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Schandorf v. Zeini
[1976] 2 GLR 418.
Court of Appeal, Accra
17 May 1976

APPEAL from a decision of Koranteng-Addow J. wherein he granted a claim for specific performance of an oral agreement for the sale of leasehold property. The facts are fully set out in the judgment of Amissah J.A.

C. Hayford-Benjamin (with him Boakye) for the appellants.
JoeReindorf (with him Sotorme) for the respondent.

The appellants are rogues. They were found by the learned trial judge, Koranteng-Addow J., to have fabricated a case and to have suborned witnesses to put that case to the court. They do not complain about that. Their grievance, in the main, is that the judge failed to apply a rule founded on morality to protect them from their case, arises out of the sheer candour of the respondent. Nothing could be more injurious to the administration of justice than that a person should come before a court to bear false witness deliberately. Our criminal laws through the offences of perjury and deceit of public officer visit such behaviour with severe penalties.

The appellants do not ask us to do anything about their offence, though it be serious and was committed in the face of the court in this very case. What the do ask us to do is to interfere with the decision of the trial court, not on the merits, but on the ground that the demands of public policy require that whatever the merits, the respondent, who was plaintiff in the case, should not be helped by the courts.

The point they raise in this respect on this appeal is new, not having been canvassed before the trial judge. They say that the evidence discloses that the respondent has been guilty of an illegality in the performance of that agreement which gave rise to his action. They say that the learned trial judge should have considered this and have applied the ancient maxims of the law, wx turpi causa non oritur action and in pari delicto potior est conditio defenentis. The delict they would wish this court to take notice of, they say, is anterior to their own default of which they say nothing. The delict they complain about actually stems, according to them, from the agreement which brought them before the courts. I think it is a matter for consideration whether there is no higher public policy that people who attempt to foist a gross deception on the courts, should, when found out, be stopped from subsequently taking advantage of principles based on moral grounds before those same courts. I will, however, not stop now to answer that question. I go straight to the facts which gave rise to the appeal.

By his writ, the respondent asked for specific performance of an agreement for the sale of property. He also asked for the recovery of the sum 661.00 being payment in excess of the agreed purchase price for the property. The property in question is a house - No. 6 Block P, West Nhiaso-situated in Kumasi. According to the respondent's statement of claim, he and the appellants orally agreed in 1969 that he purchase the unexpired term of the lease of the property on which the house is situated for 18,000.00. The lease is held from the Saamanhene and the Asantehene and was originally granted in 1966 for 50 years. The respondent had in January 1970. on that date the respondent agreed with the appellants to buy the appellants' furniture in the house for 1,000.00 and a cooker for 290.00. By the end of that transaction the respondent owed the appellants 8,290.00, of which 7,000.00 was the amount outstanding on the house, and the residue, the purchase price of the furniture and the cooker. Before the respondent had finished paying this outstanding amount, the second appellant, Akram Zeini, left Ghana never to return again. The time given for his departure was the first week of February 1970. Akram Zeini appointed the first appellant, Izzat Zeini, his agent to take all legal steps to assign the house to the respondent. The keys to the house were handed over to the respondent at the time of the second appellant's departure. The respondent moved into the house on or about 11 February 1970, where he has remained ever since. By 7 March 1972, the respondent, according to his claim, had not only finished paying the outstanding debt of 8,290.00 but had overpaid the appellants by 661.00. The action was brought because, apparently, the first appellant some time later expressed an intention no longer to convey the house, thus refusing to take the necessary steps to that end.

In their defence the appellants vehemently denied that there was ever an oral agreement for the purchase of the house. Their story was that there was an agreement for a tenancy of the house completely furnished for six years at an annual rental of 2,500.00. The total rent for the six years, according to this case, was to be paid in advance.. they appellants admitted the payment of 11,000.00. They said this payment was in furtherance of the agreement as to rent for the six year term. By 22 January 1970 the respondent, according to the appellants, owed them 4,000.00 being the balance of rent on the tenancy agreement. Various sums must have been received because by February 1972, after the payment of a sum of 500.00, the sum of 791.00 was outstanding. The defence did not state whether this was paid or not. It was conceded that the second appellant left Ghana around the time alleged by the respondent but practically everything else was denied. The defence explanation of the respondent's presence in the house was that when the first appellant was leaving Kumasi to see his brother off, he gave the keys to the respondent so that the respondent could get somebody to sleep in the hose until the first appellant returned from Accra. Before the first appellant's return, the respondent had moved into the house. Whereupon the first appellant strongly protested against the conduct of the respondent, resulting in the respondent apologizing to him in the presence of a friend. The respondent while occupying the house had protested at the high level of rent. But the first appellant had pointed out to him that the house was built at a cost of over 40,000.00, and with all the available amenities, the respondent could quit if he thought the rent too high.

Issues were settled on the basis of these rival stories. Afterwards the appellants applied to amend their defence by adding further paragraphs. In these the appellants raised the issue of non-compliance with section 40 of the English Law of Property Act, 1925 (15 & 16 Geo. 5, c. 20), which replaced section 4 of the Statute of Frauds, 1677 (29 Cha. 2, c.3). They also alleged fundamental mistake in the formation of the contract in that while the respondent's mind was directed to a sale of the appellants' leasehold house, the appellants were thinking of a tenancy for six years certain. There was therefore no consensus ad idem and no certainty, of contract. In view of the cost of the house, the appellants claimed that unjust. Further, they alleged that the respondent's ``trickiness'' in taking possession of the house was equivocal and could not be construed to be a sufficient part-performance wholly referable to an alleged contract of sale. The appellants concluded their amendment of the defence by making a counterclaim for a declaration that the transaction entered into with the respondent was a sub-lease or a tenancy for six years certain and not a sale or an assignment of the appellants' unexpired term of years.

The respondent's reply to the amended defence and counterclaim, dealt with the manner of his entry into the premises showing that there was nothing incorrect or improper about it. Section 40 of the Law of Property Act, 1925 (15 & 16 Geo. 5, c. 20), he said, had been complied with. Since he entered the house he and not the appellants had been responsible for the payment of the ground rent and water rates in respect of the house; and he had effected major structural repairs which, presumably, he would not have done if he had been merely a tenant for six years. He stated that until he moved into the house, the subject-matter of this dispute, he lived in his own house and it was at the suggestion of the appellants that he sold it in order to raise some of the money needed for buying the appellants' house.

