Rambai v Rajan (C.A. 11/1934.) [1937] EACA 141 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. P.; LAW, C. J. (Zanzibar) and LUCIE-SMITH, Ag. C. J. (Kenya).

MRS. P. RAMBAI (Appellant) (Original Defendant).

$\mathfrak{N}$

## RAJABALI RAHEMTULLA RAJAN (Respondent) (Original Plaintiff).

## C. A. $11/1934$ .

- Ticket in Sweepstake-Claim for return of the ticket owing tofailure of defendant to pay the price of the ticket—Substitution of plaintiff's name for that of defendant on counterfoil— Ticket in question drew a horse and holder of ticket entitled to a prize of some hundreds of pounds—Wagering agreement -Section 30. Indian Contract Act-Claim for recovery of possession of an article the property in which had never passed from plaintiff—Whether sale on credit or for cash— Sale of Goods Ordinance, 1930, sections 3 and 19-Whether plaintiff entitled to judgment for the return of the ticket. - Held (29-6-34).-That, although a sweepstake ticket constitutes a wager, the respondent (plaintiff) was merely seeking to recover possession of an article the property in which had never passed from him. In this case the defendant did not pay cash for the price of the ticket by the evening of the day of the agreement to sell although plaintiff had told defendant that the sale was for cash and that, if he did not receive the price of the ticket by that evening, he would pay for the ticket himself and sub-<br>stitute his own name on the counterfoil. Under section 19, Sale of Goods Ordinance, in this state of facts, the property in the ticket would not pass to defendant until payment. On refusal of<br>defendant to deliver up the ticket to plaintiff, held that plaintiff is entitled to judgment for the return of the ticket. Appeal dismissed.

Appeal from Supreme Court of Kenya.

Patel for appellant.

Atkinson for respondent.

Patel.—Section 30, Indian Contract Act. Suit not maintainable. Tata v. Lance and others, 42 Bombay, p. 676. Gaming Act, 1892, applies to this country. Collateral agreement. Judge's reference to description of the transaction as a sale on credit. Influence on the Judge's mind. This was a sale on credit according to the plaintiff himself. Appellant not disbelieved on the material point of the conversation on 23rd March. Why should the woman commit a fraud? Court unduly influenced by case of a set-off displacing "sale on credit".

Atkinson.—Section 30, Indian Contract Act, has no applica-Kong Yee Lone and Co. v. Lowiee Naniee, 28 Indian tion. Appeals, p. 239; 29 Calcutta, p. 461. Section 30, Contract Act, is equivalent to the Gaming Act. This is an action for the return of a certain article which was in appellant's possession. This was an agreement to sell. It was never alleged that there was a sale. Section 3. Sale of Goods Ordinance. Agreement to sell subject to a condition of payment at end of day. Property never became appellant's. Bridger v. Savage (1885), 15 Q. B. D., p. 363. Defendant shifted her ground from her pleadings. Salient point is substitution of the respondent's name for the appellant's name. As to Judge's findings of fact, "Hontestroom" v. "Sagaporack", 95, L. J. P., p. 153. Lord Sumner's judgment; 136 L. T., p. 33. Sufficient evidence to support plaintiffs' case. Judge saw wit- $\mathbf{nesses}^{\perp}$

ABRAHAMS, C. J.-This is an appeal against a judgment of Mr. Justice Webb ordering the appellant to return to the respondent a ticket for the Irish Hospitals' Sweepstake on the Grand National: 1933.

The case of the respondent was that he had Irish Sweepstake tickets to sell at Sh. 10 each. The appellant asked for a ticket but said that she had not the money at the time, but would send it immediately she returned home. The respondent gave her the ticket, wrote her name on it and on the counterfoil, and told her that, as he was selling for cash only, if she did not pay that evening he would transfer the counterfoil to his own name and pay for the ticket himself. She did not pay and he went the following day when she said she no longer wanted the ticket and would return it when found, as it was for the moment mislaid. The respondent substituted his name for hers on the counterfoil and sent it to Ireland with the money. The ticket drew a horse and the owner in consequence became entitled to a prize of some hundreds of pounds. The appellant, however refused to hand the ticket back to him.

The appellant submitted that the respondent offered her a ticket but as she had no money he said that he would deduct the price of the ticket from the amount he owed or expected to owe her in respect of midwifery services rendered to his wife.

A preliminary point of law was taken by the appellant at the trial. It failed and has been made a ground of appeal. The argument was that the plaint disclosed a wagering agreement, and therefore section 30 of the Indian Contract Act prevented the maintenance of the suit. This section reads as follows: - "Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on a wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made". It is of course obvious

that a sweepstake ticket constitutes a wager between the organization controlling the sweepstake and the ticket-holder, but the respondent was merely seeking to recover possession of an article the property in which, if his facts are correct, had never passed from him and which therefore the appellant could no more claim to retain because it evidenced a wager, than if it had been lent to her to exhibit to some inquirer. The case of Tata $v$ . Lance and others, 42 Bom., 276, was cited by the appellant's counsel in support of this contention. I do not propose to discuss the facts in that case beyond saying that the only resemblance between it and this case is that in each the subject-matter of the dispute was a sweepstake ticket.

For the rest the case depends entirely upon the facts and the inferences to be drawn therefrom, but appellant's counsel urges that on one matter the learned Judge drew a wrong inference from a statement of his during the argument on the preliminary objection which prejudiced the appellant's case. $\quad\text{The}\quad$ passage in the judgment to which objection is made runs in this way: "Now, if it was the fact that at that time the defendant was attending the plaintiff's wife and had already paid her some five visits, for which she was entitled to be paid, and would in the ordinary course of events pay her other visits as she says that she in fact did, it is curious that, when this case first came before the Court, the defendant's advocate should have described the transaction as 'a sale on credit': no question of credit arises when the price of the thing bought can be set off against a present debt due from the seller to the buyer". This is what the learned Judge has recorded of counsel's submissions. "Burke and Patel 'On facts ticket sold on credit, delivery given to for defendant. defendant, thereupon ownership and possession passed to defendant.' "And later, "Patel.- "Plaintiff acquiesced in defendant's retention of ticket for so long that he must be taken to have agreed to credit sale.'" Mr. Patel now states that he was not submitting that his own case was that the transaction was a credit sale, but that the plaintiff's case on the pleadings ought to be construed into a credit sale. As a result, says Mr. Patel, the learned Judge, concluding that the appellant had shifted her ground at the trial, permitted himself to treat her evidence in general with scepticism although on no particular point does he actually discredit her.

I should be reluctant to refuse to accept counsel's assurance as to what his submission in the lower Court was intended to convey, though I cannot help observing that the learned Judge might have been assisted in drawing the inference he did by the appellant pleading that the ticket has been sold to her without stating for what consideration. Had it been stated that the consideration for the transfer of the ticket was the pecuniary value of services rendered or to be rendered counsel's submission could hardly have been misconstrued. Be that as it may, I am of the

opinion that appellant's case was not really determined by the The learned Judge surveyed the evidence with inference above. the most delicate care. He gave full credit, or perhaps I should say discredit, to the untruthfulness of the respondent on one matter of some importance. And there was one witness described by the learned Judge as being a reasonably disinterested witness. who gave evidence of a conversation with the appellant which, being believed by the learned Judge, supported the respondent's $\quad \text{case.}$ Finally, one circumstance is referred to by the learned Judge as being in favour of the respondent and that is his substitution of his name for the appellant's on the counterfoil of the ticket a month before the draw took place. This, the learned Judge was of opinion is consistent with a change of mind on the part of the appellant, but hardly consistent with deliberate fraud on the part of the respondent. This circumstance was not explained to the disadvantage of the respondent either at the trial or before us, and I admit that had I tried the case I should have attached considerable weight to it. I therefore see no ground for interfering with the judgment and am of opinion that the appeal should be dismissed with costs here and in the Court below.

Law, C. J. (Zanzibar).—I agree.

LUCIE-SMITH, Ag. C. J. (Kenya).—I agree.