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  • appeal
  • 1961-05-15
  • GLR 239-240
  • Print



Fraud and undue influence?-Claim for declaration that duly executed conveyance was null and void.


The first plaintiff had duly executed a conveyance giving certain property to the defendant, his step-daughter, in consideration of her good services to him. He later brought this action to have the conveyance declared null and void, alleging that it contained misrepresentations of fact. The second plaintiff, a paternal nephew of the first plaintiff joined in instituting the action, and although the defendant moved the trial native court for his ejection from the action on the ground that he had no interest in the subject-matter of the suit and was not a party to the conveyance, the trial native court allowed him to remain.


APPEAL from the judgment of Sarkodee-Adoo, J. in the land Court, Sekondi, delivered on the 24th October, 1958, which reversed the decision of the Sekondi-Takoradi Municipal Court, delivered on the 28th October, 1957, given in the defendant?'s favour in a claim by the plaintiff to have a conveyance executed by both parties declared null and void. J.K. Acquah was substituted for J.H.E. Dadzie while the appeal was pending.


Akiwumi J.S.C. delivered the judgment of the court. [His lordship read the plaintiffs?' claim and continued:] the second plaintiff, a paternal nephew of the first plaintiff joined the first plaintiff in instituting this action. It is clear from the evidence on record that the second plaintiff had no locus standi and ought not to have been a party to the suit. The defendant moved the native court for his ejection from the action on the grounds that he had no interest in the subject-matter of the suit and that he was not a party to the instrument dated the 9th February, 1956, which is being sought to be declared null and void. He however resisted the defendant?'s application and was wrongfully allowed by the trial court to remain a party. His evidence consisted of what the first plaintiff or some other person had told him and it being hearsay we decided to ignore it as inadmissible. [His lordship then referred to the facts and continued:]

To succeed in a claim for a declaration that a conveyance duly executed is a nullity, it is essential to prove one or the other of the following [p.240] grounds namely, fraud, undue influence, unconscionable bargain, or that it is contrary to public policy or that it is inequitable that the transaction should be allowed to stand. None of these grounds have been alleged or proved. In the absence of such evidence the municipal court was justified in refusing to declare the instrument in question a nullity or to decree that it be set aside. The judgment of the trial court contained this significant passage with which we entirely agree. The passage reads:

?"The main facts of the case are not disputed and they are as follows:- That after the death of 1st plaintiff's wife (defendant's mother) 1st plaintiff agreed to give some room or rooms in the house to defendant. That 1st plaintiff went to lawyer Gwira to prepare document conveying some portion of the house, room or rooms as the case may be, to defendant for good services rendered and that as a result the document was prepared and signed by 1st plaintiff and defendants. Plaintiff's main contention is that the document contained misrepresentations of facts and therefore a nullity, and having cited many instances to prove same, could not tell the court that 1st plaintiff executed the document under any duress, or unconsciously. In the circumstances above stated, I, as president of the court find that plaintiffs' action fails as there is no reason why any attempt should be made by this court to revoke or nullify the Indenture."

On appeal from the said judgment to the Land Court at Sekondi, the learned judge in the course of his judgment stated:

"The evidence adduced by the defendant-respondent and her witnesses with regard to the execution of the indenture dated the 9th day of February, 1959 (exhibit J) is most unsatisfactory, and to say the least, having regard to the circumstances as clearly appear in the proceedings, savours of fraud and dishonesty."

With due respect we are unable to agree with the conclusion reached by the learned judge. In the face of the evidence on record we fail to understand in what way the document in question or its execution can be said to be unsatisfactory. The first plaintiff admitted that he instructed the solicitor to prepare the document, that he read and executed it; the solicitor's evidence, which is unchallenged, clearly states the circumstances under which he was instructed by the first plaintiff. It is difficult to understand how the court could come to the conclusion that there had been fraud or dishonesty on the part of the defendant.

In Allcard v. Skinner1 Lindley, L.J. said inter alia:

?"The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? Or is it that it is right and expedient to save them from being victimised by other people? In my opinion the doctrine of undue influence is founded upon the second of these two principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction."

In this case we cannot find any proof that the gift made by the first plaintiff was the result of any actual exercise of undue influence on the part of the defendant.

For these reasons we allow the appeal.


<P>Appeal allowed.</P>

Plaintiff / Appellant

S. Baidoo

Defendant / Respondent

Dr. J. W. de Graft Johnson


Allcard v. Skinner (1887) 36 Ch. D. 145.

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