yeah so just before we start discussion of illegal public policy uh let me remind you of one particular case i asked you to read in classroom uh as part of our discussion of duress influence i'm referring to the case of a humans and coffee emancipate is reported in 1996 97 supreme court of ghana law report page 596 let me put it here before we come let me put it here create a listing to write it here remind some coffee report five nine six yeah so as i said it's in connection with the wood duress i know an ability yes uh yeah so this is supposed to be an addition to what we've been discussing the incredibles i told you uh humans and coffee it's not about delight you are disgusting i'm talking about dress there was an old man about the 68 year old engineer who was a good hunter he had uh purchased building materials on credits and he was not his creditors or suppliers uh some of the uh creditors lost a complaint against him and he was arrested detained in police sales for two months but before they even arrested him and detained him he had actually arrested his son because they were looking for him you know they arrested the son and detained his son for four days and eventually when the father came forward then they arrested the father and then they released their son and why the father was in police custody the police threaten and pressurize him sell his house in order to raise money to pay his creditors so he agreed and they arranged for a buyer to buy the house and money was raised they were able to get to uh pay off the virus creditors and he was subsequently released from police detention to his creditors now soon after his release he brought a nation in the high court accra claiming reliefs among other things that the sale of his house should be set aside as being reality on the grounds of the rest and uh there of course the purchaser or certainly the purchaser also uh argued a air defense that uh the man that is uh engineer have perpetrated fraud and all that but eventually when the mata uh travels through the various uh layers of the court and it got to the uh [Music] the supreme court gave a very important explanation on how this particular area of the law uh works i'm talking about like the race and for example uh if you look at the ho d1 and of course it was the uh that's is aqua uh as he then was you can literally give us a primitive justice who gave the lead judgment it's a very short judgment i would like you to read just from page 300 to page 609 so just let's say just about 11 10 so that is not anything that you have to uh be scared of this there will be this yeah so for example the one uh quote originally duress as a common law concept was based on threats of criminal activity it consisted in violence with a person or threats of violence or imprisonment whether actual or threatening the present position to be capable of giving rise to the group the threats must be illegitimate either because what was threatened was legal wrong or because the threat itself was wrongful because it was controlled the public policy the question now to be asked was it has been question of will which will be its consent on the first of the instant case the contract for sale of the plaintiff house was procured through duress by the police and it could not therefore be enforced now uh you see what we are learning from the supreme court decision is that it does not matter that the press was not treated by the other contract if we look at this in the circumstances of this case uh more or less it was the police that were the protagonists as far as the intimidation or the duress which made uh the man to agree to have his house soon nevertheless uh the court was uh prepared to hold that the transaction had been initiated by dress and in fact if i may put the direct words of this is aqua speaking for the court quote in determining whether there was a question of will such that there was no true consent it is necessary to inquire whether the person allowed to have dead or did not protest whether at the time he was regularly quest into making the contract he had no real opportunity but to agree whether he was independently advised and what happened in two steps to avoid it all these matters are as was recognizing relevant and determined whether he acted mentally or not the entire negotiation and subsequent sale of plaintiff's house was a handiwork of the police achieved through the unlawful arrests of the plaintiff and his son coupled with the naked show of unlawful face force and pressure exert printed at the time he was unlawfully incarcerated in their cell contact or transaction procured under circumstances offends all civilized notions of justice and fair play and cannot be unfolded yeah so if you look at uh justice akkas uh uh victim uh i see then was you notice that uh he's using west which lost common uh use explaining uh the risk in power on against la yulong yeah so i will find that you read the entire uh judgment yeah okay so those who have just joined us and certainly we have some guests uh who are joining us and we would like to welcome them into our class if i say guess we have people who are trying to refresh their memory on things that they learn in law of contract class some years ago and they've already graduated getting ready to write a law school and transformation so they uh some have joined us in this classroom uh that matter let us compose ourselves very well and we like to welcome all those support to this afternoon's class as i said the business for the day is discussing illegality and public policy and as i always do this is a topic which has been uh treated very well by my former teacher mrs duna uh in her book so chapter 11 of her book uh is the very criteria which i would like you to read and in fact is essentially the same thing that we were taught by hair one where students in 19 as in 98 [Music] okay so having said that uh as far as illegality and public policy is concerned uh we will have to understand a certain introductory matter to serve like the contest for our discussion then having done that we will look at contracts which are illegal at common law and i will look at the consequences of illegality then we'll look at contracts which are void at common law contrast protected by statutes so these are the things that we want to be discussing so just before we move further to look at the details of some of these principles it is important for us to [Music] appreciate that when we are talking about when we are talking about the illegality uh we have to remember that there is a subtle position of the lord that the court will not enforce or uphold an agreement or contract which is illegal or control to public policy that is to say that all the elements of contract may be present we have offer and acceptance with evidences agreement intentions to create legal consideration where it is a simple parole contract uh we have certainty of terms there is genuineness of consent in the sense that uh there is absence of uh factors such as mistake misrepresentation uh the rest of new influence and all that nevertheless the cuts may still not enforce such an agreement the reason being that the agreement might have been concluded control to the requirements of the law or it is controlled to requirements of public policy and of course uh we know uh has to pass a non-original action that illegality or a base act cannot be the basis of a cause of action or cannot give rise to an enforceable right so therefore the court will not allow the recovery of benefits confed under such our contract that is the general position that we have to uh keep in mind and of course this is also a very good uh uh what you call the exception to the principle of freedom of contracts right because freedom of contract we often tend to think that the parties have autonomy their liberty to enter into whatever country that they deem fit however where it comes to illegality and public policy the parties do not have a freedom to enter into any transaction we're there to do that they will be disappointed in the sense that the court will not assist them to enforce their illegal transaction or transaction buddhist control to public policy so we need to keep that in mind so we will look at some contrasts which are illegal at common law in other words contracts which are are considered illegal at common law and these include a contract to commit crimes or several wrongs if you intend to contact with someone to commit a friend to go and kill someone to go and rob someone to go and rip someone or hug someone and have liberty to the person or to even