Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ on line 101 RANDOLPH v. CAPTAN & ANOTHER | GhanaLegal - Resources for the legal brains


  • appeal
  • 1959-10-10
  • GLR 347-353
  • Print



Res judicata?-Allegation that judgment pleaded was obtained by fraud?-Plaintiff may so plead?-Absence from pleadings of full particulars of alleged fraud will debar plaintiff from leading evidence thereof.


By his writ of summons the plaintiff claimed recovery of possession of two premises in High Street, Accra, viz., House No. D. 774/2 and House No. D.775/2, together with 12,000 damages for trespass to those premises. He pleaded that the houses were acquired jointly by the late Philip Randolph, and his mother the late Janet Plange; that Janet Plange had died in 1897, and that Philip Randolph then became the sole owner of these premises by survivorship; that Philip had died in 1933, and that the property became vested in him (the plaintiff) absolutely as the only surviving legitimate son of the said Philip. The plaintiff did not state by what law or custom he became the sole owner.The defendant pleaded that the houses in dispute were the property of the Kreshie Family of Accra, and that he was an assignee of two leases granted by that family to one Anis A. Karam. He further pleaded that the plaintiff was estopped from disputing the title of the Kreshie Family, and, consequently was estopped from disputing his (the defendant's) leasehold title. This estoppel, he said, arose by reason of a judgment of Dean C.J. dated the 13 July, 1935, in a suit entitled Arthur Hansen Hammond, Head of the Kreshie Family v. The United African Company Limited and J. H. W. Randolph (plaintiff in this suit), which judgment was confirmed by the Privy Council (5 W.A.C.A. 42).In answer to the defendant's statement of defence, the plaintiff filed a reply denying that the land in dispute was the property of the Kreshie Family. The plaintiff further denied that he was estopped from disputing the Kreshie family?'s title, and said that the judgment of Dean C.J. was obtained by fraud and perjury, and was therefore of no binding effect so as to create estoppel.The head of the Kreshie Family was joined as co-defendant upon his own application.L. Suit No. 13/1959. [p.348]


(His lordship referred to the pleadings, and continued:)

Upon those pleadings the plea that the dispute was res judicata by reason of the judgments pleaded became a preliminary issue to be determined. The plaintiff appeared in person the day hearing commenced. He was sworn, and had started to give his evidence when Counsel for the defendants asked that the preliminary issue should be determined first, because, if it were sustained, it would finally dispose of the whole suit.

The Court agreed to that procedure, and called upon the defendants to establish their defence. In support of their plea Counsel for the defendants put in certified copies of the writ of Summons in the suit pleaded, the judgments therein relied upon, the order for pleadings, the application (with supporting affidavit of the plaintiff herein) for joinder in that suit as co-defendant, the pleadings in the said suit, the record of a statement made by the plaintiff's Counsel in that suit to the effect that his defence was contained in the affidavit, together with the Leases and Assignment pleaded by the defendants. [p.349]

Upon these, Counsel submitted that the principal parties to this suit are the same as those in the former suit (namely, the Kreshiet family and J. H W. Randolph), and that the subject-matter of this suit is identical with that in the former suit, as are the issues raised in the two suits. Upon those submissions Counsel for the defendants asked the Court to dismiss the plaintiff's claim on the grounds that it was res judicata.

When called upon to rely to the submissions made on behalf of the defendants, the plaintiff said that he admitted the existence of the judgments and of the proceedings tendered, but he contended that the judgments were ineffective because they were obtained by fraud. He said that he would lead evidence later to establish this allegation of fraud. The Court pointed out to him that as he had not specified the fraud alleged in his reply to the statement of defendant, and had not given any particulars of it, evidence could not be received on that issue. At that stage the plaintiff applied for and was granted, an adjournment to enable him to get his Counsel to attend at the next hearing to argue the legal points. The case had later to be adjourned a second time, as the plaintiff's Counsel did not attend on the date to which it was originally adjourned. Counsel appeared on the third occasion, and the Court explained to him the point which Counsel for the defendants had made in his absence.

