Abraham Akotuah Fianko (Deceased) (Substituted with Nathaniel Kojo Fianko), Grace Osaebea Fianko and Tabitha Badake v Land Title Registry, Accra and Mathew Akotua Addo

[1] Introduction and background

Indeed fraud vitiates everything. It is apposite to quote Edward Wiredu JSC (as he then was) in Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 233 at 253 as follows: “An allegation of fraud goes to the root of every transaction. A judgment obtained by fraud passes no right under it and so does a forged document or a document obtained by fraud passes no right”. Lord Denning LJ in the case of Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at page 712 delivered himself thus:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever”.

In the case of Dzotepe vs Hahormene III (1987-88) 2 GLR 681 at 701 the Supreme Court delivered itself thus,

“The judicial edifice was not construed to lend ear to every cry of fraud from suitors who have lost on merits.”

[1.1]  What is the genesis of this case

The deceased 1st Plaintiff who has been substituted by the present 1st Plaintiff and his brother Nathaniel Bosomprah Fianko applied for a Writ of Summons to issue at the District Court for the following particulars of claim:

“The Plaintiffs as Administrators of the Estate of Nathaniel Fianko Akotuah (deceased) and the Landlords of House No. B565/6 Abossey-Okai, Accra claim against the Defendants ejected (sic) jointly and severally an order of ejectment from House No. B565/6 and order for payment of rent arrears from January, 1992”.

The father of the Defendant, the late Daniel Tawiah Akotuah Addo herein applied and was joined to the suit as Co-Defendant and filed his Statement of Defence.

 

The District Court, Grade 1, 28th February Road delivered its judgment on 25th January 1995 in respect of Suit No. 299/92 that “the position is that the father of the Plaintiff was a mere trustee of the Co-Defendant who has the beneficial interest… The legal effect of the LA or the position of the plaintiff is that at best they have stepped into the position of their father as the legal title holders with the Co-Defendant still holding on to his beneficial title or interest”.

The Plaintiffs filed an appeal against the decision of the District Court to the High Court and on 30th October 2001 the High Court delivered its judgment affirming the decision of the District Court as follows:

“The rent was paid to the Co-Defendant even during the lifetime of Plaintiffs/Applicants father and after his death. I think the trial Magistrate properly resolve the issue of ownership in favour of the Co-Defendant”.

The Appeal was dismissed and the decision of the District Magistrate was affirmed by the High Court.

The Plaintiffs’ once more appealed to the Court of Appeal1. On 26th February 2004 the Court of Appeal delivered its Judgment as follows:

“The decision in the Swiss African case [supra] can also be explained on the ground that there was no other evidence such as the subsequent conduct of the one who alleged that he was a joint owner unlike the present case in which there is substantial evidence that the person described as the owner in his life conducted himself in a manner inconsistent with his ownership in favour of his brother the co-respondent herein which conduct was persisted in by his successors…on the admitted evidence therefore, I think there was no misapprehension of the evidential value to be attached to the documents and I so hold.” By a unanimous decision the appeal was dismissed. The Court of Appeal affirmed the decision of the District Court.

The Plaintiffs again appealed the Supreme Court per leave granted. The Supreme Court on 14th November 2007, dismissed the Appeal (Civil Appeal No J4/27/2006) .

1 Page 182 of the record of appeal – Exhibit 2

 

The Supreme Court stated that: “The courts below from the District Court, Court 6, 28th February Road, Accra through the High Court, Accra, presided over by HL Mrs G. Kusi- Appouh J to the Court of Appeal, upheld the respondent’s case against the appellants.

They all held that notwithstanding these said documents the co-respondent is the true or beneficial owner of the property in dispute. Against these triple concurrent findings of fact the appellants have battled this case up to the ultimate court.”

The Supreme Court per Atugba JSC (as he then was) held as follows:

“It is obvious that these principles as to concurrent findings of facts, militate against any disturbance by this court, of the concurrent findings of fact by the 3 lower courts in this case2” Presently there are three decisions of the Appellate Courts from the High Court to the Supreme Court affirming the decision of the District Court Grade 1, 28th February Road,

Accra.

[1.2] The Claim and Counterclaim

Against this background the Plaintiffs’ issued a Writ of Summons and an accompanying Statement of Claim on 5th September 2019 and same was amended on 22nd October, 2020. On 8th December 2021 the Writ of Summons and Statement of Claim was again amended pursuant to an order for substitution upon the death of the 1st Plaintiff with Nathaniel Kojo Fianko. The Plaintiffs endorsed their Writ of Summons for the following reliefs:

a. “Declaration of title of the piece or parcel of land in dispute in the name of the estate of the

late Nathaniel Fianko Akotuah.

2 Exhibit 1 – the Judgment of SC

 

b. Declaration that under the Ga Customary law of succession and inheritance on the death intestate the self-acquired property of a Ga citizen or native passed on to his children who

inherit patrilineally.

c. Declaration that by his unlawful conduct the late Daniel Tawiah Akotuah Addo committed acts of trespass against the Plaintiffs herein by applying to the Land Title Registry for transfer of ownership of the property in dispute without the knowledge, authority and

consent of the children of the deceased, his brother the late Mr. Nathaniel Fianko Akotuah.

d. Declaration that once the Deed of Indenture covering the property in dispute was obtained in 1957 and letters of administration of the deceased Nathaniel Fianko Akotuah were granted by the Honourable Court in 1992 any purported move to change ownership of the property in dispute in 2010 through the Land Title Registry after more than 12 years will

offend against the limitation law.

e. An order for cancellation of the purported registration of the piece or parcel of land in dispute in the name of the late Daniel Tawiah Akotuah Addo 3rd Defendant’s father.

f. General Damages for trespass, fraud and deceit.

g. An order of perpetual injunction (Prohibitory and Mandatory) restraining the 3rd Defendant herein from interfering with the property in dispute.

h. Interest at the prevailing Bank rate up to the date of payment.”

