INSPECTOR-PLASTICO MOULDS LTD v. ATICO LTD.

JUDGMENT OF AMISSAH J.A.

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.

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:

"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."

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, [p.595] 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 invali