Source:

Botswana Law Reports (1964 to 2019(4))/CHRONOLOGICAL LISTING OF CASES 2020 Volume 1/1997/Cases Reported/BOTSWANA BREWERIES (PTY) LTD v.
WOTO 1997 BLR 368 (HC)

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http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/4853/4858/4905?f=templates$fn=default.htm

BOTSWANA BREWERIES (PTY) LTD v. WOTO 1997 BLR 368 (HC)

Citation 1997 BLR 368 (HC)

Court High Court, Lobatse

Judge Aboagye Ag ­ CJ

Judgment March 21, 1997

Counsel H. Ruhukaya for the plaintiff.

K. N. Monthe for the defendant.

Annotations None

Flynote
Contract ­ Duress ­ What constitutes ­ Acknowledgement of debt signed under threat of criminal prosecution.
Headnote
The plaintiff issued a combined writ of summons against the defendant for payment of a sum of P269,000 in respect of money allegedly
misappropriated by the defendant whilst employed by the plaintiff. The plaintiff applied C for summary judgment on the basis of an
acknowledgement of debt signed by the defendant. The defendant disputed liability and alleged that he had signed the acknowledgement of
debt under duress, having allegedly been told by the plaintiff's financial director, despite his protestations of innocence, that the
acknowledgement was for insurance purposes and that if he refused to sign the matter would be handed over to the police. D
Held, refusing summary judgment: the threat by the plaintiff's officer to hand the defendant over to the police if he did not sign the
acknowledgement of debt amounted to duress which rendered the document unenforceable. Arend and Another v. Astra Furnishers (Pty.) Ltd.
1974 (1) S.A. 298, applied.
Case Information
Cases referred to: E

(1) Ilanga Wholesalers v. Ebrahim and Others 1974 (2) S.A. 292
(2) Arend and Another v. Astra Furnishers (Pty.) Ltd. 1974 (1) S.A. 298
Application for summary judgment. The facts are stated sufficiently in the judgment. F

H. Ruhukaya for the plaintiff.

K. N. Monthe for the defendant.
Judgment
Aboagye Ag. C.J.:
By its combined writ of summons the plaintiff claims against the defendant: G

"(a) payment of the sum of P269,002.30 (two hundred and sixty nine thousand and two pula thirty thebe), alternatively the sum of P190,000.00 (one hundred
and ninety thousand pula);
(b) interest thereon at the rate of 10 per cent per annum a tempore morae; H
(c) costs of suit;
(d) such further and/or alternative relief as this Honourable Court may deem fit."

The basis of the plaintiff's action is stated in paragraphs 3 to 11, inclusive, of its declaration which read as follows:

1997 BLR p369

ABOAGYE AG. CJ
"3. In and during the period April to November 1996, the defendant unlawfully and wrongfully misappropriated and/or A stole various sums of money from the
plaintiff totalling the sum of P269,002.30.
4. As a result of the aforesaid misappropriation or theft, the plaintiff has suffered a pecuniary loss in the amount of P269,002.30. B
5. In the premises, the defendant is liable to repay to plaintiff the aforesaid sum of P269,002.30.
AND/OR IN THE ALTERNATIVE TP PARAGRAPHS 3 TO 5.
6. On or about 5 December 1996, the defendant acknowledged his indebtedness to the plaintiff in writing, in the sum of P190,000.00 'or such other sum as may
determine by the plaintiff after investigation' (sic). C
7. A copy of the Acknowledgement of Debt is annexed hereto marked 'PD 1'.
8. After due investigation by the plaintiff, it transpired that the defendant owed the plaintiff the sum of P269,002.30.
9. In consequence, the defendant is indebted to the plaintiff in the sum of P269,002.30. D
10. It was an implied term of the Acknowledgement of Debt that the sum owed by the defendant to the plaintiff would be paid on demand, or within a reasonable
time, both of which have elapsed.
11. Despite demand, the defendant fails, neglects and/or refuses to make payment of the aforesaid sum, or any sum at E all, to the plaintiff."