On the question of the allegation of fraud, Counsel for the plaintiff submitted that it was for the defendants, if they required specification of the fraud alleged and particulars thereof, to have applied to the plaintiff for them, and since no such application had been made, he was entitled to lead evidence to prove it. I shall deal with this point at a later stage in this ruling.

On the issue of estoppel per rem judicatam, Counsel submitted that because the judgments relied upon were ineffective by reason of the fact that they were obtained by fraud, it was not necessary to have them set aside on a substantive suit, and that it was open to a party against whom those judgments are pleaded as res judicata to defeat that plea upon proof that the judgments were obtained by fraud. That submission of Counsel has great weight in it, and find, support from very high authorities. As was laid down in the Duchess of Kington?'s Case (Smith?'s Leading cases (13 th edition) 644)):

"Fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of Courts of Justice."

It is true that the general principle of law is that a party, in order to avoid being stopped by a judgment obtained by fraud, should institute a substantive suit for that purpose. Thus, in the case of [p.350] Jonesco v. Beard ([1930] A.C. 298 at 300) Lord Buckmaster delivering the judgment of the House of Lords, stated:

?" It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given, and the allegation established by strict proof such as a charge requires.?"

But in Halsbury?'s Laws of England (3rd edition) Volume 22, pages 790 to 791, after stating the principle set out above, the learned authors go on to say:

?"Theoretically, it may be true that even a party to a judgment which has been obtained by fraud is entitled to ask the Court to disregard it in subsequent proceedings; but a party who has taken no proceedings to set the judgment aside would have great difficulty in establishing fraud.?"

And at page 153 of Spencer Bower?'s book: ?"The Doctrine of Res Judicata?" (1924 edition) paragraph 251, the author expanded the principle that a person can defeat a judgment obtained by fraud without taking substantive proceedings to set it aside. He said:

?"Assuming that the party setting up the res judicata as an estoppel has alleged and established all the constituent elements of an estoppel of this nature, and that the opposite party is not in a position to meet by direct denial or disproof the case so made against him, it is still open to the latter to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are two; fraud and cross-estoppel."

The same author states at page 153, paragraph 252 (op.cit.):

?"The avoidance of a judicial act on the ground of a fraud or collusion is effected not only by active proceedings for recession . . . but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which depends for its success on the decision being treated as incontrovertible.?"

So, too in the case of Perry v. Meddowcroft (50 E. R. 529 at 534) Lord Langdale stated the principle as follows:

?"If a sentence, decree or Judgment of any Court can be shewn to have been obtained by fraud or collusion, it is not to be used in any Court as evidence against the right of the party who might be precluded by a sentence properly obtained . . . A sentence may be refused the respect which would otherwise be due to it, if it can be shewn, as it may be shown, that the sentence was obtained by fraud and collusion." [p.351]

And in the case of Bandon v. Becher (5 E.R., H.L. 1388), a suit to redeem a mortgage, the defendant pleaded as res judicata an order made in his favour on a suit for foreclosure and sale. In reply to that plea the plaintiff alleged that the order was obtained by fraud; he gave full particulars of the fraud and proved it. The plea of fraud was held a good answer, even though the judgment had not been set aside. At page 1402, Lord Brougham in the course of his judgment said:

?"It is contended that a decree pronounced by a court of competent jurisdiction between parties legally and formally before it, in a matter of which it has title to take cognisance, cannot be questioned in another Court of co-ordinate jurisdiction, that is to say, the Court of Chancery has no power to be canvassing a suit which has been decided in the Court of Exchequer. That is a general proposition to which I assent under ordinary circumstances. On the other hand, as it was argued, the proposition must be qualified in this respect, that you may object to the validity of the decree in the other Court, provided it was pronounced through fraud, through contrivance, or through covin of any description. This is a proposition as undeniable as the former. . . But if the decree has been obtained by fraud; if the whole suit has been concocted from the beginning to the end in fraud, that decree shall avail nothing for the party obtaining it in the further prosecution of his claims and it shall avail nothing against the party affected by it and against whom it was set up, to the destruction of his property, or to stay the prosecution of the claim against those who have so done. For these propositions there is undoubted law, recognised in daily practice, and not only undeniable, but they exist independently one of the other, and stand together consistently."

