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DAMIANA AJIKE
V.
LAWRENCO ANTONIO CARDOSO AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
25TH DAY OF OCTOBER, 1939
2PLR/1939/24 (WACA)
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OTHER CITATION(S)
2PLR/1939/24 (WACA)
(1936) V WACA PP. 134-136
LEX (1939) – V WACA PP. 134-136
BEFORE THEIR LORDSHIPS:
CAREY, J.
BAKER, J.
BROOK, J.
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BETWEEN:
DAMIANA AJIKE — Appellant
AND
SIMON I DE SOUZA (NOW DECEASED)
1. LAWRENCO ANTONIO CARDOSO
2. ALBERT ESEDETE CARRENA (SUBSTITUTED BY ORDER OF 29TH OF SEPTEMBER, 1939) — Respondents
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ORIGINATING COURT(S)
APPEAL FROM JUDGMENT OF SUPREME COURT
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REPRESENTATION
L. B. Agusto — for Appellant
I. O. Caxton-Martins — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW:- Statute of Limitations — Absolute acknowledgment of debt or unqualified, unconditional promise to pay is necessary to take case out of Statute — Conditional promise — Where condition not performed and without a clear acknowledgment — Whether insufficient to infer a promise to pay
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CASE SUMMARY
The Respondent wrote to the Appellant as follows:
“I received your letter of yesterday’s date regarding the amount owing to you. I shall be glad if you await the arrival of lawyer Onibuwe when I hope he will be able to put the matter right”.
The learned Trial Judge held this was not a sufficient acknowledgment of the debt to take it out of the Statute of Limitations.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Appeal dismissed and judgment of Supreme Court dismissing the claim affirmed.
Cases cited:-
Chasemore versus Turner (L.R.10 Q.B, 500, 506)
Green versus Humphreys (26 Chancery Division 474, 479)
Tanner versus Smart (6 B & C 603)
Spencer versus Hemmerde (2 Appeal Cases 1922)
Morrell versus Frith (1838 M & W. 402).
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MAIN JUDGMENT
The following joint judgment was delivered:
CAREY, BAKER AND BROOKE, JJ.
This is an appeal from the judgment of Butler Lloyd J. The learned trial Judge states in his judgment that there is a mass of cases on the issue now before us, the principles however applicable to cases such as this are well established.
The difficulty arising in any particular case consists in applying those principles to the particular facts of the particular case.
The law as I understand it is laid down in the cases of Chasemore versus Turner L.R. 10 Q.B. 500, 506 and Green versus Humphreys, 26 Chancery Division 474, 479.
In the former case, Amphlett B, formulated the rule as follows:
“First of all, if there be an absolute unconditional acknowledgment of the debt, that is sufficient. If that stands alone and nothing is said about payment, the acknowledgment of the debt would imply a promise in law to pay the debt, but if there is not only an acknowledgment of the debt but a promise to pay the debt in words, we then have to look whether the promise to pay is an unqualified unconditional promise or whether it is a conditional promise; and if it is a conditional promise to pay and the condition is not performed then the mere acknowledgment of the debt will not take the case out of the Statute.”
In the latter case of Green versus Humphreys Bowen L.J. said—
“The law has been clear for fifty years, and all the cases that have been reported since that time are merely illustrations of the way in which the Court applies the principle. It is clearly settled that to take a case out of the Statute there must be an acknowledgment or a promise to pay, and that where there is a clear acknowledgment that the debt is due from the person giving that acknowledgment a promise to pay will be inferred. That was laid down by Lord Tenterden in Tanner versus Smart 6 BGC 603 and the proposition, as Chief Baron Kelly said in Quincey versus Sharp 1876, has never been disputed, and it has been restated over and over again in all the Courts.
Now, first of all, the acknowledgment must be clear in order to raise the implication of a promise to pay. An acknowledgment which is not clear will not raise that inference. Secondly, supposing that is an acknowledgment of a debt which would if it stood by itself be clear enough, still, it words are found combined with it which prevent the possibility of the implication of the promise to pay arising, then the acknowledgment is not clear within the meaning of the definition, because not merely is there found in the words something that expresses less than a promise to pay (which will not necessarily put an end to the implication of the promise to pay), but because the words express the lesser in such a way as to exclude the greater.”
This being the law I turn to the letter written in this case with a view to determining whether according to the ordinary and natural meaning of that letter it contains either an expressed promise to pay or a clear acknowledgment of the debt and in the latter case whether the acknowledgment is coupled with words which prevent the implication of an unconditional promise. The letter the Respondent relies on is as follows:
“I received your letter of yesterday’s date regarding the amount owing to you. I shall be glad if you await the arrival of lawyer Onibuwe when I hope he will be able to put the matter right.”
I can see no point in the first ground of appeal that the original letter demanding the debt should have been produced. Plaintiff relies on a letter which he alleges constitutes an acknowledgment to take the case out of the Statute of Limitations and that letter is in evidence.
With regard to the two other grounds taking the ordinary and natural meaning of the letter it has not been contended that it contained an express promise to pay.
Now is there a clear acknowledgment of the debt or may an acknowledgment be inferred? The words used in the letter are “I shall be glad if you await the arrival of lawyer Onibuwe when I hope he will be able to put the matter right.
This is not a letter asking for forbearance or further time to pay the debt which it has been held would take the case out of the Statute (see Spencer versus Hemmerde 2 Appeal Cases 1922). In my opinion it amounts at best to the expression of a hope that some sum may amicably be agreed upon to be owing other than the amount claimed, if any at all; in fact, as the learned trial Judge states it is very similar to the alleged acknowledgment in the case of Morrel versus Frith 1838 M. & W. 402, particulars of which are set out in the trial Judge’s judgment, which was held not to be a sufficient acknowledgment of the debt to take it out of the Statute of Limitations.
The appeal must fail and the judgment of the lower Court is hereby affirmed with costs assessed at £10 10s.
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