COURT OF APPEAL

Deeds and documents – Illiterates – Document – Thumb-print by illiterates – Burden of proof on party relying upon such document – Illiterates Protection Ordinance, Cap 262 (1951 Rev) s 4(1).

Customary law – Family property – Land – Family member renewing family leasehold – Member demolishing existing swish building and constructing disputed property on land – Disputed property family property – Member entitled to life interest – Principle not restricted to fiduciary relationship.

The Gold Coast Government granted to Inkuntomponyi a lease of the disputed land, upon which she built a swish building. Her son, ATY, renewed the lease in his name and replaced the swish building with a two-storey building over which he exercised ownership rights and finally devised the property to his children. Upon his death the plaintiffs, members of Inkuntomponyi’s family, instituted an action against the defendant, ATY’s son and beneficiary under the will, claiming that ATY had falsely claimed the property as a gift from Inkuntomponyi. At the trial the plaintiffs tendered documents which ATY submitted to the Lands Department in support of the alleged gift. Although the defendant sought to rely upon those documents in support of the gift he maintained also that ATY obtained a fresh lease for himself from the Government when Inkuntomponyi’s lease expired. The trial court found that ATY obtained the renewal as a trustee for the family and that he had life interest in the building that he erected on the land. The court found as unreliable the documents submitted to the Lands Department because the  authors were illiterate but there was no indication that the documents were read and interpreted to them as required by s 4(1) of Illiterates Protection Ordinance, Cap 262 (1951 Rev). The defendant appealed to the Court of Appeal.

Held, Lamptey JA dissenting: (1) The burden lay on a party relying on a document made by an illiterate to establish that it was read over and if necessary interpreted to the illiterate person or that it was understood. The trial court rightly rejected those documents under section 4(1) of the Illiterates Protection Ordinance, Cap 262 (1951 Rev). Fori v Ayirebi [1966] GLR 627, SC, Boakyem v Ansah [1963] 2 GLR 223, SC, State v Boahene [1963] 2 GLR 554, Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC referred to.

(2) The Government intended to renew Inkuntomponyi’s lease, not to grant a new lease. The construction by ATY remained family property. The fact that the construction was in place of the swish building did not constitute evidence of the consent of the family to the appropriation of the land by ATY. He acquired a life interest in

the building, which upon his death became family property. In his lifetime he could have let out the rooms but could not divest or devise the property without the consent of the family. Granted that he took a fresh lease he did so for the family. Ansah v Sackey (1958) 3 WALR 325, Boafo v Staudt Land Court, Accra 17 February 1958 referred to.

(3) The principle that a trustee who obtained a renewal of a lease in his name held the new lease as a constructive trustee applied to fiduciary relationship but had been extended to cover any person who had partial interest in a lease or a partner, mortgagor, mortgagee, joint tenant or tenant in common who renewed a lease in his name. Keech v Sandford (1726) 2 Eq Cas Abr 741, Featherstonhaugh v Fenwick (1810) 17 Ves 298, Clegg (Glegg) v Fishwick (1849) 1 Mac & G 294, Clegg v Edmundson (1857) 8 De G M & G 787 at 807, Leigh v Burnett (1885) 29 Ch D 231, Palmer v Young (1684) [1903] 2 Ch 65n, Hunter v Allen [1907] 1 I R 212, Re Biss,  Biss v Biss, [1903] 2 Ch 40,  Boafo v Staudt Land Court, Accra 17 February 1958 unreported, Manukure v Aniapam [1976] 2 GLR 339 referred to.

Cases referred to:

Akyea-Djamson v Duagbor [1989-90] 1 GLR 223, SC.

Ansah v Sackey (1958) 3 WALR 325.

Banga v Djanie [1989-90] 1 GLR 510, CA.

Biss, Re, Biss v Biss [1903] 2 Ch 40, [1900-3] All ER Rep 406, 72 LJCh 473, 88 LT 403, 51 WR 504, 47 Sol Jo 383, CA.

Boafo v Staudt Land Court, Accra 17 February 1958 unreported.

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

Clegg (Glegg) v Fishwick (1849) 1 Mac & G 294, 1 H & Tw 390, 19 LJ Ch 49, 15 LTOS 472, 13 Jur 993.

