C. Ayotope Savage V. S. O. Rotibi (1944)
LawGlobal Hub Judgment Report – West African Court of Appeal
Practice and Procedure—Promissory Note—Limitation of action raised at Hearing without pkadings—Protectorate• Courts Rules, 1934, Order XXIII.
Plaintiff by his action in 1942 claimed 1336 7s., lent in 1933, ties 1112 13s. 6d., balance of cash lent in 1941 ; there were no pp At the hearing Defendant (in person) denied liability for the L336 7s., Plaintiff then produced a promissory note for it dated 15th June, 1933. When called upon Defendant, for the first time, made the defence that this note was statute-barred. The trial Judge allowed this defince to be set tap and adjourned for Defendant to have counsel to argue it, but eventually held the claim for the £336 7s. was not barred. On appeal by Defendant :
that as the parties regarded the note of 1933 as a promissory note and intended it to be governed by English law—a position accepted by Plaintiff’s Writ allocating payments to the 1941 loan—the action thereon was barred.
Hold also : that as the action proceeded without pleadilags and Defendant had no counsel when the hearing began, the trial Judge had a discretion under the Rules of 1934 to allow the defence of limitation, to be set up when defendant was called upon after Plaintiff’s case had closed.
The Appellant is awarded costs in this Court assessed at 3u guineas.