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URIS A. QUARM
V.
OMANHENE BEKYIRE YANKAH II AND ANOTHER
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST (GHANA)
10TH DAY OF NOVEMBER, 1930
2PLR/1930/20 (WACA)
OTHER CITATION(S)
2PLR/1930/20 (WACA)
(1930) I WACA PP. 80-86
LEX (1930) – I WACA PP. 80-86
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BEFORE THEIR LORDSHIP(S):
DEANE, C.J. THE GOLD COAST COLONY
HALL, J.
SAWREY-COOKSON, J.
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BETWEEN:
URIS A. QUARM — Plaintiff-Appellant
AND
OMANHENE BEKYIRE YANKAH II AS REPRESENTING THE STOOL OF DUTCH SEKONDI — Defendant-Respondent
I. B. EPHRAIM — Defendant
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REPRESENTATION
R. S. Blay for the Plaintiff-Appellant.
G. J. Christian for the Defendant-Respondent.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Forgery alleged in civil transactions – Signature of executor(s) of a registered title Deed – Onus of proof – On whom lie – How properly discharged
CUSTOMARY LAW – CHIEFTAINCY/STOOL:- Legal status of Occupier of the Stool/Chief – How may be properly sued/viewed in an action relating to the action(s) of the stool/chieftaincy – Whether sued as representing the Stool not as the successor of the previous holder but only as the person for the time being representing something that has never changed
CUSTOMARY LAW – CHIEFTAINCY/STOOL:- Wrong committed by an agent of the stool acting under the authority of the stool and within the scope of his authority – Fraud – Where affects the rights/interests of third party – Whether stool liable as against third party – Whether relevant if the Stool itself had also been defrauded by its own agents
CUSTOMARY LAW – CHIEFTAINCY/STOOL:- Properly conception of as an entity which never dies – Legal effect of – Whether a corporation sole like the Crown – Implications for the legal liability of any occupants of the Stool for acts done by predecessors
ETHICS – LEGAL PRACTITIONER:- Duty of diligence – Proper role of a legal practitioner overseeing a real estate transaction where the parties are illiterate – Need to go beyond drawing the deed in due legal form – Need to keep an occurrence book in which he makes a note of what has been done so as to have a reasonable way of refreshing his memory when difficulties arise concerning the transaction
REAL ESTATE AND PROPERTY LAW – LAND:- Stool land – Sale of – Conveyance executed by proper persons – Fraud by Agent of Stool – Whether cannot affect rights of bona fide purchaser
REAL ESTATE AND PROPERTY LAW – LAND:- Customary law conveyance under Fanti customary law – Who must sign in order to bind a stool – Nature of evidence required – Recourse to published expert view – When recourse may be had to same by court – Relevant considerations
REAL ESTATE AND PROPERTY LAW – LAND:- Fraud in the execution of a Deed against a Land vendor – Personation of an essential party to the execution of the Deed – Where Deed voided therefrom – Cause(s) of action available to purchaser – Whether could maintain an action not only for fraud but also on the alternative claim for monies had and received to his use, owing to the total failure of the consideration for which he had paid money
REAL ESTATE AND PROPERTY LAW – LAND:- Registration of a Deed of Assignment – Presumption arising therefrom as to the form(s) and signatures of execution – Rebuttal that signatures on deed are forgeries – Onus of proof thereon – On whom lies – Effect of failure thereto
REAL ESTATE AND PROPERTY LAW – LAND:- Stool land – Where buyer shows evidence that Deed of conveyance properly made with relevant members of the Stool – Evidence that agent of the stool occasioned a fraud in some other particulars with respect to another third party with equitable interest over the land – Liability of the stool thereto – Relevant consideration
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PRACTICE AND PROCEDURE
EVIDENCE – CONTRADICITON:- Contradiction in evidence due to the passage of time – Attitude of court thereto – Where relates to event surrounding the execution of a registered deed of conveyance – How properly treated by court
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CASE SUMMARY
By a deed dated 20th October, 1920, purporting to be made between one Kwesi Miyewden and Ohene Segu Winwah II his elders and councillors and vendors and the plaintiff as purchaser, the vendors in consideration of the sum of £400 purported to convey to the use of the purchaser his heirs and assigns, forever, a plot of land at Dutch Sekondi. The plot of land in question, it is admitted, was at the time of the alleged sale the property of the Stool of Dutch Sekondi, and as such could be sold by the Stool, but Kwesi Miyewden being in occupation of it with the consent of the Stool and having built a house on it, it was recognised that he had an equity in the land and it was therefore thought necessary that he should join in the conveyance. The plaintiff having as he thought bought the land from the Stool with the consent of Miyewden, and having no particular use for it at the time, did not, it seems, take the trouble to obtain possession of it from Miyewden but left him in occupation of his house on the land. Sometime in 1928, however, the plaintiff determined to build upon the land: he therefore visited the plot and inspected it, together with an adjoining lot which was also his property, and informed Miyewden of his intention requesting him to give up possession. To his surprise Miyewden refused alleging that he had never sold the land to him.
