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LUTTA, J. A.
[1] The appellant (to whom I shall refer hereinafter as �the plaintiff�)
sued the respondents as executors of the will or Besweri Kisalita Mulyanti (to
whom I shall refer hereinafter as �the deceased�) for shs. 10, 500/- as
money had and received by the deceased for the use of the plaintiff and for
damages for breach of contract and for an injunction to restrain the
respondents from administering the deceased's estate until the plaintiff's
claims are satisfied.
[2] The plaintiff alleged in its plaint that on or about 28th July 1967 the
deceased agreed to give a lease to it in respect of mailo land measuring
approximately 2.09 acres comprised in F.C. No. 19650 Plot No. 222, Mailo
Register Vol. 1126, Folio 7, at a premium of shs 8,OOO/-, which was
subsequently increased to shs 10,000/-.
[3] The plaintiff further alleged in the plaint that the deceased orally
agreed to grant a lease and to obtain the consent of the Minister of Mineral
and Water Resources under the Land Transfer Act (hereinafter referred to as
�Cap.202�) thereto and to effect registration of the same) and that'
although the consent was obtained the deceased in breach of the agreement
sold the said mailo land on 29th October, 1968 to one Godfray Lule and
consequently the lease could not be registered.
[4] In their defence the respondents stated that the contract entered into
between the plaintiff and the deceased was done in contravention of section
2 of Cap.202 and therefore it was an illegal contract which is not
enforceable; they denied that the contract was subject to the condition of
obtaining the Minister's consent under Cap.202.
[5] 'The trial judge held that the whole transaction was riddled with
illegalities and dismissed the suit.
[6] The plaintiff now appeals to this Court against that decision on three
grounds! the main ground being that the learned judge erred in holding that
the plaintiff's claim was based on an illegal contract.
[7] Mr. Korde, for the plaintiff argued that when the minister�s consent was
granted on the 8th October 1968 the contract between the deceased and the,
plaintiff became effective and therefore the subsequent sale of the said
mailo land to Godfray Lule on 29th October, 1968 was a breach of that
contract.
[8] On the question of illegality of the contract Mr. Korde argued that a
contract expressed to be subject to the minister's consent is not within the
mischief of section 2 of Cap.202, as it is s contingent contract - which is
inchoate at the time it is made; it became Choate and effective as soon as
the consent was obtained.
[9] Relying on the cases of Habib Devji v. P.C. Tarmohamed and Another
[1960] E.A. 1022 and Reginald Ernest Vere Denning v. David Geoffrey Edwardes
and Another [1960] E.A. 755 he submitted that the test was whether the
contract was valid at the time it was made and that in the instant case the
contract between the deceased and the plaintiff was a valid contract at the
time it was made, as the contract to enter into possession is not in itself
illegal; it is possession without consent which is illegal) and in any event
an offence committed subsequent to a valid contract cannot vitiate the
contract.He also submitted that even if illegal possession vitiated the
contract i the claim for money had and received was not affected by the
illegality of possession.
[10] Mr. Binaisa, for the respondents, relying on the case of Mistry Amar
Singh v. Serwano Wofunira Kulubya [1963] E.A. 408 submitted that the object
of Cap.202 is to protect Africans by regulating an,}' transfer of mailo land
and by controlling the sale of mailo land to non-Africans as a matter of
public policy and thus the contract in the instant case was illegal as the
Minister's consent had not been obtained as required by section 2 of Cap.202
and as the lease, which was void ab initio, could not be varied by an oral
agreement purporting to incorporate the Minister's consent as a condition of
the lease.
[11] Mr. Binaisa further submitted that a contract to take mailo land on
lease without an application for the Minister's consent is illegal and that
in any event the contract, if it is subject to the consent, must expressly
state that it is contingent upon the consent being obtained.
[12] The issue which arises in this appeal is whether the contract between
the deceased and the plaintiff is illegal and void ab initio and
consequently the plaintiff cannot recover moneys paid to the deceased under
the illegal contract.
[13] Section 2 of Cap.202 (omitting the provisos which are not relevant to
this case) provides as follows �
�No non-African or any person acting as his agent shall without the consent
in writing of the Minister occupy or enter into possession of any land of
which an African is registered as proprietor (other�-wise than "by receiving
rents and profits payable by non-Africans who have gone into occupation or
possession with the consent of the minister) or make any contract to
purchase or take on lease or accept a gift inter vivos or a bequest of any
such land or of any interest therein other than a security for money �
[14] The wording of this section is very wide indeed and clearly shows that
the intention of the legislature was to prohibit both the occupation or
entering into possession by a non-African of mailo land whose registered
proprietor is an African by or through any transaction! whatsoever; to which
the Minister has not given his consent; and to make any contract to purchase
or to take on lease or accept any interest in the same without the consent
of the Minister.
