J. G. Sarkis Ltd. V. Timber & Transport Co., Ltd. [1975] 1 GLR 39.

J. G. SARKIS LTD. V. TIMBER & TRANSPORT CO., LTD. [1975] 1 GLR 39.

 JUDGMENT OF ANIN J.A.

STATUTORY REF.
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Anin J.A. delivered the judgment of the court. On 7 November 1974 we allowed this appeal from the ruling of the Kumasi High Court dated 29 March 1971, and we now give reasons for our judgment.

By a specially endorsed writ, the plaintiffs-respondents (hereinafter referred to as the respondents) claimed against the defendants-appellants (hereinafter referred to as the appellants) the following relief,

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“Statement Of claim:

The plaintiffs’ claim is against the defendants as the drawers of two cheques which have been dishonoured.

Particulars

(1) The defendants are the drawers of two cheques being No. 3536666/ 513874 dated 20 July 1970 for the sum of N¢2,572.57 and No. 353666/113875 dated 30 July 1970 for N¢3,000. 00 drawn upon Barclays Bank, Prempeh II Street, Kumasi, Ghana payable to the plaintiffs and delivered by the defendants to the plaintiffs.

(2) The said cheques were presented for payment to the said bank on 20 July 1970 and 1 August 1970 respectively and were dishonoured.

(3) Notice of dishonour was given to the defendants by a letter dated 7 September 1970.

(4) There is due to the plaintiffs the said sum of N¢5,572.57 together with interest thereon at the rate of N¢10.00 per cent from 1 August 1970 to the date of judgment.”

The action subsequently took its normal course, with the appellants entering appearance and the respondents thereafter applying by summons and a supporting affidavit for leave to sign final judgment under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The appellants’ sawmill manager thereupon swore to the following affidavit in opposition to the application for summary judgment:

“Affidavit in opposition

I, Tarek Koder-Agha of Kumasi make oath and say as follows:

(1) That I am a sawmill manager of the defendant company and I am authorised to depose as follows:

(2) That the summons for judgment filed by the plaintiffs has been served on us and we have noted the contents thereof.

(3) That we have been doing business with the plaintiff company for the past three years.

(4) That by an agreement entered into with the plaintiff company, we operated part of their Auratara concessions.

(5) That it has been our practice to give advance payment against our operations for every month.

(6) That in July 1970 we gave two post-dated cheques against our operations for that month.

(7) That by a letter reference D.41 (A) dated 10 June 1970 the plaintiff company asked us to regard as terminated on the close of business on Wednesday 15 July 1970 the said agreement with them.

(8) That on receipt of the said letter, the managing director of the defendant company approached the managing director of the plaintiff company, Mr. Osei Bonsu in person and asked for time to wind up affairs with the plaintiff company and to collect the logs already manufactured in the bush.

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(9) That the said managing director of the plaintiff company refused to give such time or permission to use their property mark ‘T.T.C’.

(10) That as a consequence of the said letter and the failure of the plea for time, we informed our bankers, Barclays Bank, Prempeh II Street, Kumasi, to withhold payment of the two cheques already issued in order that our accounts with the plaintiff company at that stage could be gone into.

(11) That the accounts disclosed that there was an outstanding credit on our side.

(12) That, therefore we do not owe the plaintiff company the sums of N¢2,572.57 and N¢3,000.00 as claimed or at all.

(13) That in the circumstances, we ask for leave to defend the plaintiffs’ action.

Sworn at Kumasi 27 March 1971.

(Sgd.) Tarek Koder-Agha
Deponent

Before me

(Sgd.) P. O. Bonsu
COMMISSIONER FOR OATHS.”

The sole question for determination by both the trial court and this court was whether or not the appellants’ affidavit in opposition disclosed a reasonable defence to the respondents’ action on the dishonoured cheques; alternatively, whether the appellants ought to be granted leave to defend the action on the merits. In his short ruling dated 29 March 1971 the learned trial judge observed as follows:

“In substance the defendants’ grounds in paragraphs (10) and (11) are that they are not indebted to the plaintiffs. That is a defence in my view to an action for a general debt. But the defences where [there is] a cheque in my opinion should be within Order 21, r. 2. There is none of those defences raised. I shall refuse leave to defend, and enter judgment for the plaintiffs in the sum of N¢5,572.57 with costs of N¢450.00 against the defendants.

