SABBLAH v. TAWIAH [1966] GLR 145

Division: HIGH COURT, HO

Date: 11 FEBRUARY 1966

Before: SOWAH J.

CASE REFERRED TO

Taylor v. Field (1847) 2 N.P.C. 221.

NATURE OF PROCEEDINGS

APPEAL from the judgment of a circuit court dismissing the plaintiff’s action. The facts are fully set out in the judgment.

COUNSEL

D. A. Boye for I. N. K. Wuaku for the appellant.

F. T. C. Amorin for E. D. Kom for the respondent.

JUDGMENT OF SOWAH J.

This is an appeal from the judgment of the learned circuit judge dismissing the claim of the plaintiff in respect of a debt of £G250 owed to him on the grounds that, “I find that the plaintiff has failed to prove by acceptable evidence that there was a transaction between the defendant and himself.” During the proceedings and at the instance of counsel for the defence the learned circuit judge rejected a receipt which the plaintiff sought to tender evidencing the receipt of the money by the defendant on the grounds:

“After listening carefully to the arguments of both counsel I am satisfied that the document sought to be tendered is more than a mere receipt for money lent. There is a promise to refund the money at a later date which carries the document into the realm of a promissory note. I therefore hold that the document is not a receipt even though headed as such but a promissory note. The document is therefore marked rejected.” Although the document was rejected, the learned circuit judge occupied his judgment with a discussion of the rejected document as if the same had been admitted into evidence.

[p.147] of [1966] GLR 145

Mr. Wuaku for the appellant argued that the circuit judge was absolutely wrong when he accepted the submissions of learned counsel that because the document tendered was not a receipt but a promissory note the same could not be accepted in evidence and was inadmissible. For the respondent, Mr. Kom has repeated this rather strange and novel proposition of the law of evidence and but for the fact that he appears to hold the view rather tenaciously I would not have thought it worth a discussion. It is necessary however before entering into that discussion to examine a few matters. The plaintiff by his writ of summons claimed “the sum of £G250 being a friendly financial assistance without interest given to the defendant at his request on 1 October 1960.” In his statement of claim the plaintiff pleaded inter alia: “(3) Towards the end of September 1960, the defendant herein approached the plaintiff for a friendly help in the sum of £G250 which the plaintiff gave to the defendant without interest.

(4) On 1 October 1960, the defendant gave a receipt to the plaintiff covering the said amount, the said receipt was written for the defendant by the defendant’s secretary, the defendant himself signed it and the secretary signing thereon as a witness to the defendant.”

To those averments the defendant pleaded inter alia in his statement of defence:

“(3) The defendant denies paragraph (3) of the statement of claim.

(4) The defendant denies that he gave to the plaintiff a receipt dated 1 October 1960, or any date for the sum of £G250 or part thereof being a friendly financial help.”

At the trial the plaintiff led evidence as to how the sum was given and proceeded:

“On the date in question he [meaning the defendant] took away the money without giving me a note. On 1 October 1960 the defendant came to me with a receipt. He was accompanied by one Dey. The defendant said he would refund the money in a short time but he never honoured his promise. This is the receipt the defendant gave me.”

Mr. Kom at this juncture objected that the receipt was not a receipt but a promissory note and referred the court to section 83 of the Bills of Exchange Act, 1961.1 He argued further that the document was not properly stamped. His objection was upheld. It is

[p.148] of [1966] GLR 145 necessary now to examine whether the objection as to the admissibility of the receipt or whatever document it is, was valid in law. The document sought to be tendered read as follows: “Receipt

Received from Sabblah of U.A.C. No. 3, Ho, the sum of G£250 on loan and thus promising to refund same in a short possible time.

Dated this first day of October, 1960.

(Sgd.) Tho Tawiah

W. O. A. Dey

Witness”

I have already referred to the writ in which the plaintiff sounded his claim in a simple action for debt and to the evidence which has not been challenged that the defendant gave him a receipt. Reading this receipt there can be little doubt that, whether the document in law is a promissory note or not, a proposition with which I shall deal later on, this document is admissible on the following grounds:

(a) The document acknowledges the receipt of the sum of £G250 and is signed by the defendant.

(b) The only evidence before the court was that the defendant delivered the receipt or call it what you will, to the plaintiff in the presence of his clerk. It is therefore the document of the defendant, a document which had been in his custody before and is admissible in evidence in an action against him. In this connection I will refer to Cross on Evidence (2nd ed.), p. 439. Cross puts it this way: “If it is clear that a party had access to and control over the contents of a document, they may be proved against him as evidence of their truth.”