The case was fought on the lines drawn by the parities, namely, that the court should determine whether the transaction was a sale of the unexpired term of the leasehold property together with the sale of the furniture in it as claimed by the appellants. From now on I shall for convenience refer to the rival claims as the sale of the house and the sub-lease of the house. Koranteng-Addow J. found for the respondent. There cannot be any dispute about this finding. Ample justification for it was available. Besides, as the learned judge succinctly put it, he did not believe ``that for the purpose of taking a lease of six years a man living in his own house, be it a hovel, will sell it and take a lease of a palace for the period of six years and also pay down the whole of the exorbitant rent of 15,000.00'' The story sounded to him, as it does to us, ``most improbable.''

On the appeal before us, the appellants have abandoned the fight over the issue of sale or lease and have rested their argument completely on two legal points. One of them, and by far the more important and difficult one, is the point on public policy which I referred to earlier. But I shall state both of them as they were put by the appellants themselves. These points came by way of additional grounds of appeal for which we gave leave for argument. They are as follows:

`` The learned trial judge misdirect himself when he held that he could decree specific performance of the alleged contract between the parties to sell the property when the appellants could not make title by reason of the absence of the prior consent of the lessor to the proposed sale.
The learned trial judge misdirected himself in law when on the evidence relating to the alleged sale of property, which the learned judge accepted, he failed to direct himself as to whether the transaction was illegal in that it offended the Exchange control Act, 1961 (Act 71) and regulations made there under and was otherwise contrary to public policy and therefore void and unenforceable.'' I shall take this second ground first. As I said, it presented the more difficult problem. So much was this the case that after the hearing of the appeal in Kumasi, we received further representations on the matter and thought it necessary to hear further argument from both sides on it in Accra. I must state from the outset my indebtedness and thanks to counsel on both sides for the authorities they drew out attention to.

This is the area of the law governed by the two Latin maxims of ancient lineage I have already mentioned. Ex turpi causa non oritur action is the maxim which proscribes an action in court based on an illegal or immoral cause. The other maxim, in pari delicto potior est conditio defendentis or possidentis, though it speaks of equality or mutuality of fault in both parties yet shows a distinction between them when they are before the court. For in that situation the maxim says that the courts will prefer to protect the position of the defendant or the person out of possession. A fortiori, if the plaintiff's guilt is greater, there would be greater cause to protect the defendant's position. But presumably if the plaintiff's guilt is substantially less, the law may in circumstances see its way clear to upholding his claim as against the defendant's.

What is the nature of the illegality complained of in this case? It will be recalled that the agreed sale price of the leasehold property was 8,000.00. There was a further agreement to sell the furniture and a cooker for 1,290.00, thus making a total of 19,290.00. The agreement over the leasehold property was in about August 1969, and the respondent started paying for it under the agreement by installments. By January 1970, the respondent had paid 11,000.00, 3,000.00 of which was by two cheques drawn by the respondent in sterling on a London bank account. The rest of the money. On the agreements, he said he paid by further instalments, completing payment by March 1972. according to the respondent, by then he had paid a total amount of 19,951. 50 which was661. 50. over and above what was agreed upon. Hence his claim for a refund of 661.50. But out of the additional sum of 8,951.50 paid since January 1970, 2,500.00 had been paid in foreign exchange. A total of 5,500 of the amount paid by the respondent towards the purchase price of 19,250.00 for the leasehold property, the furniture and cooker in it was, therefore, made in foreign exchange. It is this payment in foreign exchange which the appellants now contend taints the contract with illegality. They therefore ask the court on that account to set aside the other for specific performance granted by the trial judge. The payment in foreign exchange is illegal the appellants maintain, because it offends against the Exchange Control Act, 1961 (Act 71), and regulations made under it.

Now, the Exchange Control Act, 1961 (Act 71), is not normally an easy statue to understand. That does not, however, detract a whit from its legality or its binding effect on the people of Ghana. It merely makes is difficult for those concerned sometimes to identify with precision which of its omnifarious proscriptions in the field of foreign exchange dealings has been infringed in a particular transaction. In this case, however, both parties agree that some of the payment in foreign currency, at least, infringed section 1 (2) of the Act. That provision reads as follows:

``1. (2) Except in such circumstance as may by prescribed, no Ghana resident other than an authorized dealer shall buy or borrow any gold or external currency from, or sell or lend any gold or external currency to, any person other than an authorized dealer.''

Selling and buying external currency are defined in section 1 (4) in this manner:

``For the purpose of this section a person issuing an external currency draft, and the person to whom it is issued, shall be deemed respectively to sell and buy external currency, and , where external currency is obtained by means of the draft, respectively to sell and buy that external currency.

In this Act 'external currency draft' mean any document (whether expressed in terms of external currency or Ghana currency) of a kind intended to enable the person to whom the document is issued to obtain external currency from some other person on the credit of the person issuing it, and I particular means a traveller's cheque or other draft or letter of credit so intended.''

Clearly from these provisions, when the respondent, a Ghana resident who is not an authorized dealer issued cheques in sterling on a London bank in favour of the appellants, who are not authorized dealers, he was, unless the issues fell within any of the circumstances prescribed, under the terms of section 1 (2) of the Act selling foreign currency contrary to the law.

I said that both parties agree that some of the payments in foreign exchange infringed the law because the agreement did not extend to all such payments. Two of these payments were by a Dr. Boampong in Deutsche marks. The first was by a cheque dated 12 March 1970 and was for 1,000 Deutsche marks or 280,00 and the second was by cheque dated 1 July 1970 for 1, 758 Deutsche marks or 500,00. There was one other cheque paid by a Mr. Philip Mensah on 14 October 1970, it was drawn in dollars for the equivalent of 1,250. unlike Dr. Boampong's this cheque was dishonoured and the amount covered had to be made up in cedis. The submission of Mr. Joe Reindorf, counsel for the respondent, in respect of these cheques was that at the material time the signatories were not resident in Ghana and therefore were not then covered by section 1 (2) of Act 71 which stopped Ghana residents from buying or selling external currency. Indeed, the evidence is clear that Dr. Boampong, though a Ghanaian citizen, was a doctor in Germany. The evidence is not so clear as regards Mr. Mensah, but both sides accept that at the material time he was also resident abroad. Learned counsel for the appellants, Mr. Hayfron-Benjamin, has conceded that Mr. Mensah was temporarily resident abroad at the time but he has submitted that for a Ghanaian citizen to be classified as an external resident some evidence of permanent residence abroad or an intention so to reside must be forthcoming from the person alleging such residence. He has suggested that there is none in this case. If Mr. Hayfron-Benjamin is right then both Dr. Boampong and Mr. Mensah were Ghana residents at the time they made the payment by cheque. In that case Mr. Hayfron-Benjamin argued, section 6 of Act 71 was infringed by the issue of these cheques, because the cheques were paid into the account of the second appellant who had then left Ghana. That section provides that:

``Except in such circumstances as may be prescribed, no Ghana resident shall make any payment outside Ghana to or for the credit of an external resident.'' I am prepared to accept that the second appellant became an external resident after leaving Ghana in February 1970. But that does not mean that I accept that counsel for the appellants is right. Residence is not the same as domicile and his argument on this point would appear more apposite to a question as to change of domicile.''

