuse the application as being wholly

12
DENNIS LAW ONLINE REPORT www.dennislawgh.com

unmeritorious whiles the annexures attached to the affidavit in support of the

motion are legally incompetent for non-compliance with Rules of Court.

The Applicant filed supplementary affidavit on 11th June, 2021. It does not appear on
the face of the supplementary affidavit or on record that the Applicants asked for leave
from the court before filling the supplementary affidavit.

Again, the deponent to the supplementary affidavit stated in paragraph 1, that she has
the consent and authority of 1st, 2nd, 3rd, 7th, 9th and 15th Defendants to depose to the
affidavit. Meanwhile, in the original motion filed on 14th May, 2021, the Applicants are
only three, namely 2nd, 7th and 9th Defendants. I do not know at what stage the 1st, 3rd,
7th and 15th Defendants became Applicants. I will therefore not rely on the said
supplementary affidavit.

The Applicants again, filed further supplementary affidavit on 18th March, 2022. It does
not appear on the face of the further supplementary affidavit that it was filed with the
leave of the Court. Orders 19 and 20 of C.I. 47 do not specifically provide for
supplementary affidavit. That is why if it becomes necessary for a party to file same, the
person has to seek the permission or the leave of the Court.

I am not unmindful of the provision Under Order 82(1) of CI 47 which provides as

follows: -

“Where in respect of any matter of procedure, no provision is made by these rules,

the practice for the time being in force in any common law country may where
convenient be applied”

However, the Applicants did not indicate anywhere in the further supplementary
affidavit filed on 18th March 2022, that, they are proceeding under any procedure in any
common law country. I am therefore unable to attach any importance to same. A party
should not be given an open ended opportunity to be filling supplementary affidavits as
and when he pleases.
13
DENNIS LAW ONLINE REPORT www.dennislawgh.com

A party is not to present his case in piecemeal. It is trite law that, if a process needs the
leave of the Court to file same, then failure to obtain the leave before filling the process
will render the process a nullity.

See: IDDRISU v AMARTEY (2009) SCGLR 670

The whole of Orders 19 and 20 of C.I 47 which are on applications and affidavits do not
mention supplementary affidavit. That is why a party must seek the leave of the Court
before filing same.

The Respondents also filed affidavit in opposition to further supplementary affidavit for
an order striking out the Plaintiffs pleading and dismissing the suit. This is also
unwarranted by the Rules of Court without the leave of the Court. It was filed on 23rd
March, 2022. Respondents again filed affidavit in opposition to further supplementary
affidavit in support of application for an order striking out Plaintiffs pleadings and
dismissing the action, on 8th April, 2022 without the leave of the Court. From the analysis
above, I am unable to consider same as well.

If the parties obtained the leave of the Court before filling the supplementary and further
supplementary affidavits in support and opposition, same ought to have been indicated
on the face of the supplementary affidavit and the further supplementary affidavits in
support and in opposition.

In applying for such leave to file a supplementary affidavit, a party can rely on the
inherent jurisdiction of the Court, in a situation where it has not been expressly provided
for under Orders 19 and 20 of C.I.47

See: DONKOR v KUSI (1977) 2 GLR 242

The 1st, 3rd, 11th and 15th Defendants also filed affidavit in support of the Applicants
application for an order striking out Plaintiffs pleadings and dismissing the action on 11th

14
DENNIS LAW ONLINE REPORT www.dennislawgh.com

June, 2021. The contents of the affidavit are principally the same as the Applicants
affidavit in support of the application.

Counsel for the parties were ordered by this court differently constituted to file their
submissions which they complied with by filing same.

I have gone through them, the submissions were anchored around the affidavit in
support and in opposition to the application which I have taken my time to quote the
relevant paragraphs in this delivery. Counsel for both parties also relied on various case
laws and statutes in their submissions.

It is my duty to make a determination one way or the other. Before I proceed to make a
determination in respect of the application, I detected some defects on the side of both
parties, in addition to what have been pointed out earlier in this ruling.

