Deeds and documents - Execution - Illiteracy - Document to be interpreted to illiterate even if prepared by his lawyer - Illiterates Protection Ordinance Cap 262 (1951 Rev) s 4.

Deeds and documents - Execution - Proof of, - Document containing no attestation - Mode of proof of execution - Illiterates Protection Ordinance Cap 262 (1951 Rev) ss 4 and 9.

The plaintiff, an illiterate and brother of FTA, the late husband of the defendant, instituted an action against the defendant for a declaration that the disputed property was his self-acquired property. FTA had disposed of the property as his self-acquired property. The defendant alleged that the property was assigned to the plaintiff as her late husband’s nominee, and that the plaintiff later re-assigned it to her late husband. The plaintiff admitted executing the deed of assignment but contended that it could not be enforced against him since it was not read over and interpreted to him. The document was prepared by a solicitor and, as claimed by the plaintiff, FTA brought it to him to sign with the explanation that it was to enable him, FTA, obtain a bank loan. The document was said to have been interpreted in the presence of a person whose name did not appear in the document nor did the person sign or thumbprint it. Moreover the deponent to the oath of proof deposed that the document was read over and interpreted to the plaintiff in Fanti but the name of the interpreter was not disclosed in the space provided. The trial judge found for the plaintiff on the ground that the deed of assignment was unenforceable for non-compliance with section 4 of the Illiterates Protection Ordinance, Cap 262. He held also that in view of those discrepancies and the denial of the plaintiff that the document was read over and interpreted to him the defendant ought to have called the interpreter and the deponent to the oath of proof. Since no explanation was offered for not calling them the trial judge concluded that the document did not have any probative value. The defendant appealed contending firstly, that since the deed of assignment was prepared by a lawyer, it was excluded from the need for interpretation. Secondly, that since the plaintiff’s claim was against the estate of a deceased person, the standard of proof was higher than required in a civil matter.

Held - No evidence was adduced to show that the plaintiff instructed his own solicitor to prepare the deed of assignment; even if there was such evidence it would still be necessary that the execution of the assignment should comply with section 4 of Cap 262 since the plaintiff was illiterate. On the evidence the decision of the trial judge could not be faulted. Owusu v Kumah [1984-86] 2 GLR 29 distinguished.

Cases referred to:

Bank of West Africa Ltd v Appenteng & Anor [1972] 1 GLR 153, CA.

Boakyem v Ansah [1963] 2 GLR 223, SC.

Agyepong (dec’d), In re, Poku v Abosi [1982-83] GLR 254, CA.

Kwamin v Kuffour (1914) PC 1874-1928, 28, 2 Ren 808.

Morris v Monrovia (1930) 1 WACA 70.

Owusu v Kumah [1984-86] 2 GLR 29, CA.

Taylor v Sasu (S Y) and Sons [1973] 1 GLR 176, CA.

Waya v Byrouthy (1958) 3 WALR 413.

Wood v Hammond dated 16 December 1987, CA.

Youhana v Abboud [1973] 1 GLR 258.

APPEAL from the decision of High Court.

I K Boakye for the appellant.

Anthony Forson for the respondent

ADJABENG JA. The plaintiff-respondent, Kofi Arthiabah, the elder brother of Francis Tayee Arthiabah, the late husband of the defendant-appellant, took action against the defendant after the death of her husband, at the High Court, Sekondi. By his amended writ of summons, the plaintiff sought a declaration that House No 23/7, Liberation Road, Takoradi, is the property of the plaintiff and not the self-acquired property of the late Francis Tayee Arthiabah. The action was prompted by the fact that the said late husband of the defendant purported in his will to dispose of this property as if it was his self-acquired property. The plaintiff contended that the house was rather his own self-acquired property and not the property of his late younger brother. He later caused to be joined the executors of the will of the late F T Arthiabah but they neither appeared nor took part in the proceedings.

The plaintiff adduced evidence in support of his acquisition of the property and also of his acts of ownership thereof. The trial judge was satisfied with this evidence. He did not believe the story put up by the defendant that the property was assigned to the plaintiff as her late husband’s nominee and that the plaintiff later re-assigned this property to her late husband. The trial judge accordingly entered judgment in favour of the plaintiff. The defendant, dissatisfied with this, appealed to this court.

The defendant originally appealed on two grounds. They are:

(1) that the learned trial judge erred in law in holding that the deed of assignment made between the plaintiff, Kofi Arthiabah, and the late Francis Tayee Arthiabah was void; and

(2) that the learned trial judge erred in law in holding that the late Francis Tayee Arthiabah had no title to the property in dispute of which he could make a testamentary disposition.