An appearance to defend the action was entered on behalf of the defendant on 22 January 1997, and on 31 January 1977 a notice of
application for summary judgment was filed on behalf of the plaintiff. Paragraphs 4 to 7 F of the affidavit of Paul D'Silva, financial director of the
plaintiff company, in support of the application read as follows:
"4. I confirm that the defendant is indebted to the plaintiff in the sum of P269,002.30, alternatively the sum of P190,000.00 being in respect of monies wrongfully
misappropriated and/or stolen by the defendant acknowledged G his indebtedness to the plaintiff in writing in the sum of P190,000.00 (one hundred and
ninety thousand Pula) 'or such other sum as may be determined by the plaintiff after investigation'.
5. I confirm that the aforesaid amounts are now due, owing and payable, and in support thereof I annex hereto marked 'PD 1' a copy of the Acknowledgment of
Debt. H
6. In my opinion the defendant has no bona fide defence to the action.
7. In my opinion the defence has been entered into solely for the purpose of delay."

On 7 February 1997, the defendant's affidavit in opposition to the application was filed. The grounds upon which he opposes the application
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1997 BLR p370
 The basis of the plaintiff's action is stated in paragraphs 3 to 11, inclusive, of its declaration which read as follows:

1997 BLR p369

ABOAGYE AG. CJ
"3. In and during the period April to November 1996, the defendant unlawfully and wrongfully misappropriated and/or A stole various sums of money from the
plaintiff totalling the sum of P269,002.30.
4. As a result of the aforesaid misappropriation or theft, the plaintiff has suffered a pecuniary loss in the amount of P269,002.30. B
5. In the premises, the defendant is liable to repay to plaintiff the aforesaid sum of P269,002.30.
AND/OR IN THE ALTERNATIVE TP PARAGRAPHS 3 TO 5.
6. On or about 5 December 1996, the defendant acknowledged his indebtedness to the plaintiff in writing, in the sum of P190,000.00 'or such other sum as may
determine by the plaintiff after investigation' (sic). C
7. A copy of the Acknowledgement of Debt is annexed hereto marked 'PD 1'.
8. After due investigation by the plaintiff, it transpired that the defendant owed the plaintiff the sum of P269,002.30.
9. In consequence, the defendant is indebted to the plaintiff in the sum of P269,002.30. D
10. It was an implied term of the Acknowledgement of Debt that the sum owed by the defendant to the plaintiff would be paid on demand, or within a reasonable
time, both of which have elapsed.
11. Despite demand, the defendant fails, neglects and/or refuses to make payment of the aforesaid sum, or any sum at E all, to the plaintiff."

An appearance to defend the action was entered on behalf of the defendant on 22 January 1997, and on 31 January 1977 a notice of
application for summary judgment was filed on behalf of the plaintiff. Paragraphs 4 to 7 F of the affidavit of Paul D'Silva, financial director of the
plaintiff company, in support of the application read as follows:
"4. I confirm that the defendant is indebted to the plaintiff in the sum of P269,002.30, alternatively the sum of P190,000.00 being in respect of monies wrongfully
misappropriated and/or stolen by the defendant acknowledged G his indebtedness to the plaintiff in writing in the sum of P190,000.00 (one hundred and
ninety thousand Pula) 'or such other sum as may be determined by the plaintiff after investigation'.
5. I confirm that the aforesaid amounts are now due, owing and payable, and in support thereof I annex hereto marked 'PD 1' a copy of the Acknowledgment of
Debt. H
6. In my opinion the defendant has no bona fide defence to the action.
7. In my opinion the defence has been entered into solely for the purpose of delay."

On 7 February 1997, the defendant's affidavit in opposition to the application was filed. The grounds upon which he opposes the application

1997 BLR p370

ABOAGYE AG. CJ
are contained in paragraphs 5 to 12, inclusive, and paragraph 16 which I consider necessary to recite. A

They read as follows:

