Michael Phares V. Joseph Abdallah (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Defendant pleaded admitted indebtedness on Promissory Note and pleaded settlement.

Held: Onus of proof of settlement being on him and undischarged, appeal dismissed.

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.d., 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 :—

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. YANNI on the 9th August, 1926, to the Bank 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.

The 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 Exa. 8 and 9 dated 16th March, 1936, and 26th May, 1936, admitted liability to the plaintiff, these letters being written in 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 is dismissed with costs to be taxed.