I am not aware that citizenship by itself creates the presumption that the person is resident in the country of which he is a citizen until the contrary is proved. In ordinary language, a person resides in the place where he is currently living. Very short absences from the place will of course be ignored in determining whether he has changed it or not but any alteration requiring the person to live for a continuous period of some months in one new place would be taken into consideration in determining whether the person has got a new residence. Countries like Great Britain which levy taxation on residents take six months' residence within their jurisdiction as sufficient to justify the imposition of tax. It matters not that the residence is characterized as temporary or permanent in this Connection. And the Exchange Control Act, 1961 (Act 71), does not speak, in the sections referred to, of a permanent or temporary Ghana resident. Section 34 (1) of the Act gives power to the Bank of Ghana to ``give directions declaring that for all or any of the purposes of this Act a person is to be treated as resident or not resident in such territories as may be specified in the directions.''

Our attention has not been drawn to any such directions. Nor am I aware of any made. In the absence of these directions, the section itself disposes of the residence of certain entities but they are business entities not ordinary persons. In the circumstances I am not prepared to hold that though Dr. Boampong and Mr. Mensah were resident abroad at the material times yet they were Ghana residents within the meaning of the Act. In this connection, Mr. Hayfron-Benjamin also submitted that the moneys involved in these payments made by the others was borrowed by the respondent and, therefore, the respondent in any case contravened section 1 (2) of Act 71 by that act. Unlike ``buying'' and ``selling'' foreign currency which are defined, the ``borrowing'' of foreign currency is not defined.

The word ``borrow,'' therefore, cannot in my view have any meaning other than its ordinary meaning. I think of ways than borrowing in which money may be given by one person another. It could be by way of gift. It could be by way of payment of a debt owed. It could be some other transaction not amounting to a borrowing. It cannot be assumed from the fact that one person pays a certain sum on behalf of another that the person on whose behalf the money is paid borrows it.

As it does not appear clearly from the record that the respondent borrowed the money, his action cannot be described as coming within the section and therefore, illegal on that account.

From the total of 5,500.00 paid in foreign currency, I have already excluded the payment by the dollar cheque of the equivalent of 1,250.00 made Mr. Mensah because the cheque was dishonoured and the amount had in any case to be paid in cedis. From the figure of 5,500.00, I now exclude the sum of 780.00 paid by Dr. Boampong for out of a total of 19,250.00 which appears to have been illegally paid by the respondent to the appellants as the purchase price of the leasehold property, the furniture and the gas cooker. It represents less than a quarter of the amount. It is on account of this that the appellants now abandon their claims that the transaction they entered into with the respondent was a sub-lease for six years and say that, if it was a sale then it is unenforceable by the courts.

How does the law look on such a plea? There is not much authority in our courts on the question of illegality in contracts. Whether this necessarily argues a higher degree of moral responsibility in contractual relations here than in other jurisdictions where authorities on the question are more pletiful I do not know. I can merely speculate and pass on. What local authority there is, the appellants pressed upon us. In conditions of relative poverty in authority on a common law question, decisions in other common law countries on the point are of considerable value in the determination of the question here. And I must say that I have derived great assistance from a consideration of the English cases on this point.

The recapitulate learned counsel's sumission on the point, as the evidence shows quite clearly that part of the purchase money paid by the respondent was in foreign currency, which was an infringement of the Exchange Control Act, 1961 (Act 71), the contract was therefore illegal, and the courts cannot enforce it by granting specific performance. He cites two local cases in support of this proposition which should be dealt with at once. The first is Francisco Canfailla v. Najib Joseph Cahhin (1939) 5 W. A. C. A. 104. In that case, a contract between the plaintiff and the defendant to construct a building with specifications which were different from the specifications in the building permit granted was held by the West African Court of Appeal to be illegal and unenforceable because the contract contravened the provisions of an enactment requiring that buildings must be contructed in accordance with the terms of a permit. The other is Kessie v. Charmant (1973) 2 G. L. R. 194 in which Annan J. A., sitting as an additional judge of the High Court, held that a contract by a person holding the office Ambassador of Ghana to a foreign country to use his position and influence to procure a benefit from the government to which he was accredited for a private citizen for reward was contrary to public policy and therefore illegal and void. Both cases deal with the simplest situations in which a court would refuse aid to a plaintiff, namely, where the parties agree to do a thing prohibited by statute or a thing which is otherwise illegal or immoral. That is not the case before us. It is not claimed that the contract which the appellants and respondent entered into was one prohibited by any statute or was in any way otherwise illegal or immoral in itself. It was, if we agree with the learned judge's finding, a contract the sale of the unexpired term of a lease and as such without taint of turpitude. That, however, does not dispose of the appellant's argument. Because the case show that apart from the nature and objects of the contract at the time of its formation, other circumstances may affect it with illegality or immorality and thus put the contract beyond the power of the courts to enforce. Various statements on this have been made at various times, the scope and directions of each depending on the nature of the case in which the pronouncement was made. I shall now draw attention to some of those I consider relevant to this decision.

A reading of the cases shows that there has been considerable movement away from the thinking that public policy necessarily demands that the courts should drive away from their gates everybody who has been involved in a contract which is in any way tainted by illegality or immorality. Nevertheless, certain basic rules fashion long ago must without question remain if the courts are to continue to justify their claim to be the upholders of law and order in the society. One such rule is that which calls upon the courts to deny aid to the plaintiff who claims on a contract entered into with an illegal or immoral object. A nineteenth century formulation of the rule can be found in the words of Tenterden C. J. in Wetherel v. Jones (1832) 3 B. & Ad. 221 at p. 225 where he said that:

``Where a contract which a plaintiff seeks to enforce is expressly, or by implication, forbidden by the statute or common law, no court will lend its assistance to give it effect: and there are numerous cases in the books where an action on the contract has failed, because either the consideration for the promise or the act to be done was illegal, as being against the express provisions of the law, or contrary to justice, morality, and sound policy. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract, in the performance of something to be done on his part''.

A contract, therefore, to do an act expressly forbidden by statute or any other law is illegal and will not be enforced by the courts. Where the thing agreed to be done or the consideration agreed upon is contrary to justice or morality, again the courts will refuse to lend their aid to the enforcement of the contract on the ground that doing so would be contrary to public policy.

