Okran v Scancom Ghana Limited and Another (GJ/715/2018) [2025] GHAHC 126 (28 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION DIVISION, COURT 12) ACCRA, HELD ON THE 28TH DAY OF JULY 2025 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH-TETTEH JAMES OKRAN - PLAINTIFF SUIT NO: GJ/715/2018 VRS 1. SCANCOM GHANA LIMITED - DEFENDANTS 2. ATC TOWER (GHANA) LIMITED ------------------------------------------------------------------------------------------------------------------- PARTIES: - PLAINTIFF PRESENT DEFENDANTS ABSENT COUNSEL: - RICHARD NKRUMAH AMOS ESQ FOR PLAINTIFF PRESENT TONNY NYARKO FOR SAMUEL CODJOE 1ST DEFENDANT PRESENT DAAD AKWESI ESQ FOR 2ND DEFENDANT PRESENT ----------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------- JUDGMENT INTRODUCTION Page 1 of 45 [1] The Plaintiff is a leasehold owner of property number 15 Taifa Burkina, Accra and resides in Accra. The 1st Defendant, Scancom Ghana Limited (Scancom), is a Company incorporated in Ghana and engages in the communication business and operates as MTN. The 2nd Defendant, ATC Tower (Ghana) Limited (ATC), is also a company incorporated under the laws of Ghana and engages in the Communication business. Scancom, on 1 May 2008, obtained a sub-lease of a portion of the Plaintiff’s property for the erection of communication transmission equipment. A second agreement amending the 1 May 2008 agreement was made between the Plaintiff and Scancom on 14 March 2011, which said agreement amended the rent payable and the Scancom’s right to sub- lease, divest or assign its interest in the sub-lease without recourse to the Plaintiff. [2] In the events that followed, Scancom assigned its interest in the property to the ATC. The Plaintiff is challenging the said assignment and the 14 March 2011 agreement, alleging that he is illiterate and that the agreement was not read or explained to him in a language he understands before signing it. As a result, he claims he is not bound by the 14 March 2011 agreement and also asserts that the agreement is unconscionable. [3] The fundamental question this court must consider is whether the Plaintiff is an illiterate, and whether he is protected by the Illiterate Protection Act, since the 14 March 2011 was not read or explained to him before signing, and consequently, whether he should not be bound by the second agreement. The Court will also consider whether the 14 March 2011 agreement is unconscionable. PLAINTIFF’S CASE [4] The case of the Plaintiff is that he is an illiterate, uneducated and cannot read and write or understand the English language. According to Plaintiff, by a lease dated 14 April 1990, he acquired a parcel of land situate and lying at Ofankor in the Greater Accra Region. That by a sub-lease agreement dated 1 May 2008 made between him and Scancom, he Page 2 of 45 leased a portion of his land to Scancom for a period of 15 years certain from 15 May 2008, to erect communication transmission equipment. Per clause 1.1 of the said agreement, Scancom is to pay to the Plaintiff an amount of two hundred and twenty United States Dollars ($ 220.00) in cedis equivalent monthly as rent. [5] The Plaintiff contends that before he signed the said agreement, it was read and explained to him to his understanding in the Akan language by his witness to the agreement before he made his mark by signing. [6] According to Plaintiff, whilst the agreement was pending, Scancom brought an amended leasehold agreement dated 14 March 2011 and informed him that it would replace the earlier agreement dated 1 May 2008, which he was asked to sign without explaining the content to him, but an officer of Scancom told him it was the same as the earlier agreement. [7] It is the further case of the Plaintiff that, unknown to him, the amended agreement changed the currency of the rent from US Dollars to Ghana cedis. According to Plaintiff Clause 1 of the amended agreement, Scancom could lease, sub-lease, license and sub- license the premises without the consent or recourse to the Plaintiff contrary to Clause 2.4 of the 1 May 2008 agreement. [8] According to the Plaintiff, by Clause 2 of the amended agreement, Scancom shall have automatic renewal for another 5 years upon the expiration of the agreement, which Clause was not contained in the original agreement. [9] It is the further case of the Plaintiff that, based on the amended agreement, Scancom has sublet the site to the ATC without the consent or recourse to him and ATC is insisting on paying the rent in the amended agreement, which is far less than the rent under the original agreement. Page 3 of 45 [10] The Plaintiff contends that the amended agreement dated 14 March 2011 is unconscionable, unfair, unjust and a disadvantage to him and that the amended agreement violates the provisions of the Illiterate Protection Act as the agreement was not interpreted and explained to him in the Akan language that he understands before he made his mark by signing the same. [11] As such, the Plaintiff on 30 May 2023 mounted this action seeking the following reliefs against the Defendants. 1. An order setting aside the amended leasehold agreement dated the 4th(sic) day of March, 2011 and re-instate the original agreement dated 1st day of May, 2008. 2. An order setting aside any assignment under the amended agreement dated 14th day of March, 2011, by 1st Defendant to 2nd Defendant. 3. An order to Defendants to pay any shortfall in rent based on the original agreement dated 1st day of May, 2008 as a result of the amended agreement with interest. 4. Perpetual injunction restraining the 2nd Defendant herein or any other person(s) or companies from using the premises without the consent, approval and concurrence of the Plaintiff. 5. General damages. 6. Any other reliefs that may be just in the circumstances. 7. Costs. [12] The Defendants strongly contest this matter and contend that they are not liable to the claim of the Plaintiff. 1ST DEFENDANTS’ CASE [13] It is the case of Scancom is that it indeed entered into a sub-lease agreement dated 1 May 2008 by which it leased a portion of Plaintiff’s land measuring an approximate area Page 4 of 45 of 9m x 11m situate at Taifa Burkina in Accra. The lease was for a term of 15 years with an option to renew for a further 5-year term. [14] According to Scancom, the rent reserved under the lease agreement was USD220.00 per month to be paid in its cedi equivalent and it was also agreed that the rent reserved shall be reviewed every 5 years at a rate not exceeding 10% of the preceding year’s rent. [15] It is the further case of Scancom that the terms of the lease agreement were reached after extensive negotiations between parties and, the Plaintiff at all times, engaged officials of Scancom in the English language. According to Scamcon, the parties duly executed the lease agreement after the agreement had been reached on all terms contained therein. The Plaintiff signed the document and wrote his name thereon, thereafter Scancom acting through its Director of Capital Projects at the time, also executed same. [16] Scancom contends that after the execution of the agreement, it dutifully complied with the obligations therein. That sometime in 2011 it engaged Plaintiff with a view of renegotiating and amending some terms of the lease agreement and, after the parties had reached agreement on the proposed amendments, the parties by a first amendment to leasehold agreement dated 14 March 2011 amended the provisions of the lease agreement on the terms and conditions contained therein, which among others included a right to assign the lease without the prior consent of Plaintiff. [17] It is the further case of Scancom that on or about 20 December 2011, it assigned all of its telecommunication masts and cell sites in the country to ATC under an amended and restated agreement for the sale and purchase of certain assets of Scancom Limited. Scancom contends that all landlords, including Plaintiff, were duly notified of the assignment and transfer, and the landlords have since been dealing with ATC in all matters relating to various leases. Page 5 of 45 [18] According to Scancom, the Plaintiff has, since the execution of the amended lease agreement, communicated to Scancom and ATC in several letters written and signed by him. [19] Scancom contends that the Plaintiff is literate and fully understands and appreciates the English language, and at all material times, understood the effect and implications of the agreements he was entering into and has since the assignment and transfer, proceeded to deal with ATC and received rents from it. [20] According to Scancom, it changed the currency for rent from United States dollars to Ghana cedis in accordance with the law and Bank of Ghana requirements. The 1st Defendant further contends that the instant action is statute-barred. 2ND DEFENDANTS’ CASE [21] It is the case of ATC that it was incorporated in 2011 and commenced the daily administration of some of Scancom’s telecommunication sites, including the site in dispute. That in May 2011 and December 2011, Scancom entered into two deeds of Assignment with ATC to assign its interest in various leases held by Scancom. By this, Scancom furnished ATC with copies of the 1 May 2008 and 14 March 2011 leasehold agreements executed between the Plaintiff and Scancom. [22] It is the case of ATC that the Plaintiff was informed of this assignment by a letter dated 9th November 2011. That upon receipt of the letter, Plaintiff signed ATC’s copy of the 9th November 2011 letter on 14th November 2011, confirming that he had been notified of the assignment between Scancom and ATC. [23] ATC contends that the Plaintiff has since dealt with it after the assignment by Scancom, including exchanging correspondence with and receiving payment under the 14 March 2011 Agreement from it. Page 6 of 45 [24] ISSUES FOR DETERMINATION. 