"5. I was formerly employed with the plaintiff until I was dismissed in mid­December 1996.
6. During 5 December 1996 I had been on leave, but went back to work on the date aforesaid. Upon my arrival at the B offices of the plaintiff, I was met by the
deponent to the affidavit, Paul D'Silva who immediately asked for a meeting with me in the boardroom.
7. While seating (sic) in the boardroom and waiting for Paul D'Silva to start the meeting, in came the managing director, Kotzenberg, Human Resources Manager,
Mrs. Malumo, Brewery Manager, Mr. Matsididi and strategic C Planning Officer or such position, Mr. Molokwane.
8.1 I was immediatly accused of stealing money of the plaintiff by Mr. D'Silva which accusation I denied and still do. Mr. D'Silva stated that during my leave he
discovered that I had stolen some money, the amount of which we did not specify. D
8.2 I denied the charge against me but Mr. D'Silva persisted and took out certain cheques which had been cashed and signed at the bank, and he stated that I
had signed the cheques, which allegations I denied and still do. Mr. D'Silva said I was the suspect and asked me to confirm that it was my signature, which
I refused to do, that is to confirm, and it is not my signature. E
8.3 Mr. Paul D'Silva said to me in the presence of all persons whom I have already mentioned that:
'This is an internal matter. If you still refuse to take responsibility and confirm that you stole the money, we will involve the police and members of the Anti­
corruption Unit.'
8.4 Mr. D'Silva then took out a business card of a member of Directorate on Corruption and Economic Offences, the first F name in the card I remember as
'George' but I do not remember the second name and Mr. D'Silva continued and said 'I have already spoken to such a man'.
8.5 The rest of persons in the boardroom left except D'Silva and myself. Mr. D'Silva later left and I remained. When D'Silva returned, he called me to his office
and produced annexure 'PD' and this is what he said to me: G
'This is an internal matter only Nelson. You should sign this acknowledgment of debt for purposes that the company should be able to claim against the
insurance. This will also satisfy the auditors of the company, and it will save you and me our jobs. If you do not sign, you stand to lose your job
and your children will suffer. H Unless you sign, we will hand you over to the police and the corruption unit.'
9. I was afraid that if I did not sign, I would be handed over to the police and would have to spend time in the police cell. I also believed D'Silva when he said
the document was for insurance purposes only. I therefore signed the document under such circumstances.

1997 BLR p371

ABOAGYE AG. CJ
11. I deny that I misappropriated plaintiff's money as alleged or at all in the sum of P269,002.30 (two hundred and sixty A nine thousand and two Pula thirty
Thebe).
12. I only signed annexure 'PD' for the reasons that I have already set out. I feared going to spend time at the police cell and for the security of my job as I had
been promised by D'Silva.
16. I accordingly deny that appearance to defend has been delivered solely for purposes of delay and I aver that I have a B good and bona fide defence to the
claim by the plaintiff."

By his opposing affidavit, the defendant (a) denies having misappropriated any money or monies belonging to the plaintiff; and (b) that the
acknowledgement of debt which he signed in favour of the plaintiff was signed by him C under duress.
At the hearing of the application it was conceded by Mr. Ruhukya, albeit impliedly, that the acknowledgement of debt was prepared by an officer
of the plaintiff and also that the threat to report the defendant to the police and Anti­corruption Unit if he did not sign it, was made by the
plaintiff's officer. It was, however, argued by Mr. Ruhukya relying on the authority of Ilanga Wholesalers v. Ebrahim and Others 1974 (2) S.A.
292 that once the D defendant owed the amount stipulated in the acknowledgement of debt and that amount was in fact due to the plaintiff,
the threat of criminal prosecution to induce him to acknowledge the indebtedness was not duress which would afford him a defence to the
plaintiff's action.
On the other hand it was argued by Mr. Monthe on the authority of Arend and Another v. Astra Furnishers (Pty.) E Ltd. 1974 (1) S.A. 298 that
the threat by the plaintiff's officer to hand over the defendant to the police and Anti­corruption Unit if he did not sign the acknowledgement of
debt amounted to duress which rendered the document unenforceable.
In the Ilanga case (supra), Milner J. after reviewing a number of cases, stated at pp. 297­8 that: F

"In the Jans Rautenbach case Trengove J refers to a number of authorities which are in similar terms. I respectfully agree with the conclusion of the learned
Judge in that case, viz. that where the sum which the debtor agrees to pay in fear of arrest is in fact the sum which is due the creditor does not act contra bonos
mores in using the threat of criminal G prosecution to induce him to acknowledge his true liability. In these circumstances he is doing no more than to exercise
his legal rights. Where, however, the creditor does not know and probably cannot establish (and a fortiori where he knows that he cannot establish) the amount
of the debtor's indebtedness it seems to me an improper use of his rights to threaten to prosecute the debtor unless the debtor undertakes to pay an amount
which the creditor more or less arbitrarily H estimates to be due. No doubt even where the plaintiff does not know the exact amount stolen he is fully within his
legal rights in threatening to prosecute the debtor but to use the threat of such proceedings to extort an undertaking to pay an amount which he knows he cannot
prove to be due in a court of law constitutes, in my view, an abuse of his legal rights."

