Baidoo v. Sam [1987-88] 2 GLR 666.

BAIDOO v. SAM [1987-88] 2 GLR 666.

JUDGEMENT OF TAYLOR J.S.C

STATUTORY REF.
Page 668

Taylor J.S.C. The issues in this appeal are quite simple but they involve very important questions concerning the law of contract and the law governing aspects of business transactions in Ghana and I should think these issues must in the circumstances be of some interest to the business community. In my opinion therefore such issues when they surface in our courts must not be glossed over; the rational legal foundations for their solution must be properly articulated, if the just expectations of our businessmen are not to be frustrated by exasperation as a consequence of their failure to appreciate the nature of the legal considerations which judges are obliged to apply in resolving their business problems. The parties in this appeal, Ellion Baidoo, the plaintiff-appellant, and Kojo Sam, the defendant-respondent, have mutually conceded that they are businessmen. Businessmen in my view are persons engaged in all forms of commercial and quasi-commercial and other activities of a like nature for the purpose of profit and it is their said activities that are compendiously referred to as business. In the prevailing climate in the country their activities are of immense economic importance.

The facts that have led to the controversy between the parties are that the said Ellion Baidoo on 29 January 1973 registered a business name under the name and style of “Unity Salt Industries” in accordance with the provisions of the Registration of Business Names Act, 1962 (Act 151). The general nature of the business he aspired to carry on in the name which was thus registered was the production of salt at an unnumbered and unspecified and unidentified plot at Elmina. The business had already been commenced since 15 January 1973 before the registration of the name. According to Ellion Baidoo he did operate the said salt industry producing salt at Elmina jointly with one John Arzumah. He said they both acquired the land for the production of the salt from the Elmina paramount chief and they made a plan of the land in their joint names and submitted it to the Lands Department. The said John Arzumah denied acquiring the land in question jointly with Ellion Baidoo, and his evidence apparently supported by his grantors is that he acquired the land alone. With regard to the registration, he said in evidence that he instructed Ellion Baidoo who is his cousin to register the business name ostensibly as his agent and that he in fact employed

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Ellion Baidoo as the supervisor of his own business. He gave further evidence that he was in the police service when he commenced the work in the salt industry and he therefore sought the assistance of Ellion Baidoo to supervise it for him as Ellion Baidoo was at the time working in the salt industry for his stepfather at Lagoon Salt Industry which was contiguous to his own industry. According to the said John Arzumah, when he sought his assistance the stepfather terminated the appointment of Ellion Baidoo with the Lagoon Salt Industry and he therefore employed him at his own salt industry as a supervisor.

The undisputed evidence led shows that some time in the early part of June 1980, John Arzumah acting in the capacity he has thus asserted as the proprietor of the salt industry assigned his interest in the plot on which the industry was operated to Kojo Sam, the defendant-respondent in this appeal. The salt industry was operated on land which to the knowledge of all the parties belonged to the Edinaman and so Kojo Sam before completing the transaction consulted the Edina Traditional Council apparently to check up whether John Arzumah had indeed any interest in the land which he could legitimately transfer to him. The council invited John Arzumah and Kojo Sam to meet them on 22 December 1980 and at the meeting the council admonished John Arzumah for not paying arrears of rent on the plot in question. In effect, they accused him of owing the council the said arrears. Kojo Sam convinced by this confrontation with the land owners that John K. Arzumah’s interest was genuine and that he was their tenant paid the arrears on behalf of the said John Arzumah and the council on their part then formally transferred Arzumah’s tenancy apparently as a licensee with an interest to Kojo Sam. Prior to this John Arzumah, on Kojo Sam paying ¢20,000 to him in part-payment of the purchase price of his interest, had written a letter tendered as exhibit 2 and captioned

“Transfer Certificate” as follows:

“The Proprietor,
Unity Salt Industry,
P.O. Box A 8,
Cape Coast.
4 June 1980

TRANSFER CERTIFICATE

I hereby state that I am leaving the country for overseas to pursue further studies. On account of this I have thought it necessary to transfer my salt industry to one Mr. Kodwo Sam for new management.

