TSEDE AND OTHERS vs. NUBUASA AND ANOTHER [1962]DLHC1731

Date	1962-05-08
Suit No.
Citation No.	[1962]DLHC1731

PREMPEH J.

G. D. AMPAW FOR THE PLAINTIFFS.

J. ARTHUR FOR THE DEFENDANTS.

[1962]DLHC1731
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">TSEDE AND OTHERS <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NUBUASA AND ANOTHER <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1962] 1 GLR 338<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 8TH MAY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

G.
D. AMPAW FOR THE PLAINTIFFS.<o:p></o:p>

J.
ARTHUR FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

PREMPEH, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
PREMPEH, J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 to it.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 fo</main>