SCHANDORF vs. ZEINI AND ANOTHER [1976]DLCA440

Date	1976-05-17
Suit No.
Citation No.	[1976]DLCA440

AMISSAH J.A

SOWAH J.A

KINGSLEY-NYINAH J.A.

C. HAYFRON-BENJAMIN (WITH HIM BOAKYE) FOR THE APPELLANTS.

JOE REINDORF (WITH HIM SOTORMEY) FOR THE RESPONDENT.

[1976]DLCA440
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													<main id="main" class="content" style="min-height: 60rem" >SCHANDORF<o:p></o:p>&nbsp;vs. <o:p></o:p>ZEINI AND ANOTHER<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 418<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 MAY 1976.<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">

C. HAYFRON-BENJAMIN (WITH HIM BOAKYE) FOR THE
APPELLANTS.<o:p></o:p>

JOE REINDORF (WITH HIM SOTORMEY) FOR THE
RESPONDENT.<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, SOWAH AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>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 opponent. Considering the source from which
it comes, it is a bold complaint to make to a court. Ironically, the cause for
the application of the rule they invoke, if indeed that rule is appropriate to
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 they 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.<o:p></o:p><o:p>&nbsp;</o:p>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 the 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, ex turpi
causa non oritur actio and in pari delicto potior est conditio defendentis. 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.<o:p></o:p><o:p>&nbsp;</o:p>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 of ¢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 furtherance to this agreement, paid ¢11,000.00 to the
appellants by 22 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
apellants ¢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, 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.<o:p></o:p><o:p>&nbsp;</o:p>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. The appellants admitted the payment of ¢11,000.00. They
said this</main>