EBENEZER ANTWI BAWUA vs. KWABENA KYEREMEH & CUDJOE KYEREMEH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2016
EBENEZER ANTWI BAWUA - (Plaintiff/Appellant)
KWABENA KYEREMEH AND CUDJOE KYEREMEH - (Defendants/Respondents)

DATE:  19TH JULY, 2016
CIVIL APPEAL NO:  H1/25/2016
JUDGES:  E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
LAWYERS:  MR. TUAH YEBOAH FOR PLAINTIFF/APPELLANT
MR. ALEXANDER AMPONSAH FOR DEFENDANTS/RESPONDENTS
JUDGEMENT

AYEBI, JA

1. On 17th May 2012, the plaintiff/appellant (hereinafter referred to as plaintiff) sued the defendants who are a father and a son (hereinafter referred to as defendants) for:

(a) A declaration of title and recovery of possession of one of the three (3) plots on Plot No. 21A, South Industrial Estate, Block “F” Sector 7, Sunyani which the 1st defendant sold to the plaintiff which the 1st and 2nd defendants are now laying adverse claim to.

(b) An order to eject the 2nd defendant from the plot in dispute.

(c) An order of injunction to restrain the defendants, their agents, assigns etc. from laying adverse claim to the disputed plot or any part thereof.

 

2. By an amended statement of defence filed on 25th June 2012, the 1st defendant counterclaimed for:

(a) Declaration of title and recovery of possession of all the Industrial Plot No. 21 Block “F” South Industrial Area, Sunyani.

(b) Declaration that any purported sale of portion of the 1st defendant’s Industrial Plot No. 21 Block “F” South Industrial Area Sunyani to the plaintiff is null and void.

(c) An order of injunction to restrain the plaintiff, his agents, assigns, tenants etc. from dealing with the 1st defendant’s Plot No.21 Block “F” Industrial Area Sunyani or any part thereof.

 

3. At the trial as pleaded by the plaintiff he tendered two documents signed by 1st defendant to show that the 1st defendant and his son who is PW1 in the case, indeed sold to him three plots. The 1st defendant pleaded non est factum. He denied that the transaction between him and the plaintiff was a sale but a contact of guarantee which allowed his son PW1 to secure the debt he owed to the plaintiff. Apart from other collateral issues determined, the main issue which called for determination was whether or not the transaction between the parties was a sale or a contract of guarantee and the 1st defendant could properly plead non est factum in the circumstances.

 

4. The trial judge after evaluation of the evidence as a whole concluded that the plea of non est factum was available to the 1st defendant. He thus accepted the evidence of the 1st defendant that the property was released to the plaintiff as a collateral security for the debt PW1 owed him. Consequently, the trial judge dismissed the claim of the plaintiff. He also denied the 1st defendant his counter-claim because Plot No. 21 Block “F” South Industrial Area, is owned by K. K. Kyeremeh Sawmills, a limited liability company, which the 1st defendant cannot claim as his personal property. He awarded cost in favour of the 2nd defendant who has not made a counter-claim.

 

5. Against the judgment, the plaintiff appealed on 2nd April 2014 on the grounds that:

(a) The judgment is against the weight of evidence adduced before the court.

(b) The trial judge failed to appreciate the issues at stake properly and wrongfully entered judgment against the plaintiff/appellant.

(c) The trial judge failed to appreciate the plaintiff’s case properly and went ahead to dismiss the plaintiff’s case against the defendants inspite of abundant evidence on record that the property was sold to the plaintiff/appellant.

 

6. In this case both parties have claimed declaration of title to the disputed land and an order of injunction against each other. In a civil proceeding, as stipulated, s.11(4) of the Evidence Act 1975 (NRCD 323) put the obligation of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. The plaintiff having led that kind of evidence in favour of his claim, the onus is shifted to the defendants to lead that kind of evidence that would tilt the balance of probabilities in favour of their counter-claim – see Fosua and Adu-Poku vrs Dufie (deceased) and Adu-Poku Mensah [2009] SCGLR 310, holding (2).

