|
Land –
Property - Right to ownership -
Right to title – Conditional
licence – Capacity - Time barred
- Jurat - Whether or not the
interest which they conveyed and
which the respondents acquired
was not an outright sale -
Whether or not the conveyed
land acquired was not an
outright sale, but a conditional
licence for the use of the 20
acres of their family land,
albeit for a school project -
Whether or not Nana Odjobi had
no lawful authority to sell
their family land and
consequently, any purported sale
by him was altogether void -
Whether or not the said sale was
without the consent and
concurrence of the principal
elders of the family - section
26 - Evidence Act, 1975, NRCD
323
HEADNOTES
The
Plaintiffs/
Appellants/Respondents
(Respondents), who are husband
and wife claim to have purchased
the land,
the subject matter of this
appeal, from the Asakyiri
Aduamoah family of Aburi
represented by Nana Odjobi
Aduamoah IV (now deceased) as
the lawful head of the family
and with the consent and
concurrence of the elders of the
said family. The property was
to be used for the construction
of a vocational school.
Following the alleged purchase,
Nana Odjobi brought to the
respondents an indenture,
Exhibit B, and executed same. It
was subsequently registered by
the respondents. They
maintain that they were however
compelled to institute
proceedings in the High Court,
in protection of their
right to
ownership of the property,
when the appellants, led by the
6th appellant, who
succeeded Nana Odjobi as the
head of the family, challenged
their
right to title through
various adverse acts. The
appellants however vehemently
challenge the alleged sale
transaction on grounds of mixed
facts and law. Firstly, they
contended that the 1st
appellant, who happens to be the
actual head of family of the
owners of the land, never sold
the land to the respondents.
They maintain that
the
interest which they
conveyed
and which the respondents
acquired was not an outright
sale, but a conditional licence
for the use of the 20 acres of
their family land, albeit for a
school project. Secondly,
they contended that in any
event,
Nana Odjobi had no lawful
authority to sell their family
land at Adamorobe, and
consequently, any purported sale
by him was altogether void.
Thirdly, they maintain that even
if any such sale transaction
took place,
it was
without the consent and
concurrence of the principal
elders of the family and
therefore a nullity. In
the events that followed, the
trial court dismissed the
respondents’ case. He found from
the evidence adduced that
although Nana Odjobi had the
requisite capacity to sell the
land and did in fact sell the
land to the appellants, it was
without the consent and
concurrence of the principal
members of the family He
accordingly pronounced the
purported sale a nullity, the
registered deed “void” and
declared judgement for the
appellants on their
counterclaim. The respondents’
successful appeal to the Court
of Appeal subsequently triggered
an appeal to this court
HELD
From the
totality evidence, it was the 1st,
2nd and 3rd
appellants, who accompanied the
deceased Odjobi, the rightful
head of family to the
respondents’ house to submit the
Exhibit B for the necessary
signing formalities.
The statutory
estoppel rule of evidence in
relation to recitals in written
instruments, provided for under
S. 25 of the Evidence Act, 1975,
NRCD 323, which rule was
examined in the case of Ampim v
Bediako [1984-86] 2GLR 628,
would thus not justify our
interference with the decision
of the court below on the
pertinent issue of whether or
not the appellants are bound by
the Exhibit B. They cannot seek
refuge under the Illiterates
Protection Ordinance to deny the
respondents of their just
entitlement.
In conclusion, these
reasons form the basis of our
decision of 21st
December 2011.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
1975, NRCD 323
Court of
Appeal Rules C ,I 19
Illiterates
Protection Ordinance, Cap. 262
(1951 Rev.)
CASES
REFERRED TO IN JUDGMENT
Gregory v
Tandoh [2010] SCGLR 971
Achoro v
Akanfela [1996-97] SCGLR 209
Fosua & Adu
Poku v Dufie (Deceased) & Adu
Poku Mensah [2009] SCGLR 310
Zabrama v.
Segbedzi (1991) 2 GLR 221
Yohane v.
