SCHANDORF v. ZEINI AND ANOTHER

JUDGMENT OF AMISSAH J.A.

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.

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.

[p.423]

By his writ, the respondent asked for specific performance of an agre