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Agreement
– Duress - Contract - Payment
of duty – Importation of goods -
Wrongfully seizure - Lieu of
the duty - wrongful demand of
duty - Statutory right of sale
of the goods - General damages
for Loss of Business –
Negligence - Interception of
goods – Detention without care –
Goods destroyed by the rain -
Carting the wine being delayed -
Whether the parties,
particularly, the appellant,
voluntarily entered into the
agreement on which the
respondents raise the plea of
estoppel - Whether or not the
agreement was extorted under
duress or undue influence
HEADNOTES
The facts are
that in March 1984, Umarco Ltd.
who are agents of the appellants
took delivery of 2470 cartons of
wine for onward transmission to
the respondent’s bonded
warehouse. Subsequently, the
appellants collected 48 cartons
of the wine for personal use and
paid duty thereon to the
respondents who declared 43
cartons broken and consequently
delivered only 2,035 cartons of
the consignment to the
appellants, implying a short
landing of 344 cartons which
were never handed over to the
appellants. The appellants
allege that not only did the
respondents wrongfully demand
duty on the three hundred and
forty-four (344) cartons which
were never delivered, but also
wrongfully seized 400 cartons in
lieu of the duty on the 344
cartons; hence their claim in
suit number 1609/91 for the sum
of $ 26,784.00 (Twenty-six
Thousand seven Hundred and
eighty-four US Dollars) or its
equivalent in Cedis being the
value of seven hundred and
forty-four (744) cartons of
Birgi Wine which the Plaintiff
imported and four hundred
cartons (400) of which the
Defendant seized on the pretext
that duty had not been paid on
Three Hundred and Forty-Four
(344) which Plaintiff did not
receive but which the Defendant
received into their bonded
warehouse. The respondents’ main
defence to the action is that in
view of an agreement voluntarily
reached by the parties, the
appellants were estopped from
laying any claim against the
respondents. Additionally, they
allege that it was the appellant
who voluntarily agreed, per the
written agreement, to deposit
the 400 cartons of wine in lieu
of the duty due on the 314
cartons, and were compelled to
exercise their statutory right
of sale of the goods when the
appellants failed to pay the
duty as stipulated under the
said agreement. The separate
action numbered 1720/92, which
is founded in negligence, arose
when in the course of time, the
appellants decided to
re-transport a large quantity of
wine which they had imported
into Ghana to Cotonou for
resale. The respondents
intercepted the two truckloads
of wine and detained them at the
Airport Police Station for three
(3) weeks on the grounds that
they were being exported without
the relevant customs
documentation. Claiming that
about six hundred and fifty-six
cartons of wine were destroyed
by the rain, for which reason
the wines had to be sold at a
much lower price, the appellant
who alleges negligence on the
part of the respondent’s.
HELD
As rightly
found by the two lower courts,
the appellants are bound by the
contents of the agreement, which
raises a conclusive presumption
against them. Consequently,
their claim as endorsed is
unsustainable. Their appeal
based on ground iii thus fails
and so does the appeal based on
the other grounds, which are in
reality closely intertwined with
the ground iii and its failure
or success automatically
disposes of the other grounds of
appeal.
The findings
and conclusions of the two lower
courts are so plainly supported
by the law and evidence that the
judgment ought not to be
disturbed. The two lower courts
both found as a fact that the
appellant was in the process of
removing the goods out of the
jurisdiction when the goods were
impounded by the respondents in
the lawful discharge of their
statutory duties. As rightly
found by the appellate court,
this was a crime and a clear
illegality from which the
appellants should not be allowed
to profit, particularly, when as
rightly, in my view, concluded
by the learned trial judge
Neither
willful act nor negligence was
proven and the claim must fail
in its entirety. Accordingly
this appeal fails and the same
is dismissed
STATUTES
REFERRED TO IN JUDGMENT
Supreme
Court, Rules,1996 CI 16
Evidence
Decree, NRCD 323
Customs,
Excise and Preventive
(Management) Law, 1993 (PNDCL
330)
CASES
REFERRED TO IN JUDGMENT
Universe
Tankships of Monrovia v, Inc. v
ITF, [1982] 2WLR 803
Barton v
Armstrong [1976] AC 104
Baache & Co.,
(London) Ltd. vrs: Banque Verves
et Commerciale de Paris SA
(1973) 117. Sol. Jo. 483.