Aboud 1 GLR 258
Mechanical Lloyd Assembly plant
ltd v. Nartey [1984-86] 1 GLR
412
Kano v Kalla
[1977] 2GLR 367
Zabrama v
Segbedzi [1991] 2 GLR 221.
Owusu v Kumah
and Another [1984-86] 2 GLR 29
Ampim v
Bediako [1984-86] 2GLR 628
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS),
C. J:-
COUNSEL
KWAKU
ADJEI-GYAMFI FOR THE
APPELLANTS.
JOSEPH IROKO
( WITH HIM ROBERT QUARTEY) FOR
THE RESPONDENTS.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
WOOD (MRS),
C. J:-
On the 21st
of December, 2011, we
dismissed the appeal against the
decision of the Court of Appeal
delivered on the 10th
of February 2006, and reserved
the reasons for that conclusion.
We now provide them.
The
Plaintiffs/
Appellants/Respondents
(Respondents), who are husband
and wife claim to have purchased
the land, the subject matter of
this appeal, from the Asakyiri
Aduamoah family of Aburi
represented by Nana Odjobi
Aduamoah IV (now deceased) as
the lawful head of the family
and with the consent and
concurrence of the elders of the
said family. The property was
to be used for the construction
of a vocational school.
Following the alleged purchase,
Nana Odjobi brought to the
respondents an indenture,
Exhibit B, and executed same. It
was subsequently registered by
the respondents.
They maintain
that they were however compelled
to institute proceedings in the
High Court, in protection of
their right to ownership of the
property, when the appellants,
led by the 6th
appellant, who succeeded Nana
Odjobi as the head of the
family, challenged their right
to title through various adverse
acts.
The
appellants however vehemently
challenge the alleged sale
transaction on grounds of mixed
facts and law. Firstly, they
contended that the 1st
appellant, who happens to be the
actual head of family of the
owners of the land, never sold
the land to the respondents.
They maintain that the interest
which they conveyed and which
the respondents acquired was not
an outright sale, but a
conditional licence for the use
of the 20 acres of their family
land, albeit for a school
project. Secondly, they
contended that in any event,
Nana Odjobi had no lawful
authority to sell their family
land at Adamorobe, and
consequently, any purported sale
by him was altogether void.
Thirdly, they maintain that even
if any such sale transaction
took place, it was without the
consent and concurrence of the
principal elders of the family
and therefore a nullity.
Not
surprisingly, they set out the
conditions on which the alleged
licence was granted. These were
that:
a.
That profit from operating the
school would be shared equally
between the parties
b.
The respondents will build a
family house at Adamorobe for
the Odjobi Aduamoah Asakyiri
family
c.
The respondents would establish
a cement block factory at
Adamorobe from which members of
the said family could purchase
cement block at concessionary
rate to build their personal
houses.
d.
The school project should take
off within 3 years failing which
the family would re-enter the
plot.
In the events
that followed, the trial court
dismissed the respondents’ case.
He found from the evidence
adduced that although Nana
Odjobi had the requisite
capacity to sell the land and
did in fact sell the land to the
appellants, it was without the
consent and concurrence of the
principal members of the family
He accordingly pronounced the
purported sale a nullity, the
registered deed “void” and
declared judgement for the
appellants on their
counterclaim.
The
respondents’ successful appeal
to the Court of Appeal
subsequently triggered an appeal
to this court on two generic
grounds. The first, the oft used
omnibus appeal ground “the
judgement is against the weight
of evidence” is allowable under
the rules of court. The second
ground is however clearly not
permissible and is accordingly
struck out. Nevertheless, this
conclusion per se, will not in
any way jeopardise the
appellants fortunes in this
appeal or result in any
miscarriage of justice, given
that the all embracing ground
(1) is broad enough to admit
any appeal ground embedded in
the offending ground (2). It is
reproduced hereunder.
“(2) The
court below misdirected itself
by ignoring the real matters in
controversy before them and
raising the wrong questions and
deciding them against the
defendants.
