(HIGH COURT OF JUSTICE)

IBRAHIM MAHGOUB KHALIL

vs.

ABDELHADI ABDEL MAGEED GUBANI AND OTHERS

(HC-CS- 19-1956)

Principles

·  Contract — Public policy — illegality of contract — assignment of priority to transfer cattle — consent of Ministry of Animal Resources - no illegality - burden of proof.

Under a scheme introduced and regulated by the Ministry of Animal Resources, the right to export cattle is controlled by the -issue of priority licenses by the Ministry. The defendants were the holders of such a license which they transferred to the Plaintiffs in consideration of the sum of LE. 956. The Plaintiffs alleged that this assignment was made with the knowledge and assent of the Ministry, but the defendants alleged that the license was purelypersonal, and incapable of assignment and that the assignment was contrary to public policy. Held: that the burden was on the defendants to show that the priority had been
assigned with the object of defrauding the Ministry, or at least, without the consent of the Ministry, and the defendants having failed to discharge this burden, the transfer must be assumed to have been made with the
consent of the Ministry This being so, it could not be said that the transfer was contrary to public policy.
 

Action

The facts appear sufficiently in the head-note.

Advocates: Mohd. Ahmed Mahgoub, and

Mohd. Ibrahim Khalil ……………for Plaintiff

Wahab ………………………..for Defendants

R.A. Muhammadi, D.J. (The learned District Judge stated the allegations of the parties and the relief claimed by the plaintiff, and continued)

The only issue here is the alleged illegality of the transfer of the defendants’ right of priority. It is admitted by both parties that this is a question of law. If there is illegality in a case like this, it must fall under one of these heads

1. Contracts which are void or illegal by Statute.

2. Contracts which are void or illegal at common law such as

a) an agreement to commit an indictable offence or a civil wrong, or

b) an agreement to do that which is contrary to the policy of the law.

It is asserted by the defendants that this particular case falls under the last mentioned sub-head. But it has not been shown to the satisfaction of the court that such public policy has been violated. The burden lay on the defendants to do this. They asserted that this was an agreement between the plaintiff and the Ministry of Animal Resources to transfer a certain number of cattle fromKhartoum to Cairo, and that this contract, according to its terms, was non-transferable; yet such a contract was never submitted before the court. Had the contract been submitted, and had this indeed been one of the terms, the Court would have been inclined to look into the matter under the principle of illegality discussed in Alexander vs. Rayson [1936] 1 K.B. 169. (The learned Judge then stated the facts of the case and continued).

The defendants have strongly contended that this contract was illegal as contrary to public policy, but the argument is untenable as the Court is satisfied that the transfer was made with the consent and knowledge of the Ministry of Animal Resources. At any rate the burden of proving that this was not the ease was on the defendants and they have failed to discharge the burden to the satisfactions of the court.

(Issue answered in favour of Plaintiff)