WIAFE vs. KOM [1973] 1 GLR 240

CASES REFERRED TO

(1) Edun v. Koledoye (1954) 14 W.A.C.A. 642.

(2) Kwamin v. Kufuor (1914) P.C. ‘74-’28, 28.

(3) Angmor (Tei) & Co. v. Yiadom III [1959] G.L.R. 157, C.A.

(4) Dadzie v. Kokofu [1961] G.L.R. 90, S.C.

(5) Idum v. Agyemang, Court of Appeal, 29 July 1970, unreported.

(6) Waya v. Byrouthy (1958) 3 W.A.L.R. 413.

(7) Blatch v. Archer (1774) 1 Cowp. 63; 98 E.R. 969.

(8) Gyampo v. Evans, Court of Appeal, 26 June 1972, unreported.

(9) Tagoe v. Nugent, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 148.

(10) Poku v. Frimpong [1972] 1 G.L.R. 230, C.A.

(11) Bank of West Africa Ltd. v. Darko, Court of Appeal, 4 May 1970, unreported; digested in (1970)

C.C. 74.

(12) Guardian Assurance Co., Ltd. v. Khayat Trading Store [1972] 2 G.L.R. 48, C.A.

NATURE OF PROCEEDINGS

APPEAL from the decision of a district court magistrate in which the plaintiff was non-suited and judgment entered against him. The facts are fully set out in the judgment.

COUNSEL

Dr. I. L. Ohene-Djan for the appellant.

Ohene-Anobah for the respondent.

JUDGMENT OF OSEI-HWERE J.

This is an appeal against the judgment of his worship M. J. E. O. Otchere wherein the plaintiff-appellant was non-suited in respect of his claim and judgment entered in favour of the defendant with costs assessed at ¢42.70. In his writ of summons the plaintiff-appellant (hereinafter called the plaintiff) claimed from the defendant-respondent (hereinafter called the defendant) cash, the sum of ¢52.50 being a debt due and owing to the plaintiff. According to the plaintiff, the defendant and one Yaw Barimah came to him for a loan of ¢90.00 ant that when he gave the loan a receipt was prepared by one J. C. Baidoo. Before the plaintiff commenced his action the defendant had paid a total amount of ¢40.00 out of the loan leaving a balance of ¢50.00. The plaintiff tendered the receipt on the loan transaction, exhibit A, and he thereafter rested his case on it.

The defendant pleaded not liable to the plaintiff’s claim. According to him he took the loan of ¢90.00 from the plaintiff’s grandfather, Aboagye. Aboagye asked the plaintiff to prepare the necessary receipt on the loan which he did. As he is illiterate the receipt was interpreted to him by the plaintiff and, so far as he was aware, it was Aboagye who was named in the receipt, exhibit A, as the creditor. Some time after the preparation of exhibit A the plaintiff came to inform him that his grandfather had sent him to come and collect the debt. He paid to

[p.243] of [1973] 1 GLR 240 him an amount of ¢40.00. He later met Aboagye who queried him about his failure to pay back the debt and he informed Aboagye that he had already paid ¢40.00 to his grandson, the plaintiff. Aboagye said the plaintiff did not hand the ¢40.00 over to him and warned that he should not, in future, pay any moneys to the plaintiff. The defendant made a direct payment of ¢10.00 to Aboagye after this confrontation. Some time in 1970 he received a writ of summons from the plaintiff and he went to see Aboagye to ask why he had taken action against him. Aboagye said he had not instructed the plaintiff to do so. The defendant consequently went and paid the outstanding balance of ¢40.00 to Aboagye. In addition he paid ¢2.00 to cover the summons fee of ¢1.50 and the witness fee of 50p. As Aboagye could not hand over the original receipt to the defendant (because it was then with the plaintiff) he caused a temporary receipt to be issued to the defendant (exhibit A). Aboagye promised to collect the original receipt and hand it over to the defendant at a later date. The plaintiff reportedly refused to surrender the promissory note on the loan and Aboagye who was then sick and unable to walk, caused the head of his family to prepare a receipt on his behalf to show that the amount owed had been fully satisfied.