commit several wrong that is illegal for example if we take a contract if you enter into contract with someone to defame another person right to go about peddling lies or falsehood which will tarnish or will enjoy the reputation of another person that is also a contra that is a illegal common law and again another illegal uh contract as far as commodore is a contrast promoting sexual immorality so when you conjure which promotes sexual morality for example if you enter into contact with some people to uh acts for purposes of recording or pornographic movies that promote sexual morality or maybe commentary assess right in our part of the jurisdiction commercial access is still not uh legalized and for that matter if you entered in the country with somebody to have access to his or her body and he or she uh no did not comply with something like that you cannot enforce it in court and three contracts promoting corruption in public life contrast promoting corruption in public life if there is uh any with seeks to ensure that certain things take place control to lay down procedures in the public order that is illegal and again contrast pre-judicial to administration of justice so if you enter into contract with anyone to try and enable another person to get certain advantages in dispensation of justice that is illegal at common law then contrast prejudicial to the interests of the state if you enter into contract which for example uh seeks to say that support the government or if you can assassinate someone and so on all those things are illegal so we take some of these things one after the other and see a few words quickly about them so contrast to uh commit crimes or civil wrong so by here what you mean is that where the purpose of the continent between the parties is to commit a crime or thought or fraud against another party certainly that contract is considered illegal and for that matter unenforceable and if you look at the case of a alexander racing the point has made that such a contract would not be enforced so in alexander and reason the plaintiff alexander entered the contract with the reason by which uh the agreed rent was split in the two parts the aim was that one part of the agreed rent will be declared as rent and the other hat will not be declared as rent but to be declared to be for services to the flat consent the ultimate objective was to reduce the system for rubies that is the the targable you know rate or the the rate or the task which they have to pay so you are trying to if you like uh adwords the the the revenue collectors and it was all that uh since the plaintiff intended to use the lease and service agreement and illegal purpose the plaintiff could not enforce either the lease or the service as it were again the case of foster and briscoe a country to commit crimes or several wrongs which certainly include the contracts to interfere with regulation of foreign countries so if you have like a contra which or seeks to enable another person to breach another country for example such a contract is illegal because countries are supposed to get very well and if you take ghana for example it's part of our directive principle of state policy as well as the article 73 of the constitution that there should be ghana should be a responsible international community and have a good relationship with our countries and for that matter the course of ghana will not assist a person to enter into transaction which would undermine the legal remains of another country so for example if you look at the case faster against a dress code the parties entered into a contract by which they intended to load their ship cargo of whiskey to be carried across the atlantic uh and later on it will be smuggled into the the us and this was controlled to the the regulations of the countries involved and the court held that the object of the agreement was a violation of the country an agreement was therefore control towards public policy yeah so if you entered the contract committed a crime civil wrong or a fear with regulation of another country that would be deemed as illegal and unenforceable uh contrast promoting sexual immorality we have talked about it that uh if there is any contract we seek to promote sexual morality same will be held to be illegal in a well-known case is a case of a ps and the case of p.s and brooks very interesting and in peers and groups there plaintiff are a firm of article like the builders of a coach agreed to let a coach out on a high to a prostitute brooks and they knew very well that the prostitute using the the coach for her business as a prostitute so eventually when the prostitute failed to pay for the high builders on the plaintiff sealed hair to recover the court held that they could not recover the higher charge because the contract was the public policy as it sought to promote sexual immorality and i'm sure you have heard of lord malice in his famous ways concerning how public policy is like an uh universe and once you have stride on it you don't know where it will take you now if you look at uh a portion of the judgment of the lord pollock from uh yes and uh i'm broke at psn brook uh it's very instructive so let us code portion of it for a deeper reflection i have lord i have always considered it as settled that any person who contributes to the performance of an illegal act by supplying with the knowledge that it is going to be used for that purpose cannot recover the price of the 10 source of life nor can any tension be made between an illegal and the rule which is applicable to the matter is s to p a non-original action no action arises from a base or wrong focus and whether it is an immura or an illegal purpose in which the plaintiff has participated it comes equally within the terms of that muslim and the effect is the same no cause of action can arise out of either the one or the other unquote yeah so uh we have to note how zero the common law views a contract who seeks to promote uh immoral contract well you can also look at the case of an upfield and then the very interesting case the plaintiff through his agent uh letter flat and landing to the defendant an unmarried woman a single a woman i'm just like a lot of the female students they're all single the agent knew that the defendant was the mistress of a certain man and he assumed that the rent would be paid as a result of her being a kept woman that is to come from the man whose mistress he was eventually the plaintiff's agent gave the defender notice to quit the defendant failed to pay the rent for the last half year of the tenancy and then they produce you for the rent which was still owed to him it was held that the plenty was not entitled to recover the rent because the flat was left for immoral purpose but of course don't assume that when you go and rent a flat or something and they are demanding rents you try and arrange and create that the the premises was being used with purpose so you go that you are dragged to cut you try to set up facts which will support that in order to take advantage of some of this case law i think that would be inappropriate so i'm not suggesting to you that you should do that then we we've also mentioned agreements would promote corruption or inefficiency and this will mean maybe contract for the sale or purchase of public offices you want appointment public office instead of going there on merits then be money you pay your way through your bribe or you need certain honest maybe certain uhness or awards which are conferred on as a result of marital services and don't you know that and you decide to the system uh so in the contract we seek to uh let that's uh seek to encourage corruption in pub for that matter the common law uh from that and that is why the case of uh parkinson's against the ambulance limiting inheritance uh can parkinson was told by harrison the secretary of the defendant charity that is a college of ambulance limited inheritance in that the charity will arrange for high to be granted a knighthood a knighthood is like a honor just like ghana we have like the order of the voter the highest order in things like that so a similar thing uh this person wanted to be knighted we wanted a knighthood so he said okay if we made a substantial donation i will put the list of those who are going to be confirmed with knight to so harrison uh told parkinson of the charities patronage that is to say that if you are putting your money in this charity if you know that you are putting your money in something which is closer to the the the throne that is the the king of england the queen