Karim Wholesalers v Sacranie t/a Plastichem Industries (Civil Cause 23 of 1993) [1993] MWHCCiv 20 (2 November 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 23 OF 1993 BETWEEN: KARIM WHOLESALERS (A FIRM) ................ PLAINTIFF AND HARUN HASSAM SACRANIE t/a PLASTICHEM INDUSTRIES ...................... DEFENDANT CORAM: MWAUNGULU, REGISTRAR Msiska, Counsel for the Plaintiff Maulidi, Counsel for the Defendant RULING This is an application under 0.14, r.l of the Rules of the Supreme Court for summary judgment. The action is based on various cheques drawn on the account of Harun Hassam Sacranie t/a Plastichem Industries. Looking at the pleadings and the affidavits, I have come to the conclusion that the application should be dismissed with costs. For the reasons for which I have come to this conclusion it is not necessary to consider all the other aspects that were laboured before me. It is conceded by the plaintiff that this action is based on bills of exchange. The point taken by the plaintiff is that there can be no defence to this action because courts regard cheques as cash and in the normal course of things courts have ordered summary judgments where the actions are based on a bill of exchange. Several cases were cited with which I am in much agreement. These cases, however, are distinguishable from this case. This action is based on a bill of exchange. Section 48 of the Bills of Exchange Act provides: "Subject to this Act, when a bill has been dishonoured by non-acceptance or by non-payment, notice of dishonour must be given to the drawer and each endorser and any drawer or endorser to whom such notice is not given is discharged". It follows from this rule that no cause of action arises on the bill against the drawer unless he has been given notice of dishonour. Afortiori, in an action of a dishonoured bill of exchange, the plaintiff must plead that a notice of dishonour was given or reasons for excuse for such notice. In May v. Chidley (1894) 1 KB 451, 543 Justice Wills said: "A defendant’ in an action of a dishonoured cheque is not indebted unless notice of dishonour has been given". For purposes of an application under Order 14, it is not necessary that the fact of dishonour is included in the affidavit in support of the application (May v. Chidley, ibid) Roberts v. Plant (1898) 1 QB 597. It is important, however, Ehat the statement of claim should contain an allegation of the notice of dishonour or the facts relied on as excusing the giving of such notice, ibid. The statement of claim in this action does not plead that a notice was given to the plaintiff. Neither are there facts in the statement of claim excusing the giving of such notice. Naturally the affidavit in support of the application is silent on this aspect. This, therefore, being an action on a bill of exchange, it is quite clear from the pleadings and the affidavit that no cause of action arises on the bills. There has been no application for amendment as was the case in Roberts v. Plant. I dismiss the application for summary judgment with costs. MADE in Chambers this 2nd day of November 1993 at Blantyre.