JUDGMENT OF SOWAH J.
This is an appeal from the judgment of the learned circuit judge dismissing the claim of the plaintiff in respect of a debt of £G250 owed to him on the grounds that, "I find that the plaintiff has failed to prove by acceptable evidence that there was a transaction between the defendant and himself."
During the proceedings and at the instance of counsel for the defence the learned circuit judge rejected a receipt which the plaintiff sought to tender evidencing the receipt of the money by the defendant on the grounds:
"After listening carefully to the arguments of both counsel I am satisfied that the document sought to be tendered is more than a mere receipt for money lent. There is a promise to refund the money at a later date which carries the document into the realm of a promissory note. I therefore hold that the document is not a receipt even though headed as such but a promissory note. The document is therefore marked rejected."
Although the document was rejected, the learned circuit judge occupied his judgment with a discussion of the rejected document as if the same had been admitted into evidence.
[p.147]
Mr. Wuaku for the appellant argued that the circuit judge was absolutely wrong when he accepted the submissions of learned counsel that because the document tendered was not a receipt but a promissory note the same could not be accepted in evidence and was inadmissible. For the respondent, Mr. Kom has repeated this rather strange and novel proposition of the law of evidence and but for the fact that he appears to hold the view rather tenaciously I would not have thought it worth a discussion. It is necessary however before entering into that discussion to examine a few matters. The plaintiff by his writ of summons claimed "the sum of £G250 being a friendly financial assistance without interest given to the defendant at his request on 1 October 1960." In his statement of claim the plaintiff pleaded inter alia:
"(3) Towards the end of September 1960, the defendant herein approached the plaintiff for a friendly help in the sum of £G250 which the plaintiff gave to the defendant without interest.
(4) On 1 October 1960, the defendant gave a receipt to the plaintiff covering the said amount, the said receipt was written for the defendant by the defendant's secretary, the defendant himself signed it and the secretary signing thereon as a witness to the defendant."
To those averments the defendant pleaded inter alia in his sta
