TEI ANGMOR & COY. v. YIADOM III & ANOR

JUDGMENT OF KORSAH C.J.

(His lordship stated the facts and, referring to the judgment of the learned Judge of the Land Court, proceeded:-)

With respect, I can find no evidence on record to support these categorical pronouncements which presume that evidence had been adduced to prove an absolute sale and/or conveyance according to native customary law. The reference to Trama and Guaha and to Exhibit “B,” suggest that the learned Judge accepted Exhibit “B” as proof that Trama and Guaha custom had been performed.

It will be observed that Exhibit “B” is disputed by the defendants. It purports to be a paper prepared in the forest by someone, when the messengers of the vendors went to demarcate the area which was [p.160] to be sold to plaintiff-company. The writer was not called to give evidence, nor was any literate person, alleged to be present at its preparation, called to testify to its contents. No evidence has been adduced to prove that the document, which is in English, was translated to the messengers or that they knew the contents thereof. Nor was the person who made the marks of the messengers called. It is admitted by the plaintiff that this document was not shown to the defendant when they returned from the bush, nor was the defendant even informed that any document had been executed by his messengers. It was produced by plaintiff, who says it was made by the messengers and others when they were in the forest, and given to him in the forest. He did not mention it to the defendant until producing it 15 years later at the trial of this case in the Native Court.

In Kwamin v. Kufuor (Renner, vol. 1, para 2, p. 808) it was held that there 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 a legal instrument because he is alleged to have set his mark to it by way of signature.

Exhibit “B,” the intrument upon which the learned Judge based his judgment, is stated to be a “Memorandum of Pillars Agreement.” Whatever this menas, it purports to be an agreement relating to transfer of interest in or title to land. It is therefore an instrument which is liable to stamp duty. It is unstamped, and therefore could not be pleaded or admitted in evidence in any Court (vide sec. 15 of the Stamp Ordinance). Thus in Antu v Buedu (F.C. 1926-1929, p. 474) it was held that when a document which is liable to stamp duty had not been stamped, a copy thereof is inadmissible in cou