of england uh is a patron meaning that it's inclusive to uh corridors of power so it's a good team so parkinson paid three times to the college of ambulance when understanding that you receive an item promised further payment to the charity in the future when parkinson did not receive a night he realized that he had been duped he brought a machine against the charity to recover back the money that you have paid so just if you go to quarantine are you going to tell the court we tell the court that i paid 3000 understanding that was going to be midnight but if not made me the night so please help me to get my money back so that was the kind of confusion and embarrassment which parkinson found himself in so the court held that the contract was for the the of the title invader mata it was controlled to public and was an illegal uh uh contract despite the fact that the plaintiff had been defrauded yes he knew that he was entering into an improper agreement and he could not recover back the money he had paid nor could he recover damages from the charity or his secretary you enter into agreement with someone who says that i'll get the visa for you right i get a visa for you and so on uh now you should know that uh such a contract if is not kept by the other side you're going to cut you're going to be faced with the the reasoning in some of these kids law which i'll be looking at because you are trying to promote corruption you are trying to encourage violation of laws concerning how certain matters are attended to maybe let's uh cite uh the case of ocanti and quadi which is a very interesting uh the case of uh uh or county and part day uh ocanti acquired 1975 juan ganilo report 193 a very uh interesting case which is a similar to the reason in the parkinson's case which we have discussed but i will uh leave you to to read that but just to re-emphasize that it's just on the same force with what we are discussing that where you enter into a contract uh which uh or encourage or promote inefficiency or corruption in public life i say unenforceable so you can uh look at that at page 254 of mrs unharmon's uh book as well then contra pre-judicial to administration of justice uh we've explained that that where you enter into contractual arrangement uh seeking to either prevent wisdom maybe like someone you're going to be prosecuted you try to uh enter into arrangement with someone maybe the prosecutor or those who have the power to make the decision that well uh if you do s why is it uh then don't prosecute me i'm going to pay this money and win so that one is a regret is brilliant administration of justice so therefore when police have arrested you they have investigated they have charged you and you're going to be arrested and you try to enter into contract with the prosecutors or those who are in charge of the the state department that is our twin general's department and not too long ago you heard of like the case of one uh at the state attorney in some way at the tamale or burger concerning a transaction which can be characterized as a transaction pre-judicial administration of justice in the sense that it was seeking to prevent a person from being prosecuted for a crime and which he or she had been charged as it were or where you enter into contract and you promise to give false evidence in criminal proceedings that is also illegal where you try to take a bribe or anything and say that well we are going to give a certain testimony for the purpose of helping the prosecution or for the purpose of a helping accused to actually escape and to actually escape the long arms of the law that is a liga so uh we can the number of pieces uh which uh illustrates that we can look at the case of r and andrews uh the defendant witnessed a traffic accident between the motor car and the mopt and as the result which criminal proceedings against the car driver were contemplated the defendant invited the car driver to pay him to give false evidence at the prospective prosecution and the driver offered him a sum of money but no bargain was in fast track so the defendant was convicted on the charge of inciting the motorists to prevent the cause of justice i mean in the case of a care and layman a similar thing happens in contracts which are prejudicial to the interests of the states are also illegal and non-enforceable here an example is to be cited let's suppose that ghana is at war with another country or ghana has declared certain countries as its enemies now where you for example try to enter into contract with citizens or residents of the enemy or you decide to do any form of trading with them that is a contract pre-judicial to the interests of the state and a very good illustration is the case of the ragazoni means kissing section limited an ordinance uh had been issued by the government of india during the colonial time and same prohibited the taking of goose out of india if they were any part of south africa don't forget that south africa was practicing serious form of apartheid and all that and uh india like many other countries did not like it our intended to be taken to south africa despite being initially the same for another country kc satya limited an english company agreed to sell and deliver to policino ragazzoni five hundred thousand bar subjects now the knowledge of both contracting parties the jute was to be shipped from india to january so that it might there be resource to a south africa buying agency in contravention the indian ordinance the company that is the kc satya limited failed to deliver the jute and policino has only claimed damage is an english court for breach of contracts uh kc center limited that is the company defending the action making the argument that the contract was to policino's knowledge an illegal contract and therefore unenforceable as uh it breached the indian ordinance and was also harmful to the interests of the states well eventually when the mata made its way to the english apes cause the house of laws uh the court held that as a matter of public policy the contract was not enforceable in england and these performers who will have as the parties were well aware doing an act in a friendly foreign country which violated the law of that country yeah so uh just trying to say that uh if we take uh england at the time very friendly country so if india had a policy that he did not want to have any commercial dealings with the south africa because of its apartheid uh policy or inaudible the english court did not consider it appropriate that it will encourage contractual arrangement which seeks undermine interests of uh the state what is the interest of the city the interest of the state here is that it wants to keep good relation with his friendly nations this friendly nation had a law which prohibits trading with a certain third country south africa in this particular case so that was the point the court was trying to make now so what happens where is established that there has been illegality the contract was as a result of uh illegality well as far as the consequences or the legal effect of illegality is concerned we need to appreciate that depend very much upon whether the contracts was illegal at the very inception or the illegality was green the enforcement or performance of the obligation sometimes a contract which might legal in the sense that it was not our control to any law public policy at the time that it was made could become illegal in his performance so we have to know illegality maybe at the inception or illegality may be uh in the performance but the general principle is that a contra which is illegal from the stats will be void and non-enforceable because analytic therefore monies or properties transfer under such contract is usually not recoverable and mind you the reason is that the whole thing was illegal from the very inception and everything from the very reception that is to say that it was uh prohibited by law to start with and and that is why it is uh impressed with anality but this general rule uh just like a lot of general principles in law admit of substances or derogations so what are some of the exceptions or derogations so let's look at some of them first a party or uh plenty for claimants may be able to recover money or property transferred under an illegal if he can establish his right to the money or the property without relying on the illegal contract in other words if you can prove that you're entitled to the complaining of and if you can do that without linking your entitlement to the illegality then you will be able to uh as it were so for example if we look