RAMIA vs. CHIAVELLI AND ANOTHER [1967]DLHC1534

Date	1967-12-13
Suit No.
Citation No.	[1967]DLHC1534

AMISSAH J.A.

HEWARD-MILLS FOR THE PLAINTIFFS.

G. DJABANOR FOR THE DEFENDANTS.

[1967]DLHC1534
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													<main id="main" class="content" style="min-height: 60rem" >RAMIA <o:p></o:p>vs. <o:p></o:p>CHIAVELLI AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 737<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
13 DECEMBER
1967<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

HEWARD-MILLS FOR THE PLAINTIFFS.<o:p></o:p>

G. DJABANOR FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
plaintiff brought this action against the defendants claiming the sum of
N¢134,000.00 plus interest as money received by the defendants for the
plaintiff’s use. According to the plaintiff’s statement of claim, he paid to
the defendants at the request of the first defendant the sum of N¢150,000.00
against the supply of goods to be imported into Ghana in the name of the second
defendant company. The defendants supplied no goods except some paints to the
tune of N¢10,000.00 which were unsaleable in Ghana. It is not clear from the
pleadings whether account is taken by the plaintiff of this supply of paint.
What is clear though is that the plaintiff’s claim is for the N¢150,000.00
alleged to have been given less an amount of N¢16,000.00 which is described as “amount
received.” Whether the receipt was in cash or kind is left unsaid.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants entered an appearance to the plaintiff’s writ. Thereafter the
plaintiff applied to the court for final judgment under Order 14 of the Supreme
[High] Court (Civil Procedure) Rules, 1954 (LN 140A). The first defendant filed
an affidavit in opposition. In this he made no denial of the plaintiff’s basic
claim that they had been paid money for goods the bulk of which had not been
delivered. He claimed on his own behalf and on behalf of the second defendant
company of which he was the local manager, to have a valid defence to the
action. But from what I can gather from the affidavit this defence is founded
on an account which the first defendant said the second defendant had with the
plaintiff. The first defendant himself disclaimed personal liability on the
ground that he contracted with the plaintiff in his capacity as the local
manager of the second defendants. The transaction between the parties, the
first defendant said, mainly took place in Modena in Italy where all the
account books relating to the transaction were. He had, since the writ was
served on him, cabled for them to enable him to file his defence.<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of the summons for judgment, learned counsel for the defendants said
that he was not in the position to oppose part of the plaintiff’s claim which
amounted to N¢58,000.00. Judgment was given to the plaintiff for that sum. As
to the remainder of the claim, both counsel were agreed that the amount to be paid
depended upon the interpretation of a document which, then being in the Italian
language, required translation. The question as to that portion of the claim
was therefore adjourned pending transaction of and argument on the document.<o:p></o:p>Now Mr.
Djabanor for the defendants has asked that the judgment of the court for the
agreed sum of N¢58,000.00 be set aside on the ground of illegality. The
illegality, it is said, lies in the fact that the original contract for the
sale of goods was set aside by the parties and a new contract, subject to
Italian law, made when the plaintiff agreed to accept cheques from the
defendants in Italy in discharge of the debt to him. And that this new contract
is unenforceable in Ghana as it infringes the provisions of the Exchange
Control Act, 1961 (Act 71). Apparently after the plaintiff had waited in vain
for his goods in Ghana, he pursued the first defendant to Italy where the
latter had then gone and demanded his money, whereupon the first defendant gave
him a number of cheques drawn on Italian banks. These cheques however, were
dishonoured upon presentation.<o:p></o:p><o:p>&nbsp;</o:p>There is
no doubt that the courts will decline to aid a plaintiff to an illegal
contract. And that this will be done even if the defendants are equally in the
wrong. The principle was stated with great clarity as far back as the
eighteenth century by Lord Mansfield in Holman v. Johnson (1775) 1 Cowp. 341 at
p. 343 when he said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
objection, that a contract is immoral or illegal as between plaintiff and
defendant, sounds at all times very ill in the mouth of the defendant. It is
not for his sake, however, that the objection is ever allowed; but it is
founded in general principles of policy, which the defendant has the advantage
of, contrary to the real justice, as between him and the plaintiff, by
accident, if I may so say. The principle of public policy is this; ex dolo malo
non oritur actio. No court will lend its aid to a man who founds his cause of
action upon an immoral or an illegal act. If, from the plaintiff’s own stating
or otherwise, the cause of action appears to arise ex turpi causa, or the
transgression of a positive law of this country, then the Court says he has no
right t</main>