KUDYA
AJA:
This
is an appeal against part of the judgment of the High Court of
Zimbabwe sitting at Harare on 20 November 2019 granting an interim
interdict in favour of the first respondent.
THE
FACTS
The
appellant and the first respondent have been engaged in a flurry of
litigation and at other times with Interfin Banking Corporation Ltd
in liquidation (the bank) in both the High Court and in this Court.
Some of the cases have been concluded while others are still pending.
The
facts relevant to this appeal are narrow.
On
16 March 2018, in HC2463/18, the appellant brought motion proceedings
against the first respondent seeking vindication of its original
title deed No. 9068/2008, which pertains to Lot 3 of Bannockburn (the
immovable property), within 10 days of the grant of the order failing
which the second respondent was to issue a duplicate replacement deed
within 90 days of that order. The order was granted purportedly in
default of the first respondent on 6 June 2018.
On
18 July 2018, while the application for rescission of the default
judgment was pending, the appellant obtained the duplicate
replacement title deed from the second respondent.
The
first respondent filed three urgent chamber applications to stop the
second respondent from issuing the replacement deed and one court
application to prevent the appellant from using it. The three urgent
applications were all removed from the roll for lack of urgency while
the court application was withdrawn.
The
default judgment upon which the replacement deed was issued was
rescinded a
quo,
in terms of Rule 449 of the High Court rules 1971, on 21 November
2018.
The
appellant duly appealed against the rescission of the judgment of the
court a
quo
to this Court. The appeal was dismissed with costs on the higher
scale on 7 October 2019 in case number SC924/18 for two reasons:
(i)
The first was that the substituted service, upon which the rescinded
judgment was based, had been effected on legal practitioners who did
not have the mandate to represent the first respondent.
(ii)
The second was that the order for substituted service had, by consent
of the parties, been rescinded by this Court in SC 733/18 on 25 March
2019.
It
was common cause that the appellant used the duplicate title deed to
subdivide an undisclosed number of stands on Lot 3 of Bannockburn. He
also used it to conclude an undisclosed number of agreements of sale
with purchasers such as Conradie Tinofirei Mutumbuki, the third
respondent in the application for rescission, on 11 October 2019 and
to transfer title thereof to three purchasers, one of which was David
Madyausiku who took transfer on 12 April 2019.
On
21 October 2019, the first respondent filed the urgent chamber
application which has given rise to this appeal. It sought in the
interim, the return of the replacement deed to the second respondent,
its cancellation by second respondent and the setting aside of all
transactions based on it.
On
the return date, it sought confirmation of the interim relief and
costs de
bonis propis
on the higher scale against the appellant's legal practitioner of
record, one Mr Kwaramba.
On
29 October 2019, the appellant opposed the application.
It
also filed a counter urgent chamber application in terms of r229A of
the High Court Rules, 1971. It raised five preliminary points. These
were;
(i)
that one of the urgent chamber applications that had been removed
from the roll was lis
pendens;
(ii)
there was material non-disclosure of all the urgent applications that
had been removed from the roll and the court application that had
been withdrawn;
(iii)
the application was not urgent;
(iv)
there was non-joinder of third parties who had benefited from
transactions based on the replacement title deed; and
(v)
Lastly that the relief in the interim order was the same as the one
in the final order.
On
the merits, it sought the dismissal of the application.
In
the counter application, the appellant sought the retention of the
replacement deed in the interim and determination of the lawfulness
of the first respondent's possession of the original title deed on
the return date.
It
indicated its avowed intention to utilize the replacement deed to
conduct further subdivisions, conclude more agreements of sale and
transfer the subdivisions that had been sold.
One
such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the
proceedings on his own motion as the third respondent at the hearing
on 29 October 2019 and made common cause with the appellant.
The
first respondent also raised the preliminary point of lack of urgency
against the counterclaim and sought its dismissal on the merits.
THE
FINDINGS A
QUO
The
court a
quo
dismissed all the preliminary points raised by the appellant. While
it regarded one of the urgent chamber applications that had been
removed from the roll to be pending at the instance of the first
respondent, it found the cause of action and relief sought to be
different from those before it. It found the non-disclosure of prior
urgent chamber applications and court application irrelevant to the
determination of whether the main application was urgent.
It
held that, as the appellant had only impugned the interim relief
pertaining to the setting aside of all transactions based on the
replacement deed and not the surrender and cancellation relief as
final in effect, it could exercise its Rule 240 discretion to grant
interim relief that was not final in effect.