at the bowmakers limited against a bannet instrument limited that if you look at that case for example that's what i'm teaching i'll call you later yeah so if you look at the boolmakers limited against abandoned instrument limited there are plenty of supply with machine tools add them to the defendants under three high purchase contracts wartime regulations provided that no person was to pay or receive any price for any uh machine to provided in the uk so a maximum price has been issued by the minister of supply the minister of supply that is the ministry in charge of ensuring essential goods during the war time all trade contracts were assumed to contravene this uh regulation but the defendant failed to make these agreements uh due and sold the tools they had acquired under two of the contracts then they refused to return the twos held under the third contract the defendants made the argument that the plaintiff had no remnant because the contracts were in breach of the regulation and therefore illegal and the plenty brought a nation for conversion of the tools when we say conversion conversion is a a notion in the law of thought another law of contract in a law of thought where someone has taken uh items uh belonging to you without your permission and know that one of the conservation opinion to you is to receive for conversion if you like equivalent of ceiling in criminal law but this is not a criminal law now before the court could actually resolve the question as to whether they have a conversion or not to determine the character of the underlying contract and the court held that the action uh could succeed because it was not based on uh funding a claim contract which were illegal but on the police proprietary right to their own goods as it were another exception is that where the parties are not in parry the little while the parties are not in parry the little that is where they are not equally guilty meaning that uh one is guilty of their legality and another is not guilty of their legality so to speak but let us see uh the ghanian case of party and don quixote viva taylor by kerry curtin limited in quarter in donko uh reported in 196 one gunner law report paid 20 patent and donko 1962 and gana law report 20 their defendants in 1948 borrowed 600 pounds from the plaintiff and managed to pay back only 80 pounds by 1950 the two entered into an agreement which was later reduced into writing the agreement provided that if is bestowed as a result of a committee of inquiry or defendant helped the cro commander people to elect one of their relatives as the aguero he plentifully promises to dash the whole amount of 520 pounds to confident call the defendant dependent and influential person helped to frame the december charges against the said corcobia and testified against he was eventually disturbed the defendant also supported the candidate of the plaintiff's nephew who though elected was never instilled the plaintiff therefore brought this action to 320 pounds which he maintains finance still owed him he sought to evade his agreement to go this amount by alleging that it was illegal and controlled to public policy and eventually was held by the court that an agreement to improperly influence to use influence secure for someone they lettering to a public sew merely for financial conservation and irrespective of the candidates merit is injurious to the public interest and illegal the courts held for that that money paid in federance of an eligible cannot be recoverable where the parties are in parry the little stating that the law on public policy in ghana will not be advanced by distinguishing between the king where actual money is paid over in persons of illegal transaction and one whereas in this case the considerations that promise you for good debt this was a high court decision but the that who presided over it as we know very respectable that uh apollo jay asi then was eventually became uh a supreme court judge and then achieved justice and uh he had this uh to say and i could it seems to me fairly well established that except in a recognized circumstances money paid in person's legal contract cannot be recovered by action one of the exceptions of this rule is that the parties are not in parity little in my opinion in this both parties are in paradilicto a plaintiff voluntarily was willing to part with as much as 520 pounds as consideration for the defendant using influence as he well named corruptly to secure for his nephew instrument to the public a defendant on his path was willing to lend his influence and services in return for that sum there is no question here of one man holding a road and that there have been no alternative but to submit unquote and so that is uh parten and dunko uh reinforcing the point that uh you can only recover money uh paid under illegal contract if it can be shown that both artists are not empowered a little that is to say that you are innocent of the illegality and is only the other party who is guilty of the illegality so to speak the same point was made in the well-known english case of a career cutting limited against the bunny in killer cutting limited against wani i killed cotton left a flat in uganda for a term of seven years who paid a premium of uh ten thousand shillings although neither party realized they were breaking the law the taking of the premium was in fact a breach of a government ordinance just like in organa we have the the rent act and all that and if we look at it it's even illegal to take a rent for more than six months but people have been taking you know rent advance two years five years ten years and all that so it was a similar situation in the career recording limited against eduani now this ordinance uh did not make any express provision that an illegal premium was recoverable by the tenants the one it brought and recover the premium that is the ss payment and the mata traveled to the privy council now for the sake of of course all of you are legal uh system students for the sake of our visitors who are getting ready for the law school exams uh when we say the privy council privy council during the colonial days was the highest appeal court for the colonists so the highest approval score for the colonists was not the loca court of appeals or the original call for pins just as maybe like in ghana for example uh the good we used we came to our recorded worker the west africa called for pill now if the case was decided by the court in ghana the supreme court and you know happy you could go to the west africa and then from there it could also go to the the privy council to uganda to day two where british column that was why their decision i used to go to the privy uh council so that is the reason for seeing the private council here now mata got to the privy council uh it was held that the premium was recoverable by the tenant despite lack of an express provisioning not not permitting this because the court said that it was clear that the statute was aimed at a particular class of person from another namely prospective uh tenants from landlords so here it was like the statute which was probably creating the impression that the tenants that's why the fact that had paid and what was permissible under the law could not be said to be uh if you like equally guilty of course and for good reasons they are not dealing with at ambulance the landlord definitely has got the economic muscle model and that than the tenants so the tenant could for example be bullied to do what lieutenant david knows the law does not even permit and that could be a way of justifying the private council decision in career culture limited another exception to the rule that you cannot recover money or property under illegal contract is where a party withdraws or repents before the contract has been substantially performed so where there's a repentance or what you call that where there has been a locus potential where there has been a locus potential you have had like the change of uh mind or change of hearts or the illegal contract was substantially performed you could uh recover women that were made under that and a case which illustrated that include the case of uh kelly and thompson uh curly and thompson the defendants were solicitors who were acting on behalf of solicitors who were acting on behalf of the creditor petitioning against bankruptcy they are a friend of the bankrupt agreed to be defendants their costs if they did not appeal a public examination of the bankruptcy and if they did not oppose the order of discharge against the bankruptcy the money was paid and the