Wakilii

Belge S.A. v Sibilia (C.A. 21-1934)

East African Court of Appeal · [1934] EACA 1 · 1934 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the High Court of Tanganyika in a civil action for recovery on promissory notes
Decision
Appeal dismissed; trial court judgment upheld awarding appellants recovery on three promissory notes but not on notes A and D

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a respondent's notice under Rule 30 permits challenge to the entire judgment, not just the portion appealed. Where evidence is admitted without objection and argued by both parties, the court may adjudicate on it even if outside pleadings. Applying Field v Carr, the court held that when appellants debited promissory notes A and D to Jivanjee Bros.' account upon dishonour, they could not subsequently recover those amounts from the respondent. The promissory notes were continuing security under Exhibit 11 until appropriated. Where a judgment is silent on further interest, it is deemed refused under Civil Procedure Code s.34(2). Appeal dismissed; costs apportioned.

Outcome

Appeal dismissed; trial court judgment upheld awarding appellants recovery on three promissory notes but not on notes A and D

Facts

Banque du Congo Belge S.A. sued respondent Sibilia as maker of five promissory notes in favour of Jivanjee Bros., who endorsed them to the bank for value before maturity. Total claim was Shillings 13,389.75 for principal, interest and protest expenses. Respondent defended on the basis that he had paid Jivanjee Bros. in full. The trial judge found respondent had paid Jivanjee Bros. in 1932 but this did not discharge liability to the bank as holder. For three notes (B, C, E), Jivanjee Bros. were never credited by the bank and were not debited upon dishonour. For notes A and D, the bank had discounted them, credited Jivanjee Bros., and upon dishonour debited Jivanjee Bros. with the amounts. After this debit, Jivanjee Bros. paid the bank over Sh. 76,000, more than enough to cover all debits including notes A and D. Exhibit 11 was an agreement whereby bills lodged by Jivanjee Bros. would operate as security for their liabilities to the bank. Trial court gave judgment for the three notes but not A and D, applying Field v Carr. Bank appealed; respondent cross-objected.

Issues

  1. Whether a respondent who has received a notice under Rule 30 of the Court of Appeal Rules may contest the entire judgment or only the portion appealed by the appellant.
  2. Whether the trial judge erred in failing to strike out the defence as being unreal.
  3. Whether evidence regarding payments by Jivanjee Bros. to the appellants was properly admitted despite not being raised in the pleadings.
  4. Whether the appellants, as holders in due course of promissory notes, could recover from the respondent after debiting the endorser (Jivanjee Bros.) upon dishonour.
  5. Whether Exhibit 11 empowered the appellants to treat the promissory notes as continuing security for amounts owed by Jivanjee Bros.
  6. Whether the trial judge erred in refusing to award further interest from the date of filing suit.
  7. Whether the apportionment of costs by the trial judge was proper.

Orders

  • Appeal dismissed with costs.
  • Respondent's notice under Rule 30 dismissed with costs.
  • Appellants' and respondents' costs to be set off, one against the other.

