BASSIL vs. RAAD [1961]DLHC857

Date	1961-03-16
Suit No.
Citation No.	[1961]DLHC857

OLLENNU J

J. C. ARMAH FOR PLAINTIFF

E. N. MOORE FOR DEFENDANT

[1961]DLHC857
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 155

DATE: 16TH MARCH, 1961.

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COUNSEL:&nbsp;&nbsp;

J.
C. ARMAH FOR PLAINTIFF &nbsp;.

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OLLENNU, J.

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&nbsp;

JUDGMENT OF OLLENNU J.

This is a claim made against the defendant as the drawer of a
cheque. The defence is that the said cheque was issued to the plaintiff in a
moneylending transaction which contravenes the Moneylenders Ordinance,1(1) and
therefore it is unenforceable. In his reply to the statement of defence, the
plaintiff contended that the transaction in connection with which the cheque
was issued, although a loan transaction is not a money lending transaction
within the Moneylenders Ordinance,2(2) because he gave the loan without
interest, and therefore the claim is one purely on a cheque. According to the
plaintiff he has never presented the said cheque for payment because the
defendant told him not to.

A claim upon a cheque is governed by the Bills of Exchange
Ordinance3(3). In order to charge the drawee and the endorser of a bill,
section 45 of the Ordinance makes it mandatory that it must first of all be
presented for payment in accordance with rules laid down, unless such
presentation is excused. The section reads:

Section 46 lays down the exceptions which will excuse such
presentation: request by the drawer or endorser that a bill should not be
presented is not one of the exceptions.

It is only when a bill is presented and is dishonoured that a
right of recourse against the drawer and the endorser accrues to the holder.
This is provided by section 47 of the Ordinance as follows:

“47. (1) a bill is dishonoured by non-payment (a) when it is duly
presented for payment and payment is refused or cannot be obtained, or (b) when
the presentment is excused and the bill is overdue and unpaid. (2) Subject to
the provisions of this Ordinance, when a bill is dishonoured by non-payment, an
immediate right of recourse against the drawer and endorser accrues to the
holder.”

And section 48 provides that notice of the dishonour must be given
to the drawer or endorser, and any drawer or endorser to whom such notice is
not given is discharged.

It follows therefore that for an action to be maintained on a
bill, each of the following conditions precedent must be proved to have been
fulfilled: (1) that the bill has been presented on the due date or as soon
thereafter as possible unless presentation is excused by law; and (2) that it
has been dishonoured; and (3) that notice of the dishonour has been given to
the person sought to be charged.

(a) Engages that on due presentment it shall be accepted and paid
according to its tenor, and that if it be dishonoured he will compensate the
holder or any endorser who is compelled to pay it, provided that the requisite
proceedings on dishonour be duly taken;

Since none of the conditions precedent to the institution of an
action upon a cheque has been fulfilled, the defendant must be discharged as
provided by law.