Oppong Vrs Bashiru [2023] GHACC 179 (5 April 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 05TH APRIL 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG SUIT NO.: C1/16/2022 JAMES OPPONG …………. PLAINTIFF VS BASHIRU …………. DEFENDANT Parties present Plaintiff sued Defendant by a writ of summons filed on 07th July 2022 seeking the following JUDGMENT reliefs: a) Declaration that Plaintiff’s pledge cocoa farm[sic] stuate, lying and being at Akurakan on Buabin Stool Land bounded by the farms of Kojo Boakye, Kofi Boamah and Agyaku is subject to redemption. b) An order to bear upon the defendant to receive refund of pledge consideration of GH¢20000.00 in respect of the pledge[sic] cocoa farm described supra. c) Any further order(s) as the Honourable[sic] deem[sic] it fit to make in the circumstances. Defendant counterclaimed as follows: a. Defendant by counter claim[sic], claim[sic] against the plaintiff is for cash sum of GH¢40000.00 being the double of cash of GH¢20000.00 presented to the plaintiff by the Defendant for the mortgage of the cocoa farm. b. Damages for breach of contract. c. Cost[sic] Plaintiff, after testifying, called one witness hereinafter referred to as PW1. Defendant, after testifying called no witness. Plaintiff did not cross-examine Defendant. Defendant cross- examined Plaintiff. The crux of the matter is that Plaintiff got into some difficulty financially and Defendant through PW1 came his aid. The parties went into an agreement which they reduced into writing, a copy of which was tendered in evidence by Defendant and marked Exhibit 1. The following is the content of Exhibit 1: “PLEDGE OF COCOA FARM THIS IS ‘PLEDGE OF COCOA FARM’ and it is entered into between:-- A. YAW APPONG of Dunkwa-On-Offin the Upper Denkyira East Municipality in the Central Region of the Republic of Ghana refer[sic] to as(hereinafter called the Pledgor)[sic] on the first part And B. BASHIRU ISSAKA of Dunkwa-On-Offin in the Upper Denkyira West District[sic] in the Central Region of the Republic of Ghana refer[sic] to as(hereinafter called ‘Pledgee’) on the second part DESCRIPTION OF COCOA FARM ALL THAT COCOA FARM WHICH IS SITUATE, LYING AND BEING AT A PLACE COMMONLY KNOWN AND CALLED “AKROKAN” NEAR DUNKWA-ON-OFFIN AND HAS AN AREA OF THREE(3) ACRES AND IS BOUNDED BY THE PROPERTIES OF THE FOLLOWING PEOPLE: KWADWO BOAKYE, AMA ACHIAA, KOJO OWUSU AND YAW BOATENG. TERMS OF PLEDGE 1. That the ‘Pledgor’ has indicated to the ‘Pledgee’ that the property in issue is his own bonafide[sic] property and that it is absolutely free from family claims and litigations, which facts have been ascertained from the appropriate quarters by the ‘pledgee’ to be true. 2. That the ‘Pledgor’ has offered the property in issue for SIX(6) years outright pledge which said offer has been accepted by the ‘pledgee’. 3. That the period starts from 13th AUGUST 2019 to 12th AUGUST 2025. 4. That the parties have agreed on the sum of Twenty Thousand Ghana Cedis(GH¢20,000.00) which has been paid by the ‘Pledgee’ herein who hereby acknowledges receipt of same. 5. it was also agreed that, in case the pledgor needs his cocoa farm back before the period given to the pledgee, then the pledgor will pay double the amount of GH¢40000.00) before getting back his cocoa farm from the pledgee. 6. That from today 13th August, 2019 any interest that the ‘Pledgor’ hitherto had in the property ceases forthwith, and it is thus transferred onto the Pledgee’. An in proof of which the parties herein together with their respective witnesses signed below. [THUMBPRINT] [ SIGNATURE] ………………………. …………………………. YAW APPONG BASHIRU ISSAKA (PLEDGOR) (PLEDGEE) WITNESSESS[sic] [SIGNATURE] [SIGNATURE] ……………………. ……………………….. JOHN FRIMPONG RAZAK ISSAKA [SIGNATURE] [THUMBPRINT] ………………………… ……………………………. KWADWO BOAKYE RASHIDATU BASHIRU [THUMBPRINT] …………………………….. KWABENA AGYAPONG RECEIPT RECEIVED FROM THE “PLEDGEE” HEREIN BY THE “PLEDGOR” HEREIN THE SUM OF GH¢20,000.00 WORTH OF THE PROPERTY IN ISSUE. CERTIFICATE OF PROOF I Peter Brenya Certify that the parties herein with their respective witnesses some of whom could not read and write appeared before me and signed/thumbprinted this document in my presence after the contents has[sic] been read over and explained to them in the Twi language by Peter Brenya and they seemed perfectly to understand same before they made their marks, and in proof of which also signed affix[sic] my seal of office this day of 13TH AUGUST, 2019. [SIGNATURE] REGISTRAR [SEAL] [STAMP: (REGISTRAR CIRCUIT COURT DUNKWA-ON-OFFIN”)]” I find the evidence of PW1 very material as regards the agreement made by the parties. I hereby produce the salient parts of it verbatim in this judgment: “... 