Dawibuda v. Niou (PC) Civ. App. 147-D-70; 3/12/71; Biron J.

 

Dawibuda v. Niou (PC) Civ. App. 147-D-70; 3/12/71; Biron J.

Some time in 1963 the plaintiff was in need of Shs. 130/= in order to bring proceedings against someone. He borrowed this amount from the defendant promising to repay the loan in kind with a calf, He later tendered a calf to the defendant who,

however, refused to accept it as it was blind, and the plaintiff promised to deliverer another calf instead. He delayed delivery of the calf but obtained a cow from a friend which he deposited with the defendant as security. About 4 years later, during which period the cow had calved twice, plaintiff appeared and claimed the three animals. He was prepared to refund the Shs. 130/= he had borrowed from him. He was successful in the primary court but the district magistrate reversed the decision on grounds of limitation.

            Held: (1) “On the facts it would appear that in justice the plaintiff had delayed too long, to entitle him to succeed, the excuse he gave that  he had been ill, is not really very impressive. With regard to the law, there can be no doubt as to the correctness of the district court magistrate’s ruling, as it is expressly laid down in the Magistrate’s Courts (Limitation of Proceedings under Customary Law) Rules 1964, that the period of limitation for a transaction of this nature, which whether it comes under item No2 of the Schedule to the Rules, which reads: “Proceedings for money lent or money due for property sold and delivered”, or what is possibly more likely under item No. 5, which reads: “Proceedings for damages for breach of contract or to enforce a contract, either than contracts of or relating to marriage, separation or divorce – (a) if the contract is in writing, (b) if the contract is not in writing”, is three years. The plaintiff’s claim was therefore time-barred and should not have been upheld by the primary court.” (2) Appeal dismissed.