Additionally,
the appellants successfully
obtained leave to argue the
following two grounds of which
the second does not, under the
rules, qualify as an appeal
ground and must consequently be
struck out.
(a) Court of
Appeal erred when it held that
the appellants did not file any
notice of intention to have the
judgment of the trial court
varied in any manner when such a
notice was filed on
28/01/2004...
(b) By so
doing, the Court of Appeal
disabled itself from considering
the appellants submission on the
matter of the variation.”
The main
argument relative to the
additional ground (a) is that
the appellate court’s rejection
of their plea for variation, on
the sole premise that they
failed to file any notice of
intention to have the judgment
varied in any manner, is
factually incorrect. They
rightly contend that, as far
back as the 28th of
January 2004, they had filed the
requisite notice, with detailed
grounds in support thereof and
the form in which they wanted
the variation to take. The
notice was couched as follows:
“Whereas the
judge rightly gave judgment to
the Defendants he ignored
material evidence put forward by
the Defendants and the issues
that came before him, and
therefore limited the case of
the Defendants in arriving at
his decision.”
As already
demonstrated, their argument
that they were not in breach of
the procedural rule governing
variation orders on appeal, is
well grounded. But this is the
farthest this argument can aid
them. That factually incorrect
finding never led to any
miscarriage of justice.
Differently stated, the facts as
corrected, does not alter the
appellants’ fortunes in this
court as relates to as the
application for variation. Thus,
the final conclusion that they
cannot be entitled to a
variation remains undisturbed.
And the reasons for this
decision are quite
straightforward.
First, the
notice of intention filed on the
28th of January,
2004, is procedurally defective
and thus incompetent, as being
time barred. Second, it is also
substantively flawed.
The rule 15
(1) of the Court of Appeal
Rules, CI 19 provides:
“If a
respondent intends upon the
hearing of an appeal to contend
that the decision of the court
below should be varied, he shall
within one month after service
upon him of the notice of appeal
cause written notice as in form
7 in part 1 of the schedule of
his intention to be given every
party who may be affected by the
contention”.
The Court of
Appeal Rules rule thus requires
that, a notice for variation of
a decision of a court below must
be filed within one month after
service of upon a respondent of
the notice of appeal lodged by
an appellant. In other words,
to be effective, the notice for
variation must be filed within
the time stipulated under the
rules, which is one month, or
within the time limited by the
court upon an application for
extension of time within which
to do so.
Admittedly,
the record does not disclose the
specific date on which the
notice of appeal was served on
the appellants. The importance
of ascertaining the exact date
on which the notice of appeal
was served on the respondent
cannot be underestimated. Time
begins to run and must be
reckoned from that date. But in
this instant case, valid
inferences can be drawn from the
record in this regard. The
Notice of Appeal was filed on
the 15th of May 2002.
A motion for injunction pending
appeal and its accompanying
affidavit was filed shortly
thereafter, on the 22nd
of May 2002. Pertinently,
neither the motion paper nor
accompanying affidavit hid the
fact that an appeal had been
lodged and was pending in the
Court of Appeal.
In their
opposing affidavit filed on 23rd
July 2002, the appellants never
raised issue about the pendency
of an appeal, nor the fact that
they had not been served with
any notice of appeal. To the
contrary, it is safe to presume;
from the facts as deposed to in
the affidavit that the notice of
appeal had been served on them.
It is to be noted that in almost
every paragraph of their
affidavit, they made reference
to the pending application,
namely, that it is an
interlocutory application
pending an appeal. A most
benevolent reckoning of the date
on which the notice of appeal
was served on them to coincide
with the date of the opposing
affidavit, would still place
their notice of intention for
variation outside the time
limited under the rules of
court. From these set of facts,
as rightly argued by the
respondent counsel, the notice
for variation was time barred.
In the absence of evidence that
the time was extended by the
court, the notice for variation
is incompetent and not open for
consideration by the Court of
Appeal.
This aside,
there is yet another reason why
the notice must be dismissed. We
must confess that we find this
application for variation of a
decision which they themselves
are completely happy with and
impliedly admit in their notice
as correct for all purposes, not
in the least warranted by the
rules of court.