Your co-operation on this issue will be highly appreciated.

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(Sgd.) John K. Arzumah
Mr. Kodwo Sam,
P.O. Box 183
Elmina.

cc: The Secretary,
Edina Traditional Council
Elmina.

The Officer-In-Charge,
Regional Lands Department
Cape Coast.

The Officer-In-Charge,
Ghana Customs and Excise,
Cape Coast.”

Kojo Sam in his evidence indicated that after he had made part-payment, the plaintiff, Ellion Baidoo, called on him one Monday in the company of one Quacoo, their uncle, and told him that he had an interest in the salt industry which he Kojo Sam was negotiating to buy from John Arzumah and he warned him that he should therefore not buy it. Kojo Sam asked Ellion Baidoo to call back on the following Wednesday to have his complaint looked into for on that day he was expecting John K. Arzumah to come to him. On the said Wednesday the plaintiff, Ellion Baidoo, did not show up at all although John Arzumah did call as expected. Later Kojo Sam paid up the balance making a total payment to John K. Arzumah of ¢45,000.

According to the evidence of John Arzumah, when he collected the first part-payment he informed the plaintiff and he paid over ¢7,000 to him because in the course of operating the salt industry he had authorized the plaintiff as his “front man” to obtain a loan of ¢4,000 from the Office of Business Promotion. The ¢7,000 was meant to be used as regards ¢4,000 in settlement of the Office of Business Promotion debt and the balance of ¢3,000 to be retained by the plaintiff for himself. John Arzumah’s evidence was that on the receipt of the balance from Kojo Sam, he had intended apparently as a generous gesture to give the plaintiff another ¢7,000 for himself, but because the plaintiff in his view contacted Kojo Sam surreptitiously without his knowledge, he got annoyed and refused to give him any further sum. It was because he was aggrieved by the conduct of John Arzumah in, as he sees it, selling the industry that the plaintiff, Ellion Baidoo, by his solicitors sued Kojo Sam claiming as indorsed on his writ the following reliefs:

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(a) A declaration that the purported sale to the defendant of Unity Salt Industry, Elmina is null and void and of no effect.

(b) An order setting aside the transfer certificate dated 4 June 1980.

(c) Perpetual injunction restraining the defendant, his agents and assigns from in any way interfering with the industry in question.”

It appears to me to be quite regrettable that the indorsement of the above claims on the writ of summons as well as the statement of the claim were drafted by learned counsel. Observe for example the statement of claim very carefully:

“1. The plaintiff and the defendant are both businessmen resident at Elmina and Cape Coast respectively.

2. On or about 29 January 1973 the plaintiff and one John K. Arzumah together registered a business under the name and style of Unity Salt Industries with the Registrar-General’s Department in Accra. The company was to operate salt industries in Elmina.

3. Some time in March 1974 the plaintiff took a loan from the offices of Ghanaian Enterprises Commission to run the industry and has since then been paying instalments towards the eventual liquidation of the loan.

4. In June 1980 the plaintiff had word that the industry jointly owned and operated by him and the said John K. Arzumah had been sold to the defendant without his consent or concurrence.

5. The plaintiff contends that in as much as the business belongs to both John K. Arzumah and himself the said John K. Arzumah could not unilaterally have executed a deed of assignment or transfer in favour of the defendant and therefore same must be declared null and void and of no effect.

6. The defendant, his servants and agents have entered the business in dispute and are rapidly extracting salt from the land to the detriment of the plaintiff.

7. Wherefore the plaintiff claims as per his writ of summons.”

A few comments on the legal propriety of the claims indorsed on the writ of summons will demonstrate the slovenly character and nebulous nature of the claims. Claim (a) for instance is for a declaration that the sale of Unity Salt Industry is “null and void and of no effect.” But by the law governing corporate and unincorporated .associations or companies the “Unity Salt Industry” is nothing but the name under which the registered proprietor, a single individual, chooses to trade.

