Latchman v Prasad [1960] FijiLawRp 18; [1960-1961] 7 FLR 90 (23 December 1960)

[1960-61] 7 FLR 90

FIJI COURT OF APPEAL
AT SUVA

Civil Appeal No. 8 of 1960

LATCHMAN

v

AJUDHYA PRASAD

Sir Francis Adams, Acting President,
Trainor and Knox-Mawer, JJ/A

23rd December 1960
(Appeal from H.M. Supreme Court of Fiji—Lowe, C. J.)

Illegality — not pleaded or argued by parties—court taking cognisance of, suo moto — dismissal of claim and counterclaim.

In this action the trial Judge had dismissed the claim and counterclaim, holding that both parties were in pari delicto to an agreement the object of which was illegal. Upon appeal it was contended inter alia that inasmuch as the parties did not raise the question of illegality at the trial, the defendant was deprived of the opportunity of calling evidence to rebut any suggestion of illegality, and of addressing the court on matters pertaining thereto, and consequently there had been a miscarriage of justice.

Held.—The illegality was clearly revealed on the evidence before the court, and there was no reason to suppose that the relevant facts were not fully before the court. In such circumstances the court will not allow its process to be abused. The passage cited from North-Western Salt Company Limited v Electrolytic Alkali Company Limited has no application where the evidence unequivocally establishes the illegality.

Appeal dismissed.

Case cited. North-Western Salt Company Limited v Electrolytic Alkali Company Limited 1914 AC 461.

S. M. Koya for the Appellant.

R. G. Kermode for the Respondent.

KNOX-MAWER, J.A.—

On 6th March, 1953, the respondent (the plaintiff in the Court below) entered into the following agreement with one Abdul Shakur:

An Agreement made this 6th day of March, 1953 between Abdul Shakur (father's name Niyamat) of Lautoka in the Colony of Fiji Lorry Owner (Hereinafter called "the Vendor") of the one part and Ajudhya Prasad (father's name Pandit Gokal Chand) of Lautoka Farmer (hereinafter called "the Purchaser") of the other part.

Whereby it is agreed as follows:-

1. The Vendor will sell and the Purchaser will buy at the price of three thousand nine hundred and twenty-four pounds (£3,924 0s. 0d.) the chattels and interest described in the schedule hereto.
2. The said price shall be paid as follows: the sum of eight hundred pounds (£800) upon the execution hereof and the balance of three thousand one hundred and twenty-four pounds (23,124 0s. 0d.) by monthly instalments of eighty pounds £80 0s. 0d.) each the first of such instalments being payable on the 31st day of March, 1953 and subsequently thereafter on the last day of each and every month up to the 31st day of March, 1955.
3. The Purchaser shall pay interest on all moneys remaining owing here-under at the rate of twelve pounds (£12) per centum per annum. Such interest shall be calculated and paid monthly.
4. Such instalments of £80 0s. 0d. paid each month shall be applied first to the payment of interest and the balance thereof to deduction in the principal sum owing each month.
5. Possession of the vehicles mentioned in the schedule hereto shall be given and taken from the date of the execution hereof.
6. The Purchaser shall be entitled to all the earnings of the vehicles referred to in the schedule hereto and shall be responsible for all expenditure of whatsoever nature in connection with the running, maintenance, repairs, etc„ of the said vehicles.
7. The Purchaser shall during the continuance of these presents keep the said vehicles in good repair appearance and serviceable condition and the Vendor shall be at liberty at all reasonable times to inspect the same.
8. The Purchaser shall keep the said vehicles insured to the satisfaction of the Vendor during the continuance of these presents.
9. The Purchaser shall be responsible for the engaging dismissal and conduct of the drivers of the said vehicles.
10. The Vendor hereby expressly agrees that he will not at any time whilst the Purchaser is operating a passenger service vehicle on the Ba-Lautoka route operate a passenger service without the consent in writing of the Purchaser and the Purchaser shall be bound to give his consent if the Purchaser's interest is not affected as to time-tables.
11. The remaining purchase price and interest shall be paid in full on the 30th day of April, 1955.
12. In case the Purchaser shall make default in the payment of the instalments and interest as herein provided for a period of fifteen days or in the observance of any of the demand the payment of the full amount of the balance purchase price and interest forthwith and if the amount is not so paid the Vendor shall be entitled to resume absolute possession of the chattels hereby sold and all amount already paid for such sale shall be forfeited to the Vendor.
13. The Vendor shall at his own expense and effort have the International Lorry Number 5204 completed to the satisfaction of the Transport Control Board as a public service vehicle and deliver same to the Purchaser within 31 days from the date hereof.
14. Upon payment of the full purchase price the Vendor shall transfer the said vehicles to the Purchaser and shall give him every assistance in securing a public service vehicle licence for that route.

The Schedule hereinbefore referred to

One 30 passenger "International" Service Bus Registered Number 5204; One 23 passenger "Bedford" Service Bus Registered Number 3550 together with the Vendor's interest in the Passenger Service Road Licence attaching to such vehicles."