1. Whether or not the Plaintiff is illiterate and cannot read and write the English language, and as such, the contents of the second leasehold agreement dated the 14th day of March, 2011, ought to have been read, interpreted and explained to him in the Akan language before signing. 2. Whether the execution of the said agreement violated the provisions of the Illiterate Protection Ordinance. 3. Whether or not the amended lease dated the 14th day of March 2011, is unconscionable, unfair, unjust and disadvantageous to the Plaintiff. 4. Whether or not the Plaintiff at all material times to this action understood and appreciated the contents, nature and effects of the agreements he entered into with 1st Defendant. 5. Whether or not the covenant to assign without the prior written consent in the amended lease agreement is contrary to clause 1(c) of the Plaintiff's head-lease, and therefore void. 6. Whether or not the Plaintiff is estopped by laches and acquiescence. 7. Whether the Plaintiff’s action is statute-barred. [25] I will discuss issue 7, which is “whether or not Plaintiff’s action is statute barred”, first. This is so because the decisional authorities are to the effect that when the issue of limitation is raised in a suit, the court must make a determination of that issue before the Page 7 of 45 merits of the case can be gone into. See Jean Hanna Assi vrs. Attorney General [2016] DLSC 2783, where the Court held that: “If indeed it is [statute barred], then there is no need to look at the merits of the case since the statute of limitations is a venerable shield that can be used to ward off indolent and piecemeal litigators.” [26] In his written address filed on 15 May 2025, Counsel for Scancom submitted that the Plaintiff’s claim being an action founded on contract ought to have been brought within six (6) years from the date 1st Defendant’s obligation under the lease agreement, which was 11 May 2011, and having failed to commence any action on the said date when the cause of action accrued and having commenced the action long after the statutory period limited for filing of such action, Plaintiff’s action is statute barred. [27] ATC’s Counsel made similar submissions in her written address filed on 27 June 2025. She submitted that generally, an action in respect of a contract is statute barred after the expiration of six years. She contended that the Plaintiff instituted his action on 8 May 2018, among others, for orders setting aside the Amended lease, which was executed on 14 March 2011 and an Assignment made between Scancom and ATC dated 6 May 2011, when the amended lease and the assignments were executed and the alleged breaches occurred. [28] She further submitted that Plaintiff’s relief (c) is for an order for Defendants to pay any shortfall of rent based on the Amended lease, and it is also statute barred by virtue of section 9 (1) of the Limitation Act. [29] In Ghana, the Limitation Act, 1972 (NRCD 54) sets out the limitation periods for most actions. Thus, where a cause of action accrues to a party who fails to enforce his right, the action may be said to be barred after the period stated in NRCD 54 has lapsed. In the case Page 8 of 45 of Ghana Commercial Bank Ltd v Commission on Human Rights and Administrative Justice [2003-2004] SCGLR 91, the Supreme Court held thus: Under section 4 of the Limitation Decree 1972, the complainant has six years to institute action to enforce his rights. He took action by lodging the complaint with the commission in 1993, nine years later. Therefore, by the time he took action on his complaint at the commission and the commission made its decision or recommendation and referred it to the High Court for enforcement, section 4 of the Decree had barred the enforcement by the High Court. The remedy barred by law could not, by any stretch of imagination or strength of argument, be described as a remedy available in a High Court of Justice such as the instant case. The enforcement of an instant decision or recommendation was not available in any High Court. [30] Section 4 (1) (b) and 9 (1) of the Limitation Act 1972 (NRCD 54) states: Section 4- Actions Barred after Six Years (1) The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued:- (b) Actions founded on simple contract. Section 9- Recovery of Arrears of Rent, Etc. (1) No action shall be brought or distress made to recover arrears of rent or damage in respect thereof after the expiration of six years from the date on which the arrears became due. [31] In the present suit, at the heart of Plaintiff’s claim is the execution of the Amended lease agreement dated 14 March 2011, which he alleges that he was misled by Scancom in signing it. The Plaintiff claims that he is illiterate and was misled in signing the said Page 9 of 45 amended leasehold agreement without it being read and interpreted to him in a language he understands as required by the Illiterate Protection Act (Cap 262). He further alleges that there were some changes found in the 14 March 2011 agreement that were not in the 1 May 2008 agreement, yet an official of Scancom who sent the document to him to sign told him that the two documents were the same, so he did not bother to have it read to him before signing. In effect, what the Plaintiff is saying is that he was deceived in signing the amended leasehold agreement and that the 14 March 2011 is not his deed and he is not bound by it. [32] It is trite law that where a person of full age and understanding signs a document or enters into an agreement, it carries with it an intention that he intends to be bound by the document or contract and cannot turn round to say the document was different in character or nature than the one he intended to sign. However, where such a person’s signature was obtained by fraud or misrepresentation, it will be unfair and against good conscience and justice to allow such a person to be bound by that document or contract signed by him. See English case of L’Estrange v F. Graucob Ltd (1934) 2KB 394 [33] In my view, in such circumstances as in this case, the Limitation Act cannot be used by the Defendants as a shield or even as a weapon to dismiss an action by the Plaintiff founded on an allegation of deceit and misrepresentation by the Defendant, which also contravenes an Act or statute, in this case, the Illiterate Protection Act. Even though the Defendants deny all the allegations, I believe it would be unjust and against good conscience and equity to rigidly apply the Limitation Act to the Plaintiff’s action and dismiss the case without considering the merits and making a determination on the allegations made by the Plaintiff, which relate to the execution of the 14 March 2011 amended leasehold agreement. [34] I will address issues 1 and 2 together since the discussion of Issue 1 naturally leads into Issue 2. Page 10 of 45 ISSUE 1. Whether or not the Plaintiff is illiterate and cannot read and write the English language, and as such, the contents of the second leasehold agreement dated the 14th day of March, 2011, ought to have been read, interpreted and explained to him in the Akan language. ISSUE 2. Whether the execution of the said agreement violated the provisions of the Illiterate Protection Act, 1912 (Cap 262). [35] The purpose of the Illiterates’ Protection Act, 1912 (Cap 262) is stated in its long title, which reads as follows: “AN ACT to provide for the protection of illiterates and for related matters”. And Section 3 - Conditions for persons writing letters for illiterates “A person writing a letter or any other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall (a) clearly and correctly read over and explain the letter or document, or cause it to be read over and explained to the illiterate person, (b) cause the illiterate person to sign or make a mark at the foot of the letter or the other document, or to touch the pen with which the mark is made at the foot of the letter or the other document, (c) clearly write the full name and address of the writer on the letter or the other document as the writer of it, and (d) state on the letter or the other document the nature and amount of the reward charged or taken by the writer for writing the letter or the other document, and shall give a receipt for the reward and keep a counterfoil of the receipt to be produced at the request of any of the officers named in section 5…” Page 11 of 45 [36] In Owusu v Kumah and Another [1984-86] 2 GLR 29, the Court held that: “The main object of the Illiterates Protection Ordinance, Cap 262 (1951 Rev..) was to protect illiterates for whom documents were made. Section 4 of Cap 262 obliged every person writing a letter or document for an illiterate to read or cause it to be read over and explained to the illiterate and also ensure that the illiterate thumb- printed or made his mark on the letter or document…” [37] The purpose of the Act is to protect illiterates who enter into contracts or execute documents, and as such, an illiterate is not bound by a document which he executes if the document was not read and explained to him in a language he understands and/or he did not