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How on earth such registered business name can be sold is difficult to understand, having regard to the provisions of the Registration of Business Names Act, 1962 (Act 151). A business name under Act
151 is surely not a chose in action like a copyright or a patent for it does not satisfy Channel J’s classic definition of a chose in action in Torkington v. Magee [1902] 2 K.B. 427 at 430, where he said: “Chose in action’ is a known legal expression used to describe all personal rights of property which can only be claimed or enforced by action and not by taking physical possession.” (The emphasis is mine.) I am unable to understand what personal right of property anyone has in a mere name so as to sell or purchase it. Claim (b) is equally an untidy and vacuous claim. A letter written by one man to another concerning their mutual transaction and copied to three institutions is to be set aside by a court of law on the application of a stranger to the transaction. I confess I do not appreciate what possible purpose such a court order can be reasonably expected to accomplish nor do I think claim (c) should be dignified by any comment and I will ignore it completely.

Now to the statement of claim: paragraph 2 avers the business name Unity Salt Industry was registered by the plaintiff Ellion Baidoo and one Arzumah. If the draftsman of this pleading had with professional diligence looked at the certificate of registration, it would have been very obvious to him that the registration was made under the provisions of Act 151 and under that law two persons, it would seem, cannot be so registered and no two persons were, in fact, registered under the said Act. It is here necessary to observe that the certificate of registration which was issued by the registrar of business names on 29 January 1973 apart from stating that Unity Salt Industry as a business name had been registered with registration No. 34532 contained no other name indicating who the proprietor of the business name is. To find this out, any person dealing with the Unity Salt Industry must contact the Registrar of Business Names in order to peruse the particulars supplied on the statutory Form A filled by the applicant in accordance with the relevant provision of Act 151. If John Arzumah has not seen Form A but has had sight of the certificate, he could easily be deluded into thinking that the business name was registered in his name, if as he maintained at the trial it was he on whose behalf the registration was made. His subsequent conduct after the registration supports this probability, although his insistence on anonymity will detract from it without doing violence to his assertion.

With regard to paragraphs (4) and (5) of the statement of claim, it appears that the plaintiff is pleading that in partnership with the said John Arzumah, they had jointly carried on the salt business at least

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from 29 January 1973 until sometime in June 1980. It is amazing and regrettable that of [1987-88] 2 GLR 666-680. learned counsel could see fit to plead such illegal business transaction in contravention of sections 1 and 4 (1) of the Incorporated Private Partnerships Act, 1962 (Act 152) which provide that it shall not be lawful for a partnership to carry on business as from 1 April 1963, unless the partnership is registered under the Act.

John K. Arzumah in his evidence on oath alleged that he instructed the plaintiff, Ellion Baidoo, to register Unity Salt Industry for him. I cannot help feeling that there must be some element of truth in this allegation having regard to the plaintiff’s pleading that he owned the business name “Unity Salt Industries” with the said Arzumah. The particulars supplied to the Registrar of Business Names however show that legally Unity Salt Industry is the trade name of Ellion Baidoo alone and it had nothing to do with John K. Arzumah. It would seem however that this indisputable legal position is not how the parties and those who came in contact with them understood the status of the Unity Salt Industry. John K Arzumah in his letter, exhibit 2, written ante litem motam, addressed himself as “The Proprietor, Unity Salt Industry.” Furthermore the letter which the Edina Traditional Council sent to John K. Arzumah, exhibit 1 speaks for itself:

“EDINA TRADITIONAL COUNCIL
Omanhene’s Palace,
My Ref: No. ETC/ADAM/67
The Office of the Registrar

P.O. Box 70;
Elmina.
18 December 1980

Dear Sir,

GROUND RENT ARREARS—UNITY SALT INDUSTRY

The Council has just been informed of your sale of Unity Salt Industries to one Mr. Kodwo Sam, also of Elmina.