1997 BLR p372

Milner J.'s view of the law is, in my view not different from that of Corbett J., for at p. 311 of the latter's judgment A in Arend and Another v.
Astra Furnishers (Pty.) Ltd. (supra) he said:
"In my view of the aforegoing I have come to the conclusion that generally speaking a contract induced by the threat of criminal prosecution is unenforceable
on the ground of duress and, in certain instances, also on the ground that it involves B the compounding of a crime and the stifling of a prosecution. It is not
© 2018 Juta and Company
necessary (Pty)aLtd.
to express positive view on whether this rule obtains where the party Downloaded : Satowes
threatened in fact Oct 14 2023 21:40:44
a liquidated GMT+0200
amount (South
to the party Africa
making theStandard Time)
threat and
the agreement involves merely the payment of this amounth."
 On 7 February 1997, the defendant's affidavit in opposition to the application was filed. The grounds upon which he opposes the application

1997 BLR p370

ABOAGYE AG. CJ
are contained in paragraphs 5 to 12, inclusive, and paragraph 16 which I consider necessary to recite. A

They read as follows:

"5. I was formerly employed with the plaintiff until I was dismissed in mid­December 1996.
6. During 5 December 1996 I had been on leave, but went back to work on the date aforesaid. Upon my arrival at the B offices of the plaintiff, I was met by the
deponent to the affidavit, Paul D'Silva who immediately asked for a meeting with me in the boardroom.
7. While seating (sic) in the boardroom and waiting for Paul D'Silva to start the meeting, in came the managing director, Kotzenberg, Human Resources Manager,
Mrs. Malumo, Brewery Manager, Mr. Matsididi and strategic C Planning Officer or such position, Mr. Molokwane.
8.1 I was immediatly accused of stealing money of the plaintiff by Mr. D'Silva which accusation I denied and still do. Mr. D'Silva stated that during my leave he
discovered that I had stolen some money, the amount of which we did not specify. D
8.2 I denied the charge against me but Mr. D'Silva persisted and took out certain cheques which had been cashed and signed at the bank, and he stated that I
had signed the cheques, which allegations I denied and still do. Mr. D'Silva said I was the suspect and asked me to confirm that it was my signature, which
I refused to do, that is to confirm, and it is not my signature. E
8.3 Mr. Paul D'Silva said to me in the presence of all persons whom I have already mentioned that:
'This is an internal matter. If you still refuse to take responsibility and confirm that you stole the money, we will involve the police and members of the Anti­
corruption Unit.'
8.4 Mr. D'Silva then took out a business card of a member of Directorate on Corruption and Economic Offences, the first F name in the card I remember as
'George' but I do not remember the second name and Mr. D'Silva continued and said 'I have already spoken to such a man'.
8.5 The rest of persons in the boardroom left except D'Silva and myself. Mr. D'Silva later left and I remained. When D'Silva returned, he called me to his office
and produced annexure 'PD' and this is what he said to me: G
'This is an internal matter only Nelson. You should sign this acknowledgment of debt for purposes that the company should be able to claim against the
insurance. This will also satisfy the auditors of the company, and it will save you and me our jobs. If you do not sign, you stand to lose your job
and your children will suffer. H Unless you sign, we will hand you over to the police and the corruption unit.'
9. I was afraid that if I did not sign, I would be handed over to the police and would have to spend time in the police cell. I also believed D'Silva when he said
the document was for insurance purposes only. I therefore signed the document under such circumstances.

1997 BLR p371

ABOAGYE AG. CJ
11. I deny that I misappropriated plaintiff's money as alleged or at all in the sum of P269,002.30 (two hundred and sixty A nine thousand and two Pula thirty
Thebe).
12. I only signed annexure 'PD' for the reasons that I have already set out. I feared going to spend time at the police cell and for the security of my job as I had
been promised by D'Silva.
16. I accordingly deny that appearance to defend has been delivered solely for purposes of delay and I aver that I have a B good and bona fide defence to the
claim by the plaintiff."

By his opposing affidavit, the defendant (a) denies having misappropriated any money or monies belonging to the plaintiff; and (b) that the
acknowledgement of debt which he signed in favour of the plaintiff was signed by him C under duress.
At the hearing of the application it was conceded by Mr. Ruhukya, albeit impliedly, that the acknowledgement of debt was prepared by an officer
of the plaintiff and also that the threat to report the defendant to the police and Anti­corruption Unit if he did not sign it, was made by the
plaintiff's officer. It was, however, argued by Mr. Ruhukya relying on the authority of Ilanga Wholesalers v. Ebrahim and Others 1974 (2) S.A.
292 that once the D defendant owed the amount stipulated in the acknowledgement of debt and that amount was in fact due to the plaintiff,
the threat of criminal prosecution to induce him to acknowledge the indebtedness was not duress which would afford him a defence to the
plaintiff's action.
On the other hand it was argued by Mr. Monthe on the authority of Arend and Another v. Astra Furnishers (Pty.) E Ltd. 1974 (1) S.A. 298 that
the threat by the plaintiff's officer to hand over the defendant to the police and Anti­corruption Unit if he did not sign the acknowledgement of
debt amounted to duress which rendered the document unenforceable.
In the Ilanga case (supra), Milner J. after reviewing a number of cases, stated at pp. 297­8 that: F

