Innocent v Allert

• Jurisdiction: St Lucia
• Judge: Lewis, C.J.,Gordon, J.A.,Cecil Lewis, J.A.
• Judgment Date: 28 April 1967
• Neutral Citation: LC 1967 CA 4
• Date: 28 April 1967
• Court: Court of Appeal (Saint Lucia)
• Docket Number: Civil Appeal No. 2 of 1966

Court of Appeal

Lewis, C.J.; Gordon, J.A.; Cecil Lewis, J.A.

Civil Appeal No. 2 of 1966

Innocent

and

Allert

Appearances:

K.A.H. Foster for the plaintiff

Henry Giraudy for the defendant

Contract - Loan — Amount due

1 THE CHIEF JUSTICE: The Court has already referred to the irregular manner in which this case has come before it and it is unnecessary to say anything further on this point at this stage. The plaintiff appellant filed a suit against the defendant respondent and by his declaration he alleged that the defendant lent him $2,750 on 1st June, 1958, and that there was an oral agreement that he would make quarterly payments of $250 in repayment of the loan. He alleged that he made those quarterly repayments and that he went on doing so until in July 1962 he discovered that he had in error over-paid the defendant the sum of $1,250; and that he had applied to the defendant to repay but the defendant had refused. He accordingly sought to recover that sum of 1,250 with interest at 8% from 1st July, 1962.

2 By his defence the defendant admitted that the loan had been made and that there was this oral agreement that quarterly repayments of $ 250 would be made, but he denied that any payments whatsoever had been made and therefore that he was indebted to the plaintiff in any sum whatsoever. He filed a counterclaim in which he sued the plaintiff on a promissory note for the sum of $2,750 dated 1st July, 1962 payable at 3 months but he did not, as is usual where cases of this kind are brought, file the promissory note as an exhibit to his counterclaim. He claimed the sum of $2,750 with interest at the rate of 6% from 7th October, 1962.

3 The plaintiff joined issue with the defendant on his counterclaim, and denied that he was indebted to the defendant on the promissory note as claimed or at all. He said that the debt which he had referred to in the declaration had been discharged by him.

4 On this state of the pleadings the matter came up for hearing before Bishop, J. Both the plaintiff and the defendant agreed in their evidence that the full sum of $2,750 had been loaned by the defendant to the plaintiff. It is important to observe this because as will be seen later the defendant had previously made a statement to the contrary and the plaintiff's evidence differs in this respect from that of his witness, Henry Bonnett.

5 The plaintiff gave details of the quarterly payments and stated that he had never asked for a receipt. He said that he did not do this because they were friendly and he did not want to appear to doubt the integrity of the defendant. He added that there was no agreement for payment of interest on the loan. In his cross examination he agreed that the defendant had been introduced to him by Bonnett, a close friend of his who kept his books. It was not until July 1962 that it dawned upon him that he had substantially overpaid the plaintiff. There was no entry in his books about these payments and nothing which would have made Bonnett aware that any over-payments had been made. It was suggested to him in cross examination that he had signed a promissory note on 1st July, 1962, but he denied this. He said that he had given no promissory note after June and, to quote his rather extravagant language, “If the defendant had a promissory note dated July 1962 I would say I must be mad”. He said he used to keep chits but did not make a chit every time he made payment. It was only when he was asked for a mortgage by the plaintiff that he realised he had over-paid.

6 Bonnett gave evidence — his account of the transaction was quite different. His story is a story that one is familiar with amongst moneylenders in some other countries in which I have had the opportunity to serve. He said that the plaintiff wanted a loan of $2,500 and he introduced him to this man who he knew had money and the defendant then lent him $2,500.00 payable at three months taking a promissory note for $2,750.00. At the end of three months, he said, the defendant came to the plaintiff to receive his $250 interest, the old promissory note was handed up and a new one made for $2,750; and this went on every three months until 1962 when the plaintiff was no longer able to pay and defendant said he would see his lawyer. This is a well known money lender's practice. This was the gist of Bonnett's evidence. In other respects he confirmed what the plaintiff had also said. The plaintiff was in financial difficulties having an overdraft with the bank; no receipts were issued for the quarterly payments; no entries were made in the plaintiff's books.

7 The defendant gave evidence and said that he lent plaintiff $2,750 for which he received a promissory note; his story was that he asked no interest and every three months he went to the plaintiff who could not pay him any money and he received a new promissory note giving back the plaintiff the old one and that went on until 1962. He said that on one occasion the plaintiff offered him a car valued at $1,500 by way of payment which he declined. He also offered a jukebox and that he declined as well. He said that he had registered the last promissory note, which according to him was dated 1st July, at the Registry. He had done that himself. He could not produce at that stage the original note but he produced an extract signed by the Deputy Registrar. One can only presume that the Deputy Registrar who signed that extract as a true extract meant to say that he had that promissory note in his custody and this was a true copy of it. However, the Deputy Registrar did not so certify and was never called to give that evidence. After the note had been put in and towards the end of cross-examination of the defendant, learned counsel for the plaintiff appellant, who also appeared for him in the Court below, raised an objection to its admissibility on the ground that it was insufficiently stamped. It appeared from the copy of the extract which had...