There is one
pertinent question we should
address in order that our
conclusion that the notice of
variation is unwarranted in the
circumstances of this case is
fully appreciated. And that
question is this: What is the
scope of this rule? Put
differently, what purpose or
object is a notice of variation
intended to serve. These
questions have been necessitated
by the appellants’ submission
that we do not only reverse the
erroneous finding of fact that
they had not filed any notice of
variation; but that we proceed
further to determine the
application on the merits.
A simple
reading of the rule provides its
scope and therefore the
rationale behind the rule. It is
in the nature of a cross appeal
and for all practical purposes
serves as an alternative to a
cross appeal. It is submitted by
a respondent to an appeal, who
finding himself or herself not
fully satisfied with a decision
of the trial court, albeit a
favourable decision, would,
rather than file a cross appeal,
exercise the option of
requesting for a variation of
the decision complained of. It
is thus employed to correct not
the assigned reasons, but the
decision of the trial court.
Notice of variations are
therefore not intended to be
deployed to procure from the
appellate court exhaustive
reasons, or further and better
reasons, so to speak, to
reinforce a reasoned decision,
that grand conclusion relative
to a successful party’s claim,
and which in all respects is
therefore sound and correct.
It is plain
however that in this instant
case, the bare purpose for the
variation notice was to obtain
from the court additional
reasons, perhaps what in their
view constitute further and
better reasons, in support of
the decision rendered in their
favour. The final paragraph 6 of
the grounds on which the
variation is sought, supports
our proposition. It reads:
“6 That
though Defendants were rightly
given judgment, the reasons
given by the judge did not
completely reflect the depth of
Defendants case and the evidence
before the court.”
The
appellants’ dissatisfaction thus
lay with the quality or quantum
of reasons assigned for the
judgment in their favour; and
not the fact that the decision
was erroneous. Interestingly,
they explicitly admit the
judgment was right. This
certainly is not the object of
the rule, hence our finding that
the notice is substantively
flawed. In any event, the
appellants did not need a notice
of variation and grounds thereon
to attack what they refer to as
the depth of the trial court’s
reasoning; or to buttress the
further contention that court
missed the real matters in
controversy. These are all
issues that could have been
validly raised at the hearing of
the appeal. The application for
variation is completely
unmeritorious.
At this
re-hearing, the appellants
identified the following as the
substantive issues for
determination.
“Whether Nana
Odjobi Aduamoah had capacity to
make a grant of the appellants’
family land at Adamorobe, he,
not being the Head of the said
family.
Whether the 1st
appellant, Nana Kofi Duodu’s
signature on Exhibit B is
effective to signify the consent
and concurrence of the elders of
the appellants’ family to the
transaction or he can resile
from it on the grounds of
illiteracy.”
These issues
basically cover those that were
identified by the parties as
constituting the main issues for
trial in the court of first
instance, namely:
“(a) Whether
the transaction that took place
between the plaintiffs and the
late Nana Odjobi Aduamoah IV was
one for the purchase of land at
Adamorobe.
(b) Whether
the late Nana Odjobi Aduamoah IV
was the overall head of the
defendant’s family and had the
competence to enter into the
transaction with the plaintiffs.
(c) Even if
he did not have such competence,
whether the defendants are now
estopped by their conduct from
contending that he lacked such
competence.
(d) Whether
the plea that Nana Odjobi
Aduamoah IV did not read the
instrument he executed on behalf
of the defendants’ family in
favour of the plaintiffs
conveying the land at Adamorobe
to the plaintiffs on sale is a
good defence to the suit.
(e) Whether
the defendants are bound by and
are stopped by that instrument
from denying that their family
has sold the land, the subject
matter of this suit, to the
plaintiffs”.