5. That on or about June 2019 the plaintiff came to visit me in the house at Akrakan and while we were conversing, plaintiff had a phone call and after he had listened to the call, he told me he had received information that his daughter...is suffering from mental illness. 6. That I once called the plaintiff to ask of the health condition of the sick daughter where[sic] plaintiff said he needed money to settle the medical bills and that I should find someone to take over his cocoa farm in the farm pledge so that he could raise money to pay the bills. 7. That I therefore find[sic] Defendant herein and he expressed interest to take over plaintiff’s cocoa farm as pledge and upon negotiation the farm was pledged to Defendant for a period of 6 years from 2019-2025 at a pledge consideration of GH¢20,000. and document was eventually prepared to that effect and I was one of the witnesses to the agreement. 8. That on or around March, 2022 plaintiff came to inform me that, the defendant is[sic] not taking good car of the pledged cocoa farm and that the farm is[sic] at the point of dying so I should find time to visit the farm and to observed[sic] the nature of the farm which I did. 9. That from my observation at the time of the inspection as compare[sic] to the time the farm was pledged (2019) the current condition was deteriorating and the effect was that defendant was not properly maintaining the farm. 10. That I tried to contact the defendant to inform him of the development of the farm but all attempts proved futile. ...” Defendant cross-examined PW1; the following came up: Q. Did you come with me and Plaintiff to the Registrar of this Court for the agreement document you referred to in paragraph 7 of your witness statement to be prepared. A. Yes. Q. Do you agree with me that the said agreement is sacrosanct. A. I agree with you. I even have my signature on it and so I accept it. Looking at the agreement as in Exhibit 1 which Plaintiff’s own witness accepts as sacrosanct, it is worth mentioning that Plaintiff did not raise any objection that he was Yaw Appong(as mentioned in Exhibit 1). Again, looking at Exhibit 1, I wonder whether there is one Dunkwa-On-Offin in Upper Denkyira East and another Dunkwa-On-Offin in Upper Denkyira West. Drawing from Exhibit 1, shall we now take a look at the meaning of the term ‘pledge’ Upon googling the word ‘pledge’, the following, inter alia, comes up as the meaning of that word: A thing that is given as security for the fulfilment of a contract or the payment of a debt and is liable to forfeiture in the event of failure. In Black’s law dictionary, the following, inter alia, are given as the meaning of ‘pledge’: 1. formal promise or undertaking 2. the act of providing something as security for debt obligation. 3. a bailment or other deposit of property to a creditor as security for a debt or obligation … 6. A security interest in personal property represented by an indispensable instrument, the interest being created by a bailment or other deposit of personal property for the purpose of securing the payment of a debt or the performance of some other duty. I find it difficult to link what is in Exhibit 1 with any of the definitions of ‘pledge’ as above. I also find the use of the word mortgage in relief a of the counterclaim problemmatic. Mortgage is defined in the said Black’s Law Dictionary, inter alia, as: 1. A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to stipulated terms. – Also termed dead pledge. 2. A lien against property that is granted to secure an obligation(such as debt) and that is extinguished upon payment or performance according to stipulated terms. ... It appears the parties resorted to the use of legal terms anyhow. At the application for directions stage, the following issues as set out by Plaintiff were set down for hearing: 1. Whether or not Plaintiff pledged his cocoa farm to Defendant for cash sum of Gh¢20, 000.00 for a period of 6 years to raise money to seek medication for his sick daughter. 2. whether or not Defendant has remained in the pledged cocoa farm for 3 years without accounting to Plaintiff. 