 

7. As regards a claim for declaration of title to land, it is reiterated in Tetteh & Or. vrs Hayford (substituted by) Larbi & Decker [2012] 1 SCGLR 417 at holding (3) that it is the plaintiff who bears the burden of establishing the identity of the land he is laying claim to. Failure to prove this identity is fatal to the claim for declaration of title. Where there is a claim and a counter-claim in action, the burden of proof is stated in Jass Co. Ltd. vrs Appau Or. [2009] SCGLR 265 in holding (1) thus:

 

“The burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counter-claimed, and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed. Whenever a defendant also files a counter-claim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant, just as it was used to evaluate and assess the case of the plaintiff against the defendant. In the instant case, the defendants had counter-claimed and that meant that they also assumed the position of the plaintiff in respect of their counter-claim”.

 

8. In the judgment of the trial judge, he dismissed the claim of the plaintiff and also went on to dismiss the counter-claim of the 1st defendant. By the judgment of the trial judge therefore, there technically was no winner except 2nd defendant. But the plaintiff has appealed against the judgment on three grounds. In the written submission, counsel for the appellant argued ground (c) first. I will however, determine all the grounds of appeal together.

 

9. The ground one states that “the trial judge failed to appreciate the plaintiff’s case properly and went ahead to dismiss the plaintiff’s case against the defendants’ inspite of abundant evidence on record that the property was sold to the plaintiff/appellant”. I do not find this ground of appeal elegant in terms of the Rules of Court. A ground of appeal which is argumentative or a narrative is forbidden in Rule 8(5) of C.I. 19 as amended. So the ground of appeal that “the trial judge failed to appreciate the plaintiff’s case properly and went ahead to dismiss it in spite of the abundant evidence on record that ...” is clearly argumentative. The ground thus smacks of a submission made in a written submission in support of a ground of appeal. To save the ground of appeal I will in the exercise of the general powers of the court suo motu amend it to read “that the trial judge failed to appreciate the plaintiff’s case properly and went ahead to dismiss the plaintiff’s case against the defendants”.

 

10. According to the facts, Plot No. 21 Block “F”, South Industrial Area, Sunyani was leased to K. K. Sawmills Ltd. acting per Kwabena Kyeremeh for fifty (50) years. The land is an industrial plot consisting of 2.9 acres. 1st defendant installed sawmill machines on portions of the land which he had handed over to his children to operate. Obeng Kwame (PW1) one of the sons of the 1st defendant built two houses on portions of the land.

 

11. The case of the plaintiff is that the 1st defendant and PW1 offered three (3) plots of the land to him for sale. He said he accepted the offer and paid GH¢22,000.00 as consideration to the 1st defendant in 2006. But in the document the 1st defendant prepared as evidence of the transaction, he made it a deed of gift in which he was described as a nephew of the 1st defendant. Rather than a sale, 1st defendant stated that he gifted the plots to plaintiff as a result of plaintiff’s devoted services to him. He said the document was interpreted to the 1st defendant by PW1, his son and he thumb printed it. Plaintiff said he signed his column. Their witnesses also signed. The deed of gift is Exhibit B at the trial.

 

12. Plaintiff stated that despite the execution of Exhibit B, on second thought, there could be problems in future with the children of the 1st defendant because he actually paid for the plots. So he went back to the 1st defendant and demanded a proper receipt stating that he had bought the plots and paid fully for them. That receipt is Exhibit A, which the 1st defendant thumb printed and Kwame Obeng (PW1) witnessed. After the purchase of the plots with the buildings thereon, the plaintiff said he went into full possession. He rented eight (8) rooms in the buildings to Polytechnic students. In 2010, he went back to his base in America. On his return in 2011, the 2nd defendant Kudjoe Kyeremeh, another son of the 1st defendant, rented a portion of the land he bought and paid GH¢100.00 per month for nine months. But 2nd defendant failed to pay further rents to him despite his repeated demands.

 

13. When he demanded the reason for his failure to pay the rent, 2nd defendant told him that 1st defendant advised him not to pay. When he demanded an explanation from 1st defendant, he stated that although he bought three plots, he will give him only two. All attempts to prevail on the 1st defendant to change his mind failed, hence the suit.

 

14. The 1st defendant denied the claim of the plaintiff completely. His case is that in February 2006, his son Kwame Obeng (PW1) informed him that he had incurred a debt and his creditors were on his neck. Kwame Obeng therefore said he wanted to use the two buildings he has on the land as a security for the debt. After some persistence by Kwame Obeng, he allowed him to use the buildings to secure the debts. He thus denied that he was paid any money at all by the plaintiff as consideration for the sale of the plots.

