AIKINS VRS CARTER (E1/3/22) [2023] GHAHC 477 (18 December 2023)

IN THE HIGH COURT OF JUSTICE, WESTERN REGION, HELD AT SEKONDI ON THE 18TH DAY OF DECEMBER, 2023, BEFORE HER LADYSHIP AFIA N. ADU- AMANKWA (MRS.) J. SUIT NO. E1/3/22 MONICA ADWOA AIKINS PLAINTIFF VRS. 1. NANA ARHIN CARTER 2. MATILDA AMA AMPAH 1ST DEFENDANT 2ND DEFENDANT JUDGMENT By her writ of summons filed on 20th September 2021, the plaintiff claims the following reliefs: “i. Declaration of title to H/No PT61; No. 18 Araba Wilson Avenue, (H/No. PT 61; Tadisco Down Bankyease) West Tanokrom. ii. Perpetual injunction restraining the Defendants by themselves or through their agents and assigns from doing anything inconsistent with the Plaintiff’s rights ownership and control of H/No PT 61; 18 Araba Wilson Avenue, (H/No. PT 61; Tadisco Down Bankyease) West Tanokrom. iii. Any other(s) as the court deems fit”. It is the plaintiff’s case that the defendants have fraudulently connived to deprive her of her property. According to her, she is the owner of H/No. 61, 18 Araba Wilson Avenue, West Tanokrom. In 2020, the 1st defendant expressed his interest in purchasing the house. They agreed on the purchase price of GHc800,000.00, and which oral agreement was reduced into writing. By the said agreement, the 1st defendant was to make full payment of the purchase price of GHc800,000.00 by the close of February 2021. However, as of the close of February 2021, the 1st defendant had only paid GHc270,000.00, and all calls on him to pay the balance had proved futile. Instead, the 1st defendant claimed that per the agreement executed between them, the property's purchase price was GHc270,000.00. As expected of the defendants, they denied the plaintiff’s allegations against them. In their statement of defence, they averred that upon negotiations, the agreed price of the house was pegged at GHc270,000.00, which the 1st defendant paid to the plaintiff. Subsequently, the plaintiff executed a deed of sale to the 1st defendant in the 2nd defendant’s name in the presence of the registrar of the High Court, Sekondi. After the execution of the document, the plaintiff introduced them to the tenants of the house and ordered the tenants to atone tenancy to them. They took possession of the house and started to renovate it. They counterclaimed for the following reliefs: “a) An order directed at the Plaintiff estopping Plaintiff from laying claim to the disputed house No. PT 61; No. 18 Araba Wilson Avenue, which she has duly sold to Defendants and the agreed consideration paid to her. b) Perpetual injunction restraining the Plaintiff, her agents, assigns, workmen from having anything to do with the disputed house. c) Cost”. After the close of pleadings, the following issues were set down for trial: i. Whether or not H/No. 61, 18 Araba Wilson Avenue, West Tanokrom (H/No. PT 61, Tadisco Down, West Tanokrom-Bankyease) as at December 2020 had an open market value fixed at Nine hundred and twenty-one thousand and seven Ghana cedis twelve pesewas (GHc921,007.12) ii. Whether or not the Plaintiff offered to sell H/No. 61, 18 Araba Wilson Avenue, West Tanokrom to the 1st defendant at a price of GHc800,000.00 (Eight hundred thousand Ghana cedis) iii. Whether or not the plaintiff is entitled to her claim. iv. Whether or not the defendants are entitled to their claim. BURDEN OF PROOF As a civil suit, the plaintiff initially assumes the burden of providing sufficient and cogent evidence to prove the allegation against her adversaries. Section 14 of the Evidence Act, 1975, NRCD 323 provides that: “Except as otherwise provided by the law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. Proof in civil matters is on a preponderance of the probabilities. This is the standard in all civil cases in terms of the provisions in sections 11(4) and 12(2) of the Evidence Act, supra. In Takoradi Flour Mills vrs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court stated the position of the law regarding the burden of proof as follows: To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered, and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourable verdict. Upon the plaintiff adducing such evidence, leading the court to conclude on the probable existence of the claim than its non-existence, the defendant will then be required to adduce such evidence of fact essential to his defence. See Duah vrs Yorkwa [1993-94] 1 GLR 217. The defendants have also counterclaimed for certain reliefs and equally bear the same burden as the plaintiffs in respect of their claims. Once made, a counterclaim proceeds as an independent action even if the original action were concluded, stayed, discontinued or dismissed. The rules