Lord Tenterden's statement deals with the contract itself and could give the impression that the rule is limited to cases where the content of the agreement, the act to be done or the consideration for it, is illegal, immoral or contrary to policy. But the rule goes beyond that. And one of the clearest and characteristically most vivid Ltd. V. Daniel (1924) 1 K.B. 138 at p. 149, c. A. where he said:

``The question of illegality in a contract generally arises in connection with its formation, but it may also arise, as it does here, in connection with its performance. In the former case, where the parties have agreed to something which is prohibited by Act of Parliament, it is indisputable that the contract is unenforceable by either party. And I think that it is equally unenforceable by the offending party where the illegality arises form the fact that the mode of performance adopted by the party performing it is in violation of some statute, even though the contract as agreed upon between the parties was capable of being performed in a perfectly legal manner''.

The courts, therefore, will not only refuse to aid the plaintiff when the contract he and the defendant entered into is illegal, they will also refuse to aid him if he performs an otherwise legal contract in and illegal manner. And the appellants before us argue that this aspect is what covers the present case. But though clear and graphic as usual, the statement of Atkin L. J. If taken literally may deny the assistance of the courts to persons who public policy makes no demand that they should turn away and whom the courts have been known to aid. Thus Devlin J. (as he then wasy) in St. John Shipping Corporation v. Joseph Rank Ltd. (1957) 1 Q. B. 267 at p. 284 said of the pronouncement by Atkin L. J.:

``On a superficial reading Anderson Ltd. v. Daniel ( 1924 1 K. B.138) and the cases that followed and preceded it, judges may appear to be saying that it does not matter that the contract is itself legal, if something illegal is done under it. But that is an unconsidered interpretation of the cases. When fully considered, it is plain that they do not proceed upon the basis that in the course of perfoming a legal contract an illegality was committed; but on the narrower basis that the way in which the contract was performed turned it into the sort of contract that was prohibited by the statute.''

And to demonstrate the point that the superficial approach would lead to consequences contrary to the public interest, Devlin J. gave the following example at p. 288:

``Persons who deliberately set out to break the law cannot expect to be aided in a court of justice, but it is a different matter when the law is unwittingly broken. To nullify a bargain in such circumstances frequently means that in a case - perhaps of such triviality that no authority would have felt it worth while to prosecute - a seller, because he cannot enforce his civil rights, may forfeit a sum vastly in excess of any penalty that a criminal court would impose; and the sum forfeited will not go into the public purse but into the pockets of someone who is lucky enough to pick up the windfall or astute enough to have contrived to get it. It is questionable how far this contributes to public morality.''

And he poses the pertinent question at pp. 288-289 ``whether public policy is well served by driving from the seat of judgment everyone who has been guilt of a monor trasgression''? in that case the plaintiffs, the shipowners were allowed to recover the balance withheld from consignees of cargo on a shipping (Safety and Load Line Convention) Act, 1932 (22 & 23 Geo. 5, c. 9), by overloading the ship, thereby causing its load line to be submerged.

That the modern practice is not to drive away from fount of justice all those who had been involved in a contract in some way tainted, however slightly, by illegality or immorality was foreshadowed by some earlier cases. Parke B. in Scarfe v. Morgan (1838) 4 M. & W 207 at p. 281 had said that ``if the (illegal) contract is executed, and a property either special or general has passed thereby, the property must remain.'' And as was pointed out by the English Court A Appeal in Alexander v. Rayson (1936) 1 K. B. 169 at p. 184, C. A.:

``the maxim (ex turpi causa non oritur action) does not require not does the language of it suggest, that a completely executed transfer of property, or of an interest in property, made in pursuance of such an agreement must be regarded as being invalid. This is laid down in clear terms in the well-known case of Feret v. Hill (15 C. B. 207).''

Thus it would appear that even in the nineteenth century, some exceptions to the general rule had been recognized. As indicated by pronouncements referred to, property rights acquired under the contract will be recognized and enforced; an exception which was once again made in a short but strong judgment upholding the rule ex turpi causa non oritur action by Lindley L.J. in Scott v. Brown. Doering, Mcnab & Co. (1892) 2 Q. B. 724 at p. 729, C.A., when he added that, ``Any rights which he (the plaintiff) may have irrespective of his illegal contract will, of course, be recognized and enforced.''

The modern caution that the maxim must be set in its proper perspective was sounded by Lord Wright in Vita Food Products, Inc. v. Unus Shipping Co., Ltd. (1939) A. C. 277 at p. 293, P. C. when he said:

``Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.''

What then are the proper limits of the rule? The authorities are overwhelming that a contrary to public policy. But there is this to remember that what is public policy changes with the changing times. And the contract is so prohibited if the act done or promised by one party or the consideration given policy. The contract itself in that cause is illegal and it is the simplest form o illegality dealty with by the books. It is also the cause of the generalized statement made by some text writers about the courts not enforcing illegal contracts. Under this head, as pointed out, the cases of Canfailla v. Chahin (supra) and Kessie v. Charmant (supra) were decided. They were rightly decided and the principle they establish must be jealously guarded by the courts. Beyond that, it seems that the courts on the ground of public policy will decline to enforce a contract which on the face of it is perfectly legal but which the plaintiff at the time of making it intended to perform in an unlawful way. It does not matter that the defendant had the same or similar intent. For in that case, potior est conditio defendentis. Finally, if the plaintiff in order to recover under the contract must rely upon his own illegal act, even though at the time of making the contract he had no intent to break the law and at the time of performance he did not know that he was doing was illegal, the court will not assist him: see per Devlin L. J. in Archbold's (Freifhgtage) Ltd. v. Spranglett Ltd. (1961) Q. B. 374 at p. 388, C.A.