(Sgd.) S. M. Boison
Judge.”

In this appeal, the learned judge has been criticised by counsel for the appellants for having refused his clients leave to defend the action generally. The main ground of appeal canvassed was that he erred in ruling that the affidavit in opposition disclosed only a defence to an action for a general debt, since the affidavit specifically stated facts which afforded adequate explanation for the appellants’ action in countermanding the payment of the two cheques, and since the said affidavit alleged the existence of a credit balance in the appellants’ favour in respect of the accounts between the parties. He further submitted that the consideration

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for the two cheques had wholly failed, with the abrupt revocation of his clients’ licence to exploit part of the respondents’ concession.

This was an action between the immediate parties to two dishonoured cheques, namely, the payees (who are the respondents herein) and the drawers (i.e the appellants). It was not complicated by the intervention of a holder in due course, who, in the words of section 36 (b) of the Bills of Exchange Act, 1961 (Act 55), “holds the bill free from any defect of title of prior parties, as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill.”

The general rule applicable to promissory notes and bills of exchange (which latter term of course includes a cheque; for a cheque is by definition a bill of exchange drawn on a banker payable on demand: see Act 55, s. 72) is that they are presumed to stand upon the basis of valuable consideration; consequently there is no necessity to state valuable consideration actually given for such bills. The effect of this presumption of law is that it shifts the burden of proof from the shoulders of the plaintiff who relies upon the instrument to those of the defendant who impugns it, save that where fraud or duress or force and fear or illegality are alleged, the holder must prove that he has in good faith given value for the bill: see section 28 (1) and (2) of Act 55. What is valuable consideration for a bill of exchange is defined in section 25 (1) of Act 55 as follows:

“Valuable consideration for a bill may be constituted by—

(a) any consideration sufficient to support a simple contract;

(b) an antecedent debt or liability. Such a debt or liability is deemed valuable consideration whether the bill is payable on demand or at a future time.”

However, it is settled law that in the total absence or subsequent failure of consideration, the bill of exchange or note is invalid as between the parties in immediate relationship, but not as between remote parties when the holder is a holder for value: see Halsbury’s Laws of England (3rd ed.), Vol.3, p. 177, para. 293. Thus in the old case of Solly v. Hinde (1834) 2 Cr. & M. 516, A. appointed B. his executor and gave him a promissory note payable on demand for £100 in consideration of the trouble B. would have in the office of executor after A.’s death. B. however, predeceased A. and his executors brought an action on the note against the executors of A. It was held that as the consideration for the note had wholly failed, the action was not maintainable. In the instant case, the parties were in immediate relationship, being drawers and payees of the two dishonoured cheques. The affidavit in opposition alleged facts which revealed a total absence or failure of consideration, since advance payments by cheque were made for a right to exploit a concession area in the future, which right had been revoked at the dates of the two cheques. According to paragraph (7) of the appellants’ affidavit in opposition, the said right was abrogated as from 15 July 1970, whereas the two cheques were issued on 20 and 30 July 1970 respectively in consideration of future exploitation of the concession. In the event the appellants claimed a contractual right

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to stop the cheques, since the consideration therefor had totally failed. Additionally, the appellants raised in paragraph (11) of their affidavit the question of accounts, alleging that their accounts with the respondents disclosed a credit balance in their favour.

Assuming at this stage the facts disclosed in this affidavit in opposition to be true, then it is apparent that genuine triable issues, i.e. total failure of consideration and the issue of accounts, had been raised such as ought to entitle the appellants to leave to defend the action on the merits. The proper test in this connection was laid down in the case of Jacobs v. Booths Distillery Co. (1901) 85 L.T. 262, H.L. Where the headnote states:

“Judgment should only be ordered under Order XIV [14] where, assuming all the facts in favour of the defendant, they do not amount to a defence in law. Where there is a triable issue, though it may appear that the defence is not likely to succeed, the defendant should not be shut out from laying his defence before the court either by having judgment entered against him, or by being put under terms to pay money into court as a condition of obtaining leave to defend.”

