(COURT OF APPEAL)

EMILE HABIB BATEEKHA v. ROZEEN ALAM EDDIN

AC.REV-505-1969

Principles

  Evidence—Negotiable instrument rejected as constituting no cause of action for failure of holder to make protest—Admissible in a suit founded for consideration of such negotiable instrument

Negotiable instruments, which rejected as constituting no cause of action for failure of holder to make due protest thereupon, could be admitted in evidence in a suit founded on consideration of these negotiable instruments.

Advocate: Mohamed Gasm El Sid for the applicant

Judgment

Tawfik Abdel Mageed 1. March 3, 1970 : —This application for revision is without merits, and it should therefore be dismissed summarily.

It seems from the records that the negotiable instruments (cheques and promissory notes) in question were the cause of action in CS-2892-65. This suit was dismissed with costs on February 27, 1966 on the ground that these negotiable instruments were not duly protested for non-payment, and therefore no suit could be brought upon them to recover their value by the drawee, the plaintiff.

The efforts of the advocate for the plaintiff and respondent to sue on consideration of these negotiable instruments were fruitless. Hence the learned advocate for the plaintiff and respondent instituted the CS-2729- 1966 on the consideration (account stated).

The above-mentioned negotiable instruments were filed by the plaintiff and respondent in the latter civil suit as documentary evidence to support the claim on account stated. The learned advocate for the defendant and applicant submitted an argument that the negotiable instruments in question could not be filed as evidence as they had been rejected by the court as constituting no cause of action. The learned District Judge disallowed the objection. The advocate for the defendant and applicant submitted an application for revision to His Honour the Province Judge, Khartoum Province, against that decision. This application for revision was summarily dismissed (HC-REV-330-1969).

The learned advocate for the defendant and applicant now tries his luck before this court on the very grounds he had already submitted before  His Honour, the Province Judge. Hence the issue now before this court is whether negotiable instruments, which were rejected as constituting no cause of action for failure of holder to make due protest thereupon, could be admitted in evidence on a suit on consideration of these negotiable instruments.

This court submits that this issue should be answered in the affirmative, that negotiable instruments could be admitted as evidence on an action founded on consideration thereof when the suit is between immediate parties. To quote:

“When an action is brought by the holder of a dishonored bill, note or cheque against an immediate party liable thereon, he may sue on the consideration as well as on the instrument and use the instrument as evidence. Even between non-immediate parties the instrument may be admissible in evidence but perhaps it is not sufficient per se to prove the debt, because presentment and notice of dishonor are ordinarily conditions precedent to liability. But if these conditions are fulfilled the instrument is prima facie evidence of the debts.” See Chalmers, Bills of Exchange (13th ed., 1964), p. 343.

Byles also agrees with this authority when he states that:

“A bill or note as between immediate parties is evidence of money lent; but as between immediate parties only. It may also be evidence of an account stated when due, and is admissible as a paper or writing to prove the defendant’s receipt of so much money, and even though it has been invalidated as a bill or note by alteration.” Byles, Bills of Exchange (22nd ed., 1965), p. 360-361.

The author differentiates between bills and notes on one hand and cheques on the other hand in respect of issue of admissibility in evidence. The author mentions a cheque presented and paid and a cheque not presented for payment. The former is not in itself evidence of money lent or advanced by the banker to the customer and the latter is not evidence of money previously lent to the drawer by the payee. The author does not touch the question of a cheque presented for payment but dishonored and does not raise the question of admissibility of a dishonored cheque in a suit on an account stated. However, the author states on page 335 that:

“When a bill is dishonored the holder may at his option sue on the bill, or, when the action is between immediate parties, on the consideration. . . . The safer course where the action is between immediate parties, and there is any doubt as to the validity of the bill or the right of recovering upon it as such, is to sue upon both…"

Hence it is possible for the respondent and plaintiff to produce all bills and notes in an action on consideration.

I am therefore, of the opinion that this application should be dismissed summarily.