appreciate the contents of the document before making his mark thereon. [38] In Amakwanor v Asare [1966] GLR, it was held that: When an illiterate executes a document, there is no presumption that he has appreciated the meaning and effect of it. The onus of proving that he has appreciated the meaning and effect of the document is upon the party seeking to bind the illiterate to the terms of the document. Since the plaintiff’s first witness was admittedly illiterate to bind him with exhibit A, a document obviously prepared in the English language, the onus lay upon the defendant to establish that it had in fact been properly explained and interpreted to him so as to make him understand its real import… [39] It was also held in the case of Mahama Hausa and others v Baako Hausa and another [1972] 2GLR 469, that: There is no presumption that an illiterate Ghanaian who does not understand English and cannot read or write has appreciated the meaning and effect of an English legal instrument because he is alleged to have set his mark to it by way of a thumbprint. Since the Plaintiffs were illiterate in the English language and the Page 12 of 45 contents of the document (exhibit 2) did not correspond with what they had understood themselves to be setting their thumbprints to, the contents of the document could not be used as an estoppel or as a basis to enforce a claim against them. [40] The decisional authorities are to the effect that if an illiterate person signs a document or contract, any other party relying on that document against the illiterate must prove that the document or contract was read and explained to the illiterate person before they signed it. This requirement can be waived if the illiterate person admits to understanding the contents of the document or if it can be shown that they comprehended it before signing. [41] My understanding of the decisional authorities and the Illiteracy Protection Act is that for the principles outlined to apply, the illiteracy of the party must be established, and the other party involved must be aware of this illiteracy prior to or at the time of executing the document. In the present case, from the pleadings and evidence, Scancom denies that it was aware of the Plaintiff's alleged illiteracy at the time of signing the 1 May 2008 and 14 March 2011 lease agreements. In fact, Scancom asserts that it negotiated and interacted with the Plaintiff in English, and that the Plaintiff can read, write, and understand the English language, having comprehended both documents before signing them. [42] The Plaintiff pleaded that he is an illiterate, uneducated and cannot read and write the English language unless it is read, interpreted, or explained to him. The Plaintiff averred that the 1 May 2008 agreement was read and interpreted to him in the Akan language to his understanding by his witness to the agreement before signing. The Defendants denied this allegation and pleaded that they dealt with the Plaintiff in the English language, and all negotiations were done in the English language, and the terms agreed with him before he signed it. Page 13 of 45 [43] It is the case of Scancom that during negotiations and execution of the two documents, the Plaintiff always held himself as a literate and discussions and negotiations were done in English and executed all the documents and wrote the correspondence between the parties in English. [44] The question this court must address is whether the Plaintiff is illiterate based on the pleadings and evidence presented. My answer is no; the Plaintiff is literate and did not need the two agreements to be read and interpreted for him in the Akan language in order to be bound by their terms. [45] The Plaintiff’s headlease, executed by the Plaintiff and his grantors, was tendered by the Plaintiff as Exhibit A and by Scancom’s representative as Exhibit 2S. On the face of Exhibit A, there is no indication that the Plaintiff is illiterate, and the contents of the document were read and explained to him in the Akan language before signing. The Plaintiff also did not lead any evidence to establish that Exhibit A was read over and interpreted to him in the Akan language. [46] Again, the sub-lease agreement, i.e. the 1 May 2008 agreement made between the Plaintiff and Scancom, was tendered in evidence by the Plaintiff as Exhibit B. The Plaintiff pleaded and testified that his witness to Exhibit B was one Janet Darku and that the said Janet Darku was the one who read and explained Exhibit B to him in the Akan language before signing. The oath of proof in Exhibit B is in the following terms. I, Janet Adzo Darku of G/Accra Region, make oath and say that on day of 2008, I was present and saw the within-named James Okran duly execute the Instrument now produced to me and marked ‘A’ and that the said James Okran can read and write. (emphasis mine) Sworn in Accra this 10th Day of June 2008 Page 14 of 45 (Sgd) Deponent Before me Commissioner for Oaths Signed Registrar High Court, Accra. [47] Under cross-examination of Scancom’s representative, a suggestion was made by Counsel for the Plaintiff that it was the witness to the agreement, Janet Darku, who stated that the Plaintiff can read and write and not the Plaintiff himself. This is what transpired: Q. I put it to you that the Plaintiff is an illiterate and could not read, write or appreciate the English language. A. That is not correct. The Sub-lease Agreement, based on which Scancom PLC had a valid contract with the Plaintiff, was signed by the Plaintiff, and there was no evidence that it was read for him, and all our correspondence between Scancom PLC and the Plaintiff was signed by the Plaintiff as someone who is literate. Q. I suggest to you that the answer you just gave is not true. A. That is not correct. Q. You will agree with me that it was your Company that prepared Exhibits 1S and 3S. A. Yes. The practice is that the Company will put into writing all agreed terms as a draft and send it to the landlords or grantors, and they will go through and Page 15 of 45 confirm if it captures all agreed terms and if they are happy with it, they sign and bring back to the Company for the Company’s representative to also sign. Q. I put it to you that, apart from the fact that it was the Company that prepared Exhibits 1S and 3S, the response you just gave is false. A. That is not correct. The sublease agreement, which has the oath of proof, has stated James Okran, who can read and write. Q. Can you show us where it is stated that James Okran can read and write. A. Page 11 of the sub-lease agreement. Q. You will agree with me that what you just showed to the court it was not James Okran himself who has stated that he can read and write, but it was another person by name Janet Adzo Dorku. A. Yes, my Lord, however, that said, Janet Adzo Dorku is a witness of James Okran, based on which the lease Agreement was duly executed, and she confirmed that James Ocran can read and write. [48] Exhibit B is the documentary evidence of the Plaintiff, in which Janet Darku, who witnessed the execution of the lease agreement by Plaintiff, swore an oath before the Registrar of the High Court that the Plaintiff can read and write. The law is that documentary evidence takes precedence over oral evidence except where, for some good reason apparent on the face of the records, the Court prefers the oral evidence to the documentary evidence. [49] In Fosua & Adu-Poku v Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 345, Dotse JSC held thus: In the case of Yorkua v Duah [1992-93] GBLR 278, CA, it was held that whenever there was in existence a written agreement and conflicting oral evidence over a Page 16 of 45 transaction, the practice in the Court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting. See also Nsiah v Atuahene [1992-93] GBR 897 C. A “ [50] Exhibit B is written in English, and the individual who witnessed the Plaintiff signing the document testified that the Plaintiff can read and write. There is also no jurat. The presence of a jurat may be presumptive of the facts alleged in the document, including the jurat. But that presumption is rebuttable; it is not conclusive. This implies that the Plaintiff is able to comprehend the language of the document. Consequently, since Janet Darku affirmed under oath that the Plaintiff can read and write, there was no necessity for her to read the contents of the document to the Plaintiff in the Akan language. [51] In this case, there is no evident reason in the record to prefer the Plaintiff's oral evidence over the documentary evidence indicating that he can read and write. At the very least, there is a reasonable presumption that the Plaintiff is capable of reading and writing in English. [52] Although the Illiterate Protection Act does not specifically mandate the inclusion of a jurat or interpretation clause on documents signed by illiterate individuals, it does require that the contents of the document be read to and explained to them before they sign. Generally, in practice, however, when an illiterate person is involved in signing a document or making their mark, a jurat is typically included in the document. In contrast, when all parties to the document are literate, a jurat is usually absent. [53] Therefore, in my opinion, the presence of a jurat on a document is indicative of the fact that the party is illiterate and that the document must be read and explained to him to ensure his understanding before signing. Conversely, the