Written Terms Under Contract Law in Ghana: Interpretation, Effect, and Legal Principles

1. INTRODUCTION

A written contract is an agreement whose terms are expressed in writing. Writing may be in physical or electronic form. Ghanaian law recognises modern electronic documentation as valid contractual writing under the Electronic Transactions Act, 2008 (Act 772).

The importance of written terms lies in certainty, proof, and enforceability. Courts prefer written evidence because it provides a permanent and objective record of the intentions of the parties.

2. MEANING OF “DOCUMENT” IN GHANAIAN LAW

Under Section 179(1) of the Evidence Act, 1975 (NRCD 323), the term “document” includes:

• Handwriting
• Typewriting
• Printing
• Photostat and photographs
• Mechanical or electronic recording
• Digital records
• Any tangible medium that records communication, symbols, pictures, sounds, or words

This definition ensures that emails, scanned contracts, WhatsApp attachments, PDFs, and electronic signatures can all constitute written contractual evidence.

3. OBJECTIVE INTERPRETATION OF WRITTEN CONTRACTS

The Objective Test

When courts interpret written contracts, they apply the objective test. This means the court does not focus on what a party privately intended but on what a reasonable person would understand from the written words used.

PY Atta & Sons Ltd v Kingsman Enterprises Ltd (2005)

Facts Explained

The dispute concerned the interpretation of contractual obligations contained in a written commercial agreement. One party argued that the written terms did not reflect their subjective intention.

Court’s Reasoning

The court held that contractual interpretation must be objective. What matters is not what a party secretly intended but what the written document conveys to a reasonable reader.

Principle Established

Written contracts are interpreted objectively, not subjectively.

NTHC v Antwi (2009)

Facts Explained

The National Trust Holding Company issued a written offer to sell staff housing. The offeree accepted in writing. The company later attempted to deny contractual obligation.

Court’s Reasoning

The court examined the written correspondence and held that objectively, a reasonable person would conclude that a binding agreement had been formed.

Principle Established

Where written correspondence objectively demonstrates agreement, courts will enforce the contract.

4. THE PAROL EVIDENCE RULE

Meaning

The parol evidence rule provides that where parties have reduced their agreement into writing, the written document is presumed to be the complete and final record of the contract. Courts generally will not allow oral or external evidence to vary, contradict, add to, or subtract from the written terms.

Purpose

1. To ensure certainty
2. To reduce disputes
3. To preserve reliability of written agreements
4. To prevent fabricated oral claims

Frederick E Rose v William Pim

Facts Explained

The parties negotiated orally and later put the agreement into writing. The plaintiff claimed that the written contract did not reflect what he intended and sought rectification.

Court’s Reasoning

The court held that once the agreement was reduced into writing, the writing became the authoritative expression of the parties’ intentions.

Principle Established

Written contracts supersede earlier oral negotiations.

5. APPLICATION OF PAROL EVIDENCE RULE IN GHANA

Motor Parts Trading Ltd v Nunoo

Facts Explained

The plaintiff relied on a written hire-purchase agreement signed by the defendant and sued for unpaid instalments and damages. The defendant argued that there was an additional oral agreement not included in the written contract and that the plaintiff breached that oral agreement.

Court’s Reasoning

The court held that the transaction had been deliberately reduced into writing by the parties. Therefore, external oral evidence could not be admitted to alter the written terms.

Decision

The defendant’s reliance on alleged oral terms failed.

Principle Established

Where parties reduce their agreement into writing, extrinsic evidence is inadmissible to contradict or vary the contract.

Wilson v Brobbey (1974)

Facts Explained

The plaintiff sued to recover payment for goods supplied. The defendant had signed an invoice. He later claimed that he signed only as a guarantor and not as a purchaser and that he did not read the document.

Court’s Reasoning

The court held that the written invoice represented the contractual relationship. By signing, the defendant accepted the obligations contained in the document.

Decision

The defendant was bound by the written contract.

Principle Established

A party is bound by written contractual terms once he signs, regardless of whether he read them.

Eric Ansong v Albert Gorman

Facts Explained

The appellants argued that the admission of parole evidence was wrongful. The appellants jointly owned the property in dispute but only the first appellant signed the contract for the sale of the property to the respondent. 

Court Reasoning

The court held that parole evidence is admissible where there are contradictory terms in the contract and where it is necessary to give effect to the intention of the parties. It is inadmissible where it contradicts the terms already written. 

Decision

Parole evidence was admissible to prove that the second appellant was aware of and consented to the sale of the property. 

