HIGH COURT, HO
DATE: 8TH MAY, 1962
BEFORE: PREMPEH, J.
CASES REFERRED TO
(1) Wood v. Benson (1831) 2 C. & J. 94
(2) Crears v. Hunter (1887) 19 Q.B.D. 341
NATURE OF PROCEEDINGS
ACTION against guarantors on a promise to pay a debt already incurred by their relative.
COUNSEL
G. D. Ampaw for the plaintiffs.
J. Arthur for the defendants.
JUDGMENT OF PREMPEH, J.
In this case, the plaintiffs by their amended writ and statement of claim, claim against the defendants the sum of £G1,290 1s. 5d. representing balance of amount due to them on a guarantee note made by the defendants in their favour for the payment to them of the sum of £G1,340 1s. 5d. being a debt incurred by one Clemence Nubuasa to the plaintiffs as representatives of the New Ayoma Co-operative Society at Ayoma.
The short facts of the case are that the plaintiffs who are the directors of the New Ayoma Co-operative Society, engaged one Clemence Nubuasa as a cocoa receiving clerk for the society. The said Clemence Nubuasa is the brother of the first defendant and a relative of the second defendant. In the course of his employment, Clemence Nubuasa incurred a deficit of £G1,340 1s. 5d. in his account, and when he was requested to pay that amount, he took them to the defendants who offered to give a note guaranteeing the payment of that amount on behalf of Clemence Nubuasa. The defendants, who are illiterates, caused a document to be made in favour of the plaintiffs in which they fixed one week to pay the whole amount. The defendants have since by themselves and jointly with Clemence Nubuasa made a part payment, leaving this balance of £G1,290 1s. 5d. which they have failed or neglected to pay, and that is the cause for the institution of these proceedings.
The defence was a denial that the defendants ever made the document exhibit B in favour of the plaintiffs, and it has been contended on their behalf that even if it is held that they made the document, the said document was made without consideration and is therefore a nudum pactum, and consequently the plaintiffs cannot under the said document recover the amount from them.
On the evidence, I must say that I have no hesitation in accepting the evidence of the plaintiffs and their witness Fred Ohin as to the making of the document, and I am satisfied that exhibit B was made on the instructions of the defendants, and that they signed it by making their marks
[p.340] of [1962] 1 GLR 338
to it.
I have now to consider the question of law postulated by counsel for the defendants. It is clear on the evidence that the guarantee note which I have held to have been made by the defendants was made and given to the plaintiffs after the debt had been contracted. From a reading of exhibit B, there is no doubt on the face of it that it only purports to be a promise by the defendants to pay the amount of £G1,340 1s. 5d. to the plaintiffs in respect of the debt due to them by Clemence Nubuasa. In the case of Wood v. Benson1(1) it was held that a promise without a new consideration to pay a debt already incurred by a third person would not be sufficient to support a binding contract on a promise. But it is well-settled in the case of Crears v. Hunter2(2) that an agreement to forbear from instituting or prosecuting legal proceedings to enforce a legal or equitable demand is a sufficient consideration for the promise of the debtor or of a third person to pay the debt or to do some other act. It is further settled in the same case that there need not be any express promise to forbear. It is sufficient if circumstances existed from which such a promise may be implied.
There does not appear on the evidence at the time that exhibit B was to be prepared and was in fact prepared, that there was an express promise by the plaintiffs to forbear from taking legal proceedings against Clemence Nubuasa, but I find it can be implied from the demand made for the payment of the debt by the plaintiffs, the fact that they followed Clemence Nubuasa from one village to another to obtain that money, the fact that only one week was fixed for the payment of this large sum, that the plaintiffs must have contemplated the pursuit of legal proceedings against the debtor, unless that amount was paid, and it must be implied from these and all the circumstances that they forbore proceedings by virtue of exhibit B. In my view, unless it were to procure forbearance, it is inconceivable why the defendants should have signed the note at all.
Quite apart from this question of forbearance there is evidence that after the receipt of the guarantee note, the plaintiffs re-employed Clemence Nubuasa in the business whereby he could have the opportunity to liquidate the debt by instalments, which in fact he did, and again on this evidence it must be implied that that must have been another consideration for the defendants to make the guarantee note in favour of the plaintiffs.
Looking at the document and the history of the transaction, I am unable to invent any rational theory by which to account for the defendants giving the note except that it was for the purpose of benefiting their brother and relative.
For these reasons I find that the plaintiffs are entitled to judgment on their amended claim. Judgment is accordingly entered for the plaintiffs for the sum of £G1,290 1s. 5d. with costs which I assess at 80 guineas including 50 guineas counsel’s brief fee.
DECISION
Judgment for the plaintiffs.
