NAA KLORDEY ODONKOR vs. REGINA AKOWUAH AND BENJAMIN QUAKU LUCKLAND [2013]DLHC8207

Date	2013-03-02
Suit No.	SUIT NO. C2/25/12
Citation No.	[2013]DLHC8207

HIS LORDSHIP JUSTICE JACOB B. BOON

E. N. POKU FOR PLAINTIFF

MARIAM AGYEMAN GYASI FOR FIRST DEFENDANT

[2013]DLHC8207
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													<main id="main" class="content" style="min-height: 60rem" >NAA KLORDEY
ODONKOR<o:p></o:p>vs.<o:p></o:p>REGINA AKOWUAH
AND BENJAMIN QUAKU LUCKLAND<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. C2/25/12&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
2ND MARCH, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E.
N. POKU FOR PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MARIAM
AGYEMAN GYASI FOR FIRST 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;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">HIS
LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>On 7th March, 2012, this court ordered the first defendant to
testify on oath regarding an allegation she made that she was misled into signing
a Memorandum of Understanding executed between her and the plaintiff. The order
was made under rule 3(2) of Order 14 of the High Court (Civil Procedure) Rules
2004, C.I. 47 in an application for summary judgment filed by the plaintiff
against the first defendant for the recovery of an amount of GH¢ 10,000.00
allegedly advanced to the 1st defendant and another by the plaintiff
on or about the 8th day of June, 2011 to be repaid by the 8th
of July, 2011. It was alleged that the defendants defaulted in repaying the
loan resulting in plaintiff instituting action against the first defendant for
the recovery of the amount on the ground that she had undertaken, in writing,
to make good the loan at the due date but had defaulted when it was due for
payment. The first defendant filed a defence in which she admitted signing what
is described as a Memorandum of Understanding, but said the plaintiff made her
believe she signed it as a witness. She alleged she was not part of any
financial transaction between the plaintiff and second defendant. According to
her, the only reason she signed the document was because plaintiff represented
to her she intended to withdraw the GH¢ 10,000.00 for her husband and was
advised by a teller at the bank that as the amount was colossal she needed a
witness. It is her case she agreed to sign the document as such a witness. She
raised the issue that she is lowly educated and could not have read and
understood the document. She said plaintiff thus took advantage of her low
educational background and misled her into signing the document which turned
out to be an undertaking to refund the GH¢10,000.00 &nbsp;allegedly given out by plaintiff to her and
the other defendant.<o:p></o:p><o:p>&nbsp;</o:p>In her testimony, the first defendant said when the document was
presented to her for her signature, she was then attending to a customer in her
supermarket; consequently, she said she did not take a good look at it before
she appended her signature. This evidence, on oath, gives the impression that
if she had properly studied the document, she would have known what its
contents were. Her testimony does not indicate she is so lowly educated that
she could not have read and understood the document. It was when she was
cross-examined by counsel for the plaintiff that she raised the issue of her
illiteracy and said for that reason she did not understand what she signed
believing she did so as a witness to a transaction between the plaintiff and
first defendant. Having heard and seen her when she testified, and in view of
her earlier evidence that she signed the document at a time she busily attended
to a customer in her supermarket for which reason she did not study it before
she signed, I am of the opinion her answer at her cross-examination that she is
an illiterate and cannot read is an afterthought and an attempt to hoodwink the
court. In &nbsp;my ruling of 7th
May, 2012, I stated at page 4, relying on the case of Wilson v Brobbey (1974)
IGLR 250 that “a party of full age and
understanding is bound by his signature to a document whether she reads or
understands it or not. However, there is an exception. Where a party alleges he
or she has been misled to execute a deed, or sign a document which is different
in character from what he intended to execute or sign, such a party can put up
a defence of non est factum in an action against him.”<o:p></o:p><o:p>&nbsp;</o:p>In the instant action, the first defendant cannot rely on the defence of
non est factum because of her testimony she signed the document without taking
the pains to read and know its contents. If she failed to read the document
before she signed, as I believe she is not an illiterate, she took a chance on
what it stood for, having intentionally done so. She was merely negligent in
her conduct and in such a situation she cannot avail herself of the defence of
non est factum. She is bound by her signature. The court therefore holds that
she has no valid defence to the action. The application filed by the plaintiff
on 16th February 2012 praying for leave to enter final judgment for
the recovery of GH¢10,000.00 from the 1st defendant is granted.<o:p></o:p>

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