Kyapa v. Ambokile (PC) Civ. App. 87-D-69; 10/2/70; Biron J.

Kyapa v. Ambokile (PC) Civ. App. 87-D-69; 10/2/70; Biron J.

The appellant was claiming two cows from the respondent, the claim being based on a “somewhat peculiar” transaction described as a “mortgage of the mortgagor’s cattle for that of a mortgagee”. It was established that the appellant had mortgaged a cow with the respondent for one of the respondent’s cows. There was over-whelming evidence in favour of the appellant’s case that he had returned the respondent’s cow but the respondent had refused to return his own cow, which had since given birth to a calf and he was therefore claiming both o them. The Primary Court decided in the appellant’s favour but on appeal the District court ordered a retrial. The case was heard afresh and again decided in appellant favour. Again on appeal the District Court allowed the appeal finding that the original transaction was made in 1962 and not in 1965 as alleged and therefore it was time-barred.

            Held: (1) “Although courts must apply the law and where claims are in fact time-barred by limitation they cannot be entertained, it cannot be gainsaid that this is not the most satisfactory way of disposing of disputes, as the merits of the case are disregarded. In this instant case there was a dispute as to when the transaction took place and a conflict of evidence. At very lowest there was therefore a doubt as to whether or not the claim was time-barred. In such a case it behooved the court to decide the case on its merits and not on what is in effect a technical rule of procedure. (2) “As remarked, at both trials before the Primary Court – incidentally, before different magistrates and assessors – the case was heard in great detail on the evidence given by the parties and their witnesses, and such evidence as found by both courts was overwhelmingly in favour of the appellant.” (3) Appeal allowed.