3. Whether or not Defendant has commited[sic] waste on the pledge cocoa farm held by him by failing to maintain same. 4. Whether or not Defendant’s conduct in committing waste gives Plaintiff right of redemption by paying the original price of GH¢20,000.00[.] 5. Whether or not Defendant is entitled to his Counter Claim[sic]. 6. Any other issue(s) arising out of the pleadings. No additional issue was filed. But after the full trial, I find that the issue for determination is: Whether or not Plaintiff can redeem the land prior to the expiration of the six years period agreed upon by the parties – in effect whether Plaintiff is entitled his claim. A contract is defined in Black’s Law Dictionary 11th edition, 2019. inter alia, as: An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. Plaintiff suggested in his witness statement the he was in distress as follows: 6. That on[sic] or around 2018, I lost my wife and during the funeral I incurred lost[sic] which made me down financially. 7. Not quite long after the death of my wife, on of my daughters… also became sick mentally and I needed money to send her elsewhere for treatment and I discussed with a friend who is a witness in th case to assist get somebody to take my cocoa farm as as pledge so that I could use the money to settle the medical bills of my sick daughter and also settle my late wife’s funeral debt. 8. That the friend assisted and found Defendant herein as the prospective pledgee and while I was elsewhere treating my sick daughter, the witness sent the Defendant to the farm and shown[sic] him the boundary of which the Defendant expressed interest. 9. That the negotiation was done through mobile phone communication with the pledgee and we agreed on 6 years for GH¢20,000.00. 10. That Defendant initially paid half of the pledge price and during the preparation and or execution of the pledge document, Defendant insisted that the pledge consideration of GH¢20, 000.00 be double[sic] else he (Defendant) would not sign to[sic] the agreement and would therefore take the part payment already made to me, meanwhile,[sic] I had already spent the money to sttle the medical bills of my sick daughter and that of my late wife’s funeral debt and would not be able to raise the money at the time. 11. That when Defendant persistently demanding[sic] for money I had no option than to agree to his demands in doubling the mortgage price to GH¢40,000.00 which to me it was unconscionable. 12. That Defendant has been in the cocoa[sic] since 2019 cocoa season and has harvesting[sic] the cocoa beans and enjoying the proceeds exclusively as agreed until the mortgage period is due. 13. That it was further mutually agreed as term of pledge of agreement that, Defendant would maintain the cocoa farm and keep it health[sic] over the period. … 14. That the Defendant has been in possession of the mortgage cocoa farm for 3 years but has willfully failed and or refused to properly maintain the farm and currently the stage of the cocoa farm is bad and same is at the point of dying. … 15. That the Defendant is not clearing the farm, not applying fertilizer and also not cutting mistletoes and in view of that portions of the farm is withered out and as part of putting the farm into good shape, I planted cocoa seedlings at the empty spaces of the farm, Defendant intentionally sprayed weedy side[sic] on the farm killing all the young cocos trees. 16. That the Defendant’s conduct indicates that he intended to destroy the pledged cocoa farm prior to expiration of the pledge period. 17. That I cannot sit on the fence while Defendant is destroying the pledged cocoa farm which is my only livelihood. It does appear to me that Plaintiff was not in right thinking mood or mode when he entered into this agreement which he now finds obnoxious. In fact the agreement was ill prepared. Terms were used anyhow as I stated earlier. It appears Plaintiff was ill advised. It is for good reasons that people are trained at the law schools to be lawyers. If one is not a lawyer one should not arrogate the workings of lawyers onto themselves. Every document prepared in respect of any agreement may be the subject of litigation one day. In Benjamin Development Ltd v Robt Jones (Pacific) Ltd[1994] 3 NZLR 189, CA, it was held per Hardie Boys J that: “What the judge appears to have done is allow the background to create the uncertainty of meaning and then use it again to resolve that uncertainty in a manner which, in my view at least, contrary to the plain meaning of the words. Such