Agreement for commission on
amount of Judgment-Champerty
Maintenance.
In an action for an amount
claimed by the plaintiff as
commission for the recovery of
debts due to the defendants it
was held by the Judge of the
Circuit Court of Ashanti that
the agreements for the recovery
of such commission were
champertous, and judgment was
therefore given in favour of
defendants.
HELD that although the English
Common Law as to Champerty and
Maintenance was in force in
Ashanti, the agreements upon
which this action was brought
were not champertous. The appeal
was therefore allowed.
C.
F. Hayfron-Benjamin
for the Plaintiff-Appellant.
J.
G.
Addo
for the Defendants-Respondents.
The following judgments were
delivered :-
HORNE J.
This is an appeal from a
judgment of the learned Circuit
Court Judge on the ground that
it is wrong in law.
In the Court below the plaintiff
claimed to be entitled to £337
8s. Id. as commission calculated
on the amounts for which
judgment had been given against
certain debtors of the defendant
company. The defendant company
contended that the commission
could only be calculated upon
the actual amounts recovered
under the judgments. The learned
Judge found that two agreements
dated respectively the 22nd of
March, 1923, and the 13th of
May, 1931 were in existence, the
latter varying the former, and
that under them the sum of £3
5s. was due, but held that the
agreements between the parties
was of a champertous character
and therefore unenforceable; he
gave judgment for the defendants
company. The question is whether
he was right in law in so
'holding Illegality was not
pleaded as a defence to the
action but the Court will not
enforce a contract which is
illegal or arises out of an
illegal transaction if the
illegality is disclosed on the
plaintiff's own evidence and it
appears that the plaintiff was
implicated in it,
see Scott v. Brown,
(1892) 2.
Q.B. 724.
Counsel for the
plaintiff-appellant attempted to
demonstrate that the learned
Judge was wrong on the ground
that champerty, not being
prosecutable as a common law
misdemeanour in this Colony, the
contract or transaction could
therefore not be illegal. He
also submitted that in the
alternative the transaction was
not champertous on the ground
that the plaintiff had an
int8rest.
Now section 11 of the Criminal
Code provides that no person
shall, except as in the next
succeeding section pr8vided, be
liable to punishment by the
common law, or in any other
manner otherwise than in
accordance with the provisions
of the Code, for any act done
within the jurisdiction of the
Court.
The next succeeding section,
section 12 sub-section (1) says
;" Nothing in this code shall
affect-
(1) the liability to trial and
punishment of a person for at
offence against any statute
other than this code.
The exception in section 11
therefore saves any statutor)
offences. "
In Leake on Contract, 8th
Edition page 553, the law is
state< in the following terms :-
The maintenance of a civil suit
of another without having any
interest in the suit, and so as
to cause special damage, and
champerty or the purchase of an
interest in th suit of another
in consideration or for the
purpose of maintaining it, are
offences at common law; and they
are further prohibited b:
statutes which for the most part
are declaratory of the common
law
A number of these statutes were
referred to in the case 0
Neville v. London Express
Newspaper Co. (1919) A.C.
368. A lis of them is given
in Lord Phillimore's speech at
page 426, and the: are carefully
reviewed in Lord Shaw's
judgment, and his reviel
of them shows that a person who
made a pactum de quota lites,
i.champerty, was liable
under them to criminal
punishment. of these statutes 3
Edw. 1. c. 25 and 28 Edw. 1. c.
11 are shown i Archbold as being
still in force. Of the others, 4
Edw. III. c. 1: 1 Rich. II. c.
4, and 7 Rich. II. c. 15 are
printed in the Revise Statutes.
They are in force in England now
and were thereof in force in
1874, the date given in section
14 of the local Supreme Court
Ordinance.
The statutes are statutes of
general application and are i
force in the Colony by section
14 Supreme Court Ordinance
according to section 17 thereof
local circumstances permit ..
In my opinion such agreements
are illegal in the sense that
the< involve an act prohibited
by statute in force by virtue of
the Supren Court Ordinance and
the Ashanti Administration
Ordinance.
So much for Counsel's first
submission. It is, however,
sufficient: for the decision of
this appeal to say that an
agreement f maintenance and
champerty is illegal whether the
same is a criminal offence or
not. Because every champerty is
a maintenance thou! every
maintenance is not a champerty.