It
proceeded to do so by suspending rather than cancelling all the
transactions predicated upon the replacement deed.
The
court a
quo
further determined that the relief sought did not seek to stop past
events but “recent and ongoing events”.
It
also relied on the provisions of Rule 87 to find that the non-joinder
of the third parties who purchased or took transfer of the purchased
subdivisions was not inimical to their rights and interests as they
were not involved in the procurement of the impugned replacement
deed.
Lastly
it found that the first respondent had acted with speed after the
decision of this Court of 7 October 2019 to launch the urgent chamber
application after the subsequent ten-day negotiations for the
voluntary surrender of the replacement deed failed.
Under
the consequence factor it held that the first respondent had
established that the failure to intervene on an urgent basis would
result in the attenuation and dissipation of the immovable property
to the detriment of the first respondent's rights in the security
pending litigation in HC8113/16, the consolidated case under which
the application for rescission had also been incorporated.
Regarding
the counter-application, it upheld the preliminary point of lack of
urgency that was raised by the first respondent and struck it off the
roll with costs on the higher scale.
On
the merits of the main application, the court a
quo
was cognisant of the fact that the issue before it concerned the
legality of the possession of the duplicate title deed by the
appellant and not the legality of the possession of the original
title deed by the first respondent.
It
held that the appellant had fraudulently procured the duplicate title
deed through a deliberate omission of the timeous opposition to its
application in HC2463/18 from the bundle of documents for default
judgment and the improper appeal against the rescission of the
default judgment.
It
reasoned that the appellant had done so for the twin purposes of
obtaining and utilizing the duplicate deed to undertake the
transactions it could not do without the original title deed such as
the advertisements for the sale of stands, the conclusion of
agreements of sale and the transfer of the stands.
It
also determined that the rescission of the default judgment restored
the status quo
ante,
thereby effectively maintaining and preserving the first respondent's
possession of the original deed and preventing the appellant from
utilizing the duplicate deed to attenuate and dissipate the security
by subdividing, selling and transferring any subdivisions.
Lastly,
it held that the first respondent had established all the
requirements for a mandamus.
It therefore granted the provisional order for the return of the
duplicate deed to the second respondent for cancellation and
suspended all pending activities founded on the subdivisions,
agreements of sale and transfers of title predicated upon the
duplicate title deed. The appellant was accordingly estopped from
effectuating all activities based on the duplicate title deed.
The
court a
quo
reserved the nature and level of costs for the return day.
GROUNDS
OF APPEAL
Aggrieved
by the determination a
quo,
the appellant sought the setting aside of the order in the main
application only and its substitution by a dismissal of the urgent
chamber application with costs on the following four grounds of
appeal:
“1.
The court a
quo
erred in concluding that the 1st
respondent's application was urgent when the 'time' and
'consequence' factors of urgency were not satisfied.
2.
The court a
quo
erred in granting the relief of an interdict when all the
requirements of an interdict were not met.
3.
The court a
quo
grossly misdirected itself by granting a final interdict on an
interim basis.
4.
The court a
quo
grossly misdirected itself by purporting to interdict past events
done pursuant to the replacement title deed.”
It
is noteworthy that the appellant did not appeal against the striking
off order against its counter urgent chamber application.
THE
ISSUES
It
was common cause that the issues for determination that arise from
the grounds of appeal are:
1.
Whether the court a
quo
correctly determined that the matter was urgent.
2.
Whether the requirements of an interim interdict were satisfied.
3.
Whether or not the court a
quo
granted a final interdict when the first respondent had sought an
interim order.
Mr
Bhamu,
for the appellant sought to have the appeal postponed sine
die
to enable the appellant to brief a counsel of choice after the
previous counsel renounced agency on 15 June 2020.
Mr
Uriri,
for the first respondent opposed the application for postponement on
the basis that the reasons therefor had not been correctly
articulated and were merely a delaying tactic intended to prolong the
appellant's perverse use of the replacement title deed. Further,
that the appellant lacked the genuine desire to provide adequate
security for the first respondent's claim for the settlement of the
bankers' acceptances (BAs) that were secured by the original title
deed held by the first respondent.
At
the request of the parties, we adjourned the matter to the end of the
roll to enable them to discuss the prospects of settlement.