There are a number of amended Writ of Summons on the record for which no leave was sought yet it has been headed amended pursuant to leave granted.

For the purposes of this Judgment the Writ of Summons and Statement of Claim under consideration is the one filed pursuant to leave granted on 8th December 2021.

 

There were three (3) Defendants originally. Attorney-General and Minister for Justice, 1st

Defendant, Land Title Registry, 2nd Defendant, and Matthew Akotua Fianko, 3rd Defendant.

The 1st Defendant entered conditional appearance on 9th October,2019 and the 3rd Defendant entered appearance on 31st October, 2019. The 2nd Defendant never entered appearance.

3rd Defendant filed Statement of Defence on 19th November 2019 and same was amended on 4th December 2020.

The 3rd Defendant counterclaimed as follows:

“By virtue of the judgment in the Supreme Court Civil Appeal No. J4/27/2006 which decreed judgment in his late father Daniel Tawiah Akotua Addo’s favour the 2nd Defendant claims recovery of vacant possession from all the occupants of the said house jointly and severally regardless of them being relatives.”

The 1st Defendant, Attorney-General and Minister for Justice caused an application for misjoinder to be filed and the Court granted the application and mis-joined the 1st Defendant on 17th March 2020.

On 29th October 2020 the then 2nd Defendant, Land Title Registry filed a motion on notice to strike out 2nd Defendant as a party.

After filing the application, Lawyers from the Legal Department of Lands Commission never turned up in Court to move the application.

I will deal with the capacity of Land Title Registry to defend the present action shortly. The 3rd Defendant became the 2nd Defendant.

The Plaintiff filed a reply to 3rd Defendant’s Statement of Defence and Counterclaim on 11th December 2019 which was subsequently amended. The 1st Plaintiff died and an application for substitution was granted. The deceased 1st Plaintiff was substituted with

Nathaniel Kojo Fianko.

 

[2] Procedural issues

The 2nd Defendant (Land Title Registry), after the grant of the order of misjoinder of the then 1st Defendant (Attorney-General and Minister of Justice) became the 1st Defendant. Is the 1st Defendant (Land Title Registry) clothed with separate legal personality to sue and be sued in its own name?

I shall examine the applicable laws and rules of procedure on this issue.

The Land Title Registry presently, Land Registration Division is a division of the Lands Commission. Section 19 (b) of the Lands Commission Act, 2008, Act 767 states as follows:

The Commission shall have the following divisions:

(a) Land Registration

Section 21 of the Lands Commission Act, 2008, Act 767 provides as follows:

The functions of the Land Registration Division include

(a) Publication of notices of registration upon receipt of an application for registration

(b) Registration of title to land and other interests in land

(c) Registration of deeds and other instruments affecting land in areas outside compulsory title registration districts

(d) Maintaining land registers that contains records of land and interests in land,

(e) Other functions determined by the Commission

Section 1(2) of the Lands Commission Act, 2008, Act 767 provides as follows:

The Commission is a body corporate with perpetual succession, a common seal and may sue and be sued in its corporate name

 

Order 4 rule 5(2)(a) of CI 47 which states as follows:

At any stage of proceedings, the Court may on such terms as it thinks just either of its own motion or application

1. Order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party.

Misjoinder does not defeat the entire proceedings. See Ampratwum Manufactering Co. Ltd vs Divesture Implementation Commiflee [2009] SCGLR 629 at 700 – 701, per BaffoeBonnie.

It is the considered view of this Court that since Land Title Registry now Land Registration is a division of the Lands Commission, it cannot in the name of the division sue or be sued per Act 767.

The Plaintiff ought to have sued the Lands Commission which is a body corporate instead of the ‘Land Title Registry’ or Land Registration which is one of the divisions of the Lands

Commission and has no legal personality.

I therefore hold that the present 1st Defendant has been improperly joined to the present suit and it ceases to be a party under Order 4 rule 5(2)(a) of CI 47.

For the purposes of this Judgment the only Defendant to be considered is Mathew Akotua Addo.

[2] The Plaintiffs’ Case

The Plaintiffs pleaded that the property in dispute House No. B386/6, Abossey Okai,

Accra is the property of the late Nathaniel Fianko Akotuah of Aburi. It is covered by a

 

Deed of Indenture executed on 5th day of June 1957 between one Mr. Moses Bekoe Kisseaddo of Accra, and the late Nathaniel Fianko Akotuah of Aburi father of the late Abraham Akotua Fianko who died on 18th September 2021 and 2nd Plaintiff herein. After the death of the late Nathaniel Fianko Akotuah, his two sons Abraham Fianko Akotuah (deceased), Nathaniel Bosomprah Fianko and a senior cousin late Richard Fianko Akotuah applied for Letters of Administration to administer the estate of the deceased. The Letters of Administration were granted by the High Court on 30th January 1992.

It is the case of the Plaintiffs that upon the death of the deceased, the children were left to the late Daniel Tawiah Akotuah Addo under customary practice as guardian or father to coordinate all issues through him and to refer to him as though he was their own father and pursuant to that he led the children in accordance with customary practice to inspect their father’s properties including personal effects in his wardrobe.

The Plaintiffs pleaded that the children of the deceased were bypassed through a very clever mechanism to deprive them of their inherent rights of his deceased senior brother’s children.

