YALLEY JNR vs. KELL AND ANOTHER [1995-96] 1 GLR 91

CASES REFERRED TO

(1) Kwamin v Kufuor (1914) PC ‘74-’28, 28.

[p.93] of [1995-96] 1 GLR 91

(2) State v Boahene [1963] 2 GLR 554

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

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

(5) Keech v Sandford (1726) Sel Cas & King 61; 25 ER 223.

(6) Manukure v Aniapam [1976] 2 GLR 339, CA.

(7) Featherstonhaugh v Fenwick (1810) I 7 Ves 298.

(8) Clegg v Fishwick (1849) 1 Mac & G 294.

(9) Clegg v Edmondson (1857) 8 D M & G 787.

(10) Leigh v Burnett (1885) 29 ChD 231.

(11) Palmer v Young 1 Vern 276.

(12) Hunter v Allen [ 1970] 1 IR 212.

(13) Biss, In re; Biss v Biss [1903] 2 Ch 40.

(14) Fori v Ayirebi [1966] GLR 627, SC.

(15) Ansah v Sackey (1958) 3 WALR 325.

(16) Boafo v Staudt (1958) PCLLG 183.

(17) Khoury v Mitchual [1989-90] 1 GLR 161, CA.

(18) Wiafe v Kom [1973] 1 GLR 270.

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

(20) Kodilinye v Odu (1935) 2 WACA 336.

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

(22) Ricketts v Addo; Ricketts v Borbor (Consolidated) [1975] 2 GLR 158, CA.

NATURE OF PROCEEDINGS

APPEAL by the appellant, the beneficiary of the devise of a house under the will of his late father, to the Court of Appeal against the decision of the High Court in favour of the respondents, the head of their family and a sister of his father, respectively, that the house admittedly built by his father from his personal resources, became family property on his death. The facts are sufficiently set out in the judgments of Lutterodt and Benin JJA.

COUNSEL

Ebow Quashie for the defendant-appellant.

Steven Herbert Ocran for the plaintiff-respondents.

JUDGMENT OF LUTTERODT JA.

The late Amos Thomas Yalley, by his will, disposed of house No 27/2, Ahanta Road, Takoradi as his personal property. This sparked off a legal dispute between the plaintiff-respondents [p.94] of [1995-96] 1 GLR 91 (hereinafter referred to as the respondents), who are his head of family and sister respectively, on the one hand and the defendant-appellant (hereinafter referred to as the appellant), his son executor-beneficiary under the said will on the other hand. The respondents had, in the court below sought a declaration that the said property is family property and prayed for a further order “detaching the said property from the estate of the deceased.”

The only major common ground between the parties had been this, that the land on which the building stood, was originally leased to Ekua Inkuntomponyi, the mother of both the second respondent 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 together with a swish building on it became family property, the second respondent and other siblings, Yalley included, pulled their resources together, demolished the swish structure and created in its place the property in dispute. Their further claim is that it was upon the death of Yalley when his will came to be read that they learned to their dismay that he had fraudulently caused the Lands Department to change the documents covering the property into his personal name.

The appellant did not merely deny the allegation of fraud but maintained that the testator acquired a lawful 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 respondents. Aggrieved by this decision, the appellant has appealed on the number of grounds contained in (a) the notice of appeal, (b) additional ground of appeal, and (c) further additional ground of appeal.

The matters were urged in respect of the further additional ground of appeal dated 28 November 1994 and which reads 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 thumb prints appear thereon is erroneous. Counsel based his submission on the fact that there was no evidence on the record that the authors were illiterates. His further argument is that

[p.95] of [1995-96] 1 GLR 91 assuming even that these persons were illiterates, the learned trial judge proceeded on the wrong principle of law by placing the burden of proving that the authors appreciated the meaning and import of these documents on the appellant, who did not tender them.

Secondly, counsel contended that yet again the learned trial judge, fell into another serious error of law when he placed the burden of proving the validity of these exhibits on the appellant. It was urged that it was this which led him to misapply the principle enunciated in Kwamin v Kufuor (1914) PC ‘74-’28, 28.

