Appeal Court.

19 November 1934    Appeal from Supreme Court.

.Joinder of Joint and Several Claims-Set oil not specifically applied for or pleaded-Separate debts set oil against a joint claim-Set oil and a Claim for trust moneys-plea of Statute of Limitations.

Held: Separate debts cannot be set off against a joint claim. Statute of Limitations not applicable in this case.

The facts of the case are sufficiently set out in the judgment.

A. Soetan for Appellants.

J. C. Zizer for Respondents.

The following judgment was delivered:-

WEBBER, C.J., SIERRA LEONE.

This is an appeal from the decision of Graham Paul, J., who gave judgment for the plaintiffs-appellants for £38 2s. 6d. but ordered them to pay costs assessed at forty guineas.

This judgment was in respect of a joint claim against the defendants as the Administrators of the Estate of their (the defendant's) father, the late David Augustus Taylor, who died on ,28th April, 1932. He was the uncle of the plaintiffs, and he dealt with the Estate of Thomas Taylor senior, the plaintiffs' grand­father, who died in 18~2.

The plaintiffs claimed jointly the sum of £553 6s. 8d. being' one-third share of certain specified rents for the period 1922·1925 said to have been collected by the late, D. A. Taylor in his capacity as Administrator of the Estate of the late Thomas Taylor senior, the plaintiffs claiming as beneficiaries in that Estate, and there is an extra sum claimed, namely £78 11s. 1O;d., being second plaintiff's share of the distribution of the said Estate effected by the Administrator in 1922. '

On this claim as it stands the learned Judge found for the plaintiff as per the claim but made two reductions-namely £40 being certain rents not actually received by the late D. A. Taylor, and £78 11s. l0;d. which the learned Judge found as the second plaintiff's share as claimed but against which he set off that amount by a credit entry in the second plaintiff's account at page 13 of the Ledger.

The plaintiffs agree to the reduction of £40 but deny the right of the defendants to set off a sum equivalent to the amount £78 Us. l0ld. as claimed.

I agree with the Judge's reduction of the sum of £78 11s. 10~d. and for these reasons-this part of the plaintiffs particulars of their claim refers to the second plaintiff's share and had nothing to do with the joint claim and he has rightly held that this has been settled. It was rightly set off .on the ground that the second plaintiff agreed to the set off of £67 and actually received payment of the balance. In Exhibit " E " in a letter dated 5th August, 1H22, the late D. A. Taylor wrote to second plaintiff as follows;­ "Against your own share of £78 11s. l0~d. I have advanced of £67," and in reply a week after second plaintiff asked permission to have ~he balance £11 11s. l0d. shown in his favour and this was paid to him. by cheque B.B'-W.A. No. B.281461. It was not part of the joint claim, and it was settled in the matter indicated. I agree with the ,judge' s finding that on. the joint claim as before the Court a sum of £513 is owing.

In t he course of the proceedings there emerged a set off against this joint claim on the cross-examination of the first witness, and then followed as much, if not more, evidence about the individual debts owing by the plaintiffs individually to the late D. A. Taylor as about the claim actually before the Court.

The defendants pleaded (a) the Statute of Limitations and (b) not indebted.

There was no plea of set off nor was the Judge ever asked to allow it. The case however proceeded, and the main issue at the con elusion was the right of the defendants to set off the individual debts of the plaintiffs against their joint claim.

The learned ,Judge after finding for the plaintiffs for £513 then proceeded to adjudicate on the set, off which emerged during the proceeding's, the Total amount of which was not ascertainable until the conclusion of the defendants' case wa8 reached.

He found that the plaintiffs were individually owing the late D. A. Taylor sums amounting to £413 68. 8d. leaving a balance in favour of the plaintiffs of £100, and then deducted a further sum of £61 17s. 6d. owing by the 1st plaintiff to D. A. Taylor and finally gave judgment for £38 2s. 6d.

There were several grounds of appeal but it is sufficient to . deal only with grounds 2 anD 7. Ground 2 reads as follows;-

" The learned Judge was wrong in law and in fact in allowing set off by the defendants in this action on the follow­ing grounds-

(a) " The defendants did not specifically plead set off nor filed any notice thereof or made any definite or proper application to the Court in respect thereof;

(b) The debts set off were statute barred and not action­able at date of writ;

               (c) Set off is not allowed against a claim for money held in trust;

(d) Separate debts ought not to be set off against a joint claim ".

As to (a) the Counsel for appellants is correct in saying that no set off was pleaded-nor was there at any stage of proceedings any application made to set up any such set off-at no stage of the proceedings did the learned Judge specifically permit it, but apart from the embarrassment which the introduction of such extraneous matters during the proceedings must have caused the plaintiffs, I am of opinion that (d) of ground 2, namely that separate debts ought not to be set off against a joint claim is a good ground for disallowing the set off calculated by the Learned Judge in this case.

A joint debt and Q several debt cannot be set off against each other (Ex parte Twogood 1805 11 Ves 517). This is exactly what has happened in this case. The defendants have sought to set off debts owing by the plaintiffs individually to the late D. A. Taylor against a joint debt due to them from the Estate. I do not see how any of the cases quoted by the respondents' Counsel applies. Equity does not allow a set off of debts accruing in different rights (as in this case) unless there is a series of transaction clearly show­ing that joint credit was given on account of the separate debt .(V1tlliamy v. Noble 1817 3 Mer 593. 618).

In Hanson ex parte 34 E.R. 305, quoted by Counsel for respondents, the joint debt was nothing- more than a security for the separate debt which is not so in this case, the debts having been incurred before the rents accrued, and I am unable to hold that the facts in this case are strong enough to raise any presumption of an agreement. to Ret off. In fact. they tend. to negative such a presumption. In December'. 1 !)25. first plaintiff ask/! for his and his brother's share due out of the Estate (Exhibit" B ") and the late D. A. Taylor replies agreeing that something must be done. He does not refer to transaction which happened seven years before this nor does he suggest any set off.

The plaintiffs patiently waited for four years, and in May, 1930, they addressed a formal letter to him "Dear Sir" demanding a general account of the Family Estate. There does not appear to have been any answer to this.

In my opinion the proper procedure in this case, owing to its importance, was to direct pleadings--after pleadings there were bound to follow two counterclaims, one against each plaintiff, and pleadings on the counterclaims. It is true that the plaintiff did not. demur to the procedure adopted in this case in bringing into issue the indebtedness of the plaintiffs to the late D. A. Taylor who was the manager of the Trust Estate, and they may be said to have to some extent acquiesced in such a procedure; but I think it would be equitable to give the plaintiffs every opportunity of meeting such claims should the defendants decide to pursue them by a separate action against each. Although there has been no appeal by the respondents on the ruling of the learned Judge on the plea of the Statute of Limitations, we have he en asked to decide whether such a plea is a good one, assuming that the Statute of Limitations applies to native8 in Nigeria. I agree with the learned Judge that the Trustee Act of 1888 in England covers the position of the late D. A. Taylor in regard to the subject matter of this claim which seeks to recover the proceeds of trust property in his hands.