solicitors did not appear at the public examination however before the application to discharge the bankrupt the friend changed his and sought the return of his money from the defendants and the court held that the plaintiff uh could not recover the contrace since it interfered with the administration of justice and as the defendant had badly performed his contracts the plaintiff's repentance was too late in other words why there has been some significant performance of the obligation in the contract and later on you have a change of mind the court will say that it is too late in a day so if you want to enjoy from the this particular then you must have withdrawn from being part of the legal control yacht have repented before they have been substantial performance if you are locus politensia is late not a value i think let's look at the contracts which are considered uh automatically uh uh void uh at common law contracts with us the jurisdiction of the courts if uh you have a contract what is seeking to house the the resistance of the courts but i think before that before that let me just say few more ways about what we're just discussing because of the supreme practitioner especially this is that a bus in the well-known case of uh ccw against emmy that is a country in which they are limited against acrobatic affairs and assembly let me spend a bit more time here because it's a very important it's very important legal decision and if you're learning illegality uh of contract in ghana and you you don't read i don't think you have done the justice to the topic so the case is the city and of course mrs jonah has put work as well city and country limited country waste on [Music] 2007 2008 eight four zero nine okay so let's say a few more ways about this case uh before we go i want to look at other aspects of illegality now the city and country was limited against accra metropolitan assembly uh 2007-2008 supreme court organizer report of 409 is very uh important decision especially regarding how the courts will manage consequence of illegality and i like to read the full decision okay uh i'd like you to my first year students i'd like you to read like the full decision and of course if you are revising your knowledge you decided to read it you'd not be doing any bad thing to yourself what you know what happened in the city in canada was limited against the accra metropolitan assembly uh the city and country was limited that is a plaintiff in this case they had the business equivalent of what the zoom lion is doing with collection disposal and management and all that so an agreement was made in december 1997. between city and country was limited and then the acronym metropolitan assembly by uh this agreement the akram metropolitan assembly engaged uh the plaintiff who be in charge of waste disposal services including landfill services within the city of accra and this agreement was to last wow this agreement was to last for seven uh yes from the date of it as a question agreement federer provided that both parties had the option of renewing it for a further seven years so uh city and country was limited that is a plenty of hearing started work under the agreement uh july 1999 and continued to perform his obligation diet until two years time that is a june 2001. when accra metropolitan assembly that is a emb uh terminated agreement of course look at it if you look at the date i'm sure that this is a political changes in ghana which uh was responsible for termination because if you look at if you look at the timing uh 2001 was when uh president rollins and ndc had left and then president uh jonathan pouffort and npp had come to power if you remember no one died in ghana when you have like a change of government some of these things happen so the assembly at the time decided to terminate the the contract but the plaintiff continued to perform its obligations under it and later on the plaintiff brought an action in court arguing that determination of the agreement by the akram metropolitan assembly was a breach of contracts and sought damages and zero payments and all that now in its defense to the action that is the acronym metropolitan assembly pleaded that the agreement the service agreement between city and country waste limited and the eme was unenforceable and illegal because it was executed in breach of certain provisions of the local government at 1993 which was the legislation enforced at the time i'm sure you remember that the local governance act has now repealed this particular legislation but that was the legislation force at the time and also the certain provisional understanding orders of the ama so the assembly was essentially saying that the agreement had been made in contravention of proper procedures for making uh contracts under the assembly which included uh that it will have to go through uh tender they have to be like the innocent approvers and all that all those things according to the ama we're not done so simply put that the agreement that the agreement had been have been made in a manner which contravene the proper procedure for uh making agreements between ama and any other entity as established by a local government various uh delegated legislation here so at the end of the trial the first high court in accra found on evidence that yes the agreement was illegal because it was made in a contravention of surgery provisions which the ama had actually pointed to he was also against a public policy then the fire judge after holding that under the commodore authorities it is not all illegal contracts that are unenforceable he went on to enforce the performance stage of the contract which he had declared illegal so eventually the matter was appealed to to the court of appeal and the court or appeal uh came to a different conclusion that the service agreement between kansas city and country was limited and then across bolton assembly was not illegal meaning that it was liga so that it was liquor then the am was not satisfied so they may further appeal to the supreme court and then when it went to the supreme court the ama continued with its old argument that the contract executed between the ame and then the city and country was was not only expressly but also impliedly prohibited by surgical provisions which eme had actually told us earlier on so eventually the supreme court had to decide the matter and there's a great part unanimously uh dismissed the the appeal uh subject to reversing decisions that the contract executed by the parties was legal and unenforceable but i would like us to pay attention to some details of the decision of the supreme court insufferance relates to [Music] illegality and especially with respect to the consequences of the elite if you look at uh the holding uh i would like you to look at the holding number six and seven and that summarizes uh that's this that the vast opinion but as i said it will even be much appreciated by if you even read like the full uh judgment uh since that is that they delivered the element of the court his opinion just ranges from pages 4 117 to page four four one so it's not a lot just a few pages but let's pay attention to uh two holdings from the head note which summarizes aspect of his opinion so i said they're holding six and seven so starting from holding six quotes the long-standing approach in the english common law was that where a contract was found to be illegal as in the instant case the benefits confirmed under it namely recovery of money paid or property transferred were not recoverable the traditional common law approach was subject to two main exceptions first where the parties were not in paradise or equally at fault and second where a party to any executory contract entered before performance so you see how is summarizing the principles i will be discussing i'm continuing on the first of the instant case it was in parity little exception which was the main and also the benefit recovered from the defendant surgery body was not money paid transferred but rather the value of services rented in the interest of justice it was reasonable for the plaintiff to seek to reverse the unjust enrichment of the defendant through its retention of the benefit of the plaintiff services without any payment for them at reasonable rates not necessarily coincident with the rate negotiated under the contract it is open to discord that's the advice that says that about speaking it is open to this court to based an alternative constitutional claim on the plaintiff's claim for the recovery of the value of his services and those on this rate although the