Now, in 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:

“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.”

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 exhibits B-B3 which they deposed they discovered at the Lands Department and were tendered without objection. 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 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 exhibit B2 covers the thumbprint of one Effikesem Mansah described therein as queenmother. Exhibit B3 was made by the deceased, a literate.

In the first place, counsel’s claim that there is no evidence that the authors of exhibits B1 and B2 were illiterates is unfounded. On the contrary, the prima facie evidence as is borne out on the face of the

[p.96] of [1995-96] 1 GLR 91 documents themselves would rather support such a finding. In both documents the authors did not sign as was in the case of exhibit B3 made by the testator who the evidence does show was illiterate.

Secondary, 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 say so? These documents, together with the testator’s exhibit B3 which are all affidavits made to the Lands Department had been tendered by the respondents in proof of paragraph (7) of their statement of claim—namely that the testator had made certain false representations as contained in exhibit B3 in particular 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 the 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 is the beneficiary. The court thus held that though these documents were tendered by the respondents, the appellant sought to take advantage of the contents and use them to his benefit as “corroborative evidence” in support of the claim made by the testator in exhibit B3, ie that the subject matter was a grant 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 appellant acquired the lease by a nuncupative will. ln 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 and are prima facie illiterates appreciated the meaning and import of the contents of the documents. In other words, that the document was read and explained to them. Thus the nature of their case was such that the burden at that stage shifted onto the appellant. I think this principle adopted by the learned trial judge was in line with all the authorities, notably State v Boahene [1963] 2 GLR 554 and Boakyem v. Ansah [1963] 2 GLR 223, SC where it was held, among other things, as stated

[p.97] of [1995-96] 1 GLR 91 in the headnote 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 documents; 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 indorsed. 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 that the appeal based on those grounds must fail.

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

I think, however, that this 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 is on him to prove that they (the declarants) knew the full meaning, effect and consequences of them. 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: (1) Keech v Sandford (1726) 25 ER 223; and (2) Manukure v Aniapam [1976] 2 GLR 339, CA. His argument is that there existed no

[p.98] of [1995-96] 1 GLR 91 fiduciary relationship between the testator and the family necessitating the application of the 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 (supra) is that where a trustee obtains a renewal of a lease in his name, he will be held to be 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 had been caught by this rule. A partner who has obtained a renewal of a lease in his own name has not escaped her clutches either. So also where renewals have been obtained by a mortgagor or mortgagee, joint tenant or tenant in common the rule has been applied. Snell, Principles of Equity cites the following cases as covering all of these instances: Featherstonhaugh v Fenwick (1810) 17 Ves 298 at 311; Clegg v Fishwick (1849) 1 Mac & G 294; Clegg v Edmonson (1857) 8 D M & G 787 at 807; Leigh v Burnett (1885) 29 ChD 231; Palmer v Young 1 Vern 276 and Hunter v Allen [1970] 1 Ir 212.

In re Biss; Biss v Biss [1903] 2 Ch 40, CA examined the scope of this rule in Keech v Sandford (supra).

The learned justices affirmed the view that the existence of a fiduciary relationship is not a sine qua non to the operation of the rule. The court, however, refused to be swung to the other extreme and so reduce it to a general proposition of law that if any person partly interested in an old lease obtains a renewal from the lessor 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 trustee of the new lease, 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 occupied some special position by virtue of which he owed a duty towards the other persons interested.”

[p.99] of [1995-96] 1 GLR 91

Romer LJ in his speech at 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 those 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 the interest of those entitled to the old lease.”

(The emphasis is mine.)

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 has 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 these cases where there is no definite fiduciary relationship between the parties, the circumstances under which lease renewal comes to be obtained is very important. So also is the nature of his (the lessee’s) 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 he used his position unfairly to intercept any advantage of benefit coming the way of the original lessee, equity will not lend him or 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 work to his disadvantage.

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, ie 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 these facts, caused the documents of the property to be changed into his name. We have no evidence from the appellant showing why the change into his name before the expiry of the lease. Thereafter they continued to deal with

[p.100] of [1995-96] 1 GLR 91 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 has 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 other siblings were all illiterates. The women were fishmongers. Indeed, the respondents’ evidence that all matters connected with the property 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 fail.