The two lower
courts resolved these issues in
favour of the respondents. The
trial court combed through the
evidence and concluded firmly
that although the 1st
respondent and not the deceased
chief Nana Odjobi, was the head
of family, for the purposes of
this particular transaction, the
deceased chief rightly acted as
the lawful head of the
appellant’s family with full
authority and capacity to
alienate the land. Secondly, the
evidence pointed to an outright
sale of the land, and not a
conditional licence as alleged
by the appellants.
Both courts
rationalised that given the
evidence led at the trial, the
appellants were estopped by
their conduct from denying that
Nana Odjobi Aduamoah IV lacked
the competence to make the
grant. The trial judge’s finding
on this crucial issue is
reproduced hereunder.
“I will
accept plaintiff evidence that
Nana Odjobi was also present at
this meeting. It is defendants
case that 1st
defendant is the head of the
family and not Nana Odjobi. I
will accept the evidence of the
defendant that 1st
defendant, Opanin Kofi Duodu was
the head of the family at the
time of the deliberations for
the family’s land. If the
contentions of the defendants
that Nana Odjobi had no
authority to dispose of the
family’s land then what was Nana
Odjobi doing at the meeting
which concerns transactions
relating to the family land. How
did he get to the meeting in the
first place? The evidence which
I accept is that the contact for
the land was made by the
plaintiff to the 1st
defendant who is the head of the
family at Adamorobe. Plaintiffs
then did not know Nana Odjobi.
Is it not the 1st
defendant who introduced the
plaintiff to Nana Odjobi as the
plaintiffs contend because 1st
defendant claimed Nana is the
overall authority who can deal
with the land? I think so. I
will find that it was the 1st
defendant who introduced the
plaintiff to Nana Odjobi as the
overall head who can deal with
the land, and a subsequent
meeting having been held with
some members of the family
including Nana Odjobi with the
plaintiff at which deliberations
relating to the land was held.
It is my opinion that the
plaintiff had every reason to
believe that Nana Odjobi, a
graduate, was the head who could
deal with the family’s land. 1st
defendant and some members of
his family did put up Nana as
the head who can deal with the
family’s land. I will agree with
the plaintiffs’ contention
therefore that the defendants
can’t now deny Odjobi the
competence to deal with the
plaintiffs in relation to the
family’s land. Having so held I
will accept Nana Odjobi Aduamoah
IV and his signature in the
indenture exhibit B as valid and
competent as head of family to
dispose of the family’s land to
the plaintiffs.”
The 1st
respondent’s unchallenged
narration of events leading to
the sale discloses that it was
indeed the 1st Appellant who
intimated that there was a
“higher authority that had the
power to dispose of the land and
he must be informed in that
regard.”
As strangers to the customary
intricacies of that family, was
the 1st respondent
realistically speaking not agree
to meet with and deal directly
with that higher authority?
The
introduction of the deceased
into the whole transaction as to
his proper role was induced not
by the respondents but by the 1st
appellant, together with his
elders. Respondents dutifully
relied on the express
representations of the
custodians, the 1st
appellant and his elders, to
whom his initial approaches were
directed, and who informed them
of the right procedure relative
to the grant of land in the
area. Appellants are therefore
estopped from denying the
authority of Nana Aduamoah IV to
make the grant when they by
their own representations led
the respondents to believe that
the people who signed Exhibit B
were the proper persons to grant
the family’s land. Would it not
amount to grand fraud if we
allowed their claim to hold
sway?
The statutory
rule governing estoppel by
statement or conduct, from whose
clutches in the given
circumstances of this case the
appellants cannot escape, is
provided under section 26 of the
Evidence Act, 1975, NRCD 323. It
provides the following
conclusive presumption:
“26. Except
as otherwise provided by law,
including a rule of equity, when
a party has, by his own
statement act or mission,
intentionally or deliberately
caused or permitted another
person to believe a thing to be
true and act upon such belief
the truth of that thing shall be
conclusively presumed against
that party or his successors in
interest in any proceedings
between that party or his
successors in interest or such
relying person or his successors
in interest”.
