MARFUL-SAU, JA:-

This appeal is taken against the judgment of the High Court, Accra delivered on the 19th January,2016. In the said judgment the trial court dismissed the entire action of the plaintiff, who is the appellant herein. The trial court also dismissed in part the counterclaim of the defendant who is the respondent in this appeal. The brief facts of the case are that, the appellant claimed he handed over an amount of GH₵ 68, 580.00 the equivalent of US$ 31,900 at the time, to the respondent who was his business partner to transfer the said sum to another business partner in Indonesia. The respondent later informed the appellant that the bag in which he put the money had been stolen. According to the respondent, the appellant and himself had a common bag in which they kept their monies and this bag was kept in the shop of one Alhaji Mohammed. The respondent claimed that at the time the bag was stolen he had other monies in different currencies in the bag. The appellant then took respondent to several mallams in search of the stolen bag but to no avail. The matter was later reported to the Police for investigations.

From these facts the appellant caused a writ to be issued against the respondent claiming (a) an amount of US$ 31,900.00 or the cedi equivalent being an amount owed to him by the respondent; (b)interest at the dollar rate from 3/10/13 till date of final payment and (c) costs including lawyer's fees. The respondent counterclaimed against the appellant on the above facts for (1) an order for the appellant to refund an amount of GH₵36,000.00, which was respondent share of business profits; (2) an order for the appellant to refund an amount of GH₵ 9,200.00 being money he lent to the appellant;

(3) a declaration that the business that resulted in the missing money was illegal and same is against public policy; (4) any further reliefs that might be found due to the respondent and (5) costs.

As already indicated at the end of the trial the trial court dismissed appellant's claims and entered judgment in part for the respondent. It is against the said judgment that the appellant has mounted this appeal on the following grounds:-

a. The trial Judge erred when he held that plaintiff did not give defendant either $31,900.00 or GH₵ 68,580.00 when the defendant himself admitted same in his affidavit in opposition tendered in evidence as exhibit 'C'.

b. The trial Judge erred when he held that defendant had proved that the money was stolen with the bag.

c. The trial Judge erred when he held that plaintiff admitted the sum of GH₵ 9,200.00 and entered judgment for defendant when defendant failed to prove same.

d. The trial Judge erred when he held that the transaction was illegal and unenforceable.

e. The trial Judge erred when he held that the principle of bailment or negligence is inapplicable to the case.

f. The judgment is against the weight of evidence.

g. Further grounds of appeal may be filed upon receipt of the record of appeal.''

From the record of appeal, no additional grounds of appeal was filed by the appellant. This appeal upon a careful examination of the record of appeal raises one fundamental issue which is whether or not the transaction that led to the missing money was legal. Indeed, this issue is what is captured as ground (d) of the appeal. I shall first address this fundamental issue because if the transaction is found to be illegal as the trial court found, no useful purpose would be served in addressing the other grounds of appeal as formulated above.

It is provided by section1 of the Exchange Control Act , 1961, Act 71 as follows:-''1. Dealings in gold and external currency

(1) The Minister responsible of Finance shall prescribe the banks or any other bodies or persons which or who the Minister thinks fit to be authorised dealers in gold and external currency for the purposes of this Act.

(2) Except in the prescribed circumstances a person resident in the Republic other than an authorised dealer, shall not buy nor borrow gold or an external currency from, or sell or lend a gold or an external currency to a person other than an authorised dealer.

(2A) For the purposes of subsection (2), a person resident in the Republic, other than an authorised dealer, shall not buy foreign currency from a visitor to the Republic.

(2B) The penalties for a contravention of a provision of this section are as specified in Part Two of the Fourth Schedule.

It is further provided by section 29 (1) of the Foreign Exchange Act, 2006, Act 723, as follows:-

Section 29 (1) a person who:-

(a) Engages in the business of dealing in Foreign Exchange without a licence issued under section 5 (1),

(b) Contravenes or fails to comply with a restriction imposed under section 6, or

(c) Contravenes or fails to comply with the terms or conditions required to carry out the business of Foreign Exchange transfers, commits an offence and is liable on summary conviction to a fine not more than seven hundred penalty units or to a term of imprisonment of not more than eighteen months or both.

At page 58 of the record of appeal begins the evidence in chief of the appellant. He is recorded as having testified as follows:-

''I am Alhaji Iddrissu Osman. I live at Ablekuma and I deal in currency business. I know the defendant. A customer of mine sent me some money from Benin on 13th September, 2013. It was a Friday. I gave the said money to the defendant on the following day which was a Saturday to be transferred to Indonesia. I know that the banks do not work on Saturdays and so on Monday when I came, I went to the defendant to ensure that he goes to do the transfer. The defendant then confirmed that he had used the money to purchase some CFA and that I gave out GH₵ 68,580.00 to the defendant.''

Clearly, from the above evidence appellant himself confirmed the fact that he was a dealer in the currency business. That business conducted by the appellant could only be legal if he had a licence from the Minister of Finance or the Bank of Ghana as the law required. The evidence on record however showed that the appellant had no such licence and even though he claimed, he was working under somebody who operated a Forex Bureau, he failed to adduce any credible evidence to prove that assertion. At pages 60 and 61 of the record of appeal is the cross-examination of the appellant. The appellant testified as follows:-

''Q. Alhaji Osman you told this court that you buy and sell money?

A. That is not so. The customers send me the money at times to be transferred for them or buy the goods for them.

Q. I am suggesting to you that you told this court that you change money?

A. That is true.

Q. Can you tell the court the currencies you deal in (Change)?

A. Any currency that I get

Q, And that include CFA?

