Division: SUPREME COURT, ACCRA
Date: 12 MARCH 1997
Before: CHARLES HAYFRON-BENJAMIN, AMPIAH, KPEGAH, ACQUAH AND AKUFFO JJSC
CASES REFERRED TO
(1) Barton v Armstrong [1976] AC 104.
(2) Board of Directors of Orthodox Secondary School of Peki v Tawlma-Abels [1974] 1 GLR 419, CA.
(3) Siboen and the Sibotre, The (1976) 1 Lloyds Rep 293.
(4) Pau On v Lau Yiu Long [1979] 3 All ER 65.
(5) Universe Sentinel, The [1983] 1 AC 366.
(6) Evia Luck (No 2), The (1990) 1 Llyods Rep 319.
(7) Maskell v Hornet [1914] All ER Rep 595.
(8) Kesarmel S/O Letchman Das v Valliappa Chettiar S/O Nagappa Chettiar [1954] 1 WLR 380; 98 SJ 126, PC.
(9) CIBC Mortgages Plc v Pitt [1993] 4 All ER 433, HL.
(10) Chief Superintendent of Police v Ceesay Gomex (1957) 2 WALR 87.
(11) Kuma v The Republic, Court of Appeal, 24 July 1970; digested in (1970) CC 113.
COUNSEL
Dr Acheampong (with him Emmanuel Sam) for the appellant.
Amegatcher (with him Kpatsa and Adadevoh) for the respondent.
[p.148] of [1997-98] 1 GLR 144
JUDGMENT OF ACQUAH JSC.
He delivered the judgment of the court. This is an appeal from the majority decision of the Court of Appeal reversing the judgment of the High Court, Accra in a suit in which the plaintiff, a 68 year old pensioneer and contractor sought:
“(a) An order setting aside as null and void the purported sale and purchase of plaintiff’s house No A 802/15, Abossey Okai, Accra by the first defendant on grounds of uncon-scionability and duress.
(b) An order of perpetual injunction restraining the defendants, their agents, servants, assigns from interfering with and in any way dealing with the said house.”
The brief facts are that in early 1987, the plaintiff became indebted to a number of people. According to him, the debt arose partly from building materials he obtained on credit for his contract works and partly advances by his clients to undertake some extensions on their buildings. When he defaulted in fulfilling these obligations, the creditors reported him to the Odorkor Police. The police arrested and locked him in their cells for eight weeks. He was released and freed only after he had succumbed to pressures from the police to sell his house and the proceeds therefrom used in paying off the creditors. On his release, he filed the instant writ at the High Court, Accra against the purchaser as the first defendant, and the officer in charge of the Odorkor Police, one Superintendent Lumor, as the second defendant claiming the reliefs set out above.
In his accompanying statement of claim, the plaintiff pleaded that while in police custody, the police threatened and pressurised him to sell his house to pay off the debts otherwise he would not be released. In view of his age and failing health, he became sick and weak and was refused medical treatment. With such coercion from the police, coupled with a refusal even to grant him bail to raise a loan to pay his creditors, he succumbed to police pressure to sell his house to the first defendant when the first defendant witness was introduced to him at the police cells as the intended purchaser. He was told that the first defendant witness had valued the house at 04 million and that he had paid the money to the second defendant. He was then made to sign a document of
[p.149] of [1997-98] 1 GLR 144
transfer of title of the house to the first defendant. He pleaded further that out of the alleged 04 million purchase price, the second defendant claimed that he used 02,283,000 to pay the creditors and 0350,000 for the agents who assisted in the sale of the house. He then concluded that the sale of his house for 04 million is unconscionable and was vitiated by duress, the particulars of which he set out as:
“Particulars of duress
(a) Being kept in police custody by the second defendant for an unreasonable period of nine weeks for owing a civil debt and without being prosecuted.
(b) The second defendant refusing to grant the plaintiff police bail so as to enable him find money to pay his just debt.
(c) Unreasonably withholding bail or refusing to grant bail to the plaintiff unless he executed a document transfering his interest in his said house No B302/15, to the first defendant.
