Wakilii

Patel Brothers v Hasmani (Civil Appeal No. 65 of 1951)

East African Court of Appeal · [1952] EACA 170 · 1952 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court of Tanganyika following dismissal of claim on cheque for lack of consideration
Decision
Appeal allowed with costs; judgment entered for appellants for Sh. 18,000; interest claim remitted to High Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that forbearance to sue the defendant's son at the defendant's request constituted valuable consideration for the cheque under the Bills of Exchange Ordinance. The onus of rebutting the presumption of consideration lay on the defendant-respondent. It was not necessary for the plaintiff to prove special circumstances exonerating the defendant from liability. The trial judge erred in placing the burden of proof on the plaintiff and in finding no consideration existed. Appeal allowed.

Outcome

Appeal allowed with costs; judgment entered for appellants for Sh. 18,000; interest claim remitted to High Court

Facts

In September 1947, the respondent's son Esmail owed the appellant firm approximately Sh. 27,000 for money lent. The respondent himself owed nothing to the appellants. On 10 September 1947, the respondent drew a cheque for Sh. 18,000 payable to the appellants. The respondent admitted the cheque was given at Esmail's request to accommodate Esmail. The appellants did not immediately present the cheque and forebore from suing Esmail for his debt. The appellants sued on the cheque. The trial judge dismissed the action, finding no consideration for the cheque. The respondent pleaded that Esmail was to provide funds to meet the cheque, but called no evidence to substantiate this or explain how Esmail was to be accommodated other than by forbearance.

Issues

  1. Whether there was consideration for a cheque given by the respondent to discharge a debt owed by his son to the appellants.
  2. Whether the onus of rebutting the presumption of consideration lay on the defendant.
  3. Whether forbearance to sue the defendant's son at the defendant's request constituted valuable consideration.
  4. Whether the appellants were entitled to interest on the cheque amount.

Orders

  • Appeal allowed.
  • Judgment of the High Court set aside.
  • Judgment entered for the appellants in the sum of Sh. 18,000.
  • Costs awarded to appellants in this Court and in the Court below.
  • Matter of interest claim remitted to High Court of Tanganyika for determination if counsel cannot agree.

Rules and key headnotes

Consideration — Forbearance to Sue — Valuable Consideration
A promise to forbear from suing a debtor is good consideration, and actual forbearance at the request, express or implied, of the promisor is also good consideration.
Bills of Exchange — Presumption of Consideration — Burden of Proof
Where a cheque is sued upon, there is a presumption of consideration and the onus of rebutting that presumption lies on the defendant who seeks to avoid liability.
Burden of Proof — Bills of Exchange — Special Circumstances
It is not necessary for a plaintiff suing on a cheque to plead or prove consideration or any special circumstances which exonerate the defendant from liability; the onus lies on the defendant to prove such special circumstances.
Consideration — Forbearance — Accommodation of Debtor's Relative
Where a defendant gives a cheque to a creditor at the request of a debtor (the defendant's relative) and the creditor forbears to sue the debtor, such forbearance constitutes valuable consideration for the cheque within the meaning of the Bills of Exchange legislation.

Legislation cited (3)

  • Bills of Exchange Ordinance s.27(1)(a)
  • Bills of Exchange Ordinance s.57(a)(ii)
  • Indian Evidence Act s.102

Cases cited (2)

  • Crears v Hunter (1887) 19 QB 341
  • Oliver v Davis [1949] 2 All ER 353

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Patel Brothers v Hasmani (Civil Appeal No. 65 of 1951) [1952] EACA 170 (1 January 1952)
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.