absence of a jurat also suggests that the parties to the document are literate in the language of the document and Page 17 of 45 need no interpretation before signing. However, these are rebuttable presumptions; they are not conclusive. [54] In the present case, both the agreements dated 1 May 2008 and 14 March 2011, made between the Plaintiff and Scancom, do not include a jurat. Considering all the circumstances in this case, where there have been a series of negotiations leading to the execution of an agreement written in English that do not contain a jurat, and considering that the Plaintiff signed this agreement while his witness to the 1 May 2008 agreement swore an oath confirming his ability to read and write, there exists a rebuttable presumption of the Plaintiff’s literacy. And the law is that it is the party against whom a presumption operates that has the burden of producing evidence to rebut that presumption. [55] Section 20 of the Evidence Act is in the following terms: A rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non- existence of the presumed fact. [56] In the case of GPHA v Nova Complex Ltd [2007-2008] 2 SCGLR 806, the Court held thus: - The presumption has a prima facie effect only, and the presumed facts may therefore be replaced by evidence. A rebuttable presumption, in the language of section 20 of NRCD 323, ‘imposes upon a party against whom it operates the burden of producing evidence and the burden of persuasion as to the non- existence of the presumed fact.’ [57] In the present case, since the Plaintiff claims he is illiterate and the presumption of literacy operates against the Plaintiff, he assumes the burden of adducing sufficient and credible evidence to rebut the presumption, failing which the presumption will operate Page 18 of 45 against him. And as in all civil cases, the standard required is that of proof on the balance of probability. [58] In Dzaisu v Ghana Breweries [2009] 6 G. M. J. 111 on the meaning of burden of persuasion and who has the burden of proving same, Adinyira, JSC held as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim. Section 10(1) of the Evidence Act, 1975, Act 323 defines burden of persuasion as follows: ‘(1) For the purposes of this decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” [59] The Court further held on whether an assertion made by a party in the witness box without proof shifts the evidential burden on the other party as follows: “It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party…” [60] On the evidence, I am not satisfied that the Plaintiff was able to rebut the presumption of literacy on him and thus the presumption of literacy will operate against him. These are my reasons for coming to that conclusion. [61] The Plaintiff, in his evidence-in-chief, testified as follows: I am an illiterate who cannot read and write the English language or understand same unless read and interpreted or explained to me. By a sub-lease agreement dated the 1st day of May, 2008, between me and the 1st defendant, I leased a portion Page 19 of 45 of my land for a period of fifteen (15) years starting from the 15th day of May, 2008, to erect communication transmission equipment. See exhibit “B”…….. Before I signed the said agreement dated the 1st day of May, 2008, it was explained to me by one Janet Dorku, who witnessed it for me, to my understanding before I made my mark by signing same. (emphasis mine) [62] Under cross-examination by the Counsel for Scancom, this is what the Plaintiff said: Q. In paragraph 8 of your Witness Statement, you stated that the first agreement was signed by you after it had been read and explained to you by your witness to the said Agreement. A. That is so, my Lady. Q. The second Agreement was also witnessed by your witness, is that not so? A. Yes, my Lady. Q. So why did you not, as in the case of the first Agreement, cause your Witness to read and interpret the second Agreement to you. A. The official who brought the Agreement explained to me that he had to return with the Agreement that very day. The official inquired of my wife, I responded that she had left for work. He also inquired of my children, and I responded that they had left for school and it was only left with the last one, who was in J. S. S. 1. The official said that since it was just a matter of, he being a witness, I should bring him to witness the Agreement. so, I brought my little son and the official indicated the portion where he had to sign as witness. This he did after which he left for school. After this the official left with the Agreement. Further Page 20 of 45 Q. I am putting it to you that contrary to your assertion that the representative of Scancom pressurised you to sign the Agreement on the very day it was brought that was not the case and in fact the document was left with you to sign and was subsequently collected by a representative of Scancom. A. That is not true my lady. Q. Please read the signature page of that Agreement to him (on page 24 of Exhibit C) you noticed that you signed your portion on the 17th of March 2011 and was witnessed that same day but Scancom signed their portion on 21st March 2011 and their witness, is that not so? A. My Lady I am not educated so I cannot respond to the portion of this document. Q. You have stated severally in this Court that you cannot read nor write and that all written correspondence between yourself and the Defendants, which was the mode of communication between the parties were written by your son, not so? A. That is so, my Lady. Q. But these matters you refer to, that the correspondence were written by your son, cannot be known from reading the correspondence, is that not so? A. That is not so my Lady. [63] In my view, the Plaintiff failed to call material witnesses to enable him to discharge the evidential burden placed on him to rebut the presumption of literacy against him and to establish that he was illiterate. In civil proceedings, the consequences of a party’s failure to call a material witness depend on the onus of proof placed on him by the facts of the case. If a party has to establish his case and therefore assumes the onus of proof, he must call witnesses material to establish that case. In that event, his failure to call a Page 21 of 45 material witness may result in a ruling being given against him for the reason that he has failed to establish that case: See section NRCD 323, s.11(1). S. A. Brobbey Practice & Procedure in the Trial Courts & Tribunals of Ghana (2011). [64] Evaluating evidence in a trial is not based on the quantity of witnesses called at the trial in proof of the case of a party. However, the Supreme Court in the case of Gligah & Anor v The Republic [2010] SCGLR 870 on the need to call a material witness by a party at a trial unanimously held that: The Supreme Court would affirm as good law the principles of law regarding the need for a party to call a material witness in support of its case. However, the said principle of law did not apply in the circumstances of the instant case. In establishing the standard of proof required in a civil or criminal trial, it was not the quantity of witnesses that a party who had the burden of proof, called to testify, that was important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party had succeeded in proving the ingredients required in a particular case. In other words, the evidence led must meet the standard of proof required in a particular case. If it did, then it would be a surplusage to call additional witnesses to report virtually the same point or seek to corroborate evidence that had already been corroborated. [65] Under the English Common Law, a witness whose evidence is likely to be sufficiently important to influence the outcome of a trial is a material witness who must be invited to assist the court. In the present case, the Plaintiff testified that he is illiterate and cannot read and write the English language and that Exhibit A was read and explained to him to his understanding by his witness, Janet Dorku, before signing it. Plaintiff further asserted that all written correspondence between himself and the Defendants, which was the mode of communication between the parties, was written by his son. These pieces of evidence have not been corroborated. Page 22 of 45 [66] In my view, Janet Dorku, who allegedly read and explained the document to the Plaintiff in the Akan language before signing and the son of the Plaintiff, who allegedly wrote the letters for the Plaintiff, were material witnesses whose testimonies would have corroborated the Plaintiff that he indeed is an illiterate and he cannot read or write the English language. Failure to call such material witnesses, in my view, was fatal to Plaintiff’s case. [67] Janet Dorku and the Plaintiff’s son were not invited by the Plaintiff to give evidence in the matters attributed to them and also make themselves available for cross- examination. If it is true that Janet Dorku explained the first agreement to the Plaintiff in the Akan language before signing it, and also if it was the Plaintiff’s son who wrote the various correspondence in English and explained them in the Akan language before the Plaintiff signed, why did the Plaintiff fail to call them to testify and be subjected to cross- examination? Therefore, the failure of the Plaintiff to call Janet Dorku, whom he asserts read and interpreted the agreement to him in the Akan language before signing, and his son, who he alleges wrote all his