The State Trading Corporation v. Tanganyika Fire Appliance Co. Civ. Case 117-D-70; 16/9/70 Georges, C. J.

The State Trading Corporation v. Tanganyika Fire Appliance Co. Civ. Case 117-D-70; 16/9/70 Georges, C. J.

Wigglesworth and Co. Ltd. whose assets and liabilities have now been taken over by the plaintiff, the State Trading Corporation, had entered into an agreement with the defendant that in consideration of the defendant ceasing to sell locally manufactured fire fighting appliances and other equipment, Wiggles worth would  pay him a commission on all fire fighting equipment which they sold. There was evidence to show that the plaintiff corporation acknowledges this agreement by paying some commission. In this suit on 3 promissory notes, the defendant applied under Order 35 R. 3 for leave to defend claiming a set off. Defendant alleged that it had been intended that he would not have to meet the promissory notes which would be dealt with as part of the account between the plaintiff corporation and himself. In support of this, he pointed out that all the 3 notes bore the remark, “A/C with S.T.C.” The issue was whether unconditional leave to defend should be granted.

            Held: (1) “I am not persuaded that there is any merit in this argument. The promissory notes appear to me to be what they re, that is unconditional promise to pay, and the mere fact that a notation is placed indicating that they may be referable to some particular account does not make them less unconditional>” (2) The promissory notes were unconditional, they were signed by the defendant, and therefore the plaintiff ought to have his judgment. For the sum claimed on the notes. No order for unconditional leave to defend ought to be made. (Terrazo Paviors v. STD. Joinery and Building Co. [1967] E.A. 307 cited is not helpful). (3) “Following the procedure which I adopted in A.P. Hirji & Company v. A.N. Panjwani, (H.C. Civil Case No. 94 of 1970), I shall order that there be judgment for the plaintiff against the defendant for the sum claimed with cost to be taxed. Execution of this judgment will be stayed until 15^th October, 1970. If the defendant files a suit on or before 15^th October, 1970 to enforce his set-of, the stay will continue until the final determination of this suit, with liberty to the plaintiff to apply. (4) This is not an appropriate case to ask defendant to put up security for judgment because on his affidavit, he has raised a substantial claim which if proved will be for a sum much larger than plaintiff’s claim. (5) “Accordingly no security will be ordered, but as I have indicated the plaintiff can apply to have the stay of execution rescinded if the defendant behaves in such a way as to indicate that he plans to leave the country without satisfying the judgment or in the alternative if he does not press this suit with sufficient dispatch.”