 

15. On Exhibit A and B, the 1st defendant alleged that they were prepared by the plaintiff and Kwame Obeng. And before he signed them, they made him believe that he was granting consent for the buildings to be used as a security for the debt to the plaintiff. So although Kwame Obeng read the documents to him, he was deceived as to the contents or the nature of the transaction. He thus pleaded and relied on the doctrine of non est factum as he is an illiterate. This is the basis of the 1st defendant’s counter-claim.

 

16. Now the trial judge in his judgment went out of his way to determine the identity of the land being claimed by the plaintiff. I say he went out of his way because when counsel for the plaintiff challenged the evidence of DW1 about the identity of the land, counsel for the defendants stated that “there is no doubt about the number of the plot and we are all in agreement that the plot in dispute is plot No. 21”. Further, counsel for the defendants added that “We are saying the identity of the plot is not in dispute, we all admit that but as to the plot number is what we are talking about before this court”.

 

17. Inspite this submission by counsel for the defendants on the identity of the land which bound the court, counsel for the defendants in this appeal has submitted that the identity of the plot/land the plaintiff claims has not been proved. In Anane vrs Donkor [1965] GLR

188 at 192, the court stated that:

 

“Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated, the person in contempt can be punished”.

 

18. The principle or statement was upheld and applied in Nartey (No.3) vrs African Institute of Journalism and Communcation (No.2) [2013/14] 1 SCGLR 703. So the need for the plaintiff to prove the identity of the land he claims cannot be underestimated. But where there is a categorical admission by the defendants that the identity of the land is not in doubt/dispute the plaintiff is absolved of the onus to prove the identity by leading further evidence.

 

19. It is however necessary to place on record what the claim of the plaintiff is in this suit. The case of the plaintiff is that he bought three plots out of the 1st defendant’s industrial plot No. 21, Block F, South Industrial Layout Sunyani, as per Exhibit 1 the lease. The three plots as one block is Numbered 21A, South Industrial Estate. But the 1st defendant has taken back one out of the three plots, hence his claim for declaration of title and recovery of possession of that one plot which is part and parcel of plot numbered 21A. In Exhibit B, the Deed of Gift, Plot No. 21A has been fully described. PW1 and 2nd defendant in their evidence described the block of three plots as numbered 21A. The court accepted that the identity of the plot is not in doubt. The defendants have not cross-appealed against that finding by the trial judge. It should therefore not be countenanced as an issue in this appeal.

 

20. There is also the issue of whether or not it was plots of land or buildings which the plaintiff bought. This is because while the plaintiff talked of purchasing three plots of land, his witnesses PW1 and PW2 talked of valuation of two buildings owned by PW1 on the land and the offer by PW1 to sell them through PW2 to the plaintiff. It is submitted for the defendants that since the evidence of PW1 and PW2 corroborate the evidence of the 1st defendant that it was the two buildings which were the subject-matter of the transaction but plaintiff’s claim stands uncorroborated, the court rightly preferred the evidence of the defendants. This principle first enunciated in Tsrifo vrs Dua VIII [1959] 63 was followed in Yaw vrs Domfeh [1965] GLR 418 as well as Asante vrs Bogyabi [1966] GLR 232. It is however not an inflexible principle in its application. This is because where there appears on the record a good reason to reject the corroborated evidence, the court is free to do so. For example where the corroborated version of the evidence is incredible or an impossibility a court of justice must refuse it.

 

21. In the original statement of defence of the defendants, the 1st defendant talked about plots of land which he allowed PW1 to use as a security for the debt. When he amended his statement of claim and added a counter-claim, he changed plots to buildings. But in Exhibits A and B, whose authorship he is denying, the subject-matter of the transaction was described as plot No. 21A. Yet still in his evidence to the court, the 1st defendant no more talked about two buildings/houses but two rooms only.

 

22. If there is any inconsistency in the evidence of plaintiff and his witnesses about the subject-matter of the sale, it is worse off in the evidence of the 1st defendant himself about the subject-matter of the transaction between him and the plaintiff. But then, the practical reality is that, the buildings which contain the rooms are situated on a piece of land and for that matter a plot. The buildings even if they are storey buildings, do not hang in the air. They have their foundation on the land on which they are situated. It is therefore impossible for the 1st defendant to exclude the piece of land on which the buildings are situated from the sale to the plaintiff. We hold that the plaintiff’s claim that it was a block of three plots which was the subject-matter of the transaction is made out.

