ZODZEDOR AKUTEYE & ORS v. MAD. ADJOA NYARKOAH & ORS
November 19, 2015
COURT OF APPEAL
GHANA
CORAM
- MARFUL-SAU, JA (PRESIDING)
- AGNES DORDZIE, JA
- L.L. MENSAH, JA
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Evidence Law
- Tort Law
November 19, 2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal, per Marful-Sau JA (with Dordzie JA and L.L. Mensah JA concurring), reviewed a property dispute over H/No. D/11 at Tsinai-agbor, Ashaiman. The respondents—children of the late owner, Tsengor Akuteye—alleged that their siblings (2nd and 3rd defendants) fraudulently sold the house to the appellant and relied on the absence of properly executed jurats and interpreter names on sale documents. The trial court set aside the sale, citing fraud and noncompliance with the Illiterates’ Protection Act, and dismissed the appellant’s counterclaim. On appeal, the Court invoked Rule 8(9) to focus on whether Tsengor, an illiterate, appreciated the transaction. Applying Supreme Court authority, it held that absence of a jurat does not void a transaction if the illiterate understood it. Credible evidence, including DW1’s testimony and proof of a tractor purchased by Tsengor from the sale proceeds, showed comprehension and voluntariness; the fraud finding lacked evidential support. The Court set aside the judgment and entered judgment for the appellant, except for trespass damages.
MARFUL-SAU, JA: - The subject-matter of this appeal is H/No. D/11 situate at Tsinai-agbor, Ashaiman, which according to the plaintiffs/respondents belonged to their father the late Tsengor Akuteye, but sold to the 1st defendant/ appellant fraudulently by the 2nd and 3rd defendants in the suit. According to the plaintiffs/respondents, their father at the time of the alleged sale was very advanced in age and mentally unsound to engage in any sale transaction. The trial court after taking evidence from the parties entered judgment for the plaintiffs/ respondents and dismissed the counterclaim of the 1st defendant/appellant.
In his judgment the trial court found that even though the house the subject of the dispute was sold by Tsengor Akuteye, the father of Plaintiff / respondents, he did not appreciate and understand the transaction simply because the documents evidencing the sale had no properly executed jurats indicating that the contents were explained to Tsengor Akuteye in the language he understood. The court held at page 237 to 238 of the record of appeal as follows:-
‘’In conclusion the court for two main reasons of the documents of sale failing to comply with the Illiterate Protection Ordinance and for fraud as I have found set aside the sale of the property to the 1st defendant. I will dismiss all the reliefs that the 1st defendant seeks in her counterclaim’’.
It is against this judgment that the 1st defendant/appellant has appealed to this court praying that the judgment of the trial court be set aside and judgment entered for her on the counterclaim. In this appeal the 1st defendant/appellant will be referred to as the appellant while the plaintiff/respondents would be referred to as respondents. In the notice of appeal, the appellant raised four grounds as follows:-
(a) that the trial judge erred when he found that the 1st defendant who had paid for H/ No. D11 at Ashiaman and the lessee/vendor had secured consent of the transfer to the 1st defendant from the Tema Development Company had been defrauded.
(b) that the trial judge erred by relying solely on the absence of the name of the person who interpreted the content of Exhibit 1,2,3,4 and 5 to the vendor in the cause of the transaction to find that the sale of H/No. D11 at Ashiaman was tainted with fraud.
(c) that the trial judge erred when he failed to advert his mind to the fact that the land on which H/No. D11 is situate at Ashiaman is the property of Tema Development Company (TDC) and