Rules and key headnotes

Civil Procedure — Appeals — Notice by Respondent — Scope of Respondent's Challenge
A notice given by a respondent under Rule 30 of the Court of Appeal for Eastern Africa Rules (counterpart to Order 58 Rule 6 of the Supreme Court of England Rules) permits the respondent to attack a judgment in its entirety and not only that portion against which the appellant has appealed.
Civil Procedure — Pleadings — Striking Out — Unreal Defence
Where a party contends that a defence is unreal, it is open to that party to apply under Order 6 Rule 16 of the Civil Procedure Code to have the defence struck out at the outset; failure to do so precludes raising this objection on appeal.
Evidence — Admissibility — Evidence Outside Pleadings — Consent
Where evidence possibly outside or not properly raised in pleadings is admitted without objection, witnesses are questioned on it, and arguments are addressed by both parties, there is consent to its admission and the court is entitled to adjudicate thereon.
Banking & Finance — Promissory Notes — Holders in Due Course — Liability of Drawer after Debit to Endorser
Where a bank as holder in due course of a promissory note debits the endorser's account upon dishonour, the bank cannot thereafter recover the amount from the drawer; the note is treated as returned and held only for collection purposes.
Banking & Finance — Collateral Security — Continuing Security — Bills and Notes Lodged for Collection
An agreement that bills or notes lodged by a customer with a bank for collection shall operate as security for the customer's liabilities empowers the bank to treat such instruments as continuing security until appropriated or otherwise dealt with.
Civil Procedure — Interest — Award of Further Interest — Silence in Judgment
Where a judgment is silent as to interest being awarded from the date of filing suit, it shall be deemed under section 34(2) of the Civil Procedure Code to have been refused.
Civil Procedure — Costs — Apportionment — Judicial Discretion
Apportionment of costs under section 35 of the Civil Procedure Ordinance is a matter of judicial discretion; where the trial judge has given reasons for apportionment, an appellate court will not interfere absent improper exercise of discretion.

Legislation cited (12)

  • Bills of Exchange Ordinance s.57
  • Bills of Exchange Ordinance s.87
  • Bills of Exchange Ordinance 1931 (Tanganyika) s.87(1)
  • Civil Procedure Code Order 6 Rule 16
  • Civil Procedure Code Order 8 Rule 2
  • Civil Procedure Code s.34
  • Civil Procedure Code s.34(2)
  • Civil Procedure Code s.35
  • Civil Procedure Ordinance s.34(2)
  • Civil Procedure Ordinance s.35
  • Court of Appeal Rules 1925 Rule 30
  • Supreme Court (England) Rules Order 58 Rule 6

Cases cited (24)

  • Field and Others v Carr (130 E.R. 964)
  • Mohen Ting v. Ghureba and Others, 6 Bengal E.R. p. 495
  • Miller v. Babu Madhodas, 23 Madras Appeals, p. 106
  • Miller v. Babu Madho Das, 28 L.R., Ind. App. p. 106 at p. 116
  • Satchu Hamir v J.S. Addetia (Civil Appeal No. 27 of 1933)
  • Jackson v. International Cable Co., Ltd., 5 T.L.R., p. 13
  • Kashibhai Dungerbhai Patel v. Devraj Hirji and Co., 14 K.L.R., p. 38
  • Kanji Devji v. Damodar Jinabhai and Co., 1 Ct. App, L.R. (E.A.) p. 87
  • Kara v. Issa bin Khalifa, 1 Bombay, p. 209
  • Javer Meghji and Habib Punja v Adam Jusab (Civil Appeal No. 13 of 1932)
  • In re Cavender's Trusts, 16 Ch.D. p. 270
  • Ex parte Payne, 11 Ch.D. p. 539
  • Ex parte Payne in re Cross, 11 Ch.D. p. 539
  • Jones v. Stott, 1910, 1 K.B. p. 893 at p. 901
  • In re Mellor (1922) 1 Ch.D. p. 312
  • Civil Appeal 29/31 Court of Appeal for E.A.
  • Karimjee Jivanjee and Co. v The Hon. the Attorney General for Tanganyika (Civil Appeal No. 29 of 1931)
  • Wigrain v. Buckley (1894) 3 Ch.D. p. 483
  • Webster v. B.E.M.L. Ass. Co. (1880) 15 Ch.D. at p. 175
  • Pease v. Hirst 109 E.R. p. 396
  • Krishna Chandra Gajarpeti Narayana Deo v. Mulla Remmana Das A.I.R. 1932 Journal p. 50
  • the 'Bee Swing' 1885, 10 P.D. p.18
  • Lea v. Williams, dated 4th March, 1886
  • Spindler v. Grellet 1847, 1 Exh. 384; Vol. 154 E.R. 163

Full judgment

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Belge S.A. v Sibilia (C.A. 21-1934) [1934] EACA 1 (1 January 1934)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.