Another criticism levelled against the learned trial judge is this, that exhibits 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 92/5 is the same as 27/2 the judge’s reliance on exhibit B3 and indeed the other documents bearing 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, 92/5 being the original number of the plot of land on which 27/2 stands. Paragraphs (5) and (6) of the statement of claim reads as

[p.101] of [1995-96] 1 GLR 91 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 second 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 lease constructed a substantial building on the said plot without the assistance of 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 matter 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.

JUDGMENT OF 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 finding 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. This 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

[p.102] of [1995-96] 1 GLR 91 the ground that it was family property.

Paragraph (7) of the statement of claim contains the meat of the respondents’ 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 the defendant 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 September 1954 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 appellant was expected to answer it in detail and not by a mere denial. By the mere denial the appellant 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 the respondents 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 he 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

[p.103] of [1995-96] 1 GLR 91 him in respect of this plot. If that was done, then it would be a fraud on the family in view of the defendant’s denial that Amos Thomas Yalley even did such a thing and it would also go to support the respondents’ contention that the family was not consulted about the change and only became aware of it after his death. No doubt the burden of proving fraud rests on the respondents. The trial court upheld the respondents’ 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 a trustee for the family and that he only had a life interest in the building he erected on the plot.

The appellant appealed on the following grounds:

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

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

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

(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 the issue for determination before the court.

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

(8) The respondents’ action ought to have been dismissed on the basis of the Limitation Decree, 1972 (NRCD 54).

(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. These were exhibits B1, B2 and B3. Exhibit B1 purports to have come from one Tandoh Esson, head of family, and on it is his mark. Exhibit B2 purports to have come from Effikesem Mansah described as queenmother 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 respondents contend that nothing of the

[p.104] of [1995-96] 1 GLR 91 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 respondents themselves. He submitted further that these exhibits confirmed ownership of the building in the appellant’s father.

I think I have already referred to the pleadings whereby the appellant denied any such documents were made. I am prepared in view of counsel’s reliance on them, to say that by the pleadings the appellant was only denying the fraudulent allegation in respect of those documents. But the respondents 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 finding accepting the respondents’ position. These findings could not be challenged. And indeed the appellant 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 respondents 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 he 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:

“4. 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 643, SC where the 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 section 4(1) of Cap 262 and that they perfectly understood the same before their marks were made thereto,

[p.105] of [1995-96] 1 GLR 91 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 appellant himself never relied on a gift under these documents. There was thus no gift to the deceased Yalley, A T and these documents, namely exhibits Bl, 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 respondents had established their 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 appellant 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 then 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 the government.

The 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 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 appellant offered no explanation for this.

The respondents explained that the family allowed A T Yalley to deal with this property on its behalf. Even though there is evidence that there were other educated members of the family besides

[p.106] of [1995-96] 1 GLR 91

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. Thus AT 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 that 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, High Court (Lands Division), Accra, unreported, reproduced at pages 185-186 of Ollennu’s Principles of Customary Land Law in Ghana, even a repurchase of lost family land by a member of the family was deemed to have been done for the family, the repurchase 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 appellant 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

[p.107] of [1995-96] 1 GLR 91 by the respondents 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 respondents explained, ie that the family allowed him to act for it.

The appellant 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 that 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 the appellant 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 appellant did not seek to rely on exhibits B1 and B2. And having failed to rely on these exhibits which go to establish a gift by a nuncupative will, then I will again and finally ask the appellant 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 appellant provided no answer. The respondents did by saying it was by exhibits Bl, 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.

JUDGMENT OF LAMPTEY JA.

