Windsor-Aubrey, J. The plaintiff-appellant’s claim was dismissed on the grounds that the transaction had been throughout governed by English law and, accordingly, was barred by the Statute of Limitations.
The appellant contends that the transaction was governed by native law and custom and, if that is so, it is settled law that the Statute of Limitations is not applicable.
The claim was for 1,180, the balance due on a loan of 1,200 and for £77 1s. 3d. incidental expenses incurred by the plaintiff in respect of a mortgage subsequently entered into by the defendant-respondent. The plaintiff's evidence was not challenged by any evidence on the part of the defendant. There is ample evidence of the balance of the loan of 1,180, but concerning the claim of £77 1s. 3d. there is no satisfactory evidence and in my opinion that part of the claim has not been proved.
Before considering the law it is necessary to examine the facts concerning the loan.
The loan of £,200 was made on the 31st August, 1934, and in respect thereof the defendant signed an ordinary form of receipt which reads as follows:- “Received from George Francis Ferguson of Dunkwa the sum of Two Hundred Pounds on loan. “Dated at Dunkwa-31st day of August, 1934. (Sgd.) Sam W. Duncan. “2d. stamp.”
In 1938 the plaintiff placed the matter in the hands of his solicitor who managed to recover £,20 in May of that year and at about the same time the defendant mortgaged a house to the plaintiff. The mortgage deed is not before the Court but it was, apparently, drawn up in accordance with English usage as the defendant mortgagor remained in possession which is inconsistent with a mortgage by native law and custom whereunder the mortgagee goes into possession.
Section 74 of the Courts Ordinance (Cap.4) is very material to this case, and the following quoted passages are of particular importance. The words “such laws and customs shall be deemed applicable in causes or matters where the parties thereto are natives " clearly indicate that subiect to any other provisions transactions between Africans are governed by native law and custom.
The exception to that basic principle is set out in the latter part of that section in the following terms:- “No party shall be entitled to claim the benefit of any local law or custom if it shall appear either from express contract or from the-nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions shall be regulated exclusively by English law”.
Counsel for the appellant particularly stresses the words “express” and “exclusive” though. to my mind the weight to be attached to the first-mentioned word should not be over-stressed since it refers only to one particular form of contract and is not applicable to all transactions. The word “exclusive”, however, applies to all forms of contract. In other words, as I understand the position, native law and custom are not ousted even when the parties had no Clear conception in their minds and contemplated a mixture of English law and native law and custom.
Various cases have been cited and I would refer especially to the decision of the West African Court of Appeal in the case of R. O. Koney v. Union Trading Co. Ltd. (1). The fact that in that case, one between an African and a European commercial firm, the Statute of Limitations was held to apply does not detract from its importance or the principles it lays down.
That case decides, as I understand it, that where the parties are natives the onus is on the party who opposes the application of “such native customary “ to satisfy the Court that it should not be applied.
In the case now before the Court there is no evidence of the status or degree of advancement of the respective parties and the document evidencing the oral loan is not technical in form and exceedingly common even amongst almost illiterate Africans. Two points have been raised by respondent’s counsel which it is suggested oust native law and custom; they are;-
(1) There is no evidence that any of the customary native ceremonies or customs were performed in relation to this loan.
(2) The subsequent mortgage in English form negatives the presumption that native law and custom is applicable.
As regards (1), the onus being on the defendant, he should have cross-examined the plaintiff or himself given evidence to negative the performance of native customs. Further there is some slight evidence of the performance of native custom in that the plaintiff sent his mother to the defendant to demand the debt.
As regards (2) evidence of subsequent conduct is admissible and relevant as circumstantial evidence tending to prove the intention of a party in relation to an act done formerly. The weight, however, to be attached to such subsequent conduct in my opinion depends on all the surrounding circumstances and also on the proximity in time of the subsequent conduct to the former act. Here four years elapsed and there is not a particle of evidence to suggest that any form of security was considered or contemplated at the time the loan was made. In my opinion the mortgage was an afterthought and formed no part of the original transaction. It only arose after the plaintiff had placed the matter in the hands of his lawyer four years after the event, and was probably taken for what it was worth at a time when the plaintiff having long ago parted with his money was not in a position to demand a native customary mortgage.
In this connection it is to be observed that no cross-examination was directed against the plaintiff to establish the circumstances of the mortgage. In my opinion, the evidence before the Court could not possibly be held to have established that the transaction was to be exclusively regulated according to English law and I hold that English law is not applicable to it and accordingly that the Statute of Limitations does not apply.
Reverting to the claim of £77 1s. 3d., it was not proved and is non-suited on that part of the claim with liberty to institute fresh proceedings, The judgment of the Divisional Court is set aside and judgment in favour ,of the plaintiff for £180 substituted therefor. The plaintiff to have his costs in this Court, which are fixed at £31 9s. 0d., and in the trial Court to be taxed.
Foster-Sutton. P. I concur. Coussey, J.A. I concur.
Appeal allowed.