Abimbola George And Ors V. Dominion Flour Mills Ltd (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, E.J.

The defendants have appealed from the judgment of Onyeama, J. in the Lagos Suit No. 338 of 1958 on a number of grounds, but their learned counsel, Chief H. O. Davies, confined his arguments to the following two:-

(1) The learned trial judge erred in law in refusing the defendants leave to amend their pleadings so as to allege illegality when the illegality complained of became apparent from the evidence before the court.

(2) (Numbered 3 in the notice of appeal as amended). The learned trial Judge erred in law in failing to take notice and give consideration to the question of illegality which appeared from the evidence brought before the court.

The grounds indicate that the Defence did not allege facts, or raise a plea of illegality, but Chief Davies relies on a number of cases, from which it will be enough to quote a passage from [1900] 2 Q.B., 214, at p. 220 where Kennedy, J., quoted from previous judgments, as follows:
“Ex turpi causa non oritur actio. This old and well known legal maxim is founded in good sense and expresses a clear and well recognised legal principle, which is not confined to indictable offences.

No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the court ought not to assist him.”

That came from the judgment of Lindley, L.J. in Scott v. Brown, Doering, McNab & Co., [1892] 2 Q.B. 724. It is followed by this passage from Lord [Mansfield’s judgment in Holman v. Johnson, (1775) Cowp. 341 (98 Eng. R., 1120):
“If from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.”

In Gedge, etc., the marine policy sued upon was illegal in view of the express provision in the Marine Insurance Act, 1745, section 1, that an assurance like that sort of policy “shall be null and void to all intents and purposes”; so, it made no difference that the defendants did not plead illegality.

They did, however, plead that the persons on whose behalf the plaintiffs effected the policy had no insurable interest in the ship, and the policy gave itself away as a wagering contract by one of its terms, that in the event of loss:-
“It is hereby agreed that this policy shall be deemed a full and sufficient proof of interest.”

Lindley, L.J. is described by Viscount Haldane, L.C. in the House of Lords’ case cited by Mr Adewale, the learned counsel for the plaintiffs -North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd., (1914) A.C., 461, at p. 473, as “one of the most cautious and accurate judges of our time”, and it should be noted that in the passage from the judgment of Lindley, L.J quoted in Gedge etc., there are these “ifs”:-
“If the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality if the evidence adduced by the plaintiff proves the illegality.”

Those conditions may not be present in a given case. No doubt if the contract on which the plaintiff sues is ex facie illegal, the courts will decline to enforce it whether the illegality is pleaded or not: for the courts administer the law of the land, and will not help a plaintiff who breaks it.

Where, however, the contract is not ex facie illegal and the question of illegality depends upon the surrounding circumstances the above House of Lords case shows that, in the words of the head note to it, “as a general rule, the court will not entertain the question unless it is raised by the pleadings”. Those in the case in hand will now be summarised.

The plaintiffs are exporters of flour from Canada, and the defendant’s importers in Lagos. The plaintiffs had Eastwood and Sharples Ltd. as their agents. There were transactions between 1956 and 1958, and the plaintiffs sued for the balance due to them on flour sold to the defendants, with accounts annexed to the statement of claim.

The flour market deteriorated in 1957 in Nigeria; the defendants had a large quantity of flour in store which began deteriorating, and the plaintiffs’ agent advised the defendants to sell in time. The Defence is that they sold accordingly and suffered loss, which the plaintiffs should re-imburse; the defendants denied owing the amount claimed and made a counter claim, which the plaintiffs denied. The issues were simple on which the parties went to trial. The Defence did not allege any facts which raised a case of illegality, and did not plead illegality.