WALA vs. WAE [1966]DLHC1768

Date	1966-06-30
Suit No.
Citation No.	[1966]DLHC1768

HAYFRON-BENJAMIN J.

KOFI ACQUAAH FOR THE PLAINTIFF.

T. A. TOTOE FOR THE DEFENDANT.

[1966]DLHC1768
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													<main id="main" class="content" style="min-height: 60rem" >WALA<o:p></o:p>&nbsp;vs. <o:p></o:p>WAE <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1966] GLR 649<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 JUNE 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KOFI ACQUAAH FOR THE PLAINTIFF.<o:p></o:p>

T. A. TOTOE FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>The
plaintiff who is a farmer living at Techimantia borrowed a sum of money from
the defendant, also a farmer at Techimantia, and secured the payment of the
loan with his cocoa farm which is at a place commonly known as Afranso. The
farm has boundaries with the farms of Kwasi Adjei, Amma Paw, Kwasi Semidu,
Kwame Banie and Kwame Nimrah. Both the plaintiff and the defendant are
illiterate persons, but a document was caused to be prepared in English, and
executed by both parties. This dispute has arisen in respect of the exact terms
of the agreement and whether the document so prepared correctly set out the
terms of the agreement.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff‘s case is that he borrowed £G300 from the defendant and that interest
of £G150 was charged. He pledged his cocoa to the defendant to pluck for three
years to pay off both principal and interest, after which the cocoa farm was to
be released to him, the plaintiff. The defendant caused a document to be
prepared purporting to set out the terms of the agreement; he, the plaintiff,
executed this document but no copy was given to him. It is now claimed by the
defendant that the document was a mortgage deed by which the plaintiff had
mortgaged his farm to him for 22 years. The defendant therefore refuses to
release the farm even though the three years agreed upon have elapsed. The
plaintiff contends that the mortgage deed is fraudulent, and sets out the
particulars of the fraud as follows:<o:p></o:p><o:p>&nbsp;</o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) The
plaintiff was not made to understand that he was executing a mortgage deed.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) The
contents of the said mortgage deed were not properly or correctly interpreted
to the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>He
therefore claims a declaration of title to the cocoa farm, a declaration that
the mortgage deed is null and void as it does not disclose the correct
principal or interest charged, a nullification of the mortgage deed on the
ground of fraud, and an order for account of the proceeds of the said cocoa
farm from the date the defendant took possession of it to the final
determination of this case. The loan was in 1957.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant denies all the material allegations of the plaintiff and states that
he is not a moneylender. He denies that the plaintiff is the owner of the cocoa
farm and states that by a mortgage deed dated 18 January 1957, the legal estate
in the said farm was transferred from the plaintiff to the defendant for 22
years and the plaintiff is therefore only entitled now to the equity of
redemption of the cocoa farm. This mortgage deed, he says was prepared by a
practising solicitor at the instance of the plaintiff himself and the plaintiff
knew and understood the nature of the transaction, was informed of the contents
and had a copy of the deed of mortgage. By this mortgage deed executed between
the plaintiff and the defendant the defendant lent the plaintiff £G450 without
interest, and the plaintiff gave the defendant as security for the said loan
the said cocoa farm to keep and pluck for 22 years.<o:p></o:p><o:p>&nbsp;</o:p>At the
outset I shall consider whether the plaintiff can be said to be bound by the
mortgage deed which was executed on 18 January 1957. The law is clear and I
have reviewed the authorities in the consolidated case of Appenteng v. Bank of
West Africa Ltd.,1 that the burden of proof is on the party relying on a
document written in English to show that it was read over, interpreted and
explained, and that the illiterate person executing it understood and
appreciated its contents before appending his mark to it. Here both parties are
illiterate, and both agree that the document was read over and interpreted to
them. They differ as to the interpret</main>