(COURT OF APPEAL)

EL JACK AMIR v. D. SOBILAS

AC-REV-305-1968

Principles

Civil Procedure—Issue not raised in pleadings or during the trial—Not to be raised on appeal—Waived by conduct

If issues were not raised by a party in the pleadings or during the trial, they could not be raised by him at the stage of appeal, because the party should be taken to have waived such issues by his conduct.

Advocates: Mubarak Bannaga f or the applicant

Self El Doula Khidir Omar for the respondent

Judgment

Ramadan Au Mohamed J. March 23, 1970:—Respondent (plaintiff in the suit) instituted CS-i Io- in the District Court of Wad Medani against a certain George Saggal (first defendant) and the applicant (second defendant) claiming recovery of the sum of £S.3oo being the value of the cheque allegedly drawn by the first defendant in favor of applicant (second defendant) who indorsed it in favor of the respondent-plaintiff.

During the pleadings the first defendant admitted having drawn the cheque in question in favor of the applicant, and a judgment was then entered against the admitting defendant and the suit proceeded to deter mine the liability of the applicant-defendant as indorser of the cheque.

After hearing evidence on both sides, the District Judge found as a fact that the cheque was indorsed by the applicant-defendant in favor of the respondent-plaintiff for value, and supplemented the previous judgment by making a joint decree against both defendants to pay the value of the cheque jointly and severally to respondent-plaintiff.

An application by the second defendant to the Honorable Judge of the High Court, Blue Nile Circuit, was summarily dismissed and hence this application.

The learned counsel for applicant relies on the following grounds:

1. that the finding that the applicant-defendant has indorsed the cheque in question is against the weight of evidence; and

2. that the cheque was neither presented for payment nor was it protested.

I will now deal with the above two submissions in turn.

1. The contention of the learned counsel for applicant that the finding of the trial judge that the cheque was indorsed by the applicant-defendant is against the weight of evidence is, with respect, not well founded. The learned District Judge has based his finding not only on the evidence of the co-defendant but also on the testimony of the applicant himself and his conduct. The applicant did not flatly deny the signature on the cheque to be his but said that it could be his signature or it could not be. Over and above we have the testimony of the respondent-plaintiff who testified to the effect that the applicant indorsed the cheque in his presence. Where matters of fact only are involved, the rule is that an appellate court should not be easily moved to disturb the finding of the trial judge who saw and heard the witnesses and had the opportunity of judging their demeanour. The applicant did not adduce any evidence in rebuttal, and in the circumstances I feel inclined to support the finding of the trial court.

2. There is sufficient evidence to support the finding that in response to the first defendant’s request as the drawer of the cheque, the respondent- plaintiff who was the bearer in due course refrained from presenting the cheque to the bank for payment and eventually no process of protest was gone through. The learned counsel for applicant contends that although the agreement between the first defendant and the respondent-plaintiff not to present the cheque for payment may be a waiver as regards the immediate parties to that agreement it cannot be taken as a waiver by the applicant-defendant.

As to the requirements of presentment for payment and protest in case of dishonor in order to clothe both the drawer and the indorser with liability on the cheque, I have no doubt. This is the cumulative effect of the Bills of Exchange Ordinance 1917, ss. 76 and 44. This requirement for presentment is not absolute as it can be dispensed with. The instances where it can be dispensed with are set out in the Bills of Exchange Ordinance 1917, s. 48, the relevant parts as regards this particular case being subsection (2) (e) which reads as follows: “by waiver of presentment, express or implied."

According to the evidence available before the trial judge there was an express waiver as regards the drawer only but not as regards the applicant, i.e. the indorser. The learned counsel for respondent contends that an implied waiver can be gathered from the fact that the applicant- defendant (the indorser) did not plead non-presentment for payment or non-protest in his pleadings or at any stage of the trial. The fact that the applicant-defendant did not raise this issue before the trial judge is not disputed as the record speaks for itself. The learned counsel for respondent quotes the following passage from Chalmers, Bills of Exchange (13th ed., 1964), p. 165, in support of his submission:

"It has been said, however, that the courts have often been ready to infer waiver from very slight evidence. It may be inferred even from conduct subsequent to the commencement of the action on the bill. . . An anomalous indorser who had known of the fact and reason for the dishonor even before the holder had done, failed to rely upon the absence of due notice of dishonor when seeking, under legal advice, leave to defend. He was taken to have waived the requirement."

Waiver of notice of dishonor should be distinguished from waiver of presentment for payment. The above passage which is quoted by the learned counsel for respondent speaks of waiver of notice of dishonor which is not the issue before us. It may be that the learned counsel for respondent thought that the principle laid down in his quotation could be applied as well in cases of waiver of presentement for payment.

The learned counsel for applicant did not raise the question of non- presentment for payment or non-protest in his pleadings or during trial. Such an issue could have been the subject of a good preliminary objection. The applicant cannot be allowed at this stage to raise the issue of  nonpresentment for payment. He should be taken to have waived this requirement by his conduct.

"If either party at the trial deliberately elects to fight one question only, on which he is beaten, he cannot afterwards on appeal raise another question, although that question was at the trial open to him on the pleadings, and on the evidence.” Odgers, Pleading and Practice (18th ed., 1963), p. 639.

It is my decision that the application be dismissed with costs.

Tawfig Abdel Mageed J. March 29, 1970 : —I entirely agree with my colleague Ramadan J. that this application for revision should be dismissed, because the applicant is raising now issues which he failed to raise and fight before the trial court. The applicant cannot be allowed to do that.