The
parties failed to find each other on the requisite bond of security
in the amount and currency claimed, thereby confirming Mr Uriri's
disquiet over the genuineness of the appellant's tender of security
for the first respondent's claim that is secured by the original
title deed.
We
adopted the position pronounced by this Court in Midkwe
Minerals (Pvt) Ltd v Kwekwe Consolidated Gold Mining (Pvt) Ltd &
Ors
SC54/13 at p7 that;
“The
grant or otherwise of a postponement is in the discretion of the
court. A party seeking the grant of a postponement or other
indulgence at the hearing must come prepared for a grant or refusal
of its request. A legal practitioner must be prepared, in the event
of a refusal by the court to grant a postponement, to proceed with
the hearing if so ordered.”
This
was because the erstwhile legal practitioners for the appellant had
filed heads of argument as far back as 9 March 2020, which they
further supplemented on 19 March 2020.
It
was our view that by purporting to appear before us whilst totally
unprepared and totally ignorant of the merits of the case smacked of
negligence on the part of Mr Bhamu,
who ought to have come prepared to argue the matter in the event that
his application for deferment was refused.
We
accordingly ordered the parties to motivate the appeal.
In
the result both counsel requested that the appeal be determined on
the papers filed of record.
In
his written heads of argument, Mr Uriri
raised the preliminary issue that the notice of appeal was fatally
defective for non-compliance with Rule 37(1)(c) and (e) of the
Supreme Court Rules 2018, in that it failed to identify the part of
the judgment appealed against and the exact relief sought.
He
contended that the first respondent sought and was granted a
quo a mandamus
and costs on a legal practitioner and client scale yet the
appellant's substituted order seeks a wholesale vacation of that
provisional order without appealing the costs order.
He
clearly misconstrued the provisional order granted in the first
respondent's favour. That order reserved the question of costs to
the return date.
We
are also satisfied that, as worded, the relief sought meets the
peremptory requirements of both para (c) and (e) of Rule 37(1) of the
rules of this Court.
The
first preliminary point is dismissed for lack of merit.
The
second preliminary point is that the failure by the appellant to
motivate the fourth ground of appeal throws that ground out of court.
Rule
52(2) and not 26(1)(b) as submitted by Mr Uriri
requires an appellant to file heads of argument in the prescribed
period together with the list of supporting authorities in respect of
each ground of appeal.
It
is trite that a failure to motivate a ground of appeal is treated as
an abandonment of that ground.
The
second preliminary point is upheld and ground number 4 is accordingly
struck out from the notice of appeal.
On
the merits the appellant contended that the court a
quo
erred
in holding;
(i)
Firstly that the time to act commenced soon after this Court's
judgment of 7 October 2019 rather than 18 July 2018, when the
replacement title deed was issued by the second respondent; and
(ii)
Secondly that the continued use of the replacement deed to subdivide,
sell and transfer the subdivisions constituted an irreversible
dissipation of the immovable property secured by the collateral held
by the first respondent.
It
submitted that the previous attempts in HC5466/19 and HC7769/19 to
stop the use of the replacement deed negated the “time and
consequence” based urgency by the time the provisional order was
sought on 21 October 2019, since the dissipation of the immovable
property, which began in 2008, was known to the first respondent from
March 2012, when it took possession of the original deed.
On
the consequent aspect, the appellant argued that the failure a
quo
to determine whether the tender of security in
lieu
of the original deed negated any irremediable harm arising from the
indebtedness claimed in HC8113/16, which had been fully ventilated by
the parties, constituted a fatal misdirection warranting interference
with its discretion on appeal.
The
appellant further submitted that as the immovable property was not
hypothecated, it could not constitute security for the bankers'
acceptances.
It
strongly contended that the absence of irreparable harm therefore
negated the finding a
quo
of urgency.
The
appellant further impugned the finding that the first respondent had
established a prima
facie
case for granting the provisional order.
It
assailed the existence of a prima
facie
entitlement, though open to some doubt, to possess the original title
deed pending determination of HC8113/16, on four grounds:
(i)
Firstly, the absence of a debtor-creditor relationship;
(ii)
secondly, the absence of a cession between the two protagonists;
(iii)
thirdly, that the appellant had discharged its obligations in full to
the bank; and
(iv)
lastly that possession of the original title deed was contrary to the
Security Trust Deed and Assignment Agreement between first respondent
and the bank.
