Limitation Law

• Pages: 657-694

LIMITATION LAW

(1) ACKNOWLEDGMENT AND PART PAYMENT

2001. Acknowledgment and part-payment must be made to person entitled

to receive payment whether creditor or his agent.

“In Stamford, Spalding & Boston Banking Co. v. Smith, Lord Herschell stated

thus concerning the effect of a document which is relied upon as an acknowledgment

([1892] 1 Q.B. at 768-769; 66 L.T. at 308): - “It cannot be disputed that an acknowl-

edgment, in order to exclude the operation of the statute, must be absolute and un-

conditional, and one from which a promise to pay the debt can be inferred. But it was

argued that if an acknowledgment is in fact made, it is immaterial to whom it is made.

Such appears to have been considered the law at one time, and there are certainly

some dicta to that effect; but that is not the law now. In my opinion, since the deci-

sion in Tanner v. Smart (6 B. & C. 603), it has been abundantly settled that an

acknowledgment to a stranger is not sufficient. It must be to the creditor or his agent,

to some one who was entitled to receive payment of the debt, and to whom you could

presume a promise to pay the debt.” - Per Coker, J.S.C. in Thadani v. National

Bank Suit No. S.C. 63/1969; (1972) 7 N.S.C.C. 28 at 31; (1972) N.C.L.R. 418 at

425-426; (1972) 7 N.S.C.C. 28 at 31.

2002. Amount must be expressed to constitute acknowledgment satisfy-

ing Money Lenders Law (Cap. 78), S. 30, Proviso (a).

“We consider that, on a true construction of the proviso to S. 30 of the Moneylend-

ers Law (Cap. 78), an acknowledgment made in the particular language of Exhibit

‘H’ by reference to Exhibit ‘G’ should be regarded as sufficient to take the case

out of the category of action that are statute barred under the Moneylenders

Law.” - Per Elias, C.J. in Akinnola v. Faseun Suit No. S.C. 123/1971; (1973)

N.C.L.R. 78; (1973) 8 N.S.C.C. 103 at 104.

2003. Amount of debt need not be precisely stated.

“It is not necessary that the document should state the precise figure of the indebted-

ness.” - Per Coker, J.S.C. in Thadani v. National Bank Suit No. S.C. 63/1969;

(1972) 7 N.S.C.C. 28 at 32; (1972) N.C.L.R. 418 at 426.

2004. Amount of debt need not be stated in acknowledgment for pur-

poses of the limitation law.

“The learned trial Judge upheld the defendants’ submissions and held, quite rightly

in our view, that “an acknowledgment under the Limitation Law (Cap. 64) does not

have to state the amount and that it is sufficient if it is in writing and signed by the

person making it by virtue of S. 23 (1) of the Limitation Law.” - Per Elias, C.J. in

Akinnola v. Faseun Suit No. S.C. 123/1971; (1973) N.C.L.R. 78; (1973) 8

N.S.C.C. 103 at 104. 657

Acknowledgement and part payment Paras. 2001-2004

2005. Amount recoverable is amount acknowledged and no more.

“The fact that in his subsequent writ of summons he claimed £3,010, should not be

taken as casting any doubt as to the amount actually acknowledged at the date of the

demand, with which alone, for the purposes of the proviso to S. 30 of the Moneylend-

ers Law, we are concerned in considering whether or not the claim was statute

barred. Mr. Fawehinmi himself conceded that he could not put the appellant’s claim

any higher. Mr. Bello, learned counsel for the respondents, merely repeated the sub-

stance of the case, which had been put forward in the trial Court and in the Western

State Court of Appeal and asked us to dismiss the appeal. For the reasons we have

given, we are unable to accede to his request. We accordingly allow this appeal and

set aside the judgments of the High Court in Suit No. AK/24/64 delivered on October

13th, 1967 and of the Western State Court of Appeal in appeal No. CAW/111/68

delivered on September 17th, 1969. We also set aside the orders as to costs made by

the two Courts. We find in favour of the appellant in the sum of £2,260 which was the

amount of his claim that was acknowledged by the respondents, and this shall be the

judgment of the Court.” - Per Elias, C.J. in Akinnola v. Faseun Suit No. S.C. 123/

1971; (1973) N.C.L.R. 78; (1973) 8 N.S.C.C. 103 at 107.

2006. Can the writing of question of law be an acknowledgment of question

of fact?

