YUSEF HAMAD EL KAROF, Appellant-Defendant v. TAHIR IBRAHIM AHMED, Respondent-Plaintiff
Civil Procedure-Settlement of actions-Statement made 'without prejudice' in
course of negotiation-Not an admission
Evidence-Admission by party-Onus 0/ proof-Statement made during settle-
ment negotiations
Limitation of Actions-Admission of the obligation-Onus of proof-Statement
made during settlement negotiations
What is said or written by a party in the course of negotiations before
or during an action in an attempt to settle the dispute, where such negotia-
tions are entered into expressly or impliedly without prejudice, cannot be
given in evidence against that party without his consent.
Appeal
December 31, 1938. Creed C.J.: By a decree of the Court of
Appeal in AC-APP-5-1936, the Province Court was directed to try
the following issue:
"Is the claim barred by the provisions of the Prescription
and Limitation Ordinance 1928?"
The learned judge has decided that the claim of the plaintiff is
not barred, and has given judgement in favour of the plaintiff. The
learned judge held that the defendant verbally admitted his obliga-
tion on two separate occasions, once towards the end of January 1936
before Sayed Ibrahim and Mohammed El Shakali, and on the second
occasion before Mohammed Hassan Hillal and Abdel Gadir Gohar,
after an order for provisional attachment of the defendant's goods had
been made in the suit.
It is desirable to. set out certain principles of law to which the
learned judge does not appear to have devoted adequate consideration.
( 1) The onus of proof that the defendant admitted his obligation
rests on the plaintiff. It must be strictly proved by the plaintiff that
a clear and unmistakable admission of obligation was made to the
plaintiff or to a person authorised to act as the plaintiff's agent in the
matter. .
(2) "Often attempts are made to settle disputes either before an
action is commenced or while an action is going on. It is obvious that
* Court: Creed, C.l., Flaxman J. and Cumings J.
it would be unwise to enter into such negotiations if statements made
during such negotiations were admissible in evidence at the trial in
the event of the attempt to settle not being successful. Accordingly,
what is said or written in the course of negotiations which are entered
into expressly or impliedly 'without prejudice' cannot be given in evi-
dence against a party without the consent of the party who made
the statements."!
In addition to this, it appears to this court that adequate care has
not been taken by the learned judge in the conduct of the trial, and
that the evidence has been taken and recorded in a confused manner.
Owing to the uncertainty arising therefrom as to the facts, it appears
best to this court that the case be retried and the witnesses reheard.
There will be an order accordingly.
Flaxman J.: I concur.
Cumings J.: I concur.
Retrial ordered