BOOKS
REFERRED TO IN JUDGMENT
Chitty on
Contracts, the 25th
edition
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS),
CJ:
COUNSEL
JAN CHAMBERS
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
EBOW PAITOO
FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
J U D G M E N
T
______________________________________________________________________
WOOD (MRS),
CJ:
On the 19th
of February, 1999, the High
Court gave judgment in favour of
the defendant /respondents in
respect of two consolidated
suits numbered 1609/91 and
1720/92 respectively. These
decisions were, on appeal,
affirmed by the Court of Appeal.
Dissatisfied,
the plaintiff appellant has
appealed to this court on the
grounds that:
i.
The Court of Appeal erred
where it held that the Learned
trial Court Judge was right in
failing to adequately consider
and give due weight to the fact
that the goods the
Plaintiff/Appellant was accused
of failing to account for and
pay duty in respect of remained
at all material times in the
custody and physical control of
the Defendant/Respondent.
ii.
The Court of Appeal, like
the trial Judge erred in failing
to adequately consider and give
due weight to the legal effect
of loss of the missing goods
which in the Customs bonded
warehouse controlled by men and
the Defendant/Respondent
estimated from
Plaintiff/Appellant by the
Defendant/Respondent.
iii.
The Court of Appeal erred
in fact and in law in upholding
the holding of the learned trial
Court that there was nothing
from the facts and circumstance
on record to show that the
Plaintiff/Appellant signed the
said agreement under coercion or
under influence. The judgment
was against the weight of the
evidence on record.
iv.
The Court of Appeal erred
in dismissing the appeals in
both consolidated cases.
v.
Further grounds will be
filed upon receipt of a copy of
the judgment of the Court of
Appeal.
Before
tackling the substantive grounds
of appeal I would like to make
this observation. Although the
appellant filed two separate
claims, which were consolidated,
the trial court gave two
separate decisions. The court of
appeal affirmed the two
decisions. One would have
thought the notice of appeal
should have set out clearly and
distinctly, the grounds of
appeal in relation to each
decision. Lumping the grounds of
appeal together and requesting
that the decisions of the two
lower courts be set aside and
“judgment entered for the
plaintiff/appellant in respect
of its claims in both
consolidated suits”, does not
meet the justice of this case.
It is regrettable that the
notice of appeal fails to
disclose in clear terms which
grounds relate to which
decision. We are thus left to
undertake this exercise
ourselves, a task which must be
based on the strict wording of
the appeal grounds and nothing
more, given that under rules 6
sub rules (4-8) of the
Supreme
Court, Rules, CI 16.,
separate and distinct grounds of
appeal are to be filed.
In this
regard, I have examined the
grounds of appeal thoroughly and
find that they all relate to the
judgment of the suit numbered
1609/91. In the event, I do find
myself utterly unable to impugn
the decision in case suit number
1720/92.
The facts are
that in March 1984, Umarco Ltd.
who are agents of the appellants
took delivery of 2470 cartons of
wine for onward transmission to
the respondent’s bonded
warehouse. Subsequently, the
appellants collected 48 cartons
of the wine for personal use and
paid duty thereon to the
respondents who declared 43
cartons broken and consequently
delivered only 2,035 cartons of
the consignment to the
appellants, implying a short
landing of 344 cartons which
were never handed over to the
appellants. The appellants
allege that not only did the
respondents wrongfully demand
duty on the three hundred and
forty-four (344) cartons which
were never delivered, but also
wrongfully seized 400 cartons in
lieu of the duty on the 344
cartons; hence their claim in
suit number 1609/91
for:
i.