On the death of Amos Yalley his family discovered that he had left a will under which he bequeathed house No 27/2, Ahanta Road, 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

[p.108] of [1995-96] 1 GLR 91 and a sister of Yalley as the plaintiffs, sued Amos Yalley, Jnr as the 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 plaintiffs and declared that the land was family property. The plaintiffs 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-appellant (hereinafter referred to as the appellant) was that the trial judge misconstrued the import of exhibits B1 and B2. 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 appellant 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-respondents (hereinafter referred to as the respondents). He submitted that the finding of the trial judge cannot be supported. I must observe that counsel for the respondents 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 respondents’ attorney, Paul Asankuma, to support and establish the case and claim of the respondents. 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 respondents’ 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 Effikesem Mansah, head and queenmother respectively of the family . . . (illiterate persons) whose marks appear on exhibits B1

[p.109] of [1995-96] 1 GLR 91 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 respondents. 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 privilege of the appellant. The appellant did not object to exhibits B1 and B2 forming part of the case of the respondents. . On the face of the documents they were prepared by a licensed letter writer and not by the late Amos Yalley. Indeed, exhibit B3 which was a document made and executed by Amos Yalley was prepared by the same licensed letter writer. On record, the late Amos Yalley was described as the only educated member of the family. I will in due course deal with this statement. The issue whether or not the head of family and queenmother appreciated the contents of exhibits B1 and B2 before they affixed their marks was one which called for proof from the respondents and certainly not from the appellant. The trial judge’s finding cannot be supported in law. The appeal on this ground succeeds.

The other issue which the trial judge raised, suo moto, in his judgment was the admissibility of exhibits B1 and B2. He held that the two documents did not satisfy the provisions of the Illiterates’ Protection Ordinance, Cap 262 (1951 Rev), and accordingly rejected them. He therefore excluded exhibits B1 and B2 in his evaluation and consideration of the case before him. Before us, counsel for the appellant did not advert to this finding of the trial judge. I find that the trial judge’s finding raised an issue of law, namely whether or not exhibits B1 and B2 breached Cap 262. The trial judge held that exhibits B1 and B2 were not the act and deed of Tandoh Esson and Effikesem Mansah because on the face of each document there was no declaration that they each understood and appreciated the contents of the documents they each executed. He found authority for his decision on the following cases: Kwamin v Kufuor (1914) PC ‘74-28, 28; Boakyem v Ansah [1963] 2 GLR 223, SC and State v Boahene [1963] 2 GLR 554.

I find that the cases referred to by the trial judge correctly stated the law on the issues raised for determination in those cases. However, I find that the trial judge, with respect, misdirected himself on the law as

[p.110] of [1995-96] 1 GLR 91 explained and applied in the cases he referred to. These cases decided that any person who seeks to rely on a document executed by an illiterate person, if due execution is challenged and disputed, must satisfy the court that the illiterate person understood and appreciated the contents before he made his mark thereto. As a matter of practice, it is usual to insert a declaration couched in these terms on the face of the document. This is prima facie evidence that the document is the act and deed of the illiterate person. I must state that it is not the law that a document executed by an illiterate person must and should contain a declaration on the face of it that the illiterate person had the contents of the documents interpreted and explained to him in a language he understood to make that document admissible in evidence. On this issue, I refer to the recent Court of Appeal case of Khoury v Mitchual [1989-90] 1 GLR 161, CA holding (1) as stated in the headnote:

“(1) the Illiterates Protection Ordinance, Cap 262 (1951 Rev), read as a whole and as its title showed, was meant to protect illiterate persons who could not read or write and were made to sign documents purported to have been written on their behalf. It was therefore not the interpretation clause embodied in a document that made a document binding on the illiterate person but whether the document was in fact read and interpreted to the illiterate and he perfectly understood it before he signed it. The Ordinance did not even stipulate that an interpretation clause should be included in a letter or any document prepared for an illiterate.”

(The emphasis is mine.)

In an earlier case, in 1973, the Court of Appeal in Wiafe v Kom [1973] 1 GLR 240 held at holding (2) of the headnote as follows:

“(2) Where an illiterate party executed a document, any other party to the document who relied on it had to prove that it was read over and if necessary interpreted to the illiterate. It became necessary for the plaintiff to have called the author of the promissory note to show that he complied with the provisions of section 4 (1) of the Illiterates’ Protection Ordinance, Cap. 262 . . .”

