Wakilii

Singh v Dhiman (Civil Appeal No. 50 of 1950.)

East African Court of Appeal · [1951] EACA 75 · 1951 Appeal Allowed — Re-trial Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from judgment of H.M. Supreme Court of Kenya awarding respondent money had and received
Decision
Matter remitted to Supreme Court of Kenya for re-trial before another Judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that while it is the right and duty of a court to consider illegality at any stage, an appellate court must be cautious where illegality was not pleaded and was raised late, and must be satisfied that the alleged illegality is sufficiently proved and that the plaintiff had an opportunity for explanation. The Court found that the apparent illegality was capable of satisfactory explanation and declined to presume illegality. However, the trial Judge's findings of fact were so unsatisfactory, particularly regarding the admission of a cheque that should not have been received in evidence, that a re-trial was ordered.

Outcome

Matter remitted to Supreme Court of Kenya for re-trial before another Judge

Facts

In July-August 1947, the appellant sold two motor-cars to the respondent. The respondent claimed he bought both cars for Sh. 5,500/- total and executed a promissory note for that sum. He later sold a third car to Sewa Singh for Sh. 4,150/-, receiving a bearer cheque which he handed to the appellant to be credited against the promissory note. The appellant cashed the cheque but allegedly failed to credit it. The appellant had negotiated the promissory note and the holder sued and obtained judgment against the respondent. The respondent then sued the appellant for money had and received. The appellant's defence was that the two cars were sold for Sh. 4,000/- and Sh. 5,500/- respectively, that two promissory notes were executed, and that the Sh. 4,150/- cheque was applied to discharge the first note with the balance paid to the respondent. At the date of the transaction, the Defence (Sale and Purchase of Motor Vehicles) Regulations, 1945 were in force, and the maximum permissible prices for the two cars were £118 and £136 respectively, totalling Sh. 5,080/-. The trial Judge accepted the respondent's evidence and gave judgment for Sh. 4,150/-.

Issues

  1. Whether the Court of Appeal should intervene on the ground that the underlying contract was illegal under the Defence (Sale and Purchase of Motor Vehicles) Regulations, 1945, when illegality was not pleaded and was raised only at a late stage.
  2. Whether the trial Judge's findings of fact were supported by admissible evidence and reasonable inferences.

Orders

  • Appeal allowed.
  • Judgment of the Supreme Court of Kenya set aside.
  • Matter remitted for re-trial before another Judge.
  • Appellant to have costs of the appeal.
  • Costs of the abortive trial to be in the discretion of the Judge who hears the re-trial.

Rules and key headnotes

Illegality of Contract — When Court May Raise Illegality — Duty and Caution of Appellate Court
It is the right and duty of a court to consider the illegality of a contract at any stage of proceedings, even if the defendant has not pleaded illegality and does not wish to raise the objection. However, when illegality has not been pleaded and was not raised in the court below or was raised only at a late stage, an appellate court must be cautious and must consider whether the alleged illegality is sufficiently proved, and must be satisfied that if there are matters of suspicion in the plaintiff's case, an opportunity was given for explanation and defence.
Illegality of Contract — Burden of Proof — Presumption Against Illegality
Where a transaction is not illegal per se and the discrepancy between the price paid and a statutory maximum is not so great as to suggest irresistibly a contravention of regulations, and the circumstances are capable of satisfactory explanation, a court ought not to presume illegality without giving the party an opportunity for explanation and defence.
Pleadings — Duty to Plead Illegality — Consequences of Failure
Although failure to plead illegality does not prevent the intervention of the court to refuse to enforce an illegal contract, the issue of illegality should be raised at the earliest possible stage of proceedings to give fair notice to the other party and to the court. Failure to plead illegality may result in the defendant being deprived of his costs.
Admissibility — Documentary Evidence — Effect of Improper Admission on Findings of Fact
Where a trial Judge's opinion of the credibility of a witness is based upon a conflict between the oral testimony of the witness and documentary evidence, and it appears that the Judge has either misunderstood the effect of the document or improperly admitted it in evidence, an appellate court must be free to review his conclusions on credibility.
Appeals — Findings of Fact — Grounds for Ordering Re-trial
Where a trial Judge's findings of fact are so unsatisfactory that they afford no sure basis for any decision, particularly where the Judge has improperly admitted documentary evidence and failed to address glaring improbabilities in the successful party's case, an appellate court will set aside the judgment and order a re-trial.

Legislation cited (1)

  • Defence (Sale and Purchase of Motor Vehicles) Regulations, 1945 Regulation 11

Cases cited (3)

  • Issa and Suleiman v Micheol & Co (Civil Appeal No. 17 of 1948)
  • Johana Mbugwa v Reuel E. Mwangi Mugwa (Civil Appeal No. 16 of 1948)
  • Privy Council and Another v. Consumers' Codage Company (1903), 89 L.T. 347

Full judgment

↓ Download PDF

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

Singh v Dhiman (Civil Appeal No. 50 of 1950.) [1951] EACA 75 (1 January 1951)
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.