Contract-Illegality-Effect 0/ misrepresentation when the misrepresentation
arises out 0/ an illegal contract

Land Law--Sale 0/ lq,nd-Consent 0/ Govemor=-Obieet 0/ I'r.oclamations 0/
July l,1905~EfJect 0/ misrepresentation by seller

When a native Sudanese makes a contract for the sale of land with a
fOJ;efgner, and the buyer pays money over, the buyer cannot recover th~'
money paid because the disposition of .land by natives is . ·~stricted by the
'i>roclalnation of July I, 1905, which states such contracts are null arid void
unless the Governor's consent to the transaction is obtained, and furtbe(
specifically states that money paid in consideration of such dispositions shali
not be recoverable. The fact that the native seller was guilty of a mis-
representation does not allow the buyer to recover because when a contract
is illegal no right of action exists in respect of anything arising out of the

                transaction, including the tort of misrepresentation.                                                   .

Native Disposition of Lands Restriction Ordinance 1918

• Court: Bell C.J., Owen and David-Davis JJ.

British Workmen's and General Assurance . Co. v.

T.L.R.425,

Herman v. Charlesworth [1905] 2 K.B. 123.
Scott v. Brown [1892] 2 Q.B. 724.

Strachan v. The Universal Stock Exchange, Ltd. [1895] 2 Q.B. 697.

Taylor v. Chester (1869) L.R. 4 Q.B. 309.

Appeal

December 10, 1928. Bell C.J.: On January 28, 1910 the de-
fendant signed a document stating that he sold to the plaintiff 30
jeddans of river land in the neighbourhood of Abu Haraz, and that he
would deliver the land to' the plaintiff as soon as the registration' of
lands in the Blue Nile Province was undertaken. '

On July 5, 1924 the plaintiff instituted this action, claiming the
return of £E.45 paid to the defendant under, the above-mentioned '
document. The delay in starting the action is stated to pe due to the '
fact that the p~aintiff was awaiting settlement of the l~d'l On April 8;
1927 judgement was given to the effect that the money was not recov-
erable, in virtue of the Proclamation of 1905, but the court gave the
plaintiff leave to amend his claim to abe of damages for misrepresenta-
tion. The amended claim was for damages, on the grounds that
"money was paid to the defendant on a representation by him that he
was interested as owner in certain lands ~ . • and that he was or·
would be in a position to convey the same on sale to the plaintiff"
and that "the said representation was not true in substance' or in fact
to the knowledge of the defendant." After further proceedings, the
court held that there was a direct misrepresentation on the part of the
defendant, which .entitled the plaintiff to damages, The damages were
assesyd at £E.45, which was the amount found to have been paid by
th_7Plaintiff to the defendant under the written contract already alluded

   tQ., " Now it is not disputed that the transaction between t;lte parties

was an agreement by a native of The Sudan to sell land; and that' the
transaction is one to which the Proclamation of July 1" 1905 applies.
The 'Proclamation renders certain transactions, to which the consent
in writing of the Governor has not, been expressed, null and void,
,and declares that money paid in consideration ,-0£ such transactions

shall not be recoverable. As the, result of this action the plaintiff has
been enabled to recover his money on the ground of misrepresentation,
it is necessary to consider at some length the legislation which is rele-
vant to the case.

As early as 1900 a Proclamation was made requmng contracts
for the purchase of land from natives to be submitted to the Governor
for approval. On July 1, 1905 there was published the Proclamation
to which further reference will be made later. In 1906 and 1907
Proclamations were published" the first relating to Khartoum Province,
the second to the rest of the Sudan, drawing attention to the Proclama-
tion of 1905, and directing purchasers who had bought before July 1,
,1905 to submit their purchases for the purpose of obtaining the Gov-
ernor's consent. In 1911,1914 and 1917 Proclamations were published
relating to land in specified districts; particularly as regards sales to
foreigners. In 1918 the Native Disposition of Lands Ordinance was
published, repealing the Proclamation of 1905, save as regards transac-
tions made before the publication of the Ordinance. This Ordinance

\ permits the Governor to approve of transactions between natives which
were made before its publication, but contains no such concession in •
the case where the vendor is a native and the purchaser a foreigner.
As the purchaser in the case before the court is a foreigner, the 1918
Ordinance has no application. The matter is entirely governed by the
Proclamation of 1905. The object of the Proclamation is clearly stated
to be to prevent the disposal of lands by natives before their rights
have been settled, and also to prevent them from disposing of their
lands at inadequate prices. To carry out this object it was provided
that dispositions, "to which the consent in writing of the Governor had c
not been expressed, shall be null and void," and that money paid in
consideration of such dispositions "shall not be recoverable nor suable
for." The wording of the Proclamation is clear, and it must be assumed
that it means what it says. Transactions to which it refers . are void
and, where the purchaser is a foreigner, cannot be subsequently vali-
dated; except of course so far as the parties are at liberty to enter
into a new agreement and submit it for the Governor's consent.

The transaction under consideration in this case, namely a dis-
position of land by a native to which the Governor's consent in writing
has not been expressed, is prohibited by the Proclamation, and is thus
an illegal contract. The respondent has pointed out that, under the
English Law of illegal contracts, money paid is recoverable in certain
circumstances, for example where the contract remains executory, ,0(

where the money is deposited with a stakeholder to abide the event,
if notice is given before it is paid over. The two cases Hermann v.
Charlesworth [1905] 2 K.B. 123 and Strachan v. The Universal
Stock Exchange Ltd. [1895] 2 Q.B. 697 bear out these contentions.
But neither of these cases is of assistance here.

The opening words of the preamble to the' Proclamation show
that one class of transactions which it was desired to prevent was that
consisting of the attempted disposition by natives of shadowy, doubtful
and unascertained rights. The transaction before the court seems to·
me to be exactly of this class. The transferee who from the document
produced could expect to get any definite piece of land in any par-
ticular locality must be of a singularly sanguine temperament. As a
result of the Proclamation hard cases may have occurred, and without
doubt many persons have got money for nothing. This is beside the
point. The law says that the money shall not be recoverable and
means it. This ground for recovery, moreover, was abandoned in the
court below.

The learned Judge, however, found that the defendant agreed
. to sell land which he knew he did not own, and so was guilty of
. fraud. It remains to consider the case further from this point of view.
, The general principle is that, where the object of a contract IS illegal,

the whole transaction is tainted with illegality, and no right of action
exists in respect of anything arising out of the transaction. The test
for determining whether an action lies is by considering whether the
plaintiff could make out his case otherwise than through the me-
dium and by the aid of the illegal transaction. Taylor v. Chester
(1869) L.R. 4 Q.B. 309. No Court ought to enforce an illegal con-.
tract, or allow itself to be made the instrument of enforcing obligations
alleged to arise out of a contract or transaction which is illegal. Scott
v. Brown [1892] 2 Q.B. 724. Nor does there appear to be any dif-
ference, or any reason why there should be any difference, if the claim
is based on a tort arising out of contract. The case above first cited
was in detinue for the recovey of a bank note, and failed because the
plaintiff could not make out his claim without relying on the illegal
transaction.

These cases in which a plaintiff has been successful in .recovering
money in respect of an illegal contract are all cases in which the parties
to the contract have not been in pari delicto. In British Workmen's
and General Assuranc~ Co. v. Cunliffe (1902) 18 T.L.R. 425 the
money was paid pursuant to a false representation that the contract