provide that in proceedings arising out of a counterclaim, the counterclaim is deemed as a writ and statement of claim. The party making the counterclaim and the party against whom it is made are also deemed the plaintiff and defendant, respectively. Therefore, the parties bear the burden of proving their respective claims on a balance of probabilities. Before discussing the merits of the case, it would be appropriate to summarise the parties' evidence at this juncture. SUMMARY OF EVIDENCE The plaintiff testified that she was a businesswoman and a resident of Ivory Coast, where she carried out her business activities. According to her, she was the owner of H/No. 61, 18 Araba Wilson Avenue, West Tanokrom, a house formerly known as H/No. PT 61, Tadisco Down, West Tanokrom (Bankyease). The house was a three-storey building with an outhouse located in a prime area in Takoradi. As of December 2020, the open market value of the building was fixed at nine hundred and twenty-one thousand and seven Ghana cedis, twelve pesewas (GHc 921, 007. 12). In 2020, she offered the house for sale. Her sister Ekua Yeboaba, who was resident in Tarkwa, introduced the 1st defendant, also resident in Tarkwa, to her as having an interest in purchasing her house. She agreed to sell the house to the 1st defendant for GHc800,000.00. By the oral agreement, the 1st defendant was to make full payment of the GHc800,000.00 by the close of February 2021. She entered into the agreement with the 1st defendant in the first week of December 2020. In that week, the 1st defendant paid GHC 130,000.00 to her to show his commitment to purchasing the property. Upon paying the money, the 1st defendant and his son picked her and her sister's daughter, Veronica Ansah, to the Court at Sekondi to sign the written agreement based on the oral agreement they had entered into. At the court at Sekondi, the 1st defendant went into one of the rooms and returned with a paper for her signature. He assured her that the contents of the document accurately represented the oral agreement they had reached. Consequently, she thumbprinted the agreement. Before leaving for Ivory Coast, she gave the 1st defendant her account number at the ABSA Bank, Takoradi branch, where he was to pay the monies. In January 2021, the 1st defendant paid GHc120.000.00. into her account but refused to pay the balance. As a result, she asked that the agreement be abrogated. Later, she learned that the 1st defendant had taken the account number of her son, Emmanuel and paid GHc 20,000.00 into the account as further payment of the purchase price. As a result, as of the close of February 2021, the 1st defendant had paid only GHc 270,000.00 out of the GHc800,000.00. All calls on him to pay the balance proved futile. She demanded that the 1st defendant either pay the balance outstanding or come for a refund of his monies paid. Instead of paying the balance, the 1st defendant told her that per the agreement that she had thumbprinted, the purchase price was GHc 270,000.00. She asked the 1st defendant to come for the monies he had paid as she could not sell her house for GHc 270,000.00. The plaintiff denied any knowledge of the 2nd defendant. She explained that on the day the 1st defendant picked her to the Court at Sekondi to sign the agreement, he was in the company of a young guy he claimed to be his son and Veronica Aikins, her sister's daughter and herself. The 2nd defendant was not present. Also, the 2nd defendant never paid GHc 270,000.00 to her on the said date, as appeared in the document. On 3rd December 2020, the 1st defendant paid GHC 130,000.00, and it was upon that payment that they went to court to sign an agreement to confirm her receipt of the money. She contended that she could not have sold the property at GHc270,000.00 given its value of GHc921,007.12. She further contended that the defendants had fraudulently connived to deprive her of her property, having taken advantage of her illiteracy. The plaintiff further testified that in relying on the fraudulent document, the 1st defendant had written to the tenants living in the house and introduced the 2nd defendant as the owner of the house to the extent of suing some of the tenants in Court to have them ejected. Apart from suing the tenants, the 1st defendant went to the extent of luring her sister Ekua Yeboaba, in whose possession her building documents were, to hand them over to him without her consent. She reported the incident to the Western Regional Police Command, Headquarters, Sekondi. Upon her sister’s plea that she did the wrong thing, she was advised by the police to pursue the matter in court. PW1, Eugene Amponsah Dadzie, a quantity surveyor, testified