COURT OF APPEAL, ACCRA
Date: 18 FEBRUARY 1975
ARCHER ANIN AND FRANCOIS JJ.A
CASES REFERRED TO
(1) Okantey v. Kwaddey [1959] G.L.R. 241.
(2) Montefiore v. Menday Motor Components Co., Ltd. [1918] 2 K.B. 241; 87 L.J.K.B. 907; 119 L.T. 340; 34 T.L.R. 463; 62 S.J. 585.
(3) Kessie v. Charmant [1973] 2 G.L.R. 194.
(4) Blackford v. Preston (1799) 8 T.R. 89; 101 E.R. 89.
(5) Stackpole v. Earle (1761) 2 Wils. K.B. 133; 95 E.R. 727.
(6) Yardom v. Minta III (1926) F.C. ‘26-’29, 76.
(7) Akwei v. Akwei [1961] G. L. R. 212.
NATURE OF PROCEEDINGS
APPEAL against the judgment of the High Court wherein the appellant was held to have compromised his rights under a judgment for a monetary consideration. The facts are sufficiently stated in the judgment of Archer J.A.
COUNSEL
Joe Reindorf for the appellant.
P. A. Adjetey for the respondent.
JUDGMENT OF ARCHER J.A.
In 1954, the appellant sued the respondent for the recovery of possession of a plot of land at Osu. An epitome of the facts in that action is reported in the headnote in the case of Okantey v. Kwaddey [1959] G.L.R. 241, C.A. as follows:
“In consequence of the earthquake which occurred in 1939 there was extensive damage to buildings in Accra. In order to provide land for temporary accommodation for those whose houses had been destroyed or damaged beyond repair, the Osu Stool on the 24th September, 1939 conveyed a large piece of Stool land to the Government at the latter’s request.
The Anahor Quarter of Osu at that time had no plan to keep it informed as to grants of land in the quarter. On the 13th December, 1939, the Shippi of Anahor conveyed to Alfred Edmund Okantey a piece of Anahor quarter land which formed part of the area already conveyed to Government by the Osu Mantse as Paramount Chief. The Osu Stool’s grant to Government, and the Shippi’s subsequent ‘grant’ to Okantey, both included the plot forming the subject-matter of this dispute. Notwithstanding his then —recent ‘grant’ to Government, the Osu Mantse approved the conveyance to Okantey, who erected boundary pillars. On the 10th December, 1951 the Shippi (notwithstanding his own ‘grant’ to Okantey in 1939) ‘granted’ the same land to Obodai Annan. Four months later Obodai Annan conveyed it to one Torto, and he in turn conveyed it in 1954 to Beatrice Okyerewa Kwaddey. She commenced to build on it. Okantey commenced an action against her in the Land Court on the 21st March, 1956 for possession; the Government’s order divesting itself of the land was gazetted on the 5th May, 1956.”
This is the genesis of the litigation. When the case was heard in the Land Court at Accra, the court held that as Kwaddey, the present respondent,
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was a defendant in possession, and not counterclaiming, the onus of proof lay on Okantey, the present appellant, who had only a contingent interest, which offended the rule against perpetuities. The court therefore delivered judgment in favour of the respondent. The appellant appealed to the then Court of Appeal which then reversed the decision of the court below and held that as the appellant was the first to go into possession, he was entitled to succeed in an action for recovery of possession against the respondent, who had “wilfully” broken down the appellant’s pillars in order to occupy the land. However, final leave was granted to the respondent on 25 June 1959 to appeal to the Judicial Committee of the Privy Council. On 1 July 1960 when Ghana became a Republic, she severed all connection with the British Crown and the ancient institutions deriving their existence through the Crown. Of course, one such institution was the Privy Council. Accordingly, all appeals from Ghana pending before the Privy Council abated and therefore, the judgment of the Court of Appeal in favour of the appellant became a final judgment subject to no appeal. The appellant had before him two ways of recovering possession. He could have entered the land peacefully if the respondent had vacated it voluntarily in pursuance of the judgment or he could have invoked the assistance of the court by applying for a writ of possession. Between 1 July 1960 and October 1963 it is not clear what steps, if any, the appellant took to enforce the final judgment in his favour. However, it appears that the first legal step which the appellant took was after the 24 February 1966 coup when he applied for a writ of possession against the respondent, but execution was stayed at the instance of the respondent, who, in July 1966, issued a writ of summons in the Accra High Court against the appellant praying the court to restrain the appellant from interfering with her possession of the land together with the house which she had built.