Featherstonhaugh v Fenwick (1810) 17 Ves 298, [1808-13] All ER Rep 89.

Fori v Ayirebi [1966] GLR 627, SC.

Clegg v Edmundson (1857) 8 De G M & G 787, 26 LJCh 673, 3 Jur (NS) 299, 29 LTOS 131.

Hunter v Allen [1907] 1 I R 212.

Keech v Sandford (1726) 2 Eq Cas Abr 741, [1558-1774] All ER Rep 230, Cas temp King 61, Sel Cas Ch 61.

Khoury v Mitchual [1989-90] 2 GLR 256, SC

Kodilinye v Odu (1935) 2 WACA 336.

Kwamin v Kuffour (1914) 2 Ren 808, PC.

Leigh v Burnett (1885) 29 Ch D 231, 54 LJCh 757, 52 LT 458, 33 WR 578.

Manukure v Aniapam [1976] 2 GLR 339.

Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.

Palmer v Young (1684) [1903] 2 Ch 65, 1 Vern 276.

Ricketts v Addo [1975] 2 GLR 158, CA.

State v Boahene [1963] 2 GLR 554.

Wiafe v Kom [1973] 1 GLR 270.

APPEAL against the judgment of the High Court to the Court of Appeal.

Ebow Quashie for the appellant.

Stephen Herbert Ocran for the respondent.

LUTTERODT JA. The late Amos Thomas Yalley, by his will, disposed of house No 27/2, Okanta Road, Sekondi as his personal property. This sparked off a dispute between the plaintiffs-respondents (who are his head of family and sister respectively) on the one hand and the defendant-appellant, his son and executor-beneficiary under the said will on the other hand. The respondents had, in the court below sought a declaration that the said property was family property and prayed for a further order “detaching the said property from the estate of the deceased.”

The major ground, common between the parties, had been that the land on which the building stood was originally leased to Ekua Inkuntomponyi, mother of both respondents and the late Yalley. She died in 1939 and the lease expired in 1954. The case of the respondents was that when upon the death of their mother the land and the swish structure on it became family property, the two respondents and other siblings, Yalley included, pooled their resources together, demolished the swish structure and erected in its place the property in dispute. A further claim by them was that it was upon the death of Yalley when his will was read that they learned to their dismay that he had fraudulently caused the Lands Department to change the documents covering the property into his name. The appellant did not merely deny the allegation of fraud but maintained that the testator had lawfully acquired a lease from the Government of Ghana in respect of the land and constructed the said property without any assistance from any quarter.

After hearing evidence, the learned trial judge found as a fact that the said house was built by the deceased alone, but on land belonging to the family. Consequently, he held that the deceased had only a life interest in the said property and so gave judgment for the respondent. Aggrieved by this decision, the appellant has appealed on a number of grounds contained in the notice of appeal, additional grounds of appeal and further grounds of appeal filed.

Two matters were urged in respect of the further grounds of appeal dated 28 November 1994 and which read as follows: “The learned judge misconstrued the evidence on the record.”

It was first submitted that the holding that exhibits B1 and B2 were not made by the persons whose thumbprint appeared thereon was erroneous. Counsel based his submission on the fact that there was no evidence on record that the authors were illiterate. His further argument was that assuming that these persons were illiterate the learned trial judge proceeded on the wrong principle of law in placing the burden of proving that the authors appreciated the meaning and import of these documents on the respondent, who did not tender them.

Secondly, counsel contended yet again that the learned trial judge fell into another serious error of law when he placed the burden of proving the validity of those exhibits on the appellants. It was urged that it was this, which led him to misapply the principle enunciated in Kwamin v Kuffour (1914) 2 Ren 808, PC.

Now, in the paragraph 7 of their statement of claim the respondents had alleged that the late Yalley had fraudulently changed the papers covering the land (which originally belonged to their mother and which took on the character of family property

upon her death) into his name. They had gone on to particularise the fraud as such:

“… swearing that the late Ekua Inkuntomponyi gifted the house to him and that he is the customary successor to the late Ekua Inkuntomponyi though he was not the successor and that the said house was not gifted to him.”

