ABDULLA BESHIR ADAM v. MIRGHANI MOHAMED ABU EISA

(COURT OF APPEAL)

AC-REV-165-1960

Principles

· Controct—illegality—Motor-vehicle sale—Failure to register by seller renders contract unenforceable by him

· Road Traffic—Registration of title of vehicle—Registration of assignment of title Sale illegal where registration of assignment impossible

The plaintiff and defendant concluded a written agreement by which the plaintiff sold a motor-car to the defendant. The defendant paid £S.75 of the price and a balance of £S.95 remained unpaid. The defendant contended that he had withheld payment because the plaintiff had failed to register the car in defendant’s name.
The court of first instance found that the police had refused registration because the motor-car was not the registered property of the plaintiff, but was registered in the name of a third party. The court also held that the defendant had a lien on the motor-car and was entitled to withhold payment of the balance of the price until registration.
The plaintiff applied for revision of this decision to the High Court, Wad Medani, but his application was summarily dismissed.
The plaintiff appealed to the Court of Appeal
Held: When a seller of a motor-car sells without registration to the purchaser within fourteen days of the making of the contract of sale, the contract is illegal and unenforceable. Road Traffic Ordinance 1942. S. 12.

Judgment

M. A. Hassib J. (by authority of the Chief Justice). June 18, 1960 :—-By a written agreement for sale dated December 30, 1956, plaintiff agreed to sell to defendant car No. K 2562 for a price of £S.170. Defendant paid £S.75 and plaintiff brought an action for recovery of the balance. The defendant admitted the facts and contended that he did not pay the balance because

plaintiff failed to register the car in his name in order to give him a title to the car which defendant had already received and used. The agreement dated December 30, 1956, does not refer to registration as an express condition for payment of the balance. The defendant further pleaded that he has discovered that the car sold was not registered in the name of plaintiff, but in the name of a third party, and that change was impossible. The court of origin found that the police refused to register the car in the name of defendant because the car was not the registered property of plaintiff.

On these facts the court decided that defendant had a lien on the entitlement of plaintiff until registration was effected, and further, defendant was also entitled to withhold payment of the balance. The court further found that plaintiff was not entitled to any relief and dismissed the claim. From this decision plaintiff applied to the High Court, Wad Medani, for revision and, on revision, his application was summarily dismissed by the learned Judge of the High Court, Wad Medani. Hence this application to this court.

The applicant’s advocate attacked the finding of the original court, in that the registration of the car was refused owing to the defect in the plaintifi’s title. He stated that the court had no evidence supporting that finding.

Though the agreement dated December 30, 1956, does not include an express condition for payment of the balance on registration, the Road Traffic Ordinance 1942, S. 12 (3), requires such registration, making it imperative on the seller to make such registration not later than fourteen days after the transaction is made: Road Traffic Ordinance 1942 imposes ‘a penalty on the parties for non-registration and the act of plaintiff in selling without compliance with the law might amount to illegality and vitiates the transaction. Road Traffic Ordinance 1942 is a statute to provide for the licensing, taxation and control of road traffic. By section 12 it does not declare that sale of cars without registration is illegal or is void but it imposes a penalty for doing it. The effect of the law on the present transaction is therefore dependent on the construction of the Road Traffic Ordinance 1942, and according to the recognised principles of interpretation of statutes it is material to ask whether the object of the statute in imposing the penalty is merely to protect the revenue or whether its object, or one of its objects, is to protect the general public or some class of the general public by requiring the contract to be accompanied by certain formalities or conditions, as for example registration in the case of a money-lender. In the latter case it is probable that the act for the doing of which the penalty is imposed is impliedly prohibited by the statute and therefore illegal.

Going through the construction of the Road Traffic Ordinance 1942. it is obvious that the said law was intended to protect the class of persons dealing in sale of cars and the public generally. From its preamble it is clear that it was an Act imposed to control traffic in the Sudan. It is a law similar to the English Money Lenders Act, 1900, and also similar to the statute entitled “The Fertilisers and Feeding Stuffs Act, 1906.” In the former it was decided in Victorian Daylesford v. Dott [1905] 2 Ch. 624. that a money-lender who failed to have his name registered would not make a valid agreement in the course of his business. In the latter it was decided in Anderson Ltd. v. Daniel [1924] 1 K.B. 138 that the object of the statute in requiring the vendor to give the statutory invoice and imposing on him a penalty in the event of his default is to protect the purchasers of fertilisers, the effect of non-compliance with the requirement is not merely to render the vendor liable to the penalty but also to make the sale illegal.

It is therefore quite clear that the Road Traffic Ordinance requires registration in protection of the public and any transaction in sale of cars which does not comply with the requirement of the law is not enforceable.

For this reason and because of the impossibility of registration the contract is dischargeable.

I therefore consider that the application before this court is hopeless and be dismissed summarily.

Editors’ Note.—The court refers to Road Traffic Ordinance, s. 12, as imposing a penalty on a seller of a motor-car who fails to register the change of ownership to the seller within fourteen days of the contract. This is not accurate. Section 12 does not impose a penalty although it impøses a duty to change registration. Road Traffic Ordinance 1942, S. 45 (1) enacts that “non-compliance with or breach of any of the provisions of this Ordinance or any regulations hereunder shall be an offence,” and the First Schedule to the Ordinance sets out the various penalties for non-compliance with the provisions of the Ordinance

This decision- appears to conflict with the following two cases: El Amin Mohamed El Amin v. Omer Mohamed Saeed, HC-CS-20-1952 (Wad Medani) and Elias Hamatel Tawil v. Alfi Abadir Giddis and Others, AC-REV-286-1959 (1960) S.L.J.R. 135 Both cases were concerned with assignments of motor vehicles. ln. the first it was held that the registration of assignment of a vehicle does not affect the title of the vehicle, the title passing irrespective of registration. In the second registration of a motor-car in the assignee’s name was held to be mere evidence of prior assignment, and not the assignment itself.