correspondence between him and the Defendants, was fatal to his case. See Ogbarmey-Tetteh v Ogbarmey-Tetteh [1993-94] I GLR 353 SC. [68] Apart from the Plaintiff mounting the witness box and repeating his averments on oath, nothing more was done in proof of his assertion that he is uneducated and cannot read and write the English language and that the contents of the first agreement was read to him in the Akan language by his witness to the agreement and also all correspondence between the Plaintiff and Defendnats were written by his son. [69] In Mojalagbe v Larbi & Ors [1959] GLR 190, the Court per Ollenu J (as he then was) defined proof in the following terms: Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing Page 23 of 45 documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true. [70] The principle in Mojalagbe v Larbi has been explained by the Supreme Court in Sarpong(decd) (substituted by) Kodua v Jantuah [2019-2020] I SCGLR 736. The Court per Benin JSC stated the principle as follows: Again, counsel was stretching the principle in Mojalagbe v Larbi [1975] GLR 190 out of context. That principle did not mean that the party should not and cannot repeat what he had pleaded; what the principle meant was that a party should lead such evidence as would constitute proof in law. It is observed that a party is required to stick to his pleadings when giving evidence, so there is nothing wrong if he repeats on oath what he has pleaded; the only consideration by the court is that what has been said on oath is sufficient to discharge the burden of persuasion that lies on him. [71] Also, in the case of T. K. Serbeh & Co Ltd v. Mensah [2005-2006] SCGLR 341 at 360- 361, Dr Date-Bah JSC opined as follows: For, however credible a witness may be, his bare affirmation on oath or the repetition of his averment in the witness box cannot constitute proof. This is trite law: see Mojalagbe v Larbi [1959] GLR 190, especially at page 192. This proposition is applicable to even matters whose proof does not require corroboration as a matter of law. [72] In the present case, the Plaintiff just mounted the witness box and repeated his averment on oath; he made bare assertions without further proof when those assertions Page 24 of 45 had been specifically denied by the Defendants. In my view, the repetition of the averment of the Plaintiff on oath to establish his claim that he is an illiterate and cannot read and write English and that the contents of the agreement were read over to him to his understanding before he signed it, is not sufficient to establish his claim. [73] In the case of Ackah v Pergah Transport Ltd & Others [2010] SCGLR 728 at 736, the Supreme Court per Adinyira JSC opined as follows: It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility, short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact, such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence. This is a requirement of the law of evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). [74] I find that the Plaintiff has failed to rebut the presumption of literacy and hold that the Defendants have been able to establish that the Plaintiff is literate and cannot be protected by the Illiterate Protection Act, which has the primary purpose of protecting illiterates. [75] I therefore resolve the issues 1 and 2 in favour of the Defendants and hold that Plaintiff is literate and the first agreement was not read and explained to him in the Akan language, and that being literate in the English language there was no need for the second Page 25 of 45 leasehold agreement dated 14 March 2011, to be interpreted and explained to the Plaintiff in the Akan language and did not need the protection of the Illiterate Protection Act. The Plaintiff is a literate person who understood the contents of both agreements and voluntarily executed them, and as a consequence, is bound by the terms of both agreements. [76] In any case, assuming without admitting that the Plaintiff is illiterate, the recent Supreme Court cases of Akuteye & Ors v Nyarkoah & Ors [2018] DLSC 483 and Duodu & Ors v Adomako and Adomako [2012]1 SCGLR 198 suggest that the transaction should not be declared void if indeed the Plaintiff understood the contents of the agreement. [77] In Akuteye & Ors v. Nyarkoah & Ors supra, Sophia Akuffo CJ, in referring to the principle as laid down in Duodo & Ors v Adomako & Adomako, stated thus: “This Court was even more expressive in the hereinbefore mentioned case of Duodu and Others v Adomako and Adomako, per Wood C. J., at page 216, as follows: “…the courts must not make a fetish of the presence or otherwise of a jurat on executed documents. To hold otherwise, without a single exception, is to open the floodgates to stark injustice. Admittedly, the presence of a jurat may be presumptive of the facts alleged in the 7 document, including the jurat. But that presumption is rebuttable; it is not conclusive. The clear object of the Illiterates Protection Ordinance, Cap 262 (1951 Rev..) is to protect illiterates for whom a document was made against unscrupulous opponents and their fraudulent claims; those who may want to take advantage of their illiteracy to bind them to an executed document detrimental to their interests. At the same time, the Ordinance cannot and must not be permitted to be used as a subterfuge or cloak by illiterates Page 26 of 45 against innocent persons. Conversely, notwithstanding the absence of a jurat, the illiterate person who fully appreciates the full contents of the freely executed document, but feigns ignorance about the contents of the disputed document, so as to escape legal responsibilities flowing therefrom, will not obtain relief. As noted, the presence of a jurat at best raises a rebuttable presumption only, not an irrebuttable one. Thus, any evidence which will demonstrate that the illiterate knew and understood the contents of the disputed document, that is, the thumb-printed or marked document, as the case may be, should settle the issue in favour of the opponent. In other words, in any action, it should be possible for the one seeking to enforce the contents of the disputed document to show that despite the absence of a formal jurat, the illiterate clearly understood and appreciated fully the contents of the document he or she marked or thumb printed.” [78] In the present case, the Plaintiff has received rent from the Plaintiff for a period of 6 years since the first amended lease was executed on 11 March 2011. He has requested and received additional Ghs150 pursuant to provision (clause 3(b)) of the first amended lease for the co-location of Airtel Ghana at the site. It was only on 17 July 2017 that his solicitor wrote to the ATC protesting against the amended agreement. If he did not understand the agreement, why was he able to demand the payment of an additional Ghs150.00 when the Scancom assigned its interest ATC? ISSUE 3: Whether or not the amended lease dated the 14th day of March, 2011, is unconscionable, unfair, unjust and disadvantageous to the Plaintiff. [79] The principle of party autonomy in a contract is to the effect that parties have the freedom to enter into a contract, and when they do so, their freedom is restricted by the Page 27 of 45 terms of the contract, and they are bound by the terms of the contract unless the contract permits them to amend it or they mutually agree to amend it. [80] Lord Sumption in Rock Advertising Limited (Respondent) v MWB Business Exchange Centres Limited (Appellant) [2018] UKSC 24 on party autonomy stated as thus: Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows. Nearly all contracts bind the parties to some course of action, and to that extent restrict their autonomy. [81] It is also the law that the Court would not rewrite an agreement entered into by parties and would hold them accountable for what they bargained for. No extraneous matters would be allowed to defeat the clear intention of the parties, and the Court should uphold and respect the parties’ commercial bargains. See the case of Allan Sugar (Products) Ltd v. Ghana Export Company Ltd (1982-83) GLRD 91. [82] The Plaintiff and Scancom, of their free will, entered into the 1 May 2008 sub-lease agreement and mutually agreed and did amend the said agreement by executing the 14 March 2011 first amended leasehold agreement. They are therefore bound by the terms of the 14 March 2011 agreement, which amended the 1 May 2008 sublease agreement. The Plaintiff, however, claims that the 14 March 2011 amended leasehold agreement is unconscionable, unfair, unjust and disadvantageous to him and is therefore calling upon this Court to set aside the said agreement. [83] The Plaintiff testified as follows: The amended agreement dated the 14th day of March, 2011, is unconscionable, unfair, unjust and a disadvantage to me because it has heavily reduced the rent due me under the original agreement between me and the 1st defendant. The amended agreement has occasioned so much hardship, losses and injuries and Page 28 of 45 would continue to occasion the same to me and continue to give the defendants undue and unfair advantage over me if not set aside. [84] Even though parties who willingly enter into a contract are bound by the terms of their agreement, a Court of law or equity will intervene to set it aside if the terms of the agreement so entered by the parties, albeit willingly, are unconscionable on account of special disability of one of the parties, he placed in a serious