plaintiff intent the plaintiff intent was to found that possible claim on the contract that we are held to be illegal a plaintiff can legitimately argue that a restitutionary claim by it is not equivalent to enforcing the illegal contracts the plaintiff is bound by the unenforceability of the legal contract in the english case law the illegality of the contract has been held to be an effective defense to even a restitutionary claim unless the parties are not imparied elected or equally at fault yeah so you know that says latibah in holding seven is trying to uh play the devil's advocate and say that okay even if you cannot uh because of illegality what about a claiming restitution so a claiming restitution is just a development integrity a course of action which says that is against a good conscience and notion of fairness for a person to hold on to unjust enrichment or ill-gotten gain and for that matter be ordered to retain uh unjust arrangement or ill-gotten gain under a conservation record a claim as it were now finally let me touch on the portion of this decision in the holding seven and every year i refer students to this uh ut uh law commission consultation paper only uh on contracts and transfer that is where i'm going that's why i'm taking all this one so holding number seven code to develop uh ghanaian law in the area of illegal contracts and for the courts not to be constrained excessively by the orthodox approach to the issues of illegal contracts the court will adopt the structured discretionary approach resolution of issues arising from the illegality of contract contained in the uk law commission's consultation paper on the effect of illegality and trust the approach was to be fleshed out on a case-by-case basis on the first of the present case balancing the need to deny enforcement to the contract suit on by the plaintiff against the need to prevent the unjust enrichment of the defendant and considering that in relation to the defendant's non-compliance with a surgical provision binding on it the plaintiff was not empowering the elector or equally at fault bro sense the plaintiff must be paid reasonable compensation for the services is rendered to the uh defendant unquote so justice that the bar was trying to say that we don't have to be blinded by the common law uh you know automatic conclusions that where the contract is illegal unless you are empowered the little you are not ready to you cannot recover and know that he said that it is better to have some kind of like a flexible approach and look at each case this whole merits and having regard to city and country was limited against the crime metropolitan assembly you will notice that yes it is a fact that the agreement between the plaintiff and the ema was made controlled to the requirements of the relevant legislation nevertheless in the court view the plaintiff that is the city and country was limited uh was less uh blameworthy and ama was more at fault as it were the way ama is very much aware of its internal procedures of its requirements and so you do not comply with that and when a person has rendered service which you have benefited and it's time for you to pay you raise the flag and say that we don't have to pay because the whole transaction did not conform to our laid down procedures as established by law so that is where the underreachment was coming in and that is that about uh uh that the thinking which has been expressed by the uk law commission's uh consultation paper on effect of illegality on contract and trust could actually be adopted and they implemented and he actually sought to do that so before i continue i will take one or two questions on what we've done so far before i continue and i would like you to be snappy when you ask a question okay so since there are no questions from continuing yeah so we agree with contracts which are void at common love contra to house the duration of the courts if you enter into a contract and you say that you do not want the call to intervene when there is a and what it means is that you are trying to house the jurisdiction of the court and that is not uh permissible and again contrast prejudicial to the status of marriage and also contrast the restraint of trains so let us quickly tell them one after the other and see a few more ways about yeah so uh the general principle of law is that a contract which deports or seeks to house position of the court is void because the court cannot be prevented from intervening in disputes the courts should be giving the the sea in it is the dispute so that it will help to adjudicate the rights of the parties now this do not principle that if you have a contract which is seeking to house the jurisdiction of the court then that is void is the case of a baker and jones there are a lot of cases bakery jones there was another situation which controlled the sport of weightlifting in the uk and according to the rules of that a situation invested the government that is within the central council made up of officers and certain members and as situation empowered the central council to be the sole interpreters and the emphasis is the soul that is only the sole interpreters of the rules and to act on behalf of the uh situation earning any matter not dealt with by the rules in all circumstances the decision of the council must be considered as fine and this is where the difficulty was in all circumstances the decision of the council was treated as finer so by implication the courts have been ousted the courts have been denied uh jurisdiction now there was disagreement between the members and of the two library action brought against certain members and council and the central council authorized the payment of two sums of a hundred pounds to solicit us out of the situation funds towards the defendant's legal courts a member of that situation was aggrieved by how the central council actually resolved this matter and so to challenge the decision of the central council in the law in the low courts and sought a declaration that the use of the association fund was improper now when he came to court they sought to raise an objection that the mata could not be entertained by the court because of uh the provision in the situation consulting that we have just this but the court held that the provision in the rules giving the central cancer the sole right to interpret uh the rules of the association was contrary to [Music] public policy and void and the judge further explained that though in principle the parties to a contract may make any contract that they like this is subject to certain limitations by public policy and one of those limitations is that the course cannot be ousted by agreement of the parties in other and at no circumstance can anybody enter into your contract and say that he does not want the courts to ever come in should they be any problem you cannot contract to deprive or to strip the courts of jerusalem because the courts should be able to intervene in any type of litigation anytime necessary so that one is a very important and we shouldn't uh that i mean the same point happened uh in the case of lee against the guild of great britain and in lee against truman's guild of britain similar facts uh lordanin made a very beautiful victim which i could if parties should seek by agreement to take the law out of the hands of the courts and to put it into the hands of a private tribunal without any recourse at all the courts in case of error of law then the agreement is without extent control the public policy and void in other words lord daniel in lee against woman's guild of great britain is trying to say that yes you could have your own internal arrangement for resolution of these foods in so far us you have not shut the door to the courts especially so where there could be problems with arrow or misapplication of the relevant rules and all that the course should be able to come in and then tell us what the correct position is yeah so that is uh the point in lay against romance and guilt and a similar point was made by uh the supreme court our own justices as in aqua again in the in ray ghana private road transport union gprt u that is the case between tata and sliffy uh teter and sliffy uh decided in the 2012 uh supreme court of law reports again it is a decision i would like all of you to read because it is another beautiful decision and if you have to read it i don't think that you are wasting your time you rather gain a lot of insight regarding uh what we are discussing uh you know some of these uh just the judges especially uh this is a uh aqua the way