(COURT OF APPEAL)*

ABDEL GADIR EL SHARIF v. MITCHELL COTTS & COMPANY

AC-REV-334-1966

Principles

·  Civil  Procedure— of plaint as disclosing no cause of action—Civil Justice Ordinance, s. 56—Can take place at any stage of the proceedings—Dismissal in such cases is imperative

Application for dismissal of a plaint, as disclosing no cause of action, under Civil Justice Ordinance, s. 6, can take place at any stage of the proceedings of the Suit. Appellate authority can intervene in such cases, even though aggrieved party in his application f revision did not raise the point, because under the above section the rejection of the plaint is imperative.

Judgment

Advocate: Kamal Shantier for applicant

Babiker Awadalla C January 29, 1967: - is an application against the decision of His Honour the Province Judge, Khartoum, dismissing summarily an application to him against the judgment and decree of the learned District Judge, Khartoum, in CS-432-1966

The claim was one for recovery of a sum of £S.116 .53m/ms., being the value of a dishonoured cheque drawn by applicant on June 10, 1965 in favour of respondents.

Applicant (defendant in the suit) admitted having drawn the cheque but pleaded that it was given as payment of the price of a tyre purchased by him from respondents and subsequently discovered to be of unmerchant able quality. The learned District Judge dismissed the plea as being unavailable as a defence to a bill of exchange.

On application to His Honour the Province Judge, applicant’s advocate raised the point that the cheque was not duly protested under the Bills of Exchange Ordinance, 1917, s. 45, and as such, applicant is discharged from liability under the cheque.

His Honour the Province Judge, dismissed the application on the ground that as the plea was not raised before the learned District Judge it could not be raised for the first time in an application for revision It is against that decision that the present application is now being made.

Before the court, applicant was represented by advocate Shanteir who contends that His Honour the Province Judge was wrong in law in refusing to consider the application. In the learned advocate’s view, a point of law could be raised at any time in a higher court even though it was not raised in the lower one.

I am of opinion that this application should be allowed. I think the learned advocate for applicant is right in that, as the cheque was not protested. Applicant is discharged from liability hereunder and there fore the holder can only sue on the consideration, in which case a plea of unmerchantability of the goods bought ought to be entertained and decided.

A cheque that is not protested when it ought to have been affords no cause of action, which can support a plaint under the Civil Justice Ordinance, s.56. If, therefore, a lower court entertains a plaint that affords no cause of action, surely an appellate authority can intervene even though the point was not raised in the court below.

This court has repeatedly dealt with similar situations when a plea of time bar was raised for the first time before it, cf., Hassan Abdel Rahman v. .A1i Kambal, AC-APP- In fact an appellate authority can intervene even though the point was not raised by the aggrieved party in his application for revision. But this power is not of course available whenever a point of law is involved. It is confined in its operation only to those cases covered by Civil Justice Ordinance, s. 56, because in those cases the rejec tion of the plaint is imperative.

This application is therefore allowed with costs and the decree of the learned District Judge is hereby set aside.

Osman El Tayeb J. January 29, 1967: —l agree.