(c) The receipt further acknowledges a debt owed by him to the plaintiff; it is therefore an admission against his interest and is receivable in an action upon the debt. Though originally the learned circuit judge never gave as one of his grounds for the rejection of the receipt the inadequacy of stamp duty affixed thereto, in his judgment he stipulates this as one of the reasons. Even on this aspect of the case he was anticipated by counsel for the plaintiff, Mr. Wuaku, who gave an undertaking that his client was prepared to bear the extra penalty should the stamp duty on it be inadequate. I am of the opinion that a bill of exchange or a receipt is not invalid by reason only that it is not stamped in accordance with the law for the time being in force relating to stamp duties, and any such bill which is unstamped or not properly stamped may be received in evidence on payment of the proper duties and penalty:

[p.149] of [1966] GLR 145 see section 16 of the Stamps Ordinance.2 Thus on any view of the matter the learned circuit judge erred when he held that the document was inadmissible. But if counsel for the parties had taken a little trouble to refresh their memories by reference to the Stamps Ordinance they would not have misled the circuit judge. It is always dangerous for a lawyer to rely on his memory in such matters.

The rejected document is stamped with an adhesive stamp of two shillings and sixpence. The sum involved is £G250. By section 25 of the Stamps Ordinance and for the purposes only of the said Ordinance, a receipt is defined as and includes any bill of exchange or promissory note for money amounting to £G2 or upwards. For further definition resort can be had to the section. According to the First Schedule to the Ordinance the amount chargeable on a receipt or bill of exchange is one shilling on £G100 and threepence for every additional £G25 or part thereof. Thus the stamp of two shillings and sixpence on the receipt or promissory note is the correct amount chargeable as stamp duty. By section 33 of the Stamps Ordinance the ad valorem duties upon bills of exchange and promissory notes may be denoted by adhesive stamps. This is precisely what the rejected document has on the face of it. Thus even by this test the rejection of the document was wrong.

But the question which arises is whether the document quoted above is an acknowledgement of a debt per se or an acknowledgement of debt and a promise to pay which can be construed as promissory note. The first leg of the document acknowledges the debt or the receipt of the sum of £G250 and the second appears to be a promise or undertaking to pay “in a short possible time.” What is a promissory note within the meaning of the Bills of Exchange Act? The answer is contained in the Act itself. And in this connection I cannot improve upon the clear language of the Act. A promissory note is defined in section 83 (1) as “an unconditional promise in writing made by one person to another signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to, or to the order of, a specified person or to bearer.”

Each and every component part of this definition is important and a document which does not spell out all these requisites is not a promissory note. The rejected document cannot in law be a promissory note for the simple reason that it does not contain an unconditional promise to pay on demand or at a fixed or determinable future time. To promise to pay “in a short possible time” is a promise ambiguous as to time. In this connection since our law is

[p.150] of [1966] GLR 145 almost a verbatim reproduction of the English Bills of Exchange Acts any decision on any aspect of their Acts must have great persuasive force with a court in this country.

In the English and Empire Digest, Vol. 6, p. 37 a few examples are given showing that where the time of payment is uncertain or not specified in the document that document cannot rank as a promissory note. In Taylor v. Field3 also referred to in the English and Empire Digest at para. 302 a document was in the following terms, “Received £170, for which I promise to pay interest at the rate of 5%. Held: nor a promissory note, nor an agreement of the value of £20 but an acknowledgement of a debt of £170.” No time was stated as to when the sum of £G250 in this case became payable and therefore the note cannot be designated as a promissory note.

I will go further to hold that even if this document does rank as a promissory note which it is clearly not, there is also contained in the document an acknowledgement of the debt and the plaintiff is entitled to use it as either. Quite obviously it will be in a plaintiff’s interest to treat a document which is a promissory note as a promissory note in order to take advantage of all the attributes that the law gives to a bill of exchange, and he would be a poor solicitor who would wish to lose this advantage in pendente lite. The only importance as to whether this document is a promissory note or an acknowledgement of debt is from the revenue point of view, namely, what stamp duty the document will attract.

Having held that the document is admissible in law and further that the document is an acknowledgement of debt by the defendant, I will now consider the case on its merits. The plaintiff has led evidence as to the giving of the loan and has tendered the receipt showing that the defendant acknowledged the receipt of the loan. The plaintiff also tendered an affidavit signed by the defendant. I have had an opportunity of comparing the two signatures and there is absolutely no doubt that the two signatures are identical and signed by the same person, namely, the defendant. In any case there is evidence by the defendant’s clerk that the defendant signed the document. In my view that evidence is admissible and the circuit judge was wrong in rejecting it. Quite apart from this evidence the signatures on the two documents speak for themselves.

The defendant gave no evidence. Upon the production of the receipt it is difficult now to see what evidence he could have given in view of his stout denial in the pleadings that he had given the receipt or any other receipt evidencing that or any other loan to him. On the totality of the evidence I consider the weight of evidence

[p.151] of [1966] GLR 145 is against the judgment. I will therefore set aside the judgment of the learned circuit judge and the order for costs and will enter judgment for the plaintiff in the sum of £G250 with costs assessed at ¢88.20 in this court and the court below.

DECISION

Appeal allowed.

Judgment for the plaintiff.

S. K. T.