The genesis of the litigation has been dealt with. Now what about the revelations ? They are startling and fascinating. In her statement of claim, she averred that in October 1963, she petitioned the then Minister of Justice to use his good offices to settle the matter between herself and the appellant. As a result, both parties, together with their lawyers, met in the Minister’s house, but after lengthy discussions, settlement could not be reached as the appellant was demanding what she could not agree to. She alleged further that in the first half of 1965, the appellant, whose ambition at the time was solely directed to his possible elevation to the lay magisterial bench, requested her to approach one Mr. Ayeh Kumi to procure for the appellant the office of a local court magistrate (a post which required no legal qualifications) and as a consideration for such an appointment the appellant promised to abandon all his rights under the 1959 judgment; in other words, he would not recover possession from the respondent. According to the respondent, she did approach Mr. Ayeh Kumi who demanded that the appellant’s decision to waive his rights under the judgment should be reduced into writing by the appellant. The letter was written by the appellant and the respondent took it to Mr. Ayeh Kumi
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who later on travelled abroad without ensuring that the promised appointment was effected. The respondent’s story further revealed that it was about this time that the appellant, at his request, met the respondent in the latter’s residence and during the conversation that took place, the appellant informed the respondent that he was no longer interested in the post of local court magistrate and that, if the respondent paid him £G300, he would waive all his rights under the judgment. The respondent maintained that in the presence of witnesses, both parties bargained and compromised on the sum £G200 which the appellant received in full consideration for not pursuing the judgment.
In the court below, the appellant denied receiving any money from the respondent in order to waive his rights. He rejected the allegation that he visited the respondent and compromised his rights. His version was that he had never requested the respondent to see Mr. Ayeh Kumi about any appointment and he had never written any letter to Mr. Ayeh Kumi. Nevertheless, he admitted that he did write a letter to the then Minister of Justice in 1964 when soliciting the minister’s help for the post of local court magistrate for which he had applied. However, the minister revealed that the judgment in favour of the appellant had aroused anger in political circles and the minister would only assist the appellant in his yearning for the post of magistrate on one condition, that is to say, the appellant should address a letter to the minister renouncing all his rights under the 1959 judgment. The appellant explained that he did write such a letter as consideration for the appointment. In the court below, he was constrained to disclose that the respondent was a friend of ex-President Nkrumah and from the time of the judgment in 1959 up to the overthrow of the ex-President, he was afraid of taking legal steps to enforce the judgment because threats of detention against him circulated in profusion. He still relied on the 1959 judgment to recover possession. After hearing the respective revelations of the parties, the learned High Court judge found as a fact that the appellant visited the respondent and compromised his rights under the judgment for the sum of £G200 which the respondent paid to him in the presence of witnesses and therefore granted the respondent the reliefs she sought.
Before this court, learned counsel for the appellant strenuously argued that if there was any agreement to compromise the dispute between the parties it was the agreement that the appellant should waive his rights under the judgment in consideration for an appointment to the post of local court magistrate. He further submitted that such an agreement was clearly illegal as being contrary to public policy and therefore was not enforceable in any court of law. There is no doubt that his submission represents a correct statement of the law. Thus at p. 321 of Cheshire and Fifoot’s Law of Contract (7th ed.), appears the following passage:
“It has long been the rule that any contract is illegal which tends to corruption in the administration of the affairs of the nation. A familiar example of a transaction offensive to this principle is a contract for the buying, selling or procuring of public offices.”
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Then the learned authors quote from Story’s Equity Jurisdiction as follows on the same page:
“It is obvious’ says Story ‘that all such contracts must have a material influence to diminish the respectability, responsibility and purity of public officers, and to introduce a system of official patronage, corruption and deceit wholly at war with the public interest’.”
Learned counsel for the appellant also cited the English case of Montefiore v. Menday Motor Components Co., Ltd. [1918] 2 K.B. 241 at p. 245 where Shearman J. stated the rule as follows:
“In my judgment it is contrary to public policy that a person should be hired for money or valuable consideration when he has access to persons of influence to use his position and interest to procure a benefit from the Government … So long ago as the reign of Edward VI. it was provided by the statute of 5 & 6 Edw. 6, c. 16, that it was illegal to bargain for any brokerage or money for the transference of an office, or any part of an office, concerning the receipt, controlment, or payment of any money or revenue of the Crown. And a later statute, 49 Geo. 3, c. 126, made it a misdemeanour to receive money for any office, place, or employment particularly specified in that Act. While I do not go to the length of holding that the defendants were bargaining with the plaintiff that they should receive an office under the Crown, I agree with the remarks of Coltman J. in the case of Hopkins v. Prescott (1847) 4 C. B. 578, 596) that … if the contract were not void by statute, it would be void at common law as contrary to public policy.”