 

23. Then what is the relevance of Exhibit B, the Deed of Gift at the trial. In the Deed of Gift, plaintiff was described as the nephew of the 1st defendant and that the 1st defendant gifted plot No. 21A to him (plaintiff) for his devoted services to him (1st defendant). The document was duly executed by the parties and their witnesses. The evidence of plaintiff, corroborated by his witnesses is that, on second thought, there could be problems in future with that document because apart from the fact that he was not the nephew of the 1st defendant, 1st defendant did not gift the land to him because he paid for it.

 

24. It is this realization that the Deed of Gift did not and cannot secure his real interest in the land in future that he went back to the 1st defendant for a proper receipt, stating the true facts of the transaction between them. This is the reason why Exhibit A was executed by the 1st defendant barely one month after Exhibit B. At the trial, Exhibit B was described by defendants as the root of title of the plaintiff and because of the misrepresentation of facts known to all the parties it was described as fraudulent. Thus the trial judge held the view that even if the sale of the land was regular, it could not be enforced because it is tainted with an illegality which public policy decries – see Addy vrs Irani [1991] 2 GLR 30 and Schandorf vrs Zeini [1972] 2 GLR 418.

 

25. If indeed the plaintiff tendered Exhibit B in support of his claim, then it is not only fraudulent but also contrary to plaintiff’s own evidence on the transaction. However, the evidence of the plaintiff and his witnesses show clearly that Exhibit B was rejected by the plaintiff without equivocation. It was only tendered to show the antecedents of the transaction which led to the execution of Exhibit A later. No weight therefore should have been placed on it as a foundation in determining the rival claims of the parties as the trial judge has done. For the same reason, failure to call Lawyer Asomah Kyeremeh who on the face of Exhibit B prepared it to testify as a material witness is not fatal to the plaintiff’s case.

This is because by pleading non est factum even of Exhibit A, the 1st defendant has not only denied the transaction of sale but also of a gift.

 

26. Before I determine whether or not the plea of non est factum is available to the 1st defendant as the trial judge has held, there is need to determine whether the plaintiff paid any monies at all and whether the monies amounting to GH¢22,000.00 got into the hand of the 1st defendant. In the pleadings of the defendants, the 1st defendant denied variously, receipt of any money as payment for the plot of land. 2nd defendant who according to him knew nothing about the transaction, supported him. Both at the trial court and in this court, counsel for the defendants founded his defence solidly on this denial.

 

27. In his submission, counsel for the defendants pointed out in detail the contradictions and inconsistencies in the mode of payment of the money in the evidence of the plaintiff himself, PW1 and then PW2. I concede there are manifest contradictions and inconsistencies. I need not go into them. But then does that mean that plaintiff paid no monies towards the purchase of the plots as he claims? Why then is he in possession of the land and deriving income from it?

 

28. It is clear on the evidence that the 1st defendant set out and denied every material fact, even non-contentious ones. He denied the plaintiff is his nephew and he ever stated so. He denied vehemently that he knew the plaintiff contrary to his pleadings which showed that he interacted with the plaintiff and PW1, his son, on a number of occasions. The plaintiff gave evidence that on one occasion the 1st defendant sent his daughter with a note for five million cedis from him. On another occasion, in the company of his wife, the 1st defendant came to his poultry farm for five million cedis.

 

29. Although the 1st defendant as usual denied these specific instances of receipt of money from plaintiff, the evidence of DW1 gave him away. DW1 was a former Inspector General of Police and an Ambassador. He said the 1st defendant is his nephew. He said he summoned a meeting of the family when he heard about the claim of the plaintiff against the 1st defendant. At the meeting, a daughter confessed she was sent to collect some money from the plaintiff. An interested party that he is, DW1 stated that it could not be established that the girl indeed collected the money from the plaintiff.

 

30. The trial judge accepted this evidence of DW1 that 1st defendant received at least some money from the plaintiff without further proof. He considered that evidence of DW1 as an admission which needed no proof – see Hammond vrs Amuah [1991] 1 GLR 89 and Atadi vrs Ladzekpo [1981] GLR 218, CA. He however concluded that the admission does not change the position that the buildings were to be used as a collateral for a loan from the plaintiff. What the trial judge left undetermined is the purpose for which the 1st defendant sent his daughter to collect money from the plaintiff or he personally collected five million cedis from the plaintiff on his poultry farm. From the evidence, those monies cannot be gratuitous gift from the plaintiff since there is no relationship at all between them. Those monies must be given out by the plaintiff in respect of some transaction, which is the sale of the land.

