THE MANAGER, NBC, TARIME v ENOCK M. CHACHA 1993 TLR 228 (HC)

 

THE MANAGER, NBC, TARIME v ENOCK M. CHACHA 1993 TLR 228 (HC)

Court High Court of Tanzania - Mwanza

Judge Masanche J

B CIVIL APPEAL NO. 22 OF 1993

2 November, 1993

Flynote

C Civil Practice and Procedure - Ex-parte judgment - Grounds for setting aside an

ex-parte judgment.

-Headnote

The appellant was sued by the respondent. On the date set for the hearing of the case

the appellant did not appear. The Trial District Court, ordered the case to proceed ex

parte the following day. The D case proceeded as ordered and judgment was entered

for the respondent (plaintiff). The appellant unsuccessfully applied to the Court to set

aside the ex-parte judgment and hence this appeal.

Held: The District Court was wrong to refuse to set aside the judgment it gave exparte

because

E (a) assuming that the respondent was properly allowed to prove his case

ex-parte, he did not prove his case on the balance of probability as required by law;

(b) the learned District Magistrate was enjoined to draw issues but in this

case no issues were drawn; and

F (c) the central issue in the case, which was special damages, was not

addressed.

Case Information

Appeal allowed.

Cases referred to:

G 1. Jayantilal G. Dave v. Business Machines Ltd., Civil Appeal No. 45 of

1973 (Kenya).

2. Felix M. Shirima v. Mohamed Farahani and another, HC, DSM, Civil

Case 23 of 1981 (unreported).

3. Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd

[1951] 1 All ER 873.

H November 2, 1993.

[zJDz]Judgment

Masanche, J.: The appellant, the manager of the National Bank of Commerce was sued

by respondent, Enock Chacha in the District Court of Tarime, at Tarime. In short, it is

alleged that the respondent had presented a cheque at the bank of the appellant. The

cheque was of Shs 200,000/=. I That cheque was dishonoured by

1993 TLR p229

MASANCHE J

the bank. The respondent contended that the cheque was dishonoured wrongly. The

respondent A therefore sued the bank for this `disgrace.' He asked to be paid

damages to the tune of Shs 3,5 million.

The bank did not appear on the date fixed for the hearing of the case. The District

Magistrate, Mr B Malamsha ordered that the case should proceed to hearing exparte,

the following day. The hearing was to commence on 27 January 1993. Indeed

on that day, the respondent was called upon to adduce evidence. He did so. The

learned Magistrate wrote a short judgment. He actually termed it a C `ruling'.

Judgment was entered for the plaintiff wholly as prayed.

On 18 March 1993, the appellant, through the Tanzania Legal Corporation, applied to

have the attachment order which was issued against the bank stayed pending an

application to set aside the ex-parte judgment entered on 27 January 1993. The

application was granted. But the Court ordered D that the bank deposit with the

Court some Shs 3 million as security.

The actual application to set aside the ex-parte judgment entered on 27 January 1993

was heard on 24 April 1993. The appellants were not granted the application. They

now appeal to this Court.

The respondent, in answer, to this application by the bank, to set aside the ex-parte

judgment, E informed the Court that the applicants were themselves to blame. He

had obtained judgment and he was bound to apply for its execution. He argued that

the appellants were late in applying to set aside the ex-parte judgment.

This appeal against the decision of the District Court, refusing to set aside the

judgment it gave F ex-parte, must be allowed. There are several reasons why this

appeal should be allowed.

1. Assuming that the respondent was properly allowed to prove his case

ex-parte, he did not G prove his case on the balance of probability as required by

law. It does not follow that since a party has been allowed to prove his case ex-parte,

he can just casually go though his claims, in the hope that the Court will readily grant

the prayer. A party who proceeds to prove his case ex-parte must prove his case on

the required standard of the law. Where the H proof falls short of the required

standard, the court must dismiss the case (see the case of Javantlal G Dave v Business

Machines Ltd (1)

2. Corollary to the above, Bahati J, has said this in Felix M Shirima v

Mohamed Farahani and Another (2) It is a cardinal principal of law that in civil cases

there must be proof on the balance of the probabilities. In this case, it cannot be said

I

1993 TLR p230

MASANCHE J

A that the scanty evidence adduced in this Court proves in any way what

is alleged in the plaint. There must be proof of the case on the standard by law which

is on the balance of the probabilities even when a case proceeds ex-parte like in this

case. . . .

(3) The case before the learned District Magistrate was a Civil Case and it

was coming for B hearing albeit ex-parte. The learned District Magistrate was

enjoined to draw issues. No issues were drawn as far as I can see in this file.

(4) The learned magistrate should have realised that the central issue in the

case was special C damages. Special damages, in law need strict proof. As Devlin J

said in the case of Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd

(3) at page 875:

`There exists an impression that, when pleading special

damages, one can plead a certain figure, arrived at in some way, and one can then set

up a lower figure in Court and seek to justify it. In my view that is not the proper way

to plead special damages . . .'

All these reasons make it necessary for me to allow this appeal. As Mr Gallati has

submitted, there is E a triable issue: it is that of special damages. The respondent

alleged that because his Shs 200,000/= worth of cheque was not honoured, he has

suffered special damages to the tune of Shs 3.5 million. That in itself, should have

attracted the learned magistrate to make his discretion in favour of having the whole

matter go on full trial.

F Appeal is allowed.

The case is remitted back to the District Court, where it should be heard inter-party.

But the hearing inter-party should be before another Magistrate. The order of a

deposit of Shs 3 million into Court is also set aside. The bank should have its money

back.

G It is so ordered.

1993 TLR p231

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