THE MANAGER PARS BANAFSHEH TRADE AND INDUSTRIAL CO v SAJJAD B KEREWALA 1996 TLR 344 (HC)

 

THE MANAGER PARS BANAFSHEH TRADE AND INDUSTRIAL CO v SAJJAD B KEREWALA 1996 TLR 344 (HC)

Court High Court of Tanzania - Dodoma

Judge Msoffe J

B

CIVIL APPEAL NO 23 OF 1995

26 July 1996 C

Flynote

Civil Practice and Procedure - Evidence - Statement and production of - Defendant a

layman - Court's duties under Order XVIII Rule 2 of the Civil Procedure Code 1966

-Headnote

The appellant appealed against the decision of the District Court of Dodoma which

had D allowed the plaintiff's claim for breach of contract. The appellant submitted

that the court had erred in denying him his right to call his defence witnesses. It

appeared that at the trial on 10 February 1995 the appellant had stated that he was

ready for defence and gave his submissions. Thereafter the respondent made his oral

submission in reply after E an adjournment. The appellant then stated that he had

intended to call witnesses and thought that he would call his witnesses. The

submission was resisted by the respondent who was permitted only to file written

submissions.

Held:

F (i) Although the record was not clear as to whether the appellant's

submission on 10 February 1995 was an opening speech or a submission of no case to

answer, on the assumption that it was an opening speech then he ought to have been

given the opportunity to produce his evidence, if any, by bringing in his witnesses.

The failure to do so infringed a fundamental principle of law of a party's right to be

heard.

G (ii) Even assuming that the submission of 10 February 1995 was one of no

case to answer, the magistrate was obliged to make a ruling on it and, in any event,

the appellant being a layman, the magistrate ought to have informed him of the

consequences of such submission.

Case Information

Appeal allowed and a retrial ordered. H

Cases referred to:

1. Yuill v Yuill [1945] 1 All ER 183

2. Mathuri v Nyaga [1974] EA 179

3. Simon Chitanda v Abdula Kisoma [1973] LRT No 11 I

Rweyongeza for the appellant.

Mpoki for the respondent.

1996 TLR p345

[zJDz]Judgment

Msoffe, J: A

This is an appeal against the decision of the District Court of Dodoma allowing the

respondent's claim for Shs 1,200,000/= as damages for an alleged breach of contract.

The facts giving rise to the case are well stated in the judgment of the Trial Courtwhich

B facts I do not have to repeat for purposes of determining this appeal.

In the memorandum of appeal there are two grounds. In my judgment, the first

ground will be enough to determine the appeal. Therefore no discussion will be made

in this judgment about the second ground. C

The first ground of appeal reads as follows:

`1. That the Trial Court erred in denying the appellant his right to call his

defence witnesses.'

The above complaint has a bearing on the Trial Court's proceedings of 10 February D

1995 and 10 March 1995. On 10 February 1995 one Mr Robert (a representative of the

appellant company) is on record as having said, inter alia, `I am ready for defence and

here are my submissions'. Thereafter he gave his oral submission after which Mr

Nyabiri, learned advocate for the appellant prayed for an adjournment to prepare his

E reply to the above submission. Accordingly the case was adjourned to 10 March

1995 when Mr Nyabiri made his oral submission in reply. Thereafter the defendant

(through Mr Robert) said: F

`I had the intent of calling my witnesses. Up to 10 February 1995 there were

some witnesses. What I thought is that today my witnesses would tender the

evidence.'

In my reading of this submission I understand it to mean that the said Mr Robert

actually G wanted to have witnesses testify for the defence. Anyhow, the submission

was resisted by Mr Nyabiri and the Court upheld him. Thereafter Mr Robert

intimated that he wanted to file final written submissions and accordingly the case

was adjourned to 17 March 1995. Up to this date the final submissions were yet to be

filed and so the case H was adjourned for judgment.

Order 18 Rule 2 of The Civil Procedure Code, 1966 reads as follows: I

`2(1) On the day fixed for the hearing of the suit or any other day to which

the hearing is adjourned, the party having the right to begin

1996 TLR p346

MSOFFE J

A shall state his case and produce his evidence in support of the issues which he

is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any)

and may then address the court generally on the whole case.

(3) The party beginning may then reply generally on the whole case. B

Subrule (2) is relevant for purposes of this appeal. It is clear here that after a plaintiff

has stated his case then a defendant would likewise state his case and produce his

evidence, if any. If my understanding of the law is correct, by stating his case a party

C would actually be making his opening speech or address-though I must admit that

this practice is rarely used in our jurisdiction in so far as civil matters are concerned.

The issue then is whether Mr Robert's submission of 10 February 1995 was an

opening D speech or a submission of no case to answer. Apparently the record is not

too clear about this, but the said submission could have meant either of the two.

However, assuming that it was an opening speech in which Mr Robert was stating the

defence case, then he ought to have been given the opportunity to produce his

evidence, if any, E by bringing in his witnesses, etc. This was not done thereby

infringing a fundamental principle of law of a party's right to be heard.

Even assuming that the submission of 10 February 1995 was one of no case to answer,

still I think the magistrate was expected to make a ruling on it. In any case, according

to F case law the magistrate was bound to inform the defendant of the consequences

of a submission of no case to answer ie that in the event he was not upheld then he

would forfeit the right to call evidence. Yuill v Yuill (1) and Mathuri v Nyaga (2). It is

clear from these authorities that in a given situation a defendant is given the

opportunity to elect G whether or not to give the submission of no case to answer

bearing in mind the resultant consequences. In Mathuri's case, for instance, Singh J

had this to say at 180:

H `The position is that if a defendant in a civil case submits at the end of the

plaintiff's case that there is no case which he is required to meet, then he is in effect

saying that he does not want to offer any evidence. Such position does occasionally

arise. The defendant may have some irrefutable point of law on his side. But that is a

decision which a defendant should not take lightly, because he is I depriving himself

of the right to offer evidence. The practice, therefore, is that the court points out to

the defendant the seriousness of the decision he is making

1996 TLR p347

A and gives him an opportunity to reconsider the matter. If the defendant still

persists in pleading no case, then the Court makes note of this and proceeds as though

the defendant had no evidence to offer.' (Emphasis added).

In the totality of the foregoing, I think this would be a fit case for allowing the appeal

with B an order for a retrial. Accordingly the appeal is allowed with the result that

there will be a trial de novo before a different magistrate rested with the necessary

jurisdiction. Since the court was partly to blame for the above mentioned state of

affairs there will be no order as to costs. C

Perhaps a word in passing. It seems to me that if Mr Robert--a layman in the legal

parlance-had been properly guided by the court on 10 February 1995 perhaps he

would have approached the matter differently. It will not be out of context to remind

the learned magistrate of an observation made by this court (Kwikima Ag J (as he

then was)) in the D case of Simon Chitanda v Abdula Kisoma (3) thus:

`Where the parties to a suit are laymen conducting their own cases, the trial

court should scrutinise the pleadings and in general furnish any necessary guidance.'

(Emphasis added) E

In this case, Mr Robert-a layman as aforesaid-ought to have been guided by the court

where possible or necessary. F

1996 TLR p347

G