The common law, subject to local
Ordinance, is in force in the
Colony and Ashanti. J
common law, apart from any
question of crime, maintenance
is tort actionable on proof of
special damage. Neville v.
Lond, Express Newspaper Co.,
(1919) A.C. 368, so
decides. And in the case Lord
Finlay L.c. quotes and adopts
the words of Coke in 1
Institutes, viz :--champerty is
a form of maintenance and
when the person maintaining
another takes as reward a share
the property in dispute. But
what is maintenance? "It is
easier" said Fletcher Moulton,
L.J. in
British Cash and Parcel
Conveyors Ltd. v. Lamson Store
Service Co. Ltd.
(1908)
J.K.B. at page
1014, " to say what maintenance
is not than what is
maintenance." But, he adds,
once a contract of maintenance
is established it is incapable
of being enforced whether it is
a tort or a crime.
And on that point
Rees v. de Bernardy,
(1896) 2
Ch.
437 may be usefully referred to.
That case decides that in order
to render an agreement void on
the ground that it is in the
nature of champerty, it is not
necessary that it should amount
strictly to champerty as a
punishable offence. Although the
learned Lord Justice thought
definition of maintenance
difficult, it appears from the
speeches of the learned Lords in
Neville v. London Express
Newspaper Co.
(1919)
A.C.
367 that certain elements are
essential to create the tort
:-(1) assistance given in the
prosecution of suits which the
party must bring on his own
bottom and at his own expense,
(2) encouragement of another to
bring an action, and (3) a
hindrance or disturbance of
common right to the delay or
distortion or withholding
justice.
In
Neville v. London Express
Nenpaper Co.
Lord Shaw at page 414 says the
test of maintenance is the test
of the quality of the act itself
as it bears upon the attainment
of justice in the particular
case, and that the test of
either tort or offence is
primarily whether it contains
that quality which is essential
both by statute and the common
law. I fail to perceive anything
of that character in these
agreements. It is beyond belief
that any of the debtors sued
could show that he had suffered
any special damage by reason of
anything done by the
plaintiff-appellant under these
agreements. There is nothing
here of encouragement by, or
assistance given by the
plaintiff-appellant to the
defendants-respondents, aiding
them to bring suits which they
ought to bring on their own
bottom and at their own expense.
There was no selling of
information on which the action
maintained could be founded as
in
Rees v. de Bernardy
(ut supra), nor could the
defendants-respondents in this
case claim relief in a Court of
equity from the agreements. It
must be noted that there are no
legal practitioners allowed in
Ashanti, and the Court rules
provide for parties being
represented by an agent or
servant.
There is no maintenance in this
case, and the mere fact that the
plaintiff-appellant was to be
remunerated by commission does
not make it so. The object of
the law is to prevent persons
officiously intermeddling in
suits, and to prevent persons
who would not be responsible, if
unsuccessful, from being
assisted in litigation. The
forbidden conduct is said to be
contra bonos mores
and the prohibition is given
effect to either by criminal
prosecution, action for damages,
or by the Court refusing to
enforce a contract involving
such forbidden conduct. That
object will not, in my opinion,
be defeated by these agreements
being held to be legal. The
appeal should therefore be
allowed.
DEANE, C.]. THE GOLD COAST
COLONY.
I concur. The appeal will be
allowed and the judgment of the
lower Court set aside. Judgment
will be entered for the
plaintiff - appellant for £3
with costs in the Court below.
There will be no order as to
costs in this Court.
MACQUARHlE, J.
This is an appeal from the
judgment of the Circuit Court,
Ashanti, dismissing the claim of
the plaintiff-appellant against
the, defendants-respondents in
the circumstances stated below.
Tte plaintiff's claim reads as
follows :-" The plaintiff claims
from the defendants the sum of
£337 8s. Id. being balance of
commission due to plaintiff as
per agreement dated the 22nd of
March, 1922." ,\ "statement of
commission account of C. H.
Smith" appears which is
evidently intended as a
S~3.tement of particulars,
showing the names of debtors,
and amounts due, in respect of
which he claims (page 2 of the
record).
At the hearing (page 18) the
claim was, on his application
amended as follows "being amount
due for work done as per
agreement dated the 22nd of
March, 1923, and on subsequent
verbal agreement of the 2nd of
October, 1930."