It is the case of the Plaintiffs that almost 47 years after the death of the late Nathaniel Fianko Akotuah, his younger brother Daniel Tawiah Akotuah Addo managed to get his name registered at the Land Title Registry herein as owner of the house in dispute. This was done without the knowledge, authority and consent of the administrators and in spite of the fact that the Deed of Indenture of the property in dispute as been duly registered in 1957 in the name of the late Mr. Nathaniel Fianko Akotuah.

It is the further case of the Plaintiff that the deed of indenture was registered in the name of the late Mr. Nathaniel Fianko Akotuah in 1957 and he had been in exclusive possession of the property throughout his lifetime. One of the witnesses to the deed of conveyance was the late Daniel Tawiah Akotuah Addo who was an educated person whereas his deceased senior brother was uneducated and therefore the junior brother

 

knew the implication of signing as a witness. It was registered at the Deeds Registry as No. 1866/1957 AC 2721/57 PD.

According to the Plaintiffs Daniel Tawiah Akotuah Addo (deceased) who did not have any document on the property in dispute executed in his name was able to strangely acquire a land title certificate in his name and this amounts to fraud. The 2nd Defendant claim that the property in dispute was for his deceased father was false.

The Plaintiffs claim to have lived in the house in dispute for over 63 years.

[3] The Defendant’s Case

It is the case of the Defendant that the Supreme Court judgment in Civil Appeal No. J4/27/2006 ended in favour of his late father Daniel Tawiah Akotua Addo thereby making a devise of the said house in his last will dated 11th October 1998. It is the further case of the Defendant the Supreme Court decision supra was not obtained by fraud or deceit.

It is the further case of the Defendant that his late father Daniel Tawiah Akotuah Addo was the receiver of rent from the said house and it was when he realized that the late Nathanial Bosomprah Fianko and his brother Abraham Fianko Akotuah wanted to arrogate to themselves the ownership of the said house in dispute he was compelled to join the District Court action which culminated in the Supreme Court judgment in his

 

favour and same has not been appealed against or set aside and by virtue of that decision the Plaintiffs are estopped on their cause of action and on the issues before the Court.

[4] The Issues

At the application for direction stage on 20th April 2020 the Court set down the following issues for determination of the case:

1) “Whether or not the Daniel Tawiah Akotuah Addo was merely a caretaker of the property of the late Nathaniel Fianko Akotuah when plaintiffs were children.

2) Whether or not the house at Abossey-Okai was self-acquired property of the late Nathaniel Fianko Akotuah?

3) Whether or not the late Daniel Tawiah Akotua Addo perpetuated FRAUD against Supreme Court and when he failed to tell the Honourable Supreme Court that the property is dispute was self-acquired property of his late senior brother Nathaniel Fianko Akotuah?

4) Whether or not when FRAUD is determined the Supreme Court Judgment could not be set aside?

5) Whether or not under PNDC LAW 111 is not the children of the late Nathaniel Fianko Akotuah who are entitled to inherent his self-acquired property?

6) Whether or not by the judgment of the Court of Appeal suit number Civil Appeal No. 46/85 date 4th May 1989 between Sempe Stool and Akumajay Stool which Akumajay Stool won and the Sempe Stool did not appeal against the right stool to give out at Abossey Okai is Akumajay.

 

7) Whether or not as the Plaintiffs late father acquired and registered the land in his name at the Land Commission since 1957. And by COMMON LAW is it his own children who could inherent their father’s property and not his junior brother’s children.

8) Whether or not the children of the late Nathaniel Fianko Akotuah hold LETTERS OF ADMINISTRATION on the said property in 1992 and was served on late Daniel Tawiah Akotuah Addo and all the Akotuah family.

Additional issues

9) Whether or not H/No. B565/6 Abossey Okai, Accra decided upon by the Supreme Court is not the same matter brought up by the children/relatives of the Plaintiffs.

10) Whether or not the Supreme Court did give judgment on 14th November 2007 in Civil Appeal No. J4/27/2006 in favour of the late Daniel Tawiah Akotuah Addo the father of the 2nd Defendant.

11) Whether or not the Plaintiffs are estopped by the cause of action and on the issues before this Court.

12) Whether or not the 2nd Defendant and his brothers and sisters are not entitled to vacant possession of H/No. B565/6 Abossey Okai by virtue of the Supreme Court judgment No. J4/27/2006 of 14th November,2007.

13) Any other issues raised on the pleadings”.

[5] Standard of Proof, Burden of Proof and Persuasion

In all form of civil litigation and like all civil cases, the standard of proof is one of balance of probabilities or preponderance of probabilities. The proof prescribed in civil trial is provided under sections 10, 11, and 12 of the Evidence Act 1975 NRCD 323. These sections

 

on the burden of proof, burden of persuasion and the burden of producing evidence provide thus:

“10. (1) For the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.

(2) The burden of persuasion may require a party

(a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or

(b) To establish the existence or non- existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt.

11. (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party…

12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the

tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non- existence.

The Supreme Court held in the case of Ackah vs Pergah Transport Ltd [2010] SCGLR 728 at page 736 per Adinyira, JSC (as she then was) that:

“It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…”

In the case of Aryee vs Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 at 733

where the apex Court speaking through Benin JSC had this to say:

 

“It must be pointed out that in every civil trial all what the law required is proof by preponderance of probabilities: See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved”.

It is essential to establish the burden of proof in this matter. As is trite learning, the Plaintiffs bears the evidential burden to evince sufficient evidence if they are to secure a ruling on the existence or non-existence of a fact.