The
appellant also emphasized that as the title deed was not the subject
of the claim in HC8113/16 nor encumbered, the purported tender of the
bond of security countervailed the existence of actual or reasonable
apprehension of harm.
It
further argued that the balance of convenience favoured the appellant
in that it had earned US$15 million from the sale of 300 stands on
which third parties had invested a further US$18m, which in aggregate
significantly eclipsed the claim of US$2.3m in HC8113/16.
It
boasted of its ability to pay the claimed amount in the event
liability was established.
Lastly,
the appellant contended that the court a
quo
improperly granted final relief on an interim basis on a lower onus,
which did not protect its rights pending HC8113/16.
Per
contra,
the first respondent contended that the court a
quo
had correctly found that the first respondent established both the
“time and consequence” factors of urgency and all the four
requirements for the grant of an interim interdict.
Mr
Uriri
further
argued that the provisional order was not final in form or substance
as it was premised on the determination of HC8113/16, which was
pending before the High Court.
THE
LAW
The
treatment of whether an application is urgent is a matter in the
discretion of the court a
quo.
This Court has very limited grounds upon which it can interfere with
the exercise of that discretion. It can do so where the lower court
makes a mistake on the law or the facts, acts upon a wrong principle,
allows extraneous considerations to influence its decision, fails to
take into account relevant facts or more generally makes a decision
that is irrational. See Hama
v National Railways of Zimbabwe
1996
(1) ZLR 664 (S) at 669F-670D; Barros
& Anor v Chimpondah
1999 (1) ZLR 58 (S) at 62G-63A and Econet
Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & AnorSC43/13.
The
law on what constitutes urgency is settled.
Urgency
is manifested by either a time or consequence dimension. See Kuvarega
v Registrar-General & Anor
1998
(1) 188 (H) at 193E; Document
Support Centre (Pvt) Ltd v Mapuvire
2006
(2) ZLR 240 (H); Gwarada
v Johnson & Ors
2009
(2) ZLR 159 (H); and
Sitwell
Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau
SC28/14 at p3.
In
addition, in Econet
Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor, supra,
at
p16 GARWE JA, as he then was, further suggested that an urgent
chamber application in which the interim relief is similar to or has
the same effect as the final relief prayed for may justifiably be
found to be not urgent.
While
he generally approved the position articulated in Kuvarega,
supra,
at 193A-C he underscored that such an application could not be
regarded as a nullity and stated that:
“Whilst
no hard and fast rule can be laid down, there may well be cases where
a court would be justified in holding, in such a situation, that the
application is not therefore urgent and that it should be dealt with
as an ordinary court application. There may also be cases where the
court as it is empowered to do….may amend the relief sought in
order to grant…interim protection (and) obviate a situation where
final relief is granted by way of a provisional order.”
It
is apparent that the consequence dimension presupposes that the harm
sought to be protected in an impending matter would be amorphously
irremediable without the interim indulgence.
In
Chiwenga
v Mubaiwa
SC86/2020 at p10, this Court further highlighted the incongruence of
noting an appeal against a finding of urgency for the basic reason
that the finding of urgency is a mere procedural device used by an
applicant to jump the queue of other pending matters for a
consideration of the merits. This Court reasoned that:
“Looked
at differently, an order granting the urgent hearing of a matter is
generally not appealable. This is for the simple reason that the
order has no bearing on the merits of the application or judgment.
This is akin to a bank customer who is rightly or wrongly allowed to
jump the queue. His or her transaction cannot be impugned or rendered
unlawful solely on the basis that he or she has jumped the queue. By
the same token a correct judgment cannot be impugned or rendered
incorrect by the mere fact that the matter was improperly heard as an
urgent application.”
In
Nyakutombwa
Mugabe Legal Counsel v Mutasa & Ors
SC28/18 at p8 this Court held that a finding of urgency by a court on
its own cannot constitute a substantive ground of appeal.
In
our law a pledge vests real rights of security in the property
pledged to the pledgee. This was pertinently pronounced by Mfalila J
in Hughes
v Lotriet
1985 (2) ZLR 179 (H) at 186A thus:
“This
valid pledge therefore had the effect of conferring on the applicant
(the pledgee) a real right in the articles pledged and this right can
only terminate when the pledge is extinguished. The pledge is
extinguished only after the original or principal obligation is
discharged… Until this is done, the respondent as pledgor has no
right of action either for their return or damages for their loss.”
