|
JUDGMENT
MRS. WOOD, J.A.:
The Anona family of the
Awutu Traditional area, in the Central region of Ghana,
are the owners of a 600 acre tract of land at Obrayeho
and Amodua .
In about 1975, the
respondent company, upon an agreement reached with the
family, redeemed the said land from customary pledges
and then succeeded in obtaining a lease of the subject
matter upon terms which became the subject of much
heated controversy at the trial. Ten years after the
execution of the lease agreement, the appellant forcibly
entered the land, thus compelling the respondent to sue
for general and special damages, and orders for recovery
of possession and perpetual injunction. While the
respondent contended that the lease was for a term of 70
years at an annual rent of ¢ 1.00 (one cedi) per acre,
with an option for a further term of 25 years, the
appellant who was sued in his capacity as head of the
Family, had on the other hand maintained it was for 10
years certain only. He therefore vehemently challenged
the validity of the agreement on two main grounds.
Firstly, on the ground that the deed on which the
respondent relies was obtained by fraud and secondly,
that the agreement was unconscionable. The fraud was
particularised and also in terms which if put together
with other pleaded facts, clearly show that the
appellant is seeking redress under the Conveyancing
Decree NRCD 54, the S. 18 to be specific. So that,
while we may not find an express or specific plea that
the conveyance be set aside, under that statute, the
substance of the defence clearly discloses a challenge
to the agreement on the grounds of unconscionability.
Not surprisingly, they put in a counterclaim for:
(1) A declaration that
the said lease ……… is not binding upon the defendant.
(2) Alternatively, a
rescission of the said lease.
The learned trial judge
dismissed the counterclaim, granted relief to the
respondent on all his claims, but then at the same time,
describing the court as a “Court of Conscience …… and
……. Court of Equity” ordered “a speedy renegotiation by
the parties of the recoverable rent under the guidance
of an umpire who shall be the Registrar of the Court.”
They were further ordered to report back to the court.
These orders were made in spite of the court's own clear
and unambiguous finding that the agreement was not
unconscionable.
Dissatisfied, the
appellant has appealed on four grounds of appeal
namely:—
(a) The learned trial
judge did not consider sufficiently or at all the
evidence of the defendant that he understood the lease
to be for 10 years and that he had since 1984 tried to
rescind the lease or get the plaintiff to agree on a
revision of the rent.
(b) The learned trial
judge over relied on the evidence of witnesses who had
direct interests in the success of the plaintiff’s case
as against that of the defendant’s.
(c) The learned trial
judge failed to do equity in the circumstances of the
case.
(d) Damages of ¢8
million Cedis awarded to the plaintiff in the
circumstances is excessive and wrong in law.
The allegation of fraud
as pleaded by the appellant was that:
Paragraph 4., “(i) The
oral agreement was not a lease for 70 years but 10
years.
(ii) The oral
agreement did not certain a renewal for a further 25
years term.
(iii) Failing to read
the entire document to the defendant by concealing from
defendant the 70 plus 25 years term inserted in the
lease.
Defendant says that the
¢ 1.00 per acre was arrived at after the payment and not
before and it was fraudulent, unfair and unconscionable
for the plaintiff to have used the rate of ¢1.00 per
acre for the whole 70 years and 25 years term which he
unilaterally inserted in the lease”.
Undoubtedly, the
respondent led evidence in support of his claim that the
agreement was for 70 years with an option for a renewal
for a further term of 25 years. He did not only
tendered the lease agreement as Exhibit A but called two
other persons PW1, and PW2 who are a nephew and cousin
respectively to the appellant to support his claim.
With the evidential
burden shifting on to the appellant, he deposed that:
“The family first met
and agreed to grant their request for land to farm
on……… The plaintiff's representative and the family
entered into an arrangement for the representative to
redeem the pledge with Okwablah Adu ………… After the
redemption, we agreed with the plaintiff's
representative to have a grant of the land for a period
of 10 years……… The representative of the plaintiff
prepared a document on the grant and we executed or
signed it. Before the thumb printing, the document was
read to us. One Olaga, the lawyer who prepared the
document read it to us. He read to us in Twi. I
understood him to have explained that the land would be
redeemed after 10 years.”
Are the criticisms
levelled against the trial judge by the grounds (1) and
(2) justified? In other words, did he fail to consider
sufficiently or at all the appellant's defence, namely
that the agreement was for 10 years and further that
since 1984 he had tried unsuccessfully to have the
agreement rescinded or the rent raised? Secondly, did he
overly place undue weight on the evidence of the
respondent’s witnesses? My answer to both questions
would be in the negative. The trial judge painstakingly
reviewed the respective claims set up by each party, the
evidence in proof or disproof of the facts pleaded on
either side of this legal divide, as well as the
argument of their respective counsels in a manner that
ought to have attracted very little criticism.