Plaintiff thereupon took action against Miyewden to recover possession of the land, but on the action coming on before Howes, J. the learned Judge held that the plot was sold without the knowledge and consent of Miyewden, that his name had been inserted in the deed without his knowledge and that the transaction was fraudulent; he ordered that the sale should be set aside and the deed of conveyance impounded. Against that judgment the plaintiff did not appeal, but brought this action against the first defendant, the present occupant of the Stool of Dutch Sekondi, and therefore the representative of the Stool, and against Ephraim who had taken a prominent part in the sale to him of the plot of land, to recover the £400 purchase money which he alleged he had paid for the plot and to which accordingly he was entitled as the consideration had wholly failed.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) A Stool is corporation sole like the Crown, and when the representative of a Stool is sued as such, he is sued not as a successor of former occupants but as the person for the time being representing the Stool.
(2) A Deed of Conveyance of Stool land is sufficiently executed if it is signed by the Chief and his linguist.
(3) When it is alleged that the signatures to a deed are forged, the onus of proof is on the party alleging the forgery and must be strictly discharged.
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MAIN JUDGMENT
The following judgments were delivered:
DEANE, C.J. THE GOLD COAST COLONY.
This is an appeal by the plaintiff in the Court below from a judgment of Howes, J. in favour of the respondent Bekyire Yankah II as representative of the Stool of Dutch Sekondi. The relevant facts may be shortly stated. By a deed dated 20th October, 1920, purporting to be made between one Kwesi Miyewden and Ohene Segu Winwah II his elders and councillors and vendors and the plaintiff as purchaser, the vendors in consideration of the sum of £400 purported to convey to the use of the purchaser his heirs and assigns for ever a plot of land at Dutch Sekondi. The plot of land in question it is admitted was at the time of the alleged sale the property of the Stool of Dutch Sekondi, and as such could be sold by the Stool, but Kwesi Miyewden being in occupation of it with the consent of the Stool and having built a house on it, it was recognised that he had an equity in the land and it was therefore thought necessary that he should join in the conveyance. The plaintiff having as he thought bought the land from the Stool with the consent of Miyewden, and having no particular use for it at the time, did not, it seems, take the trouble to obtain possession of it from Miyewden but left him in occupation of his house on the land. Sometime in 1928, however, the plaintiff determined to build upon the land: he therefore visited the plot and inspected it, together with an adjoining lot which was also his property, and informed Miyewden of his intention requesting him to give up possession. To his surprise Miyewden refused alleging that he had never sold the land to him.
Plaintiff thereupon took action against Miyewden to recover possession of the land, but on the action coming on before Howes, J. the learned Judge held that the plot was sold without the knowledge and consent of Miyewden, that his name had been inserted in the deed without his knowledge and that the transaction was fraudulent; he ordered that the sale should be set aside and the deed of conveyance impounded. Against that judgment the plaintiff did not appeal, but brought this action against the first defendant, the present occupant of the Stool of Dutch Sekondi, and therefore the representative of the Stool, and against Ephraim who had taken a prominent part in the sale to him of the plot of land, to recover the £400 the purchase money which he alleged he had paid for the plot and to which accordingly he was entitled as the consideration had wholly failed..