First, the Respondents issued the writ on 8th April, 2021. The Respondents statement of
claim consisted of forty-five paragraphs and ninety-nine reliefs. It is trite law that lengthy
pleadings constitute abuse of the court process. In this respect, I wish to quote the
opinion of Akuffo JSC (as she then was) in SMITH & OTHERS v BLANKSON
(substituted by) BAFFOR & ANOTHER (2007-2008) 1 SCGLR 374 at 385 where she
stated as follows: -

“Before concluding this judgment, there are a number of observations we need to

make concerning this appeal. Firstly, this Court deplores the prolixity with which
counsel for the plaintiffs/appellants set out claims, issues and grounds of appeal.
Many of these amounted more to legal submissions than pleadings. It is not by
lengthy words and paragraphs that a bad case can be transmitted into a good one.
The only ends served by such protracted pleadings is to waste the courts time and,
at times confuse the issues. It amounts to an abuse of the processes of the court”.

15
DENNIS LAW ONLINE REPORT www.dennislawgh.com

I think the pleadings in this case falls on all fours with the opinion of the Supreme Court
in the Smith & others case (supra). I am therefore bound by it admonition per the
principles of stare decisis.

Secondly, the Respondents reliefs are mainly on the fact that, some previous judgments
which have been obtained in respect of some cases between the parties in respect of the
2nd Respondent and 1st Applicant (2nd Defendant) were obtained by recourse to fraud and
should be set aside.

The law is settled that, in an action to set aside judgment on grounds of fraud, that should
be the only issue which should be pleaded and considered by the court. It is not the
rehearing of the whole case.

Therefore, the reliefs should only border on the fraud and nothing else. In that case, if
the party alleging that a judgment has been obtained fraudulently is able to prove same,
the said judgment will be set aside, and the case will go back to the original pleadings
which gave birth to the said fraudulent judgment.

See: NANA ASUMADU II (substituted by NANA DARKU AMPEM) & ANOTHER v

AGYA AMEYAW (2019-2020) 1 SCLRG 681

ADUMUAH OKWEI v ASHIETEYE LARYEA (2011) 1 SCGLR 317

RANDOLPH v CAPTAN & ANOTHER (1959) GLR 347

BRUTUW v AFERIBA (1984-1986) 1 GLR 25

Therefore, the contention by the Respondents counsel, that those five previous judgments
involving the parties or some of the parties, were obtained by recourse to fraud should
not have given rise to forty-five paragraphs of the statement of claim and ninety-nine
reliefs being sought from this court. However, an amendment can cure this defect.

16
DENNIS LAW ONLINE REPORT www.dennislawgh.com

On the part of the Applicants, I have noticed these defects in their processes as well. First,
the 1st Applicant (2nd Defendant) was served with the Respondents writ on 9th April, 2021.
The 2nd Applicant (7th Defendant) was served on 15th April, 2021. The 3rd Applicant (9th
Defendant) was also served with the Respondents writ on 12th April, 2021. This is from
the results of the search filed on 21st April, 2021. The 1st Applicant filed conditional
appearance on 19th April, 2021. The 2nd and 3rd Applicants did not file any process until
10th May, 2021 when they filed notice of appearance. From 12th April, 2021 and 15th April,
2021 to 10th May, 2021 is more than eight days.

However, the 2nd and the 3rd Applicants did not bother to ask for leave of the court for
extension of time to file appearance out of time under Oder 80 Rule 4 of C.I. 47.

Again, when the 1st Applicant filed its conditional appearance on 19th April, 2021, it
elected to bring itself under Order 9 Rule 7 of C.I. 47. Therefore, under Order 9 Rule 8 of
C.I.47, it ought to have filed whatever application it intended to file within 14 days, which
was not complied with until 14th May, 2021. This was more than one month without any
extension of time from the Court under Order 80 Rule 4 of C.I 47.

Also, the applicants attached exhibits to their application. However, they failed to attach
certificate of identification as prescribed under Order 20 Rule 14 of C.I.47.

It is trite law that, the rules of Court and not ornamental pieces. They are meant to be
complied with by parties.