From the evidence before the court the trial magistrate made certain findings of fact and came to the conclusion that the plaintiff should be non-suited. The plaintiff’s two grounds of appeal contained in his notice of appeal which he filed himself are that the judgment is against the weight of evidence and also that the magistrate erred in law without stating, however, particulars of the error as required under Order 58, r. 1 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Counsel for the plaintiff argued, inter alia, that there was no suggestion in the defendant’s cross-examination of the plaintiff that he owed the amount to the plaintiff’s grandfather. Counsel was saying, in effect, that the defendant must be deemed to have admitted what the plaintiff claimed in his evidence-in-chief. Again, the plaintiff’s counsel placed the evidence of the defendant and his witnesses under a thorough search-light and argued that a substantial part of the evidence was hearsay and that the trial magistrate misreceived the hearsay evidence. Counsel also contended that the defendant did not attempt to challenge the plaintiff’s claim but that he testified about the debt he owed to Aboagye (the plaintiff’s grandfather) which was of no concern to the plaintiff. Counsel finally castigated the findings of fact made by the trial magistrate. He submitted that it was wrong to have entered judgment for the defendant who did not counterclaim and that the costs of ¢42.70 awarded were excessive. In answer the defendant’s counsel contended that exhibit A offended against the Illiterates’ Protection Ordinance, Cap. 262 (1951 Rev.), as it had no attestation clause and it was, therefore, invalid. Counsel also argued that the issue before the court was as to who was the creditor to the defendant, the plaintiff or the plaintiff’s grandfather, Aboagye. The court made a

[p.244] of [1973] 1 GLR 240 finding of fact that the plaintiff’s grandfather was the creditor and that finding of fact ought not to be disturbed.

It is indeed true to say that where a witness testifies on oath on certain vital matters and the opposing side is silent in his cross-examination on those matters he may be implied to have admitted those matters. The strict application of this law, however, can appropriately be tempered in the case of illiterate litigants who are generally not versed in the art and intricacies of cross-examination. It is not uncommon to meet an illiterate litigant whose attitude of mind is to let the other party state his case to the court and bother less with cross-examination so that when his time comes he will also state his case and leave the court to choose which side to believe. It seems that the defendant thought it expedient to conduct his defence in this unorthodox fashion. The need to indulge illiterate litigants has always been recognised by the courts: see Edun v. Koledoye (1954) 14 W.A.CA. 642. As the record of proceedings does not spell out the cross-examination of the plaintiff and his answers in the form of “question” and “answer” it is really difficult to ascertain the nature of the questions put by the defendant to confirm that he did not deny the debt to the plaintiff. The usefulness in recording the cross-examination in the “question” and “answer” form cannot be over-emphasized as by that method the denials and affirmations of the party cross-examining as well as the witness can be made clear to the appellate court. Equally, the evasions and prevarications of the witness, necessary yard-sticks in assessing credibility, can be pin-pointed by the trial court.

I do not find anything on record to suggest, as contended by the plaintiff’s counsel, that there were two debts at issue, viz. the debt owed to the plaintiff and the one owed to the defendant’s grandfather. The defendant admitted in his evidence that it was a single loan he took from Kwadwo Aboagye, the plaintiffs grandfather, and that the plaintiff was asked by his grandfather to prepare the promissory note on the loan. That explains how the defendant came to thumbprint exhibit A. When the plaintiff tendered exhibit A the defendant challenged it on the ground that he made the promissory note (for that is the proper designation of the document and not a “receipt”) for Aboagye and not for the plaintiff. The defendant, being clearly an illiterate, will not be bound, ipso facto, by the contents of exhibit A merely because he had affixed his thumbprint. In Kwamin v. Kufuor (1914) P.C. ‘74-’28. 28 it was laid down at p. 36 that:

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

See also Angmor (Tei) & Co. v. Yiadom III [1959] G.L.R. 157, C.A.; Dadzie v. Kokofu [1961] G.L.R. 90 S.C.; Idum v. Agyemang, Court of Appeal, 29 July 1970, unreported . Section 4 of the Illiterates’ Protection Ordinance, Cap. 262 (1951 Rev.). lays down the conditions to be fulfilled [p.245] of [1973] 1 GLR 240 by persons writing letters (and, perhaps, other documents) for illiterates. It is provided in section 4 (1) that the writer should 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. It is purely a matter of evidence, whether there be an attestation clause in the document or not, whether these conditions have been fulfilled. The presumption of the document speaking for itself is inapplicable where an illiterate person has been a party to it. He who assumes the evidentiary burden of establishing these conditions as laid down in section 4 (1) of Cap. 262 was settled in the case of Waya v. Byrouthy (1958) 3 W.A.L.R. 413, where it was laid down that where an illiterate executed a document, any other party to the document who relies upon it must prove that it was read over and, if necessary, interpreted to the illiterate. It became necessary, therefore, for the plaintiff to have called the author 4 (1) of Cap. 262. In the absence of any such proof that the defendant of exhibit A to show that he complied with the provisions of section appreciated the meaning and effect of exhibit A it ceased to be of any probative value to the plaintiff and the magistrate was right in holding that the correct contents of exhibit A were not read to the defendant.

In the assessing of evidence and the weight to be given to it the correct principle is as stated by Lord Mansfield that’ “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: see Blatch v. Archer (1774) 1 Cowp. 63 at p. 65 applied in Gyampo v. Evans, Court of Appeal, 26 June 1972, unreported. I think the magistrate applied the correct principle when he, in effect, rejected exhibit A, and held that the balance of the loan had been paid to the actual creditor, Kwadwo Aboagye. The plaintiff’s counsel contended that as the court advised the tendering of exhibit A the court itself could have called the letter writer (or the author). Even though the Courts Decree, 1966 (N.L.C.D. 84), (which was then in force when the case was pending before the trial court) empowered the court by paragraph 67 (1) to summon any person, either suo motu or on the application of any party to attend to give evidence, that discretion, like all other discretions endowed on a court, should be exercised judicially. It should not be exercised if the exercise of it is likely to prejudice the case of one party to the advantage of the other. Again, it should not be exercised when its aim is merely to fill the gaps left by one party: see Tagoe v. Nugent, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 148. I am of the opinion that it would have amounted to a wrongful exercise of the court’s discretion if it had called on its own motion the author of exhibit A to build up the plaintiff’s case for him.

I am satisfied that after expunging the inadmissible hearsay evidence from the record there was sufficient evidence from which the trial magistrate could conclude that the real creditor to the defendant was Kwadwo Aboagye and not the plaintiff. At any rate the plaintiff failed to establish his claim and his action was properly dismissed. On the complaint that the costs of ¢42.70 awarded in the lower court was

[p.246] of [1973] 1 GLR 240 excessive I only have to point out that the award of costs is entirely within the discretion of the trial court and provided that its exercise conforms with right and reason the appellate court will not interfere with it. The appellate court will only review the discretion if it is exercised on some illegitimate material or it violates some principle of substantive right: see Poku v. Frimpong [1972] 1 G.L.R. 230 , C.A. and also Bank of West Africa Ltd. v. Darko, Court of Appeal, 4 May 1970, unreported; digested in (1970) C.C. 74. It has been pointed out in Guardian Assurance Co., Ltd. v. Khayat Trading Store [1972] 2 G.L.R. 48 at p. 60, C.A. that costs should normally bear a relationship to the trial and its incidents. Taking this as the yard-stick it does not seem to me that the trial magistrate wrongly exercised his discretion in the award of costs. It is clear from the record that the parties appeared before the court on thirteen occasions and it was only on two of those occasions that the defendant was awarded costs totalling ¢7.00. Besides, the parties were shuttled between the two courts at Bechem and Techimantia where the trial magistrate sat. The defendant also called three witnesses. In these circumstances the award of ¢42.70 costs is on the fair side and it should not be disturbed. The point raised as to the irregular manner in which the judgment was drawn is of little consequence since it confers no right on the defendant except, perhaps, as to the costs awarded in his favour. The plaintiff’s appeal, for all the above reasons, must fail and I accordingly dismiss it with ¢50.00 costs to the defendant.

Court below to carry out.

DECISION

Appeal dismissed.

S.O.