Now it may be as well at once to clear the ground of a possible misconception. While the learned Judge found in the case of Quarm v. Miyewdon that the transaction was fraudulent, it is an admitted fact in this case that the plaintiff’s conduct in connection with this matter has never been anything but bona fide, and that whoever was guilty of any fraud, none can be imputed to him. He lived at the time apparently at Axim where he carried on the business of a timber merchant, and all that he did in connection with the matter was done through Mr. Williams, a Solicitor of some standing who lived at Sekondi. He states that Mr. Williams, who knew he wanted land, wrote and offered him that plot: that he inspected the land and agreed to buy. Subsequently on receiving from Mr. Williams the deed duly signed as he thought, he executed it himself and sent Mr. Williams his cheque for £400 the amount of the consideration money. That he did pay this £400 was found as a fact by the learned Judge who states in his judgment “The plaintiff has suffered damage as the result of the fraud; having paid $400 apart from the expenses in connection with the sale which he has not claimed.”
It is therefore an important element in this case that the plaintiff is an innocent person who did in fact pay £400 as the purchase price of a plot of land which he has been unable to get possession of, and on the supposition of fraud, that he has been defrauded of the sum of $400 not to mention the other damages to which he would be entitled consequentially.
The next thing to be noticed is that no fraud is imputed to Miyewden, Not only was he exonerated in the previous case, but in this case the learned Judge accepted his evidence that he never signed the deed and knew nothing of it as correct. But it, out of three parties to a contract which is held to be fraudulent, two are guiltless, the fraud must of necessity be confined to the third and since the deed which was held fraudulent was expressed to be made between the plaintiff, Miyewden and the Stool of Dutch Sekondi, and of these two plaintiff and Miyewden are innocent, it is obvious that the stool of Dutch Sekondi is the only party to whom the fraud can be imputed.
The only questions left to be decided were:
(1) Did the persons who purported to sign the deed as representing the Stool of Dutch Sekondi in fact represent the Stool so as to bind it, and
(2) did they actually sign?
The alternative plea put forward by the respondent that if the land was in fact sold to the plaintiff by the Stool, he is estopped by his neglect to take over possession from Miyewden of the land for a period of nine years such conduct amounting to collusion and fraud on the Stool, is in my opinion not tenable: on the evidence there is nothing to show that he ever colluded with anyone, and since he treated his adjoining plot in exactly the same way as he treated this plot, all that can be said of his conduct is that he relied upon the deed to get possession of the land when he needed it, and it is in my opinion no evidence of fraud against any one that he believed that another would honour his signature to a deed and acted on that belief.
One further observation on the law I think may be made. The fraud found by the learned Judge against the third party to the contract so far as I can understand consisted in procuring someone to personate Miyewden in the signing of the contract. When owing to this fraud the plaintiff failed in this action to recover the land from Miyewden, it is clear that he could maintain an action not only for fraud but also on the alternative claim for monies had and received to his use, owing to the total failure of the consideration for which he had paid his money to the third party. The learned Judge was in my opinion therefore wrong, when he laid down that the suit was wrongly framed and that the claim was not properly for money had and received by the defendants to the plaintiff’s use.
That we have therefore to determine in this case is could the persons who are alleged to have signed as representing the stool of Dutch Sekondi bind the stool by their signatures, and if so did they in fact sign the deed? Now a great deal of evidence has been taken by the learned Judge on the question of what must be done in order to bind the Stool, but although I have read his judgment carefully I have not been able to discover any finding as to who can bịnd the Stool by their signatures. Instead of applying his mind to that point, which it seems to me as of prime importance, the learned Judge appears to have been so obsessed by the idea that there was a fraud somewhere that he devoted practically the whole of his judgment to discussing whether the Stool was liable for a debt when a fraud had been committed irrespective, apparently, of any consideration as to who had been guilty of the fraud.
Basing his argument on the analogy of an executor and his testator, he held that the respondent could not be liable for the fraud of his predecessor. Now with the greatest respect to the learned Judge this analogy was an entirely false one, since the conception of the Stool that is and has always been accepted in the Courts of this Colony is that it is an entity which never dies, a corporation sole like the Crown, and that while the occupants of the Stool may come and go the Stool goes on forever. When, therefore, the respondent is sued as representing the Stool since he is the present occupant, he is not sued as the successor of the previous holder but only as the person for the time being representing something that has never changed; he is, in fact, the agent through whom the Stool acts at present, while the former chief was the agent through whom it formerly acted. Now as we have seen, the Stool is the only party to this deed who could have committed the fraud of which the appellant complains, and by which the learned Judge has found that he has been damnified, and if that is the case it seems to me that it does not matter a row of pins to the appellant’s case if the Stool itself had also been defrauded by its own agents as the learned Judge evidently believed.