See: BUCKMAN & OTHER v ANKOMAYI & ANOTHER (2013-2014) 2 SCGLR 1372

Furthermore, it is essential that Rules of Court setting time limits are complied with and
adhered to strictly. This is to facilitate timely trials. Therefore, any infringement of these
rules without reasonable justification should be met with corresponding sanctions or
denials.

17
DENNIS LAW ONLINE REPORT www.dennislawgh.com

See: THE REPUBLIC v HIGH COURT (FINANCIAL DIVISION) ACCRA EX: PARTE
TWENEBOAH KODUAH (2015) 81 GMJ 191 SC

To that extent, this Court has discretion under Order 81 Rule 1(2) (a) to set aside any
process or proceedings either wholly or in part for non-compliance with any proceedings
or processes.

The Applicants motion is predicate on the notice of appearance which was filed out of
time without leave of the Court. Therefore, this Court can invoke Order 81 Rule 1(2) (a)
of C.I 47 and dismiss it in limine. However, the issue will be whether it will be fair and
just to do so by the Court.

In OPOKU & OTHERS (NO.2) v AXES CO. LTD (NO.2) 2 SCGLR 1214 at 1231, the
Supreme Court speaking through Atuguba JSC held that “For avoidance of doubt
however, I would emphasise that rule 1 of Order 81 of C.I47 is truly a comprehensive
insurance policy covering all procedural defects arising from the provisions of C.I.47
except where the same also have a constitutional pedestal”.

See: also BOAKYE v TUTUYEHENE (2007-2008) 2 SCGLR 970

If the Court is to rely on Order 81 Rule 1(2) (a) of C. I47 and dismiss the application in
limine, then the Court would be adhering to the strictest rule of procedure.

In this respect, one would be right by borrowing the words of Benjamin Nathan Cardozo,
an American Jurist who was quoted by Abban JSC in NEW PATRIOTIC PARTY v
ATTORNEY GENERAL (1993-94) 2 GLR 35 at 118 SC as follows:

“Judges march at times to pitiless conclusion under the prod of remorseless logic
which is supposed to leave them no alternative. They deplore the sacrificial rite.
They perform it nonetheless, with averted gaze, convinced as they plunge the knife,
that they obey the bidding of their office. The victim is offered up to the gods of
jurisprudence on the altar of regularity.”

18
DENNIS LAW ONLINE REPORT www.dennislawgh.com

However, there have been circumstances where even an element of nullity has been
considered as not fatal depending upon the circumstances.

The Supreme Court held in the case of TETTEH v QUARCOO (2009) 21 MLRG 38 at 59
that, “the element of nullity in proceedings is not always disastrous. In ADDAI v THE
REPUBLIC (1973) 1 GLR 312 CA, the trial judge took evidence of witnesses when the
jury was not yet empanelled and he directed the Jury on that evidence as well. It was
held that, although the initial part of the trial was a nullity, there was sufficient evidence
to support the conviction.

Again, in OBADZEN II v ONANKA II (1982-1983) GLR 46, the Court of Appeal sustained
the trial although the suit had been transferred to the High Court for trial by a Magistrate
contrary to the stipulated statutory procedure. The Court of Appeal held that, after all,
the High Court had concurrent jurisdiction over the case. I think in this new judicial era
of substantial as opposed to technical justice, we would go along with that approach”.

It is often said that, an honest litigant should not be thrown away or defeated by mere
technicalities, any slip or any mistaken step taken in his litigation.

See: HALLE & SONNS SA v BANK OF GHANA AND ANOTHER (2011) 1SCGLR 378

The Courts have a duty to ensure that, justice is done in cases before them and should
not let that duty be circumvented by mere technicalities.