The venerable retired Jurist Justice S.A. Brobbey JSC (Rtd), in his book, ESSENTIALS OF GHANA LAW OF EVIDENCE at page 28 posits as follows:

“ In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should be the one who will start the proceedings by giving his testimony. That testimony will show what he wants from the defendant and why he wants the court to order the defendant to give it to him. If he drags the defendant to the court but he fails to lead evidence to establish his claim and the basis of the claim, he cannot have the assistance of the court to get what he wants. In life, one gets nothing from nothing. So it is in law. If the party does not lead evidence to establish the claim or its basis, the court will have no grounds or reason or basis for making any order in his favour. If he leads no evidence on what he wants, common sense alone dictates that he cannot get the court to order the defendant to give him what he wants. The court will rule against him on the claim he made in court by dismissing it. The established rule is therefore that the person to start leading evidence is the one against whom a ruling will be given if no evidence is led …

The principle is emphasized in Section 17 and 11(1) of NRCD 323”.

In Black’s Law Dictionary, 6th edition at page 516 it reads:

“Ei incumbit probation, qui dicit, non qui negat, cum per rerum naturam factum negantis probation nulla sit”

This literally means “The proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce proof”.

 

See the following cases:  Duah vs Yorkwa [1993-994]1 GLR 217

Sarkodie vs FKA Co. Ltd (2009) SCGLR page 65

In all civil suits, the court is enjoined by Section 12 of the Evidence Act, (NRCD 323) to evaluate and weigh the evidence adduced by the parties on the balance of probabilities. This requires a careful analysis of the entire evidence on record as held by Ansah JSC in the case of Takoradi Flour Mills vs Samir Faris (2005-2006) SCGLR 882 at 884 holding 5 as follows:

“It is sufficient to state that this being a civil suit, the rules of evidence requires that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Act, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”.

In the case of Continental Plastics Engineering Co Ltd v IMC Industries – Technik GMBH [2009] SCGLR 298 at 306-307 Wood CJ as she then was stated as follows:

“The learned Justices of the Court of Appeal in Zabrama case explained the burden that rests on a party who makes an averment, particularly, an averment on a substantial fact, which is denied by his or her opponent, and is therefore under a legal obligation to prove the fact alleged. In explaining what is meant by proof in law, the learned justices of the Court of Appeal (per Kpegah JA (as he then was) stated (at page 246 of the Report) as follows:

“I will therefore venture to state the position to be a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”.

 

It is obvious that if the evidence adduced is such that the scales are evenly balanced, the burden of proof on the Plaintiff would not have been satisfied. In that event, the case of the Plaintiff should fail.

However, a different standard is used if the Defendant counterclaims to the Plaintiff’s action. Order 12 rule 1 off CI 47 states “a defendant who alleges that he has a claim or is entitled to a relief or remedy against the plaintiff in an action in respect of any matter, whenever and however arising, may instead of bringing a separate action make a counter-claim in respect of that matter”. Therefore, a counterclaimant is deemed to be the Plaintiff in respect of the counterclaim.

The Supreme Court in the case of Gbedema vs Awoonor Williams (1970) CC 12 discussed the nature of a counterclaim as follows: “a counterclaim is to all intents and purposes an action by a respondent against the applicant. It is an independent and separate action”.

The Court relied on the case of Winterfield v Bradnum 3 QBD 324 in which Bret L.J. said at page 326 as follows: “A counterclaim is sometimes a mere set off: sometimes it is in a nature of cross action, sometimes it is in respect of a wholly independent transaction. I think the true mode of considering the claim and counter-claim is that they are wholly independent suits which for convenience of procedure are continued in one action”.

Lord Esher M. R. in Stumore vs Campbell & Co (1892) 1 QBD 314 at page 317 said “For

all purposes except execution, a claim and counterclaim are two independent actions”. Therefore, it is settled that a counterclaim is in law a separate and independent action which is tried together with the original claim of the plaintiff. This means that, if in the course of an action in which there is a counterclaim, the plaintiff action is struck out, dismissed, discontinued or stayed, the defendant can proceed to prosecute his

counterclaim.

 

See Fosuhene vs Afla Wusu [2011] SCGLR 273

In Re Will of Bremansu Akonu-Baffoe & ors vs Buaku & Vabdeyke (Substituted by) Bremansu (2012) 2 SCGLR 1 313

The law is thus clear that in circumstances such as the instant one, both Plaintiffs and Defendant are under obligation to introduce and lead credible evidence in proof of their respective claim and counterclaim. In this regard, they both bear the burden of proof and must persuade the Court by establishing a requisite degree of belief in the mind of the Court that their claims are legitimate and should be granted. See Yeboah vs Ahele [2012] 44 GMJ 37 CA. The degree of proof required is proof on the preponderance of probabilities.

[6] Court’s evaluation of the evidence and analysis

The Court shall determine the main issues as set out above based on the facts andevidence adduced at the trial. Indeed, it is the policy of the law that only those issues that are germane to the determination of a case must be decided by the Court and not irrelevant issues although the parties might have led evidence on them. See the case of Domfe vs Adu (1984-86) 1 GLR 653.

Though as many as thirteen issues were set down for trial a resolution of the major issue of fraud upon which the case of both parties case impinges would render the resolution of the other issues moot.

The main issue involved in this action in the Trial Court was; “whether or not the judgment in Suit No. LS.45/2000 was obtained by fraud and misrepresentation”. By this allegation, Plaintiffs were saying that the Defendant played fraud on the Supreme Court in obtaining the Judgment in Suit No. J4/27/2006.

 

In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. The crux of the Plaintiffs case is that the Supreme Court Judgment No. J4/27/2006 of 14thNovember,2007 was obtained by fraud.

