The plaintiff has brought this action to recover the sum of N¢14, 250.00 being the value of diamonds which he said he sold to the defendant which the latter has refused to pay. The defendant denies the sale. Mr. Adjetey has raised a preliminary point on the defendant’s behalf which counsel says will quickly put and end to the controversy without going through a full scale trial on the merits. The contract of sale, if there was one, which is denied, is said to be unenforceable because it was founded on an illegality which the plaintiff cannot avoid relying upon if he is to succeed in his action.
That the court will not assist a plaintiff to recover on an illegal contract is sound law: see per Lord Mansfield C.J. in Holman v. Johnson (1775) 1 Cowp. 341 at p. 343 and Ramia v. Chiavelli [1967] G.L.R. 737. The illegality complained of in the instant case is [p.148] that the plaintiff has in selling diamonds contravened the provisions of the Diamond Mining Industry Protection Ordinance, Cap. 152 (1951 Rev.), which forbids the sale of diamonds without a licence. It is not averred in the statement of claim that the plaintiff had a diamond seller's licence. What is averred is that he had a diamond digging licence under which he won the diamonds. This licence however was admitted to have expired at the time that the sale took place. There had been no time to renew it before the sale. Mr. Adjetey's submission is that if the sale was conducted under the authority of the digging licence, then on the plaintiff's own showing, the authority was exhausted at the material time. But in any event a digging licence is not the same as a diamond selling licence without which no legal sale of diamonds can take place.
In answer to this submission, Mr. Armah for the plaintiff has argued firstly that if some illegality arises in connection with the procedure on the sale of diamonds then this cannot be determined before the evidence has been heard. Whether the plaintiff was armed with the appropriate licence or not at the time of the sale is a matter which the court may become aware of only after hearing the evidence. Until such time the plaintiff's legal capacity or otherwise in disposing of diamonds by sale may not be known to the court and in this respect the preliminary point taken is therefore premature. Mr. Armah has also argued that if any illegality arises out of a sale without the. necessary licence this is not of such a nature as would render the contract itself illeg