that the open market and forced sale values of the property were GH¢ 921,007.12 and GH¢ 874,956.77, respectively. He testified that in November 2020, he was contacted by one Albert Kyei Mensah, who informed him that the plaintiff wanted a valuation of her house situate at West Tanokrom (Bankyease) in Takoradi. He conducted the valuation and submitted his report to the plaintiff in December 2020. The 1st defendant testified that in November 2019, Akua Yeboaba's daughter, Veronica Ansah, whom he stayed with in Tarkwa, informed him that the plaintiff, the junior sister of Akua Yeboaba, was selling her house in Takoradi. He expressed interest and requested to know the owner of the house. Arrangements were made for him to meet the plaintiff at Asempa Hotel in Takoradi. When they met at the Asempa Hotel, he requested to see the house before they could discuss the price. The plaintiff’s son accompanied him to see the house. After the inspection, the plaintiff quoted the purchase price as GH¢350,000.00. He offered to pay GH¢250,000.00, but the plaintiff disagreed. He told her he was buying the property for his wife, the 2nd defendant, and so needed to confer with her. About three weeks later, they arranged to meet again, where he came with his wife to meet with the plaintiff. They negotiated and finally settled on an amount of GH¢270,000.00, of which he told her he would pay in a month’s time. Within that one month, the plaintiff called him almost every day to plead with him not to disappoint her. On the appointed day for the payment, she met with the plaintiff in the presence of her sister, Akua Yeboaba and her daughter, Veronica Ansah, and he gave her GH¢140,000.00 in addition to a cheque with the value of GH¢130,000.00. After the payment, the plaintiff went with him to the house and introduced him to the tenants as the new owner of the house. She also told him that one Kyei Mensah, whom they met, had an advance of GH¢1,000.00 and that she could give the GH¢1,000.00 to Kyei Mensah for him to deliver vacant possession. The plaintiff had her items in the house, so she pleaded with him to give her three months to remove them and give him vacant possession. Three months later, the plaintiff removed all her things and handed him the keys to the main house. Someone was living in the boys’ quarters, and the plaintiff told him that his tenancy had expired, so he rented out the place again to him. After paying the money to the plaintiff, they went to the High Court, Sekondi, where a document regarding the sale was prepared and delivered to him. After the payment, and on the same day, the plaintiff handed over all documents she had in respect of the property to him. After three months, he decided to renovate the house. He called upon Kyei Mensah to move his items to one room to enable him to renovate the kitchen to his standard, but he refused to do so. He took him to rent control, but the rent officer did not come up with anything. He took action at the Court to eject Kyei Mensah, and it was there that he was informed that the plaintiff had come to claim ownership of the house. DW1, Veronica Ansah, testified that the plaintiff was her mother's junior sister, whilst the defendants were her neighbours at Tarkwa. In 2019, her mother informed her that her junior sister had told her of her intention to sell her house in Takoradi. According to her mother, the plaintiff had tried all means to get a buyer to no avail. She informed the 2nd defendant, who told her she would inform her husband. The 1st defendant called her three days later to inquire about the information, which she confirmed. The 1st defendant asked her mother how he could contact the plaintiff, so her mother called the plaintiff, who took the 1st defendant's number. Her mother informed her later that the plaintiff had called her to join and meet with the 1st defendant. They all came to Takoradi to meet with him. After meeting with her aunt, the 1st defendant informed her about the outcome of the meeting and had agreed on the purchase price. At one point, her aunt called and inquired if the 1st defendant would not disappoint her, and she assured her of the honesty of the 1st defendant. On 29th November, the plaintiff called her that she was coming to Ghana on 3rd December to meet with the 1st defendant in respect of the transaction and so needed her to be present. That day, she was part of the meeting at Asempa Hotel with the 1st defendant, his wife, children and her mother, Akua Yeboaba. Before the 1st defendant made payment, her auntie took them to the house, introduced the 1st defendant to the tenants, and told the 1st defendant that it was left with one Kyei Mensah's