We found no
basis for disturbing these
concurrent findings. Gregory v
Tandoh [2010] SCGLR 971 at
986-7, reinforces the well
settled legal principle with
regard to the circumstances
under which a second appellate
court may interfere with the
concurrent findings of two lower
courts. We observed:
“It was well-
settled that where the findings
of fact such as in the instant
case had been made by the trial
court and concurred in by the
first appellate court, i.e. the
Court of Appeal, then the second
appellate court, such as the
Supreme Court, must be slow in
coming to different conclusions
unless it was satisfied that
there were strong pieces of
evidence on record which made it
manifestly clear that the
findings of the trial court and
the first appellate court were
perverse. However, a second
appellate court, like the
Supreme Court, could and was
entitled to depart from findings
of fact made by the trial court
and concurred in by the first
appellate court under the
following circumstances: First,
where from the record of appeal,
the findings of fact by the
trial court were clearly not
supported by evidence on record
and the reasons in support of
the findings were
unsatisfactory; second, where
the findings of fact by the
trial court could be seen from
the record of appeal to be
either perverse or inconsistent
with the totality of evidence
led by the witnesses and the
surrounding circumstances of the
entire evidence on record;
third, where the findings of
fact made by the trial court
were consistently inconsistent
with important documentary
evidence on record; and fourth,
where the first appellate court
had wrongly applied a principle
of law. In all such situations,
the second appellate court must
feel free to interfere with the
said findings of fact, in order
to ensure that absolute justice
was done in the case. Achoro v
Akanfela [1996-97] SCGLR 209 and
Fosua & Adu Poku v Dufie
(Deceased) & Adu Poku Mensah
[2009] SCGLR 310at 313...”
Following
these findings, the only
pertinent issue left for our
consideration is whether or not
principal elders consented to
the sale. The reasons assigned
by the trial court for
dismissing the respondents’
claim were that the evidence did
not establish that, as required
under law, any principal elder
of the family consented to or
concurred to the sale. In the
case of the 1st
appellant, the trial judge held
that:
“He is on
evidence undisputedly an
illiterate and to hold him to
exhibit B there should be
evidence that he was aware of
the contents of the document.
For when an illiterate attest to
the execution of a document as a
witness by making his mark on it
there is no presumption that he
has any knowledge of the
contents of the document. The
presumption is rather the other
way round, and a heavier onus
rests upon any person claiming
that an illiterate who has
attested to a document is aware
of the contents of such document
to prove it. Refer to the cases
of (1) ZABRAMA V. SEGBEDZI
(1991) 2 GLR 221
(2)YOHANE V.
ABOUD 1 GLR 258 (sic)
Did the
plaintiffs discharge the burden
in relation to Kofi Duodu? I
don’t think they did. At the end
of it all we have Exhibit B
purporting to transfer the
family’s land without the
concurrence or consent of any
principal elders of the family.
Such transaction the law says is
ineffective. Refer to the case
of MECHANICAL LLOYD (1984-86)
1GLR 412. In fact in this case
the defendants have
counterclaimed for the
invalidation of the sale based
on Exhibit B. By all indications
this is a timeous act of the
family to invalidate the sale.
Exhibit B being such defective
in the transfer of the Nana
Odjobi Aduamoah Asakyiri family
land at Adamorobe I find myself
unable to uphold any plaintiffs
claim and I dismiss them
accordingly. On the other hand I
would have to uphold the
counterclaim of the defendants
and declare the registered
document with Land Registry No.
3016/1999 void. I will make a
further order directed at the
Land Registry to expunge the
said instrument from its record”
In
overturning this definitive
finding the first appellate
court reasoned:
“Even if it
is accepted that the 1st
Defendant was illiterate, the
fact found by the learned trial
judge was that he played a
prominent role in the sale of
the land to the plaintiffs. It
was the 1st Defendant
who introduced the plaintiffs to
Nana Odjobi Aduamoah IV
(deceased) as persons desirous
of purchasing a portion of the
Defendants’ family land. 1st
Defendant was present at all
times during negotiations for
the purchase of the land. He
introduced the plaintiffs at a
family meeting as persons who
wanted to buy part of the land
of the family. He was present
when the plaintiffs made part
payment of ¢1,000,000 (one
million cedis) to Nana Odjobi at
Mempeasem, Accra and he thumb
printed Exhibits A and B as
witness. His illiteracy must
therefore not be employed to
mask the fact he knew or ought
to have known that he was thumb
printing a document evidencing
the sale of a parcel of his
family’s land to the plaintiffs.
