KESSIE v. NAMIH AND OTHERS

JUDGMENT OF ROGER KORSAH J.

[His lordship stated the facts (as summarised in the headnote) and continued.] The law, as I understand it, is that if M. D. Namih perpetrated a fraud on Cobina (with a C) Kessie, proceedings to avoid the transaction may be taken at any time while the influence still operated on the mind of Cobina (with a C) Kessie. But after the influence has ceased to persist, that is, after Cobina [p.447] (with a C) Kessie in 1949 had demanded, obtained and read exhibits A and B in which appeared the recitals that he had assigned the whole of his interest to M. D. Namih, he was enjoined by the law to commence proceedings within a reasonable time: see Bullock v. Lloyds Bank Ltd. [1955] Ch. 317; otherwise he must be taken to abide by the transaction and confirm it: see Allcard v. Skinner (1887) 36 Ch.D. 145, C.A. In my view, 27 years is too long a time to wait before commencing proceedings to vitiate the transaction between him and Namih on the grounds of fraud, if there was ever any fraud.

Now in exhibit C, which is the original indenture of lease between the Government of Ashanti and Kobina (with a K) Kessie, the signatory for the Government of Ashanti was Major Francis Walter Fitton Jackson, C.M.G., D.S.C. and his signature was witnessed by J. R. Dickinson. Kobina (with a K) Kessie, who was described in the jurat as "being a person not being able to write," also had his mark witnessed by J. R. Dickinson after the document had been interpreted to him by J. H. Folson.

Cobina Kessie admits knowing Jackson, Dickinson, who was Secretary to the Kumasi Public Health Board, and Folson. He also admits that his father and two brothers bore the same name of Kobina Kessie and that they were all illiterate. It also appears that apart from exhibit H, there is no other document dealing with plot No. O.T.B. 145 extant which has a Kobina Kessie therein described as literate, let alone as a teacher. And exhibit H was signed by Cobina (with a C) Kessie. I ask myself: Could Major Jackson—Acting Chief Commissioner of Ashanti, Mr. Dickinson—Secretary to the Kumasi Public Health Board and Mr. Folson, the interpreter, have conspired together to perpetrate a fraud on Cobina (with a C) Kessie? Is there any evidence that they did so conspire? Or is there any evidence of fraud on the part of anyone else?

The Records Officer of the Lands Department was called to testify on behalf of the co-defendant, and he made available to the parties the file in which all d