balance of GH¢1,000.00, whose balance the plaintiff was ready to refund. She was made to relay the information to the occupant of the boys' quarters. They came back to Asempa Hotel, where the 1st defendant gave cash of GH¢140,000.00 to the plaintiff and took them to the NIB Bank, where the 1st defendant transferred GH¢130,000.00 to the plaintiff to make a total of GH¢270,000.00. After the payment, they went to the High Court with the plaintiff, where the parties signed a document, and she signed as a witness for the plaintiff. After the execution of the document, the plaintiff released every document covering the land to the 1st defendant. DW2, Safohen Sarbah, testified that the plaintiff was her landlord in House No. PT 61; 18 Araba Wilson Avenue, West Tanokrom. According to him, the plaintiff introduced the 1st defendant to her daughter as the new landlord in his absence. Later, the 1st defendant introduced himself to him. His lease was to expire in three months. Having failed to get a substitute accommodation, he pleaded with the 1st defendant to extend his lease for which he rented the boys’ quarters of the house from the 1st defendant. He was in the house when the plaintiff removed all her belongings from the house. MERITS It is the plaintiff’s case that she entered into an oral agreement with the 1st defendant to sell her property to him for GHc800,000.00. Having paid GHc270,000.00 out of the agreed purchase price of GHc800,000.00, the 1st defendant informed her that he had completed payment given that the agreed purchase price was GHc270,000.00. The 1st defendant relied on a purchase agreement, which he and the plaintiff both tendered in evidence as exhibits “2” and “B”, respectively, to support his assertion that the agreed purchase price was GHc270,000.00 and not GHc800,000.00. The plaintiff contended that given the value of the property as GHc921,007.12, she could not have agreed to sell her property at that value. She tendered the valuation report in respect of the property as exhibit “A”. The disputed property is a two-storey and not a three-storey building, as claimed by the plaintiff, with an outhouse located at Tadisco, Tanokrom, in Takoradi. The 1st defendant described the ground and 1st floor of the building as comprising a two bedroom and a kitchen and a bedroom and a hall whilst the 2nd floor was uncompleted but roofed. Certainly, the value set on the property by the valuer is consistent with the present market trends, given the size and the location of the building at Tadisco, a prime area of Takoradi. Therefore, it is not surprising that the valuer was not questioned regarding this value. It stands to reason that the plaintiff was not likely to sell her house for less than one-third of its value on the open market. The evidence is more consistent with her claim of setting the purchase price at GHc800,000.00, more so when the 1st defendant spread out the payments over two months rather than paying it in full. By exhibits “B” and “2”, the plaintiff had sold her property to the 2nd defendant for GHc270,000.00, which amount had been receipted for. The plaintiff and her witnesses thumb-printed the document. These witnesses were Veronica Ansah (DW1) and Ekua Yeboaba, the plaintiff’s sister. On the other hand, the 2nd defendant and her witnesses, including her son, signed the document. Even though the plaintiff did not dispute that she had thumbprinted the document, she contended that the 1st defendant deceived her into thumbprinting it by convincing her that it was a written record of their earlier agreement to sell her property for GHc800,000.00. In essence, the plaintiff denies that the agreement is her deed and relies on the plea of non est factum in her defence. The plea is a defence that is employed when a party claims that he signed a document under a mistaken belief about its nature or contents. The general rule as stated by Chitty on Contracts (23rd ed.), Vol. 1, para. 220 is that a man is estopped by his deed, and although there is no such estoppel in the case of an ordinary signed document, a party of full age and understanding is normally bound by his signature to a document, whether he reads or understands it or not. If, however, a party has been misled into executing a deed or signing a document of a class and character different from that which he intended to execute or sign, he can plead non est factum in an action against him. The plaintiff claims that the 1st defendant misled her into believing she was thumbprinting a document reflecting their oral agreement. However, it turned out that the document she had thumbprinted was between her and the 2nd defendant at an agreed purchase price of GHc270,000.00. The