ODAME AND ANOTHER vs. ASARE [2001-2002] 1 GLR 511

CASES REFERRED TO

(1) Bank of West Africa Ltd v Appenteng [1972] 1 GLR 153, CA.

(2) Zabrama v Segbedzi [1991] 2 GLR 221, CA applied.

APPEAL by the plaintiff-executors from the decision of the trial judge upholding the objection of the defendant to the tender by the plaintiffs of a power of attorney allegedly executed by the testator on the ground, inter alia, that the testator had been blind and there was no indication on the document that he had been shown a place to sign hi signature. The facts are sufficiently stated in the judgment of Essilfie-Bondzie JA.

Daniel Opoku Akyeampong for the plaintiffs.

Somuah Asamoah for the defendant.

Essilfie-Bondzie JA. The plaintiffs-appellants (hereinafter referred to as the plaintiffs) the named executors in the will of one Jackson Christian Asare (deceased) who died on 17 September 1995 after suffering from a stroke in 1987. The plaintiffs brought the action on behalf of the estate of the deceased against the defendant-respondent (hereinafter referred to as the defendant) for the reliefs endorsed on the writ of summons. The defendant who claimed to be the second wife of the deceased also counterclaimed.

The record of proceedings indicates that on 13 May 1999 when the parties assembled for the commencement of the hearing of the case, after close of pleadings, one Nana Owusu Akyem Teneten III gave evidence for the plaintiffs as a donee of a power of attorney which was tendered in evidence and marked as exhibit A. In the course of his

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evidence as the plaintiffs’ representative Nana Owusu Akyem Teneten III again sought to tender in evidence a power of attorney which the testator Jackson Christian Asare allegedly executed for his daughter.

When the power of attorney was being tendered in evidence the defendant’s counsel raised an objection on the ground that the testator or donor was blind at the time the document was executed but he has signed the power of attorney. Again that “the teeth of the type writer giving the house number is different from the whole of the power of attorney.” Counsel for the plaintiffs countered the objection and contended that the objection was unfounded since the power of attorney had a jurat and that the signature appearing on it represented the normal signature or the deceased which has appeared on other documents made by the deceased. He conceded that the donor of the power of attorney was blind at the time but he was directed where he should sign and he signed.

The court upheld the objection on the ground that the document was signed by a man who was blind and that there was nothing to show in the document that the blind man was shown a place to sign his signature. The learned judge also said a jurat is not the same as signing a document.

In this appeal, two grounds have been filed. The first ground which consider the only relevant ground for the appeal, is that “the court erred by rejecting the tendering of a power of attorney signed by a blind man upon objection raised by counsel.”

It is admitted by all parties that at the time the alleged power of attorney was executed the deceased was blind. He was however literate. As a blind man it is my view that he came under the umbrella of the Illiterate Protection Ordinance, Cap 262 (1951 Rev) although blind persons were not specifically mentioned under Cap 262. Section 4(1) and (2) of Cap 262 obliges every person writing a letter or document for an illiterate to:

“(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;

(2) Cause the illiterate person to write his signature or make his mark at the foot of the letter or other document or to to touch the pen with which the mark is made at the foot of the letter or other document.”

The law was also stated in holding (8) of the headnote of the case of Bank of West Africa Ltd v Appenteng [1972] 1 GLR 153, CA that:

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“A person who seeks to bind another with [such] a document must prove (a) that it was read over and interpreted to him in a language he understands and (b) that he understood the nature of the document before he signed it.”

The principle which has been firmly established by a number of decided cases equally applies, as already said to blind men. In Zabrama v Segbedzi [1991] 2 GLR 221, CA it was also held as stated in holding (2) of the headnote that:

“. . . The party seeking to rely on the document must lead evidence in proof that the document was actually read and interpreted to the illiterate [or blind man] who understood it before signing same. Being a question of fact, the presence or otherwise of an interpretation clause on document was one of the factors a court should take into account in determining whether the document in question was fully understood by the illiterate.”

The court further held that “The presence of an interpretation clause in a document was not conclusive of that fact neither was it a sine qua non.” It was still necessary to lead evidence outside the document to show that despite the interpretation clause, he was not made fully aware of the contents of the document to which he made his mark.”

The import of these decisions is that there is no presumption that an illiterate and in this case, a blind man executing a document or attesting to the execution of a document had any knowledge of the contents of the document. There is always a heavy burden upon any person claiming that an illiterate or blind man who has executed a document is aware of the contents of the document to prove it.

In this case as already said, the donor of the power of attorney who is deceased was blind at the time of the execution of the document. The person who sought to tender the document was not the donee of the power. He was also not telling the court that he was present when the document was made so that he could be cross-examined to ascertain the genuineness of the document. Although there is an interpretation clause or a jurat on the document, the person who was named

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as having read and explained the contents of the power of attorney before the donor signed was not called to give evidence and to be cross-examined before the representative of the plaintiffs sought to tender the power. Besides, it is doubtful whether in law the power of attorney did not lapse with the death of the alleged donor.

In a nutshell, it is apparent from the record that the representative of the plaintiffs who sought to tender in evidence the power of attorney ought to have led evidence to prove that the document was actually read over and explained to the blind man before he signed it. Having failed to do so, it is my judgment that no proper foundation was laid before the power of attorney was tendered. The learned trial judge was therefore not in error when he upheld the objection or rejected the document. This is so, even though I do not share or endorse the reasons assigned by the trial judge for his rejection. The appeal is accordingly dismissed and the case which is part heard is remitted to the court below for the trial to be continued. Appeal dismissed.

DRKS