“In arguing the appeal, learned counsel on both sides referred the Court to a number

of authorities and invited our attention to various dicta of Judges as to what consti-

tutes an acknowledgment for the purposes of the statute of limitation. We cannot but

confess that the matter is not free from difficulty, and whilst a Tribunal faced with the

construction of a document for this purpose will have to decide as a matter of law

whether the document could constitute an acknowledgment, the issue whether it

does so or not is a matter essentially of fact. In Spencer v. Hemmerde (2), Lord

Summer summarised the position as follows (1922) 2 A.C. at 534-535; 128 L.T. at

43): “The decisions on the exact meaning and effect of the precise words employed

by generations of shifty debtors are, it is agreed on all hands, irreconcilable.” - Per

Coker, J.S.C. in Thadani v. National Bank Suit No. S.C. 63/1969; (1972) 7 N.S.C.C.

28 at 30-31; (1972) N.C.L.R. 418 at 424.

2007. Promise to pay, whether implied from unconditional acknowledgment

or expressed defeats Limitation Act, 1623.

“We cannot but confess that the matter is not free from difficulty and whilst a Tribu-

nal faced with the construction of a document for this purpose will have to decide as

a matter of law whether the document could constitute an acknowledgement, the

issue whether it does so or not is a matter essentially of fact. In Spencer v. Hemmerde

(1922) 2 A.C. 507 at 534 – 535; 128 L.T at 43 Lord Sumner summarised the position

as follows: - “The decisions on the exact meaning and effect of the precise words

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employed by generations of shifty debtors are, it is agreed on all hands, irreconcil-

able. It may, perhaps, serve in some degree to mitigate the appearance of hopeless

contradiction if the theory, on which the decisions have gone, can, to some extent, be

unified. I do think it has been as self-contradictory as is generally supposed. The

restoration lawyers, no doubt, were brought face to face with two things: a multitude

of debts still unpaid but long irrecoverable owing to the civil war, and a statute, which,

in terms, left the creditor without remedy. When first new promises and

acknowledgements came into recognition, and why, we do not know, but ultimately it

became necessary to invent an explanation where a simple and existing rule of prac-

tice had to be extended to complex cases.”

Before us, it was not contended that Exhibit “C” could not constitute an

acknowledgement; what learned counsel for the defendants said was that it does not.

On the other hand, learned counsel for the plaintiffs contended that taken along with

Exhibit “D”, an acknowledgment of the debt is clearly inferrible. Section 3 of the

Limitation Act, 1623, provides, so far as is material to this case, as follows: “And…

all accions of trespass, quare clausum fregit, all actions of trespass, detinue… all

accions of debt grounded upon any lending or contract without specialtie, all accions

of debt for arrerages of rents… shall be commenced and sued within the tyme and

lymitacion hereafter expressed, and not after, (that is to sqie) the said accions upon

the case (other than for slander), and the said accions for accompt, and the said

accions for trespas debt detinue… within three years next after the end of this present

session of Parliament, or within six yeares next after the cause of such actions or

suit, and not after…”

The principle of acknowledgement or part-payment is founded on the theory

that by so doing the debtor establishes a fresh contractual relationship so that a cause

of action then starts to run from the date of the fresh contractual relationship. In

Stamford Spalding & Boston Banking Co. v. Smith (1892) 1 Q.B. 765, Lord Herschell

at 768 stated thus concerning the effect of a document which is relied upon as an

acknowledgment: - “It cannot be disputed that an acknowledgement, in order to ex-

clude the operation of the statute, must be absolute and unconditional, and one from

which a promise to pay the debt can be inferred. But it was argued that if an ac-

knowledgment is in fact made, it is immaterial to whom it is made. Such appears to

have been considered the law at one time, and there are certainly some dicta to that

effect; but that is not the law now. In my opinion, since the decision in Tanner v.

Smart (1827) 6 B & C 103 it has been abundantly settled that an acknowledgment to

a stranger is not sufficient. It must be to the creditor or his agent, to some one who

was entitled to receive payment of the debt, and to whom you could presume a

promise to pay the debt.”

The position therefore is that before a writing could be described as an ac-

knowledgment to take the case out of the Statutes of limitation, the writing by the

debtor should recognise the existence of the debt or the rights against himself. Be-

yond this, whether a document does this or not is a question of fact depending upon

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