DUNCAN vs. KAWOACO LTD. [1980]DLHC1574

Date	1980-05-17
Suit No.
Citation No.	[1980]DLHC1574

TAYLOR J.

ESSAH FOR THE PLAINTIFF.

AMESIMEKU FOR THE DEFENDANTS.

[1980]DLHC1574
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													<main id="main" class="content" style="min-height: 60rem" >DUNCAN <o:p></o:p>vs. <o:p></o:p>KAWOACO LTD.<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 476<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:
17
MAY 1980<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">

ESSAH FOR THE PLAINTIFF.<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">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>In his
statement of claim accompanying a specially indorsed writ filed on 31 January
1980, the plaintiff is claiming that the defendants issued a cheque of ¢8,000
to him in payment of goods, namely electric switches, which he supplied to the
defendants. He avers that the cheque was dishonoured on presentation and although
the defendants have had notice of the dishonour, they have nevertheless
neglected to pay. He therefore claims ¢8,000. The defendants entered appearance
on 10 March 1980 to the writ and filed a defence on 18 March 1980.<o:p></o:p><o:p>&nbsp;</o:p>On 21
March 1980, after the said defence had been filed, the plaintiff proceeding
under Order 14 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A),
took out summons for judgment and filed an affidavit in support of his
application for final judgment on the ground that the defendants have no
defence to the action. The defendants have filed an affidavit in opposition in
which they denied that the plaintiff supplied them with goods against the
cheque which they had issued. They explained the circumstances leading to the
issue of the cheque in paragraph 5 as:<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">“The
defendants issued to the plaintiff the said cheque with the express
understanding that the plaintiff was not to present it to his bankers since the
defendants explained that they did not have any such amount to his credit with
their credit (sic).”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>(The
emphasis is mine). <o:p></o:p>Probably
by the phrase “with their credit,” the defendants meant “with their bankers”
for this was the meaning which counsel attached to it in his argument. Clearly
this explanation would seem to indicate that the plaintiff and the defendants
were engaged in a fraudulent intrigue to deceive “somebody from whom the
plaintiff was buying certain goods.” And apparently the plaintiff has turned
round to swindle the defendants. In spite of this defence, counsel has made a
passionate appeal to this court to ignore the affidavit in opposition and give
final judgment for the plaintiff.<o:p></o:p>I think
courts of law operate in order to dispense justice and where in this case, one
party to the proceedings before the court, has sworn to facts showing that an
applicant for an order for summary judgment under Order 14 is proposing to
utilise the process of the courts to advance his fraudulent intentions, it is
my firm view that the court is prima facie in duty bound to take a stand as
will frustrate the intended fraud. On this ground alone I will give leave to
defend so as to advance the interests of justice and thwart the designs of
fraudulent litigants. But there are also other reasons based on principles
governing the practice of the courts in Order 14 applications and I intend to
examine them.<o:p></o:p><o:p>&nbsp;</o:p>In this
respect I shall first examine the defence of the defendants. Counsel for the
plaintiff says I can look at it and counsel for the defendants urges that since
it was filed without leave, I need not look at it. I am inclined to agree with
the plaintiff’s counsel that I can look at the defence on the authority of
McLardy v. Slateum (1890) 24 Q.B.D. 504, C.A. I think that case, inter alia,
demonstrates that the fact that a bona fide defence has been delivered may very
well be sufficient to enable a defendant to get leave to defend although if it
could be shown that the defence was a sham, leave to defend may be refused and
the plaintiff would be given summary judgment as happened, in fact, in McLardy
v. Slateum (supra).<o:p></o:p><o:p>&nbsp;</o:p>