Appeal Court, 19th April, 1939.  Appeal from judgment of Division Court.

 Breach of Contract--Illegal contracts unenforceable-Accra Building Regulation, 1930.

The plaintiff agreed with the defendant to construct a new building on the defendant's land for £1,675. The specifications given in the contract differed materially from those fixed by the Building Permit held by the defendant. The learned trial Judge held that the plaintiff was entitled to recover damages for breach of contract and rejected the contention that the contract was illegal on the ground of public policy and therefore unenforceable. He held that, since the specifications given in the contract were at variance with the terms of the Building Permit, the plaintiff would have been compelled to erect a building in accordance with the terms of that Permit and that the extra expense would have fallen on him ..

Held: That a contract to erect a building contravening the provisions of a legal enactment was illegal and could not be enforced.

Held Further: That as the action was framed for damages for breach of contract the plaintiff could not recover for work and labour on the demolition of the old building on the site and that the writ could not be amended at that stage .

. Appeal allowed; judgment of Court below set aside and judgment entered for defendant with costs.

Case cited. Stevens v. Gourley (141 English Reports 752).

J Henley Coussey for Appellant.

R. E. Phipps for Respondent.

The' following joint judgment was delivered:-

PETRIDES, C.].. GOLD COAST, BUTLER LLOYD, ACTING C.J., NIGERIA AND STROTHER-STEWART, J.

Plaintiff by his writ claimed £500 damages for loss sustained by him through defendant's breach of a contract to erect a building at Accra, made between the parties and dated 5th August, 1937. Of this amount £122 5s. was claimed as special damages according   to particulars attached to the writ.

      There were no pleadings and the defendant's Counsel in his opening said :-

•• There was litigation over the site and parties could not get on the site, till after West African Court of Appeal Judgment-June, 1938. Prior to this, defendant intimated to plaintiff he could not pay owing to cocoa hold-up ..

•. By the Specification, plaintiff contracted to construct the foundation and walls which were not in accord with the building regulations-Contract £1,675. Claim inconsistent-(l) Claim for entire breach, (2) Claim for special damages. Pleads no damage has arisen from the breach-admits-  breach ".

The trial Judge gave judgment for the plaintiff for £205 5s., of which £55 5s. was for general and the balance £150 for special damages. He rejected the contention of defendant's Counsel that the contract was illegal on the ground of public policy and  therefore unenforceable. His reasons for doing so are contained  in the following passage in his judgment

 The description of the materials, etc. to be used in the work are set out in the building permit and had the work been proceeded with it is obvious  the building Inspector would have compelled the work to be done in accordance with that permit; and as the contract provides for a lower standard than permitted by the Building Regulations, all that would happen would be that the owner would get a more substantial building than that provided for in the contract and the extra expense would fall on the contractor, and I hold that although it may be an argument in mitigation of damages possibly, yet it cannot be said to render the contract illegal. "

The contract relied upon by the plaintiff, hereinafter referred to as the contract, is contained in Articles of Agreement made the 5th August, 1937, 1:etween the defendant (Owner) and the plaintiff (Contractor). By the contract the defendant agreed to demolish an old building on a site at Rowe Road, Tudu, Accra, and erect a new building thereon for £1 ,675. These articles recited that :- 

WHEREAS the Owner is desirous of constructing a Building at Rowe Road Accra aforesaid- and has caused Drawings describing the work to be done to be made and has obtained a Building Permit AND WHEREAS the said Drawings have been signed by the Contractor AND WHEREAS the Contractor has agreed to execute upon and subject to the Conditions set forth hereunder the work shewn upon the said Drawings and described in the Specification hereto annexed."

Among the conditions was the following :-

The work shall be executed in a thoroughly substantial manner with materials of the best quality to the entire satisfaction of the Owner and strictly in accordance with the Specification and Drawing

If  the  specifications in the contract are compared with the particulars in the Building Permit granted by the Accra Town Council It will be seen that the proportion of cement to stone and sand that the plaintiff by his contract agreed to supply was very substantially less than that required by the Building Permit. it cannot be doubted that !he additional proportion of cement required by the Building. Permit would have considerably increased the cost of the Building. The trial Judge realised this but said that all that! would happen would be that the owner would get a more substantial building than that provided for in the contract and the extra expense would fall on the contractor."

We cannot agree with this view. It is true that the contract recite that the plaintiff had obtained a Building Permit cut nowhere does It provide that the building shall be erected in accordance with that permit.

On the contrary it is clear from-

(a) the recital and the condition set forth above, and

(b) the provisions in the body of the contract,

that the plaintiff was to do the work shewn upon the Drawings and descended in the Specification annexed to the contract. In other words he was bound to comply with the Specification to the Contract and not to that of the Permit. If he had been required to comply with the Permit it would have been open to him to tell the defendant that he had not contracted to do so and that if he wanted a more substantial building to conform to the Permit he must pay extra.

By the Accra Building Regulations, 1930, which were made by the Accra Town Council with the approval of the Governor ­in-Council under Sections 11 and 18 of the Towns Ordinance and Section 4 of the Town Councils Ordinance no person shall erect any building or execute any work except under and in accordance with the terms of a permit.

The Contract relied upon in this case was therefore one to do a thing which was prohibited by those regulations. In the case of Stevens v. Gourley, 141 English Reports 752, it was held that a contract to erect a wooden structure contravening the provisions of 18 and 19 Viet. C. 122 was illegal and the builder could not enforce it. In Leake on Contracts, 6th Edition at page 564 it is stated :-

•. The effect of illegality in the matter or purpose of an agreement is to render it wholly void of legal effect; no claim or defence can be maintained, which requires to be supported by allegation or proof of an illegal agreement. Either party may repudiate the agreement. with or without alleging a reason, and may afterwards justify on the ground of the illegality. The objection that a contract is immoral or illegal, as between plaintiff and' defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded on general principles of policy , which the defendant has the advantage of contrary to the real justice as between him and the plaintiff. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex t1trpi causa, or the transgression of a positive law, then the Court says he has no right to be assisted ".

It is clear from the authorities that a contract to erect a building contravening the provisions of a legal enactment is illegal and the builder cannot enforce it.

The contract in this case, in so far as it relates to the erection of the building in violation of the Accra Building Regulations, 1930, is therefore unenforceable by the plaintiff.

It has been contended on behalf of the respondent that even if that part of the contract which relates to the erection of the building is unenforceable the plaintiff is entitled to judgment for £55 5s. which the trial Judge found was the cost of demolition of the old building and in respect of which he awarded the plaintiff special damages. To this defendant's Counsel has replied that the action was framed to recover damages for breach of contract and that as the plaintiff cannot maintain an action for breach of contract he cannot recover anything under the writ as framed. We consider this argument unanswerable. It is obvious that we cannot hold that the plaintiff is entitled to this amount for breach of contract for it is clear that there has been no breach of the enforceable contract. Had the claim in respect of this £55 5s. been one for work and labour it may well be that the plaintiff could have recovered it under this head. There was no such claim before the Court below and this Court is not prepared to allow the writ to be amended at this stage.

The appeal is allowed and judgment of the Court below is set aside and in lieu thereof judgment is entered for the defendant with costs. The respondent to pay the appellant's taxed costs in the Court below and the costs of this appeal which are assessed at £34 135 6d.

The Court below to carry out.