6. SIGNED WRITTEN CONTRACTS

Legal Effect of Signature

A signature is strong evidence of consent. Once a person of full age and understanding signs a contract, the law presumes that:

1. The person intended to be bound
2. The person understood the contract
3. The person accepted the obligations

Inusah v DHL Worldwide Express (1991)

Facts Explained

The plaintiff sent a package containing 22 signed cheques to London through DHL. He signed a standard DHL consignment form that limited liability to USD 100 in case of loss. Only three cheques arrived. The plaintiff sued for USD 4,500.

Court’s Reasoning

The court held that:

• The plaintiff read and signed the form
• There was no fraud or misrepresentation
• A person of full capacity is bound by what he signs

Decision

The liability limitation clause was enforceable. The plaintiff could not recover beyond USD 100.

Principle Established

A signed contract binds the signatory even if he later regrets the terms.

Kwabena Boateng v Marjorie Quist

Facts Explained

The plaintiff alleged that the signature giving by his father for an assignment to the second defendant was a forgery and therefore not binding on the plaintiff’s father’s estate. 

Court Reasoning

An expert witness was called upon to examine the documents. He found that the signatures were indeed different. However, there was a twenty-year gap between the document tendered in for examination and the assignment in question. The expert therefore noted that it was possible that the deceased’s signature could have changed over the years. The difference was therefore not sufficient evidence of a forgery. It behooved on the part of the plaintiff alleging to prove beyond reasonable doubt that the signature was indeed a forgery. He could have done so by tendering in more documents to facilitate a comparison but he failed to do so. Further evidence also lent itself to the fact that the document was indeed executed by the deceased. 

Holding

There was no forgery and the assignment was binding on the estate of the deceased and thus the plaintiff as customary successor. 

Principle Established

A signature is binding on a person and where forgery is alleged, it must be proved beyond reasonable doubt. 

7. DOCTRINE OF NON EST FACTUM

Meaning

Non est factum means “this is not my deed”. It is a special defence that allows a person to escape liability under a signed document where the document signed is fundamentally different from what the person intended.

It applies only in exceptional circumstances.

Difference Between Non Est Factum and Ordinary Vitiating Factors

1. Non est factum attacks the validity of the signature itself
2. Misrepresentation attacks the validity of consent
3. Non est factum makes the contract void
4. Misrepresentation usually makes the contract voidable
5. Non est factum applies only to signed documents

Requirements for Non Est Factum

The defendant must prove:

1. That he intended to sign a document but this was not the document he intended
2. That the mistake was not due to his own negligence
3. That the document signed was fundamentally different in character

Saunders v Anglia Building Society (Gallie v Lee)

Facts Explained

Mrs Gallie, a 78-year-old widow, intended to transfer her house to her nephew. Parkin and Lee deceived her into signing a document which was actually a sale of the property to Lee. She claimed she did not read the document because her glasses were broken.

Lee used the property as collateral to obtain a loan and defaulted. The building society sought to enforce the mortgage.

Court’s Reasoning

The court held that:

• Mrs Gallie signed the document voluntarily
• She failed to take reasonable care
• She relied on strangers without verification

Decision

Non est factum failed. The document was binding.

Principle Established

Non est factum is only available where the signer is not negligent.

Ebenezer Antwi Bawua v Kyeremeh

Facts Explained

The plaintiff purchased certain plots of land from the defendant who later alleged that the contract was a contract of guarantee for securing a debt owed by his son to the plaintiff. The issue for determination was whether the plea of non est factum was available to the first defendant who alleged misrepresentation and illiteracy. 

Court Reasoning

The court held that for the defendant to claim non est factum, the following conditions must be satisfied:

(i)                 There must have been a mistake

(ii)               The one who made the mistake was led into making it

(iii)             The mistake relates to a document radically different from what one thought he was signing

(iv)             The party seeking to avoid liability must prove that he acted with reasonable care or he was not guilty of carelessness or negligence.

If the opportunity exists for an illiterate or an uneducated party to know or learn the contents of a document which relate to a transaction between them but the illiterate/uneducated party failed to take advantage of the opportunity and went on to sign the document because of the trust the reposed in the other party and the assumption that the contents relate to the transaction between them, he cannot be permitted to deny the document as his act because the contents of the document turned out to be different from what he thought he signed.  He will be deemed to have acted negligently if not carelessly just as an educated party who signed a document without reading it.

Holding

The defendant acted negligently and thus cannot hide behind his illiteracy to deny the document. 

