How could anyone possibly cheat an 87-year old man? Well, I also never believed until the assemblyman of my area did so to my grandfather. Aside believing, Like any other old man, that he could transition at any time, my grandfather, in order to help pay for university fees, chose to sell off his cocoa farm worth 250,000 Ghana cedis as quickly as possible. Unfortunately, this rapidity made him look for the quickest bidder and not the highest. Hence, I believe Mr. Tee, the assemblyman of our vicinity took advantage of that and bought the cocoa farm for a paltry 40,000 Ghana cedis- not even a half of the value of the farm! For that matter, I strongly believe that only a fairer price would be justice served to my grandfather. May I get your advice on what to do and how to go on about this?
Gloria Ackah, from Atebubu
LEGAL MIND:
As you rightly indicated, your Grandpa acted quite hastily, though with the best of intentions to give you the opportunity to study. He could have opted for a more convenient option from the banks by providing his farm as security instead of the outright sale.
That said, for an agreement to be valid and enforceable by the courts, five key ingredients are required: an offer, acceptance, intention to create legal relations, capacity, and consideration. That is to say that, when all these elements are present, a valid contract may be said to have been concluded.
Apparently, your concern bothers on the element of consideration, which has been described by the courts to mean a right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.
The court mostly try to ascertain the real intentions of the parties at the time they were entering into the agreement and enforce same. The court would not inquire into the adequacy of consideration provided by a party.
This means that the court would ordinarily not seek to assess the value of one party’s promise in comparison with the value of the other given to determine whether the consideration is adequate. In the absence of any external factors like fraud, misrepresentation, undue influence, or duress, and as long as the parties get what they bargained for, they are deemed to have received adequate consideration and are bound by the agreement. It is irrelevant that one party’s promise is far more valuable than that of the other.
In a Ghanaian case, a defendant bought land from the father of the plaintiff for £40. The plaintiff brought an action alleging, among others, that the consideration for the sale was inadequate (he thought the land was worth about £200).
The court held that in the absence of fraud or misrepresentation, inadequacy of consideration cannot be a ground for avoiding a sale validly made. (See Adjabeng v. Kwabla)
The English case of Hamer v. Sidway may also help illustrate matters. Here, an uncle promised a nephew who was an infant at the time as follows; “If you would refrain from drinking liquor, using tobacco, swearing, playing cards for money until you are 21 years, I will give you £5,000 on your 21st birthday”. The nephew complied and later sued to enforce the promise. It was argued that the nephew provided no consideration since what he did was not a detriment to him but was in fact a benefit to him, not to the uncle.
The court however held that the nephew’s forbearance amounted to good consideration. It was sufficient that the nephew had restricted his lawful freedom of action within certain prescribed limits upon the faith of the uncle’s promise.
Despite the above, there have been many instances in which the courts have refused to enforce contracts on grounds of unconscionability in order to do justice even if the five elements of contract have prima facie been established.
The issue of unconscionability arises from the doctrine of unconscionable bargain between parties as between your grandfather and the assemblyman, Mr. Tee.
A contract is said to be unconscionable and risks being struck out and unenforced by the courts if the nature of the transaction and the surrounding circumstances including the bargaining powers of the parties simply make it unfair, unjust and unreasonable and bereft of any modicum of good conscience and equity to be allowed to stand. See Blomley v. Ryan (1956) 99 CLR 362, 405, where Fullagar J.listed some examples of such disability: ‘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’. See also the Supreme Court of Ghana case of CFC Construction v. Attitsogbe and Anor, where Dr. Date-Baah JSC ( as he then was ) stated that in some appropriate situations, contracts freely entered into by parties may be set aside and unenforced by the courts;
“In our opinion, therefore, the courts in Ghana have the right to set aside as unconscionable any dealing, whether by contract or by 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. The categories of special disability should not be regarded as closed. Those listed by Fullagar J. (supra) are a useful but not necessarily exhaustive starting point. 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 courts’ intervention on the basis of the equitable principles embodied in the doctrine of unconscionable bargain…”.
Based on the above authorities, it can be said that looking at your grandfather’s advanced age and how needy he was and also due to the dire and emergency economic situation he found himself and without any evidence of any independent advice on the valuation and sale of the cocoa farm relative to the position and economic power of Mr. Tee in that community, the whole transaction could be deemed as unconscionable and thus liable to been set aside or unenforced by the court.
You may advice and assist your grandfather to bring an action at the court for determination.
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