Indeed, I would in a
direct answer to the charge that he failed to adequately
consider the appellant's case on the period of the
lease, say that he did. He appreciated the task facing
him and gave valid reasons for preferring the
respondent’s case to the appellant's. These findings are
amply supported by the record and this court would not
be justified in interfering with them. The well settled
rule of law which have been expanded in such cases as
Yakubu II v Abadulai 1984-1986 GLR 241 is that an
appellate court would disturb a finding of fact only
where there was no evidence in support or that the
preponderance of evidence weighs against that finding,
or wrong inferences were drawn from those findings.
To justify the position
that I have taken, I would reproduce the relevant
portions of the judgment which dealt with the issue of
the period of the lease.
“There is also
uncontroverted evidence on record to show that at a
meeting in the house one Nana Tiah (now deceased), then
an ex-chief of Awutu and an accredited member of the
aforesaid family assembled agreed to lease the land to
the company for a term of years. At that point, the
agreement was oral. Now the question whether by that
oral agreement the company was given to hold the demised
land for only 10 years, according to the defendant's
oath or for 70 years with the option for renew for
another 25, as the company's representative swore seems
to be the most crucial problem herein.”
The defendant made a
bare assertion on oath that his family agreed to grant
and did grant the company a lease of land at both
Obrayoho and Amodua for 10 years. He said he heard the
person who read the lease instrument (Exh A) at the time
of the execution thereof, to have said that the lease
was to last for 10 years. His terse evidence received
no corroboration whatsoever.
The evidence led on
behalf of the company, on the other hand, was amply
supported. Kojo Afedu, PW1 and a principal member of
the defendant's family swore that he was present when
the deed of the lease Exh A was executed and it was read
and made clear to the gathering that it was for a term
of 70 years ……. Similarly Emmanuel Kobina Tetteh also
known as Kobina Mohahay, a member of the Anona family…….
And PW3 confirmed on oath that Exh A was read,
translated into and explained in Ga to parties herein
and members of the defendant's family who had gone as
supporters of the defendant and witnesses to the
transaction. So that the term of years (70 years
certain, to be specific) as contained in the instrument,
it is submitted, could not have been lost on anyone
person present.
The evidence preferred
by the company’s representative, above all is neatly
consistent with the term of years set out in the
habendum of the lease (instrument) It reads ………
In the parcels clause,
“the same” that the lessees were granted to hold was
described with reference to the schedules of the
instrument providing further and better particulars of
the land. It is my view, significant that the defendant
has affirmed that exhibit A was read to all including
himself and the terms of years did register with his
hearing faculty as 10 years certain rather than 70
years, contained in the document…………
In the circumstances of
the foregoing, it is fair and reasonable in my judgment
to say that the term of years agreed upon by the parties
prior to the drawing up and the execution of the Exh. A
could not be other than 70 with the option to renew for
a further term of 25 years.”
Additionally, the
learned trial judge proceeded to consider thoroughly
well another defence which was akin to the appellant's
claim that he understood the term to be for 10 years
only.—the plea of the non est factum. The argument on
behalf of the appellant was that being a stark
illiterate, he could not be said to have “fully
appreciated the meaning and effect of Exh. A”.
Yet again, the trial
judge findings on the issue is faultless. He reasoned as
follows:
“Section 4 of the
illiterates Protection Ordinance Cap 262 (1951) Rev.
lays down mandatory provisions as follows:
“4 ………………….
(1 ) …………………..
(3) …………………. foot of
the letter or other document as shown by the attestation
clause, Exh A was duly read over, interpreted and
explained in his language by one Bodyea to the defendant
representing Anona family, “when he appeared to
understand the same before his mark was made in the
presence of four witnesses all members of the said
family. PW3 corroborated the evidence led by the
company’s representative on this issue. Both were aware
that the document was read over, interpreted and
explained to him. He did not complain of having
suffered any disability with regard to understanding the
language employed. He did not tell the court that he
endured a disadvantage by reason of the language – Ga or
Twi- used. The reasonable presumption is that he
understood the language used and fully appreciated the
meaning and effect of the lease”.
The relatively recent
decision of Zambrama v Segbedzi 1991 2 GLR 221 affirmed
the well known rule that the onus of proving that an
illiterate party has appreciated the meaning and effect
of a document lay on the party seeking to bind the
illiterate to it. This court, unanimously speaking
through Kpegah JA, as he then was, affirmed the legal
position as such:
“The principle was
firmly established by a stream of decided cases that
where an illiterate executed a document which
compromised his interest and that document was being
used against him by a party to it or his privy, there
was no presumption in favour of the proponent of the
document and against the illiterate person, that the
latter appreciated and had an intelligent knowledge of
the contents of the document. The party seeking to rely
on the document must lead evidence in proof that the
document was actually read and interpreted to the
illiterate who understood it before signing the same”.
