V. Hassan & Co. v Sacrannie t/a Plastichem Industries (Civil Cause 1524 of 1992) [1993] MWHCCiv 57 (19 November 1993)

~~ - ~~~O ' ( \ ~ S. UVV\---.~ ~u.. A~~ ~ ().\\_\ t'--Sc.-- v\.e~UQ. S - ~"-. S ~ Ea:d--~ - ~~ \ , , ._~~ kc.k. - ~~ ~ d1s~o~ \MU... EA;:- ~ ~,~ ~ ~d < ~~~ ~ ~ ~ O(\_ -=-s e..ix~u..&.t~ ~ <IAa.lll~ 1.?.~\\.s ~ ~~ IN THE HIGH COURT OF MALAWI OT-- C\ ·'~ ~ ~~ t. A..~C,.q__ - ~~ " " ' ~~~~~~. PRINCIPAL REGISTRY BETWEEN: PLAINTIFF - and - HARUN HASSAN SACRANIE t/a PLASTICHEM INDUSTRIES DEFENDANT CORAM: MWAUNGULU, REGISTRAR Chizumila, Counsel for the Plaintiff /'s~ Maulidi, Counsel for the Defendant 0 R D E R The plaintiff in this action applies for summary judgment the claim in an action commenced on the in respect of part o f 22nd of December, 1992. This is a case where the defendant must be given unconditional leave to defend. On the conclusions that I have drawn on the pleadings a nd the affidavits in support and in opposition of the application for summary judgment, it is unnecessary to consider the arguments and authorities from Counsel. The action is divided into two parts. The substantive cause of action is based on cheques purportedly drawn by the d e fendant to the benefit of the plaintiff. So me cheques were dishonoured. Others were countermanded . Others payment had been stopped. The legal effect of all these situations is that the cheques were dishonoured. The ot her part of the claim is for the value of goods purportedly sold to the defendant by the plaintiff. No cheque was issued in respect of this transaction. There is a defence f il ed where liability is denied. The gravemen of the objectio n is that, a lb eit the defendant included Mr. Hassan as a signatory on the account of the 2/ .... - 2 - de f e ndan t 's firm, the transaction between the plaintif f and Mr. Ha ssan we re personal and unrelated to the business wh ich, was no t operational, although the cheques of the Company were is sue d an d signed by Mr. Hassan. On t h e 10th of May, 1993 the plaintiff took out th is summons under Order 14 for summary judgment in respect of the dis honoured cheques. As I said earlier, it is unneces sary to co ns i der the arg0ment by the plaintiff touching the effect of the chequ es and the law touching cheques where there i s an app licat i on for summary judgment. I think one could s tart from the p r emise that this a ction is based on dishonoured c h eques or bills of e xchang e . Th e co nveni e nt point to start would be Section 4 8 of the Bills of Ex ch a n ge i\c ~ - C~. LJ-8; 0~ " Su bje ct to thi s /\ct, when a bill h a s been di s ho noured by non acceptance or by non payment, noti c e o f di s honour must b e given to the drawer and each e n dorser, a n d any drawe r or endorser to whom such notice is not gi. ve n is discharged . . . . . . . . . . . . . . . . . . " Wh at I u nd erstand the law to be is that no cause of ac tion ari s es o n a bill of exchange if notice of dishonour i s not gi v e n to t he drawer or indorser of the dishonoured b j_ll. I thi nk I should include a crisp and pertinent statement of Will s, J. in May v. Chidl ey 1894 1 K. B. 451, 453: }'1-?a+t J -v. Gk.dl~ .,.-..........._t_ ~ (_1894-) i C\)ls, 4-S I " A d e fendant .i.n an action on a dishonoured chequ e is not indebted unless notice of dishonour has b een giv e n". Sin ce a defend a nt in an action of dishonoured bi ll is not inde bted unless notice of dishonour has been given, a statement of c laim t hat does not specifically plead that a notic e of dis h o nour was given is defective in that it does not d isclose a caus e of action. to se e how th e latter requirement can be fulfill ed if, Under Order 14 it is important that the affidavi t in sup port of the application should verify the claim as d isclosed in t h e st a tement of claim and also specifically state that in the defendant's opinion there is no defence to the act ion. I fai l like in this case, the statement of claim does not con tain, as it s hould, an a l legatj_on that notice of dishonour was given to the d e fen da nt or a statement of the f~cts relied on as excusing the gi ving of such nob.ce ( Fr:ihauf v. Grosvenor & Co. ( 1892) 61 L . J . Q. B . 717; May v. Chidley ibid,; and Roberts v. Pl ant (1895 ) 1 Q. B. 597). / / _______, 3/... . FrLl hciuf V. G rusVetWr ~ Cu. (lg~:;)bl L-T.4).9) b'7LT.]So - 3 - This case can be distinguished from May v. Chidley in that in Chidley case the statement of claim contained a notice of dishonour. The only question before the Court was whether that fact having not been deponed in the affidavit in support of the application for summary judgment, under Order 14, the summons could be impugned. agreed, was of the view that a statement of claim would be defective if an allegation of notice of dishonour was omitted, but that it was ·not necessary that the fact of the notice of dishonour should be included in the affidavit in support of the application . Again, unlike in the case of Roberts v. Plant, there has been no application to amend the statement of claim on this score. Justice Wills, with who Justice Lawrance I dismiss the application with costs and give unconditional leave to the defendant to defend the action. M /\ Dr,: Blantyre. .i n Ch .-:i m b t: r's th i s I 9 t. h day o [ Nov e rn b c r , l 9 9 :i a I; D. F. REGISTRAR OF THE OF MALALWI