The conclusion is plausible and
right given the finding made by
the trial judge that the
plaintiffs and members of
defendant’s family entered into
the negotiations for the sale of
the land to the plaintiffs and
also given the fact that the
trial judge rejected the
evidence of the Defendants that
they released land to the
plaintiffs upon terms that
profits accruing from their
school project would be shared
equally with defendants among
other terms. As the learned
trial judge found that Nana
Odjobi Aduamoah IV and 3rd
defendant are bound by Exhibit
B, I would also hold that having
regard to the course of dealing
between the 1st
defendant and plaintiffs, the 1st
defendant is also bound by what
was expressed in Exhibit B. I
think it would be improper to
permit the 1st
defendant under the guise of
illiteracy to avoid the
transaction entered into between
the plaintiffs and the 1st
defendant’s family which he
freely and voluntarily entered
into.”
It is this
crucial finding that has evoked
the critical issue as to whether
or not the principal members of
the family consented to the
sale. In the case of Nana Odjobi
as the grantor, there was no
need for a jurat as he was a
University graduate.
The issue
thus relates to the other
signatories to the Exhibit B.
Are they bound by it? We would
answer this question in the
affirmative. On the germane
issue of protection of
illiterates, the law is that the
presence or otherwise of a jurat
should not be conclusive of
whether or not the illiterate
should be bound by the document
complained of. In arriving at
this conclusion, we have been
guided by two important
decisions, namely, Kano v Kalla
[1977] 2GLR 367 and Zabrama v
Segbedzi [1991] 2 GLR 221.
The Kalla
case revolved around the sale of
a house. The question of whether
the owner, who pleaded
illiteracy and pleaded the
protection, afforded to
illiterates who execute
documents at law, the court held
the view that:
“Depending on
the circumstances of each case,
the evidence needed to rebut the
presumption of an illiterate
signatory’s ignorance of the
contents of his freely executed
document could be direct or
circumstantial or a mixture of
both. Despite the absence of an
interpretation clause on the
face of the document of sale in
the present case, there was
nevertheless evidence that the
plaintiff knew of the fact of
the prior sale of his house to
the first defendant before
affixing his thumbprint to
exhibit 4, the document spelling
out the salient details of the
house purchase agreement.
Furthermore, the plaintiff’s own
letter to the city engineer
informing the latter of the
accomplished sale of his house
antedated exhibit 4. These and
other surrounding circumstances
were of great probative value
and they sufficed to rebut the
plaintiff’s presumed ignorance
of exhibit 4. The conduct of the
plaintiff both before and after
the date of that document
clearly belied and rebutted the
presumption of ignorance, and in
the circumstances, the plaintiff
was bound by the contents of the
agreement of sale.”
Again, in the
Zabrama case it was observed
that:
“The presence
of an interpretation clause in a
document was not conclusive of
the fact, neither was it a sine
qua non. It was still possible
for an illiterate to lead
evidence outside the document to
show that despite the said
interpretation clause, he was
not made fully aware of the
contents of the document to
which he made his mark.”
The rationale
behind this rule is aptly
articulated in the case of Owusu
Kumah and Another [1984-86] 2
GLR 29, as well as the Zabrama
case. In the Owusu Kumah case,
the Court of Appeal, then the
highest court held that:
“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.”
The Zabrama
case stressed the need to
prevent illiterates from using
the principle as a cloak to
defraud others explained the
principle in these terms:
“If after
assessing all the available
evidence was satisfied, upon the
preponderance of the evidence
that the document was read and
interpreted to the illiterate
person, then the burden of proof
would have been discharged by
the person relying on the
document. That was because just
as it was bad to hold an
illiterate to a bargain he would
otherwise not have entered into
if he fully appreciated it, so
also was it equally bad to
permit a person to avoid a
bargain properly and voluntarily
entered into by him under the
guise of illiteracy...