defendants did not deny the plaintiff's evidence that she was an illiterate. She testified that she grew up in Cote d’Ivoire, having gone there at the age of fourteen years. She grew up there and worked as a head porter at the seashore. She further testified that when she met the 1st defendant, she told him she could neither read nor write the English language. I do not doubt the plaintiff’s evidence that she is an illiterate. One noticeable thing about the agreement is the absence of a jurat clause. Even though the plaintiff thumbprinted the document, there is no indication that the contents were explained to her prior to her thumbprinting the document. As an illiterate, it is presumed that she did not understand the contents of exhibits “B” and “2” despite the presence of her thumbprint on the document. As held in holding 4 of Mahama Hausa and Others vs. Baako Hausa and Another [1972] 2 GLR 469: “There is no presumption that an illiterate Ghanaian who does not understand English and cannot read or write has appreciated the meaning and effect of an English legal instrument because he is alleged to have set his mark to it by way of a thumbprint. Since the plaintiffs were illiterate in English and the contents of the document (exhibit 2) did not correspond with what they had understood themselves to be setting their thumbprints to, the contents of the document could not be used as an estoppel or as a basis to enforce a claim against them”. The burden was on the defendants, who were relying on the document to show that the plaintiff understood the contents of the document before appending her thumbprint to it. In Amankwanor vrs. Asare [1966] GLR 598, it was held that: “When an illiterate executes a document, there is no presumption that he has appreciated the meaning and effect of it. The onus of proving that he has appreciated the meaning and effect of the document is upon the party seeking to bind the illiterate to the terms of the document. Since the plaintiff’s first witness was admittedly illiterate, to bind him with exhibit A, a document obviously prepared in the English language, the onus lay upon the defendant to establish that it had in fact been properly explained and interpreted to him so as to make him understand its real import. The defendant failed to discharge this onus”. The defendants failed miserably to discharge the onus on them that the contents of exhibits “B” and “2” were explained to the plaintiff so she could appreciate the import of what she was thumbprinting. The absence of a jurat on the document raises the presumption that the contents were not explained to the plaintiff prior to thumbprinting. But that is only a rebuttable and not a conclusive presumption against the person who sought to rely on the document. Because, notwithstanding the absence of a jurat, where it was shown that the illiterate person fully appreciated the contents of a freely executed document but feigned such ignorance so as to escape legal responsibilities flowing from the document, the document should settle the issue in favour of the party relying on it. Thus as held in Duodu vrs. Adomako & Adomako [2012] 1 SCGLR 198: “In other words, in any action, it should be possible for the one seeking to enforce the contents of the disputed document to show that despite the absence of a formal jurat, the illiterate clearly understood and appreciated fully the contents of the document he or she marked or thumb printed”. The defendants led no evidence to show the plaintiff’s appreciation of the contents of the agreement prior to thumbprinting it. As the plaintiff did not understand the contents of the document to which she affixed her thumbprint, the document the defendants sought to rely on had no probative value and was invalid for all intents and purposes. See Nortey (No.2) vrs. African Institute of Journalism and Communication & Others (No.2) [2013- 2014] 1 SCGLR 703. FRAUD The plaintiff contends that the defendants have fraudulently connived to deprive her of the ownership of the disputed house, having taken advantage of her illiteracy. In accordance with the requirements of Order 11 Rule 12(1) of CI 47, the plaintiffs particularised the fraud in paragraph 9 of their statement of claim as follows: “PARTICULARS OF FRAUD i. Fraudulently stating that the plaintiff has agreed to sell her house at a price of GHc270,000.00 to the 2nd Defendant whom the Plaintiff has never entered into such agreement with the 2nd Defendant. ii. Fraudulently stating that the Plaintiff and the 2nd Defendant had appeared before the Registrar of the High Court, Sekondi on the 3/12/2020 to execute an agreement for the sale of Plaintiff’s house to the 2nd