HIGH COURT, KUMASI
DATE: 25TH JANUARY, 1962
BEFORE: APALOO, J.
CASE REFERRED TO
Richardson v. Mellish (1824) 2 Bing. 229; 130 E.R. 294
NATURE OF PROCEEDINGS
ACTION in contract by the plaintiff to recover £520 lent by the plaintiff to the defendant.
COUNSEL
I. R. Aboagye for the plaintiff.
J. K. Prempeh, with him S.A. Gyimah for the defendant.
JUDGEMENT OF APALOO, J.
[His lordship referred to the facts and the agreement set out in the headnote and continued:] The plaintiff said that the defendant did not succeed in bringing the stool to his house and accordingly seeks by this action to recover the sum of £520, which the defendant on his own admission owed him.
The defendant’s reply is that he had helped not only in getting Kwaku Dua destooled but also in electing Kwame Sei, the plaintiff’s nephew and a member of the Kronkomase ruling house as the Agogohene. Accordingly, the defendant contends that he has performed his part of the agreement and that the action did not lie.
Although the agreement (exhibit A) did not oblige the defendant to perform any act in relation to the destoolment of Kwaku Dua, I am satisfied that on the strength of it, the defendant helped in framing destoolment charges against Kwaku Dua and in fact testified against him before the Owusu Afriyie Committee of Enquiry which determined the charges against him.
In the result, the destoolment charges were found proved and Kwaku Dua was duly destooled. In relation to the election of Kwame Sei, I find that the defendant used his position as an influential member of the C.P.P. to get the plaintiff’s nephew nominated by the Krontihene. He was also present at a meeting summoned by the king-makers of the Agogo stool. I am satisfied that at that meeting the defendant again in his capacity as an influential member of the C.P.P. supported Sei’s candidature to the stool. At that meeting to which the plaintiff was subsequently invited, Kwame Sei was declared elected by the elders. The defendant struck me in the witness box as an unscrupulous individual and I feel no doubt he did all those things in pursuance of the contract with the plaintiff and in furtherance of his own financial interest.
Although elected, the evidence satisfies me that Kwame Sei was not infact installed as Agogohene.
This was because the Queenmother in whose absence, he was elected opposed his candidature and herself nominated a rival candidate. This candidate was subsequently installed as Agogohene, he having received the support of the Government.
An important question I have to decide in this case is whether the agreement, exhibit A was, as contended by the plaintiff, illegal on the ground that it was contrary to public policy or, as the defendant argues, was perfectly lawful. In considering this question I bear in mind the warning given by Burrough J. as long ago as 1824 in the case of Richardson v. Mellish1(1) that public policy “is a very unruly horse, and when once you get astride it you never know where it will carry you”.
I also accept the submission of counsel for the defendant that a judge must act with great caution in declaring a contract void as against public policy. Nevertheless I have come to the conclusion in absolute comfort and without the slightest hesitation that the agreement, exhibit A, by which the defendant was, in effect, to use his influence, no doubt improperly, to secure the election to a public stool of a man who, for all I know, may be singularly unsuitable, merely because of financial considerations and irrespective of the candidate’s own merit is injurious to the public interest and on that account illegal.
It seems to me fairly well established that except in well recognised circumstances money paid in pursuance of an illegal contract cannot be recovered by action. One of the exceptions of this rule is where the parties are not in pari delicto. In my opinion, in this case both parties are in pari delicto.
The plaintiff voluntarily was willing to part with as much as £520 as consideration for the defendant using his influence, as he well knew, corruptly to secure for his nephew enstoolment to the public stool of Agogo. The defendant on his part was willing to lend his influence and services in return for that sum. There is no question here of one man holding a rod and the other having no alternative but to submit. Another exception known to me is where the person who paid money in pursuance of an illegal contract repents the transaction and seeks to recover his money before any part of the illegal purpose is carried out.
I think that is what is known as a locus poenitentiae in this branch of the law. In my opinion, there is no change of heart by the plaintiff in this matter. Quite clearly, the plaintiff at no time repented the agreement and the reason why he seeks to recover his money is not because he had had any qualms about the transaction but because it was not carried to a conclusion beneficial to himself. He said: “The stool never came to my house.” Accordingly I went to the defendant and demanded the debt of £520, he having failed to bring the stool to my house”. As I have already found, the defendant as he well knew, performed a substantial part of the agreement and the fact that the plaintiff’s nephew was not eventually installed as Agogohene was the result of an act irrespective of the volition of both parties. Accordingly, in my judgment the plaintiff ought to be met by the defence of in pari delicto, potior est conditio defendentis.
One question remains to be answered and that is whether there is any difference in the law between a case where actual money is paid over in pursuance of an illegal transaction or where, as happened in this case, a right to a debt is promised to be foregone as consideration for the illegal contract. I have asked myself that question and have given it a prolonged and anxious consideration. I have come to the conclusion that no reason exists why there should be any difference in principle. I do not consider that public policy will be advanced by making so subtle a distinction. In my opinion, subject to the exceptions which are well known, no party should be assisted by the court to recover anything given or promised to be foregone, whether it be a physical thing or an incorporeal right if it was in furtherance of an illegal transaction. Accordingly, I hold that the plaintiff must fail in this action which I hereby dismiss. There must be judgment for the defendant.
I find my mind troubled about costs. In a sense, the defendant is getting away with a handsome present. He succeeds in this action not because of any merit that his case possesses but because of what I conceive to be the policy of the law in this matter. He has, as he himself shamelessly claimed, used his influence corruptly and furthered his own financial interest. Quite clearly, he is the gainer by this transaction which he most probably instigated. In all the circumstances, I consider that the defendant is wholly undeserving of costs. I think the right course for me to take is to leave everybody to bear his own costs and to that effect I order.
DECISION
Judgment for the defendant.
Parties to bear own costs.