(d) The second defendant granting bail to the plaintiff only after the plaintiff had been pressurised to sell his said house No B802/15, to the first defendant.
(e) Refusing to grant permission to the plaintiff to seek medical attention whilst in police custody.”
In her amended statement of defence and counterclaim, the first defendant pleaded that the house was sold to her by the plaintiff for 04 million and a receipt was issued by the plaintiff to that effect. She stated that the plaintiff was arrested not because of debts due to his business friends as pleaded by him, but because of fraud perpetrated by the plaintiff on about 30 people. She averred that it was her husband, Joseph Amoako, who acted as her agent and negotiated for the purchase of the house, and that she was put in possession thereof by the plaintiff on 9 October 1987. She further pleaded that thereafter she spent large amount of money to carry out extensive renovations on the house to the knowledge, consent and concurrence of the plaintiff. And that after the sale, the second defendant insisted that a document be executed to
[p.150] of [1997-98] 1 GLR 144
evidence the transaction. But the plaintiff persistently refused. Hence she counterclaimed for:
“(a) An order for specific performance for the plaintiff to execute a deed of conveyance to the first defendant.
(b) An order of ejectment of the plaintiff from the boys’ quarters of house No B802/15, New Abossey
Okai, the subject matter of this suit.
(c) An order of perpetual injunction restraining the plaintiff from interfering or dealing in any way with the said house.”
An appearance was entered for the second defendant followed by a statement of defence in which he stated that the plaintiff was arrested by the police upon several complaints by people defrauded by the plaintiff. He denied exerting any pressure on the plaintiff and stated that the only time he saw the plaintiff was when the purchase price of the house was paid and the officer in charge of the case took the plaintiff to his office.
At the trial, the plaintiff testified, supported by her daughter as the first plaintiff witness. The first defendant too testified and called her husband as the first defendant witness, her son as the third defendant witness and an Alhaji who informed the first defendant witness of the sale as the second defendant witness. The second defendant did not testify.
In his judgment, the trial judge dismissed the plaintiff s claim and entered judgment for the first defendant for her counterclaim. At the Court of Appeal, the High Court’s judgment was reversed by a majority of two to one. The first defendant then appealed to this court on a number of. grounds, but in her statement of case she failed to argue those grounds except to pray that the sale was not made under duress. The plaintiff on the other hand, in his statement of case, commendably sought to demonstrate that the sale was procured through duress and invited us to dismiss the appeal.
From the pleadings and evidence the obvious issue for determination is whether the sale of the house was procured under duress. Now, duress is a common law concept which enables a person who has entered into a contract as a result of threats, to treat the contract as voidable. Originally the concept of duress
[p.151] of [1997-98] 1 GLR 144
was based on threats of criminal activity, for example “If you do not make this contract, I will hit you”: see Barton v Armstrong [1976] AC 104 for a modern example. Thus Chitty on Contract (26th ed), Vol 1, para 504 states: “Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment whether actual or threatened.” And in Halsbury’s Laws of England (4th ed), Vol 9, para 297 we have this definition: “By Duress is meant the compulsion under which a person acts through fear of personal suffering as from injury to the body or from confinement actual or threatened.”
The above definitions of duress were re-echoed by our Court of Appeal in Board of Directors of Orthodox Secondary School of Peki v Tawlma-Abels [1974] 1 GLR 419 at 423, CA thus:
“It is not every type of duress or coercion which suffices at common law to nullify the consent of a party to a contract and thereby nullify the contract. It is only actual or threatened physical violence to, or unlawful constraint of, the person of the contracting party which will suffice for the purpose; and even then, what is threatened must be unlawful.”