And in the case of Sheppards & Co. v. Wilkinson and Jarvis (1889) 6 T.L.R. 13, C.A. it was laid down that “the summary jurisdiction conferred by this Order must be used with care. A defendant ought not to be shut out from defending unless it is very clear indeed that he has no case in the action under discussion.” Having perused the applicants’ affidavit in opposition and heard learned counsel in support thereof, we were satisfied that triable issues are raised sufficient to warrant the granting of leave to them to defend the action on the merits.

Turning now to the ruling of the learned High Court judge quoted in full (supra) the two reasons given by him in support of his refusal of leave to defend are, with respect, erroneous. In the first place, the affidavit in opposition went beyond a mere denial of indebtedness, as has been shown in our earlier analysis. In any event, Order 21, r. 1 of L.N. 140A makes a mere denial of a debt in an action for a debt or liquidated demand in money contained in a specially endorsed writ inadmissible. Secondly, the learned judge erred in holding that “the defences where [there is] a cheque in my opinion should be within Order 21, r. 2.”
This particular rule enacts that:

“In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact, e.g., the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill or note.”

This rule, in our view, does not set out all possible defences to an action on a bill of exchange, promissory note or cheque, as was erroneously assumed by the learned judge. The rule deals with only defences in denial; and it states an elementary rule of pleading that a defence in denial to actions on bills of exchange and notes must deny some matter of fact; and it then gives some examples of material facts which might be denied in appropriate cases. Admittedly, the examples given are the more familiar ones which one encounters in practice. Nevertheless, the categories of

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possible defences to an action on a bill of exchange or note are not closed. For example, personal defences may be available to prior parties inter se, as is acknowledged by section 36 (b) of Act 55 (quoted supra), and as is illustrated by the defence of total absence or failure of consideration as between parties in immediate relationship: see Solly v. Hinde (supra). References may also be made to order 21, r. B for other possible defences. Again, in appropriate cases, a set-off may constitute a good equitable defence to an action on a bill of exchange or a note. What defences may be raised to a particular action, must obviously depend on the peculiar facts of each case; and the rule requires those peculiar facts to be pleaded where the defence relied upon is one of denial.

Somervell L.J. (as he then was) observed in Arab Bank, Ltd. v. Ross [1952] 2 Q.B. 216 at p. 224, C.A.that:

“The principle to be gathered from the rule i.e. [Order 21, r. 2 of R.S.C.] and its predecessor is that a defendant sued on a bill must allege the facts on which he relies in disputing his liability on the bill or note. In the old days, as the cases show, bills passed through many hands. Fraud or defects in title or personal defences affecting prior parties might be relevant to liability or shift the onus. It was for the defendant to make out a defence ...

On a claim on a bill of exchange or promissory note the defendant cannot simply put the plaintiff to the proof.”

And in Agra & Masterman’s Bank, Ltd. v. Leighton (1866) L.R. 2 Ex. 56 at p. 61, Bramwell B. made the following pertinent observation:

“The intention of the Bill of Exchange Act was, that where there was no pretence for a defence, the party sued should not be allowed to defend, and the holder should have judgment as of course; but that, if the defendant had a real, I do not say good, defence, he should have leave to appear and set it up.”

In so far as the learned judge held that only a defence specifically mentioned in Order 21, r. 2 is available to defendant sued on a bill of exchange or a note, he erred, in our respectful opinion. And he consequently fell into error when he refused the appellants leave to defend simply because none of the defences contained in Order 21, r. 2 of L.N. 140A was raised in their affidavit in opposition. We were satisfied that their affidavit disclosed triable issues, and that they were entitled ex debito justitiae to be let in to defend the action on the merits. It was for these reasons that we allowed the appeal; set aside the ruling appealed from; and ordered the action to be heard on the merits by the court below, after granting the appellants leave to defend the same on the merits.

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