INSPECTOR-PLASTICO MOULDS LTD vs. ATICO LTD. [1967]DLHC1508

Date	1967-10-09
Suit No.
Citation No.	[1967]DLHC1508

AMISSAH J.A.

S. OKUDZETO FOR THE PLAINTIFFS.

DANSO-MAINOO (FOR OHENE-AMPOFO) FOR THE DEFENDANTS.

[1967]DLHC1508
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													<main id="main" class="content" style="min-height: 60rem" >INSPECTOR-PLASTICO MOULDS LTD <o:p></o:p>vs. <o:p></o:p>ATICO LTD. <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 593<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
9 OCTOBER 1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. OKUDZETO FOR THE PLAINTIFFS.<o:p></o:p>

DANSO-MAINOO (FOR OHENE-AMPOFO) FOR THE
DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
plaintiffs have sued the defendants on a bill of exchange. After the defendants
appeared to the specially endorsed writ, the plaintiffs took out a summons for
final judgment. Instead of the defendants showing cause against such
application by affidavit, as is provided by Order 14, r. 3 (a) of the Supreme
[High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), they filed a defence to
the claim and they appeared by counsel to argue their case for leave to defend.
It is important, I think, that the rules be obeyed. In this case, however, no
objection was taken to the course adopted by the defendants and they were heard
on this motion as if the defence filed complied with the affidavit required of
them by the rules. I therefore propose to ignore the technical breach of the
rules for the purposes of this ruling. But that is not to be taken as saying
that this court will take such a benevolent view of future breaches of the
rules, even where no complaint is made about them by the other party. The sole
question for determination therefore is whether the cause shown by the
defendants is sufficient to persuade me to exercise my discretion to grant them
leave to defend the action.<o:p></o:p><o:p>&nbsp;</o:p>As I said
earlier, the plaintiffs have sued the defendants on a bill of exchange. Learned
counsel for the plaintiffs in moving for final judgment argued that in an
action based on a bill of exchange, the defence can be granted leave to defend
only if they can show either that they did not draw the bill or alternatively
if they can show fraud. I think counsel has taken a rather restricted view of
the instances where a defendant will be allowed to resist an action brought
upon a bill. For example, Order 21, r. 2 of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A), governing this court provides that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>If any of
these defences were put up in this case, I should be inclined to grant leave to
defend. There is of course the defence of fraud also, which is so notorious
that no authority need be cited to show that a defendant who alleges it ought
to be given his opportunity of resisting the action. And authority exists to
the effect that in the absence or subsequent failure of consideration, the bill
or note is invalid as between the immediate parties to the instrument. In Solly
v. Hinde (1834) 2 Cr. &amp; M. 516 the executors of one Underdown sued the
executors of Chandler on a promissory note payable on demand and expressed to
be for value received. The defendants adduced evidence to show that Chandler,
being very ill, made his will and stated that he had left Underdown £100 for
his trouble in acting as his executor.<o:p></o:p><o:p>&nbsp;</o:p>Three
days later Underdown said to Chandler that as he was to have £100 for acting as
his executor, it would save the legacy duty if Chandler would then sign a
promissory note for the amount. Chandler accordingly did so. But he recovered
from his illness and Underdown died in his (Chandler’s) lifetime. It was argued
that this evidence was not admissible in an action on such a note. It was,
however, held that the evidence was admissible, as showing a total failure of
consideration, and that the executors of Underdown were not entitled to recover
on the note.<o:p></o:p><o:p>&nbsp;</o:p>If the
defence to be put up, therefore, is one of total failure of consideration, I
would have thought that the defendants were entitled to leave to defend. The
submission of learned counsel for the defendants attempted to put the defence
on this basis. He said that the bill was made to cover a mould which had not
materialised and therefore there was no consideration. The question is whether
the matters alleged in the defence, which is herein taken as the necessary
affidavit, support this contention. Paragraph (1) denies that the defendants
owe the plaintiffs the amount claimed on the writ and further denies that the
plaintiffs are entitled to any interest. But it is to be noted that there is no
denial that the defendants owe any sum other than that claimed. The next fou</main>