disadvantage in relation to the other. A Court of law also has the right to set aside a contract entered into by parties if the contract is illegal or against public police. [85] In Attisogbe v CFC Construction Co (WA) Limited & Reed [2005-2006] SCGLR 858, the Court per Doste JSC on the doctrine of unconscionable bargain stated as follows: In our opinion, therefore, the Courts of Ghana have the right to set aside any unconscionable dealing, whether by contract or gift, where on account of the special disability of one of the parties, he or she is placed at a serious disadvantage in relation to the other…… Poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary: these are all circumstances which, in the right context, can justify the Court’s intervention on the basis of the equitable principles embodied in the doctrine of unconscionable bargain. The court further stated that: Where a party successfully makes a case that he or she has a special disability, or the facts of a case lend themselves to an application of the doctrine, the onus devolves onto the dominant party to demonstrate that the transaction was fair, just and reasonable. If the dominant fails to show that the transaction was fair, just and reasonable, the Court is entitled to set the transaction aside. Page 29 of 45 [86] The parties signed the amended agreement, and the contents thereof are conclusively presumed to be true between the Plaintiff and Scancom. Section 25 (1) of the Evidence Act provides that: Except otherwise provided by law, including the rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest. [87] In Kusi & Kusi v Bonsu [2010] SCGLR 60 at 84, Wood CJ held that: Indeed, under Section 25 of the Evidence Act,1975 (NRCD 323), the facts recited in the document were conclusively presumed to be true between the parties and all persons claiming through them. In short, it created an estoppel by written document, binding the appellants, i.e. the defendants and their successors. [88] The parties, out of their freedom, amended the 1 May 2008 agreement by the execution of the first amendment to the leasehold agreement dated 14 March 2011. In the amended leasehold agreement, the parties amended the rent payable in the following terms: 3. Rent and Escalation. Paragraph I of the Agreement is hereby amended only to the extent as provided below, and all other provisions of Paragraph 1 shall remain unchanged: (a) The rent payable by Lessee to Lessor under the Agreement is, as immediately prior to the Effective Date, the Ghana Cedis equivalent of Two Hundred and twenty Dollars ($220.00) per month (the ‘Current Rent’) and such Current Rent has been paid in full through 11th May, 2011, (Prepaid Rent). Commencing on the expiration of the Prepaid Rent Date, the Current Rent will be Three Hundred and Thirty Ghana Cedis (Gh¢330.00) per month (‘New Rent’), less statutory withholding tax. Page 30 of 45 (b) Upon the execution by a third party carrier and Lessee of a new site licence agreement pertaining to the site and tower located at or on the Premises ( the “Payment Start Date”), the New Rent will be increased by One Hundred and Fifty Ghana Cedis (Gh¢150.00) ( the ‘Rent Increase’) to Four Hundred and Eighty Ghana Cedis (Gh¢480.00) per month which together with any previous escalations shall be the “Total Rent”. This amount shall be subject to the full statutory withholding tax. If applicable, the Rent Increase will be paid to the Lessor in full from the Payment Start Date through the Prepaid Rent Date within sixty (60) days of the Payment Start Date. All other rent shall be paid two (2) years in advance by Lessee to Lessor. (c) Commencing on 15th May, 2013 and every five (5) years thereafter during the term (including renewal terms) of the Amended Agreement, the rent shall automatically increase by an amount not exceeding 10% of the preceding year’s rent. For the avoidance of doubt, this provision shall supersede the rental provision provided in Paragraph 1.2 of the Agreement. [89] The Plaintiff tendered Exhibit F. Exhibit F is a schedule of rent balance, which the Plaintiff claims is due to him by the Defendants. Exhibit F was prepared by William Abayaawen Atulik of Akanbek Atulik & Associates, whose representative testified as PW1. The rate of the cedi to the dollar per Exhibit F was Ghs 1.50, and the rent due as of 15th May 2008 – 14th May 2011 was 330 cedis, which was the equivalent of USD220.00. What this means is that as of the date of the amended agreement dated 14th March 2011, the recovery rent was Ghs 330.00, which was the rent payable by the Defendants per the amended agreement. The rent in the amended lease agreement was therefore pegged at Ghs330.00 per month, which was, to the knowledge of the Plaintiff, equivalent to USD220 at the date of the amended agreement and which was the original rent quoted in the lease Page 31 of 45 agreement dated 1 May 2008. The rent was not reduced in any way as claimed by the Plaintiff. [90] Again, section 3(1) and (4) of the Foreign Exchange Act, 2006 (Act 723) is in the following terms: (1) A person shall not engage in the business of dealing in foreign exchange without a licence issued under this Act. (4) The business of dealing in foreign exchange includes: (a) Purchase and sale of foreign currency (b) Receipt or payment of foreign currency (c) Importation and exportation of foreign currency, and (d) Lending and borrowing of foreign currency [91] Section 29 of the Act makes business dealings in foreign exchange without a licence an offence. (1) A person who (a) Engages in the business of dealing in foreign exchange without a licence issued under section 5(1) commits an offence and is liable, on summary conviction to a fine of not more than seven hundred penalty units or a term of imprisonment of not more than eighteen months or both ……………… (3). Where an offence is committed under this Act or under Regulations made under this Act by a body of persons (a) In the case of a body corporate, other than a partnership, each director or an officer of the body shall also be considered to have committed the offence Page 32 of 45 [92] It is the case of Scancom that it complied with the provisions of the law when the rent was changed into cedis. Scancom tendered in evidence Exhibit 6S. Exhibit 6S is a Bank of Ghana letter dated April 10, 2013 and addressed to the Chief Financial Officer of Scancom and was in response to Scancom’s query on contracting in foreign currency. The letter instructed Scancom to desist from entering into contracts with residents of Ghana in foreign currency, as it contravened the provisions of Act 723, which was passed in 2006, way before the execution of the 14 March 2011 amended agreement. The Bank of Ghana attached to Exhibit 6S a notice it issued on 10 October 2012 advising the general public to desist from pricing, advertising, paying or receiving payments for goods and services in foreign currency, particularly United States Dollars. [93] Counsel for the Plaintiff in his written addresses submitted that by clauses 1.1 and 1.2 of Exhibit B, the rent is to be paid in the dollar equivalent in Cedis but not to be paid in Dollars. Thus, clauses 1.1 and 1.2 of Exhibit B could not be contrary to Act 723, which forbids receipt or payment in foreign currency to warrant any variation or to the detriment of the Plaintiff. Counsel referred the Court to the Supreme Court case of Sam Jonah v Duodu- Kumi [2003-2004] SCGLR 50 at 58 and submitted that a contract denominated in external currency would not affect the legality or enforcement of that agreement. [94] Counsel for ATC in response submitted that the decision in Sam Jonah v Duodu- Kumi does not apply in this case because the case was decided under Act 723, and the Court decided the matter in Sam Jona under Exchange Control (Amendment) Law, 1986 (PNDCL 149), which did not prohibit pricing for services in foreign currency. [95] In the Sam Jona case, the provisions that the court considered were sections 1A and 5(2) of the Exchange Control (Amendment) Law, 1986 (PNDCL 149), which read as follows: - Page 33 of 45 “IA. For the avoidance of doubt, it is hereby declared that unless otherwise authorised by the Secretary responsible for Finance, no Ghana resident shall receive in Ghana any external currency as payment for service rendered or for the sale of goods or property by him or as rent in respect of any property owned by him. “5(2). Except in circumstances as may be prescribed, no person or individual shall make a payment in external currency to or for the credit of a Ghana resident for services rendered by him or for the purchase of or in exchange for good or property, or for the settlement of rent in respect of any property owned by such Ghana resident.” [96] The Supreme Court, in construing the above statutory provision, held as follows: Although the amount demanded in Exhibit ‘B’ is stated in US Dollars, it is patently clear from the amended Statement of Claim that the amount claimed by the Appellant as rent arrears is the Cedi equivalent thereof. What the abovementioned law expressly prohibits is payment or receipt of payment in external currency. It imposes no prohibition on the denomination of monies due in such external currency. It does not relate to the legality or enforceability of an agreement that denominates, in such currency, any amount payable thereunder. [97] In this case, the Court is not deciding on the legality or enforceability of the agreement dated 1 May 2008, due to its denomination