The crux of the Defendant case is that based on Supreme Court judgment, Suit No. J4/27/2006 of 14th November,2007 estoppel arises against the Plaintiffs preventing them from relitigating the issue of the ownership of H/no. B565/6 Abossey Okai.

To ascertain whether the Plaintiffs alleging fraud in obtaining the Judgment can be sustained it is necessary to examine the Judgment in Suit No: J4/27/2006 from the District Court to the Supreme Court to see the kind of evidence led and the conclusions reached by the Courts. Subsequently the findings and conclusions can be juxtaposed against paragraphs 21, 22 and 23 of the Plaintiffs’ pleadings as the well as the rest of the evidence before the Court to ascertain the issue of the fraud.

It must be placed on record that based on the following Supreme Court decisions Asumadu II (deceased) (Substituted by Nana Darku Ampem (Deceased) (Substituted by Ebusuapanin Amgo Mensah) vs Ameyaw and Brutuw v Aferiba, the only issue this Court is duty bound to resolve despite the thirteen issues adopted at the Application for Directions stage is the determination of the issue of the fraud. All the twelve related issues may amount to determining issues which have already been determined in Suit No: J4/27/2006.

[6.1] Issues 3 and 4

I shall proceed to discuss whether Supreme Court Judgment Civil Appeal No. J4/27/2006 was obtained by the Defendant based on fraud perpetuated against the Supreme Court and that same ought to be set aside?

 

It is pertinent in discussing issues 3 and 4 to consider the requirements of establishing fraud as both issues border on fraud. Indeed this Court is enjoined to consider only the issue of fraud and not to retry the issue whether the property in issue is the self-acquired property of Plaintiffs’ father/grandfather and whether his estate must be dealt with in

accordance with PNDCL111.

Issue 3: Whether or not the late Daniel Tawiah Akotua Addo perpetuated FRAUD against

Supreme Court and when he failed to tell the Honourable Supreme Court that the property is dispute was self-acquired property of his late senior brother Nathaniel

Fianko Akotuah?

Issue 4: Whether or not when FRAUD is determined the Supreme Court Judgment could

not be set aside?

In the case of Owuo vs Owuo [2017-202] 1 GLR 780 at 792 Vida Akoto-Bamfo JSC (as she then was) delivered herself thus:

“Obviously fraud was neither pleaded nor particularized as required by the cardinal rules of pleadings. It could not however be denied that evidence was led that documents evidencing the grant of the land on which the property, the subject-matter of the instant appeal stood was executed by a dead man…in Appea v Asamoah [2003-2004] 1 SCGLR 226 at 243, the Supreme Court

speaking through Brobbey JSC, stated:

“Ordinarily, fraud should be pleaded. It was not pleaded in the instant case. Notwithstanding the rules on pleadings, the law is that where there is clear evidence of fraud on the face of the record, the court cannot ignore it. That was the decision of this court in Amuzu v Oklikah [1998-99] SCGLR 141. In that case, fraud was not pleaded but when it was raised, it was upheld by the trial court and in the Supreme Court. In the same way, failure to plead the issue of fraud at the trial court did not prevent the trial court and this court from endorsing it when it was raised. Indeed fraud vitiates everything.”

 

On this point see also the case of Oduro & Others (No.2) vs Owusu (substituted by) Baffour (No 2) [2017-2020] 1 SCGLR 934 at 937.

Definition of fraud

In the book, Law of Fraud and Mistake by Denis McDonnel and John Munroe, at page 18, 7th Edition, the Authors states as follows:

“There is a fraud in law if a man makes a representation which he knows to be false or does not honestly believe to be true and makes it with a view to induce another to act on the faith of it, he does is accordingly, and by so doing sustains damage”.

In the case of Asumadu II (deceased) (Substituted by Nana Darku Ampem (Deceased) (Substituted by Ebusuapanin Amgo Mensah) vs Ameyaw (J4/01/2018) [2019] Unreported SC (15 May 2019) Yaw Appau JSC delivered himself thus:

“In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs…

Notwithstanding this deficiency on the part of the Plaintiffs in establishing the allegation of fraud, the trial court, which failed to identify even a single element of fraud on the part of the Defendant in obtaining the judgment, nevertheless went ahead to erroneously set aside that judgment on grounds of fraud and misrepresentation. The facts on record do not permit the trial court to reopen the dispute over title to Diaso lands as the parties and the reliefs claimed were the same as those in Suit No. LS 45/2000. The trial court should have identified the fraud allegation as the main issue in the matter before it and to address that issue only but it did not do so. It did not even make any

finding of fact (s) on the fraud issue, which makes the trial court’s judgment incurably bad …The Court of Appeal rightly came to the conclusion at page 31 of its judgment, whichappears at page 821 of the RoA that; “the reliefs claimed by the plaintiff indicate that they mainly wanted the judgment in Suit No. LS. 45/2000 set aside on the grounds of fraud andmisrepresentation….” Again, the Court of Appeal agreed with and adopted its previous decision in the Brutuw v Aferiba case (supra) when it held at page 19 of its judgment that by theauthority in Brutuw v Aferiba, “the learned trial judge should have determined the issue of fraud solely and not to have allowed the plaintiffs to re-open the whole case and to allow same parties to re-litigate the same subject-matter…The learned trial judge misdirected himself on the law as to what to do when plaintiffs evoked the court’s jurisdiction to set aside a judgment allegedly obtained by fraud by not hearing the issue of fraud alone..”

Brutuw v Aferiba [1984-86] 1 GLR 25 where the Court of Appeal held at page 28 (holding 2) and rightly so, that:

“In a suit charging fraud, it would be a clear impropriety for a plaintiff to re-open his case. Where a judgment was attacked for fraud, fraud only must be in issue for it was not a rehearing of the whole case”.