But in all the cases where fraud has been set up as an answer to a plea of res judicata, as well as in others in which fraud is set up as a defence, the Courts have made it quite clear that the rules of pleading as regards fraud must be strictly adhered to. The allegation must be clear and definite (that is, the nature of the fraud should be stated with certainty, and full particulars of it must be given) otherwise the Court should disregard it, and not permit any evidence to be led in proof thereof. And where the necessary particulars are given, but the evidence produced is vague, leaving an impression of mere probability, the plea should be rejected.

The relevant Rule of Court applicable to pleading fraud is our Order 19 rule 6, which is a verbatim reproduction of Order 19 rule 6 of the Rules of the Supreme Court of England. It reads: [p.352]

?"In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue Influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."

The provisions of this rule requiring particulars of fraud is mandatory. It requires the party pleading fraud to give particulars of it at the time he pleads it. Rules 7 and 8 of Order 19, give the person against whom it is pleaded the right to apply for a further and better statement of the nature of the fraud and the particulars of it. But if the party pleading fraud fails in the first instance to state the nature of it clearly, or to give some particulars of it, his opponent cannot exercise this right to call upon him for a further and better statement of the nature of the fraud, and for further and better particulars of it, because there is no statement and there are no particulars.

Thus, in the case of Wallingford v. Mutual Society (5 App. Cas. 685), the Society took out a summons against the appellant Wallingford for large sums of loans, subscription and interest. The appellant alleged generally that it was by fraud and misrepresentation the he had been induced to enter the Society, but he did not give particulars of the alleged fraud. He also alleged a disputed account, and he counterclaimed. The Court refused to allow him to lead evidence in support of the alleged fraud. He appealed to the House of Lords.

Lord Selborne L. C. in his judgment (at page 697) stated:

?"With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon, in a manner which would enable any Court to understand what it was that was alleged to be fraudulent. These allegations, I think, must be entirely disregarded.?"

And Lord Blackburn (at page 704) said:

?"It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the Judge that those are facts which make it reasonable that you should be allowed to raise that defence.?"

Finally, in the case of Lawrance v. Norreys ors. (15 App. Cas. 210) it was held that in such an action general averment of fraud is not sufficient. The statement of claim must contain precise and full [p.353] allegations of fact and circumstances, leading to the reasonable inference that the fraud was the cause of deprivation, and excluding other possible causes. Lord Watson(at page 221) stated:

"There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it: and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments. Facts and circumstances must in that case be set forth, and in every genuine claim are capable of being stated, leading to a reasonable inference that the fraud and the injuries complained of stood to each other in the relation of cause and effect.?"

Applying these principles, I rule that it is open to the plaintiff to plead fraud in answer to the defence of res judicata; but since the plaintiff's reply to the defence of res judicata contains only a general averment of fraud, and no precise and full allegation of fact, and does not state the circumstances of the alleged fraud, no evidence can be led of fraud. The defence of res judicata, therefore, stands unanswered, and should be sustained.

I hold, therefore, that the claim is res judicata, and that the plaintiff is estopped by reason of the judgment pleaded ?- that is the judgment of Dean C. J., upheld by the judgment of the Privy Council ?- from re-litigating the matter.


<P>The plaintiff’s claim is dismissed, with costs fixed at 75 guineas, inclusive of all costs already awarded.</P>&nbsp;

Plaintiff / Appellant

In person.

Defendant / Respondent

Quashie-Idun (for Akufo-Addo)


(1) Jonesco v. Beard ([1930] A.C. 298);

(2)  Duchess of Kingston's Case (30 St. Tr. 355, 537);

(3) Perry v. Meddowcroft (50 E. R. 529):

(4)  Bandon v. Becher (5 E.R., H.L. 1388);

(5) Wallingford v. Mutual Society (5 App. Cas. 685);

(6) Lawrance v. Norreys & ors. (15 App. Cas. 210).

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