MANSUR EL SALIK, Appellant-Plaintiff v. EISA AHMED, Respondent-Defendant
Contracts-Illegality-Whether a contract which contravenes a term of - another
private contract is unenforceable-Application of Gezira Land Ordinance
1927 outside the Gezira
Appellant entered into a contract with the respondent. The contract
constituted a breach of a term of the appellant's, tenancy agreement with
the Kassala Cotton Company. The appellant brought- an action in respect
of his contract with the -respondent but the district Commissioner non-suited
- him without hearing any evidence, on the ground that .he was suing on' an -
illegal contract. ' The Court of Appeal held:
(i) That the tenancy agreement with the Kassala Cotton Co. was a
private contract and that the breach does not affect the validity of the
Contract with the respondent or appellant's rights under it.
(ii) That the application of the Gezira Land Ordinance '1927 is COD- fined to the Gezira.'
Gezira Land Ordinance 1927.
Appeal
September 21, 1927. Nigel G. Davidson, L.S.: It is clear that
this claim ought to, have been heard and must be sent back for re-
hearing.' The appellant attended with his witnesses but the District
Commissioner non-suited him without hearing the evidence on the
ground that he was suing on a contract which was illegal as having
been made in breach of a term of the tenancy' agreement between
the respondent and the Kassala Cotton Company., The 'latter was a
private contract and therefore, although the respondent was liable to
the company for his breach of. the Contract, that fact does not affect
the rights of the appellant nor the validity- of the contract made be-
tween the appellant and the respondent. '
By the Gezira Land Ordinance 1927, contracts of this kind have
been illegal by legislation, but that legislation does _ not apply outside the
Gezira.
Moreover, the appellant was prepared to give evidenre add p0s-
sibly to call further witnesses to prove that the representative of the
company had actually waived the proposed breach of the tenancy
• Court: - Nigel G. Davidson L.S.
agreement and verbally sanctioned the arrangement made between
the appellant and the respondent he now sues.
It is unfortunate that this mistake of the court below has involved
both parties in the expense of an appeal to Khartoum.
I consider that the appeal should be allowed, and that the follow- .
ing order should be made:
"IT IS ORDERED that case be referred back to be heard by
the District Judge of the Legal Department on his next visit
to Kassala on a date to be fixed. The appellant is entitled to
the costs of and arising out of this appeal. The expenses in-
curred by the respondent's appearing in person and being re-
turned 4th class to Kassala are not to be costs in the case. A
4th class ticket to be issued to Eisa Ahmed chargeable against
Kassala Province."
Owen J.: I concur.
Hamilton-Grierson J.: ~ concur. .
Appeal allowed