That is a matter to be fought out and settled between the Stool and its agents, and it is certainly no reason for taking away appellant’s rights against the Stool. The evidence in fact on the question whether or no the money paid to the Stool was used for the purposes of the Stool, or was intercepted by Ephraim and the Chief and others whom the Judge believed he got to carry out the fraud, was in my opinion irrelevant; a purchaser who contracts with an agent is not bound to see that he hands over the money to his principal. The Stool in fact, cannot escape liability to the appellant for its own fraudulent acts, through its agents, so long as they are acting within the scope of their authority, by pleading that its agents have committed another fraud upon itself.
Now to resume the main thread of my argument, the learned Judge, as I have stated, has not found how many and who must sign in order to bind a stool, although a good deal of evidence was taken on the point. This evidence, as is usual in cases where native law is concerned, is obviously shaped to meet the special circumstances of the case and is somewhat contradictory. Luckily, however, in this matter we have authority to guide us. In Mr. Sarbah’s book on Fanti Customary Law at page 57 the learned author, while discussing the powers of the Stool to alienate Stool bands to strangers, after adverting to the point that land in the legal possession of a subject of the Stool cannot be alienated without his consent (hence the joinder of Miyewden in this deed), goes on to say “a person who desires to procure a grant of land or any concession from local ruler should make special enquiries and inform himself who the members of his Council are and get them or the linguist of the Council to join the head chief in making such a grant.”
It is clear, therefore, that in the opinion of the learned author, it is sufficient for the linguist of the Council alone to sign in lieu of the Elders and Councillors in order to bind the Stool a rule that appears to me so useful and reasonable that I think this Court should even if there were no good authority for it, lay it down so as to put an end to the uncertainty that seems to be prevalent on this matter. For if in English law a great corporation controlling millions of money and representing thousands of shareholders can be bound by the signature of its chairman or secretary accompanied by the affixing of its seal, it seems to me most reasonable that the consent of an unwieldly body like the Chief his Elders and Councillors of a petty community should be expressed by the signatures of the Chief and the Linguist who is recognised by native custom as the mouthpiece of the Stool, and that a purchaser should not be oppressed by the spectre of a couple of counsellors turning up to complain that they were never consulted and claiming on that account to set aside a contract for which he has in good faith paid valuable consideration. But in this case not only do the Chief for the time being and the Linguist (the evidence. proves that he was then the Head Linguist with Assistants) purport to sign the deed, but Ephraim, who is proved to have been Chief Councillor at the time although as a defendant he tried to excuse himself by setting up that he signed as a clerk or witness, attached his name to the document as one of the Councillors and Elders of the Stool, as well as the names of the two others one of whom is said to be a councillor and the other an elder.
And when we remember that the sale of this land was carried through by Mr. Williams, who was then and is still the Solicitor of the Stool, that this was one of a number of sales of land carried through by him without any difficulty arising, that Mr. Williams had been approached by the Stool to get a purchaser for the land and states that he was satisfied that the Stool, meaning thereby the Chief and Councillors as representing the state was willing to sell, that he knew the Councillors of the Stool, and Kweku Ansa Aiku the Linguist, that he paid £400 of his client’s money on the strength of the conveyance and the receipt which he was responsible for preparing, then unless we believe that Mr. Williams was a party to this fraud, which I do not think is suggested, the conclusion is irresistible that the persons who are alleged to have signed this document were the persons who were believed at the time to have the power to bind the Stool. That they did have the power to do so I am convinced, and the only remaining question is: did they sign?
