Wakilii

Almeida v Antao and Another (C.C. 8-1929 (Msa.).)

East African Court of Appeal · [1930] EACA 46 · 1930 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of debt under a deed executed in Goa
Decision
Judgment entered for plaintiff for remaining debt instalments with alternative payment formula; first two instalments time-barred

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the deed is severable: while the mortgage security provisions cannot be enforced for non-compliance with colonial law, the acknowledgment of debt and undertaking to pay remain valid. The expression 'Mombasa rupees' is synonymous with British East Africa Protectorate rupees, and even if demonetized, parties may agree to pay in an obsolete currency. The first two instalments and interest to 28 January 1926 were barred by limitation. Judgment entered for the remaining instalments with alternative payment in shillings.

Outcome

Judgment entered for plaintiff for remaining debt instalments with alternative payment formula; first two instalments time-barred

Facts

On 28 January 1923, the parties executed a deed in Goa whereby the defendants acknowledged receipt of a loan of 3,350 rupees in Mombasa. The deed provided for interest at 5% per annum and repayment by annual instalments of 400 rupees commencing 28 January 1924, payable in Mombasa rupees in Mombasa. The deed purported to mortgage the defendants' properties in Mombasa as security. The plaintiff sued to recover the debt. The defendants argued the entire deed was void as the mortgage did not comply with colonial law, that payment in Mombasa rupees was unenforceable as the currency had been demonetized, and that the first two instalments were time-barred.

Issues

  1. Whether a mortgage deed executed in Goa that does not comply with the requirements of the law of the Colony is entirely void or severable.
  2. Whether an agreement to pay in Mombasa rupees is enforceable after the currency has been demonetized.
  3. Whether the first two instalments and interest up to 28 January 1926 are barred by limitation.

Orders

  • Judgment for the plaintiff for the number of rupees agreed upon by the parties or as found on enquiry for the three remaining instalments and interest.
  • In the alternative, judgment for double the number of shillings.
  • Plaintiff to have costs of the suit to be taxed.
  • First two instalments and interest up to 28 January 1926 barred by limitation.

Rules and key headnotes

Contract Law — Severability — Mortgage Deed with Invalid Security Provisions
Where a deed contains both an acknowledgment of debt with an undertaking to pay and mortgage security provisions, and the mortgage provisions do not comply with the law of the colony, the deed is severable and the acknowledgment of debt and undertaking to pay remain enforceable after rejecting the invalid security provisions.
Contract Law — Currency — Agreement to Pay in Obsolete Currency
Parties may validly agree to pay in a currency that has become obsolete or has ceased to be legal tender, and such an agreement is enforceable.
Contract Law — Interpretation — Meaningless or Impossible Terms
Where a contract contains a term that would render performance impossible or meaningless, such as a promise 'never to pay', the offending word may be rejected to give effect to the parties' intention, particularly where there is good consideration.
Banking & Finance — Currency — Mombasa Rupees and Protectorate Rupees
The expression 'Mombasa rupees' is synonymous with British East Africa Protectorate rupees as provided for in the Order-in-Council of 1905 and amending Orders.

Legislation cited (4)

  • Order-in-Council 1905
  • Order-in-Council 1921 s.2
  • Order-in-Council 1921 s.5
  • Order-in-Council 1921 s.6

Cases cited (2)

  • Simpson v Vaughan (1738) 2 Atk. 32
  • Ali bin Salim v The British East Africa Corporation Ltd (No. 145 of 1919)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Almeida v Antao and Another (C.C. 8-1929 (Msa.).) [1930] EACA 46 (1 January 1930)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.