Restitution Of Illegal Payment
| Date | 01 May 1960 |
| Published date | 01 May 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00607.x |
322
THE
MODERN
LAW
REVIEW
VOL.
23
and Paul1
J.
came to this conclusion without any hesitation. This
rationalisation, though, is unsatisfactory.
It
would be more
sensible to apply the comparatively unknown and unused
cc
interest
theory
”
a
of negligence, and say that although the defendant owed
the plaintiff a duty of care in respect of her physical security, no
duty of care was owed to her in respect of nervous shock sustained
as a result of hearing bad news. A great deal of sympathy must
be
felt for the plaintiff, but this should not be allowed to add
further illogicality and confusion to the nervous shock cases.
G.
DWORKIN.
RESTITUTION
OF
ILLEGAL
PAYMENT
LORD
DENNING’S judgment, delivered on behalf of the Judicial
Committee of the Privy Council, in
Kiriri
Cotton
Co.
Ltd.
v.
Ranchhoddas Keshavji Dewani
deserves careful study and illumi-
nates several difficult points in a branch of the law where, although
the principles have been frequently stated, the decisions ‘are con-
flicting and there is often a doubt which principle properly applies.*
What if the money sought
to be recovered had been paid under
a
mistake of law common to
them both
?
If
the payment
of
a premium
for
a lease be prohibited
by a Rent Restriction Ordinance which, enacting that its receipt
is a criminal offence punishable by a substantial fine
or
imprison-
ment
or
both, yet, contrary to the English Acts, does not specific-
ally enable the tenant to recover
it
back, is the absence
of
such a
provision conclusive? Does the omission of
a
statutory remedy
exclude the remedy of money had and received
?
The case came on appeal from the Court
of
Appeal for Eastern
Africa and arose under the Uganda Rent Restriction Ordinance,
1949,
s.
3
(2).
An Indian merchant, coming to Kampala in Uganda in
1953,
looked for somewhere to live. With difficulty he found a flat, but
had to pay a premium of
10,000
shillings, which he borrowed.
This money he now reclaimed frbm the landlords, saying that the
payment, being in contravention of the Ordinance, was illegal.
The High Court of Uganda gave him judgment and the Court
of
Appeal for Eastern Africa affirmed the decision. The landlords
appealed.
He had taken the flat “for residence only” on a sub-lepe
prepared by lawyers for seven years and one day, at a rent of
300
shillings a month. Neither party thought that, on a lease
8
See Street,
Lam
of
Toft8
(2nd ed.), 113; Payne,
Current
Legal
Problems
(1952); (1955)
18
M.L.R. 43; Machin (1954)
17
M.L.R.,405;. Lord WFight,
“Re
Pdlemis,”
14
M.L.R.
393,
398.
Cj.
Denning
L.J.
in
Kmg
v.
Phzlbps.
1
[1960]
2
W.L.R. 127 (Lord Denning, Lord Jenkins, the Rt.
Hon.
L.
M.
D.
de
Silva)
;
[19603
1
All
E.R.
177.
a
See, generally, the penetrating analysis
by
b.
E.
Grodecki,
“In
pari
deZicto,
potior
eat
wnditio
defendentia
When are parties
in
pan’
delicto?
(1956)
71
L.Q.R. 954-274.
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