The
requirements and purpose of an interim interdict are also well
settled in this jurisdiction.
It
seeks to protect an existing right from unlawful infringement that is
either continuing or reasonably anticipated. See Mayor
Logistics (Pvt) Ltd v Zimbabwe Revenue Authority
CCZ7/14; Setlogelo
v Setlogelo
1914 AD 221 at 227; and Tribac
(Pvt) Ltd v Tobacco Marketing Board
1996 (2) ZLR 52 (S).
In
the latter case this Court stated at 56B-D that:
“An
application for a mandamus or 'mandatory interdict', as it is
often termed, can only be granted if all the requisites of a
prohibitory interdict are established. See Lipschitz
v Wattrus NO
1980 (1) SA 662 (T) at 673C-D; Kaputuaza
& Anor v Executive Committee of the Administration for the
Hereros & Ors
1984 (4) SA 295 (SWA) at 317E. These are:
1.
A clear or definite right - this is a matter of substantive law.
2.
An injury actually committed or reasonably apprehended - an
infringement of the right established and resultant prejudice.
3.
The absence of a similar protection by any other ordinary remedy. The
alternative remedy must -
(a)
be adequate in the circumstances;
(b)
be ordinary and reasonable;
(c)
be a legal remedy; and
(d)
grant similar protection.”
In
respect of an interim interdict, where the right sought to be
protected is not clear “a right which, 'though prima
facie
established, is open to some doubt'” suffices. See Eriksen
Motors (Welkom) Ltd v Warrenton & Anor
1973 (3) SA 685 (A) at 691D.
Where
a clear right is established the applicant is precluded from
establishing a well-grounded apprehension of irreparable harm but
must do so where only a
prima facie
right open to some doubt is established. See Pinkstone
Mining (Pvt) Ltd & Ors v Lafarge Cement (Pvt) Ltd & Anor
HH118/18 at p3.
Bankers
Acceptances (BAs) meet the definition of a bill of exchange espoused
in the Bills of Exchange Act [Chapter
14:02].
The
Act also defines certain correlative terms to a bankers acceptance
such as 'acceptance' 'bearer' 'delivery' 'endorsement
holder' and 'payment in due course'
APPLICATION
OF THE LAW TO THE FACTS
The
appellant submitted that the court a
quo
misapplied the time aspect and failed to consider the “consequence”
factor.
The
ratio
of the court a
quo
on these two aspects is delineated on p13 of the appealed judgment in
these words:
“Notwithstanding
that the order that enabled the first respondent to procure a
duplicate title deed was effectively nullified by the Supreme Court
on 7 October 2019, the first respondent (appellant) is still refusing
to return the replacement copy of the title deed in terms of which it
subsequently
subdivided and sold parts of the property
as
evidenced by the agreement of sale in the third respondent's
(Mutumbuki) notice of opposition, hence first respondent is
effectively in the process of developing and dissipating stands to
individual purchasers. From the papers applicant engaged the first
respondent from 7th
to 17th
October 2019 but first respondent has made it clear that it wants to
hold onto the replacement title deed at all costs to further its
apparent unlawful activities of dissipating the immovable property
before resolution of case HC8113/18 (sic).
It
becomes prudent for this court to intervene on an urgent basis to
force the first respondent to return the duplicate title deed and for
the duplicate title deed to be cancelled if necessary to prevent
first respondent from alienating the property or disposing of its
title in the said immovable property pending litigation between the
parties before MUSHORE J.”
The
above sentiments are unassailable.
Before
the order of this Court of 7
October 2019,
all prior urgent applications to stop the issuance and use of the
replacement deed by the second respondent were hamstrung by the
extant default judgment that permitted the appellant to obtain the
replacement deed.
The
patently erroneous default judgment had been given a lease of life by
the improper appeal lodged by the appellant against the order of
rescission.
Notwithstanding
that the service by substitution order upon which the default
judgment was based was, by consent, rescinded by this Court on 25
March 2019, the appellant brazenly utilized the replacement deed to
transfer a stand on the immovable property to Madyausiku on 12 April
2019.
And
despite the confirmation, again by this Court of the rescission of
the default judgment on 7 October 2019, which by operation of law
rendered the replacement deed inefficacious, the appellant perverted
the default judgment and the replacement deed by concluding an
agreement of sale for a stand on the immovable property with, amongst
others, Mutumbuki on 11 October 2019.