Later, in this court, the defendant filed one additional ground of appeal, namely, that:

“the plaintiff-respondent failed to prove his title to the dwelling house situate on Plot No 23/7, Liberation Road, Takoradi, which formed part of the estate of F T Arthiabah in that he failed to satisfy the court that his assertion was literally true.”

Arguing the two original grounds of appeal together, counsel for the defendant first observed that the plaintiff’s notice to amend the indorsement on the writ of summons by deleting the words “and other members of his family” had not been dealt with, and so the amendment never took place. He submitted therefore that the plaintiff did not discharge the onus of proving that the house in dispute was his own family property. Counsel also submitted that the trial judge was wrong in not considering exhibits B and C, and that since exhibit B had been prepared by a lawyer, the judge was wrong in holding that the Illiterates Protection Ordinance, Cap 262 was not complied with. Counsel cited in support Owusu v Kumah [1984-86] 2 GLR 29. Counsel invited us to consider section 9 of Cap 262 and to hold that exhibit B is a valid document and therefore the defendant’s husband was the lessee of the property in dispute.

As regards the additional ground of appeal filed, counsel for the defendant argued that since it was the property of a deceased person that was being claimed in this matter, the standard of proof that the plaintiff was required to satisfy was higher than the normal standard required in a civil matter. Counsel submitted therefore that it was not enough for the plaintiff to enter the witness-box and say that exhibit B had not been interpreted to him before he thumbprinted it. Counsel cited in support the following authorities: Morris v Monrovia (1930) 1 WACA 70 at page 74; Wood v Robert Hammond Neizer, dated 16 December 1987, CA and In re Agyepong (deceased); Poku v Abosi & Anor [1982-83] GLR 254, holding (5) at page 256. We were invited therefore to allow the appeal and declare the defendant’s husband the lessee of the land in dispute.

Counsel for the plaintiff in his reply argued that there was no evidence that the plaintiff went together with the late F T Arthiabah to the lawyer for the preparation of exhibit B. Counsel submitted therefore that the case of Owusu v Kumah, supra was inapplicable here. Counsel tried to distinguish that case by saying that in that case it was an illiterate who was trying to take a benefit through the document whereas in the present case before us it is a literate, the late F T Arthiabah, who wanted to take a benefit through exhibit B at the expense of his illiterate brother, the plaintiff. It is the contention of the plaintiff’s counsel that since the plaintiff denied that exhibit B had been read over and interpreted to him, it was the duty of the defendant to call the one who had interpreted the document to the plaintiff and, if possible, the lawyer who had prepared it. Since the defendant failed to call these witnesses or any of them, submitted counsel, the trial judge was right in holding that the defendant had failed to discharge the burden imposed on her. Counsel submitted that the trial judge considered all the issues raised in this case, and that his findings are supported by the evidence on the record. He invited us, therefore, not to disturb the judgment.

It must be said at once that the observation made by the defendant’s counsel that the notice of amendment filed by the plaintiff seeking to amend the indorsement by deleting some words therefrom was not dealt with by the court is not borne out by the record. At page 55 lines 10 to 17 of the record can be found the following notes and order:

“Forson moves amendment to the writ. It only deletes the words ‘and other members of his family’.

Forson: I had informed my friend about this amendment.

By court: Application granted. Let the writ be amended by deleting the words ‘and other members of his family’.”

In view of the fact that these words were deleted from the plaintiff’s action, counsel’s submission that the plaintiff had failed to discharge the onus of proving that the house in dispute was his own family property cannot be sustained. There is ample evidence on the record to show that the property in dispute was acquired by the plaintiff as his self-acquired property. His evidence of how he acquired the property was amply supported by his only witness, his brother Tano Nwiah, who had arranged the purchase and later served as the caretaker of the house. The plaintiff’s evidence is also supported by the document, exhibit A, executed on the sale of the house in dispute to the plaintiff by Abraham Farage at the purchase price of £5,500. There is nothing in this evidence to suggest that the plaintiff purchased this property as a nominee of his late brother F T Arthiabah, or that he used funds provided by the plaintiff’s said brother to purchase the property as claimed by the defendant. Indeed, the said F T Arthiabah deposed in exhibit C, an affidavit dated 6 April 1977, that:

“one building No 23/7 at Liberation Road, Takoradi was originally owned by my brother, Adeaba Kofi of Bakanta in the Esiama area, Eastern Nzima.”

It is my view, therefore, that the trial judge’s finding that the property in dispute was purchased by the plaintiff solely out of his own resources cannot be faulted, as it is amply supported by the evidence adduced.