In order to prove their assertion that it was this oath which made the Lands Department effect the change and further that these were false statements, they tendered the exhibits, B – B3, which they deposed to have discovered at the Lands Department. They were tendered without objection and the following answer they gave to a question put by counsel for the appellant during cross-examination would suggest that they did not doubt their claim that they discovered the exhibits, B – B3, at the Lands Department.

“Q     You made an official search at the Lands Department in connection with lease No 27-2 Ahanta Road.

A      Yes.”

Exhibit B1 bears the thumbprint of one Tandoh Esson described therein as head of family whilst B2 covers the thumbprint of one Effikesim Mansah described therein as queen mother. The deceased, an illiterate, made exhibit B3.

In the first place, counsel’s claim that there is no evidence that the authors of B1 and B2 were illiterates is unfounded. On the contrary, the prima facie evidence borne out of the documents support such a finding. In both documents the authors did not sign, as in exhibit B3 made by the testator who, as the evidence shows, was literate.

Secondly, contrary to counsel’s submission the judge proceeded on the correct principle of law when he placed the burden of showing that the authors appreciated the meaning and import of the documents on the appellant. Why do I day so? These documents, together with exhibit B3 by the testator, all affidavits made to the Lands Department, were tendered by the respondents in proof of their allegation in paragraph 7 of the statement of claim that the testator had made certain false representations particularly in exhibit B3 to the authorities concerned, ie the Lands Department. In their evidence they had sworn that the property had not been given to the testator.

In addressing court, learned counsel for the appellant had urged the court to accept exhibits B1 and B2 as sufficient evidence supporting the claim made in the affidavit of the late Yalley namely, that he was the beneficiary. The court thus held that though the respondents tendered those documents, the appellant sought to take advantage of the contents and use them to their benefit as “corroborative evidence” in support of the claim made by the testator in his exhibit B3 that the subject matter was granted by a nuncupative will.

Let me first say that it is to the learned judge’s credit that he rejected this argument. I clearly see from the pleadings, particularly the amended statement of defence that their case was not fought on the basis that the defendant had acquired the lease by a nuncupative will. In any event, the learned trial judge did hold, and in my view

quite rightly too, that for the court to accept the contents of these documents made by illiterate persons as the necessary corroborative evidence of an assertion made by the person who now seeks to rely on them he must lead evidence to prove that those whose marks appear thereon, prima facie illiterates, had appreciated the meaning and import of the contents of the documents. In other words, that those documents were read and explained to them. Thus the burden at that stage had shifted on to the appellant. I think this principle, adopted by the learned trial judge, was in line with all the authorities notably Boakyem v Ansah [1963] 2 GLR 223, SC, State v Boahene [1963] 2 GLR 554 where it was held that:

“where an illiterate attests 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.”

Again, in my view the learned trial judge fell into no error when he placed the burden of proving the validity of the exhibits on the appellant. Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC would support the views expressed by the trial judge and which view I have endorsed. The principle enunciated in that case obviously was that where there was no evidence to support the fact that a document thumb printed by an illiterate person has been correctly read over and explained to such a person in compliance with the mandatory provisions of the Illiterates Protection Ordinance Cap 262, 1951 Rev, that document cannot be held to be valid. It follows the appeal based on those grounds must fail.

It was next submitted that the learned trial judge’s finding that the testator had obtained a grant for the benefit of his family was clearly inconsistent with exhibits B1 and B2 and erroneous. Counsel was of the opinion firstly, that because exhibits B1 and B2 contained declarations of the head of family the present respondent, a successor to the declarant, was estopped from denying those declarations against interest contained therein.

I think however that the argument fails for the following reasons. If the appellant would want to maintain that the documents are binding on the declarants and so seek to rely on the assertions contained therein the onus would be on him to prove that they (the declarants) appreciated their full meaning, effect and consequences. The appellant failed to discharge this heavy burden placed on him by reason of these submissions.

Secondly counsel contended that it was wrong for the learned trial judge to have invoked the principles of law enunciated in the following cases: Keech v Sandford (1726) 2 Eq Cas Abr 741, Manukure v Aniapam [1976] 2 GLR 339. His argument was that there existed no fiduciary relationship between the testator and the family necessitating the application of rule in the English case. With respect to the local case he contended that the subject matter was not a pledged property.

