Wakilii

McCoy v Allibhai (Civ. App. No. 3-38.)

East African Court of Appeal · [1938] EACA 70 · 1938 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Webb, J. (Kenya) concerning limitation and pleading requirements
Decision
Appeal allowed with leave to amend defence; matter to proceed on merits with limitation properly pleaded

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that section 40 of the Limitation Ordinance 1934 required specific pleading of limitation provisions, which the appellant had failed to do. However, the Court granted leave to amend the defence in the Court of Appeal on payment of costs. The Court further held that an acknowledgment of interest paid is not an acknowledgment of debt for goods supplied, and that an account showing goods and cash supplied on one side and cheques paid in reduction on the other is not a mutual open and current account under Article 85 of the Indian Limitation Act 1877. Appeal allowed.

Outcome

Appeal allowed with leave to amend defence; matter to proceed on merits with limitation properly pleaded

Facts

Between 1925 and 1929, the respondent sold goods and advanced money on loan to Van Breda, who made repayments on account, the last being in 1932. There was no acknowledgment in Van Breda's handwriting proving these payments as required by section 30 of the Indian Limitation Act 1877. On 20 August 1933, the respondent sued the appellant as executor of Van Breda's estate to recover the unpaid balance. The appellant pleaded that the suit was barred by limitation but did not specifically plead the statutory provisions as required by section 40 of the Limitation Ordinance 1934. The lower court gave judgment for the respondent on the ground that limitation was not properly pleaded. The appellant appealed and applied for leave to amend the defence to specifically plead the statutory provisions.

Issues

  1. Whether the defence of limitation was properly pleaded according to section 40 of the Limitation Ordinance 1934.
  2. Whether the Court of Appeal should grant leave to amend the defence to specifically plead the statutory provisions on which limitation was claimed.
  3. Whether an acknowledgment of interest paid constitutes an acknowledgment of debt for goods sold and delivered.
  4. Whether the account between the parties constituted a mutual open and current account under Article 85 of the Indian Limitation Act 1877.

Orders

  • Appeal allowed.
  • Leave granted to appellant to amend defence to specifically plead limitation provisions.
  • Respondent's costs of the appeal to be paid out of the estate of Van Breda.
  • The order as to costs in the Court below to stand.

Rules and key headnotes

Civil Procedure — Pleading — Limitation — Requirement to Specifically Plead Statutory Provisions
Under section 40 of the Limitation Ordinance 1934, a defendant must specifically plead the provisions of law on which he claims that a suit is barred by limitation; a general plea that the suit is barred by limitation is insufficient.
Civil Procedure — Amendment of Pleadings — Court of Appeal — Principles
Leave to amend pleadings should not be refused unless the party applying is acting mala fide or the blunder has caused injury to the other side which cannot be compensated by payment of costs or otherwise. The Court of Appeal may grant leave to amend even where no application was made to the lower court, provided appropriate terms as to costs are imposed.
Contract Law — Limitation — Acknowledgment of Debt — What Constitutes
An acknowledgment that interest up to date has been paid on a mortgage, written by a debtor in the ledger of his creditor at the foot of figures showing indebtedness for goods sold and delivered, is not an acknowledgment of debt in respect of the goods alleged to have been sold and delivered.
Contract Law — Limitation — Mutual Open and Current Account — Definition
An account which shows that goods and cash were supplied from time to time on one side and that cheques were paid in reduction of that account on the other is not a mutual open and current account as contemplated by Article 85 of the Indian Limitation Act 1877, which requires reciprocal demands between the parties.
Statutory Interpretation — Repeal — Effect on Limitation Periods — Transitional Provisions
Where a new Limitation Ordinance repeals the Indian Limitation Act, section 7(2) of the Interpretation Ordinance provides that the repeal does not revive anything not in force at the time the repeal takes effect. Section 40 of the new Ordinance, requiring specific pleading of limitation, applies to all suits instituted after the Ordinance came into force, even where the limitation period is governed by transitional provisions preserving the period under the repealed Act.

Legislation cited (6)

  • Limitation Ordinance (Kenya) s.38
  • Limitation Ordinance (Kenya) s.40
  • Limitation Ordinance (Kenya) s.41
  • Indian Limitation Act 1877 s.20
  • Indian Limitation Act 1877 Art.85
  • Interpretation Ordinance s.7(2)

Cases cited (2)

  • Tildesley v Harper (10 Ch D 393)
  • Hipgrave v Case (28 Ch D 362)

Full judgment

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McCoy v Allibhai (Civ. App. No. 3-38.) [1938] EACA 70 (1 January 1938)
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.