In
its opposing affidavit, the appellant persisted with its avowed
intention to continue using the replacement deed to subdivide, sell
and transfer stands on the immovable property.
We
are satisfied that the court a
quo
properly applied both the time and consequent factors of urgency.
The
exercise of its discretion on the question of urgency is
unassailable.
Again,
on the authority of this Court in the Nyakutombwa
and Chiwenga
cases, supra,
the first ground of appeal is not only ill conceived and misplaced
but also devoid of merit.
The
tenor of the contentions made by the appellant in respect of the
second ground of appeal disingenuously relates more to the counter
application that was struck off and not appealed against rather than
the provisional order that it sought to impugn.
The
provisional order protected the first respondent's right to
legality, which constitutes a vital aspect of the rule of law.
The
consolidated matter in which, inter
alia,
the first respondent sought the discharge of dishonored bankers
acceptances drawn by the appellant and secured by the title deed was
pending as was the claim of vindication that was lodged by the
appellant.
The
case was awaiting determination in accordance with the law.
This
Court had effectively disgorged the appellant of the ill-gotten
duplicate deed and nullified its efficacy on 7 October 2019.
The
appellant's refusal to voluntarily surrender the duplicate deed was
inimical to the first respondent's real rights in the security that
are awaiting determination. The provisional order could not and did
not determine the issues pending in HC8113/16.
It
was remiss of the appellant to motivate the second ground solely on
the legality of the possession of the original deed by the first
respondent while studiously ignoring the legality of its own
stranglehold on the duplicate deed.
The
failure to properly demonstrate how the court a
quo
misdirected itself in finding that the constituent elements of an
interim interdict were established is fatal to the second ground of
appeal.
The
second ground of appeal lacks merit and must, therefore, fail.
The
appellant further contended that the court a
quo
erred in granting a final interdict on an interim basis.
The
order granted a
quo
was a provisional order, which restored the status quo
ante
pending the conclusion of the consolidated matter, HC8113/16.
Before
the replacement deed was issued, the appellant could neither
subdivide, sell nor transfer any stands on the immovable property.
That
is the position that was safeguarded by the provisional order.
The
order sought to be confirmed or discharged is predicated on the
pending consolidated matter HC8113/16, which at the time the
provisional order was sought and granted incorporated HC2463/18.
In
addition, the court will determine the propriety of mulcting Mr
Kwaramba
with
costs on the higher scale de
bonis propis
on the return date.
The
first respondent will also be obliged to show not only why the status
quo
ante
should be confirmed pending the determination of the disputes raised
by both parties in the consolidated matter, HC8113/16, but also why
Mr Kwaramba,
should personally be mulcted with punitive costs.
The
provisional order did not stop the determination of HC8113/16 nor did
it preempt any of the issues raised therein.
The
provisional order was therefore not the same as the final order
sought nor did it have final effect.
Accordingly,
the third ground of appeal must fail.
COSTS
It
is clear to us that the appeal was launched for the perverse purpose
of prolonging the appellant's stranglehold on the replacement deed
in order to render the security held by the first respondent
redundant. This is a proper case for expressing our displeasure at
the conduct of the appellant by mulcting it with costs on the scale
of legal practitioner and client.
DISPOSITION
Accordingly,
it is ordered that:
1.
The appeal be and is hereby dismissed.
2.
The appellant shall pay the first respondent's costs on the scale
of legal practitioner and client.
BHUNU
JA: I agree
UCHENA
JA: I agree
Mbidzo,
Muchadehama & Makoni,
appellant's legal practitioners
Atherstone
& Cook,
first respondent's legal practitioners
1.
Section
3(1) A bill of exchange is an unconditional order in writing,
addressed by one person to another, signed by the person giving it,
requiring the person to whom it is addressed to pay on demand, or at
a fixed or determinable future time, a sum certain in money to, or to
the order of, a specified person, or to bearer.
2.
“bearer”
means the person in possession of a bill or note which is payable to
bearer;
“delivery”
means transfer of possession, actual or constructive, from one person
to another;
“endorsement”
means an endorsement completed by delivery;
“holder”
means the payee or endorsee of a bill or note, who is in possession
of it, or the bearer thereof;
“payment
in due course” means payment made at or after the maturity of a
bill to the holder thereof in good faith and without notice that his
title to the bill is defective;