The rule in Keech v Sandford (1726) 2 Eq Cas Abr 741, is that where a trustee obtains a renewal of a lease in his name, he will be held a constructive trustee of the new lease. This rule is founded on the principle that a trustee, with certain exceptions, may not either directly or indirectly make a profit from his relationship. The implication is that for this rule to apply there must exist a fiduciary relationship. The rule has however been extended to cover cases where no definite fiduciary relationship exists. Thus, persons who have only partial interest in a lease have been caught by the rule. A partner who had obtained a renewal in his own name did not escape; also in renewals by a mortgagor or mortgagee, joint tenant or tenant in common the rule has been applied. Snell’s Principles of Equity cites the following cases as covering all of these instances: Featherstonhaugh v Fenwick (1810) 17 Ves 298 at 311, Clegg (Glegg) v Fishwick (1849) 1 Mac & G 294, Clegg v Edmundson (1857) 8 De G M & G 787 at 807, Leigh v Burnett (1885) 29 Ch D 231, Palmer v Young (1684) [1903] 2 Ch 65n, Hunter v Allen [1907] 1 I R 212.

In Re Biss,  Biss v Biss, [1903] 2 Ch 40 the court examined the scope of the rule in Keech v Sandford supra. The learned justices affirmed the view that the existence of a fiduciary relationship was not a sine qua non to the operation of the rule. They however refused to be swung to the other extreme and so reduced it to a general proposition of law, that if any person partly interested in an old lease obtained a renewal from the lesser in his own name, he must be held a constructive trustee of the new lease regardless of the nature of his interest or the circumstances under which he obtained the new lease. The court thus stated the position of the law (which I adopt) as follows:

“There is no authority for the general proposition that if a person only partly interested in an old lease obtains from the lessor a renewal, he must be held a constructive lessee, whatever may be the nature of his interest or the circumstances under which he obtained the lease. A person renewing is held to be a constructive trustee of the new lease if in respect of the old lease he accepted some special position by virtue of which he owed a duty towards the other person’s interest.”

Romer LJ in his speech at page 60 cited some of these special circumstances, which have always prompted a court of equity to act. He said:

“I may also add that some of the decided cases where persons not in a fiduciary position obtaining renewals have been held to be constructive trustees depend upon the fact that these persons acted fraudulently in the matter, as for instance by representing to the lessors or by inducing or allowing the lessors to believe that they were acting in interest of these entitled to the old lease.”

The learned justice in conclusion then found for the appellant and held that he cannot be deemed to be a trustee of the new lease he had obtained in his own name because among other things, and in the words of the learned justice “he has been guilty of no fraud.”

The law as I understand it then, is this that in those cases where these is no definite fiduciary relationship between the parties, the circumstances under which lease renewals came to be obtained is very important. So also the nature of his (lessee) interest, and the position if any that he held with respect to the old lease. Thus if the new lessee obtained it fraudulently, if his conduct was unfair if he used tricks or subterfuge or if in one way or the other used his position unfairly to intercept any advantage or benefit coming the way of the original lessee, equity will not lend him her aid, but will intervene and treat the lessee as a constructive trustee. To my mind any unconscionable conduct on his part will not help him, but rather worked to his advantage.

Into what category then, does the appellant fall? I think, looked at from every point of view he is squarely caught. The respondents led evidence to show that well before the expiry of the actual lease in 1959, that is by June 1950 he had falsely represented to the lessors that he was the beneficiary of the property in question. At this time the property was family property. The appellant led no evidence to rebut this evidence of the respondents. The evidence of the respondents again does show the lessors no doubt believing the claim and caused the documents of the property to be changed into his name. We have no evidence from the appellant showing why the change was made into his name before the expiry of the lease, and thereafter they continued to deal with him as such. So we find them writing to him in 1959 as per exhibit D2 describing the lease which is supposed to be for the family as his lease, in the letter “your lease.” They even reminded him of a covenant he made which he was supposed to have complied with some three years earlier, ie in October 1956. By October 1956, the family’s interest in the property had not extinguished. If it were not for exhibits B1 – B3 particularly exhibit B3 how come the lessors described the lease as his!