The Court of Appeal in the Brutuw v Aferiba case (supra) berthed its authority on the House of Lords’ decision in Jonesco v Beard [1930] AC 298, in which the House laid

down the principle at pp. 300-301 that;

“where a judgment is attacked for fraud, fraud only must be in issue and that it is not a rehearing of the whole case”.

[6.1.1] Proving Fraud – Standard of proof

The Supreme Court gave a fuller expression to Section 13 (1) of the Evidence Act, 1975 [NRCD 323] in the Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 when it held:

 

“The rule in section 13 (1) of the Evidence Act, 1975 (NRCD 323), emphasizes that where in a

civil case, crime is pleaded or alleged, the standard of proof changes from the civil one of the balance of probabilities to the criminal one of proof beyond reasonable doubt.

The section itself reads: “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.”

Fraud connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely.

There are nine mandatory elements of fraud and these are:

1) Someone made a statement of existing fact

2) That fact was material in nature

3) The statement about the fact was false

4) The person making the statement knew it was false

5) You did not know the statement was false

6) The person making the statement wanted you to rely on their statement

7) You had a right to rely on the statement, and,

8) You were damaged as a result of relying on the statement

In line with the foregoing principles and rules of evidence the Plaintiffs bears the onus of proof on the issue as to whether the Defendant has perpetuated fraud in obtaining the judgment under consideration. These are the particulars of fraud that the Plaintiffs’ have to prove as stated in their pleadings and Witness Statement:

1) “Daniel Tawiah Akotuah Addo fraudulently acquired Land Title Certificate in his name

 

2) The Defendant herein is falsely claiming the property in dispute was the selfacquired property of his late father Daniel Akotuah Addo.

3) Going to Court in the capacity of an Administrator of the estate of the deceased Nathaniel Fianko Akotua”.

The Plaintiffs pleaded in paragraphs 21, 22 and 23 of the Statement of Claim as follows: “Paragraph 21: Daniel Tawiah Akotuah Addo did not have any document on the property in dispute executed in his name to have plotted it at the Land Title Registry, yet strangely he was able to acquire Land Certificate in his name. This raises questions of fraud

Paragraph 22: The 2nd Defendant herein is also claiming that the property in dispute was the selfacquired property of his late father Daniel Akotuah Addo which is false.

Paragraph 23: The action of the 2nd Defendant herein constitute act of fraud and deceit. Particulars of fraud and deceit:

a) Going to Court in the capacity of an Administrator of the estate of the deceased Nathaniel Fianko Akotua.

b) Turning round and applying to Land Title Registry for certificate evidencing his ownership of the property in dispute and for other documents to be altered and the property vested in him.

c) Going back to Court to claim that the property belongs to him when the reverse is true”.

At the trial the 2nd and 3rd Plaintiffs testified per their adopted witness statements. The 1st Plaintiff (Nathaniel Fianko Akotuah) did not testify.

 

The 2nd Plaintiff in her evidence-in-chief before the Court repeated paragraphs 21 to 23 of the Statement of Claim.

Cross-examination of 2nd Plaintiff by Counsel for Defendant on 21st March 2023 which is relevant to these proceedings is as follows:

Q: “I am suggesting to you that from the District Court up to the Supreme Court none of the judgment was obtained by fraud by the late Daniel Tawiah Akotuah Addo.

A: That is not true. The late Daniel Tawiah Akotuah obtained the judgment through fraudulent means”.

The Plaintiffs’ Witness (PW1) Henry Tetteh Quayfio evidence on 19th June 2023 was silent on the issue of fraud.

The 3rd Plaintiff testified per adopted Witness Statement as follows:

“The Plaintiffs dissatisfied with the entire court proceedings even to the Supreme Court found that the judgment was fraudulently obtained by 2nd Defendant’s late father Daniel Tawiah Akotuah. Plaintiffs would content (sic) that any judgment (s) purportedly obtained by 2nd Defendant’s late father in respect of the subject matter are borne out of fraud and deceit and that the father of 2nd Defendant simply sought to reap from where he never sowed.

Particulars of fraud

a) Going to Court in the capacity of an Administrator of the estate of the deceased Nathaniel Fianko Akotuah

b) Turning around and applying to Land Title Registry for certificate evidencing his ownership of the property in dispute and for other documents to be altered and the property vested in him.

 

c) Going back to Court to claim that the property belongs to him when he knew it to be false but intended it to defraud the Court and it so did.”

The Defendant testified himself and in defence to the allegation of fraud used in procuring the Judgment in Suit No.JA/27/2007 stated as follows:

“My late father caused the property to be registered in his name after the Supreme Court gave judgment in his favour on 14th November 2007 in Civil Appeal No: JA/27/2007. Armed with the judgment of the Supreme Court the late Danial Akotuah never used any fraudulent means to acquire the land Title certificate.”

Having pleaded fraud, the particulars of which Plaintiffs provided under paragraph 21 to 23 of their Statement of Claim filed on 8th December 2021, which connotes imputation of crime on the part of the Defendant in obtaining the judgment, the law required Plaintiffs to establish that allegation clearly and convincingly and beyond reasonable doubt in accordance with Section 13 of the Evidence Act.

Plaintiffs, however, failed to do this. Even granted the standard was one on the preponderance of the probabilities, Plaintiffs still failed woefully in meeting that standard. The only allegation of fraud Plaintiffs made against the Defendant was that the Land title certificate was obtained fraudulently by his late father and not the Defendant in the instant suit. The Defendant has testified per his adopted Witness Statement that his father Daniel Tawiah Akotuah Addo caused the property to be registered after the Supreme Court Judgment was delivered.

