REPORTS
(COURT OF APPEAL)*
EL SIR ALl BALDO Appellant
and
MIRGHANI EL TAHIR Respondent
(AC.APP.2)
Principles
·  Accord and  satisfaction : M promissory notes — express promise to pay, whole debt if promissory notes not met
·  Practice — Decree set aside without — such order invalid
Where  creditor agreed to waive payment of part of a debt in consideration of part thereof being paid in cash, and part being secured by promissory notes, but stipulated that on default being made by the debtor  the whole sum should forthwith become due,
Held, that there was no accord and satisfaction in view of the express stipulation that the whole debt should become due on default, and the debtor having defaulted  the creditor was entitled to judgment for the whole sum.

Where a decree of a lower court was set aside by a Judge of The High Court . without notice to the respondent,
Held, that order of the Judge must be set aside as it is a fundamental principle of law that a party must be given an opportunity of being heard.

Appeal
The following statement of the facts is taken from the judgment:- The parties were friends and had been doing business together. They settled their accounts, and came to the conclusion that the defendant owed the plaintiff a sum of L.E.6500 On 5.3.1954 they settled the mode of payment and a document was drawn up that day, according to which, a sum of L.E.iooo was to be paid on 10.4.54, and a sum of LE.2 was to be paid in installments on the 5th of every month. The plaintiff agreed to waive payment of LE.8oo, but document — a sanad — was nevertheless drawn up for this sum, and signed by the defendant in which he acknowledged his liability to pay this sum. The reason was
(*)   (Court: M.A. .4bu Rannut , C.J.; R.C. Soni, j.; D. .4bu Ghazaleh  P.J.)
 that there was an express stipulation made in this document, that on the failure of the defendant to pay these amounts as they fell due, the whole amount was to be paid. The defendant  did not pay the sum of LE.2000 in time, but paid it a few days later. The defendant evidently found himself in difficulties, and it appears that he met the plaintiff and prevailed upon him to be lenient. The plaintiff agreed and on 21.5.54 another document between them was drawn duly signed by the defendant  The date of payment of the LE. 1000 was extended to the next day, the 22nd May, 1954. Monthly payments were to be of LE.50  instead of LE.ioo,  to be made on the 5th  of every month commencing from 5.6.54. Promissory notes were drawn up for a total of LE.2700 by installments of LE.50 The sum of LE.8oo was still to be waived, but the earlier stipulation was again embodied in the document, namely that in the event of non-payment at the proper time, the whole amount would have to be paid. The document — the sanad — regarding the LE.8oo continued to remain in existence. • Thereafter the sum of LE.2000 was paid. Payments of LE.50 were made but irregularly.
On 10.7.55 the plaintiff commenced the present action in the Khartoum Court claiming payment of the balance of the LE.6500 including the LE.800. The defendant pleaded that there had been accord and satisfaction, in that the plaintiff had accepted promissory notes in consideration of waiving the LE.8oo. The trial judge rejected this contention, but on revision in the High Court it was held that there had been accord and satisfaction. By inadvertence the plaintiff was not notified of the proceedings on revision.
The plaintiff appealed to the Court of Appeal.
Advocates: Abdalla El Hassan……….. for the appellant
Abdel Wahab Mohammed………. for the Respondent
R.C. Soni, J. Our attention was drawn to the fact that the learned Judge of the High Court had upset the decree of the trial Court without notice to the applicant, and made an order to his prejudice without hearing him, or giving him an opportunity to make his submissions. It is an elementary principle of law that a party must be given such an opportunity before an order to his prejudice can be made against him. Indeed the Civil Justice Ordinance has express provision to this effect* We can only presume that the learned judge overlooked this salutary
 (this is a reference to S. 179 of the Civil Justice  Ordinance - Ed.
 rinciple on account of the rush of work before him. We are sure he had no desire to make an cx parte order, but that what has happened was due to pure inadvertence.
(The learned judge then stated the facts and continued).
It is clear to us that there is no accord and satisfaction. The essential part of the agreement has been missed by the learned judge of the High Court. That part is the express stipulation which was repeated in both documents signed by the defendant, to the effect that it was payment which was to be made, and not merely the drawing up and acceptance of promissory notes. If payment was not made at the proper time, the whole amount fell due at once. The sum of LE.8oo was given up for getting payment, and payment at proper time, of the balance., That the sum of LE.8oo was not given up absolutely is evidenced by the fact that a Sanad was drawn up for this sum. And that there should be no doubt about it, the stipulation was repeated in the later document.
In these circumstances it is not necessary to examine the authorities cited. The facts of the present case are clear beyond doubt. The acceptance of the promissory notes does not amount to accord and satisfaction.
Learned counsel for the defendant then submitted that there had been acquiescence on the part of the plaintiff because of his acceptance of late payments, and indeed in his agreeing to easier terms in the. second document. This is really going too far. If a friend forbears because of his friendship to sue at once, that does not mean that he is giving up his rights under the document executed. This is mere forbearance, not acquiescence, on the part of the plaintiff. Still less does any estoppel arise. One of the essential elements for estoppel is that the defendant should  have acted to his detriment as a result of the plaintiff's conduct. Here instead of any detriment or prejudice  having been caused to the defendant, he was getting an advantage, in that payments out of time were being accepted. It was only when payments became irregular, and later ceased, that the plaintiff moved the Court. We see no force in this submission of learned counsel for the defendants
The proper result should have been a decree in favour of the plaintiff for the sum of LE.8oo and for the unpaid sums, all to be paid at once.
M.A. Abu Rannat, C.j. -— I concur.
D. Abu Ghazaleh P.J. — I concur.
(Appeal allowed)