It was, however, contended by the defendant that the plaintiff later transferred his interest in this property to his late brother F T Arthiabah, at the price of ¢6,000. The defendant relies on exhibits B, C, 2 and 3 to support this contention. And in this court it was seriously argued by the defendant’s counsel that the trial judge was wrong in not considering in his judgment exhibits B and C. It was also argued that the judge was wrong in holding that exhibit B was not made in compliance with the Illiterates Protection Ordinance Cap 262 because exhibit B had been prepared by a lawyer. As has been said, counsel relied on Owusu v Kumah, supra. It cannot be true that the trial judge failed to consider exhibit B in his judgment as was submitted by the defendant’s counsel. A look at the judgment of the trial court will definitely reveal that the judge exhaustively dealt with all the issues raised by exhibit B. From paragraph 2 of page 59 of the record to the middle part of page 61, the trial judge painstakingly discussed the issues raised about this document, the evidence adduced, the law involved and the decided authorities applicable thereto. Having decided that on the evidence the plaintiff was an illiterate, the trial judge went on to refer to and to discuss the important cases on the Illiterate Protection Ordinance, Cap 262 section 4(1). These cases are, firstly, the old and famous case of Kwamin v Kuffour (1914) PC 1874-1928 at page 36 where it was held:

“There is no presumption that a native of Ashanti who does not understand English, and cannot read and write, has appreciated the meaning and effect of an English legal instrument because he is alleged to have set his mark to it by way of signature.”

The judge next referred to Waya v Byrouthy (1958) 3 WALR 413 in which Adumua-Bossman, J (as he then was) said:

“Where an illiterate executes a document, any other party to the document who relies upon it must prove that it was read over and if necessary, interpreted to the illiterate.”

Again, the trial judge referred to the Court of Appeal decision of Bank of West Africa Limited v Appenteng [1972] 1 GLR 153 where the court held that it was essential that such a document was read and interpreted to the illiterate. This is because a person who seeks to bind another with a document must prove firstly that it was read over and interpreted to the illiterate in the language he understands and, secondly, that he understood the nature of the document before he signed or thumbprinted it. The other cases the trial judge referred to on the subject are the decision of Abban J (as he then was) in Youhana v Abboud [1973] 1 GLR 258 at page 262, Taylor v S Y Sasu and Sons [1973] 1 GLR 176 at page 181 and Boakyem v Ansah [1963] 2 GLR 223.

After discussing these authorities, the trial judge went on as follows:

“At page 3 of exhibit B the document was said to have been interpreted by one Kwamina Esson in the presence of a person whose name did not appear on the document nor did whoever it was sign the document or thumbprint it. Moreover, in the oath of proof one Joseph Arthur swore that he was present when the instrument was read and interpreted to Adeaba Kofi who could not read and write and that the instrument was read over and interpreted to the said Adeaba Kofi in Fanti by a person whose name did not appear in the space provided. In this case also no signature or thumbprint appears. In view of these discrepancies and the fact that the plaintiff challenged the genuineness of exhibit B it became vitally important that if the defendant was to succeed in proof she should call the said Kwame Esson and Joseph Arthur as witnesses as to the due execution of exhibit B. The two men were not called and no reasons were given by the defendant for her failure or inability to call them.”

The trial judge, therefore, concluded rightly, in my view, as follows:

“In the absence of such proof exhibit B ceases to have any probative value. Equally exhibit 3 which is based upon exhibit B and by which the plaintiff is alleged to have relinquished his interest in the house cannot be relied upon to give title to the defendant’s husband. I hold therefore that the plaintiff did not at any time assign his interest in the house to his brother or to any one.”

Could there be any valid complaint against the above findings? Counsel for the defendant thinks that there is. Basing himself on section 9 of the Illiterates Protection Ordinance Cap 262 and the case of Owusu v Kumah, supra, counsel would seem to contend that section 4 of Cap 262 was inapplicable to exhibit B because that document had been prepared by a lawyer. It seems to me that this argument, even though ingenious, is unmeritorious as the facts in the two cases are not similar. They are quite different. Exhibit B in this case is a document, prepared by a solicitor, which the illiterate plaintiff said his literate brother had brought to him to sign with the explanation that it was to enable him (the literate brother) obtain a loan from the bank. No evidence was adduced to show that it was the illiterate plaintiff who had instructed his own solicitor to prepare it. In any case, it seems to me that even if it was proved that the plaintiff was the one who had instructed that this document be prepared, it would still be necessary that its execution should comply with section 4 of Cap 262 so long as the plaintiff remained an illiterate. The case of Owusu v Kumah, on the other hand, presents quite a different situation. During the hearing of an appeal at the High Court, Kumasi, counsel for both parties informed the court of the intention of both parties to settle the matter. The matter was therefore adjourned. Later, a settlement was reached, signed jointly by both counsel and filed in court. A consent judgment was accordingly entered by the court. Subsequently, however, one of the parties filed an application at the Court of Appeal seeking to have the consent judgment set aside on the ground, inter alia, that the terms of the settlement which were in English were not fully interpreted to him. The court found, inter alia, on the evidence, that the full terms of the settlement embodied in the document filed in court were read and interpreted to the applicant by his counsel and he understood and assented to them. The Court of Appeal, therefore, held, dismissing the application:

“... the main object of the Illiterates Protection Ordinance, Cap 262 (1951 Rev), was to protect illiterates for whom documents were made. Section 4 of Cap 262 obliged every person writing a letter or document for an illiterate to read or cause it to be read over and explained to the illiterate and also ensure that the illiterate thumb-printed or made his mark on the letter or document. But the law expressly excluded in section 9 of the Ordinance, documents made for illiterates by lawyers and the policy reason for that must be that lawyers who were generally men of standing and were the parties’ own chosen fiduciaries were unlikely to make anything but genuine documents to reflect their clients true wishes. In the instant case, there was inherently credible evidence that the terms of the settlement were read and interpreted to the applicant by his lawyer...”

It was also held in holding (2) that:

“The agreement between counsel for both parties and filed in court as the terms of the settlement were legally binding on the applicant even if, as he alleged, its full terms were not read and explained to him...”

See [1984-86] 2 GLR 29 at page 30.

As has been observed earlier, no evidence was adduced to establish (1) that exhibit B was read and interpreted to the plaintiff, or (2) that the lawyer who prepared it did so on the instructions of the plaintiff, or (3) that the lawyer after preparing the document read over and interpreted it to the plaintiff. Clearly, therefore, the principle of law stated in Owusu v Kumah (supra) is not applicable to the situation we face in this appeal. The trial judge here seems to have believed the plaintiff’s evidence that it was the defendant’s late literate husband, F T Arthiabah, who had caused exhibit B to be prepared, sent it to his illiterate brother, the plaintiff, and asked him to thumbprint it with the explanation that it was to enable him obtain a loan from the Bank. Exhibit B itself looks rather dubious. No person seems to have witnessed its execution as the space provided for the witness or witnesses is left blank. One Joseph Arthur who allegedly swore the oath of proof is not stated in the execution column to have been present and seen the plaintiff execute the document. On what basis then did he swear the oath of proof? The trial judge commented on all these matters. Exhibit A on the other hand, was properly executed as it does not show such defects. On the face of the evidence adduced in this case, and having regard to the law applicable, I do not think that the trial judge could have found otherwise than he did on this issue. His findings cannot therefore be disturbed by this court. The defendant accordingly fails on her original grounds of appeal.

Also, on the additional ground of appeal argued, I think that the defendant must fail. The submission made here was that since the matter involved a claim against the estate of a deceased person, the plaintiff failed to satisfy the standard of proof required, which is higher than the normal standard in civil cases. My simple answer to that submission is that there is overwhelming evidence on the record in support of the plaintiff’s case; see In re Agyepong (deceased); Poku v Abosi, supra. And once the trial judge accepted that evidence there is virtually nothing this court can do to reverse the situation. The truth is that there were many witnesses whom the defendant could have called to enable her give the lie to the plaintiff’s story. For example, as the trial judge rightly said, the defendant could have called Kwamina Esson and Joseph Arthur who were mentioned in exhibit B; and also the tenant, and the Rent Officer whom the defendant mentioned in her evidence. She could also have called the lawyer who prepared exhibit B. But the defendant did not call any of them. Does this failure not give the impression that what she was saying was not true? On the other hand, the plaintiff’s case is fully supported by credible evidence; especially, the evidence of his brother and caretaker (PW1) who seems to have been a trusted brother of the defendant’s late husband also, for he named him as a legatee in his will. Exhibit A is also a strong piece of evidence in support of the plaintiff’s case. It is clear therefore that the plaintiff had discharged that higher burden of proof that counsel for the defendant talked about even if we should agree with him that such was the standard of proof required in this case.

On the whole, therefore, and for the reasons given, I think that the judgment appealed against ought not to be disturbed. It only ought to be affirmed. Accordingly, the appeal must fail.

ESSIEM JA. I agree.

FORSTER JA. I also agree.

Appeal dismissed.

Kizito Beyuo, Legal Practitioner.