Did the Defendant do anything untoward to obtain Judgment at the Supreme Court through fraudulent means? Has the Defendant deposed that he is the Administrator of the Estate of Nathaniel Akotua Fianko? There was no such evidence proffered by the

 

Plaintiffs. So wherein lies the fraud played on the Supreme Court in obtaining its judgment of 14th November 2007 as alleged by the Plaintiffs?

I conclude that the Plaintiffs have failed to prove the allegations of fraud and deceit against the Defendant beyond reasonable doubt. Even if the evidence were to be

measured on the balance of probabilities, it would not have tilted in the Plaintiffs favour. I therefore resolve issues 3 & 4 against the Plaintiffs.

[6.2] Issues 9 to 11

Issues 9, 10 and 11 border on estoppel and the resolution of issue 11 would cover the two other issues.

I will therefore proceed to resolve Issues 9 to 11 together since they border on the same issues:

Issue 9: Whether or not H/No. B565/6 Abossey Okai, Accra decided upon by the

Supreme Court is not the same matter brought up by the children/relatives of

the Plaintiffs.

Issue 10: Whether or not the Supreme Court did give judgment on 14th November 2007 in

Civil Appeal No. J4/27/2006 in favour of the late Daniel Tawiah Akotuah Addo the father of the 2nd Defendant.

Issue 11: Whether or not the Plaintiffs are estopped by the cause of action and on the issues

before this Court.

What is Estoppel

 

The Learned Jurist SA Brobbey JSC (RTD) in his book, Essentials of the Ghana Law of Evidence at pages 297 to 302, writing on Estoppels stated as follows:

“Estoppel is the rule by which a person is prevented from asserting or denying the existence of facts because he has previously asserted or denied the opposite…Public Policy frowns upon a situation by which a party is allowed to repeatedly institute action on the very issue which has already been determined by a court of competent jurisdiction. Such repeat actions become more unacceptable when one considers the fact that our courts are inundated with cases it cannot have enough time to dispose of.

…Estoppel per rem judicatem is estoppel that arises from previous judicial recordings. The same estoppel is also known as estoppel by record the record being normally a judgment of the court. It comes about this way: where a court of competent jurisdiction has adjudicated on a matter, the same matter cannot subsequently be re-litigated by the parties or their privies. This principle is predicated on two Latin maxims of:

‘Interest rei publicae it sit finis lithuim’ (which literally means that it is in the interest of the public that litigation should be brought to an end) and

Nemo debet bis vexari pro eadem causa (which literally means that no one should be sued or vexed twice on the same subject matter or the same cause).

See Conca Engineering v Moses [1984-86] 2 GLR 319.

Estoppel per rem judicatem is of two kinds, namely cause of action estoppel and issue estoppel. The distinction between the two estoppels was spelt out in In Re Asere Stool [2005-2006] SCGLR 6373.”

3 See also Sekyedumase Stool Affairs; Nyame v Kesse alias Konto [1998-99] SCGLR 476

 

The learned Author, Ofori Boateng J in his invaluable book Ghana Law of Evidence, 2nd Edition, page 174 writing under the heading Judgments as Estoppel stated as follows:

“As is the established procedure at common law and under the decree, whoever wishes to rely on an estoppel by judgment must plead it. Once it is pleaded and the other party joins issue, the burden of adducing evidence to establish the operation of the estoppel rests on the party who wishes to take advantage of it. Before the estoppel can be established, certain facts will first have to be proved to exist:

1. That the judgment has been proved

2. That the court that passed the judgment acted within its jurisdiction

3. That the judgment was final, in that it determined the disputed rights of the parties in the case, and was not just an interlocutory judgment

4. That the judgment was on the merits of the case

5. That the judgment was obtained without fraud

Phipson on Evidence, 15th Edition at page 989 provides as follows5

“A judgment will not provide the foundation for an estoppel if it can be successfully assailed on one of the following grounds:

a) Not final

b) Not on its merits

c) Without jurisdiction

d) Obtained by fraud or collusion

4 Ofori Boateng J, Ghana Law of Evidence, 2nd Edition, 2000

5 Howard M.N., Phipson on Evidence, 15th Edition, 2000

 

A final adjudication of a legal dispute is conclusive as between the parties to the litigation and their privies as to the matters necessarily determined, and the conclusions on those matters cannot be challenged in subsequent litigation between them”

In the case of Sic Insurance Company Limited vs. Ivory Finance Company Limited and Others, TLR [2019] 1 page 228, Anin Yeboah (JSC) (as he then) was delivered himself thus:

1) “The trial and the appellate courts in the instant case erred when they held that the doctrine of res judicata operated to forbid them from examining the case on its merits with a view to establishing the presence or otherwise of the circumstances under which a consent judgment may be set aside.

2) The procedure for terminating procedure by summary process ought only to be applied in cases where the action is clearly unsustainable, and where it is plain and obvious and beyond doubt that the case is completely arguable, frivolous and vexatious, and that even a legitimate amendment cannot cure the defects. The procedure should therefore be sparingly exercised with extreme care and circumspection in obvious and plain cases.

3) Fraud qua fraud is such a serious vitiating that in judicial proceedings, care must be taken not to suppress it when it has been legitimately raised in the course of proceedings” Also see the cases of Foli & Ors vs Agya Afla & Ors (consolidated) [1976] 1 GLR 194 and Sasu vs Amua-Sekyi & Ors [2003-04] 2 SCGLR 746.