In the instant case, the respondents did not lead any evidence to show that the two authors did not make those documents. On the face of the

[p.111] of [1995-96] 1 GLR 91 documents, a licensed letter-writer had made those documents for the two declarants. The two declarants described themselves as head of family and queenmother, respectively. The respondents did not dispute nor challenge the names and status of the declarants. What was more important was that the respondents did not challenge nor dispute the statements of fact desposed to in the two documents. It is equally important to point out that the declaration was made in 1950; some eleven years after the death of Ekua Inkuntomponyi in 1939 whose estate was part of the subject matter of the documents. In fine, the reason given by the trial judge for rejecting exhibits B1 and B2 cannot be supported in law. He was plainly and clearly wrong in his appreciation of the operative law. His rejection of the evidence contained in exhibits B1 and B2 was wrong in law. The two documents, exhibits B1 and B2, formed part of the case of the respondents and he should have considered them together with the rest of the evidence. If he had done this, he would no doubt have come to the conclusion that the two documents did not support nor prove the claim made by the family. I will return to this matter in due course. I find that exhibits B1 and B2 were admissible documents. The trial judge erred in law in rejecting them.

Counsel for the appellant submitted that the finding made by the trial judge that the late Amos Yalley obtained a lease on the land for the benefit of his family was not supported by the evidence before him. He contended that the contents of exhibits B1 and B2 were binding on the family and estopped the family from making a claim to the land. He referred to and relied on the case of Akyea-Djamson v Duagbor [1989-90] 1 GLR 223, SC. He also referred to section 119 (1) of the Evidence Decree, 1975 (NRCD 323). He drew the attention of this court to the contents of exhibits 2, 3, 4, 5, 8 and 10 in support of the appellants case. In reply, counsel for the respondents submitted that on the death in 1939 of Ekua Inkuntomponyi her property became family property. He contended that the trial judge was right in holding that the land in dispute was family property. On the issue of the change in the name of the lease of the land, counsel submitted that the late Amos Yalley being the only educated member of the family took advantage of the illiteracy of the other members of the family and changed the papers on the land into his own name. He referred to and relied on the case of Nartey v Mechanical Lloyd Assembly Plant Ltd

[p.112] of [1995-96] 1 GLR 91

2 GLR 314, SC holding (6).

In considering the submissions and arguments of counsel for the parties, it is in my view desirable to consider the evidence before the court touching upon the matters and issues raised. One of the issues raised was whether or not the late Amos Yalley was the only educated member of the family of Ekua Inkuntomponyi. I must first observe that though she died in 1939 the respondents failed and/or omitted to indicate by evidence the period when the late Amos Yalley was the only educated member of the family. Be that as it may, the appellant, through effective cross-examination of the first respondent witness, elicited evidence which showed beyond doubt that the late Amos Yalley was not the only educated member of the family. On this issue, the first respondent witness testified that Aba Awotwi, a sister of the late Amos Yalley, had a son called Mr Sam. According to the first respondent witness, Mr Sam was a graduate and a headmaster. Again the first respondent witness stated that the attorney of the respondents had educated brothers who were older than the attorney. He gave the name of one of these as Mr Donkor. The pleading that the late Amos Yalley was the only educated member of the family was exposed as not true. In any case, the respondents did not adduce evidence to show that the late Amos Yalley was the only educated member of his family. The trial judge did not advert his mind to this crucial defect in the case of the respondents.

Another issue raised by the respondents was stated in paragraph (7) of the statement of claim, to wit, “the late Amos Yalley fraudulently changed the papers (on house No 27/2) into his personal name.” To prove and support this averment, the attorney of the respondents put in evidence exhibits B1, B2 and B3. I must point out that these three documents do not prove and support the above averment. What were the papers which were fraudulently changed by the late Amos Yalley into his personal name? The court was not shown any forged papers touching upon house No 27/2. It was claimed by the attorney that the late Amos Yalley sent exhibits B1, B2 and B3 to the Lands Department. There is nothing on the face of these documents to show that the Lands Department received them nor that they came from that department. The Lands Department was not subpoenaed to assist the court. The attorney of the respondents testified that he made a search at the Lands Department. He did not tender the result of the search. He

[p.113] of [1995-96] 1 GLR 91 offered no explanation for his failure to put in any document from the Lands Department to of [1995-96] 1 GLR 91-117prove and support the pleading of forgery of documents by the late Amos Yalley. The attorney of the respondents who testified that he made a search stated that he did not discover from his search that the late Amos Yalley obtained a lease on plot No 92 from the Lands Commission. I reproduce the relevant cross-examination:

“Q You are aware that Amos Yalley had a lease from the government before building the house?