As a matter of urgency I have been asked to write you to meet the council on Monday, 22 December 1980 at the office of the registrar of the council at 9.30 am to discuss matters connected with the payment of arrears of ground rent during your term of operation of the above salt industries.

I am by a copy of this letter inviting Mr Kodwo Sam, the current proprietor of the Unity Salt Industries, to attend this very important meeting without fail.

Yours faithfully,
(Sgd.) A. Boadu
REGISTRAR

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Mr. John K. Arzumah,
Unity Salt Industries,
P.O. Box A8
Cape Coast.

cc: Mr. Kodwo Sam,
P.O. Box 183,
Elmina.”

Clearly the traditional council was under the erroneous impression that John K. Arzumah was legally the proprietor of Unity Salt Industry.

One very significant fact is that the plaintiff, Ellion Baidoo, accepted the evidence of John K. Arzumah that there was no agreement whatsoever between them as to how the salt industry was to be run, although he maintained that they ran the salt industry jointly apparently as partners. The questionable facts which the said plaintiff adduced orally as evidence in support of their joint effort would seem to have mesmerised the learned judge and under its seductive influence so to speak, he was completely suborned to accept that worthless oral evidence in the face of contrary documentary evidence emanating surprisingly from the plaintiff. In his judgment the learned judge in an appraisal of the evidence led which is remarkable for its self-evident contradiction but which he inexplicably overlooked said:

“One Kwame Essuman was called by the plaintiff and he describing himself as company inspector from the Registrar General’s Department tendered a photocopy of the certificate. It was marked exhibit B. It was certificate No. 34532. It bore the names of the plaintiff and the said John K. Arzumah. Witness also tendered exhibit C which is a certified copy of an application on Form A. It also bore the names of the plaintiff and John K. Arzumah.”

These are unfortunate findings engendered by faulty observation. The exhibit B mentioned in the judgement which is now with this court has neither the name of the plaintiff nor that of John K. Arzumah and it is difficult to understand how the learned judge with the exhibit in the custody of the court could say otherwise without referring to the exhibits which were in evidence but he depended rather on the clearly very false evidence given by the plaintiff. Exhibit C has also only Ellion Baidoo’s name seeing that he filled and signed the Form A. John K. Arzumah’s name is equally nowhere in exhibit C. And there is a good reason for his name not appearing in exhibit C. This is because his instruction as he deposed to in evidence was that the registration should be done for him by Ellion Baidoo acting ostensibly as his “front man”. In my view the documentary evidence given by the plaintiff,

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Ellion Baidoo, supports the position taken by John K. Arzumah that there was no partnership between them and undermines the plaintiff’s mendacious allegation perilously amounting virtually to perjury that there was one.

They of course did work together with income earning in view and counsel for the plaintiff put forward the proposition that although the plaintiff is maintaining that they were joint owners of the business working together obviously for the purpose of profit, he insists nevertheless that they were not necessarily partners. He cited for this proposition Mensah v. Adu [1965] G.L.R. 198. Having regard to the fact that the plaintiff took the false position that in concert with John Arzumah he registered a joint venture under Act 151, when in fact he did no such thing, I am unable to understand this argument. In this connection it seems to me that it must be remembered that the suit in Mensah v. Adu (supra) which in any case is not helpful to the plaintiff was commenced and indeed decided on a state of facts which arose in 1959, long before the passing in 1962 of Acts 151 and 152. The definition of partnership for instance proffered by Ollennu J.S.C. in the said Mensah v. Adu (supra) at 205 is now no longer good law having regard to the provisions of sections 1, 3 and 4 of Act 125. In the law of Ghana the subsisting general definition with a few exceptions not relevant to this case is that a partnership means the coming together of at least two but not more than twenty individuals with no body corporate as a member, in an association constituted and statutorily registered on or after 1 April 1963 for carrying on business jointly for the purpose of making profit. Leaving aside the element of registration in the new Ghana concept, I have no doubt that the evidence of the plaintiff if accepted will quite clearly satisfy this definition of partnership pending registration. The evidence of John K. Arzumah however which was given for the defendant if accepted will only make the plaintiff an agent for, but not a partner of, the said Arzumah in all transactions which he undertook on behalf of the salt industry. The relevant characteristic of the relationship of Ellion Baidoo the plaintiff with John Arzumah, will then be the well-known status of a principal and his agent. In this case, in his dealings with some officials, the identity of John K. Arzumah was not disclosed; his reasons for non-disclosure or having his identity suppressed being that as a policeman he was not permitted by the government to do work outside the police service. We are therefore faced with the common law principle of the undisclosed principal which in contemporary Ghana conditions is often referred to in no complimentary terms in local parlance as “front man.” Where the principal is not a public officer and there is no statutory provision in respect of his status I apprehend his position is in no way complicated