 

31. The trial judge held that the buildings were used as a collateral for a loan from the plaintiff. I think the facts of this whole case must be straightened. The sale of the land or buildings was initiated by PW1 for his own benefit. According to PW1 he incurred a business debt. He therefore sought the permission his father to sell the land on which the two buildings are (built by him) to raise money to pay off his debts. According to him 1st defendant agreed, hence the offer to the plaintiff who purchased it. It is therefore not correct to say that the buildings were used as a collateral for a loan. PW1 did not ask for a loan from the plaintiff.

 

32. The question is does the evidence on record support the case of the 1st defendant?

According to Black’s Law Dictionary, 8th Edition, a collateral is “property that is pledged as security against a debt”. The same dictionary define “security” as a “collateral given or pledged to guarantee the fulfillment of an obligation, especially an assurance that a creditor will be repaid (usually with interest) any money or credit extended to a debtor”.

 

33. As I explained, the debt PW1 incurred was not owed to the plaintiff. So plaintiff had no need of a collateral security from anybody. Although PW1 said he told 1st defendant that the debt he incurred amounted to eighty million cedis (now GH¢8,000.00), 1st defendant said he was not told and so he did not know. Beyond the mere averment that the plaintiff was to use the buildings as a security for the loan, the 1st defendant failed to state the terms and conditions of the security.

 

34. However, on the ground, the plaintiff had been in possession of the buildings and the adjoining land since 2006. The plaintiff has caused structural changes to be done to the building and has put up new rooms. He has rented the rooms to Sunyani Polytechnic students. He has also rented a portion of the adjoining land to 2nd defendant for almost a whole year. The plaintiff is therefore in full beneficial enjoyment of the land but for how long, nobody can tell. But until the plaintiff has sued the defendants for declaration of title and recovery of possession of the one plot occupied by the 2nd defendant, the defendants did not see the need the restrain the activities of the plaintiff on the land.

 

35. Clearly the activities of the plaintiff especially the structural changes he made to the buildings, are inconsistent with a contract of suretyship or guarantee or a creditor in possession of a collateral security. The plaintiff’s possession and control of the land cannot be in pursuance of a mortgage transaction. This is because per provisions of s.1(2) of the Mortgage Act, 1972 (NRCD 96), a mortgage of a property is only a charge on the property. Neither ownership nor possession is in the mortgagor. Similarly in a pledge transaction especially of an income yielding immovable property, only possession is parted with by the pledgor. Since the pledgor retains ownership of the property the pledgee in possession is not allowed to make improvements to the property. The pledge in such cases is for a duration certain and the pledgee is accountable. Thus since the plaintiff’s possession and enjoyment of the land with the buildings is not in accordance with a collateral security transaction or a mortgage or a pledge, the conclusion I draw is that the transaction between him and 1st defendant was an outright sale of the land as the evidence portrayed. The trial judge erred in finding otherwise.

 

36. Aside that in section 14(1) of the Contract Act, 1960 (Act 25) a contract of guarantee or suretyship shall be void unless it is in writing and signed by the guarantor or his agent or is entered into in a form recognized by customary law – see Elluah vrs Ankumah [1968] GLR 795. That being so even if the transaction between the plaintiff and 1st defendant was indeed a collateral security transaction, it will be void because of absence of a writing evidencing it. It is also not in accordance with customary law pledge which has been impliedly abolished by the Mortgages Act of 1972.

 

37. I now come to 1st defendant’s plea of non est factum which the trial judge held was available to him. I will hold contrary because the trial judge so held in my view without analysis of the manner in which the 1st defendant thumbprinted the documents, especially Exhibit A. The plea means that “it is not my act”. One may rely on the plea to claim that the document bearing his signature is in fact not one’s document in that he was misled into signing a document that was completely different from that which he was made to believe he was signing.

 

38. The plea it is said is for the protection of the blind and the illiterate just as a jurat is meant for their protection in Illiterates Protection Ordinance, Cap 262 (1951 Rev.). In this case the 1st defendant claimed he is a stark illiterate who cannot read and write. It is stated he is so.