When we come to ask ourselves whether he held any special position in the family the answer would be in the affirmative. The evidence does show that although it was family property the testator alone built on it. His sibling was illiterate. The women were fishmongers. Indeed the respondent’s evidence that all matters connected with the property, which were channelled through him was not rebutted by evidence. There is again the evidence that the family knew of the invitation by the lessor to renew.

I think all the circumstances of this case justify a finding that he held the property in trust for the family and the interest he had was only limited to his lifetime. Again it seems to me that Manukure v Aniapam (supra) was decided on the same equitable principles of law.

Bearing in mind the facts of this case, particularly that though the land was family land, at the expiry of the lease he failed to inform them of the renewal, I think the learned trial judge fell into no error in his application of the law. In my view the appeal on those grounds also fails.

Another criticism levelled against the learned trial judge is this that exhibit B1 – B3 referred to house No 92-5 North West Block Takoradi when the property is described as No 27/2 Ahanta Road Takoradi. Counsel’s argument is that since there was no evidence on the record that No 92-5 is the same as No 27-2 the judge’s reliance on exhibit B3 and indeed other documents bearing No 92-5 is erroneous. On the face of it, this would appear to be a minor point but in reality it is a fundamental question. If the two numbers do not pertain to the same property then the finding that he obtained the lease on behalf of the family would clearly not be borne out by the record.

But in my view the attack on the learned judge is unjustified for there is overwhelming evidence on the record that the two houses are the same, No 92-5 being the original number of the plot of land on which No 27/2 stands. Paragraph 5 and 6 of the statement of claim reads as follows:

“5 The said house was originally a swish house built on plot No 92 which plot was leased to Ekua Inkuntomponyi.

6 After the death of Ekua Inkuntomponyi the 2nd plaintiff and Esson Kumah another daughter…And Thomas Yalley converted the swish house and was then numbered 27/2 Ahanta Road. The appellant’s statement of defence confirmed the above fact.

7 The defendant’s father in accordance with the covenants of his lessor constructed a substantial building on the said plot without any member of his family and dealt with the said house (now numbered 27/2 Ahanta Road) as his own property until his death.”

In any case the whole of the appellant’s case does show that the identity of the subject matters at all material times was never in doubt or even more importantly was in issue.

In the circumstances the appeal on this ground must also fail. In conclusion I will dismiss the appeal and affirm the judgment of the court below.

BENIN JA. The facts in this case are not in serious dispute at least as far as this appeal goes. I will rely on the trial court’s findings of fact which are accepted by both sides and which I have not had any reason to depart from. In 1929 the Government of the then Gold Coast granted a 25-year lease of the plot in dispute to one Ekua Inkuntomponyi, deceased. This woman built a swish house on the plot in her lifetime before her demise in 1939. The lease was to expire in June 1954 and thus revert to the Government. But the Government decided on its own, without any application being made to it, to extend the lease for another twenty years. The letter calling upon the lessee to come for the extension was addressed to Amos Thomas Yalley Snr deceased a son of Ekua Inkuntomponyi. The said Thomas Yalley Snr accepted the offer of renewal and actually renewed the lease in his name, obtained a building permit, pulled down the old swish house and built a two-storey house in its place. He exercised all acts of ownership over it till his death. He devised it to his children in his will and this sparked off the present action when his family resisted the devise on ground that it was family property.

Paragraph 7 of the statement of claim contains the meat of the plaintiff’s action and I reproduce same here:

“The said house had since its conversion, been recognised as family house till after the death of Amos Thomas Yalley when a search conducted revealed that Amos Thomas Yalley had fraudulently changed the papers into his personal name, after swearing that the late Ekua Inkuntomponyi gifted the house to him, and that he is the customary successor to the late Ekua Inkuntomponyi though he was not the successor and that the said house was not gifted to him.”