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at all and it is very clearly that of an undisclosed principal simpliciter and the consequences of the relationship are traditionally acceptable to the common law. In the instant case the judge after hearing all the witnesses accepted the stand of the defendant as against the plaintiff that the business belongs to Arzumah and made firm findings consistent with this view which I am not disposed to disturb. This is because he had sufficient and quite overwhelming evidence to persuade him to come to the conclusion he came to in spite of the hypnotic spell cast on him by the effect of exhibits B and C. In this connection this is how he resolved the conflicts in the respective cases of the parties:

“On the totality of the evidence so far, the court is not persuaded by the plaintiff that the salt industry was owned jointly by him and J. K. Arzumah. The pieces of evidence, mainly the fact that plaintiff ‘s name appeared on exhibit A, B and C, in my opinion are not conclusive or even sufficient proof of his claim. In any case Arzumah in both his evidence-in-chief and under cross-examination satisfactorily explained why he permitted the plaintiff’s name to appear on those documents. In effect he said he was using the plaintiff as a “front man” or agent in view of the fact that at the time he, Arzumah, was a public officer, to wit a policeman. The practice whereby public officers in this country engaged in private business by the use of front men or agents is not unknown or uncommon. The practice is neither unlawful nor illegal except that, if discovered, it may attract the wrath of the officer’s employers depending upon the terms and conditions of his employment.”

I do not doubt that as a front man, Ellion Baidoo , the plaintiff, did some work for John K. Arzumah. I do not feel called upon however to decide whether as a front man as distinct from a partner after John K. Arzumah had sold out the subject matter of their common concern the plaintiff, Ellion Baidoo, would be entitled to remuneration on the basis of quantum meruit on the principle canvassed by Baron Alderson in De Bernard v. Harding (1853) 155 E.R. 1586 at 1587, where he said:

“Where one party has absolutely refused to perform, or has rendered himself incapable of performing, his part of the contract, he puts it in the power of the other party either to sue for a breach of it, or to rescind the contract and sue on a quantum meruit for the work actually done.”

This view of the law has the support of Lord Wright in the House of Lords in Luxor (Eastborne) Ltd. v. Cooper [1941] A.C. 108 at 140-141, H.L. I have touched on this aspect of the matter and I hope not unnecessarily because it seems to me the learned judge must have had this principle in mind when in his judgment he said:

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“It is my opinion that even if the plaintiff had any enforceable rights in the industry ... and ... if he had ‘some financial interest in the industry’ the proper person he should go to is Arzumah and not the present defendant.”