See: GHANA PORTS AND HARBOURS AUTHORITY v ISSOUFOU (1993-94) 1 GLR

24 SC

In the case of HALLE & SONNS SA v BANK OF GHANA AND ANOTHER (supra) the
Supreme Court in commenting on flexibility that should apply in our rules said at page
384 per Adinyira JSC as follows: “Although I agree that, a Court cannot conduct its
business without a code of procedure, I think that the relation of rules of practice to the
work of justice is intended to be that of a handmaid rather than a mistress, and the Court

19
DENNIS LAW ONLINE REPORT www.dennislawgh.com

ought not to be so far bound and tied by rules, which are after all only intended as general
rules of procedure, as to be compelled to do what will cause injustice in a particular case”

See: also GIHOC REFRIGERATION AND HOUSEHOLD LTD v HANNA ASSI (2005-
2006) SCGLR 458

In ABDILMASIH v ARMAH (1972) 2 GLR 414 at 422 CA, Apaloo JA (as he then was)
said “Nobody has a vested right in procedure and modern notions of justice require that
a Court should do substantial justice between the parties unhampered by technical
procedural rules”

It is also my considered view that, our civil rules and procedure should be flexible and
the merits of each case gone into to achieve much certainty.

See: LUKE MENSAH v ATTORNEY GENERAL (2003-2004) SCGLR 112

AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL (2003-2004) SCGLR 471

From the above analysis, I will proceed to determine the merits of the application.

On one leg of the Applicants contention is that, the 1st Respondent does not legally exist
to mount this action.

Therefore, the action should be dismissed. The law is settled that capacity may relate to
the juristic persona and competence to sue in Court of law and this must exist from the
beginning of the action.

See: FLORINI LUCA & ANOR v MR. SAMIR & 2 ORS (2021) 171 GMJ 392 SC

The Court does not deal with busy bodies but people who exist legally to maintain an
action in addition to the interest a person may have in the case.

See: THE MUZAMA DISCO CHRISTO CHURCH v PROPHET MIRITAIAH JEHU-

APPIAH (2010) 27 MLRG 56 CA

20
DENNIS LAW ONLINE REPORT www.dennislawgh.com

Therefore, a Court will not consider the merits of a case if a party has no capacity to bring
the action. In that case, it is said that the party does not legally exist or a person is not
properly before the Court.

See: KOWUS MOTORS v CHECK POINT GHANA LTD (2009) SCGLR 230

It is therefore the duty of the Court to make such examination upon application by any
of the parties in the case to ascertain whether a party exists or not. In certain cases, it can
even be done by the Court suo motu.

See: EDUSEI v DINERS CLUB SUISSE SA (1982-1983) 2 GLR 809

However, an action against a party is not nullified unless the true legal identity of the
party cannot be ascertained.

See: REPUBLIC v HIGH COURT, ACCRA; EXPARTE ATTORNEY GENERAL

(DELTA FOODS CASE) (1998-1999) SCGLR 595

GHANA INDUSTRIAL HOLDING CORPORATION v VINCENTA PUBLICATIONS

(1971) 2 GLR 24 CA

It is also the law that, a judgment in law only seeks to establish the rights of parties and
also declare any existing liabilities between the parties. Therefore, a Court is not to
discuss the merits of a case when the proper parties are not before it.

See: ALFA MUSAH v FRANCIS APPEAGYEI (2019-2020) 1 SCLRG 606

In this case, the Respondents contend that the 1st Respondent legally exist. Therefore,
issue has been joined between the parties. Secondly, the Respondents contend that, the
documents upon which the applicants are seeking to rely to say that the 1st Respondent
does not exist were obtained by recourse to fraud. I am therefore of the view that this
will need evidence to settle it one way or the other.

21
DENNIS LAW ONLINE REPORT www.dennislawgh.com

It is not in all cases that the issue of capacity can be determined without evidence. If
evidence is led and the 1st Respondent has no capacity to sue, that issue can be raised
again. This is because, the issue of capacity is not time bound.

See: FOSUA & ADU POKU v DUFIE (DECEASED) & ANOR (2009) SCGLR 310

I am therefore of the humble view, that such a determination can only be made when
evidence has been led.

The Applicants also contend that the present writ by the Respondents is an abuse of the
Court process. The law is settled that; it is an abuse of the process of the Court to seek to
relitigate an issue which could have been presented or had been earlier determined
between parties by a Court of competent jurisdiction. The principle does not apply only
to the parties themselves but bind their assigns, servants, successors, privies etc.

