KESSIE vs. NAMIH AND OTHERS [1980]DLHC1590

Date	1980-04-25
Suit No.
Citation No.	[1980]DLHC1590

ROGER KORSAH J.

COBINA KESSIE FOR HIMSELF AS THE PLAINTIFF.

HAYFRON-BENJAMIN FOR THE CO-DEFENDANT.

[1980]DLHC1590
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													<main id="main" class="content" style="min-height: 60rem" >KESSIE <o:p></o:p>vs. <o:p></o:p>NAMIH AND OTHERS<o:p></o:p>[HIGH COURT, KUMASI] <o:p></o:p>[1980] GLR 444<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:
25
APRIL 1980<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">

COBINA KESSIE FOR HIMSELF AS THE PLAINTIFF.<o:p></o:p>

HAYFRON-BENJAMIN FOR THE CO-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">

ROGER KORSAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ROGER KORSAH J.<o:p></o:p>[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&nbsp; (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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>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?<o:p></o:p><o:p>&nbsp;</o:p>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
documents in the possession of the department, relevant to all transactions in
relation to the property in dispute, reposed. That file was file No. K 98. The
first document on record in file No. K 98 is a lease dated 13 May 1910 between
the Government of Ashanti as lessor and Kwasi Amoako, as lessee (exhibit 1) for
a period of seven years. On this lease, there is an endorsement in writing
which reads, “Transfer to Kobina Kessie approved. Lease renewed for further
period of—years from 1 April 1917.” This is the earliest record extant giving
information of a dealing with the property in dispute since the British
conquest of Ashanti.<o:p></o:p><o:p>&nbsp;</o:p>Exhibit 1
contradicts the assertion by Cobina (with a C) Kessie that the plot was
originally leased to a Senegalese gentleman who sold his hut on the property to
him [Cobina (with a C) Kessie]. I find it impossible to accept that in 1910
there was a Senegalese gentleman by name Kwasi Adomako to whom the Government
of Ashanti leased the property in dispute. If names are anything to go by,
Kwasi Adomako was, more likely than not, an Ashanti.<o:p></o:p><o:p>&nbsp;</o:p>