097-NLR-NLR-V-29-AHAMADU-LEBBE-v.-AMINA-UMMA.pdf
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Present : Garvin J. and Jayewardene A.J.1988.
AHAMADU LEBBE v. AMINA TJMMA.
3—D. 0. Kandy, 33,864.
Minor—Conveyance of immovable property—False representation byminor—Act void or voidable—Restitution.
Where a minor by falsely representing himself to be of fall agedeceived a person and induced him to purchase his immovableproperty,—•
Held, that the conveyance was valid.
Whether an act be void or voidable, a minor who seeks relieffrom it mast apply to the Court for restitution.
Restitution is not granted to a minor who falsely representedhimself to be a major.
A
PPEAL from a judgment of the District Judge of Kandy. Thefacts appear from the judgment.
A. E. Keuneman, for defendant, appellant.
H. V, Perera, for plaintiff, respondent.
June 7, 1928. Jayewabdene A.J.—
By deed No. 17,351 dated December 29, 1924, the plaintiff con-veyed to the defendant a half share of a land called Jamanarangaha-mullahena. The plaintiff was at the execution of the deed, and stillis, a minor. He brings this action, assisted by his next friend, to havethe deed declared of no avail in law and to be declared the owner ofthe half share sold by him. The defendant pleaded that at thetime Of the execution of the conveyance, the plaintiff representedand held himself out to be a person of full age. and thereby inducedthe defendant to purchase the property.
The learned District Judge was satisfied that the plaintiff hadheld himself out as of full age, and had also urged in proof of thatfact that he had already executed 'three mortgages and a lease,all of them in favour of his present next friend, who is his brother.
The learned Judge declared the deed null and void, but condemnedthe plaintiff to pay to the defendant the sum of Bs. 643 which waspaid to the plaintiff on the transfer. The defendant appeals. It hasbeen clearly established that the plaintiff fraudulently representedhimself to be of full age, and hereby deceived the defendant andinduced him to purchase the property, in the belief that the plaintiffwas a major.
In the Boman law no relief was granted to a minor who fraudu-lently represented himself to be a major. ** Si is, qui minorem nuncse esse adseroerat, fallaci majoris aetatis mendatio te deceperit; cum
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1988.
Javewab-Daara A.J.
Ahamadu
LtObev.
Amino
Umma
juxta statuta juris errantibus non etiam fallentibus minoribus publicajura subveniant, in integrum restituti noil debet.'’ (Codex, Ub. 11.tit. 43, s. 2.)
Pereeius, Professor of Law at the University of Louvain, in hiscommentary on the Codex, remarks—
“ Sequitur alia causa, ob quam denegaiur restitutio in integrum net-minors succuritur ; nempe si minor dolo malo se majoremdixerit, 1it indueeret alium ad contrahendum,”
and again—
“ Nam ante hanc 25 annorum aetatem, vlrilem animi vigorem minorcompleri non solet, inquit, Ulpain de Minore—licet malitiainterdum aetatem suppleat." (Perezius—Praelectiones inCod., tit. 43 and 45.j
The view of the Boman law thus was that the remedy ofrestitutio in integrum should not be granted to a minor who wasfraudulent, fraud supply the want of age.
The same principle was adopted in the Roman-Dutch law. VanLeeuwen states that the “ decree of reinstation is not granted tothose who committed fraud, as for instance, if they have lied insaying they were of age.” (Van Leeuwen’s Cens. For., pt. I., bk.IV. oh. 43.)
According to Voet, restitution is denied if the minor is held, in theinterpretation of the law, to be a major at the time of entering intothe contract—when, for instance, he has obtained venia aetatis, oris regarded as having attained majority by marrying, or if he hasfraudulently represented himself as a major to the person withwhom he has contracted, if the other acted bona fide and under agenuine mistake; or finally, if at the time of the contract he washeld generally to be a major, not through a foolish mistake orignorance of law—having acted publicly and fulfilling duties as amajor: —
“Generaliter enim errantibus quidem minoribus, at non fallentibusac dolosis, jura publica subvenire constitutum est, malitia inmentieytibus aetatem supplente.” (Voet ad Pand., lib. IV.tit. 4, 8. 43.)
Voet thus adopts the view that fraud supplies the age in the caseof those who make false statements as to age. Sir A. F. S. Maasdorp(Chief Justice of the Orange River Colony) points out that acontract of a minor entered into by him even without the authorityof the tutor would be binding on the minor when the minor hasfalsely represented himself to be of full age and has deceived theother contracting party by such representations. (Maasdorp’sInstitutes of Cape Law, bk. I. oh. 43, p. 247.)
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According to Professor Lee, restitution is refused when a minorhas fraudulently misrepresented his age. (.Introduction to Roman-Dutch Law by R. W. Lee, p, 48.)
