Weekes v Gibbons

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Satrohan Singh, J.A.
• Judgment Date: 26 April 1993
• Neutral Citation: MS 1993 CA 2
• Docket Number: No. 2 of 1992
• Date: 26 April 1993

Weekes

and

Gibbons

Floissac, C.J. Singh, J. Byron J.

No. 2 of 1992

High Court/Court of Appeal

Contract - Illegality — Oral contract to carry out building works on respondent's house — Appellant sued on contract — Registration of Building and Civil Engineering Contracting Undertaking Ordinance, 1968 provides for registering contracts — Appellant failed to comply with ordinance — Whether contract unlawful and unenforceable — Whether Act created solely for protection of Revenue — Registration of Building and Civil Engineering Contracting Undertaking Ordinance, 1968 (No. 23 of 1968), s. 3, 4, 5 and 6.

1 JUDGMENT OF THE COURT: The central issue in this appeal is whether the Registration of Building and Civil Engineering Contracting Undertakings Ordinance 1968 (Act No.23 of 1968) nullifies building contracts which have not been registered as required by the Act. In order to resolve that issue, it is necessary to determine whether the Act expressly or impliedly nullifies unregistered building contracts or expressly or impliedly prohibits the performance or enforcement of such contracts. Since there is no such express nullification or the Act, the issue is reduced to the question whether such nullification or prohibition may properly be implied.

2 Statutory implications are derived from legislative intention. We are therefore required to decide whether the statutory context (the words, object and other surrounding circumstances of the Act) indicates a legislative intention to nullify unregistered building contracts or to prohibit the performance or enforcement of such contracts. Since we are here concerned with illegality, an important (if not the most important) circumstance is public policy.

3 In Vita Foods Products v. Unus Shipping Co. [1953] 1 All E.R. 513, lord Wright (delivering the opinion of the Privy Council) said (at p.523):

“Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.”

4 In this case, there are at least four surrounding circumstances which militate against the implication of a legislative intention to nullify unregistered building contracts or to prohibit the performance or enforcement of such contracts. (1) The object of the Act is to penalise rather than to nullify. (2) The Act does not prescribe contractual terms for the protection of the building owner or the public. (3) The automatic illegality and nullity of unregistered building contracts would result in injustice to those building owners who are not in pari delicto with their building contractors and who as a result of the illegality and nullity would be left with no enforceable right to damages for lareacaies of those contracts by their building contractors. (4) There is no discernible ground of public policy which could justify the illegality grad nullity of unregistered building contracts and the severe consequences of such illegality and nullity.

5 For these reasons (which are amplified in the leading judgment of Singh, J.A.), I concur with the conclusions in that judgment and agree that the appeal should be allowed.

Satrohan Singh, J.A.

6 On October 3, 1990, the appellant sued the respondent on an oral contract whereby the appellant undertook to carry out certain building works on the respondent's house for a price. The matter was heard by Georges, J. who on July 31, 1992, dismissed the appellant's case with no order as to costs on the ground that in entering such a contract, the appellant failed to comply with the provisions of the Registration of Building and Civil Engineering Contracting Undertakings Ordinance 1966 (Act No.23 of 1968) (the Act). This Act provides for the registration of certain building arid civil engineering contracts undertaken in Montserrat and makes it an offence attracting penal sanction for the contravention of any of its provisions. The learned judge found that the failure by the appellant to comply with the above law rendered the contract in issue unlawful and consequently unenforceable. It is accepted that the contract referred to in this matter was one to which the Act applies, that the contractor breached the provisions of the Act in that he did not register the contract in accordance with the provisions of the Registration of Records Act and that he performed on the contract without it being so registered.

7 The appeal is from that judgment on the following grounds:–

• A(l) The learned trial judge erred in law when he based his decision on a matter which was not pleaded, never at any time throughout the trial became an issue, and was never even mentioned in addresses to the court.

• (2) The learned trial judge did not address his mind to the fact that the plaintiff/appellant made an alternative claim for work done and labour supplied, that the work for which the plaintiff claimed under this head was already completed and that the plaintiff/appellant would have been entitled to this sum in any event.

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