he writes uh you know sometimes it's really beautiful so i will encourage you to make time and read some of this decision as i have told you in class as far as law is concerned you get a better understanding or you get a deeper insight more you read the decided cases the more you read the deciding cases you get better understanding and when i'm quoting some of the cases you notice that uh the principles that we'll be discussing i've been uh summarized but some of the judges before they will make their own uh they come to their own conclusion as soon as peace may be and that is why we shouldn't feel a list about reading the cases as it were so in a slippery uh our title is selfie uh the supreme court uh held that uh courts will normally get the wishes of parties to an agreement to submit their disputes to an arbitration however they must have always have the power to inquire into the validity of such exclusionary clauses i mean if they relate to the ordinary condition in other words uh in tata in the sleepy the supreme court was just following the reasoning uh lordanin uh deployed in lee and schumann's girl that yes it is permissible for you to do your own internal arrangement for arbitration any form of alternative dispute resolution mechanism that is fine but you shouldn't ever say that under no circumstances can an agreed party come to court sometimes even within the particular adl procedure that we've agreed upon be the arbitration mediation concentration or whatever something might have gone wrong and uh a person might have suffered injustice maybe the audiotarom pattern of natural justice has been broke in which case uh the person was not granted hearing or the rule of enemy that's in kasaswa uh the rule against the personal bias or having an interest in the case by presiding over it or being a judge in his own court so all these are matters which would for example affect integrity of whatever resolution which your antenna uh resolution uh settlement mechanism so to do and for which reason the uh they are allowed to come in us and when necessary and there is a an old uh case uh with we call the the case of escort and we have like the cause of a scott and ivory yeah yeah i'm teaching i can't talk later why all right there's the case of scott and uh and ivory uh which of course uh propounded the very principle that and and for that matter that principle is even called ivory clause when you you hear about ivory clause every clause comes scott and ivory and in ivory squad and ivory uh there was a contract between a ship owner and the underwriters who may declare that no actions will be brought insurance until the arbitrators have dealt with any disrupt arising between the parties later on when the matter came to court the court held that it is permissible the parties to agree that no right of action shall accrue until an arbitrator has decided on any difference which may arise between them in other words it is quite legitimate it is quite legitimate for the parties to the contract to delay the intervention of the court the parties to the contract say that you have to exhaust what you call internal remedies you have to exhaust uh internal procedures or what you call the local remedies before you could go to court so where you have a clause in a contract insisting that an agreed party must resort to a certain internal mechanism before he or she could go to court now that is legitimate that is uh legitimate uh in the sense that where that is not done well that is not done i'm teaching i'm teaching this yes so where that is not done uh what is that the other party can go to court and raise a flag that the action or the resource report is premature for that matter the course will stay the proceedings expect the other person who has rushed to court instead of resorting to the antenna internal procedures to go back and do what the contract says should be done as a no first point of call with respect to your grievance before you go to court so the case remember is the score and iv and as i said sometimes you can hear about an ivory cross and every cross simply means that as a general rule uh an arbitration clause should not arbitrate once who knows house the jurisdiction of the courts the other hand the parties may provide in their contract that no cost of action will arise so the matter are determined by the arbitration so that is an ivory course and that and it's also consistent with the supreme court decision it's also consistent the supreme court decision in the supreme court decision totally in a sleepy yeah sorry yeah yeah so let's keep that in mind uh contrast prejudicial to status of marriage is also void at common law uh that is to say that where there's an agreement to provide a reward to someone to procure marriage that is uh a trigger it's contrary to public policy and therefore void maybe left side the interesting case of a hammond against charles wolfe the plaintiff saw an advertisement in the newspaper a matrimonial post and fashionable marriage advertiser and later signed an agreement to the dependent in the following terms in consideration of being introduced to or put in correspondence with a gentleman through the influence of the proprietor entitled the matrimonial post and fashionable marriage advertiser in the event of a marriage taking place between such gentlemen and mindset i hereby agree to pay the said proprietor a sum of 250 pounds on the date of my first marriage so this was the agreement very interesting agreement the plaintiff also paid the defendant especially a fee of 52 pounds in the play was introduced to several men by the defendant who also interviewed and wrote on their behalf but no marriage or engagement followed so she sued the defendant to recover back their 52 pounds the court held that the transaction of this case came within the rule which is married brokerage contra that is a contract in which uh you are served with an agent uh to look for a husband or wife for another person of course uh this is a very old right this is a the the beginning of the the 20th century 1905 but because today if you look even if you look even at uk there are a lot of what they call the uh they call it what is the name dating agencies or dating services some can even create an event and the event is meant to bring those who are looking to get partners you go there and all of you you're all looking for someone and then the hope is that you need to find someone ah so it's done they also have a website and all that so this uh particular one is a very uh old common law uh decision but that is uh that that is it now let's come to here this is a very important aspect of illegality uh public uh policy that is a contra spirit of trip and it is uh very important that we learn it as well now contract and restraint of trade uh present a certain challenge to the law and what is that challenge uh so first of all we will explain what it the the quantity of restraint of trade is and then i'll tell you about the challenge and how the the common law tries to strike a balance now a contracted restraint of trade as the term itself suggests is one that contains an undertaking which restricts the future freedom of one person to freely carry on or exercise a business trade or profession so [Music] it include a contract relating to sale of a business in which the person starting the business who are great at following the sale of the business with a new purchaser he is not going to do anything which will compete with the purchaser or one may say that i'm going to accept to be i'm going to let you be my only supplier and not take supply of goods from any other person like solus agreement and all that or when it comes to employment a person will say that once i've accepted to work with you should i stop working with you i'm not going to work for your arrivals or competitors within a certain period of time and we did geographical radios and all that so all these are manifestations of contract and restraint of trade and fundamentally it is problematic problematic is in the sense that it seriously undermines freedom of contract it undermines freedom of contract it also undermines the ability of a person essential ability of a person to earn a living how could you contract out ability to end a living so that is problematic and that is why a common a contract law restraint of trade is contrary to public policy and void unless it can be shown to be reasonable and confident public interest so a very high bar is set for its validity it must be shown to be reasonable and no controlled interest public interest lies in the fact