The sum of $ 26,784.00
(Twenty-six Thousand seven
Hundred and eighty-four US
Dollars) or its equivalent in
Cedis being the value of seven
hundred and forty-four (744)
cartons of Birgi Wine which the
Plaintiff imported and four
hundred cartons (400) of which
the Defendant seized on the
pretext that duty had not been
paid on Three Hundred and
Forty-Four (344) which Plaintiff
did not receive but which the
Defendant received into their
bonded warehouse.
ii.
Interest on the said amount from
the date of Writ to date of
payment.
iii.
General damages for Loss of
Business”
The
respondents’ main defence to the
action is that in view of an
agreement voluntarily reached by
the parties, the appellants were
estopped from laying any claim
against the respondents.
Additionally, they allege that
it was the appellant who
voluntarily agreed, per the
written agreement Exhibit.C, to
deposit the 400 cartons of wine
in lieu of the duty due on the
314 cartons, and were compelled
to exercise their statutory
right of sale of the goods when
the appellants failed to pay the
duty as stipulated under the
said agreement.
The separate
action numbered 1720/92, which
is founded in negligence, arose
when in the course of time, the
appellants decided to
re-transport a large quantity of
wine which they had imported
into Ghana to Cotonou for
resale. The respondents
intercepted the two truckloads
of wine and detained them at the
Airport Police Station for three
(3) weeks on the grounds that
they were being exported without
the relevant customs
documentation. Claiming that
about six hundred and fifty-six
cartons of wine were destroyed
by the rain, for which reason
the wines had to be sold at a
much lower price, the appellant
who alleges negligence on the
part of the respondent’s.
“The sum of
$15,744.00 (fifteen thousand,
seven hundred and forty-four)
dollars being losses incurred by
them as a result of the
negligent handling of 656
cartons of wine…
The sum of
1.5 million Cedis being fees
charged by the two(2) drivers
responsible for
carting
the wine for being delayed
for a period of three(3) weeks
when the Defendant detained the
trucks that were carrying 656
cartons of wine.
Interest on
the amounts claimed
Damages for
loss of use
Ground iii
“The Court of
Appeal erred in fact and in law
in upholding the holding of the
learned trial Court that there
was nothing from the facts and
circumstances on record to show
that the plaintiff/Appellant
signed the said agreement under
coercion or undue influence. The
judgment was against the weight
of the evidence on record.”
In respect of
this ground, counsel urged that
we ought to take judicial notice
of the circumstances in which
the appellant found himself when
his goods were under seizure.
Counsel argues that the mere
fact that the vehicle was
detained for close to five
weeks, with the appellants being
under obligation to pay the
drivers and mates, was enough to
compel any reasonable person to
sign the agreement against his
will.
I think
appellant counsel failed to
recognise the burden he had to
discharge at law having regard
to his allegation of coercion or
better still, duress as it is
known in contract law. True the
wider doctrine of undue
influence is also recognised
under equity. But this latter
doctrine is applied to cases in
which some form of fiduciary
relationship existed between the
parties, which from the evidence
is not the appellant’s
assertion.
Duress
in law is not grounded on the
absence of consent. It is widely
accepted as a fact of life, that
to quote the learned author of
Chitty on
Contracts, the 25th
edition, under the rubric
“pressure and threats” at
paragraph 483, “in ordinary
commercial activity, pressure
and even threats are both
commonplace and often perfectly
proper. Indeed, in one sense,
all contracts are made under
pressure: every offeror
threatens that unless the
offeree accepts the terms
offered he will not get the
benefit of whatever goods and
services are on offer.”
From the case
of
Universe Tankships of Monrovia
v, Inc. v ITF, [1982] 2WLR 803,
at 813, 820 and 820, it is the
nature of the pressure or the
threats, which is paramount. The
force or weight of the pressure
is not even considered as the
decisive factor, for the reason
articulated by Lord Wilberforce
in Barton
v Armstrong [1976] AC 104 at
121, namely, “…in life,
including the life of commerce
and finance, many acts are done
under pressure, sometimes
overwhelming pressure, so that
one can say that the actor has
no choice but to act.”
The
principle is that actual
violence to the person or
threats of such violence,
including imprisonment, are all
illegitimate forms of pressure.