Also learned counsel for the appellant referred to the case of Kessie v. Charmant [1973] 2 G.L.R. 194 in which the Montefiore case was considered and applied. Those were cases in which the plaintiffs used influence to obtain benefits from Governments in favour of the defendants and claimed either commissions or company shares promised them by the defendants. In the present appeal, the facts disclose that the appellant was prepared to exchange his judgment for the post of magistrate. It came from his own mouth. In Blackford v. Preston (1799) 8 T.R. 89. at pp. 92-93, Lord Kenyon Ch.J. stated the law as follows:
“There is no rule better established respecting the disposition of every office in which the public are concerned than this, detur digniori: on principles of public policy no money consideration ought to influence the appointment to such offices . . . Up to a certain extent the Legislature have interfered and prohibited (by the stat. 5 & 6 Ed. 6, the sale of some offices; but whether or not that Act of Parliament were necessary for the purpose, I will not now inquire … But a plaintiff who comes into a Court of Justice to enforce a contract, must come on legal grounds; and if he have not a legal title, he cannot succeed, whatever the private wishes of the Court may be … public policy requires that there should be no money consideration
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for the appointment to an office in which the public are interested; the public will be better served by having persons best qualified to fill offices appointed to them; but if money may be given to those who appoint, it may be a temptation to them to appoint improper persons.”
An earlier case was that of Stackpole v. Earle (1761) 95 E.R. 727 where the plaintiff claimed that he had found persons to purchase the office of the defendant and was therefore entitled to the reward agreed by the parties. The following extract from the report at p. 728 (supra) is relevant:
“Upon debating this case at the Bar, it was argued by the council [sic] for the plaintiff, that he was neither a buyer nor seller of the place or office, and that what he had done was at the defendant’s request, and was neither malum in se, nor malum prohibitum, and therefore he ought to be satisfied for his labour and trouble; but the whole Court were of opinion that it was malum prohibitum, and within the statute of 5 & 6 Ed. 6, cap. 16, sec 2. And though the plaintiff himself was neither buyer or seller, yet this appears to be a promise to pay him money, to the intent that a person should have an office belonging to the Customs, which is within the very words of the statute; but Mr. Justice Clive said, he thought the selling of offices was malum in se at common law, and that if the statute had never been made, he thought the procuring a person to buy the office of the defendant was not a good consideration in law to raise an assumpsit, (which was not denied by any of the Judges) because it was illegal;. . .”
Whether the statute of 1552 i.e. the Sale of Offices Act (5 & 6 Edw., 6, c. 16), has ever been in force in China as a statute of general application need not be answered. But it appears that even before this statute was passed, the common law rule was that contracts to procure offices of state were illegal as being contrary to public policy.
The appellant has admitted writing a letter to the then Minister of Justice waiving his rights under the judgment in his favour to enable the minister to appoint him a local court magistrate. The respondent’s version was that the letter containing the appellant’s waiver of his rights was addressed and handed to Mr. Ayeh Kumi and not to the minister. Whether the letter was addressed to the minister or to Mr Ayeh Kumi is immaterial. The letter was so tainted with illegality that no court of law will countenance it. The letter itself has not been tendered in evidence but the appellant’s own confession that he did write such a letter is sufficient to clothe the whole transaction with illegality.
The revelations by both parties are abominable and should incur the wrath and indignation of society in general. In the seventeenth and eighteenth centuries such cases of procurement of offices were rampant in some countries but we live in the twentieth century and it is a sad reflection on our contemporary society that such revelations should be made in court without any sense of compunction on the part of the parties.
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The appellant is an educated person and he should have known that it was malum prohibitum to exchange the fruits of his judgment for the post of local court magistrate. The respondent claims to be illiterate and perhaps her lack of enlightenment at the time in such matters might have been enormous. All the same, she should have known that it was highly immoral to use her influence and connections to procure employment in the public service for the appellant in exchange for her remaining in possession of the land in dispute.