A I am not aware.”

There can be no doubt that if he did conduct a search, he would no doubt have discovered the lease in question. On this issue, I find that he told a deliberate and calculated falsehood to the court.

It may be asked why an educated person who had made a search would intentionally mislead the lower court on this issue? From the above matters, it is plain and clear that the respondents failed to prove that the late Amos Yalley “fraudulently changed the papers on house No 27/2 using exhibits B1, B2 and B3 without further and other evidence.”

In my opinion, the failure of the trial judge to make a finding on this crucial issue was fatal to the conclusion he reached. Having failed to consider this issue which was the bedrock of the case of the respondents, the trial judge posed the following question:

“Now the question is, on 9 October 1954 when he (the late Amos Yalley) obtained a grant of the same plot No 92 from the government, did the late Amos Yalley acquire a new lease for himself?”

The trial judge failed or omitted or both to consider the wealth of evidence before him which, in my view, would have assisted him to answer the question he had posed satisfactorily: I refer to the pieces of evidence in point. There were the three documents, exhibits Bl, B2 and B3 in evidence. I have already held that the trial judge erred in law in excluding and rejecting the evidence contained in these documents. The two exhibits, B1 and B2, were declarations the head of family and queenmother made in 1950 affirming title to plot No 92 in the late Amos Yalley. There was no evidence that the two declarants had made [p.114] of [1995-96] 1 GLR 91 false declarations before the court. In the absence of evidence challenging the contents of exhibits B1 and B2, the court was bound to accept and act on them.

It will be seen that on the strength and basis of the title granted to the late Amos Yalley in 1950 by the head of family and the queenmother, there was evidence from the first respondent witness to show that the late Amos Yalley thereafter dealt with the swish building and the land as an absolute owner. There was evidence that before 1954, the late Amos Yalley ejected everybody living in the swish house, including members of the family from that house. His right to eject members of the family was not challenged by any member of the family. The next right he exercised without any challenge from members of the family was to demolish and raze the whole swish building to the ground. There was no evidence that any member of the family raised a protest nor challenged the right and power of the late Amos Yalley to demolish the swish house. The respondents did not offer any explanation on the exercise by the late Amos Yalley of the rights referred to above. In my opinion, the evidence before the court showed and established that the late Amos Yalley lawfully acquired the absolute interest in both the plot of land and the swish building on it.

I must draw attention to the fact that the respondents did not plead the root of the family’s title to the land. On the record, the lease on the land expired by effluxion of time sometime in 1954. Before this date, Ekua Inkuntomponyi the lessee of the plot had died in 1939. There was no evidence to prove and establish the steps the family took to have this lease renewed for the benefit of the family by the Lands Department. Indeed, there was no evidence that the family appointed and authorised the late Amos Yalley to take steps to have the lease renewed for the benefit of the family. In my view, it was not sufficient to plead that the late Amos Yalley fraudulently “changed the papers on the property into his personal name”; this pleading must be strictly proved. If the family knew and was aware that the lease had expired and did nothing about renewing it, it seems to me that the lessor was at liberty to grant a fresh and new lease on the plot to any person who applied for it. It is trite learning that, a party that claims a declaration of title to land must prove that title strictly: see Kodilinye v Odu (1935) 2 WACA 336. A long line of cases followed and applied the principle of law thus laid down. I need only refer to one of these, namely Banga

[p.115] of [1995-96] 1 GLR 91 v Djanie [1989-90] 1GLR 510, CA. In that case, the Court of Appeal held that the claim made by the family, namely the plot of land was family property, was not proved and established by a shred of evidence. The plaintiff in a claim for a declaration of title to land should win on the strength of her own case which must not be propped up by weaknesses in the case of the defence. In the earlier case of Ricketts v Addo; Ricketts v Borbor (Consolidated) [1975] 2 GLR 158, CA the above statement of the law was explained, at great length by Amissah JA in his scholarly judgment.