The defendant’s answer to the allegation of fraud is contained in paragraph 6 of his amended statement of defence as follows:

“Paragraphs 6, 7 and 10 of the statement of claim are denied and plaintiff avers that long after the death of Ekua Inkuntomponyi in 1939 the defendant’s father applied for a lease of the same land and after protracted correspondence and negotiations with the Lands Department a lease dated 9-10-54 of the said plot of land was granted to the defendant’s father after the expiry of Ekua Inkuntomponyi’s lease.”

The allegation of fraud raised in paragraph 7 of the statement of claim was very specific and in detail and thus the defendant was expected to answer it in detail and not by a mere denial. By the mere denial the defendant is understood to be saying that his father did not alter the papers on the house into his name before the lease expired and that he never swore that the house was gifted to him by his mother and so plaintiff should prove same. Thus at the close of pleadings the question of gift was completely out of consideration and so was the question of Amos Thomas Yalley having altered the papers on the house into his own name. The defence was therefore that the late Amos Thomas Yalley only obtained the lease after the one for Ekua Inkuntomponyi had expired. In my view the issue the trial court had to consider and which it rightly did was whether in fact the late Amos Thomas Yalley caused a change to be made in the ownership of the lease into his name even before it expired and that this influenced the lessor to deal directly with him in respect of this plot. If that was done, then it would be a fraud on the family in view of defendant’s denial that Amos Thomas Yalley even did such a thing and it would also go to support plaintiff’s contention that the family was not consulted about the change and only became aware of it aware of it after his death. No doubt the burden of proving fraud rests on the plaintiff.

The trial court upheld plaintiff’s claim having found that those who purported to support Amos Thomas Yalley’s claim of ownership of the plot by nuncupative will were illiterates who could not be deemed to have understood the contents of the documents and that Amos Thomas Yalley took the new lease as trustee for the family and that he only had a life interest in the building he erected on the plot.

The defendant appealed on the following grounds:

“(1) The judgment is against the weight of evidence.

(2) The judgment was based on wrong principles of law.

(3) The learned trial judge failed to evaluate the evidence properly.

 (4) The learned judge misconstrued the import of exhibits B1 and B2.

 (5) The learned judge made erroneous findings which did not arise either from the pleadings or on the evidence.

(6) The learned judge misdirected himself as to issues for

determination before the court.

(7) The learned judge misapplied the principle in Ansah v Sackey (1958) 3 WALR 325.

(8) The plaintiff’s action ought to have been dismissed on the basis of the Limitation Decree.

(9) The learned judge misconstrued the evidence on record.”

It appears from the arguments put forward before this court that both counsel dwelt at length on those exhibits which spoke about the gift. There were exhibits B1, B2 and B3. Exhibit B purports to have come from one Tandoh Esson, head of family and on it is his mark. Exhibit B2 purports to have come from Effikesim Mansah described as queen mother and she also made her mark. Exhibit B3 comes from Amos Thomas Yalley who as an educated person signed it. These three exhibits dated June 1950 all spoke of a gift by a dying declaration to Amos Thomas Yalley. The plaintiff contends nothing of the sort existed and that the family only became aware of these exhibits after the death of Amos Thomas Yalley. Counsel for the appellant submitted that the trial court’s finding that the authors of exhibits B1 and B2 were illiterates was erroneous because there was no such evidence and that the court erred in rejecting the contents of these documents since they were tendered by the plaintiff himself. He submitted further that these exhibits confirmed the ownership of the building in defendant’s father.

I think I have already referred to the pleadings whereby the defendant denied any such document was made. I am prepared in view of counsel’s reliance on them, to say that by the pleadings the defendant was only denying the fraudulent allegation in respect of those documents. But the plaintiffs tendered those documents in support of their contention that no such thing was authorised by the family and that the family was not aware of them until Amos Thomas Yalley died. The trial court made very positive findings accepting the plaintiff’s position. These findings could not be challenged. And indeed the defendant led no evidence from which this court could draw the inference that exhibits B1 – B3 were authorised by or known to the family at the time. Thus at the end of the day the plaintiff had successfully established the falsity of exhibits B1 – B3. The trial court found as a fact that exhibits B1 and B2 were made by illiterates and it went on to state the law in respect of documents executed by illiterates. Section 4(1) of the Illiterates Protection Ordinance, Cap 262 (1951 Rev) enacts that:

“Every person writing a letter or other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall –

(1) clearly and correctly read over and explain such letter or document or cause the same to be read over and explained to the illiterate person.”