[15] In other words; the wording of section 2 is so wide as to render any
transaction which does not have the Minister's consent illegal.
[16] A breach of section 2 becomes punishable under section 4(1) of Cap.202.
Thus to try to enforce a transaction or a contract which did not comply with
the requirements of section 2 of Cap.202 would be trying to enforce an
illegal transaction or contract.
[17] It is not disputed that the minister�s consent was obtained after a
period of over one year (in fact 14 months) from the date of the contract
and after the plaintiff had already taken or entered into possession of the
said mailo land.
[18] Thus under section 4(1) of Cap.202 the plaintiff had incurred liability
for a criminal act and could have been prosecuted for a breach of section 2
of Cap.202.
[19] However Mr. Korde contended that the plaintiff and the deceased orally
agreed that the said contract would be subject to the condition of the
deceased obtaining the Minister's consent. In other words, the said contract
was contingent upon the consent of the minister being granted. Against this
contention Mr. Binaisa argued that an oral contract cannot vary the terms of
a contract in writing in respect of the sale or lease of the land and
submitted that the contract which must be in writing must expressly state
that it is contingent upon the consent being obtained.
[20] The respondents in their defence denied that the contract was �subject
to the condition of obtaining the minister's consent. Although the learned
judge dealt with this matter, he did not make a finding as to whether or not
the contract was contingent upon the consent of the minister being obtained.
It seems to me that a decision on this point was not necessary as the
learned judge found :-
the plaintiff agreed to take on lease the said mailo land in respect of
which it had paid all moneys due from it under the lease,
the plaintiff was given full access to the said mailo land and a letter (Annexure
B) to establish its ownership,
plaintiff had entered into possession of the said mailo land and paid rent
for some places to keep its plant and
the formal consent from the Minister was sought more than one year after (a)s
(b) and (c) above.
[21] In my opinion whether or not the contract was contingent the plaintiff
should not have agreed to take on lease the said mailo lands paid rent and
other moneys in respect of places to keep its plant and entered into
possession of the said mailo land without first obtaining the Minister's
consent.
[22] The plaintiff was all along in breach of section 2 of Cap.202 and in my
view the Minister's consent subsequently given on 8th October, 1968 did not
expunge the plaintiff's liability for its criminal acts.
[23] The contract and the entering into possession of the said mailo land
before the consent was given were prohibited by law and the contract was
therefore void ab initio, and nothing that was done subsequently (that is,
the granting of the consent by the Minister) had the effect of rendering it
an enforceable contract, particularly in view of section 4(1) of Cap.202.
[24] In my view the cases of Habib Devji v. P.C. Tarmohamed and Another (supra)
and Reginald Ernest Vere Denning v. David Geoffrey Edwardes and Another (supra)
are distinguishable in their details.
[25] In the former case the lease was entered into, or, rather: drawn up
after the Governor's consent was granted and there was no prior occupation
or entering into possession of the mailo land in question. In the latter
case there are material differences between the relevant Kenya Acts and the
corresponding Uganda Act, the effect of which is to make the decision
therein inapplicable in the instant case. In such circumstances the case of
mistry Amar Singh v. Serwano Wofunira Kulubya (supra) is clear authority for
holding that a non-African has no right without the Minister's consent to
occupy or enter into possession of the land or to make any contract to take
the land on lease.
[26] The next question which then arises in the instant case is whether the
plaintiff can recover moneys paid in pursuance of a contract which is
clearly illegal. The plaintiff is a party to the illegal contract or
transaction and it bases its claim on the same illegal contract. It is well
settled that no action can be maintained on a contract which is prohibited
by statute - see Gordon v. Chief Commissioner of Metropolitan Police (1910)
2 K.B.D. 1080, and as was said by Bowen, L.J. in Melliss v. Shirley Local
Board (1885) 16 Q.B.D. 446 at page 454�
��no man can recover in an action founded on that which is a breach of the
provisions of a statute�
[27] In my view the learned judge correctly hold that the whole transaction
was so ridiculed with illegalities that the court should not be made an
instrument or enforcing obligations arising out of it particularly when the
plaintiff is implicated in the illegalities.
[28] In the circumstances, I would dismiss the appeal with costs.
LAW, AG.V-P.
[29] I have read the jud6ment prepared by Lutta, J.I agree with it and
cannot usefully add anything. There will be an order in the terms proposed
by Lutta J.A.
MUSTAFA, J .A.
[30] I have read and agree with the judgment prepared by Lutta, J .A. and
concur in the order proposed by him. |
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