that every rational adult should be able to carry out a legitimate uh work and end a living so where a person is contracting his ability to engage the legitimate work and then that is problematic a typical illustration of contract and restraint of trade we can see that in the case of uh nothing felt against mazim nodding felt guns and omniscient company limited there the seller of a gun and ammunition uh manufacturing uh business agreed for the buyer not directly or indirectly to engage in the business of a manufacturer of guns ammunition anywhere in the world or compete in any way for a period of 25 years for a period of 25 years though the undertaking not to compete in any way was considered unreasonable by the court has been too well provision not to manufacture guns mission was held to be valid because even though it was a worldwide registration there was only a limited number of consumers so that the restoration was not wider than was necessary to protect uh the company and it was not injurious to the public so uh nothing felt against a muslim nodding third gas guns emergency ammunition the company uh limited give us a sense of what the court will consider as a reasonable restraint now i would like us to pay a particular attention to lord magnaten's uh dictum at page five says five and when i mentioned lord magneton i hope you remember your criminal law are you called the magneton principles remember your criminal or magnetic principle of course uh my first year students at the knyc they wouldn't know because they would do criminal law in their second year but i i i'm referring our guest students who are preparing for the law school and trans examination so magneton uh in relation to uh insanity uh yeah uh lord magneton had the following to say and i could the public have an interest in every person's carrying out his trade freely so has the individual or interference with individual liberty of action in trading and all restraints of trade themselves if there is nothing to more policy and therefore void that is the general rule but there are exceptions restraint of trade and interference an interference with individual liberty of action may be classified by the special circumstances of a particular case it is a sufficient gasification and indeed it is only justification if the registration is reasonable that is in reference to the interest of the party's consent a reasonable in reference interest of the public fulfillment and so guarded as to afford adequate protection to the party in whose favor it is imposed while at the same time it is in no way injurious to the public yeah so that is the balancing exercise which the courts will have to do with respect to what is acceptable as a legitimate contract and restraint of trade and what is not acceptable and that is what lord magnetic is reminding us so as i have indicated contract and restraint may take many forms but the most common examples are one restraint in the contract of employment two restraint on the sale of business three the solus agreement by which a trader agrees to restrict its orders from one supplier four price-facing agreements and agreement we seek to regulate or limit supplies of goose five restraints cutting other interests so we say a few ways about each of them and then see how the law is calibrated with respect to the balancing exercise with lord magnetin hinted in the northern field against muslim northern fell to a gun submission companies case no longer ago so first of all we will discuss our restraints in the contract of employment restraint in the contract of employment now it is uh common for an employment contract to contain an express term or covenant which propose to restrict the freedom of the employee on determination of employment engaging in a competing business or working for a competitor for a certain period that is uh you can see that uh in some countries especially uh those who are working in a very sensitive uh areas and where uh you know the employer needs to protect in three secrets so that those three secrets are not lick and so on it may be legitimate for such uh a clause to be uh included in the contract now the caveat is that uh such a cross will be entertained and treated as valid so long as it is incentive to protect or legitimate proprietary interests of the employer and it's reasonable in a sense and the covenant will be therefore be deemed as a valid and enforceable so therefore in trying to determine the validity of a restraining clause in the employment contract uh the court will have a regard to important factors and what what are they uh one uh restraint in the contract first of all the restraint must seek to protect some legitimate proprietary interests of the employer so the the employer was able to show that i have this legitimate proprietary interest which needs to be protected and that is why i have started this restraint cross in the country of employment so what are some of the legitimate proprietary interests for which an employer may need protection these include clientele right your client base or your customer base you need to have them go if the clientele or the customers are not then the business will collapse as it were then confidential information information which are not ordinarily available because of certain privileged circumstances that is how the the business came to have it with the employer we want to protect that trade secrets uh yes three secrets let me take for example we take coca-cola right some of you like fantacula it is said that as we speak now nobody uh know the formula for making uh caca cola because coca-cola because the the the the management or the the company have been able to generously guard against this particular three secrets that they come out and one way of securing that is making sure that you put the necessary strengths colossus in the contract of employment of those who are going to who are going to work who are going to working for you in such a sensitive areas so that they don't lick your trade secrets in order to dilute your business and two the restraint clause must be reasonable in the circumstances so it's not enough for the employer to say that the uh loss in the conduct of employment protects my legitimate proprietary more importantly the court will need to test that by finding out whether it meet the reasonableness test and even reasonableness is what do i mean that is to say that having regard to the scope of it vis-a-vis the proprietary interest of the employer is the restraint clause more than necessary is it excessive is it more than what is really needed to protect the interest of the employer so those are the kind of things that the court into yeah so we have said that the first factor which the court will look at in trying to determine whether a restrained clause in the country environment is valid or not uh will depend uh upon whether the employer had the elected proprietary interest and for that we could cut the case of foster and science limited against the subject in foster and science uh limited against the uh the defendant was employed as a plaintiff's works manager and have been instructed in their confidential manufacturing processes for glass just like the coca-cola example that i mentioned the conductive employment contain a covenant whereby the defendant was not to diverge any trade secrets and was not to carry on or be interested in glass manufacture or any business connected with glass making carried on by the plaintiff for five years after the termination of his employment so uh when he stays working for the employee no time he started working you know behaving control to what the closest and an injunction was brought against him granted the injunction to restrain uh him from diverging of trade secrets namely the confidential manufacturing process since in the core view the restoration was reasonable to protect the company's interests even though it extended to the whole country and lasted five years a similar thing happened in the case of a little woods organization limited against harris i wanted to be able to finish but i need to end here and over the weekend uh llb uh yeah one regular but um university take note that i'll be sending you link we have one or two more classes over the weekend i know we are pushing towards the completion uh so that tuesday last discharge of contract especially frustration uh performance and agreement we've already done the remedies and breach you know you should be done and then your examination into wisdom yeah so as i am ending take just a few questions but let me stop the recording now