Duress in Ghana case law.

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.”

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC

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.

HEMANS v COFIE [1997-98] 1 GLR 144 [1997] SLR (SC) 1 · Supreme Court · 1997 · ACQUAH JSC