Before I proceed to discuss this question, I have one observation to make of a general nature, which arises out of the facts disclosed in this case. The learned Judge in his judgment has commented on Mr, Williams not being able to assist the Court as much as he might have done owing to the time that has elapsed, and certainly in view of the practice that obtains in this Colony it would be strange if he could, since no one, without some document to refresh his memory, can be expected to remember clearly after nine years all the incidents attending a transaction in which nothing special has occurred so as to fix it in his memory. All that he can do is to say with regard to many things that he must have done so and so as it was his usual practice, or that he would not have handed over his client’s money to any but those entitled to receive it and so on.
In my opinion this should not be. In this Colony where nearly everyone is illiterate and signs as a marksman, a solicitor’s duty to his client, it seems to me, is not confined to drawing the deed in due legal form when he is carrying through a purchase of land by his client but goes further. He should in every case satisfy himself that the proper persons sign the deed of conveyance, and that they understand clearly what they are doing before he hands over or allows his client to hand over the purchase money. He should at the same time keep an occurrence book in which he makes a note of what has been done, then in case of any trouble arising afterwards he could refresh his memory from it and distressing cases like the present one would be much rarer. Had Mr. Williams kept a book in this case we should have known positively whether Miyewden did or did not sign this deed, since he was known personally to Mr. Williams, and we would not have been left with an uneasy feeling that possibly the villain of the piece is not Ephraim but Miyewden; while on the other hand, the fraud, if fraud was committed by the Chief, Ephraim and Company, could never have been perpetrated. – I think therefore that it is greatly to be desired that some such practice as I have outlined should be adopted by practitioners in future.
Having said so much I pass on to the question: was the deed executed by those whose names purport to be attached to it as representing the Stool? Now it is to be noticed that so long ago as 5th January, 1921, this deed was presented to the Registrar of Deeds and registered by him under Cap. 76 on the faith that it had been duly executed as shown by the attesting witness before a District Commissioner. The signatures in fact of the grantors were authenticated by the attesting witness and the deed became admissible evidence without further proof. The learned Judge recognised this as he admitted it in evidence when tendered. The position then clearly was that the signatures on the document were presumed to be genuine, until they were proved to be forgeries. Now on whom lay the onus of proving they were forgeries? Clearly on the defendant, if he challenged them. In Miyewden’s case that onus was accepted, and on Miyewden’s evidence this signature of Miyewden was held to be a forgery. But as to the other signatories there has been no such finding by the learned Judge, and he has nowhere found in terms that these signatures were affixed without their knowledge and consent. The signatories were not called in evidence to say that their signatures were forgeries, although they were all available with the exception of the Linguist who was dead, a fact which the learned Judge seems to have considered to tell against appellant’s case although, as I have pointed out, the onus was on the respondent, and all that was done by the respondent was to cross-examine Erskine, the attesting witness, as to the circumstances attending the affixing of the signatures. Naturally after the time that has elapsed there were contradictions, but it would in my opinion be a most dangerous precedent to say, on the strength of such contradictions and in the absence of the persons who could speak positively, that the signatures were forged. For if the validity of a deed is to be made dependent upon minor discrepancies in the evidence of witnesses to its execution years after it was executed, I venture to say that few titles in this Colony would be safe.
The learned Judge having expressed no opinion on the matter it is incumbent on us to come to a conclusion whether these signatures were forged or not, and I find that the evidence adduced on behalf of the respondent was not sufficient to establish that the signatures to this document were forged.
I should perhaps add that the defendant, in his pleadings, did not deny that the deed had been executed by these persons.
On the conclusions that I have arrived at, I find that the signatures of Ohene Segu Winwah II, Kweku Ansa Aiku, Kobina Busumtwi, Kwamina Busumtwi and Benjamin Ephraim were in fact set to this deed with their knowledge and consent, and that they bound the Stool of Dutch Sekondi. The appellant is therefore entitled to judgment as against respondent, the first defendant, with costs.
In the view that I have taken it is clear that Ephraim who signed the deed as a Counsellor would not be liable as he was merely one of those whose signatures were affixed as representing the Stool, which was the real contracting party, and the judgment against him must accordingly be set aside but without costs in this Court. The appeal will be allowed and the final order will be judgment for the plaintiff on the claim against the first defendant with costs here assessed at £67 and with costs in the Court below. The judgment against the second defendant to be set aside, and he will be entitled to his costs in the Court below.
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HALL, J.
I concur.
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SAWREY-COOKSON, J.
I concur.
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