The
principle, however, should not
be stretched to make illiteracy
a cloak for perpetrating fraud
or criminal activities”
The clear
principle emanating from these
cases is that, courts must not
to make a fetish of the presence
or otherwise of a jurat on
executed documents. To hold
otherwise, without a single
exception, is to open the
floodgates to stark injustice.
Admittedly, the presence of a
jurat may be presumptive of the
facts alleged in the document,
including the jurat. But that
presumption is rebuttable, it is
not conclusive. The clear object
of the Illiterates Protection
Ordinance, Cap 262 (1951 Rev.)
is to protect illiterates for
whom a document was made against
unscrupulous opponents and their
fraudulent claims; those who may
want to take advantage of their
illiteracy to bind them to an
executed document detrimental to
their interests. At the same
time, the Ordinance cannot and
must not be permitted to be used
as a subterfuge or cloak by
illiterates against innocent
persons. Conversely,
notwithstanding the absence of a
jurat, the illiterate person who
fully appreciates the full
contents of the freely executed
document, but feigns ignorance
about the contents of the
disputed document, so as to
escape legal responsibilities
flowing therefrom, will not
obtain relief. As noted, the
presence of a jurat at best
raises a rebuttable presumption
only, not an irrebutable one.
Thus, any evidence which will
demonstrate that the illiterate
knew and understood the contents
of the disputed document, that
is the thumb printed or marked
document, as the case may be,
should settle the issue in
favour of the opponent. In
other words, in any action, it
should be possible for the one
seeking to enforce the contents
of the disputed document to show
that despite the absence of a
formal jurat, the illiterate
clearly understood and
appreciated fully the contents
of the document he or she marked
or thumb printed.
On the
evidence, neither the1st,
2nd nor 3rd
appellant can claim they did not
know that Exhibit B involved a
sale of his family land to the
respondents. The unchallenged
evidence establishes beyond
every reasonable measure of
doubt that 1st
appellant and his elders, who
accompanied Nana Odjobi, their
acknowledged head of family, to
the respondents’ house and armed
with the Exhibit B, clearly knew
that their dealings with the
respondents and eventual
preparation and signing of
Exhibit B governed the sale of
his family’s land to the
respondents.
The 1st
respondent’s evidence on this
pertinent issue was that:
“Odjobi
brought the indenture to my
house. He came with 1st
defendant and 3rd
defendant and 2nd
defendant. 2nd
defendant was present...He told
me he had brought the indenture
to be signed by both parties. It
was signed that day by him and
us. All who came with him were
present at the signing. Those
who accompanied him all put
their signatures and thumbprint
on the document as witnesses...”
From the
totality evidence, it was the 1st,
2nd and 3rd
appellants, who accompanied the
deceased Odjobi, the rightful
head of family to the
respondents’ house to submit the
Exhibit B for the necessary
signing formalities.
The statutory
estoppel rule of evidence in
relation to recitals in written
instruments, provided for under
S. 25 of the Evidence Act, 1975,
NRCD 323, which rule was
examined in the case of Ampim v
Bediako [1984-86] 2GLR 628,
would thus not justify our
interference with the decision
of the court below on the
pertinent issue of whether or
not the appellants are bound by
the Exhibit B. They cannot seek
refuge under the Illiterates
Protection Ordinance to deny the
respondents of their just
entitlement.
In
conclusion, these reasons form
the basis of our decision of 21st
December 2011.
(SGD) G.
T. WOOD (MRS)
CHIEF JUSTICE
(SGD) S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
(SGD) J.
ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD) J.
V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) N.
S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
COUNSEL:
KWAKU
ADJEI-GYAMFI FOR THE
APPELLANTS.
JOSEPH IROKO
( WITH HIM ROBERT QUARTEY) FOR
THE RESPONDENTS.
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