Defendant whom the Plaintiff had never appeared on the said date with the 2nd Defendant before the registrar to execute the purported agreement. iii. Fraudulently preparing an agreement in the English Language and making the Plaintiff to believe same as representing the oral agreement as referred to in paragraph 8 supra.” In proof of the fraud which the plaintiff alleges the defendants perpetrated on her, the plaintiff testified that: “i. Fraudulently stating that I agreed to sell my house at a price of GHC 270,000.00 to the 2nd Defendant whom I have never entered into such agreement with the 2nd Defendant. ii. Fraudulently stating that the Plaintiff and the 2nd Defendant had appeared before the Registrar of the High Court, Sekondi on the 3/12/2020 to execute an agreement for the sale of my house to the 2nd Defendant which said Defendant never appeared on the said date with me before the registrar to execute the purported agreement. iii. Fraudulently preparing an agreement in the English Language and making the plaintiff to believe same as representing the oral agreement entered into by the Plaintiff and the 1 Defendant for the sale of the Plaintiff's house at a price of GHC 800,000.00 and then fraudulently entering the purchase price in the said agreement as GHC 270,000.00. iv. Making the Ekua Yeboaba's daughter, Veronica Ansah thumbprint an oath of proof (exhibit "B") before the Registrar of the High Court, Sekondi that the Plaintiff understand the English language when the said Veronica Ansah, Ekua Yeboaba and the Plaintiff are all illiterate in the English language. v. Further making the said, Veronica Ansah thumbprint an oath of proof (exhibit "B") before the Registrar of the High Court, Sekondi that the Plaintiff and the 2 Defendant appeared before the said Registrar to execute exhibit "B" on the 3/12/2020 when in fact the Plaintiff and 2nd Defendant never appeared before the Registrar on the said date to execute the said agreement”. The question to determine is whether the evidence on these set of particulars constitutes fraud. In the case of Derry vrs. Peak (1889) 14 App. Cas 337 at 374, the court, per Lord Hershell, defined fraud as: “Fraud is proved when it is shown that a false representation has been made: (1) knowingly, (2) without belief in its truth or (3) recklessly, careless whether it be true or false. To prevent a false statement being fraudulent, there must I think, always to be, an honest belief in truth and this probably covers the whole ground, for one who knowingly alleges that which is false has obviously no such honest belief”. As fraud is criminal in nature, the standard of proof required is proof beyond a reasonable doubt. As was held in the case of Nana Asumadu II (deceased) and Nana Dankyi Quarm IV (deceased) vrs. Agya Ameyaw [2019] DLSC6295 “In law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. Fraud, be it civil or criminal, has one connotation. It connotes the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs”. The rule in section 13(1) of the Evidence Act, supra, emphasises that where in a civil case, crime is pleaded or alleged, the standard of proof changes from the civil one of the balance of probabilities to the criminal one of proof beyond a reasonable doubt. The plaintiff claims that Veronica Ansah thumb-printed an oath of proof before the registrar of the High Court, Sekondi, certifying that she could read and write. In exhibits “B” and “2”, Veronica Ansah swore to the oath of proof to the effect that the plaintiff could read and write. Veronica Ansah testified that after the 1st defendant had paid the plaintiff, they went to the High Court, where the parties signed the document, and she also signed. She admitted under cross-examination that she was an illiterate. She further denied having deposed to exhibits “B” and “2” that the plaintiff was literate. Of course, one wonders how an illiterate could read and comprehend the contents of the document to which she had placed her thumbprint. This reinforces the plaintiff's position that she did not grasp the provisions of the deed, and, therefore, the defendants conspired to deprive her of her property by making it appear that she consented to sell her property to them for GHc270,000.00. Additionally, the plaintiff contended that the defendants had stated that she had agreed to sell the disputed house to the 2nd defendant, with whom she had never entered into any such agreement. It is the plaintiff's case that she does not know the 2nd defendant and, therefore, could not have entered into any contract with her, as evidenced by exhibits “B” and “2”. She testified that: “I must say that I don’t know the 2nd Defendant. Also, on the day