The case before us does not seem to fall under either of the first two categories stated. If anything, it must fall to be considered under the last. It will be noted in this connection that I say that the courts will refuse assistance to the plaintiff if he must rely on his illegal act to obtain his relief. It seems to me quite clear from a reading of the cases that the court do not wash their hands off a case and refuse to assist a plaintiff merely because an illegality has been brought to their notice during the hearing. If that were so, the law reports will not show any case where the court has helped a plaintiff in spite of knowledge of some illegality. But they do. To be mateial and to deprive the plaintiff of the court's assistance, the illegality must form the basis of the plaintiff's claim for relief. That must be what Lord Mansfield meant when he made his famous pronouncement in Holman v. Johnson (1775) 1 Cowp. 341 at p. 343, over two hundred years ago, that ``No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.'' The plaintiff's cause must be founded upon the illegal or immoral act if the courts are to find him unworthy of aid. And founding a case on illegality or immorality must mean that without reliance on that illegality or immorality the plaintiff cannot succeed in his action. The plaintiff must plead or give evidence of the act or transaction described as illegal or immoral or fail in his action. This is the only view consistent with the decisions of the English and Commonwealth courts, some of which I have already mentioned, others to be presently mentioned, where the plaintiff has been granted his relief in spite of the awareness of the courts of some illegality committed by him. Such would be the case, as Devlin J. (as he then was) says in St. John Shipping Corporation v. Joseph Rank Ltd. (supra), of a trivial transgression of the law incidental to the performance of the contract, where the courts would be aid the plaintiff. Above all, it is the view which much explain the exception long ago recognized that where the contract is executed or where property rights whether general or special have been acquired under it. These rights are protected by the courts. If the plaintiff can succeed without disclosure of or reliance upon the illegality or immorality it does not matter that at the trial an illegality or immorality in the course of the performance of a contract becomes known to the court. Thus in Taylor v. Chester (1869) L. R. 4 Q. B. 309 at p. 314 the court said that:

``The true test for determining whether or not the plaintiff and the defendant were in pari delicto, is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party.''

In St. John Shipping corporation v. Joseph Rank Ltd. (supra), Devlin J. in dismissing the submission of counsel that the plaintiffs could not succeed in their claim for freight without disclosing that they had committed an illegality in the course of the voyage, said at p. 291: ``there is no doubt that if the plaintiffs cannot succeed in their claim for freight without showing that they carried the goods in an overloaded ship, they must fail.

But, in my judgment, the plaintiffs need show no more in order to recover their freight than that they delivered to the defendants the goods they received in the same good order and condition as that in which they received them.''

That was a case where the illegality was disclosed before the trial judge but, nevertheless, he granted the plaintiff the required relief. And in Sajan Singh v. Sardara Ali (1960) 1 All E. R. 269, P. C. in which the Privy Council upheld the rights of a plaintiff even though acquired as a result of an illegal transaction, Lord Denning speaking for the Board said at pp. 272-273:

``Although the transaction between the respondent and the appellant was illegal, nevertheless it was fully executed and carried out; and on that account it was effective to pass the property in the lorry to the respondent. There are many cases which show that, when two persons agree together in a conspiracy to effect a fraudulent or illegal purpose and one of them transfers property to the other in pursuance of the conspiracy - then, so soon as the contract is executed and the fraudulent or illegal purpose is achieved, the property (be it absolute or special) which has been transferred by the one to the other remains vested in the transferee, notwithstanding its illegal origin: see Scarfe v. Morgan (1838) 4 M. & W. at p. 281), per Parke, B. The reason is because the transferor, having fully achieved his unworthy end, cannot be allowed to turn round and repudiate the means by which he did it - he cannot throw over the transfer. And the transferee, having got the property, can assert his title to it against all the world, not because he has any merit of his own, but because there is no one who can assert a better title to it. The court does not confiscate the property because of th eillegality - it has no power to do so - so it says, in the words of Lord Eldon, L. C.: 'Let the estate lie, where it falls': see Muchleston v. Brown ((1801) 6 ves. At p. 69). This principle was applied by the Court of Appeal recently in Bowmakers, Ltd. v. Barnet Instruments, Ltd. ( 1944) 2. All E. R. at p. 582). The parties to the fraud are, of course, liable to be punished for the part they played in the illegal transaction, but nevertheless the property passes to the transferee.''

Distinguishing this case where the plaintiff was assisted by the courts from Chettiar v. Chettiar (1962) 1 All E. R. 494, P. C. which came before the Privy Council two years later in which relief was refused, Lord Denning said in the latter case at p. 498:

``The difference, however, is this: In Sajan Singh v. Sardana Ali (1960 1 All E. R. 269) the plaintiff founded his claim on his right of property in the lorry and his possession of it. He did not have to found his cause of action on an immoral or illegal act. He was held entitled to recover. In the present case the father has of necessity to put forward, and indeed, assert, his own fraudulent purpose, which he has fully achieved. He is met therefore by the principle stated long ago by Lord Mansfield: 'No court will lend its aid to a man who founds his case of action upon an immoral or an illegal act' (see Holman v. Johnson ((1775) 1 Cowp. At p. 343).''

The same approach is evident in the Privy Council case of Amar Singh v. Kulubya (1964) A. C. 142, P.C. in which Lord Morris of Borthy-y-Gest speaking for the Board said at p. 153 that the plaintiff in the case was not in pari delicto because he ``was neither obliged to found his claim on the illegal agreements into which he entered nor, in order to support his claim, to plead or to depend upon the agreement.''

Was the respondent, the plaintiff in this case, bound to disclose the illegality complained of in order to succeed? Was he obliged to rely upon it? This is the question which a court faced with the issue must ask itself. For if the plaintiff can present his case for relief without necessarily disclosing or relying on the illegality, the cases show that the courts will not decline to assist him on the ground of his wrongdoing. What then, was the nature of the case which fell to the trial court to decide? That there was some agreement, whatever its nature, was perfectly legal was equally not in dispute. That the plaintiff had gone into possession of the property as a result of the agreemnt is not open to question. The issues before the court were first of all, whether the agreement was a sale of the unexpered term of the lease as claimed by the defendants. Secondly, if the court's interpretation of the agreement was that the agreement was a sale of the unexpired term should it not in its discretion grant the relief of specific performance so that the defendants. Secondly, if the court's interpretation of the agreement was that the agreement was a sale of the unexpired term should it not in its discretion grant the relief of specific performance so that the defendants might perform their part of the bargain as was indeed agreed upon or should it refuse the relief leaving the respondent's possession to be determine after six years by the defendants even thought that was no what was agreed between the parties? These were the issues. Was the plaintiff obliged to disclose that he had paid the whole purchase price of the alleged sale before he succeeded in this claim? Of course not. Whether the agreement was a sale or a sub-lease did not, and does not, depend one bit on the fact that the price set for the transaction had been paid, either in whole or in part and if the plaintiff was not obliged to show that he had paid the purchase price in full how does it become necessary for him to rely on illegal payments which form only a small part of this full purchase price?