In the case of Buildaf Ltd & Others vs Catholic Church [2017 – 2020] 1 SCGLR 1143 at 1145 the Supreme Court held that “third party rights acquired before the commencement of proceedings that resulted in the decision against the vendor were not extinguished by that judgment. Consequently in the instant case both the 1932 and 1961 judgments could not operate as estoppel against the respondent whose predecessor in title had grant in 1926 long before the

 

commencement of those litigation and subsequent judgments. Attram v Aryee [1965] GLR 341, SC applied”

Order 11 rule 8 (1) of CI 47 states that a party shall in any pleading subsequent to a Statement of Claim plead specifically any matter, for example, performance, release, any limitation, provision, fraud or any fact showing illegality. See the case of Nti and another v Anima and another [1984-86]2 GLR 134 at 143, per Abban JA (as he then was).

How did the Defendant plead estoppel? The Defendant in paragraphs 11 to 13 of his amended Statement of Defence pleaded as follows:

“In answer to paragraph 36 of the amended Statement of Claim the 2nd Defendant avers that his late father Daniel Tawiah Akotuah Addo was the receiver of rent from the said house and it was when he realized that the late Nathaniel Fianko Akotuah and his brother Abraham Fianko Akotuah wanted to arrogate to themselves the ownership of the said house he was compelled to join the District Court action which culminated in the Supreme Court Judgment J4/27/2006 in his favour and same has not been appealed against or set aside yet. The 2nd Defendant says that paragraphs 37-41 of the amended Statement of Claim are issues the plaintiffs cannot support by virtue of the Supreme Court Judgment.

The 2nd Defendant says that by virtue of the said Supreme Court Judgment in Civil Appeal No. J4/27/2006 the plaintiffs are estopped on their cause of action and on the issues before this Honourable Court.”

Having studied the judgments in Suit No: 299/92 /J4/27/2006 from the District Court to the Supreme Court as provided in Exhibit 2 the record of appeal and I state my findings as follows:

- The parties therein were Nathaniel Bosomprah Fianko and the 1st Plaintiff who has since died and has been substituted by Nathaniel Kojo Fianko, and the Defendants

 

namely Philip Dodoo Djan, Nillar Abikopa Kusase, Joe Mensah and the late Daniel Tawiah Akotuah Addo, the Co-Defendant who the father of the Defendant herein.

- The property in dispute in Suit No. J4/27/2006 was House Number B 386/6 same as the property in dispute in the present suit.

- The issues raised are largely the same.

- The evidence led in respect of acquisition and ownership of House Number B 386/6 in Suit No. J4/27/2006 are largely as the same evidence led in this present suit.

From Exhibit 2 the following elements to sustain a successful plea of estoppel per rem judicatem in respect of Suit No. J4/27/2006 has been made out and that is:

1. That the judgment has been proved

2. That the court that passed the judgment acted within its jurisdiction

3. That the judgment was final, in that it determined the disputed rights of the parties in the case, and was not just an interlocutory judgment

4. That the judgment was on the merits of the case.

5. That the judgment was obtained without fraud.

Essentially this Court considers this present suit a second bite at the cherry. There must be finality to litigation - ‘Interest rei publicae it sit finis lithuim’.

The Defendant has proven that the judgment was given by a Court of competent jurisdiction and that the judgment is still subsisting.

I therefore find that Estoppel per rem judicatem has been made out. I resolve issues 9 to 11 in favour of the Defendant.

 

Issue 12: Whether or not the 2nd Defendant and his brothers and sisters are not entitled to vacant possession of H/No. B565/6 Abossey Okai by virtue of the Supreme Court judgment No. J4/27/2006 of 14th November,2007.

I refer supra to what constitutes a counterclaim.

The Defendant has counterclaim for “By virtue of the judgment in the Supreme Court Civil Appeal No. J4/27/2006 which decreed judgment in his late father Daniel Tawiah Akotua Addo’s favour the 2nd Defendant claims recovery of vacant possession from all the occupants of the said house jointly and severally regardless of them being relatives.”

The Supreme Court judgment in Suit No. J4/27/2006 per Atuguba JSC (as he then was) delivered itself thus:

“It is obvious that these principles as to concurrent findings of fact, militate against any disturbance by this court, of the concurrent findings of fact by the 3 lower courts in this case”

The late Co-defendant in his Statement of Defence filed on 24th September 1992 in Suit No. 299/92 did not counterclaim for forfeiture or recovery of possession. There is nothing in the Co-Defendant’s Statement of Defence about the Plaintiffs forfeiting their occupancy of the house in dispute because they had challenged the title of the Co-Defendant.

The Plaintiffs failed to prove fraud according to the standard required by law and that is proof beyond reasonable doubt however the Defence merely asked for recovery of vacant possession by virtue of the Supreme Court decision. The Supreme Court decision merely affirmed the title of Defendant’s father but did not order recovery of possession. This Court cannot order what has not been asked for.

I resolve issue 12 against the Defendant.

[7] Conclusion

 

Both the burden of persuasion and the burden of producing evidence of the issue of fraud rest on the Plaintiffs. The Plaintiffs have not been able to prove that the judgment of the District Court in Suit No: 299/92 which has been affirmed on appeal from the High Court, Court of Appeal and Supreme Court in Suit No: J4/27/2006 was obtained by fraud. The Plaintiffs reliefs (a) to (h) must accordingly fail and same is dismissed.

The Defendant’s Counterclaim “By virtue of the judgment in the Supreme Court Civil Appeal No. J4/27/2006 which decreed judgment in his late father Daniel Tawiah Akotua Addo’s favour the 2nd Defendant claims recovery of vacant possession from all the occupants of the said house jointly and severally regardless of them being relatives.” fails and same is accordingly dismissed.

Considering the circumstances of this case, the parties are to bear their own legal expenses.