If the matter had ended there, this appeal would have been straightforward. But that is not the case. The respondent’s evidence was to the effect that, notwithstanding this illegal agreement, the appointment was considerably delayed to such an extent that the appellant lost interest in the post of a magistrate and made a fresh attempt to compromise the matter. In other words, there were two separate compromises. The first was the waiver of the appellant’s rights under the judgment in consideration for the post of magistrate. The second was the waiver of the appellant’s right under the judgment in consideration of the sum of £G200 plus £G7 paid by the respondent to the appellant in addition to a bottle of whisky presented by the respondent to the appellant to seal the transaction. Indeed, the learned trial judge simplified his task by referring to those two transactions. The question one would ask in this appeal is whether the two transactions were so intertwined so as to constitute one inseverable transaction saturated with illegality or whether the first transaction was abandoned by the appellant and a new perfectly legal agreement was reached in the respondent’s house. It should be recalled that when the appellant chose to waive his rights in consideration for the post of magistrate, there was no suggestion that he should pay any money to the respondent. What then motivated the payment of £G200 plus £G7 to the appellant? The respondent’s evidence shows that when she informed the appellant that Mr. Ayeh Kumi was about to travel abroad and that he could not do anything until his return the appellant then suggested that if Mr. Ayeh Kumi could not help then the respondent should pay him £G300 to compromise the matter. Eventually, she paid him; £G200 in the presence of Rose Ohenewa (her daughter) and Jemima Nyarkoah (her sister). The next day, she also paid him £G5 for court expenses and £G2 for transport fees demanded by him. The appellant has denied ever receiving any money from the respondent. However, the respondent brought her daughter and her sister to confirm that the appellant visited her in her house and money passed. The house boy at the time said he saw the appellant counting money in the respondent’s residence when he was about to serve the drinks. The wife of the appellant’s uncle, Felicia Hammond, also testified that she saw the appellant leaving the respondent’s house. The learned trial judge therefore had the task of accepting one of the two stories presented to him. He had the opportunity of hearing and seeing the witnesses in the court room and he made specific findings of fact. Some of these findings are based on the credibility
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of the witnesses and this court is not competent to disturb those findings. Whatever letter was written by the appellant to waive his rights in order to procure for himself that post of magistrate was clearly illegal and unenforceable. In other words, the court will not assist anyone who relies on that letter to enforce rights acquired thereunder. But it seems that this letter was a separate transaction. The appellant resorted to his new demand when out of sheer despondency he suggested that £G300 should be paid to him as a compromise. No doubt it sounds strange that a man who was at one time demanding between £G5,000 and £G10,000 should at last demand £G300 to compromise the same rights. Nevertheless, it is not open to this court to speculate on the motives for this sudden change of attitude.
When judgment is pronounced in favour of a litigant he is at liberty not to pursue the judgment and no court of law will suo motu encourage or invite him to pursue the judgment. If he does not wish to pursue the judgment, the court would make an ass of itself if it attempted to compel him to pursue the judgment. Moreover, after a judgment has been delivered, it is open to the successful party to compromise his rights under the judgment and make whatever arrangements he wishes with the unsuccessful party without the court’s approval or blessing. Thus in Yardom v. Minta III (1926) F.C. ‘26-’29, 76 Howes J. stated the principle in this way:
“Having obtained a judgment, there is no power in anyone to compel the successful party to avail himself of the benefits or fruits of his judgment. The effect of a judgment, in a case relating to land (as the present case is) is to transfer, from one party to the other, certain rights over that land. Having acquired such rights, I am unable to see why the successful party cannot afterwards, by agreement or otherwise, deal with them in any manner he pleases . . . Whilst such new agreement will not set aside the judgment, if subsequently thereto, the successful party attempted to enforce his judgment, in my opinion, the doctrine of estoppel in pias would come in, and in equity, no Court would give effect to the judgment, the terms of which the successful party has voluntarily and by his conduct varied; .
The same principle applies where a successful litigant who has obtained judgment subsequently submits the subject-matter to arbitration so as to vary the terms of the judgment: see Akwei v. Akwei [1961] G.L.R. 212.
In the present appeal, the evidence shows that the appellant was inhibited, from 1960 onwards, by rumours of the likelihood of being detained, from taking any steps to execute the final judgment. Later, his infatuation and obsession with the glamour and grandeur, if any, of the lay magisterial bench propelled him to waive all his rights under the judgment in consideration for his possible elevation to that bench. When the prospects for the post were not immediately bright he opted to receive money in full settlement of his claims against the respondent.
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There is no evidence on record that he was subsequently appointed a local court magistrate on account of the letter he wrote waiving his rights under the judgment. In any case, the letter which he admittedly wrote could not have had any legal consequences because the transaction of which the letter formed part was clearly illegal. What matters in this appeal is whether he voluntarily agreed with the respondent to accept monetary consideration and allow the respondent to remain in possession. The learned trial judge found that he did and it is not open to ‘his court to disturb that finding provided there is evidence to support it. The appellant chose to exchange a precious judgment for a mess of pottage and he is now clearly estopped from asserting his rights under that judgment. It should be pointed out that the judgment has not been set aside by the subsequent agreement of the parties, an agreement which the court must respect. However, the judgment will forever continue to be of historical significance only and perhaps an adornment in the pages of the legal literature of this country because the appellant by his own conduct has converted the judgment into such a relic.
In conclusion, the appellant never waived his rights by writing the letter because that earlier agreement was contrary to public policy and therefore illegal and unenforceable. However, as the appellant subsequently in a separate negotiation and in a perfectly legitimate settlement at the respondent’s residence agreed and received monetary consideration for waiving his rights, he ceased to be at liberty to execute the judgment.
I would therefore dismiss the appeal.
JUDGMENT OF ANIN J.A.
I agree.
JUDGMENT OF FRANCOIS J.A.
I also agree.
DECISION
Appeal dismissed. S. E. K.