The law thus allows a party to
avoid any promise extracted from
him or her by terror or
violence, whether to the party
or his agent. None of these
recognised indices of duress was
pleaded nor proven.
In view of
the pleadings and evidence
adduced by the appellant, both
the trial and appellate courts,
rightly in my view, concluded
that the primary issue for
determination was
whether
the parties, particularly, the
appellant, voluntarily entered
into the agreement on which the
respondents raise the plea of
estoppel. The court of
appeal affirmed the learned
trial judge’s approach and I
adopt the reasons articulated in
support of the position of the
two lower courts.
”During the
trial much time was spent on how
much wine was landed whether
there was short landing, who
controlled bonded warehouses,
under whose control the goods
were when about 300 or so
cartons got missing, the
genuineness or authenticity of
certain documents containing
information on quantity of wine
received at a certain point; and
so on.
But in my
opinion what must be considered
first is the agreement on which
the Defendants have based their
defence of estoppel. If this
defence succeeds it will not be
necessary to consider the
matters I have mentioned in the
last preceding paragraph.”
The justice
of the case required a
determination of the critical
issue,
whether or not the agreement of
the 14th of
September, 1987, on which the
defence of estoppel was
grounded, was extorted under
duress or undue influence.
On this
issue, their Lordships of the
court of appeal concluded:
“In the face
of the evidence as to the said
agreement and the pleadings
contained in paragraphs 4 and 5
of the plaintiff’s defence to
suit no. 1609/91 and the fact
that the plaintiff raised no
issues thereon by way of fraud,
duress and or any other
vitiating factor, the learned
trial judge did what any
reasonable judge would have done
in view of the provisions of
sections 24, 25 and 26 of the
Evidence
Decree, NRCD 323 herein
before alluded to in this
judgment, I think that the
plaintiff was on the pleading
and the admitted evidence bound
by the contents of the said
agreement and consequence of
which created a conclusive
presumption.
See (1)
Baache &
Co., (London) Ltd. vrs: Banque
Verves et Commerciale de Paris
SA (1973) 117. Sol. Jo. 483.
I think that the said agreement
had the effect of the Defendant
satisfying his burden of
providing evidence as to the
presumed fact and therefore the
learned trial judge was right in
not considering any other
evidence to the contrary. In
fact, I venture to say that in
the instant case no other
evidence to the contrary was
introduced by the plaintiff in
the court below but who now
seeks to introduce arguments on
matters by way of conjecture and
I think that he must fail on
this ground.”
I have no
legal basis for disturbing this
finding which is clearly
supported by the evidence on the
record and the law.
The
respondent pleaded in some great
detail, per paragraph 4-7 of
their statement of defence, the
following material facts.
4. “Paragraph
4 of the Statement of Claim is
vehemently denied and the
plaintiff will be put to
stringent proof of the averment
therein. The Defendant says in
further answer that by an
Agreement signed by both the
Plaintiff and the Defendant in
the presence of witnesses, the
Plaintiff agreed to deposit 400
cartons of the wine with the
Defendant in lieu of the duties
due on the 313 cartons amounting
to ₵2,093,566.16.
5.The said
agreement provided that the
Plaintiff was to settle the duty
on the 313 cartons of the red
and white wine within 14 days
effective from 14th
September 1987.
6. The
Defendant says that the
Plaintiff failed to honour the
Agreement aforesaid. The
Defendant further says that
after the expiration of the said
period of 14 days, they had the
statutory power to dispose of
the wine since they were
perishable.
7. It will be
contended that by the said
Agreement the Plaintiff is
estopped from making any claim
against the Defendant.”
The
appropriate process by which to
raise the material averment of
duress or undue influence is a
reply, but none was filed. Even
so, in his evidence in chief,
the closest evidence suggestive
of duress is their evidence in
chief as reproduced hereunder:
“I was
compelled to enter into an
agreement to pay duty on 313
cartons which according to
customs had not been accounted
for by my company…”
To be
compelled to do something is not
always conclusive of terror or
force-duress-that which in law
can entitle the appellant to
avoid the contract. It does
equally mean to make something
necessary; which does not in any
way imply the use of violence or
threats of violence. The
evidence we have on the record
is the bare allegation of being
“compelled to enter into the
agreement”. No evidence was led
by the appellant who bore the
burden of persuasion, in proof
of the form in which the alleged
compulsion took. The evidence is
totally insufficient to support
a finding of duress in his
favour.