A. Yes.

Q. Dollars?

A. Yes.

Q. Euros?

A. Every currency unless it is not dealt in the country.

Q. Is your business registered?

A. No

Q. Do you per chance have any permit or authority from the Bank of Ghana?

A. No, but I work under somebody.

Q. Is that somebody permitted by the Bank of Ghana to change currencies?

A. Yes, is a registered Forex Bureau.''

The above evidence adduced by the appellant showed that he was in the business of currency exchange and at page 62 of the record of appeal, the appellant demonstrated that the transaction which had given cause to this action was part of his business of currency exchange. The appellant testified that even though he received United States Dollars from Benin he changed it to Cedis. At page 62 of the record, the appellant stated as follows:-

''Q. Mourin was the one who gave you the money?

A. Yes.

Q. He is your customer?

A. Yes.

Q. And he gave you 15 million CFA to be transferred for him?

A. Not true. He gave me dollars.

Q. And this money he gave you, you changed same into Ghana Cedis?

A. Yes.

Q. And so you did not give dollars or CFA's to the defendant?

A. That is true. I gave the defendant in cedis.''

From the above evidence the appellant quite vividly proved that he dealt in currencies. Indeed, if the appellant received United States Dollars from Benin, as he claimed, to be transferred to a business partner in Indonesia, what was the rational in changing the said United States Dollars to Ghana Cedis. Obviously, the appellant was trading with the money and that demonstrated the nature of business appellant was engaged in. The evidence as to the nature of appellant's business was confirmed by the respondent who testified in examination in chief at page 97 as follows:-

I am Alhaji Umar aka. Alhaji Morou. I live at Manye Waakye Junction(Ablekuma). I am in the money exchange business. I know the plaintiff. He is my master and we have been changing money together. We have been working since 2008 ( he started working in 2008) I know Alhaji Mouri. Alhaji Mouri is our customer who has been bringing CFA currency to us from Coutonu. He brings his CFA's to us to change.''

The evidence adduced at the trial is thus clear that the appellant was an unlicensed dealer in currencies in Ghana and the transaction that has culminated into this case was illegal and for that matter the trial court did not commit any error when it found that appellant was engaged in illegal business with the respondent and that act would not be endorsed by the court.

The law is quite settled that our courts should not lend its support to parties who engage in illegalities. Such a conduct by a court will clearly be against public policy since the primary duty of the court is to uphold the law and sanction parties who fall foul of the law. In Network Computer System Ltd v. Intelsat Global Sales & Marketing Ltd. (2012) 1SCGLR 218, Atuguba, JSC delivered at 230 as follows:-

A court cannot shut its eyes to the violation of a statute as that would be very contrary to its raison d'etre. If a court can suo motu take up the question of illegality even on mere public policy grounds, I do not see how it can fail to take up illegality arising from statutory infraction which has duly come to its notice.''

Again in the case of Republic v. High Court (Fast Track Division) Accra; Exparte National Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties),(2009) SCGLR 390, Dr. Date Bah, JSC delivered at page 402 of the report as follows:-

No Judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament. But this is was the effect of the order granted by the learned judge. The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders.''

Having found that the transaction leading to the institution of this case was illegal which should not be enforced by any court of law, no useful purpose will be served, as earlier observed, in addressing the other grounds of appeal formulated in the notice of appeal. Accordingly, the appeal fails and same is hereby dismissed.

Rule 8(1) of the Court of Appeal Rules, 1997, CI 19 provides thus:-

Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as '' the notice of appeal.''

By the above rule, this court has the mandate to review the record of appeal and draw its own conclusions on the facts established on the record. As has been observed earlier the trial court in its judgment dismissed appellant's claims but granted respondent's relief for the recovery of GH₵9,200.00 against the appellant as per respondent's counterclaim. The court rightly dismissed the other reliefs in the counterclaim, as they all form part of the illegal business engaged by both respondent and appellant. On a careful examination of the record however, I am of the considered opinion that the respondent failed to adduce sufficient evidence to prove that the appellant borrowed the sum of GH₵ 9,200.00 from him.

The trial court in its judgment stated that the appellant admitted he owed the respondent the said sum of money, however that is not the evidence on record. The evidence on record is that the appellant admitted that he owed the respondent an amount of GH₵7,260.00 which was the respondent's share of profit from a business they conducted. The appellant's claim on this amount was confirmed by the respondent in an affidavit he deposed to and which was tendered at the trial as Exhibit 'C', which is at page 171 to 172 of the record of appeal. At paragraph 4 of the said Exhibit 'C', the respondent deposed as follows:-

4. In answer to paragraph 4 of the said affidavit in support, I say that following the above mentioned event, I indicated to the plaintiff that since we are working together, we could recoup the said amount, less an amount of GH₵7,260.00 that the plaintiff owed me, from the profit of our joint operations and to this end we prepared and thumb print(sic) the document, a copy of which I hereby attach as exhibit 1.''

From the above it was thus clear that what the appellant owed the respondent was GH₵7,260.00 and not the amount of GH₵9,200.00 as adjudged by the trial court. The evidence also is that the amount of GH₵7,260.00 was respondent share of profits from the illegal business of currency exchange and for that matter as held by the trial court, the respondent could not benefit from that illegal transaction. The trial court therefore erred when it adjudged that the respondent was entitled to the claim of GH₵9,200.00 because the appellant had admitted same. That finding was wrong as it is not supported by the evidence on record. Accordingly, the award of GH₵9,200.00 to the respondent by the trial court is hereby set aside.

In conclusion the appeal is dismissed and the trial court's judgment is hereby affirmed except the decision that the respondent is entitled to the claim of GH₵9,200.00 which is hereby set aside.

SGD.

MARFUL-SAU,JA

SGD.

I agree                                                                       ACQUAYE, JA

SGD.

I also agree                                                      MARGARET WELBOURNE,JA