The receipt, Exhibit A was not executed by 1st defendant in accordance with the guaranteed protection under Cap 262 because there was no jurat. On that ground, Exhibit A on the face of it, may not be binding on him.

 

39. However, in the defendants’ amended statement of defence at paragraph 13, he admitted that PW2 read the document to him. He continued in paragraph 14 that the plaintiff and PW1 made him thumbprint two documents and further made him to believe that he was granting consent for the buildings to be used as a security for PW1’s debt to the plaintiff.

 

40. What does one make of these averments? In paragraph 13, 1st defendant stated PW1 read the said document to him. He did not state whether Exhibit A or B. But in paragraph 14, he gave the same reason for the two documents he was made to thumbprint. But the content of the two documents are different. Pleasantly, the 1st defendant is not denying Exhibit A because there was no jurat. And it has to be borne in mind that Exhibit A is a sequence to Exhibit B which the plaintiff has rejected. So the dictum of the Honourable Chief Justice in Duodu vrs Adomako & Adomako [2012] 1 SCGLR 199 has been vindicated.

 

41. In holding (4) in that case, her Ladyship observed:

 

“The presence or otherwise of a jurat should not be conclusive of whether or not an illiterate person should be bound by the document complained of. The courts must not make fetish out of the presence or otherwise of a jurat on executed documents. To hold otherwise without a simple exception was to open the floodgate to stark injustice. Admittedly, the presence of a jurat might be presumptive of the facts alleged in the documents including the jurat. But that presumption was rebuttable and not conclusive …”

 

42. Thus for the 1st defendant to successfully plead the defence of non est factum, the following conditions must be satisfied:

(i) There must have been a mistake

(ii) The one who made the mistake was led into making it

(iii) The mistake relates to a document radically different from what one thought he was signing

(iv) The party seeking to avoid liability must prove that he acted with reasonable care or he was not guilty of carelessness or negligence.

All the four conditions must be satisfied for the plea to be successful.

 

43. The defence put up by the 1st defendant for denying the document(s) is that he was misled into signing a sale transaction instead of a consent to use the buildings as a security. In the case of Howatson vrs Webb [1907] 1 Chan 537, a distinction was drawn between the contents of the document and the character of the document and was followed in a number of English authorities. That was the position of the law in the cases like Orthodox School of Peki vrs Tawlma-Abels [1974] 1 GLR 419 and Wilson vrs Brobbey [1974] 1 GLR 250 in Ghana too. But in Gallie vrs Lee [1969] 2 Chan. 17 affirmed sub nom Saunders vrs Anglia Building Society [1971] A.C. 1004, Lord Denning M. R. subjected the leading cases which purported to draw the distinction to close examination but found “no rhyme or reason” for the distinction. The distinction was declared by the law Lords as illusory and unsatisfactory and should be rejected. In Quao vrs Squire [1978] 1 GLR 270 Taylor J (as he then was) concurred in that view and held that page 275 that:

 

“I think therefore that merely categorizing the document and then deciding whether the plea of non est factum is applicable depending on whether the person signing was misled as to content or character is neither helpful nor a proper way of solving the problem as to whether the plea is applicable in a particular case”

 

44. Before then at page 273, the learned judge stated:

 

“I think it is really unrealistic to suggest that a plea of non est factum is available to a person who has actually signed a document when he signed it deliberately and consciously. The law however is not necessarily realistic and logical. If a man signs a blank paper and later someone writes on it, it makes sense if he says he did not sign the document since no document was in existence when he signed it. When however he signed the document in the form in which it ultimately reaches the court, the plea is illegal”.

 

45. In conclusion Taylor J (as he then was) in the Quao vrs Squire case (supra), held that the burden of establishing a plea of non est factum fell on the party seeking to avoid a document signed by him and he must show that in signing the document he was not careless or negligent in so doing. The 1st defendant’s evidence on the manner in which he signed the document(s) is at pages 60 to 61 of the record of proceedings. I quote it in extenso:

 

After allowing Kwame Obeng to take the two rooms he and the plaintiff came to me in Sunyani and they said that I should thumbprint a document for them, and I did not go to any Lawyer’s office to sign a document they brought to my house. They showed me a white document and I thumbprinted, they didn’t even read the content of the document to me and I did not ask about it because I said I have given the two rooms to him to use as collateral. No, he did not tell me how much the plaintiff has paid to him because I trusted him in the work because he was a hard worker so I did not ask and he did not also tell me. I am not educated so the document that they brought for me to thumbprint I just did it for them”.

