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The Court of Appeal constituted by Justices Angela Mensah-Homiah, Alexander Osei Tutu and Charles A. Wilson in a unanimous decision has reversed a decision of the High Court and by virtue of their decision, set aside a 40- year lease of a property situate at Okaishie acquired by Ofori Transport Ltd.
This decision of the Court was rendered in the 25th June, 2026 case of NII ASHITEY TETTEH & 3 ORS v. OFORI TRANSPORT LTD [TLP-CA-2026-29]. The decision of the Court rendered through a brilliant analysis of legal principles such as ownership of estate property and capacity of an administrator to alienate or deal with estate property, personal knowledge in testimony evidence, extrinsic evidence in contract interpretation, breach of trust, execution of documents by illiterates inter alia led the Court to set aside a 40-year lease entered between an administratrix of the estate of a deceased and a company in 1980.
The brief facts of the case are that the "Appellants are beneficiaries and administrators of the estate of James Macpherson Attram, who passed away in Accra in 1926. Property number D771/4, Beach Avenue, Okaishie, Accra, formed part of the deceased person's estate....in 1980, one Emma Okoryo Attram, who was then Administratrix of the estate of the late James Macpherson Attram assigned the [Okaishie] property to the Respondent for an additional 40-year term after the expiration of the 50 year lease and the 25-year renewal from 2021. According to the Respondent, it was the said Administratrix who approached them for the transaction when she was in financial crises. The Appellants raised doubts about the validity and authenticity of the 40-year lease alleged to have been executed in 1980, challenging the capacity of Emma Okoryo Attram to execute the lease on behalf of the Attram family when she was neither head of family nor Administratrix of the estate of the late James Macpherson Attram. They also alleged that there was no jurat on the lease because Emma Okoryo Attram was illiterate, and that cast doubt on the credibility of the lease".
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On the conduct of the learned E.D Kom of blessed memory, Justice Osei Tutu observed that "It defies logic that a solicitor of such exalted standing in this country, celebrated for the sharpness of his learning and acumen of his counsel – one who has instructed many great minds of the profession and committed his learning to writing – should nevertheless act in direct contradiction to the principle he professes. That such a practitioner should have elected to commence the administration of a family estate burdened with the interest of infants upon letters of administration of doubtful validity, granted to a single administrator, is both improbable and an affront to the dictates of prudence and the law. At the very least, as one being bound by the edicts of fidelity to his calling and the expectation of circumspection, he would have engaged the family to secure their consent before proceeding to execute the 40-year lease."
Lease has no jurat
The Court relied on the principles of law governing agreements entered by an illiterate person without a jurat clause. The Court rejected the contention by the Transport company-Respondent that the fact that E.D Kom, a lawyer and a highly respected one at that, drafted the lease agreement between the parties saved the defect of the absence of a jurat in the lease agreement executed by the illiterate lessor.
The Court formed the view that there is no evidence that the agreement was drafted by a lawyer especially in light of the enjoinment on a lawyer to endorse his/her name and address on a legal document drawn or prepared by the Lawyer.
The Court in the voice of Osei Tutu J.A observed as follows: "It may be conceded that where a legal practitioner drafts a deed or instrument for an illiterate signatory, the want of a jurat does not, of itself, vitiate the transaction. Yet the concession avails the Respondent little here, for the instrument before the Court bears no indicium that it was the handiwork of counsel. The exemption under section 9 of Cap 262 cannot be invoked. The Court cannot overlook the command of Section 43 of the Legal Profession Act of 1960, (Act 32), which ordains: "43. Endorsement on documents (1) A person who draws or prepares a legal document for reward shall endorse or cause to be endorsed on the document the name and address of that person. (2) A person omitting so to do commits an offence and is liable on summary conviction to a fine not exceeding twenty-five penalty units.”