the 1st Defendant picked to the court at Sekondi to sign a document, he was in the company of a young guy which he said to be his son and Veronica Aikins my sister’s daughter and myself. The 2nd Defendant was not part for it to be said that I executed any agreement with 2nd Defendant to sell my house to the said 2nd Defendant at a price of GHc270,000.00. Also the 2nd Defendant never paid an amount of GHc270,000.00 me (sic) on the said date as appears on exhibit “B”. However, the 1st defendant contends that he was present with the 2nd defendant and their children when the agreement was entered into and thumbprinted by the plaintiff. Under cross-examination, he testified that: “My wife and two kids Rhoda and Albert Arhin Carter met with the plaintiff on three occasions at Asempa hotel to negotiate the sale of the building. The initial payment of cash to her and further payment of money at NIB were done with my wife and children present. At the registry of the High Court, these said persons were with me and the plaintiff”. The defendants tendered a writ of summons to which the 2nd defendant had appended her signature. She was also a signatory to exhibits “B” and “2”. One need not be a handwriting expert to tell that the signatures on both documents differ, reinforcing the plaintiff’s claim that the 2nd defendant was not present at the High Court premises. The 2nd defendant did not testify to clarify this issue. The record of proceedings will show that she did not even participate in any of the trial proceedings. I believe the plaintiff's claim that she was not present in the High Court. She was adamant in her evidence that she negotiated and agreed on the purchase price with the 1st defendant, not the 2nd. As a result, she was surprised to learn that she had reached an agreement with the 2nd defendant, as evidenced by exhibits “B” and “2”. During the proceedings, the 1st defendant kept saying that when he bought the property, he used his wife’s name to document it. He also stated that: “I bought the house and decided to honour my wife of 40 years with it by documenting it in her name”. These assertions go to prove that the plaintiff did not have a hand in the preparation of the document. If she were, why would she execute the document with someone she had never met? The 1st defendant negotiated with her and, in its execution, decided to use his wife’s name. The plaintiff further stated that she was in the car when the 1st defendant brought the ink to her to thumbprint the document. It is quite clear that the 1st defendant facilitated the process by writing his wife’s name on the document and having the plaintiff thumbprint it without explaining the contents to her. The fact that the document was prepared and executed to give the impression that the plaintiff was literate and had appeared with the 2nd defendant before the registrar to execute the document when, in fact, the 2nd defendant was not around was fraudulent. The 1st defendant and DW1 were not truthful to the court regarding the execution of exhibits “B” and “2”. Having analysed the evidence, I find that the plaintiff has made a case of fraud against the defendants. The plaintiff was misled by the 1st defendant to thumbprint a paper that she mistook for a written version of their earlier oral agreement. That document was signed by the plaintiff and the 2nd defendant, who was not present. Again, his witness testified to the document that the plaintiff was literate even though the witness could not read or understand the contents of the paper to which she had affixed her thumbprint. In Good Shepherd Mission vrs. Sykes & Others [1997-98] 1 GLR 978, Georgina Woode JA (as she then was) approved the definition of fraud in the book “Kerr on Fraud and Mistake” (7th ed), page 1, and held that: "Fraud in the contemplation of a civil court of justice may be said to include properly all acts, omissions, and concealment which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscient advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud. Fraud in all cases implies a willful act on the part of any one whereby another is sought to be deprived, by illegal or inequitable means of what is entitled to." The purpose of the execution of the agreement was to deprive the plaintiff of the true worth of her property, which she had sold to the 1st defendant. Quite apart from exhibits ‘B” and “2”, which the defendants sought to rely on in support of their case, there is the evidence of DW1, who testified that she was present when the agreement was reached between the parties and when the money was paid to the plaintiff. However, given the earlier analysis regarding the execution of exhibits “B” and “2”, DW2 is hardly a person who can be trusted to tell the truth. Even though the 2nd defendant was not present, she insisted on her presence that day. The answers provided by the plaintiff have been very consistent throughout the trial. She testified that the 1st defendant made a part payment of GHc130,000.00 to her, which he paid into her ABSA account. The 1st defendant tendered the pay-in slip as exhibit “1”. However, she denied the payment of cash of GHc140,000.00 to her by the 1st defendant. She explained that the 1st defendant paid GHc120,000.00 into her account and subsequently paid GHc20,000.00 into her son’s account. The 1st defendant did not produce any receipt evidencing the cash payment to the plaintiff. Additionally, he admitted the payment of GHc20,000.00 to the plaintiff’s son but under different circumstances. Again, regarding showing the defendants the disputed house, the plaintiff admitted that prior to the payment of money, she took them to the premises and told one of the tenants that he was the person to whom she intended to sell the house. She denied handing over the title documents of the property to him. She explained that her sister, with whom she had left the documents before going back to Cote d'Ivoire, gave them to the 1st defendant. At the police station, her sister apologised for her actions, and she was advised to take civil action. Both the 1st defendant and DW1 stated otherwise, claiming that after receipt of the purchase money, she handed over the documents to the 1st defendant. My view of the 1st defendant and his witness is that they are not credible witnesses. The 1st defendant, with DW1’s help, sought to take advantage of the plaintiff’s disability by fraudulently passing off exhibits “B” and “2” as the agreement reached between them when the plaintiff did not understand its contents. Because of their fraudulent and deceptive behaviour, I am hesitant to believe their evidence regarding the purchase price and the title documents they claim the plaintiff gave to the 1st defendant. It makes more sense that the plaintiff, who was resident in Cote D’Ivoire, would leave the title documents in the custody of another pending the full payment of the house than to give same to the 1st defendant who was yet to make full payment. At the end of the day, I find that the agreement reached between the parties regarding the price of the disputed house was GHc800,000.00 and not GHc270,000.00. The defendants’ attempt to buy it at GHc270,000.00 was fraudulent. The 1st defendant has failed to comply with the terms of the oral agreement regarding the payment of the purchase price by his payment of GHc270,000.00 out of GHc800,000.00. That being the case, title in the property still remains in the plaintiff and has not passed to the 1st defendant. The plaintiff is entitled to her claims. I declare title to H/No PT61; No. 18 Araba Wilson Avenue, (H/No. PT 61; Tadisco Down Bankyease) West Tanokrom in the plaintiff. I grant an order of perpetual injunction restraining the defendants by themselves or through their agents and assigns from doing anything inconsistent with the Plaintiff’s rights, ownership and control of H/No PT 61; 18 Araba Wilson Avenue, (H/No. PT 61; Tadisco Down Bankyease) West Tanokrom. Even though the relief of recovery of possession was not endorsed on her writ of summons, on the strength of Hanna Assi (No. 2) vrs. Gihoc Refrigeration and Household Products Ltd. (No. 2) [2007-2008] SCGLR 16, the plaintiff is entitled to recover possession of the disputed property as it is clearly established on the evidence. The writ of summons is amended to include the relief of “Recovery of possession”. The plaintiff has sixty days from today to refund GHc270,000.00 deposited into her ABSA account to the 1st defendant. Similarly, the 1st defendant is required to hand over to the plaintiff the title documents to the property in his possession within fourteen days of receipt of GHc270,000.00. I make no order as to the plaintiff’s payment of interest to the 1st defendant. In as much as the 1st defendant could have earned interest on the money which the plaintiff has kept for close to three years, the 1st defendant has also been in possession of the property, which could have generated money for the plaintiff through rent. The 1st defendant made mention of having renovated the property. However, not much was mentioned regarding the renovations made, for which I am unable to make any award in his favour in that regard. The defendants’ counterclaim is dismissed. (SGD.) H/L AFIA N. ADU-AMANKWA (MRS.) JUSTICE OF THE HIGH COURT COUNSEL Sarah C. Otoo (holding Philip F. Buckman’s brief) appears for the Defendants. 20