The facts and arguments are sufficiently set forth in the following judgment on the counterclaim:-
DOORLY, J.,
Turning to the counterclaim, I find that the defendants themselves allege that £20 thereof was part-payment of a douceur to the plaintiff, who is a Tufuhene of the Stool of Dutch Sekondi, paid in order to induce him and to get his assistance in inducing the Omanhene and other Elders of the Stool to make a grant of land to the defendants.
It has been contended that such an agreement and payment were for an unlawful purpose and that, although the agreement is unenforceable, the defendants are not entitled to recover.
On consideration of the circumstances alleged by the defendants, I am satisfied that no party to the agreement should be assisted by the Court in respect of it or of any act done in furtherance of it. The plaintiff, as a member of a Stool, was a person in the nature of a trustee of the Stool property, and that he should receive a reward for using his influence to get the other members of the Stool to take certain action with Stool property appears to me to be definitely unlawful and contrary to public policy. It may be the custom, but it is a custom which I do not think the Court should recognize to the extent of admitting the legality of such agreements or such payments.
It is contended for the respondents that the agreement, even if illegal, had not been carried out, in that plaintiff had not used his influence and the defendants had not got a grant of Stool land. That apparently is so, and it is argued that defendants could rescind the agreement and recover their money.
But in the case of Palyart v. Leckie (1817), 6 M. & S. 290), cited in Chitty on Contracts, XVII. edit. p. 76, it was held that the election to rescind the contract must be notified to the party in due time.
Looking for the evidence of the rescission of the contract and notification thereof, I find the letter of one of the respondents written to Counsel for the appellant, Exhibit C, dated 25th September, 1935. That was after a demand had been made in writing for payment by the defendants on the cheque for £50.
In that letter the respondent writes: "I beg to acknowledge " the receipt of your letter re a cheque of £50 given to your client, "Chief Kwesi Andoh. In reply I beg to inform you that the " consideration for which the cheque was given has to the knowledge " of your client totally failed, and I have demanded him several " times for the return of the cheque