 

46. It is clear from this evidence by 1st defendant that in signing the document(s) he took no precautions although he claimed he was uneducated. A party of full age and understanding is normally bound by his signature to a document. Therefore if a party who can read and write, signed a document without reading it, he is bound. As held in Wilson vrs Brobbey [1974] 1 GLR 250 mere negligence in not reading a document before signing it cannot sustain a defence of a plea of non est factum. From the evidence of the 1st defendant, he knew he should have caused the document(s) to be read to him before he thumbprinted them but he failed to do so because he trusted PW1 and he knew the content to be a security transaction.

 

47. So if the opportunity exists for an illiterate or an uneducated party to know or learn the contents of a document which relate to a transaction between them but the illiterate/uneducated party failed to take advantage of the opportunity and went on to sign the document because of the trust the reposed in the other party and the assumption that the contents relate to the transaction between them, he cannot be permitted to deny the document as his act because the contents of the document turned out to be different from what he thought he signed. He will be deemed to have acted negligently if not carelessly just as an educated party who signed a document without reading it. The principle has its root in the maxim nemo contra factum suum proprium venire potest which means “no one can go against his own deed”. It is therefore my finding that the 1st defendant thumbprinted Exhibit A in particular and Exhibit B negligently. He cannot hide behind the fact of his illiteracy to deny the document. The trial judge we hold again erred in holding otherwise.

 

48. In the opening submission of the defendants counsel, he more or less cautioned us that since the trial judge had the opportunity to receive the evidence of the parties and observed their demeanour in the box and thereon evaluated the evidence as a whole, the judgment in favour of the defendant should not be disturbed. That submission is an acceptable general proposition. For in Koglex Ltd. (No.2) vrs Field [2000] SCGLR 175 at holding (1), the court said:

 

“where the findings of the trial court were based solely on the demeanour and credibility of the witnesses, then the trial court, which had the opportunity of seeing and hearing the witnesses, was in a decidedly better position than an appellate court. The appellate court should therefore be extremely slow in interfering with such findings”.

 

49. It is continued in the same holding that:

 

“But where the findings were based on established facts then the appellate court was in the same position as the trial court and could draw its own inferences from those established facts”.

 

50. An appeal it is said to be by way of rehearing. That direction enjoined us to evaluate the evidence in the whole record of appeal and come to our own conclusion based on the established facts. Although an appellate court is enjoined to be cautious in interfering with the findings of fact of the trial court based solely on the demeanour and credibility of the witnesses, it is equally the duty of an appellate court to ensure that the said findings of facts are supported by the evidence. Like the trial court, the appellate court thus has the function of not only drawing its own conclusions but also of making inferences from the established facts.

 

51. Having reviewed the evidence on record as a whole, I do not find the 1st defendant a witness worthy of any credit. Despite his advanced age, he was said to be mentally alert at the time he gave evidence. Yet because he was determined to deny the claim of the plaintiff, he initially denied he knew the plaintiff at all or had any dealings with him. He swore heavens that PW1 his son, will corroborate his evidence. But PW1 rather supported the case of the plaintiff. So the 1st defendant’s whole case does not only sound incredible, it was also not corroborated. His case is therefore not reasonably probable.

 

52. Patently, the judgment of the trial judge we hold is against the weight of evidence. This is because the findings of the trial court on the nature of the transaction between the plaintiff and 1st defendant and the availability of the defence of non est factum are not supported by the evidence on record and the law.

 

53. The lease on the land is tendered as Exhibit 1. It is unregistered. Although valid, it cannot constitute notice to the public under s.24 of the Land Registry Act, 1962 (Act 122). The trial court denied the 1st defendant his counter-claim of title to the land because in Exhibit 1, the lessee is K. K. Sawmill Ltd. a limited liability company. The 1st defendant executed the lease as the managing director of the company. In similar capacity he executed Exhibits A and B. In his evidence, he claimed ownership of the land, despite initial denial. When the veil is pierced, nobody would be found behind the company other than the 1st defendant. He is therefore personally liable in the circumstances of this case.

 

54. Having set aside the findings the trial judge made in favour of the 1st defendant, we uphold the claim of the plaintiff and dismiss the counterclaim of the 1st defendant. Accordingly, plaintiff’s appeal is allowed.

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