The defendants pleaded that the
agreement was for one year only
and had lapsed and that a
subsequent written agreement was
made dated the 13th of May,
1931, but that no amount had
been collected by plaintiff ..
The plaintiff's evidence as to
the amount claimed is based upon
a document-Exhibit "c" -which
states a list of "cases
pending," including the three
specified in the plaintiff's"
statement of particulars" to
which I have referred above,
with the following memorandum at
the foot, signed by both
parties, and dated 13th May,
1931, viz. " It is understood
that the commission of 25 per
cent will only be paid by the
firm to Mr. Smith when any
amount will be paid by the above
debtors, and this agreement is
made for the above dp.btors
only, and new transaction will
require a new agreement."
The plaintiff endeavoured to add
to this agreement a verbal
agreement, denied by the
defendants, which in my opinion
is inadmissible as varying the
written agreement.
The verbal agreement of 2nd
October, 1930, alleged in the
claim is deposed to by plaintiff
but does not include these
debts, which are clearly dealt
with by the written agreement of
13th May 1931.
It appears that the total amount
received by the defendants in
respect of these debts is £13.
The learned Judge's decision was
that the agreements sued upon
were "champertous and therefore
illegal," and he accordingly
dismissed the claim.
He refers for his reasons to his
judgment in another case which
has been before this Court at
this sitting. The facts in this
case, however, are certainly
different.
Two questions now arise for
decision-are these agreements
illegal as being champertous,
and therefore unenforceable? and
secondly, does the law on this
subject apply to Ashanti ?
It will be convenient to deal
with the second question first.
The law in force in Ashanti is
that as set forth in sections 14
to 19 of the Supreme Court
Ordinance of the Gold Coast
Colony,
see
section 7 of the Ashanti
Administration Ordinance. Does
this law include the English law
as to champerty?
J think there can be no doubt
that section 11 of the Supreme
Court Ordinance does include the
English law as to maintenance
and champerty. But section 11 of
the Criminal Code has been
referred to as excluding it on
the ground that under it no one
is punishable for maintenance or
champerty under the criminal
la\\-. Even assuming that this
were so, this enactment is no
more than a statement that no
person shall be punished for any
act unless provided for by the
code. To my mind such a
provision cannot exclude from
the English common law in civil
matters a part of it which makes
agreements unenforceable on a
ground which is not based on the
criminal law imposing
punishments but on a principle
underlying the enforcement of
contracts, viz., that it is
contrary to public policy to
enforce contracts which are
champertous. The mere fact that
the parties to such contracts
cannot be punished by the
criminal law, assuming, as
stated above, that this were so,
is not, in my opinion, ground
for saying that their contracts
are free from any objection as
to their legality. For example,
a contract may be illegal, and
therefore unenforceable, as
being in restraint of trade,
although no one is criminally
punishable. In my opinion
therefore, section 11 of the
criminal code does not exclude
the law as to maintenance and
champerty from the " common law"
which is to be enforced in civil
matters by the Supreme Court and
therefore in this case.
The first question then remains
to be answered-are these
agreements champertous?
What are these agreements in
essence, Le. the agreements of
the 22nd of March, 1923, and the
13th of May, 1931? The plaintiff
agrees to do certain work (which
he is supposed and no doubt
intended to be authorised to do
by the first agreement) in the
recovery of debts due to the
defendants, in consideration of
payment based upon the amount
for which judgment might be
obtained according to the
plaintiff, on the amount paid in
according to the defendants. Any
expenses necessary for the
purpose such as Court fees,
travelling expenses of the
plaintiff outside Kumasi, are
borne by the defendants. The
plaintiff is-as between the
parties at least, and apparently
in the eyes of the
Court-authorised to conduct
cases in Court. In this
connection, I would refer to
Order 11 inSchedule 2 to the
Supreme Court Ordinance;
particularly to rule 3 and the
use of the word" agent," The
word is not used in rule !, but
I am inclined to think that the
words" any servant, clerk" would
include the plaintiff here. The"
good or sufficient cause" is
within the discretion of the
Court, which we must take it was
used in the cases in question in
his favour-or rather in favour
of the defendants in the cases
in which the plaintiff appeared.