8. CONTRACTS WITH ILLITERATES IN GHANA

General Common Law Position

Under English law, illiteracy is not a defence. A person is presumed to be able to read.

Ghanaian Position

Ghana recognises high illiteracy levels. The law protects illiterate persons through the Illiterates Protection Ordinance (CAP 262).

Section 3 Requirements

A person who writes a document for an illiterate must:

1. Read and explain the document
2. Ensure the illiterate signs or makes a mark
3. Write his full name and address
4. State any reward charged
5. Issue a receipt

Failure to comply makes the document unenforceable against the illiterate.

Atta Kwamin v Kuffour

Facts Explained

An English gold prospector drafted a lease agreement with native chiefs. The chiefs believed it was a temporary lease. The document in fact transferred permanent rights for £300. The chiefs were illiterate.

Court’s Reasoning

The court held that it was not enough that the document was read aloud. It had to be proven that the chiefs understood the legal consequences.

Decision

The agreement was invalid.

Principle Established

Documents involving illiterates must be accompanied by proof of explanation and understanding.

Duodu v Adomako & Adomako 

The court held as follows:

The presence or otherwise of a jurat should not be conclusive of whether or not an illiterate person should be bound by the document complained of.  The courts must not make fetish out of the presence or otherwise of a jurat on executed documents.  To hold otherwise without a simple exception was to open the floodgate to stark injustice.  Admittedly, the presence of a jurat might be presumptive of the facts alleged in the documents including the jurat.  But that presumption was rebuttable and not conclusive

Principle Established

The presence of a jurat raises a rebuttable presumption that the document signed was explained and understood by the illiterate signatory. However, its absence did not presuppose that the illiterate was not to be bound by the document. 

9. COLLATERAL CONTRACTS AS EXCEPTION TO PAROL EVIDENCE RULE

Meaning of Collateral Contract

A collateral contract is a separate agreement that exists alongside the main written contract. It is usually oral and acts as an inducement for entering the main contract.

Characteristics

1. There are two contracts
2. The collateral contract induces the main contract
3. The consideration is entry into the main contract
4. Courts may admit oral evidence

De Lassalle v Guildford (1901)

Facts Explained

A tenant refused to sign a lease until the landlord assured him orally that the drains were in good condition. The lease did not contain this term. The drains later caused serious inconvenience.

Court’s Reasoning

The court held that the oral assurance induced the tenant to sign the lease.

Decision

The landlord was liable under the collateral contract.

City and Westminster Properties Ltd v Mudd

Facts Explained

A lease prohibited residential use. Before signing, the tenant told the landlord he needed to occasionally sleep on the premises. The landlord agreed orally. Later the landlord sued for breach.

Court’s Reasoning

The oral promise induced the tenant to sign the lease.

Decision

The collateral contract prevailed over the written term.

Sowah v Bank for Housing and Construction and Another

Facts Explained

The appellant, a building contractor entered into the contract in 1974 with the second respondent to construct a building for a stated sum. The first respondent financed the project and a tripartite agreement was entered into between all three parties. The contractor subsequently claimed compensation for certain unpaid sums for completed work ordered by the owner, price fluctuations due to inflation and wages of watchmen for protecting the property after completion. The respondents disputed these claims. 

Court Reasoning

The court held that where two contracts coexist, both bind the parties unless expressly superseded. There was evidence to suggest a collateral contract between the parties. Collateral parole agreements supplement contracts under seal and bind the parties.

Holding

The contractor was entitled to payment for extra work ordered by the owner under the parole agreement. 

10. SUMMARY OF LEGAL POSITION ON WRITTEN TERMS IN GHANA

1. Written contracts are interpreted objectively
2. Written documents are presumed complete
3. Signatures bind parties
4. Non est factum applies only in exceptional cases
5. Illiterates receive statutory protection
6. Collateral contracts can override the parol evidence rule

SUMMARY TABLE

Topic	Legal Rule	Authority
Objective interpretation	Reasonable person test	PY Atta v Kingsman; NTHC v Antwi
Parol evidence rule	Written terms prevail	Frederick Rose v Pim
Extrinsic evidence barred	Oral terms excluded	Motor Parts v Nunoo
Signed contracts	Signature binds	Inusah v DHL
Non est factum	Limited exception	Saunders v Anglia
Illiterate contracts	Must be explained	CAP 262
Illiterate protection	Jurat required	Atta Kwamin v Kuffour
Collateral contract	Oral inducement enforceable	De Lassalle v Guildford
Oral assurance overrides writing	Inducement principle	City & Westminster v Mudd