Samatta Ag J: C
This appeal, which is from a decision of the resident magistrate's court of Dar es Salaam, raises a question of law of considerable importance. Stated in broad terms the D question is: What course should a court take when at the end of a plaintiff's case it is submitted by or on behalf of the defendant that there is no case to answer?
In view of the nature of the order I propose to make later in this judgment, the facts of the case which have given rise to that question must be stated in a skeletal form. The E appeal arises out of an action on a contract for sale of an air-conditioner. Immediately after the case for the plaintiff university was closed, Mr Kesaria, on behalf of the defendant company, submitted that there was no case to answer. The pith and substance of his contention was that the evidence which was adduced by the plaintiff F university in support of its claim was so unsatisfactory that it had not shifted the burden of proof on to the defendant company. Miss Sheikh, counsel for the plaintiff university, made a reply at the end of which she invited the court to enter judgment for the plaintiff university. Before embarking upon his submission Mr Kesariamade no indication to the court that he was not going to call any evidence. Indeed, at no time during the submission did he make such an election. The court did not make any attempt to ascertain from him as to what action he proposed to take. In a fifteen page reserved ruling the learned resident magistrate reviewed the evidence before her and came to the conclusion that Mr Kesaria's submission was not well founded. In the course of the ruling she said:
`In my view the plaintiff's evidence has shifted the burden on to the defendant to disprove by a reasonable explanation how they arrived at a decision that they are excluded from liability. Again and again it
has been stressed by the courts that where a party relies on a some (sic) assertion and of which he A has special knowledge, he must explain how he says he excludes liability from himself.'
Having said that, the learned resident magistrate went on to point out what, in her opinion, the defendant company had to prove to avoid liability. After holding that the B defendant company had failed to discharge the onus, she concluded thus:
`I therefore find the suit in favour of the plaintiff with all costs and interest.' C
It is that decision which the appellant company appeals against to this court.
Mr Kesaria sought to impugn the decision on grounds of merits. In my view, however, those grounds can properly be examined only if this court is of the view that the learned D resident magistrate directed herself properly in law in delivering judgment before hearing the evidence of the appellant company. To that issue I now devote my attention.
The Civil Procedure Code 1966, does not shed even a wavering light as to what answer E should be given to the question I posed at the beginning of this judgment. There is no provision in the Code which is analogous to that of s 205 or of s 278(1) of the Criminal Procedure Code. Order 18, Rule 2 merely makes provision for the order which ought to be followed in the production of the evidence of parties. It is as silent as a graveyard as F to what course a court should take when a submission of no case is made. What, then, should a judge or magistrate do when such a submission is made? Although that is not an unimportant question, strangely enough, as far as the law reports go, no decision in East Africa throws any light upon it. The problem has, however, received G attention in a number of modern English cases which I now proceed to examine.
The first case in point of date is Parry v Aluminium Corporation Ltd (1). The salient facts of the case are lucidly and accurately given in the headnote as follows: H
`An employee in a factory, whose hand was injured in a cutting machine, brought an action against his employers alleging negligence and also breach of statutory duty in that the machine was a dangerous machine and was not securely fenced. At the close of the plaintiff's case, the defendant's I Counsel submitted that there was no case to answer on the ground that, on his own showing, the plaintiff
had been guilty of contributory negligence. The trial judge upheld the defendants' submission and A gave judgment for the defendants.'
The plaintiff appealed to the Court of Appeal. It was held that the learned Trial Judge had misdirected himself in finding that the plaintiff had been guilty of contributory negligence. In the course of his judgment, Goddard LJ said at 237: B
`I think that in all these cases of negligence, if a judge is asked to rule at the end of the plaintiff's case that the plaintiff has made out no case, it is most desirable that he should adopt the practice, laid C down a great many years ago in this court, when Mathew, LJ was sitting here, and since adopted by Horridge, J who was a judge of the greatest experience in these matters, that the judge should say to counsel who is submitting no case: "Do you elect to call no evidence?" If counsel is content to leave D the case where it is, then the judge can rule. But it is very undesirable for the judge to give a ruling in a case which may afterwards be upset by the Court of Appeal, when the defendant may be in a position to say: "I must have a new trial, because my evidence was never heard." I think in negligence cases the right course is for the judge to refuse to rule unless counsel says that he is going to call no evidence. Horridge, J used to say, if he was sitting with a jury: "Are you going to call E any evidence; or are you going to let the case stay where it is?" If counsel said: "I am not going to say whether I am going to call any evidence," then he would say: "You must call your evidence," and then I will rule whether or not, on the whole of the case, there is a case to go to the jury or not." If a judge is sitting without a jury, he does not have to say that, because he can say he will decide at the F end of the case.'
The learned Lord Justice continued:
G `I think that that is the proper course to take in these cases. I do not say that it is the right course in every kind of action, because in defamation cases, for instance, I believe there is authority for saying that, if it is submitted that there is no evidence of malice, the judge is bound to rule. H
Also in slander cases the judge must rule if the submission is made that the words are not actionable without proof of special damage and no special damage is alleged. But I think that the old practice, which I believe most judges adopted, is a sound practice, because it does prevent the chance of a defendant, unsuccessful in this court, asking that the case should go back for a new trial I to have his evidence heard.'