in US Dollars. The plaint of Plaintiff is that the 14 March 2011 amended agreement changed the rent currency from US Dollars to Ghana Cedis, which he claims is unconscionable. However, it has been established that the Plaintiff is literate and voluntarily signed the amended leasehold agreement. He is of full age and understanding and is not affected by any disabilities outlined by Doste JSC in the case of Attisogbe v. CFC Construction Co (WA) Limited & Reed. Therefore, the Page 34 of 45 Plaintiff cannot complain that changing the currency of the rent from US Dollars to Ghana Cedis is unconscionable. [98] In any case, Scancom contends that the reason for the change in the currency in which the rent was assessed was in accordance with the directive from the Bank of Ghana that goods and services shall not be priced in the United States Dollars and in compliance with the law. Attached to Exhibit 6S is a Bank of Ghana Notice to the General Public, Notice No. BG/GOV/SEC/2012/12 CAPTIONED “PRICING, ADVERTISING AND RECEIPT OR PAYMENT FOR GOODS AND SERVICES IN FOREIGN CURRENCY IN GHANA. Paragraphs I and 2 of the said Notice are in the following terms: The Bank of Ghana announces for the information of the general Public that it has come to its notice that despite the earlier Notices No. BG/GOV/SEC/98/2 dated 14th January, 1998 and BG/GOV/SEC/2001/9 dated 18th June, 2001, which advised against unlicensed or unauthorised dealings in foreign currency, especially United States (US) dollars, for their goods and services without the requisite licence or authorisation. The Public is reminded that the Ghana Cedi is the only legal tender in Ghana and that the US dollar or any other foreign currency is not the legal tender in Ghana. No resident of Ghana, other than those licensed by the Bank of Ghana to do so, shall price, advertise, receive or make payment in any foreign currency for goods and/or services such as school fees, sale and rental of vehicles, sale and rental of real estate, airline tickets, domestic contracts, etc. [99] Per the Bank of Ghana Act, 2002 (Act 612), the Bank has, among its functions as the Central Bank, the following: Section 4- Functions of the Central Bank (1) The Bank shall, for the purpose of section 3, perform the following functions: Page 35 of 45 (a) to formulate and implement monetary policy aimed at achieving the objectives of the Bank (b) promote by monetary measures the stabilisation of the value of the currency within and outside Ghana [100] The Bank of Ghana thus have the responsibility by law to regulate. and formulate monetary policies and the directives contained in the Notice No. BG/GOV/SEC/2012/12 CAPTIONED “PRICING, ADVERTISING AND RECEIPT OR PAYMENT FOR GOODS AND SERVICES IN FOREIGN CURRENCY IN GHANA is in accordance with its functions outlined in Section 4 of Act 612 and the changes in the currency of the rent from US Dollars to Ghana Cedis which is in conformity with the Directive, cannot be said to be unconscionable. [101] The amendment of the provisions of the lease agreement dated 14 March 2011 in respect of the rent to cedis in compliance with the directive of the Central Bank cannot be said to be unconscionable. The Plaintiff, under cross-examination, admitted that he does not have a licence to deal in foreign currency. A conduct that is in compliance with an Act of Parliament cannot be said to be unconscionable when the law has not been declared unconscionable. Therefore, the change of the currency from USD to cedis at the rate at the time cannot be said to be unconscionable, unreasonable or unfair to the Plaintiff [102] Again, in terms of clause 3 (c), the rent was subject to automatic upward increase not exceeding 10% of the previous year’s rent, and the rent was always paid in two years in advance. Also, per Clause 3(b), Plaintiff is entitled to an additional Gh150.00 when there is an assignment to a third party. All these provisions are there to increase the rent of the premises, and the amended agreement cannot be said to be unconscionable and unfair to the Plaintiff. Page 36 of 45 [103] For the above reasons, the amended lease dated 14 March 2011 cannot be said to be unconscionable, unfair, unjust and disadvantageous to the Plaintiff, and I resolve issue 3 in favour of the Defendants, and the Plaintiff is bound by the terms of the amended lease agreement dated 14 March 2011. ISSUE 4: Whether or not the Plaintiff at all material times to this action understood and appreciated the contents, nature and effects of the agreements he entered into with 1st Defendant. [104] It is the case of the Plaintiff that he was misled by Scancom in signing the first amended lease agreement and that he did not appreciate the contents, nature and effects of the 14 March 2011 agreement. He testified that whilst the 1 May 2008 agreement was pending, Scancom brought an amended leasehold agreement dated 14 March 2011 and informed him that it would replace the earlier agreement, which an official of Scancom asked him to sign without explaining the content to him, but told him it was the same as the earlier agreement. He testified further that, unknown to him, the 14 March 2011 agreement made some changes in respect of the currency of the rent, the right of Scancom to sub-lease, licence and sub-licence the premises without his consent and also an automatic 5-year renewal upon the expiration of the agreement. [105] The Defendants denied the allegation that the Plaintiff was misled in signing the 14 March 2011 amended leasehold agreement and stated that the Plaintiff, at all material times during the negotiation and execution of the amended leasehold agreement, knew, understood and appreciated the provisions contained therein, more so when all discussions and negotiations were done in the English language. That Plaintiff executed the said amended leasehold agreement after reading the same, and proceeded to sign each page of the agreement and thereafter returned the signed amended lease agreement to Scancom, which also executed the same. Page 37 of 45 [106] On the face of the amended leasehold agreement, the Plaintiff has signed it and initialled every page. He has admitted that he signed, but claims he did not read through it or that it was not read and explained to him in the Akan language. I have already held that the Plaintiff is literate and he can read and write English, and as such, he did not need anyone to read and explain the contents to him in the Akan language before signing. [104] It is trite law that where a person of full age and understanding signs a document or enters into an agreement, it carries with it an intention that he intends to be bound by the document or contract and cannot turn around to say the document was different in character or nature than the one he intended to sign. However, where such a person’s signature was obtained by fraud or misrepresentation, it will be unfair and against good conscience and justice to allow such a person to be bound by that document or contract signed by him. Hence, the principle of non est factum [which means “that which is claimed I wrote is not my deed” or “it is not my deed”], which operates to shield such persons from liability in respect of a document or contract mistakenly executed by them, was introduced. See the English case of L’Estrange v F. Graucob Ltd (supra). [105] The Supreme Court of Ghana in the case of Oppong v Anarfi [2011] SCGLR 556, in applying the above legal proposition, held that: The law was settled that a party of full age and understanding would normally be bound by his signature, whether he read and understood it or not, particularly in the absence of the requisite evidence that the other party had misled him. Therefore, where parties had embodied the terms of their contract in a written document, extrinsic evidence or oral evidence would be inadmissible to add to, vary, subtract from or contradict the terms of the written instrument. Thus, mere negligence in not reading a document before signing could not amount to the defence of non est factum. Page 38 of 45 [106] Therefore, the failure of the Plaintiff to read the 14 March 2011 amended leasehold agreement before signing could not amount to a defence of non est factum. In terms of section 25(1) of the Evidence Act, the Plaintiff is caught by the principle of contractual estoppel and is bound by the terms of the 14 March 2011 amended lease agreement, which included the right of Scancom to assign its interest to a third party without recourse to the Plaintiff. ISSUE 4: Whether or not the covenant to assign without the prior written consent in the amended lease agreement is contrary to clause 1(c) of the Plaintiff's head-lease, and therefore void. [107] Plaintiff’s head lease was admitted in evidence as Exhibit A. Clause 2 (c) of Exhibit A is in the following terms: The lessee hereby covenants with the lessor as follows: c. Not to assign, sublet or part with possession of the demised land or any part thereof without the prior consent in writing of the Lessors, such consent not to be unreasonably withheld. [108] Exhibit B, the sub-lease agreement dated 1 May 2008 and made between the Plaintiff and Scancom, the Plaintiff covenanted that all consents and concurrences required for a valid grant of title in the premises to Scancom have been duly obtained by the Plaintiff. [109] The Plaintiff signed the first amended agreement, and he failed to establish that he was misled by Scancom through dishonesty into signing it. He also