an approach is not in accordance with the authorities… it is not permissible to inquire into preliminary or background matter in order to find a different meaning; for that would amount to the court holding that the parties really meant something different from what they choose to say.” Does Plaintiff have any remedy on his claims that Defendant was spoling the farm? Lord Halsbury LC in In re Jodrell; Jodrell v. Seale (1890) 44Ch D 590 stated as follows: ‘I am called upon to express an opinion on what is the meaning of this written instrument… For myself, I am prepared to look at the instrument such as it is; to see the language that is used in it; to look at the whole of the document, and not part of it; and having looked at the whole of the document, to see (if I can) through the instrument what was the mind of the testator.’ Aharon Barak in his book, Purposive Interpretation in Law(Princeton University Press 2007) page 329, explained the rationale behind the above principle as follows in relation to contracts as follows: “As I noted in one case: ‘A contract is an integrative framework. Its different parts are entwined and intermingled. Its various branches influence each other. In interpreting a contract, a judge should, on the one hand, view it holistically, as a whole, but on the other hand, evaluate the connections between its various provision, as part of the attempt to formulate the parties’ joint intent’” The learned author also referred to the case of “Ata” Textile Co v. Estate of Zotolov, CA 554/83,41 (1) PD 282, 305 I hold that the document Exhibit 1 is binding on the parties and therefore, Plaintiff should pay the GH¢40 000.00 to Defendant before he takes back the farm. By the said agreement, even if one day before the expiration of the period agreed upon for Defendant to operate the farm, Plaintiff wants to take back the farm, he has to pay GH¢40 000.00 to Defendant. Section 9 of the Evidence Act talks about judicial notice, it states(in subsection 2) that: (2) Judicial notice can be taken only of facts which are either: (a) so generally known within the territorial jurisdiction of the court, or (b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the fact is not subject to reasonable dispute. I take judicial notice that since 13th August 2019 when the document Exhibit 1 was prepared, prices of some items have doubled, some have tripled, others have quadrupled and some others quintupled and so on. The value of GH¢20 000.00 in respect of the sort of transaction the parties went into in August 2019, may hover around GH¢40 000.00 if not more than GH¢40 000.00. The parties did not have any agreement as regards interest on the GH¢40 000.00. See Court (Award of Interest & Post Judgement Interest) Rules, 2005(C. I. 52). If after three(3) years of entering into that agreement, Plaintiff is seeking to bow out of the agreement, paying GH¢40 000.00 today to Defendant is merely about refunding the GH¢20 000.00 as in 2019. The agreement as in Exhibit A speaks for itself; it is a subject of redemption. Relief 2 of Plaintiff’s claim is unconscionable as by the foregoing analysis; GH¢20 000.00 2019 is not GH¢20 000.00 today. The counterclaim of Defendant for GH¢40000.00 is upheld. I also hold that Plaintiff has breached the contract between the parties but the agreement between the parties as spelt out in Exhibit A clearly stipulates the penalty that Plaintiff would face should he so breach the contract. The Court has accordingly enforced the agreement between the parties and therefore there is no point talking about general damages. Relief 2 of the counterclaim is dismissed. I, however, find that Defendant is entitled to costs because the agreement is clear and unambiguous, despite the wrong use of legal terms. Therefore, this litigation was not necessary. It was simply a matter of Plaintiff paying GH¢40 000.00 to Defendant and taking back his land. Order 74 rule 1(1) of the High Court (Civil Procedure), 2004(CI 47) states: “Subject to this Order the costs of and incidental to proceedings in the Court shall be at the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.” Defendant has, as a result of this suit, been made to file documents and he had spent time and resources to appear in court. He deserves to be restituted accordingly. I hereby award costs of GH¢1000.00 against Plaintiff in favour of Defendant. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 05/04/2023 (SGD) 13