However, in recent years, the English courts have justifiably criticised the above view of duress as being too narrow as it failed to give due weight to the coercive effect of other illegitimate conduct or threats. Thus in The Siboen and the Sibotre [1976] 1 Lloyd Rep 293, Kerr J said that a plea of compulsion or coercion would also be available in other circumstances, eg where a person had been forced to enter into a contract under an imminent threat of having his house burnt down, or a valuable picture slashed. This view has been accepted in later cases so that the question now to be asked, is whether there has been “coercion of the will which vitiates consent”: see Pau On v Lau Yiu Long [1979] 3 All ER 65. In The Universe Sentinel [1983] 1 AC 366, for example, trade union officials threatened to induce the crew of a ship to break their contracts of employment and so to prevent the ship from leaving port. In view of the catastrophic financial consequences which the shipowners could suffer if these threats were carried out, it was conceded that the threat consituted1(1)sic
[p.152] of [1997-98] 1 GLR 144
“economic duress” vitiating the ship owners’ consent to an agreement to make certain payments to the union. The present position therefore is that to be capable of giving rise to duress, the threat must be illegitimate either because what is threatened is a legal wrong, or because the threat itself is wrongful (though what is to be done is lawful) or because it is contrary to public policy: see The Evia Luck (No 2) [1990] 1 Lloyd Rep 319.
Now, in determining whether there was a coercion of will such that there was no true consent, it is necessary to inquire whether the person alleged to have been coerced did or did not protest; whether at the time he was allegedly coerced into making the contract, he had no reasonable alternative but to agree: see Pau On v Lau Yiu Long (supra); whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are, as was recognised in Maskell v Hornet [1914] All ER Rep 595, relevant in determining whether he acted voluntarily or not.
It is also important to point out that the duress must be actually existing at the time of the making of the contract. For, in duress, the court is concerned with the procedural impropriety rather than the issue of substantive fairness. Thus a contract which results from duress does not have to be to the “manifest disadvantage” of the person who is persuaded to enter into it. Indeed, a contract which is substantively fair can be struck down simply because it was made under duress. It is rather in a plea of presumed undue influence that the unfairness of the transaction is a prerequisite for a successful action.
Where the duress is by a third party and not the other contracting party, it must be established that the other contracting party who is seeking to enforce the contract, knew at the time of making the contract, of the threat, or the compulsion or the constraint on the party pleading duress: see Kesarmal S/O Letchman Das v Valliapa Chettiar (NKV) S/O Nagoppa Chettiar [1954] 1 WLR 380; and CIBC Mortages v Pitt [1993] 4 All ER 433.
In the instant case, it is undisputed from the pleadings and evidence that the plaintiff, a 68 year old contractor, was arrested on the complaint of his creditors and kept in police cells for eight weeks without bail. As to whether this complaint amounts to
[p.153] of [1997-98] 1 GLR 144
fraud or not would be discussed later. In spite of the plaintiff s failing health and his plea to be released to enable him seek a loan to pay his debts, the police refused to either grant him bail or send him to court. It is further not in dispute that it was within this period of his incarceration at the police cells that negotiations for the sale of his house began and ended. As the third defendant witness put it: “The transaction for the purchase of the disputed house took place at the police station.”
Now, it is the case of the plaintiff that this sale was not of his own volition but the result of threats and pressures at the police station. Though the defendants deny this in their pleadings there is ample support for the plaintiff s case from the evidence of the defendants’ witnesses. The first defendant witness, the husband and agent of the first defendant in the sale transaction, said in his evidence in chief, that in his search for a house to buy for the first defendant, “Alhaji told me we should go to Odorkor Police Station where there was someone who wanted to sell his property to find money to free himself from the hands of the police.” (The emphasis is mine.) The expression “to free himself from the hands of the police” obviously testifies to the determination of the police not to release the plaintiff unless he had sold his property to pay off the creditors. The evidence further confirms the threat or coercion exerted by the police on the plaintiff to sell his house. And to make it impossible for the plaintiff to refuse to comply, the police kept him in their cells and refused to grant him bail. In the said circumstances, the plaintiff had no reasonable alternative but to succumb to the threat or coercion of the police.
Again, the above evidence of the first defendant witness unequivocally establishes that even before the first defendant witness got to the police station, he as agent of the first defendant, knew that the plaintiff was being threatened or coerced into selling his house. And at the police station the first defendant witness’ knowledge of the plight of the plaintiff was confirmed by what he saw and described under cross-examination as follows:
“I first saw the plaintiff at the police station at the cells. I was told that he had been at the police station
for three weeks . . . I negotiated with the plaintiff at the cells . . .