In Fori v Ayirebi [1966] GLR 627 at page 643, where the Supreme Court found that on their face there was nothing to show that the contents of the receipts were carefully read, interpreted and explained to the illiterate signatories thereto as required by s 4(1) of Cap 262 and that they perfectly understood the same before their marks were made thereto, and as no evidence was led to prove these requirements, the court rejected the documents. The trial court rightly rejected the contents of those documents. Be that as it may the defendant himself never relied on a gift under these documents. There was thus no gift to the deceased Yalley and these documents namely exhibits B1, B2 and B3 did not represent the truth and so even if made by the authors were fraudulent of the family who did not authorise it. At that stage the plaintiff had established his case because following the death intestate of Ekua Inkuntomponyi the house had become family property and anybody who dealt with it in any manner whatsoever did so for the family.

At this stage the defence comes into play. The defendant is saying that his father took the lease when that for Ekua Inkuntomponyi expired. But was that really true? As far as the evidence goes the first communication in respect of the expiry of the lease is exhibit D2 a letter dated 26 March 1954. This was written by the Lands Commission and addressed to A T Yalley. The first two and last paragraphs are pertinent and they read:

“I write to remind you that your lease of the above plot expires on 9 June 1954 and accordingly at that time the land and building on it revert to Government.

Government is however prepared to grant you a new lease for a term of twenty years at a ground rent of £5.0.0d per annum …

I shall be obliged if you will let me have your acceptance or otherwise of the above terms at your early convenience.”

On 22 June 1954, A T Yalley personally wrote to accept the terms offered in the exhibit D2. The parties agree that the original lease was in the name of Ekua Inkuntomponyi and exhibit “1” clearly confirms this. One would therefore expect that all correspondence on this plot would bear her name. How come then that the Lands Commission offered the renewal to A T Yalley describing him as the lessee even when the original lease had not expired? The defendant offered no explanation for this. The plaintiff explained that the family allowed A T Yalley to deal with this property on its behalf. Even though there is evidence there were other educated members of the family besides A T Yalley that does not derogate from the fact that A T Yalley was the one dealing with this property for the family hence the correspondence with him by the Lands Commission. Therefore when the Commission wrote to him to renew the lease it was not inviting him to take it up as a new lease altogether. He can never equate renewal with a fresh grant. When one is to renew a lease it can only mean that the lessee is to renew a lease which is already in existence and is about to expire. And in that respect the renewal shall be between the same parties. This A T Yalley could only renew in the name of Ekua Inkuntomponyi or the family which then owned the property. He could only take it for himself with the knowledge and consent of the family but there is no evidence that the family even knew he was taking the lease for himself. The fact that he pulled down the old structure and erected a new one in its place is not evidence the family had given him consent to take the plot for himself.

The plot was family property so the principle in Ansah v Sackey (1958) 3 WALR 325 was applicable that having built on family land A T Yalley acquired only a life interest in the building. Upon his death it became full family property. So whilst he lived he could rent the rooms out and keep the rents or decide what to do with them, the only prohibition being that he could not dispose of it or will it away without the family’s consent. And even if A T Yalley took a fresh lease he only did so for the family. For as held in Boafo v Staudt reported at pages 183 – 186 of Ollennu’s Principles of Customary Land Law in Ghana, even a re-purchase of lost family land by a member of family was deemed to have been done for the family, re-purchase being analogous to a redemption by a member of the family of family property held on mortgage.

I will like to comment briefly on the submission made by counsel for the appellant that exhibits B1 and B2 had no bearing on the triable issues and that no issue of a nuncupative will arose on the pleadings. Counsel’s argument is right to the extent that the defendant did not rely on a gift or nuncupative will for his root of title. That being so it behoved him to explain how it happened that the Lands Commission dealt with A T Yalley even before Ekua Inkuntomponyi’s lease had expired and before the Government had taken the decision not to forfeit the lease. I must state here again that those exhibits were introduced by plaintiff to prove that they were sent to the Lands Commission to effect a change of ownership to A T Yalley when he knew the contents were, false. And apart from these false documents which must have enabled a change of ownership to take place, the only other reason whereby A T Yalley could have dealt with the Lands Commission was what the plaintiff explained that the family allowed him to act for it.

