Published August 8, 2025
Supreme Court · [2011] GHASC 38 · Ghana
Introduction
This case centred on a land dispute involving a purported sale transaction and, critically, the binding nature of a document (Exhibit B) on parties who claimed to be illiterates.
Facts
This case arose from a dispute over the rightful ownership of a 20-acre parcel of land at Adamorobe. The Plaintiffs, Kwaku Bamfi Adomako and his wife, claimed to have acquired the land through an outright sale from the Asakyiri Aduamoah family, represented by Nana Odjobi Aduamoah IV. They had intended to use the land for a vocational school. However, their ownership was challenged by members of the same family who argued that the transaction was not a sale but a conditional licence granted without proper authority.
The Plaintiffs asserted that they acquired the land with the full consent of the family, and an indenture to that effect -Exhibit B- was signed by Nana Odjobi and others and subsequently registered. They claimed that following the sale, they were compelled to seek judicial protection after their ownership was challenged by Opanin Kofi Duodu, the 1st Defendant, who succeeded Nana Odjobi as head of the family, and other relatives. The Defendants denied that there was an outright sale, insisting instead that the land was only licensed for use, subject to certain conditions, including the sharing of profits from the school, the construction of a family house, and the establishment of a block factory. They further contended that Nana Odjobi lacked the authority to sell the land and that the transaction was void for want of consent and concurrence from the principal elders of the family.
The High Court accepted the Plaintiffs’ version of events in part but ultimately dismissed their claim, finding that while Nana Odjobi might have had the capacity to act, he did not obtain the required concurrence of principal elders. The court accordingly declared the sale void and upheld the Defendants’ counterclaim, ordering the indenture to be expunged from the Land Registry.
The Plaintiffs appealed successfully to the Court of Appeal, prompting the Defendants to escalate the matter to the Supreme Court. Among the issues raised were whether Nana Odjobi had the authority to sell the land, whether the transaction was valid under customary law, and whether the principal elders had consented.
Holding
The Supreme Court affirmed the Court of Appeal’s decision that the 1st, 2nd, and 3rd appellants were bound by Exhibit B and could not use the Illiterates Protection Ordinance to deny the respondents their entitlement. The Court explicitly held that the presence or otherwise of a jurat should not be conclusive of whether or not the illiterate should be bound by the document complained of. The Court stated that evidence – whether direct, circumstantial, or a mixture of both -can rebut the presumption of an illiterate signatory’s ignorance. It further stressed that the absence of an interpretation clause is not a sine qua non (a precondition) for invalidity.
The Court determined that the 1st, 2nd, and 3rd appellants, through their active involvement in the transaction, including accompanying Nana Odjobi and being present during the signing of Exhibit B, clearly knew that the document governed the sale of their family land.
Implication
This ruling significantly clarifies the application of the Illiterates Protection Ordinance (Cap 262) in Ghana, particularly concerning the validity of documents executed by illiterates. It implies that:
- The absence of a formal “jurat” (a clause stating the document was read over and explained to the illiterate) is not, in itself, an automatic ground for invalidating a document executed by an illiterate person. While a jurat raises a presumption of understanding, this presumption is rebuttable.
- The burden of proof remains on the party relying on the document to demonstrate that the illiterate person fully understood and appreciated its contents, even if a formal jurat is missing. This can be established through a holistic assessment of all available evidence, including the illiterate’s conduct before, during, and after the transaction.
- The Ordinance is intended to protect illiterates from exploitation, but it cannot be used as a “cloak” or “subterfuge” to perpetrate fraud or to avoid legitimately entered agreements where the illiterate demonstrably understood the transaction. This prevents illiteracy from being weaponised against innocent parties.
- The actions and representations of an illiterate party, particularly their active participation in negotiations and awareness of the transaction’s purpose, can create an estoppel, preventing them from later denying their consent or understanding.
Significant Quote
“The clear principle emanating from these cases is that, courts must not to make a fetish of the presence or otherwise of a jurat on executed documents. To hold otherwise, without a single exception, is to open the floodgates to stark injustice. Admittedly, the presence of a jurat may be presumptive of the facts alleged in the document, including the jurat. But that presumption is rebuttable, it is not conclusive. The clear object of the Illiterates Protection Ordinance, Cap 262 (1951 Rev.) is to protect illiterates for whom a document was made against unscrupulous opponents and their fraudulent claims; those who may want to take advantage of their illiteracy to bind them to an executed document detrimental to their interests. At the same time, the Ordinance cannot and must not be permitted to be used as a subterfuge or cloak by illiterates against innocent persons.” – Wood (Mrs) C.J
Commentary
This judgment by the Supreme Court provides a crucial nuance to the application of the Illiterates Protection Ordinance, especially when compared to previous interpretations that might have leaned towards strict formal compliance. While the Ordinance’s primary goal remains the protection of illiterate individuals from being bound by agreements they do not understand, this case clarifies that the absence of a jurat is not an insurmountable barrier to the validity of a document.