It is very clear however that John K. Arzumah was at all material times a policeman; section 17 (e) of the Police Service Act, 1970 (Act 350) applies to his business ventures outside the police service. The section provides: “It shall be misconduct for a police officer… to engage in any gainful occupation outside the Police Service without the consent of the Inspector-General of Police.” The learned trial judge held that John Arzumah’s conduct in engaging in the salt industry “is neither unlawful nor illegal.” What is the true legal position? In Affail v. The Republic [1975] 2 G.L.R. 69 at 82, I also dealt with this question when I considered the comparative provision in section 26 (e) of the Civil Service Act, 1960 (CA 5) and I came to the conclusion not dissimilar to that of the learned judge that since the provision makes the action of the relevant officer a misconduct only, but one which with the necessary consent would be innocuous, the legislative intent is that the act is not in itself unlawful. By the same parity of reasoning, I hold that the use of a so-called “front man” by John K. Arzumah to avoid the disciplinary sanctions of Act 350 is not inherently unlawful and I therefore agree with the conclusion of the learned trial judge that his conduct is neither unlawful nor illegal.

One aspect of this case which has however given me grave concern is the alleged instruction by John K. Arzumah to Ellion Baidoo to register the business name for him by apparently not disclosing the fact that he was merely registering it as an agent. It would seem that he was in the said circumstances merely deputising for Arzumah and he was therefore a sort of surrogate, his failure to disclose must be referable to the probable understanding that John K. Arzumah as a police officer was reluctant to disclose his identity in any official document. If the present dispute had been between Ellion Baidoo and John K. Arzumah, I would have felt compelled to examine the question more closely. As against a person in the position of the defendant, Kojo Sam, who took a proprietary interest in a business without notice of any peculiar legal claim or any “front man” dealings, I do not feel disposed to consider the question since its resolution would not seem to be relevant nor serve any useful purpose. Moreover, my meticulous reading of the whole of Act 151, revealing as it does as Coussey J.A. put it in Arejian v. Suleman (1952) 14
W.A.C.A. 201 at 202 that a business name is nothing but “a mere expression [of] a trade name”, convinces me that I better leave that matter alone for the appropriate time and relevant occasion when its resolution will help to advance the course of justice.

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With regard to the substantive reliefs which the appellant claim it seems to me that a long line of authorities is against what he is in effect claiming, namely that the contract of sale entered into between Kojo Sam, the defendant, and John K. Arzumah should be declared null and void because it has ignored his interest. He concedes of course that John K. Arzumah has an interest in the salt industry. Indeed the overwhelming evidence is that it was John Arzumah who rented the land from the Edina Traditional Council, the landlords, and with their consent, he has assigned his interest to Kojo Sam. There is no deed of assignment as pleaded by the plaintiff. All what has happened is that the land owners with the consent of their tenant have taken a new tenant by a new agreement.

Can a stranger to this transaction ask a court of law for rescission of such an agreement? Is it the legal position that a person with an interest admittedly conceded by all to exist can for the reasons advanced by the plaintiff be prevented by the judicial process from assigning his interest? Viscount Simonds has answered these questions. In reading his judgment in Scruttons Ltd. v. Midland Silicones Ltd. [1962] A.C. 446 at 467 he adverted to the applicable principle and in effect answered these questions in a case in which the appellants had argued that although they were not parties to the contact, the subject matter of the suit which the respondents had entered into, nevertheless they had interest and so they could sue on the contract to enforce their interest. In reacting very sharply to the claim contained in this argument, Viscount Simonds in his usual dominating and well-known devastating style approving the respondents’ submission to meet this argument of the appellants, cited the famous views of Lord Haldane in Dunlop Pneumatic Tyre Co. v. Selfridge and Co. Ltd. [1915] A.C. 847 at 853, H.L. and said in affirming the lower courts decisions:

“Learned counsel for the respondents met it, as they had successfully done in the courts below, by asserting a principle which is, I suppose, as well established as any in our law, a ‘fundamental’ principle, as Lord Haldane called it …. an ‘elementary’ principle, as it has been called times without number, that only a person who is a party to a contract can sue upon it. ‘Our law,’ said Lord Haldane, ‘knows nothing of a jus quaesitum tertio arising by way of contract’. Learned counsel for the respondents claimed that this was the orthodox view and asked your Lordships to reject any proposition that impinged upon it. To that invitation I readily respond.”