The defendant carefully and cleverly abandoned his original stand of a gift based on those documents and relied on a new lease. But it must be noted that when the Lands Commission wrote to him by exhibit D2 they referred to the fact they were dealing with him in connection with “your lease.” Which lease was it apart from Ekua Inkuntomponyi’s lease and for that matter A T Yalley’s family’s lease? Thus the defence that A T Yalley only took a lease after the expiry of the old one could not be true, his name was already there as the lessee and this called for an explanation from defendant which as I said he cleverly avoided. He did so because it would have been his duty to rely on exhibits B1 and B2 and therefore prove that the illiterate authors understood and approved the contents before making their marks thereto.

The burden is on the party relying on a document made by an illiterate to prove that it was read over and if necessary interpreted to him or that at least he apparently understood it. So it is therefore understandable why the defendant did not seek to rely on exhibit B1 and B2. And having failed to rely on these exhibits which go to establish a gift by nuncupative will, then I will again and finally ask the defendant to answer how come that A T Yalley’s name got into the Lands Commission’s records as the lessee of the plot even before Ekua Inkuntomponyi’s lease had expired? The defendant provided no answer. The plaintiff did by saying it was by exhibits B1, B2 and B3, which were false and fraudulent of the family. I therefore do not see how the trial court’s conclusion could be faulted. I dismiss the appeal accordingly.

LAMPTEY JA. On the death of Amos Yalley his family discovered that he had left a will in which he bequeathed house No 27/2, Ahanta Road, and Takoradi to his son Amos Yalley Jnr. The family claimed that both the land and the building on it were family properties. Accordingly the family acting by Ebusuapanin Kwasi Kell as plaintiff sued Amos Yalley Jnr as defendant and sought a declaration that house No 27/2 Ahanta Road was family property. The trial court dismissed the claim that the building was family property. It held that the building was the self-acquired property of the late Amos Yalley. It entered judgment for the plaintiff and declared that the land was family property. The plaintiff had no complaint against the judgment of the court. The defendant was aggrieved and dissatisfied with the declaration that the land was family property. He appealed to this court against the judgment. Before us, it became clear that the appeal related only to that part of the judgment, which declared that the land was family property.

The first ground of appeal argued by counsel for the defendant was that the trial judge misconstrued the import of exhibits B1 and B2. He complained that the trial judge erred in law when he held that the defendant failed to prove that exhibits B1 and B2 were the act and deed of the two authors. He submitted that that burden fell squarely on the shoulders of the plaintiff. He submitted that the trial judge misdirected himself on the issue of the evidential value of exhibits B1 and B2. He complained that the trial judge erred in law when he held that the defendant failed to prove that exhibits B1 and B2 were the act and deed of the two authors. He submitted that that burden fell squarely on the shoulders of the plaintiff. I must observe that counsel for plaintiff did not advert to this criticism of the trial judge.

In the instant case the two documents, exhibits B1 and B2, were tendered in evidence without objection by the plaintiff’s attorney, Paul Asankuma to support and establish the case and claim of the plaintiff. If the documents were found to be defective or wanting in any respect, it is the party that put them in evidence who assumed the burden of making good the defect. Since it was the plaintiff’s attorney who tendered exhibits B1 and B2 in evidence, he assumed the burden of satisfying the court that the two authors knew and understood the contents of those documents and thereafter affixed their thumbprints thereto. I find that the trial judge erred in law when he expressed the opinion following on this issue:

“… the defendant led no evidence to prove that Tandoh Esson and Effikesim Mansah head and queen mother respectively of the family … (illiterate persons) whose marks appear on exhibits B1 and B2 appreciated the meaning and effect of the said documents before they made their marks.”

The burden referred to by the trial judge fell squarely on the shoulders of the attorney for the plaintiff. He had put into evidence the documents, exhibits B1 and B2. Indeed any objection to the admissibility of exhibits B1 and B2 was the special right and