[p.154] of [1997-98] 1 GLR 144
Whilst I was negotiating with him for the sale of the house, there was a policeman around.”
(The emphasis is mine.) As to the status of this policeman and why he was present at the negotiations at the cells, the first defendant witness said:
“The deputy head of the police there took part in the negotiation . . . The plaintiff was there to pay money to people whom the plaintiff owed money and therefore the police was there to see he would get the money to pay them so that the plaintiff could be released by the police.”
(The emphasis is mine) Thus the first defendant witness, equipped with the information from Alhaji, came to the police station, and had first hand knowledge of the pathetic situation of the plaintiff, and nevertheless proceeded to negotiate with him at the cells in the presence of a policeman.
Again, the evidence of the second defendant witness, the Alhaji who took the first defendant witness to the police station, confirms how the plaintiff was under police escort throughout the whole transaction, and that after each trip from town, “the plaintiff was locked back in the cells.” He said when they went and inspected the house, the plaintiff “was still in police hands.” And the third defendant witness, talking about where the documents of sale was signed by the plaintiff, said in his evidence in chief: “The document was signed at the CID office . . . It was only one Inspector Paddy, Sgt Ben, CID who were present.” Since the first defendant witness is the husband and agent of the first defendant in the whole transaction, the first defendant witness’ knowledge of the circumstances and plight of the plaintiff before and at the time of the sale is imputed to the first defendant.
Now, were the police right in detaining the plaintiff at their cells for eight weeks and to free him only after the sale of his house to pay off his creditors? The plaintiff alleged that the complainants were people he had credited building materials from and the others were those from whom he had received advance for some renovation works on their buildings. But the defendants contend that the plaintiff committed fraud on these people. Certainly,
[p.155] of [1997-98] 1 GLR 144
if one obtains goods on credit and defaults in paying, or receives money from people to do some work but fails to do the work, the default in each case amounts to a breach of the contract, the remedy of which lies in the civil courts and not the police station. Neither situation amounts to fraud. For as section 132 of the Criminal Code, 1960 (Act 29) provides:
“132. A person is guilty of defrauding by false pretences if, by means of any pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything.”
False pretence is defined in section 133(1) of Act 29 and by that definition, false pretence must involve a false representation of an existing fact. A promise of an event in the future can found liability if it is coupled with a false statement of an existing fact: see Chief Superintendent of Police v Ceesay (1957) 3 WALR 87. And a mere representation that something will happen or is likely to happen does not amount to fraud by false pretences; Kuma v The Republic, Court of Appeal, 24 July 1970; digested in (1970) CC 133. Accordingly, the complaint lodged against the plaintiff does not support a case of fraud to empower the police to arrest and detain him in police cells.
Now, after the complainants were paid from the purchase price of the house, the plaintiff was freed and never prosecuted. If the complaint was indeed one of fraud as alleged, and therefore caught by section 131 of Act 29 as amended by the Criminal Code (Amendment) Decree, 1969 (NLCD 398), then the police had no option but to prosecute him, since even the courts have no power to settle an offence amounting to felony. Section 131 of Act 29 as amended by NLCD 398 makes defrauding by false pretences, a second degree felony. And section 68 of the Courts Act, 1971 (Act 372), the law then in force (now section 73 of the Courts Act, 1993 (Act 459), sets out which offences can be settled out of court as follows:
“68. Any Court, having jurisdiction in a criminal case may promote reconciliation and encourage and facilitate a settlement, in an amicable way, of proceedings for assault or
[p.156] of [1997-98] 1 GLR 144
for any other offence, not amounting to felony and not aggravated in degree, on payment of compensation or on other terms approved by the Court before which the case is tried . . . “
It is thus evident that if even the complaint was that of fraud, the police still had no legal authority to settle it by demanding a sale of the plaintiff s house to pay off the complainants.
