Fuad Gabriel Noujaim V. Rashid Aly (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeals in Civil Cases—Finding offact—Onus on appellant to show thefinding was wrong.
Evidence—Administrator agreeing to amount of deceased’s indebtedness—An agreement inter vivos—Rule on claims against estates not applicable.

Facts

The respondent traded on his own account and was also the manager of a firm and a partner in it. The appellant was the administrator of the estate of a deceased person. The respondent in his private capacity, and his firm also, had dealings with the deceased. Meetings between the administrator and the respondent resulted in the administrator signing a promissory note for the amount owing to the respondent himself, who sued for the balance due on the note.

The administrator’s defence was that he had made certain payments to the respondent towards his personal promissory note but the latter credited some to the deceased’s debt to the firm for the reason that this debt was agreed at a certain sum on condition that the firm should return sundry goods supplied by the administrator to the firm.

The respondent said that that sum was an agreed balance after credits having been allowed and that there was no such condition as alleged. The trial Judge accepted the evidence of the respondent and found that the agreement on the sum due to the firm had been unconditional, and gave judgment for the respondent-plaintiff for the balance due on his note.

In the administrator’s appeal (1) the findings were attacked and (2) it was also argued that on principle a claim against an estate could not succeed where it was simply a question of oath against oath.

Held

(1) The issue was purely one of fact and the case turned on the conflicting testimony of witnesses whom the trial Judge had the advantage of seeing; the onus was on the appellant to show that the Judge’s decision was wrong, but this onus the appellant failed to discharge.

(2) The principle invoked had no application to the case since the agreement relied upon by the respondent was an agreement inter vivos between him and the appellant as administrator of the estate.

Appeal dismissed.