[1938] EACA 70

[1938] EACA 70

The Court of Appeal held that the appellant had not sufficiently pleaded the defence of limitation as required by section 40 of the Limitation Ordinance, 1934, since he failed to specifically cite the statutory provisions relied upon. The court affirmed that, following the enactment of the Limitation Ordinance,...

Source-derived case information.

Citation
[1938] EACA 70
Parties
Appellant: J. J. McCOY Executor of the Estate of P. A. Van Breda; Respondent: ESMAIL ALLIBHAI Administrator of the Estate of Allibhai Noormohamed
Court
East African Court of Appeal
Jurisdiction
Uganda
Judgment Date
1 January 1938
Case Number
Civ. App. No. 3/38.
Procedural Posture
Civil Appeal / Appeal From Decision of Webb, J. (kenya) in Civ. App. No. 3/38
Outcome
appeal allowed
Judges
Hayden J, Sheridan, (C.J. Kenya), Whitley CJ
Legal Topics
Limitation of Actions, Pleading Requirements, Mutual Accounts, Acknowledgment of Debt
Source Language
english
Civil Procedure Commercial and Corporate Limitation of Actions Pleading Requirements Mutual Accounts Acknowledgment of Debt

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Summary, issues, holding and outcome

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Parties

J. J. McCOY Executor of the Estate of P. A. Van Breda

Appellant

ESMAIL ALLIBHAI Administrator of the Estate of Allibhai Noormohamed

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of Webb, J. (kenya) in Civ. App. No. 3/38

Legal Issues

  1. 1 Whether the defence of limitation was properly pleaded in accordance with section 40 of the Limitation Ordinance, 1934.
  2. 2 Whether the appellant should be granted leave to amend his defence to specifically plead the statutory provisions of limitation.
  3. 3 Whether an acknowledgment of interest paid constitutes an acknowledgment of debt for limitation purposes.

Ratio Decidendi

The Court of Appeal held that the appellant had not sufficiently pleaded the defence of limitation as required by section 40 of the Limitation Ordinance, 1934, since he failed to specifically cite the statutory provisions relied upon. The court affirmed that, following the enactment of the Limitation Ordinance, specific pleading of limitation is mandatory, and general denials are insufficient. However, the court found that the omission was not mala fide and did not cause irreparable prejudice to the respondent; thus, the appellant was entitled to amend his defence at the appellate stage, provided he paid the costs of the appeal. On the substantive issues, the court determined that the...

Court Disposition

appeal allowed

Orders

  • The appellant is granted leave to amend his defence to plead limitation in accordance with section 40 of the Limitation Ordinance, 1934.
  • The respondent's costs of the appeal are to be paid out of the estate of Van Breda.