failed to establish that he was induced by Scancom to sign the agreement by a false statement of fact. The Plaintiff, having therefore signed the first amended agreement dated 14 March 2011 and having failed to establish fraud and representation on the part of Scancom, is bound by the terms of the first amended agreement, which includes clause 1(c), which allows Scancom to assign its interest without the prior written consent of the Plaintiff. Assignments are generally permitted in leases, but with the consent of the lessor; Page 39 of 45 however, such consents shall not be unreasonably withheld. Assignment of a lease, therefore, without the consent of a lessor, does not necessarily lead to a void agreement. [110] Section 25. Facts recited in a written instrument (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 document, or their successors in interest. [107] By the terms of the amended lease dated 14 March 2011, Scancom reserved the right to assign its interest in the lease to any third party. Scancom, in the exercise of its right, assigned its interest in the lease to the ATC on 6 May 2011. The said assignment was admitted in evidence as Exhibit 2D6. The Plaintiff was informed of this assignment by a letter dated 9 November 2011. The Plaintiff, upon receipt of the said letter, signed the ATC’s copy of the 9 November 2011, confirming that he had been notified of the assignment between Scancom and ATC [108] In any case, by his subsequent conduct, the Plaintiff consented to the assignment of Scancom's interest in the demised premises to ATC. He testified under cross-examination despite his complaint about the assignment of the Lease by Scancom to ATC, which was done in 2011. He has since dealt with ATC and continues to deal with it to date, and receives rents from them. [109] The Plaintiff has requested for and accepted rents arising out of the assignment of the 1st Defendant’s interest in the demise to the 2nd Defendant. He has requested for and received additional Ghs150.00 as additional rent in the event of execution by a third-party carrier and Lessee of a new site licence agreement pertaining to the site and tower located at or on the Premises as provided for by clause 3 (b) of the 14 March 2011 amended leasehold agreement. Page 40 of 45 [110] In compliance with the terms of the 14 March 2011 amended leasehold agreement, specifically clause 3 (b) thereof, which provided that on co-location to a third-party courier, the monthly rent will be increased to Ghs150.00, the Plaintiff has since 2011 demanded and received from the ATC rent, including the additional rent of Ghs150.00, because of the assignment. [111] The Plaintiff has, since the assignment of the interest of Scancom to ATC, dealt with the ATC and received rents from ATC. The Plaintiff under cross-examination confirmed this fact when he testified that he had dealt with and continues to deal with the ATC since Scancom assigned its interest in the lease to ATC. This was his testimony under cross- examination. Q. Another complaint of yours in this suit is the assignment of the lease by SCANCOM to ATC. Is that not the case? A. That is so, my Lady. The 1st Defendant granted this Lease to the 2nd Defendant without informing me. Q. And yet despite your displeasure of the assignment, which was done in 2011, you have dealt with and continue to deal with ATC till date. Receiving rent from them. Is that not the case? A. My Lady, because there was nothing I could do about the situation, it remained so. For the past 4 years, I have not received a dime from them. [112] The Defendant tendered in evidence 5S. Exhibit 5S is a letter dated 12 September 2012 written by Plaintiff and addressed to ATC, requesting earlier advance payment of rent. The said letter was signed by the Plaintiff. At the bottom of the said letter, there is a handwritten note in the following terms: Page 41 of 45 PLEASE NOTE: Included in this letter are copies of my medical reports on the accident I was involved in on June 30 2012. [113] On 9 November 2011, ATC wrote to the Plaintiff informing him that Scancom has assigned its interest in the lease to ATC. The Plaintiff received and acknowledged receipt by signing the said letter on 14 November 2011. This letter was tendered as Exhibit 2D8. Paragraph 3 of Exhibit 2D8 is in the following terms: In view of the above assignment to which you have already consented, you will be receiving your future rent payments from ATC, and our relationship will be based on the Lease Agreement executed between yourself and Scancom Limited. Please be assured that ATC is committed to improving the abiding relationship with Scancom. [114] On 16 October 2012, Plaintiff received rent advice of net rent in the sum of Ghs11,617.70 for the period 15 May 2013 – 14 May 2015 by completing a land verification & information form and signing the same. The Plaintiff received an Ecobank cheque no. 006318 dated 10 October 2012 in the sum of Ghs11,617.70 in his name from ATC. [115] After the assignment of the lease by Scancom to ATC, the Plaintiff has dealt with Scancom as the assignee and continues to deal with it. In those circumstances, the Plaintiff, by his conduct, is estopped from denying that Scancom does not have his consent to assign the lease to ATC, and as a consequence, the assignment should be set aside. [116] Section 26 of the Evidence Act is in the following terms: 26. Estoppel by own statement or conduct Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or Page 42 of 45 permitted another person to believe a thing to be true and to act upon that belief, the truth of that thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) that party or the successors in interest of that party, and (b) the relying person or successors in interest of that person. [117] See also in the case of Obeng & Others v Assemblies of God Church, Ghana [2010] SCGLR 300 at 320-321, Doste JSC had this to say on estoppel by conduct under section 26 of the Evidence Act: “Having adverted our minds to all the exhibits referred to supra in which the logo and the name of the Plaintiff church, Assemblies of God, Church had been manifestly used by the defendants, coupled with the express acts of conduct and/or omissions of the defendants, we think it is correct to conclude on the basis of the provisions of Section 26 of the Evidence Act, 1975, NRCD 323, that the defendants are estopped from denying that the Calvary Charismatic Centre (CCC) was not an Assemblies of God Church. Section 26 of the Evidence Act, 1975, NRCD 323 provide thus: 26. Estoppel by own statement or conduct Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of that thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between Page 43 of 45 (a) that party or the successors in interest of that party, an (b) the relying person or successors in interest of that person. Thus, by reference again to exhibits H, H1, J, K, K1 and L together with exhibits M & N, which are the copies of the first and fifth anniversary brochures of the Calvary Charismatic Centre, it is clear that the Defendants, especially, the 1st Defendant, held themselves out as officers and agents of Plaintiff and they must be considered as such. In such a situation, all the properties acquired by the Calvary Charismatic Centre during the period 1985-1992, when the Defendants purportedly secede from the plaintiff church, belong to their other church, the Assemblies of God Church, when they decide on their own volition to cease affiliation or secede from it. The decision of the Court, therefore that Calvary Charismatic centre was local church of the Assemblies of God Church upon its establishment in 1985 and became an affiliate when it acquired the “set in order” status.” [119] In Ago Sai & others v Kpobi Tetteh Tsuru III [2010] SCGLR 762 at 797, the Supreme Court per Rose Owusu JSC re-emphasised the circumstances under which section 26 of the Evidence Act comes into play, said: If the La Stool stood by and did not challenge the acts of the Ogbojo Chief who was dealing with the land as owner, even if the land did not belong to him and his people, then I agree with the trial judge that the stool is caught by laches and acquiescence and is therefore estopped by conduct from laying claim to the whole of but not only some grants of Ogbojo Lands. It is pertinent to refer to section 26 of the Evidence Act, 1975 (NRCD 323) “ Page 44 of 45 [120] In the instant case, the Plaintiff, having demanded and received rent from ATC after the assignment of Scancom’s interest to ATC, Couple with his own testimony that after the assignment he had dealt with ATC and continues to deal with, he is caught by laches and acquiescence and estopped by his conduct from denying the contents of the 14 March 2011 amended agreement based upon which the Scancom assigned its interest to ATC. [121] There is significant evidence on the record supporting laches, acquiescence, and estoppel based on the Plaintiff’s conduct in dealing with the Defendants. This court, in the interest of substantial justice, will not ignore this evidence in support of the plea, even if it was not specifically pleaded by the Defendants, as asserted by the Plaintiff. The court's duty is to pursue substantial justice rather than become mired in technicalities. [122] For the above reasons, I will dismiss Plaintiff’s claim in its entirety. I award costs of Ghs25,000.00 in favour of each Defendant and against the Plaintiff. (Sgd.) Ayitey Armah-Tetteh (Justice of the High Court) Page 45 of 45