I fully
endorse the findings and
conclusion of the court of
appeal as articulated by their
Lordships and I adopt same as
very sound reasons for
dismissing this appeal. Their
lordships said:
“I think the
learned trial judge made the
said observation in relation to
the sections 24, 25 and 26 of
the Evidence Decree on
conclusive presumptions in view
of the fact that there was no
denial by the parties of an
agreement entered into between
them in relation to the
shortages which were detected in
the quantity of wine imported
into the country by the
plaintiff which agreement is
referred to in extenso at bags
(sic) 132 of the record. In my
view, since there was no dispute
bearing on the said agreement
which was in writing, the
learned trial judge was right in
expressing himself in the manner
which he did and I think that
the onslaught on his delivery is
wholly devoid of any substance
whatsoever, since the said
agreement raised issues which
are in their nature conclusive
presumption as provided for in
sections 24, 25 and 26 of the
evidence Decree, NRCD 323.”
In order to
appreciate the view, I have
taken of this ground of appeal,
I shall quote in extenso, the
said provisions.
Section 24:
“where the basic facts that give
rise to a conclusive presumption
are found or otherwise
established the action (sic), no
evidence to the contrary may be
considered by the tribunal of
fact”.
The question
which then arises for
consideration is did the said
agreement come within any of the
conclusive presumptions provided
in the law? Yes, by virtue of
sections 25(1) and 26 which also
provides thus:
25(1) “Except
as otherwise provided by law,
including a rule of equity the
facts recited in a written
document are conclusively
presumed to be true as between
the parties to the instrument or
their successors in interest”.
26. “Except
as otherwise provided by law,
including a rule of equity, when
a party has by his own
statement, act or omission,
intentionally or deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest and such
relying person or his successors
in interest”.
As rightly
found by the two lower courts,
the appellants are bound by the
contents of the agreement, which
raises a conclusive presumption
against them. Consequently,
their claim as endorsed is
unsustainable. Their appeal
based on ground iii thus fails
and so does the appeal based on
the other grounds, which are in
reality closely intertwined with
the ground iii and its failure
or success automatically
disposes of the other grounds of
appeal.
As already
noted, none of the grounds of
appeal relate to the action
based on the detention of the
goods while being exported out
of the country, as alleged by
the respondents, illegally, that
is, without the relevant custom
documents. Even so, a most
benevolent conclusion that all
or even some of the appeal
grounds relate to Suit No.
1720/92, would not alter the
appellant’s fortunes as far as
the appeal to this court is
concerned.
The
findings and conclusions of the
two lower courts are so plainly
supported by the law and
evidence that the judgment ought
not to be disturbed. The two
lower courts both found as a
fact that the appellant was in
the process of removing the
goods out of the jurisdiction
when the goods were impounded by
the respondents in the lawful
discharge of their statutory
duties. As rightly found by the
appellate court, this was a
crime and a clear illegality
from which the appellants should
not be allowed to profit,
particularly, when as rightly,
in my view, concluded by the
learned trial judge,:
“Under
Section 334 0f the
Customs,
Excise and Preventive (sic)
(Management) Law, 1993 (PNDCL
330) the Defendants are not
liable for any loss or damage
sustained by the Plaintiff’s
goods during or as a result of
the impounding exercise unless
willful act or negligence can be
proved.”
Neither
willful act nor negligence was
proven and the claim must fail
in its entirety. Accordingly
this appeal fails and the same
is dismissed.
(SGD) G. T. WOOD (MRS)
CHIEF
JUSTICE
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF
THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF
THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) B. T. ARYEETEY
JUSTICE OF
THE SUPREME COURT
COUNSEL:
JAN CHAMBERS
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
EBOW PAITOO
FOR THE
DEFENDANT/RESPONDENT/RESPONDENT. |