Therefore, suitors should not have an open ended opportunity to be litigating and
relitigating over and over again in respect of the same issue which has already been
decided by a Court of competent jurisdiction.

See: JUSTICE GILBERT QUAYE (SUBSTITUTED BY DANIEL QUAYE) v KOIWAH

INVESTMENT CO. LTD & 3 ORS (2019-2020) 1 SCLRG 658

NOAS HOLDING INC v GHANA COMMERCIAL BANK LTD (2011) 1 SCGLR 492

GYIMAH AND BROWN v NTIRI (2005-2006) SCGLR 247

DAHABIEH v SA TURQUI & BROS (2001-2002) SCGLR 498

TIAH v JOHNSON & ORS (1964) GLR 661

ABRAHAM ALIAS SALLOUM v SALLOUM (1989-90) 2 GLR 19 CA

In the view of the Applicants, there have been about four previous judgments revolving
around the same parties and the same issues. Therefore, the Respondents present action
is just a waste of time and the procedures in Court. Consequently, the action by the
Respondents should be dismissed in limine.

22
DENNIS LAW ONLINE REPORT www.dennislawgh.com

The Respondents do not deny the existence of these judgments, but their contention is
that, those judgments were obtained by recourse to fraud. Therefore, they have filed the
present writ to have them set aside on grounds of fraud.

When fraud is alleged, it should be pleaded and specifically proven by leading evidence
on it. Some authorities have compared fraud to cancer which if not treated will affect the
entire body. Fraud has been proven to have among others the following ingredients.

a. It vitiates every transaction including judgments and orders. Thus once it is

proved, it will wipe and sweep everything away.
b. It connotes criminal conduct and the sanctions may include imprisonment.
c. The burden to prove fraud is on the person alleging it.
d. It must be proved beyond reasonable doubt.

See: MASS PROJECTS LTD v STANDARD CHARTERED BANK & ANOR (2014) 69
GMJ 39 SC

TWUM v SGS LTD (2011) 30 GMJ 92 CA

OKOFO ESTATES LTD v MODERN SIGNS LTD AND ANOTHER (1996-97) SCGLR
224

AMUZU v OKLIKAH (1998-99) SCGLR 141

SASU v AMUAH-SAKYI & ANOR (2003-2004) 2 SCGLR 742

REPUBLIC v CIRCUIT TRIBUNAL KOFORIDUA, EX: PARTE NANA ANKU

DODOZAH DIDIEYE III (2006) 4 MLRG 165 CA

ADUMUAH OKWEI v ASHIETEYE LARYEA & ANOTHER (supra)

POKU v POKU (2006) 9 MLRG 117 CA

Fraud is a serious matter that, even in some instances, when it is not specifically pleaded
but is led in evidence without objection, the rules of evidence are relaxed for the Court to
entertain same.

23
DENNIS LAW ONLINE REPORT www.dennislawgh.com

See: PHILIP MORRO DJIMA v GLORIA LEKIAH DJIMA (2013) 63 GMJ 181 CA

Again, it was held in the case of APEAH & ANOTHER v ASAMOAH (2003-2004) 1
SCGLR 226 at 229 as follows:

“Notwithstanding the rules on pleadings, the law was that, where there was clear
evidence of fraud on the face of the record, the Court would not ignore it.”

An assertion of fraud however should not be based on flimsy or baseless allegations and
accusations. In this respect, the dissenting opinion of Francois JSC in DZOTEPE v
HARHOMENE III (1987-1988) 2 GLR 681 SC which was affirmed by the Supreme Court
in the case of OSEI ANSONG & PASSION INTERNATIONAL SCHOOL v GHANA
AIRPORT CO. LTD (2013-2014) SCGLR 25 is apt, which I quote 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 out of an attempt to overreach the Courts by deceit and falsehood. See
LAZARUS ESTATES LTD v BEASLEY (1956) 1 ALL ER 341. 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 contrast however, an issue of fraud should not be treated lightly. Therefore, there is no
time bound to issue a writ to set aside an order or judgment which is void or was
fraudulently obtained.

See: REPUBLIC v HIGH COURT (FAST TRACK DIVISION) ACCRA, EX: PARTE
SPEEDLINE STEVEDORING CO. LTD (DOLPHYNE INTERESTED PARTY) (2007-
2008) 1 SCGLR 102.

24
DENNIS LAW ONLINE REPORT www.dennislawgh.com

In this case, the Respondents have pleaded and particularised the fraud they alleged.
This is the standard required by law.

See: ANNING v STANBIC BANK GHANA LTD (2019-2020) 1 SCLRG 597

The law is also settled that, the jurisdiction of the Court under Order 11 Rule 18 of C.I.47
to strike out an action should be sparingly invoked with extreme care and caution.

It should only be exercised in plain or obvious cases. Where a plaintiff has pleaded fraud
and has particularised it sufficiently, it should not be treated lightly. Fraud is a serious
vitiating factor. Therefore, when it has been pleaded and particularised sufficiently, care
must be taken not to suppress it. In that case, the party alleging same must be heard on
its merits in the issue of fraud he has raised.

See: STATE INSURANCE CO. LTD v IVORY FINANCE CO. LTD & 4 OTHERS (2019-
2020) 1 SCLRG 388

I am therefore of the view that, the interest of justice will be best served if the Respondents
are given the opportunity to prove their allegation of fraud in respect of the judgments
which have already been procured in cases involving some of the parties in the present
suit. If the Respondents are able to prove the allegation of fraud in respect of those
judgments, the issue of the 2nd Respondent being barred from relitigating on the issues
concerning the 1st Applicant herein will not arise. This is because, estoppel cannot
override fraud where it has been established beyond reasonable doubt.

On the basis of the above rendition, I think it will be in consonance with equity and good
conscience not to terminate the case summarily.

In conclusion, it is my view that the law should not only be seen as a product or slave of
logic or intellectual hair-splitting, but must be used to serve broader normative purposes,
in the light of its social, political and economic roles.

On this philosophical note, the Applicants invitation to the Court to terminate the
Respondents writ summarily will not be honoured. The effect is that, the Application

25
DENNIS LAW ONLINE REPORT www.dennislawgh.com

fails and same is dismissed. No order as to cost. The case is to take its normal cause. I
order accordingly.

SGD.
FRANCIS OBIRI
(JUSTICE OF THE HIGH COURT)
REFERENCES

1. IDDRISU v AMARTEY (2009) SCGLR 670

2. DONKOR v KUSI (1977) 2 GLR 242
3. SMITH & OTHERS v BLANKSON (substituted by) BAFFOR & ANOTHER
(2007-2008) 1 SCGLR 374
4. NANA ASUMADU II (substituted by NANA DARKU AMPEM) & ANOTHER
v AGYA AMEYAW (2019-2020) 1 SCLRG 681
5. ADUMUAH OKWEI v ASHIETEYE LARYEA (2011) 1 SCGLR 317
6. RANDOLPH v CAPTAN & ANOTHER (1959) GLR 347
7. BRUTUW v AFERIBA (1984-1986) 1 GLR 25
8. BUCKMAN & OTHERS v ANKOMAYI & ANOTHER (2013-2014) 2 SCGLR
1372
9. THE REPUBLIC v HIGH COURT (FINANCIAL DIVISION) ACCRA EX:
PARTE TWENEBOAH KODUAH (2015) 81 GMJ 191 SC
10. OPOKU & OTHERS (NO.2) v AXES CO. LTD (NO.2) 2 SCGLR 1214
11. BOAKYE v TUTUYEHENE (2007-2008) 2 SCGLR 970
12. NEW PATRIOTIC PARTY v ATTORNEY GENERAL (1993-94) 2 GLR 35
13. TETTEH v QUARCOO (2009) 21 MLRG 38 SC
14. ADDAI v THE REPUBLIC (1973) 1 GLR 312 CA
15. OBADZEN II v ONANKA II (1982-1983) GLR 46
16. HALLE & SONNS SA v BANK OF GHANA AND ANOTHER (2011) 1 SCGLR
378

