Hemans v. Cofie [1997-98] 1 GLR 144
The plaintiff was a building contractor who, in 1987, became indebted to a number of people after taking building materials from them on credit. When he failed to pay the debt, the creditors reported him to the police for fraud, and he was subsequently arrested and locked up for eight weeks.
While in the cell, he was pressured to sell his house to pay off his creditors. He eventually agreed to do so, as the police would not release him to find an alternative source of funds to pay off the debts. The house was sold, his debtors were paid, and he was released.
Upon his release, he instituted an action in the High Court against the purchaser of the house as the first defendant, seeking an order to set aside the purported sale and purchase of his house by the first defendant on the grounds that he was under duress to sell the house.
At the High Court, judgement was given in favour of the first defendant. The plaintiff appealed, and the appeal was allowed. The first defendant then appealed to the Supreme Court.
Arguments of the Plaintiff:
The fact that he was being kept in police custody for nine weeks for owing a civil debt without being prosecuted, the police refusing to grant him bail to enable him to find money to pay his debt, the police withholding bail unless he executed a document transferring his interest in his house to the first defendant, and the police refusing to grant permission to him to seek medical attention whilst in police custody amounted to duress to get him to sell his house, and the sale is null and void.
Arguments of the First Defendant:
That the house was duly sold to her, and the plaintiff was not under any duress at the time of the sale and should therefore be ordered to perform his duties under the contract.
Duress is a common law concept that allows a person who has entered into a contract as a result of threats to treat the contract as voidable. In recent times, duress can be in the form of coercing a person to act in a particular way. To determine if there was coercion, it may be asked whether the person allegedly coerced protested, whether he had no reasonable alternative but to agree, and whether he took steps to avoid the contract after entering into it on the basis of the alleged threat. For duress to make a contract voidable, it must be present at the time of the contract's making, and duress after the contract is made cannot render the contract voidable. In cases of duress,
the court is concerned with the procedural impropriety rather than the issue of substantive fairness. Thus, a contract which results from duress does not have to be to the "manifest disadvantage" of the person who is persuaded to enter into it. Indeed, a contract which is substantively fair can be struck down simply because it was made under duress. It is rather in a plea of presumed undue influence that the unfairness of the transaction is a prerequisite for a successful action.
If, say, person A coerces person B to make a sale to person C, the duress will only work to make the contract voidable if it is shown that person C knew about the coercion at the time of making the contract with person A.
In light of the above rules, their Lordships found that the sale was under duress because there was evidence to support the plaintiff’s claim that the police were not willing to release him until he sold his house to pay off the creditors. This, in the opinion of the court, amounted to a threat or coercion against the plaintiff. The fact that the police also refused to release him to look for money supports the holding that the plaintiff had no reasonable alternative but to succumb to the threat or coercion of the police.
The first defendant was also said to know that the plaintiff was under duress because her agent (husband) visited the police station and saw the pathetic situation the plaintiff was in, yet proceeded to negotiate with him in the cells for the sale of the house.
In concluding on the first issue, the court stated:
It is therefore abundantly clear that the entire negotiation and subsequent sale of the plaintiff’s house was the handwork of the police, achieved through the unlawful arrest of the plaintiff and his son, coupled with the naked show of unlawful force and pressure exerted on the plaintiff at the time he was unlawfully incarcerated in their cells. A contract or transaction procured under such circumstances offends all civilised notions of justice and fair play, and cannot be enforced
Consequently, the sale was to be reversed but the plaintiff was to refund the purchase price to the first defendant.
On the second issue, the plaintiff only obtained goods on credit and failed to fulfil his obligation to pay for those goods. This amounted to a breach of contract and not a criminal offence. In the words of their lordships,
if one obtains goods on credit and defaults in paying, or receives money from people to do some work but fails to do the work, the default in each case amounts to a breach of the contract, the remedy of which lies in the civil courts and not the police station. Neither situation amounts to fraud.
Per section 131 and 132 of Act 29, a person would be guilty of defrauding by false pretence if he makes a false representation of an existing fact to obtain the consent of another to part with or transfer ownership of anything. However, a mere representation that something will happen or is likely to happen does not amount to fraud by false pretences. Accordingly, the complaint lodged against the plaintiff does not support a case of fraud since the plaintiff only made a representation that he will repay his debt in the future. In the absence of fraud, the police did not have the power to arrest and detain him.
The fact that the police also failed to prosecute him after he paid the debts gives credence to the holding that the plaintiff’s failure to pay his creditors did not amount to an offence of fraud because if it was, "then the police had no option but to prosecute him, since even the courts have no power to settle an offence amounting to felony." The fact that the plaintiff was arrested for an alleged felony deprived the police of any power to settle the issue in the manner in which they did.
Comments on the Conduct of the Police:
The court commented on what it thought to be unlawful conduct by the police in the present case:
We cannot conclude this case without commenting on the reprehensible conduct of the police in this matter. We do not know of any law which reduces the police to debt-collectors instead of protectors of the life and property of the citizenry. And we know of no law which permits the police to arrest a wife when they are looking for her husband, a son when looking for the father or vice-versa. Such practice constitutes negation of the fundamental rights of the individuals involved; and is unsupported by law and the Constitution, 1992. It must therefore be roundly condemned. This court will direct the attention of the Inspector-General of Police to the prevalence of such practice in the police stations.