Being a question the
presence of or otherwise of an interpretation clause on
a document was one of the factors a court should take
into account in determining whether the document in
question was fully understood by the illiterate. It was
still possible for an illiterate to lead evidence
outside the document to show that despite the said Jurat,
he was not fully made aware of the contents of the
document to which he made his mark. If a court, after
assessing all the available evidence was satisfied, upon
the preponderance of the evidence that the document was
read and interpreted to the illiterate person then the
burden of proof would have been discharged by the person
relying on the document.”
The clear evidence is
that the respondent discharged the initial burden which
lay on him in proof of the necessary criteria spelt out
in the Zambrama case.
Apart from his own
detailed evidence, there is the testimony of the PW3, a
member of the family and whose father during that
crucial period, was the chief linguist of the family and
even more importantly, who executed the deed as a
witness. He testified.
“I have an indenture in
hand. It is Exh A. This document was prepared by a
lawyer at Adabraka in Accra. It was prepared in a
lawyer’s office, the document was then read to them. The
lawyer’s secretary read in English and interpreted or
explained in Ga language. The elders executed by signing
or thumbprinting (by them) according as they could read
and write or not. The defendant thumbprinted the
document. The defendant's witnesses included Okyeame
Kofi Heharkay, Abusuapanyin Kwabena Arhin, Tafohene
Kwaku Adewu and E. N. K. Tetteh. E. N. K Tetteh is my
humble self.”
The uncorroborated
evidence of the appellant is obviously not sufficiently
strong enough to displace the credible evidence supplied
by his opponent, and hence my contention that the
criticism against the findings are untenable.
The least said about
the arguments advanced in support of the ground (2) the
better. These were that contrary to the evidence, the
trial judge described the PW1 and PW3,
(a) as credible
witnesses.
(b) Well recognised
members of the Anona family and
(c) He erroneously in
law, described their evidence as constituting a
declaration against interest.
The finding that the
two are well-recognised members of the family is amply
supported by the record. The unchallenged evidence of
the PW1 is that at the date of giving evidence, he was
the Gyasehene of the family. And at the date of the
execution of the exhibit A, he was one of the principal
members of the family. Also his predecessor was one of
those who represented the family in the negotiations for
the lease.
The PW3 who described
the appellant as his father's nephew was one of the
witnesses to the lease agreement. At the time, his
father was the chief linguist.
He attended family
meetings at which the transaction took place and
customary rites performed. What better description than
that these gentleman are well recognised members of the
family.
Given that they are
members of the family, with clear proprietary rights or
interests in the subject matter, one can understand that
contextually, the judge was right in describing their
evidence as constituting a declaration against
interest. Each had given evidence in support of the
respondent's claim that the lease period was 70 years
and not 10 years. Counsel’s contention however is that
because they have acquired tenancies from the
respondent, they are agents with direct and vested
interest in the case and consequently their interests
run counter to that of the family, and for that matter
cannot, in all honesty, described as credible witnesses.
While the PW3 can
properly be described as a relation and an agent of the
respondent, the same cannot be said of the PW1. In any
case the rule established in Nkaeguo v Kunadu (1974) 2
GLR 150 is that court is not entitled to reject evidence
simply because it came from a relation. Afadi v
Ladzenpo 1981 GLR 48 CA reinforced the point that:
“Whilst there is need
for caution in accepting the corroborative evidence of a
relation, especially when his evidence was being offered
against a stranger to the family, it is not justifiable
to reject the same without laying a foundation for such
a course”.
The PW3’s interest cut
across both ways, that is to say while he is related to
the respondent by marriage and has been given farming
rights, it is equally true he is a member of the Anona
family. This puts him in the unique position of being
also a “part owner” of the subject matter. Looked at
from that angle his interest in the family’s success and
so allegiance to the family must be stronger than that
owed to the respondent. In this instant case, where the
decision depended on the credibility of the witnesses, I
cannot interfere with the findings of fact “except
where they were shown to be wrong or where the facts
were wrong inferences drawn from admitted facts or facts
found by the trial court”. See Praka v Ketewa 1964 GLR
423 at 426. The only logical conclusion is that the
appeal based on these grounds must necessarily fail.
But then, there is yet
a third and crucial ground by which it was contended
that the trial judge failed to do equity in the
circumstances of this case.
Respondent counsel’s
argument that this criticism is unfair because the trial
judge had ordered a renegotiation of the rent, is no
answer for there is a legal incongruity here. Having
found that the bargain was consciounable, that the
counterclaim fails in its entirety, and further that the
respondent was entitled to all the reliefs, that order
for renegotiation cannot be validated.
However, looking at the
arguments advanced in support of this ground of appeal,
as well as the pleadings, my understanding of the
complaint or may I put it this way, the substance of the
complaint is that, the finding that the agreement is not
unconscionable is clearly wrong and ought to be
reversed.