"In the Jans Rautenbach case Trengove J refers to a number of authorities which are in similar terms. I respectfully agree with the conclusion of the learned
Judge in that case, viz. that where the sum which the debtor agrees to pay in fear of arrest is in fact the sum which is due the creditor does not act contra bonos
mores in using the threat of criminal G prosecution to induce him to acknowledge his true liability. In these circumstances he is doing no more than to exercise
his legal rights. Where, however, the creditor does not know and probably cannot establish (and a fortiori where he knows that he cannot establish) the amount
of the debtor's indebtedness it seems to me an improper use of his rights to threaten to prosecute the debtor unless the debtor undertakes to pay an amount
which the creditor more or less arbitrarily H estimates to be due. No doubt even where the plaintiff does not know the exact amount stolen he is fully within his
legal rights in threatening to prosecute the debtor but to use the threat of such proceedings to extort an undertaking to pay an amount which he knows he cannot
prove to be due in a court of law constitutes, in my view, an abuse of his legal rights."

1997 BLR p372

Milner J.'s view of the law is, in my view not different from that of Corbett J., for at p. 311 of the latter's judgment A in Arend and Another v.
Astra Furnishers (Pty.) Ltd. (supra) he said:
"In my view of the aforegoing I have come to the conclusion that generally speaking a contract induced by the threat of criminal prosecution is unenforceable
on the ground of duress and, in certain instances, also on the ground that it involves B the compounding of a crime and the stifling of a prosecution. It is not
necessary to express a positive view on whether this rule obtains where the party threatened in fact owes a liquidated amount to the party making the threat and
the agreement involves merely the payment of this amounth."

It is too clear from paragraph 4 of Paul D'Silva affidavit and paragraph 6 of the declaration that the plaintiff was C unsure of the amount due to
it by the defendant hence his alternative claims. That being the case, the case of Ilanga Wholesalers cited by Mr. Ruhukya does not afford him
any support and the defendant's written acknowledgement of debt is voidable and the alternative claim for P190,000.00 falls away.
The defendant, by his opposing affidavit, denied having stolen or misappropriated any money from the plaintiff as D alleged against him and no
criminal court has tried him and convicted him of having stolen the amount of P269,002.30 from the plaintiff. In the circumstances it will be
naive to say that the defendant has no reasonable defence to the plaintiff's action and I dismiss the application for summary judgment with
costs to the defendant. The defendant is granted leave to defend the action. E
Summary judgment refused.

1997 BLR p372

F

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 the document was for insurance purposes only. I therefore signed the document under such circumstances.

1997 BLR p371

ABOAGYE AG. CJ
11. I deny that I misappropriated plaintiff's money as alleged or at all in the sum of P269,002.30 (two hundred and sixty A nine thousand and two Pula thirty
Thebe).
12. I only signed annexure 'PD' for the reasons that I have already set out. I feared going to spend time at the police cell and for the security of my job as I had
been promised by D'Silva.
16. I accordingly deny that appearance to defend has been delivered solely for purposes of delay and I aver that I have a B good and bona fide defence to the
claim by the plaintiff."

By his opposing affidavit, the defendant (a) denies having misappropriated any money or monies belonging to the plaintiff; and (b) that the
acknowledgement of debt which he signed in favour of the plaintiff was signed by him C under duress.
At the hearing of the application it was conceded by Mr. Ruhukya, albeit impliedly, that the acknowledgement of debt was prepared by an officer
of the plaintiff and also that the threat to report the defendant to the police and Anti­corruption Unit if he did not sign it, was made by the
plaintiff's officer. It was, however, argued by Mr. Ruhukya relying on the authority of Ilanga Wholesalers v. Ebrahim and Others 1974 (2) S.A.
292 that once the D defendant owed the amount stipulated in the acknowledgement of debt and that amount was in fact due to the plaintiff,
the threat of criminal prosecution to induce him to acknowledge the indebtedness was not duress which would afford him a defence to the
plaintiff's action.
On the other hand it was argued by Mr. Monthe on the authority of Arend and Another v. Astra Furnishers (Pty.) E Ltd. 1974 (1) S.A. 298 that
the threat by the plaintiff's officer to hand over the defendant to the police and Anti­corruption Unit if he did not sign the acknowledgement of
debt amounted to duress which rendered the document unenforceable.
In the Ilanga case (supra), Milner J. after reviewing a number of cases, stated at pp. 297­8 that: F