It cannot be said that reliance on the payment of the full price is necessary to decide the court to exercise its discretion to grant the remedy for specific performance. In fact in contracts of this nature, the agreement alone may be sufficient. In fact in contracts of this nature, the agreement alone may be sufficient. In this case considerations exist which make the payment of the price a matter of indifference in the determination of the question and make the grant of the required decree imperative. Let us assume that the question of the nature of the agreement has been decided, as it was decided, in favour of the plaintiff's contention. Should specific performance of it be granted? Consideration must be given to the subject matter of the contract. It is a leasehold interest in land, by accepted authority, an ideal subject for the grant of this remedy. The fact that the respondent has already taken possession. Of the land in pursance of the agreement, is a matter to be given very serious weight. That he has not only been in possession but has for a number of years discharged the obligations of owner and has made improvements to the house is to my mind decisive. The appellants do not complain and have never complained that they have not or would not get their money for the interest in land they agreed to convey to the respondent. They evidence is that the major part of the price has been lawfully paid to them. The alternatives before the court are between the possession being limited to six years or for the rest of the term of the head-lease. What public policy interest would the court be serving in such circumstances by refusing to make the required order for specific performance? Possession of the property has already passed. That cannot be returned by court's refusal to decree specific performance. Nor will a refusal limit the possession to six years. The irony or the appellants' position is that if they are to succeed on this contention on illegality in the form in which they are to succeed on this contention on illegality in the form in which they put it forward, no court ought to assist them to regain possession of the property. For they are equally tainted if not more so by the illegality they complain title, we shall be left with having created a situation where the possession and enjoyment of property on the one hand and the ownership of the formal title, we shall be left with having created a situation where the possession and enjoyment of property on the one hand and the ownership of the formal title to it on the other are kept divided in the hands of two different parties for no reason other than our adherence to the dictates of a public policy we ourselves have created. Does public policy mandate us to adopt such a course? ``Let the estate lie, where it falls'' said Lord Eldon in Muchleston v. Brown (160) 6 Ves. 52 at p. 69. the property has by agreement fallen to the respondent. If there is any public policy involved in this case, it is that the courts should help put an end to litigation over who should have the title to and the enjoyment of the land.

I am perfectly satisfied that the respondent was not obliged in this case to disclose or to rely upon the illegal acts alleged against him in order to obtain the relief he sought. And as the cases shoe, the courts ought not to deny him assistance in those circumstances because some illegality in the performance of the contract comes to their notice.

The point made by the cases referred to is well illustrated in this very case by a reference to the respondent's claim for the repayment of the sum of 661.00. He claimed that the amount was an overpayment of the agreed purchase price. The respondent had to explain how this overpayment occurred. In so doing he had to show that it was due to his miscalculations arising out of the fact that he paid part of the purchase price in foreign currency which had to be converted for accounting purposes into cedis. He could not in that claim avoid relying on the alleged illegal payments to prove his case. He would therefore be caught by the rule which enjoins the courts not to assist the man who founds his claim on an illegality. I would on that account refuse him the claim for 661.00.

All this has been said on the basis that the mere mention of some payments by the respondent by cheques in foreign currency establishes the fact that an illegality has been committed. The respondent seems to accept that position as correct and his counsel has argued his case on that basis. But I have had some doubts in my mind as to whether sufficient was said or done at the trial to establish that the law that no Ghana resident should under any circumstances sell external currency without more would be sufficient to establish that an illegality has been committed. But that is not the case. Section 1 (2) of the Exchange Control Act, 1961 (Act 71), which has been cited as the provision infringed by the respondent says ``Except in such circumstances as may be prescribed, no Ghana resident other than an authorized dealer shall ... sell external currency...'' One would expect that the proof of payment in foreign currency would be connected to the fact that either it was done outside the circumstance prescribed and it would upon the per relying upon the illegality, in this case the appellants, to show that the illegality was committed. Here there was nothing said at the trial about the circumstances if any, in which a Ghana resident may sell external currency. All that counsel for the appellants at the trial, not Mr. Hayfron-Benjamin, said on this point in his concluding address, was that all this moneys paid outside Ghana formed part of a separate transaction for which the appellants had already given consideration or that they contravened the Foreign Exchange Act 1961 (Act 71), and so on the ground of illegality they should be disregarded in computing the purchase price paid. I believe that the failure by the appellants then to explore the issue of illegality to its full extent in connection with the question of enforcement was what led the learned trial judge to omit to consider the question of illegality as is now complained of in his judgment. In this court the whole battle has been conducted on the assumption that there is everything wrong for the point of view of enforcement, with any payments in external currency. I agree that a payment by a Ghana resident with a foreign currency. I agree that in a court of law, evidence of the payment only without more is sufficient proof of the infringement. How are we to know that at the time these payments were made they were not approved by the competent authority? Having regard to the common ground on which the parties fought their case before us, however, I merely express my doubts and make no more of them.

I now come to the first of the two grounds of appeal argued which criticize the learned trial judge for decreeing specific performance when the appellants could not make title by reason of the absence of the prior consent of the head-lessors to the sale of the residue of the leasehold term. The nature of counsel's submission on this ground was as follows:

The appellants themselves were lessees of the property, having taken the lease from the Saaman stool with the concurrence of the Asantehene for 50 years in 1966. their right to sub-let or assign the lease, was, therefore, dependent on the convenants of the lease. By clause (4) of the lease, the appellants as lessees had convenanted that they would not:

``Without the prior consent in writing of the lessor and the Asantehene assign underlet mortgage or part with the possession of the demised premises or any part thereof or any building or buildings erected thereon or any part of such building of buildings or any interest therein.''

No such consent has been given to the appellants. Consequently, a court cannot compel them by specific performance to perform their side of the bargain to sell the leasehold. It is characteristic of the appellants that they Should seek to take advantage of a default which is obviously their own and to do so only when their case has been fought and lost on grounds totally different from that default upon which they now pin their hopes. If anybody had to seek the content of the Saamanhene and the Asantehene, it was the appellant. Even if the agreement they entered into with the respondent was a sub-lease for six years as they strenuously contended at the trial, the obligation to obtain the prior of the Lessor and the Asantehene was theirs. What the appellant are now telling us is this, that had the trial judge, instead of rejecting their story as he rightfully did, accepted it, they could still have come before us and said that even the six-year term they ought not to give to the respondent because they ought to have asked for the prior consent of the Lessors but it did not do so. They say the cases of Childiak v. Coker (1954) 14 W.A.C.A. 506 and Baines v. Tweddle (1959) Ch. 679, C.A. oblige us to support them in this their contention. Those cases to my mind do no such thing.

The question in Chidiak v. Coker (supra) was whether a sub-lessee of Crown land was liable on the covenant to repair when the Crown Lands Ordinance (No. 45) of Nigeria in section 7 provided that in all leases of Crown Lands shall be implied a covenant not to assign, sub-let or otherwise part with the possession of the land without the previous consent of the Governor in writing. The appellant had before then been the sub-lessee of the respondent who was himself the lessee of Crown Lands in question. The initial term having come to an end, the appellant had negotiated and executed a fresh sub-lease which was not executed by the respondent before some year and a half had passed. In any case the Governor's consent even though backdated to the commencement of the fresh sub-lease was not forthcoming before the year and a half had run out. Meanwhile, the appellant continued in possession.