26
DENNIS LAW ONLINE REPORT www.dennislawgh.com

17. GHANA PORTS AND HARBOURS AUTHORITY v ISSOUFOU (1993-94) 1

GLR 24 SC
18. GIHOC REFRIGERATION AND HOUSEHOLD LTD v HANNA ASSI (2005-
2006) SCGLR 458
19. ABDILMASIH v ARMAH (1972) 2 GLR 414 CA
20. LUKE MENSAH v ATTORNEY GENERAL (2003-2004) SCGLR 112
21. AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL (2003-2004) SCGLR
471
22. FLORINI LUCA & ANOR v MR. SAMIR & 2 ORS (2021) 171 GMJ 392 SC
23. THE MUZAMA DISCO CHRISTO CHURCH v PROPHET MIRITAIAH JEHU-
APPIAH (2010) 27 MLRG 56 CA
24. KOWUS MOTORS v CHECK POINT GHANA LTD (2009) SCGLR 230
25. EDUSEI v DINERS CLUB SUISSE SA (1982-1983) 2 GLR 809
26. REPUBLIC v HIGH COURT, ACCRA EX PARTE ATTORNEY GENERAL
(DELTA FOODS CASE) (1998-1999) SCGLR 595
27. GHANA INDUSTRIAL HOLDING CORPORATION v VINCENTA
PUBLICATIONS (1971) 2 GLR 24 CA
28. ALFA MUSAH v FRANCIS APPEAGYEI (2019-2020) 1 SCLRG 606
29. FOSUA & ADU POKU v DUFIE (DECEASED) & ANOR (2009) SCGLR 310
30. JUSTICE GILBERT QUAYE (SUBSTITUTED BY DANIEL QUAYE) v KOIWAH
INVESTMENT CO. LTD & 3 ORS (2019-2020) 1 SCLRG 658
31. NOAS HOLDING INC v GHANA COMMERCIAL BANK LTD (2011) 1 SCGLR
492
32. GYIMAH AND BROWN v NTIRI (2005-2006) SCGLR 247
33. DAHABIEH v SA TURQUI & BROS (2001-2002) SCGLR 498
34. TIAH v JOHNSON & ORS (1964) GLR 661
35. ABRAHAM ALIAS SALLOUM v SALLOUM (1989-90) 2 GLR 19 CA
36. MASS PROJECTS LTD v STANDARD CHARTERED BANK & ANOR (2014)
69 GMJ 39 SC
37. TWUM v SGS LTD (2011) 30 GMJ 92 CA

27
DENNIS LAW ONLINE REPORT www.dennislawgh.com

38. OKOFO ESTATES LTD v MODERN SIGNS LTD (1996-97) SCGLR 224
39. AMUZU v OKLIKAH (1998-99) SCGLR 141
40. SASU v AMUAH-SAKYI & ANOR (2003-2004) 2 SCGLR 742
41. REPUBLIC v CIRCUIT TRIBUNAL KOFORIDUA, EX: PARTE NANA ANKU
DODOZAH DIDIEYE III (2006) 4 MLRG 165 CA
42. POKU v POKU (2006) 9 MLRG 117 CA
43. PHILIP MORRO DJIMA v GLORIA LEKIAH DJIMA (2013) 63 GMJ 181 CA
44. APEAH & ANOTHER v ASAMOAH (2003-2004) 1 SCGLR 226
45. DZOTEPE v HARHOMENE III (1987-1988) 2 GLR 681 SC
46. OSEI ANSONG & PASSION INTERNATIONAL SCHOOL v GHANA
AIRPORT CO. LTD (2013-2014) SCGLR 25
47. REPUBLIC v HIGH COURT (FAST TRACK DIVISION) ACCRA, EX: PARTE
SPEEDLINE STEVEDORING CO. LTD (DOLPHYNE INTERESTED PARTY)
(2007-2008) 1 SCGLR 102
48. ANNING v STANBIC BANK GHANA LTD (2019-2020) 1 SCLRG 597
49. STATE INSURANCE CO. LTD v IVORY FINANCE CO. LTD & 4 OTHERS
(2019-2020) 1 SCLRG 388

28