In the instant case, the plaintiff sought a declaration that “House No 27/2, Ahanta Road, Takoradi is family property.” The trial judge held that the building standing on plot No 92 and numbered 27/2 is the self-acquired property of the late Amos Yalley. The parties are agreed that plot No 92 is government land, which “was leased to Ekua Inkuntomponyi in 1929. The lease expired by effluxion of time in 1954. At paragraph (9) of the statement of claim appears the following averment:

“(9) On or about 1953 the late Amos Yalley and Kwamina Annan applied to Lands Department for their names to be inserted on the lease as family property.”

The respondents closed their case without adducing evidence to prove and establish the above averment. Indeed, no mention was made of Kwamina Annan throughout the trial. There was no evidence to show the circumstances surrounding the application by Kwamina Annan and Amos Yalley to the Lands Department. The court was not told whether or not they were appointed by the family and mandated to make the application. There was no evidence to show whether or not the family satisfied itself that the lease had been renewed in the name of the family in 1954. I am satisfied that the pleadings at paragraphs (7) and (9) of the statement of claim are an after-thought. I am therefore not surprised that these averments were not proved and established by a shred of evidence. Since no evidence whatsoever was adduced by the respondents to prove and establish these averments, their claim should have been dismissed on this ground.

The appellant did not counterclaim for any relief. It is trite learning that he did not assume any burden of proof. I have elsewhere in this judgment held that the trial judge erred in law in placing a burden of

[p.116] of [1995-96] 1 GLR 91 proof of due execution of exhibits B1 and B2 on the appellant. The appellant in his statement of defence denied and disputed the averments at paragraphs (6),(7),(8),(9) and (10) of the statement of claim. The respondents did not lead any evidence to prove these averments. The trial judge did not also advert to the specific issues set down for trial in the summons for direction. In my opinion, if the trial judge had confined his evaluation and examination of evidence as was dictated by the pleadings and addressed himself on the issues set down for trial, he would no doubt have discovered that the respondents failed and omitted to prove what steps the family took to have the expired lease renewed by the Lands Department. In this regard, there was no evidence of a family meeting to discuss and decide on the renewal of the lease. Indeed, there was no evidence to show who was appointed the customary successor of the late Ekua Inkuntomponyi. The respondents who sued in their capacity as head of family and a sister of Yalley did not give evidence in this matter. As already pointed out, the evidence that in 1950 the head of family was Tandoh Esson and the queenmother was Effikesem Mansah was not disputed nor challenged. The acts of ownership exercised by the late Amos Yalley was given in evidence by the first respondent witness. The evidence that the late Amos Yalley was the only educated member of the family had been shown to be palpably false. The respondents were not entitled to the declaration they sought.

The appellant by his statement of defence denied the case put forward by the respondents. The respondents were put to strict proof of their case. It is trite learning that weaknesses in the case of the appellant do not benefit and enhance the case of the respondents, especially when the respondents failed to make a successful case. The trial judge misdirected himself on the issue on which of the parties before him assumed the burden of proof. He erred in law when he held that the appellant failed to prove the defence he had put forward.

I cannot conclude this judgment without commenting on the evidence of the attorney of the respondents and his only witness. I observed that on the serious issues set down for trial, the evidence they each gave did not assist the case of the respondents. None of them gave evidence on the title claimed by the respondents. The evidence they gave concerning the contribution of the family towards the construction and building of the substantial structure on the land was

[p.117] of [1995-96] 1 GLR 91 rightly rejected by the trial judge. In these circumstances, the respondents were not entitled to judgment.

The trial judge’s decision was wrong in law for all the reasons I have given. Accordingly, I find that the appeal succeeds. I allow the appeal. I set aside the judgment of the lower court. I enter judgment for the appellant.

DECISION Appeal dismissed.

DRKS