Wakilii

Issa and Suleman v Micheol and Company (Civil Appeal No. 17 of 1948)

East African Court of Appeal · [1948] EACA 55 · 1948 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Resident Magistrate's Court dismissal of claim to recover motor vehicle sold under illegal contract
Decision
Appeal dismissed; plaintiffs unable to recover motor vehicle delivered under illegal contract

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a contract is admitted to be illegal under statute and property has been delivered in part-performance, the court will not assist the plaintiff to recover the property. The maxim in pari delicto potior est conditio defendentis applies. A court has the right and duty at any stage to consider illegality that is fatal to a claim, whether the illegality appears ex facie or through admission in proceedings.

Outcome

Appeal dismissed; plaintiffs unable to recover motor vehicle delivered under illegal contract

Facts

Indian traders sold a motor vehicle to an African partnership for Sh. 2,000 payable by instalments. The vehicle was delivered on 30 June 1947. The defendants admitted purchasing the vehicle but claimed they paid Sh. 1,000 at the time of sale and denied agreeing to pay by instalments. The plaintiffs initially sued for the purchase price, then amended their plaint to seek return of the vehicle, admitting the sale was void as contrary to law. The sale violated the Defence (Sale and Purchase of Motor Vehicles) Regulations 1945 because no permit from the Controller was obtained, and also violated the Credit Trade with Natives Ordinance Cap. 130 section 3. The Magistrate dismissed the claim on grounds of illegality.

Issues

  1. Whether a court has the right and duty to consider illegality at any stage of proceedings even where not pleaded as a defence.
  2. Whether plaintiffs who admit a contract is illegal can maintain a claim to recover property delivered under that contract.
  3. Whether the maxim in pari delicto potior est conditio defendentis applies where a party seeks to recover property delivered under an illegal contract after part-performance.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Illegality — Court's Duty to Consider at Any Stage
It is the right and duty of a court at any stage of a cause to consider, and if sufficiently proved to act upon, an illegality which may be fatal to the claim of either party to litigation.
Contract Law — Illegal Contracts — Court's Duty Where Illegality Appears
Where a contract is ex facie illegal, or where though ex facie legal an admission is made or evidence given in proceedings by which the illegality clearly appears, the court is entitled and bound to consider the effect of the illegality upon the claim.
Contract Law — Illegal Contracts — Recovery of Property After Part-Performance
A party cannot set up a case in which he must necessarily disclose an illegal transaction as the groundwork of his claim. Where goods are sold and delivered under an illegal contract, the seller can sue neither for the price nor for return of the goods, since he cannot make out his case except by aid of the illegal contract to which he is a party.
Contract Law — Illegal Contracts — Application of Maxim In Pari Delicto
The maxim in pari delicto potior est conditio defendentis applies where a contract is illegal and there has been performance or part-performance. Where the circumstances are such that the court will refuse to assist either party, the consequence is that the party in possession will not be disturbed.
Contract Law — Illegal Contracts — Recovery After Part-Performance Distinguished from Executory Contracts
Money paid or goods delivered in pursuance of an illegal contract cannot be recovered where part-performance has taken place. This is distinguished from executory contracts where money paid in consideration of an illegal purpose may be recovered back upon repudiation before the illegal purpose has been performed.

Legislation cited (4)

  • Credit Trade with Natives Ordinance Cap. 130 s.3
  • Defence (Sale and Purchase of Motor Vehicles) Regulations 1945 Regulation 4(a)
  • Defence (Sale and Purchase of Motor Vehicles) Regulations 1945 Regulation 11
  • Credit to Natives (Control) Ordinance 1948

Cases cited (9)

  • Connolly and Another v Consumers' Cordage Co (89 LTR 347)
  • Lipton v Powell [1920] 2 KB 51
  • Taylor v Chester (LR 4 QB 309)
  • Simpson v Bloss (129 ER 99)
  • Berg v Sadler & Moore [1937] 2 KB 158
  • Bowmakers Ltd v Barnet Instruments Ltd [1944] 2 AER 579
  • Holman v Johnson (1775) 1 Cowp 341
  • Lougher v Molyneux [1916] 1 KB 718
  • Alexander v Rayson [1936] 1 KB 169

Full judgment

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

Issa and Suleman v Micheol and Company (Civil Appeal No. 17 of 1948) [1948] EACA 55 (1 January 1948)
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.