Pillay v Barclays Bank Plc (SCA 5 of 1995) [1996] SCCA 3 (25 July 1996)

ANANOAN PllLAY APPELLANT VERSUS BARelA YS BANK PlC RESPONDENT ••• , ••••••••• , , t • I •••••• , • , ••••••• , •••••••••••••••• I ••••••••••••••••••••••••••••• , •• , •••••••••••• " • Civil Appeal No.5 of 1995 Mr. P. Boulle for the Appellant Mr. R. Valabhji for the Respondent JUDGMENT OF THE COURT (Before Silungwe J. A. Ayoola J. A. Veochard J.e) of land bearing title No. H2348 had been charged in favour of The Appellant entered a plaint in which he averred that his parcel the in the sum of Rs.15000 and that, as the debt had been extinguished by prescription or, in the alternative, Respondent to secure an overdraft by novation, the charge has been extinguished by reason of the extinction of the principle (sic) obligation. The Respondent denied that judge dismissed the debt or charge had been extinguished. The trial the plaint and the Appellant has now appealed against that dismissal upon several grounds. \ Mr. Boulle who appeared for the Appellant complained, while expatiating on his grounds of appeal, that while the plaint had averred that the debt had been extinguished by prescription and that as a result the charge had also been distinguished the trial judge determined the issue on the extinction of the charge. The trial judge had to make a pronouncement in terms of paragraph 1 of Article 2180 and not in terms of Article 22820fLhe Civil Code. Mr. Boulle suggested that the , --- 08:34 REGISTRRR SUPREME COURT SEZ 2 case be remitted to the trial court which have been pleaded. for determination of the issues In reply, Mr. Valabhji demurred to that suggestion and submitted judge had adjudicated on the issues which had been the trial that raised in the plaint. We are unable to agree with Mr. Valabhji. It is true that the trial judge did refer to the issues raised in the plaint but he did not make a Instead he determined the case on the issue pronouncement of the extinction of a real action, which is prescribed by 20 years, the otherwise one cannot explain the reference to interruption of thereon. period of prescription by alleged payments ln 1985 and 1989. the Appellant's regard we must observe that principal debt had been extinguished since 1981. case was In this that the The case should be remitted to the trial Court to be reheard and we order accordingly. e make no order as to costs. A. M SILUNGWE, J. A ~~~. •• tI tI ••• 01 •••••••••••••••••••••••••••••••••••• E. O. AYOOLA, J. A. ON..~ •• I •••••••....•• L. E. VENCHARD, J. A ". I.~. ~~ ~ ~-'--« ~,c........-l »c-:>