Exturpi Causa Non Oritur Actio: A Rule Of Justice Or Public Policy? – Timothy Olamide.

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Introduction

The Latin Maxim, Exturpi Causa non Oritur Actio has been the principle upon which Courts based their judgments on Contracts or cause of Actions tainted with illegality. This Article tends to examine whether the Maxim is a rule of Justice or Public Policy through decided cases.

What does the Maxim mean?

The Maxim as a principle of law  simply means no person should be able to found a claim on an illegal or immoral act. It has received  a wide judicial recognition in the Common law Jurisdictions since its formulation by  Lord Mansfield in Holman v Johnson (1775) 1 Cowp 342 at 343).He said  No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted.

The above exposition by Lord Mansfield means that no right which arise from an illegal contract or transaction  would be enforced by the court of Law.

The Maxim has been the fulcrum upon which Nigerian Courts base their decisions when sitting over cause of actions tainted with illegality. Thus in Unitrust Insurance Co. Ltd. v. Ambico Sendirian Nigeria Ltd. (2012) LPELR -15417(CA), Per Pemu JCA held “A contract, that has no root, cannot lean on the principle of public policy to take root. It is dead and dead it is….void and cannot be the foundation of any legal right.” Equally, it has been held in the case of Fasel Services Limited & Anor. v. Nigerian Port Authority &  Anor(2009)9 NWLR (pt.1146)400 S.C,( 2009) LPELR S.C 88/2003. The Supreme Court held     The attitude of the Courts to the issue of apparent or ex-facie illegality is certainly well settled. When a contract is ex-facie illegal, whether the alleged illegality has been pleaded or not, the Court would not close its eyes against illegality, as it is the duty of every Court to refuse to enforce such a transaction. In otherwords, once illegality has been brought to the attention of the Court, it must be considered and resolved. See also the following cases Akagbue and Ors. v. Romaine (1982) 5 S.C. 133; Nasr v. Berini (Betrut-riyad (Nigeria) Bank Ltd (1968) 1 All N.L.R. 274 and Sodipo v. Lemminkainen (1986) 1 N.W.L.R. (Pt. 15) 220.

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Exturpi Causa: A Rule of Justice or Public Policy?

The above questions would be best answered from the decision of Lord Mansfield in Holman .v.Johnson ( 1775)1Cowp 342.  He stated that the reason was one of public policy ‘…If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted. It is on that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.( emphasis is mine).

The main reason for the Maxim is stated to be that of Public Policy and not of  Justice between the parties.

However, Public policy is not without its fault, as it has been aptly  argued from some quarters that  surely, public policy is an unruly horse and judges are not such masters of equestrial ability to take on such experience. See  Um Poh Chao v. Camden and others (1979) 2 All E.R. 910 at 914.

Conclusion

It can be swiftly concluded, that the  maxim may result in an unjust  decision between the parties by unjustly enrish the party who is adducing the defence. This is one of the reasons why Court must not cite the maxim in vacuum without considering the peculiarities of the case.

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Timothy Olamide writes from Faculty of Law,Ahmadu Bello University, Zaria. He can be contacted via olaniyitimothyolamide@gmail.com

References

(1)Too Much Fuss about Illegal Contract by Joseph Onale available at papers.ssrn.com

(2)Court Of Law Must Not Always Base Its Decision On Public Policy By Balogun Sofiyullahi available at thenigerianlawyer.com

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