The lucid and brilliant Lord Reid aware of the exceptions to the principle which are not germane to the present case softened Viscount Simonds hard line. Quoting Tweddle v. Atkinson (1861) 1 B & S 393 at

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398 and the Dunlop case (supra) he said in Scruttons Ltd. v. Midland Silicones (supra) at 473, H.L:

“Although I may regret it, I find it impossible to deny the existence of the general rule that a stranger to a contract cannot in a question with either of the contracting parties take advantage of provisions of the contract, even where it is clear from the contract that some provision in it was intended to benefit him. That rule appears to have crystallized a century ago . . . and finally established in this House . . . There are, it is true, certain well-established exceptions to that rule though I am not sure that they are really exceptions and do not arise from other principles.”

A fortiori in this case where there is no provision whatsoever reserved in the contract for the benefit of the plaintiff his action in suing to have the contract to which he is a perfect stranger set aside is quite wrong.

In my opinion, the plaintiff, Ellion Baidoo, who is the appellant in this case, is not entitled to sue on a contract of sale when he was not a party to that contract, and since the reliefs he seeks are all founded on the said contract, his action must necessarily fail. I will on that ground dismiss his appeal.

But assuming without conceding that I am wrong in the view I take of his status and it is possible by some form of legal argument to hold that he is in partnership as a joint owner of the business called Unity Salt Industry, then in such a case the real question is, what is the evidence led to establish his claim as a partner whose interests have been jeopardised? In his statement of claim paragraphs (2), (4) and (5) he indicated clearly as I have already pointed out that he registered a partnership of himself and John K. Arzumah. The document he produced in proof of this registration contradicted his oral evidence and shows that the registration is not in their joint names; on the contrary he alone merely registered a business name under Act 151 which is usually restricted to the activities of one individual. For plurality of persons not exceeding twenty registration must be under Act 152 not Act 151. By section 1 of its provisions Act 152 came into force on 1 January 1963, so this date must be taken to be its commencement date. Now under section 4 (1) of Act 152 it is provided as follows:

“After the expiration of three months from the commencement of this Act, it shall not be lawful for a partnership to carry on business unless the firm shall have been duly registered in accordance with section 5 of this Act and not struck off the register ... under this Act.”

The plaintiff therefore, since his alleged partnership was not registered, is in effect claiming that he was engaged in illegal business

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with one John K. Arzumah and wants the aid of this court to help him assert his rights under the said business. I do not think it is proper for this court to lend its support to a party in the position of the plaintiff who by his own pleadings has alleged that the foundation of his claim is tainted with illegality. The rule is ex turpi causa non oritur actio. Lindley L.J. in Scott v. Brown, Doering McNab & Co. [1892] 2 Q.B. 724 at 728 stated the principle in this resounding language which would seem to cover the facts of this case with commendable prophetic perspicacity when he said:

“No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality.”

I am persuaded by the evidence led in this case, to take the view that the appellant as the plaintiff in the court below is by his own admission a participant in, and founded his action on an illegality; on the other hand the respondent and his predecessor in title, John K. Arzumah, have made no admissions whatsoever which will compromise their claim as persons engaged in activities which are not unlawful. In any case they have not on the evidence been implicated in or infected by any illegality, for the documentary evidence tendered by the plaintiff clearly exonerates them from the plaintiff’s accusation that Arzumah was in an illegal partnership business transaction with him.

The appellant it seems to me is quite clearly the only person in the circumstances caught squarely by the Lindley prohibition enunciated in the Scott case (supra) and therefore for all the reasons I have advanced in this judgment, I will dismiss his appeal with costs.

JUDGMENT OF OSEI-HWERE J.A

Osei-Hwere J.A. I agree

JUDGEMENT OF ESSIEM J.A

Essiem J. A. I also agree

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