While in possession but before the Governor's consent, the house burnt down. The respondent sued the appellant on the covenant to repair in the sub-lease. 'The West African Court of Appeal held, and this after the necessary consent had been obtained, that without the prior consent of the Governor, the sub-lease could not be granted; that consent could not have been assumed. Therefore at the time of the fire, there was on sub-lease.

Having regard to the subsequent consent of the Governor which was backdated I think this an extremely view indeed. No doubt the court that view because the provision requiring the prior was statutory. I cannot say what considerations a colonial Governor would take into account in deciding how to protect land designated as Crown Lands. But it cannot be said that they are necessarily the same as an ordinary landlord in an independent country would weigh in his mind. In the ordinary relations of landlord and tenant the covenant where it appears is attached to a right of re-entry in the head-lessor for breach. A sub-lease in contravention of he covenants always gives the head-lessor a right to damages and he may determine the lease but the sub-lease is not void ab initio. And as I shall presently point out, the modern development, at least in England and Ghana, is for the court to provide relief, when the head-lessor takes steps to re-enter, against the forfeiture.

I do not think Baines v. Tweddle (supra) in point. That was a case where a vendor contracted to sell his unencumbered freehold interest in land when in fact all he had was only an equity of redemption in it, which in the words of Lord Evershed M. R. at P.686 was in the particular case not 'worth a penny piece.' There is, in my opinion, a vast difference between selling property, which you have not, which you have not got which is the Baines v. Tweddle situation and selling what is in fact yours but subject to a covenant that you may sell only with consent.

This distinction is even more marked when it is noted that in every case where the character and financial standing on the sub-lease or assignee is all right, this consent to assign or sub-let is a mere formality. In Baines v. Tweddle (supra) there was no reason for the vendor to think that his mortgagees would agree to him selling the unencumbered fee simple for he was seriously in arrears with one of the mortgagees. By the same token there was every reason to expect that the mortgagees would refuse consent. Understandably, specific performance of the agreement to sell the fee simple could not be granted, and indeed was not pressed for once the circumstances became known.

I can see no reason why the Saaman stool and the Asantehene should have any objection to a person of apparently good character who had lived and provided services as a pharmacist in Kumasi for over twenty years earning in the course of it the affectionate and respected sourbriquet of 'doctor', taking over leasehold property in Kumasi especially when that person intended to apply the property for the purpose for which it was originally leased. The respondent has already been in exclusive possession of the property for six years and if the lessors have not notices the change during that time it must be because they have not bee adversely affected by the change. If they have noticed but have not re-entered the property, it must be because they have no objection to the substitution of the respondent for the appellants as tenant for there is the usual clause on re-entry for breach of the covenant against assignment, etc. exercisable at the option of the lessor and the Asantehene. Breach of the covenant under the lease in it case dose not make the assignment or under letting void, it merely gives the lessor the power to determine the lease by entry. The lease provides that on such breach it shall be lawful for the lessor or the Asantehene to re-enter upon the demised premise ...'' The Lessor or Asantehene need take no action at all on the breach. The covenant is for the protection of the lessor and not for the benefit of the offending lessee.

It would be wholly wrong to save a person from a bargain he has freely entered into and from which he had derived benefit because of a formality of this sort which only gives rise to a contingency. Taking the appellant on their own case which they put forward at the trial, this covenant has already been breached by them. But relief against forfeiture of the lease can always by granted by a court. House Property & Investment Co., Ltd. V. James Walker Goldsmith and Silver Ltd. (1948) I. K. B. 257 is authority for the proposition that the application may be made and granted under section 146 (2) of the English Law of Property Act, 1925 (15 7 16 Geo. 5, c. 20). By our own Courts Act, 1971 (Act 372), s. 111 (2), section 146 of the Law of Property Act, 1925 is one of several positions of that Act which applies in this country until vision is otherwise made by law.

The appellants should, therefore, entertain little worry on this point. If there is anything in which the courts would want to come to their aid in this case it would be give them protection against the forfeiture of their lease for this default they have committed, should the lessor ever takes steps to re-enter the property on that account. Should the appellants be disinclined at that point to apply for relief against forfeiture that should prepare the respondent with no insurmountable difficulty because he himself may apply for it. Section 146 (5) of the law of Property Act, 1925, defines the 'lease' who according to the section may apply for relief as including 'an original or derivative under-lessee, and the person deriving title under a lessee.''

For good measure, the appellant at the last moment threw in section 8 of the Administration of Lands Act, 1962 (Act 123). They submitted that the land involved in the transaction was stool land is came under section 8 (1) of that Act which subjects dealings in stool lands to the concurrence of the Minister responsible for lands. And as the consent of the Minister was neither sought nor obtained the sale of the property was void as offending the clear provisions of the Act. That subsection says: 'Any disposal of any land which involves the payment of any valuable consideration or which would, by reason of it is being to a person not entitled by customary law to the free use of the land, involve the payment of any such consideration, and which is made, a. by a stool; b. by any person who, by reason of his being so entitled under customary law, ahs acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration, shall be subject to the concurrence of the Ministry and shall be of no effect unless such concurrence is granted.

Section 8 (6) further provides that 'Any transaction entered into in contravention of the provisions of this section shall be void.''

Mr. Reindorf has stated that under Order 19,r. 16 of the High Court (Civil Procedure) Rules, 1954 (L. N. 140A.), which requires the parties to an action to raise by their pleadings all matter which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable at law, this point cannot be raised now. I think Mr. Reindorf must be right. But having indulged the appellants this far, would almost appear churlish of me if I were to dismiss their final submission on a technical rule of pleading. Unlike the statutory provision in Chidiak v. Coker (supra), this section (8) 1 does not require the concurrence of the Minister to precede the disposition. The wording of the subsection contemplates the holder of the land making all arrangements for a disposition being first made and then the Minister's concurrence being sought afterwards. It is common practice that these transactions requiring the Minister's concurrence are entered into before the conveyance is submitted to the Lands Department for the necessary concurrence. The disposition remains of no effect until the concurrence is given.

Without the concurrence it is not void in the sense that it cannot ever be activated thereafter. And on this matter, it is more in the interest of the grantee or transferee of the land to secure the Minister's concurrence. So generally he applies for it and pursues his interest. When section 8 (6) speaks of transaction entered into contrary to the provisions of the section being void as far as section 8 (1) is concerned, it does not make any difference to the position as stated. It would, of course, strike down transactions purposely entered into to evade the requirement of the Minister's concurrence. But beyond that, there is nor requirement that legality attaches to a disposition only if the Minister's concurrence is obtained before it is made.