He quotes two oases—Johnston v. Reiser1 and Vogel Jt Co. v.Oeeniley 9—which are not available locally. He also refers to theCeylon case of Wijesooriya v. Ibrakimsa. 9 In that case it was heldthat a minor who falsely represented himself to be a major, anddeceived, the other contracting party, was bound, and the sale of apiece of land of the minor was held to be good. Hutchinson C.J.refused to allow the minor to obtain the benefit of the fraud whichhe had committed, and Middleton J. held that a fraudulent minorshould not expect the Courts to extract him from a position in whichhis own improbity had placed him.
This case was considered in Binnd Appu v. Podi Nona,* but theprinciple was not departed from, Lascelles C.J. holding that,although an untrue statement had been made as to age, evidence offraud, in the proper sense of the word, was almost entirely wanting,so far as the minor was concerned.
It was contended that the contract of a minor was ipso jurenull and void (Qrotius, bk, III. ch* 48, s. 10, Lee's Trans. p. 505,and Sonde's Restraints on Alienation, ch. 1. 6, 79), that a minoris protected by the mere operation of the law, that the re-instating is effected ipso jure, and that there is no necessity forthe extraordinary remedy of reinstating, and in effect that the reliefis sought ex abundanti cauteld.
Professor Lee observes that the phrase ipso jure void must not betaken too literally, for such obligations are not so void as voidableat the minor's option. (R. W. Lee, R. D. L., p. 39.)
The question, whether the contract of a minor is wholly void, wasconsidered in the case of Fernando v. Fernando 9 . and SUva v.Muhammadu,# and it was held that a minor’s deed'was not ipso Jurevoid but only viodable at his instance. In the South African case,Breytenback v. Frankel,7 Lord Villiers held that in all cases it wasnecessary for the minor to relieve himself by obtaining restitutio inintegrum.
Sampayo J. observed-in Silva v. Muhammadu {supra) that evenin the case of void contracts, the universal practice in Holland, accord-ing to Lord Villiers, was to apply for restitutio, and what was theuniversal practice in Holland must be taken to be law with us, thisbeing in accord with the general principle that a person cannot bejudge in his own cause, and when he wishes to get rid of his ownact he must seek the assistance of the Court. In James v. Solomon 8it was held that a conveyance of land by a minor was voidable only,
1 (1879) K. 166.8 (1916) 19 N. L. R. 193.
* (1903) 24 Natal L. R. 252.8 (1916) 19 NJj. R. 427.
8 (1910) 13 N. L. R. 195.7 (1913) S. L. R. Ap. Div. 390.
4 (1912) 16 N. L. R. 241.9 (1925) 3 T. L. R. 124.
1988.
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1988.and the deed not having been set aside effectually passed title to the
Jaybwab- purchaser; and in Veluptllai v. Elari8tx where a minor executed amkbAUT. mortgage bond in favour of the plaintiff and subsequently, afterAh&ma&u attaining majority, sold the land to a third party, the bond wasLebbe v. held to be voidable only, and as the minor had taken no proceedingsftnma to have the bond declared void, the mortgagee was held entitled tojudgment for the claim on the bond.
In view of these authorities it must be now taken as settled lawthat whether an act is void or voidable, restitution must be soughtfrom the Courts, and neither the minor nor his subsequent purchasercan treat the alienation as never having taken place at all.
The authorities which I have quoted are all agreed that restitutionis not granted to those who committed fraud by falsely stating theirage.
Even regarding this action as a merely vindicatory one, a fraudu-lent minor who states he is of full age, is bound by his contract,and the minor must be at the time of the contract held to have beena major in the eye of the law (juris interpretations),
Johannes a Sande in his Decisiones Frisicae makes particularreference to alienation of immovable property by minors: “ Si minorcommuni opinione vel errors existimatus major, rem immohilemalienaverit, valet alienatio, si modo is, qui cum minors contraxit,communi erroris deceptus, credidit sum esse majorem.” (Sand# ■Decis. Fns., bh. II. tit. 9, def, 16.)
Sand6, who was Senator of the Supreme Court of Friesland, saysthat the Court had so decided in many cases.
Voet says that the sale of immovable property, which a minorhad made without judicial decree and without his guardian'sauthority, will be valid, where the minor hag conducted andrepresented himself as a major and so deceived the purchaser.(Voet ad Pand.t lib. XXVII. tit. 9, s. 13.)
In his note to this section Nathan says that the terms of section24 of the Cape Ordinance 105, 1838, are so imperative that onemight be justified in holding that even where a minor representshimself to be a major, a sale of landed property cannot take placewithout a decree of the Court, but that where there is no decisionof any Court on the subject, it would be safer to hold with Voetthat in case of fraud the minor is bound by the sale. (.Nathan'sCommon Law of South Africa, p. 193.)
In that view the alienation of the plaintiff was a valid one.
I am of opinion that the plaintiff's action fails, whether viewedas a vindicatory action or as one for restitution. I would allow theappeal and dismiss plaintiff's action with costs in both Courts.
Garvin J.—I agree.
Appeal allowed.
x(im) 7 C.L. See. 162,