Indeed, it stands out glaringly from the evidence of the plaintiff himself and that of the three defendant witnesses that the sole purpose for the sale of the house was to enable the plaintiff to be freed from the hands of the police. Thus in an answer to the question why he signed the receipt for the 04 million when same was not paid to him but to the second defendant, the plaintiff replied:
“I signed the documents for me to be free. I am a hypertensive patient. After signing the paper, then the second defendant gave me 01 million balance. The second defendant told me that the balance of 03 million would be paid to my creditors. After that I was released to go home.”
Clearly, such a purpose is a vivid testimony of how the police had unlawfully succeeded in completely breaking down the will of the 68 year old pensioner and forcing him by threats to sell his house to pay off the creditors.
Again, the manner in which the police secured the arrest of the plaintiff is itself unlawful. The first plaintiff witness testified to it in her evidence as follows:
“ . . . one day I was alone in the house when policemen came to the house. My father was not in . . . The police forced the door open and looked for my father but truly my father was not in the house. After the search the police and the complainant left for the site of my father’s contract. They did not see my father at the site, but saw my brother who works with my father at the site. They arrested my brother and took him to the Odorkor Police Station. After four days, my father came back to the house and I told him . . . we followed up to the Odorkor Police Station . . . My brother was released and
[p.157] of [1997-98] 1 GLR 144
my father was arrested . . . detained at the Odorkor Police Station for eight weeks.”
What has the son done to merit such an unlawful arrest and detention?
Now, the plaintiff pleaded in his paragraphs (12) and (13) of his statement of claim that the second defendant disbursed the 04 million to the complainants and further pressurised him to execute a document to evidence the transaction. The second defendant denied this in his statement of defence. The first defendant in her amended statement of defence while not specifically denying the contention, further pleaded thus: “(16) In further answer to paragraph (13) the first defendant states that after the agreement had been reached the second defendant merely insisted that a document must be executed to evidence the sale.” (The emphasis is mine.) It is therefore abundantly clear that the entire negotiation and subsequent sale of the plaintiff s house was the handwork of the police, achieved through the unlawful arrest of the plaintiff and his son, coupled with the naked show of unlawful force and pressure exerted on the plaintiff at the time he was unlawfully incarcerated in their cells. A contract or transaction procured under such circumstances offends all civilised notions of justice and fair play, and cannot be enforced.
The records show that the plaintiff timeously issued the instant writ. For if one considers that the receipt of the 01 million is dated 6 October 1987 and the date of the writ is stated to be 29 October 1987, it shows that the writ was issued in less than a month after the payment of the purchase price. On the whole therefore, there is enough evidence from the plaintiff, supported by that of the defendant witnesses, establishing that the contract for the sale of the house was procured through duress by the police, and that the first defendant’s agent, the first defendant witness, knew of this duress before and at the time of the making of the contract.
However since the 04 million paid by the first defendant was used in settling the legitimate debts of the plaintiff, it is fair and proper that the said amount be refunded by the plaintiff to the first defendant.
The first defendant pleaded in her paragraph (12) of the amended statement of defence that on buying the house she “spent
[p.158] of [1997-98] 1 GLR 144
a large amount of money to carry out extensive renovations on the same house.” She did not specify how much and the details of the alleged renovations. And at the trial, neither the first defendant herself nor any of her witnesses said anything at all about these renovations. That averment therefore stands unsupported by a scintilla of evidence.
In conclusion it is quite clear that the majority judgment of the Court of Appeal cannot be faulted, and the appeal is accordingly dismissed. The majority judgment is confirmed and the first defendant’s counterclaim dismissed. The plaintiff is, however, to refund to the first defendant the 04 million purchase price.
We cannot conclude this case without commenting on the reprehensible conduct of the police in this matter. We do not know of any law which reduces the police to debt-collectors instead of protectors of the life and property of the citizenry. And we know of no law which permits the police to arrest a wife when they are looking for her husband, a son when looking for the father or vice-versa. Such practice constitutes negation of the fundamental rights of the individuals involved; and is unsupported by law and the Constitution, 1992. It must therefore be roundly condemned. This court will direct the attention of the Inspector-General of Police to the prevalence of such practice in the police stations.
DECISION
Appeal dismissed. LSNA.
Endnotes