Here, the appellants triumphantly proclaim that the Minister's concurrence was never sought or obtained. That is true. But whose fault was it? They never made the effort to obtain the concurrence themselves. They never fulfilled their obligation to the respondent in full so as to put him in the position to ask for the concurrence. Even now when the respondent asks the court to compel them to execute the deed they had undertaken to execute to entitle his claim to the land they find that so disagreeable that they adopt all manner of stratagems to persuade the court that this should not be done.

There is no merit in this contention of the appellants. If specific performance of a contract in respect of land is to be refused unless it is shown that each agreement ahs obtained the Minister's concurrence that will be the end of the usefulness of the remedy in this land. In an age and in a country where a very large proportion of the land is stool land and therefore subject to the Minister's concurrence all that a grantor or transferor of land may do to avoid performing his side of an agreement, which had become unduly onerous or which he has learnt to regret, is to do nothing.

And according to the appellants the court should be obliged by statute to protect him. I think the appellants are wrong. Let them keep their side of the bargain. Let them execute the deed they promised to execute. Let the respondent take the risk of not securing the Minister's concurrence. If given the opportunity the respondent attempts to obtain the concurrence and fails, then, perhaps, we see the appellants again in these our courts asking us to declare their entitlement to the property. But that is another story.

It always comes ill from the month of a man who has benefited from a contract to resist the performance of his obligation on the ground that the contract was illegal. It is particularly odious where that man takes points only after he has attempted deliberately to perpetrate a barefaced deception on the court and has been found out. The court would be exercising a strange choice between competing interests if in such situation they were to apply the maxim potior est condition defendants. Fortunately, as I have attempted to demonstrate through the reviews of the case, the substance of this appeal does not drive us to such a choice. In any event, this is a case which I share the sentiments of Lord Wright in Vita Food Products Inc. v. Unus Shipping Co., Ltd. (supra) that if, any, public policy is better served by refusing to nullify the bargain entered into by the parties. The claim for a refund appears somewhat different. For the reasons given I would dismiss the appeal f the appellants but strike out the award of 661.00 in favour of the respondent.

Sowah J. .A. have read the very able judgment of my brother Amissah and have no doubt whatsoever that the appeal should be dismissed but would like to add a few words of my own. The main issue joined between the parties was whether the agreement entered into by them was one for the sale or a tenancy of house No. 6, Block P. West Nhiaso, Kumasi.

The resolution of the other issue depended upon the determination of this question and were incidental to it.

In the result the learned trial judge have no difficulty in accepting the evidence of the plaintiff that the contract was for the sale of the house and accordingly ordered that the defendants do convey the legal title to the plaintiff who has been granted possession before action commenced.

During the course of his evidence the plaintiff disclosed, rather naively, that he paid just a little over one fourth of the purchase price in foreign currency which was accepted, at least not denied by the defendants; and it is this piece of evidence which had given the defendants the ammunition to attach the judgment on grounds of illegality vitiating the contract. In my view, this ground of appeal is not open to the defendants-appellants; it is entirely a new ground and was an issue nor was it canvassed before the learned trial judge. If the defendants-appellants were minded to rely on grounds of illegality, they ought to have pleaded it so that the court could properly be seized of the facts pertaining to the illegality. They are also enjoined by order 19,r. 16. of the High Court 9Civil Procedure) Rules, 1954 (L. N. 140A.), to plead it. The said rule reads:

The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleading, as for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or statute of frauds.

In this connection I will refer to the well known case of Esso Petroleum Co., Ltd. V. Southport Corporation (1956) A.C. 218, H.L. and the case of Odoi v. Hammond (1971) 1 G.L.R. 375, C.A.

It may well be said that these cases have no application in that the evidence of illegality was disclosed on the face of the record and that it would be contrary to public policy for a court to ignore it. Public Policy has often been stated to be an unruly horse whose conduct is unpredictable and which does not quite respond to the whip or the spur of its rider in the way it is intended to. This unpredictability has been manifested in the several judgments of the courts some of which had been referred to in the judgment of the brother. For my part I have always been warry to pronounce a course of conduct contrary to public policy unless there is the clearest evidence on which such a pronouncement could be based. In this case the appellants were equivocal as to whether they received the payments of money alleged to have been paid in foreign currency; the suggestion was made by counsel for the defendants, no doubt, on their instructions that those cheques were given for purpose other than for the payment of the purchase price. Is that suggestions is correct, then of course the contract could not have been illegally performed and the only defence would be that the full purchase price has not been paid or offered, to enable a court to grant that relies.

I think on the whole public policy would best be served by ordering the appellants to execute an assignment in favour of the respondent. For with the legal title in their hands, the appellants could sell the property to an unwary purchaser or deal with it in a manner consistent with possession of a legal title and of course there will be no end to litigation. Accordingly it is in the public interest that such situations to be avoided.

Kingsleys-Nyinah J. A. I wholeheartedly concur with the competent and discerning judgment of my brother Amissah and also affirm the reasoning upon which that decision, and my brother Sowah's are so well founded. Unqualifiedly, therefore, I support the result proposed by the learned President of this court.

I take this position and also vote for the dismissal of this appeal because, after a very close scrutiny of the judgment of the learned trial High Court Judge, and an equally examination of the totality of the evidence marshaled for his assay, I am unable to find any misappreciated, by him, of the central issues opened to him for determination. Nor have I been able to discover, after hearing and enterprising arguments in this appeal, any error in law concerning the trial judge's approach to, or his handling of, those issues, therefore, that decision fully accorded with justice and good sense, we cannot, in this appeal, abuse the conscience of this upper court, be reversing that decision, the trial judgment being in clear advancement of substantial justice.

In this appeal, the appellants have cried illegality! and they have sought to be favoured with equity and justice when the circumstances surrounding their transaction with the respondent clearly show that they are, themselves not only readily contemptuous of what is just and right, but also that to them solemn sanction of an oath means absolutely nothing. They need to be told that he who comes to equity must not only come with clean hands, by the must also prepared to do what is fair, honest and right. And so it was that at the end of the day, the appellants stood before the learned trial judge willfully perjured, tainted and unclean, their defence failing to command any credit.

As I see it, the performance of the contract of sale, subject-matter of this ligigation, will in no way be injurious to society, seeing that it was never shown to have been the intention of the respondent, when the transaction between the parties was entered into, to cheat the National Exchequer by achieving prohibited under the fiscal, or other laws of this country. This appeal cannot but fail.

Appeal dismissed.
D. R. K. S.

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Josh DuBois 2004-12-01