That the appellant
sought for a setting aside of the agreement on the
grounds of unconscionability is beyond question. He
counterclaimed for three reliefs. Included in them is
such further or other reliefs as is just. Paragraphs 4
(vi), 4(vii) and 12 contain facts on which the
unconscionability plea is based.
That our courts have
power under orders. 18 of NRCD 175 to grant equitable
reliefs by setting aside or nullifying unconscionable
agreements to convey an interest in land is also not in
doubt.
The unreported Supreme
Court case of Anna Badu Cofie v Shahin Elias Shahin and
4 ors Civil appeal 4/9 17th January 1995 spells out what
an unconscionable agreement is and the factors a court
must take into account in arriving at that conclusion.
Speaking unanimously
through Amuah Sekyi JSC, the court said:
“By section 18, the
court may set aside or modify an agreement to convey or
a conveyance of an interest in land on the ground of
unconscionability. Where after considering all the
circumstances, it is satisfied that the transaction is
unconscionable. Among the circumstances, the court is
required to take into account are the bargaining conduct
of the parties, their relative bargaining positions, the
value to each party of the agreement reached and
evidence as to the commercial setting, purpose and
effect of their agreement.
An unconscionable
bargain or agreement is one which an independent
observer would regard as unreasonable; that is, one
which no man who had regard to his own interests would
make and no – fair minded person would accept.”
I think this agreement
fall into that category of case.
The uncontroverted
evidence shows that the respondent company was
represented at the negotiations by a Mr. Braun, a
whiteman and the managing director of the company, a
chartered accountant. With due deference to our people,
it is common knowledge that our local people,
particularly in rural Ghana, hold whitemen in great awe
and esteem some see them as demi-gods and would do
everything lying in their power to please them.
The respondent denied
the appellant's, assertion that they promised to build a
dam. I am inclined to believe the appellant. The river
Atwere runs through that 600 acre land. The respondent
took its name from company was named after that river. I
can very well imagine, as obtains in the normal course
of life in most transactions, marriages and other love
relationships included, the respondent making the finest
of promises to these poor and comparatively ignorant and
illiterate farmers who were from the evidence, desperate
to redeem their vast tract of land from a pledge, but
yet did not have the wherewithal. On their bargaining
positions then, the respondent was not on equal footing
with the appellant. Indeed that there was a serious
power imbalance cannot be denied. The uneducated
appellant was in a much weaker position than the
whiteman and the literate, highly qualified managing
director who admitted under cross examination that “with
my background as a chartered accountant, I fully
appreciated the nature of the transaction with the
defendant.”
The appellant was not
given a copy of the draft lease agreement to enable him
seek independent legal advice in respect of such an
important transaction, whose terms contrary to
expectations excluded a revision clause in respect of
the rent. Given that the lease period was far as much as
70 years and the rent fixed at ¢ 1.00, can it honestly
be said this is an agreement any independent observer
would regard as reasonable or one which any man having
regard to his own interest would accept? I think not.
A look at the covenants
would lead to the undeniable conclusion that the
agreement was in reality of little or no benefit to the
appellant. Although, the obviously false impression was
created that there were several covenants and conditions
contained in the lease to be performed by the lessee,
the truth is that is absolutely false, there being only
four simple covenants, these categorized as usual
covenants and conditions, usually binding on ordinary
tenants i.e covenant to pay rent, rates and taxes, to
deliver possession at the determination of the term and
to keep in good tenantable condition, buildings which
may be erected on the land. On the contrary,
therefore, there are no express special covenants or
conditions in respect of this lease obtained for special
use—agricultural and commercial purpose, for 70 long
years—almost two generations. Given the rather low rent
of ¢ 1 per acre, and the fact that subsequently, the
respondent started subletting portions of it, without
the express consent of the appellant, it becomes
immediately clear that relative benefit of the agreement
to the appellant is negligible.
Finally, considering
also the manner in which from the unchallenged evidence
of the defendant, the execution of the agreement was
rushed through (the execution took place in an
uncompleted building and while they stood) I am
inclined to hold from all the circumstances of this case
that this was an unconscionable bargain. The respondent
have enjoyed the property for some ten years. There is
no evidence that apart from the initial outlay, they
have incurred further expenditures in the land. I would
therefore set this lease aside. They are however, at
liberty to renegotiate the lease with the appellant. In
the result, the appeal would be allowed and both the
decision and the costs awarded in the court below would
be set aside.
G. T. WOOD (MRS)
JUSTICE OF APPEAL
AKOTO-BAMFO, J.A:
I agree.
V. AKOTO-BAMFO (MRS)
JUSTICE OF APPEAL
OWUSU-ANSAH, J.A:
I also agree.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL |
