Defendant
pleaded admitted indebtedness on
Promissory Note and pleaded
settlement.
Held: Onus of
proof of settlement being on him
and undischarged, appeal
dismi88ed.
The facts are
sufficiently set out in the
judgment.
Tuboku-Meteger (Cummings John
with him) for Defendant
Appellant.
Lardner
for Plaintiff-Respondent.
The following
joint judgment was delivered:-
KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
COAST, GRAHAM PAUL, C.J., SIERRA
LEONE.
The plaintiff
in this suit claimed payment
from the defendant of the sum of
£343 4s 6d made up as follows:-
|
|
£ |
s |
d |
(1) |
Balance due on promissory
note dated10th February,
1926 |
168 |
4 |
8 |
(2) |
Interest
on £168 4s 8d from 1926 to
1932 @ 12% per annum |
121 |
2 |
6 |
(3) |
Amount spent by plaintiff on
behalf of defendant on
defendant's request in the
matter of asbek v. Madam
Hasiba |
53 |
17 |
4 |
|
Total . |
£343 |
4 |
6 |
The Court
below gave judgment for the
plaintiff for £186 in respect of
the principal and interest due
under the Promissory Note and
for £34 Is 4d in respect of the
third item in the plaintiff's
claim. Against that judgment the
defendant has appealed to this
Court and at the hearing of the
appeal the appellant's counsel
intimated that he abandoned the
appeal as regards the sum of £34
Is 4d and confined his argument
to the judgment for £186.
In regard to
the £ 186 the grounds of appeal
were as follows:-
1.
The
learned trial Judge was wrong in
holding that the plaintiff could
maintain an action against the
defendant on the Promissory Note
dated 10th February, 1926, as
the said Note was indorsed on
the 16th July, 1926, by the
plaintiff to D. N. Y ANN! on the
9th August, 1926, to the Dank of
British West Africa, Limited.
2.
The
learned trial Judge was wrong in
holding that the amount due on the
Promissory Note dated 10th
February, 1926, was not barred by
the Statute of Limitations (21 Jac.
1 c. 16).
3.
The
learned trial Judge was wrong in
holding that the receipt for £450
dated 31st March, 1926 (Ex. 4)
given by the plaintiff to the
defendant's brother Minhem .Abdallah
did not include payment of the
£240 due under the said Promissory
Note.
4.
There
was not sufficient evidence on
which the learned trial Judge
could have held that there was a
balance of £186 due under the said
Promissory Note or any sum
whatsoever.
'rhe
appellant's counsel abandoned the
first of these grounds and
confined his arguments to Nos. 2,
3, and 4.
The learned
trial Judge has found as a fact
that the defendant by letters Exs.
8 and 9 dated 16th March, 1936,
and 26th May, l!J36, admitted
liability to the plaintiff, these
letters being written ill answer
to a specific claim by the
plaintiff for payment of inter
alia £240. The terms of the
letters, coupled with the oral
evidence of the parties given at
the trial were such as to justify
the Court below in its finding of
fact, provided of course, as we
must assume, that the Court below
preferred the evidence of the
plaintiff on the point to that of
the defendant. We do not. consider
that we should be justified in
disturbing that finding of fact.
That finding of
fact strikes right at the heart of
the second, third and fourth
grounds of appeal. Assuming that
the Statute of limitations applies
in this transaction it is clear
that the statutory period of six
years began to run afresh from the
dates of the letters admitting
liability and it has not yet
expired. That is fatal to the
second ground of appeal.
These letters
admitting liability are equally
fatal to the third ground of
appeal for they are some ten years
subsequent in date to the receipt
for £450 which is the basis of the
third ground of appeal.
The fourth
ground of appeal has to be
considered with due regard to the
incidence of the onus of
proof. The making of the
Promissory Note is admitted by the
appellant.
In 1936 he
wrote letters quite inconsistent
with his contention in this case
that he had settled his
indebtedness to the plaintiff.
Where a defendant pleads, as the
appellant in this case pleaded,
that the indebtedness represented
by the admitted Promissory Note
had been settled, the onus
of proof of the settlement is upon
him. It is impossible for us to
hold that the Court below was
wrong on the evidence before it in
holding that the appellant had
failed to discharge the onus
of proof upon him.
The appeal it! dismissed with
costs to be tax |