"In the Jans Rautenbach case Trengove J refers to a number of authorities which are in similar terms. I respectfully agree with the conclusion of the learned
Judge in that case, viz. that where the sum which the debtor agrees to pay in fear of arrest is in fact the sum which is due the creditor does not act contra bonos
mores in using the threat of criminal G prosecution to induce him to acknowledge his true liability. In these circumstances he is doing no more than to exercise
his legal rights. Where, however, the creditor does not know and probably cannot establish (and a fortiori where he knows that he cannot establish) the amount
of the debtor's indebtedness it seems to me an improper use of his rights to threaten to prosecute the debtor unless the debtor undertakes to pay an amount
which the creditor more or less arbitrarily H estimates to be due. No doubt even where the plaintiff does not know the exact amount stolen he is fully within his
legal rights in threatening to prosecute the debtor but to use the threat of such proceedings to extort an undertaking to pay an amount which he knows he cannot
prove to be due in a court of law constitutes, in my view, an abuse of his legal rights."

1997 BLR p372

Milner J.'s view of the law is, in my view not different from that of Corbett J., for at p. 311 of the latter's judgment A in Arend and Another v.
Astra Furnishers (Pty.) Ltd. (supra) he said:
"In my view of the aforegoing I have come to the conclusion that generally speaking a contract induced by the threat of criminal prosecution is unenforceable
on the ground of duress and, in certain instances, also on the ground that it involves B the compounding of a crime and the stifling of a prosecution. It is not
necessary to express a positive view on whether this rule obtains where the party threatened in fact owes a liquidated amount to the party making the threat and
the agreement involves merely the payment of this amounth."

It is too clear from paragraph 4 of Paul D'Silva affidavit and paragraph 6 of the declaration that the plaintiff was C unsure of the amount due to
it by the defendant hence his alternative claims. That being the case, the case of Ilanga Wholesalers cited by Mr. Ruhukya does not afford him
any support and the defendant's written acknowledgement of debt is voidable and the alternative claim for P190,000.00 falls away.
The defendant, by his opposing affidavit, denied having stolen or misappropriated any money from the plaintiff as D alleged against him and no
criminal court has tried him and convicted him of having stolen the amount of P269,002.30 from the plaintiff. In the circumstances it will be
naive to say that the defendant has no reasonable defence to the plaintiff's action and I dismiss the application for summary judgment with
costs to the defendant. The defendant is granted leave to defend the action. E
Summary judgment refused.

1997 BLR p372

F

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 prove to be due in a court of law constitutes, in my view, an abuse of his legal rights."

1997 BLR p372

Milner J.'s view of the law is, in my view not different from that of Corbett J., for at p. 311 of the latter's judgment A in Arend and Another v.
Astra Furnishers (Pty.) Ltd. (supra) he said:
"In my view of the aforegoing I have come to the conclusion that generally speaking a contract induced by the threat of criminal prosecution is unenforceable
on the ground of duress and, in certain instances, also on the ground that it involves B the compounding of a crime and the stifling of a prosecution. It is not
necessary to express a positive view on whether this rule obtains where the party threatened in fact owes a liquidated amount to the party making the threat and
the agreement involves merely the payment of this amounth."

It is too clear from paragraph 4 of Paul D'Silva affidavit and paragraph 6 of the declaration that the plaintiff was C unsure of the amount due to
it by the defendant hence his alternative claims. That being the case, the case of Ilanga Wholesalers cited by Mr. Ruhukya does not afford him
any support and the defendant's written acknowledgement of debt is voidable and the alternative claim for P190,000.00 falls away.
The defendant, by his opposing affidavit, denied having stolen or misappropriated any money from the plaintiff as D alleged against him and no
criminal court has tried him and convicted him of having stolen the amount of P269,002.30 from the plaintiff. In the circumstances it will be
naive to say that the defendant has no reasonable defence to the plaintiff's action and I dismiss the application for summary judgment with
costs to the defendant. The defendant is granted leave to defend the action. E
Summary judgment refused.

1997 BLR p372

F

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 Summary judgment refused.

1997 BLR p372

F

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