That dictum was approved by the Court of Appeal a year later in the case of Laurie v A Raglan Building Co Ltd (2). That case involved a claim for damages arising out of alleged negligence. At the end of the plaintiff's case the Trial Judge ruled in favour of the submission of counsel for the defendants that no case had been made out for the defendants to meet. In the course of his judgment, with which Goddard and Du Parcq B LJJ agreed, Lord Green MR said at 337:
`The course which the trial took was this. After the evidence for the plaintiff had been concluded, on the question of liability counsel for the defendants submitted that there was no case. It is unfortunate, C I think, that the judge did not follow the practice which ought to be followed in such cases, as has been quite clearly laid down in this court-namely, the practice of refusing to rule on the submission unless counsel for the defendants says that he is going to call no evidence. That must be regarded as the proper practice to follow, and it is to be found very lucidly set out, if I may say so, in the D judgment of Goddard, LJ in Parry v Aluminium Corporation Ltd. However, I do not wish it to be thought that there is any particular magic about that question being asked, because it seems to me that counsel can make it perfectly clear, by words which he uses and by the way in which he acts, that he E does not intend to call any evidence, and, that being so, he must be taken to have given a negative answer to the question which the judge might otherwise have put to him.'
The next case I wish to refer to is Yuill v Yuill (3) at 185. The principal facts of the case F are clearly and, I think, correctly stated in the headnote to the case, which, with gratitude, I proceed to read:
`The petitioner husband sought the dissolution of his marriage with the respondent on the ground of adultery.... When the case for the petitioner was closed, counsel for the respondent made a G submission that there was no case to answer. The Judge ruled against the submission without, however, having called upon counsel for the respondent to elect whether to call evidence or rely on his submission, and heard the evidence of the respondent and the co-respondent. H
He came to the conclusion that upon the petitioner's evidence he ought not to draw the inference that adultery had taken place on August 3, and accepted the evidence of the respondent and co-respondent basing his belief that they were substantially truthful upon "a careful observation of their demeanour" and the opinion which he had formed of their "type of characteristics". He, therefore I dismissed the petition.'
On appeal it was contended on behalf of the petitioner that since the submission of no A case to answer had been rejected the petitioner was entitled to a decree. Delivering his judgment, with which the other members of the court-MacKinnon and Du Parcq LJJ agreed, Lord Greene MR said at 184--185: B
`Before I come to the principal question in this case it will be convenient to dispose of two arguments submitted by counsel for the appellant. The first is as follows. In the court below, when the case for the appellant was closed, counsel for the respondent made a submission of no case-not, as I C understand, in the sense that the evidence led by the appellant was insufficient in law to support a decision in his favour-but by way of an invitation to the judge to dismiss the petition without calling on the respondent.
Wallington, J, did not at the time appreciate the nature of counsel's submission: in particular it did not D occur to him that in taking the course which he did the respondent's counsel was in any way intending to call no evidence. In the result he did not follow the practice which, we are informed, has been adopted in the Divorce Division of calling upon the respondent's counsel to elect whether to call evidence or to proceed with his submission. The submission having failed, counsel for the appellant Econtended before Wallington, J, that the respondent's counsel, by making the submission, had lost his right to call evidence and that the judge's ruling necessarily meant that the appellant was entitled to a decree. This contention was rejected by Wallington, J. It was, however, repeated before us and we were invited to say that the appellant ought in the circumstances to have been granted a decree F as a matter of course and to allow the appeal accordingly. Alternatively, it was said that if the mere fact that the judge had ruled against the submission of no case was insufficient, we ought in considering the facts to disregard the evidence led by the respondent.
This argument is, in our opinion, based on a misapprehension of the meaning of the practice which G in appropriate cases is followed where counsel for a defendant desires to make a submission of no case. The practice is discussed in Alexander v Rayson, Parry v The Aluminium Corporation, Ltd, and Laurie v Raglan Building Co, Ltd, and I will assume that it is the proper practice to follow in the Divorce Division. It does not mean that counsel by submitting no case ipso facto loses his right to call H evidence if his submission fails.
He only loses that right if he definitely elects to call no evidence. He may make this election expressly or (as in Laurie v Raglan Building Co, Ltd) impliedly. The practice which has been laid down amounts I to no more than a direction to the judge to put counsel who desires to make a submission of no case to his election and to refuse
to rule unless counsel elects to call no evidence. Where counsel has so elected he is, of course; A bound: but if for any reason, be it through oversight or (as here) through a misapprehension as to the nature of counsel's argument, the judge does not put counsel to his election and no election in fact takes place, counsel is entitled to call his evidence just as much as if he had never made the submission. This argument, therefore, fails.' B
The rule that a party who elects to call no evidence in reliance of his submission of no case loses the right to call his evidence if the submission fails was approved by the Court of Appeal for Eastern Africa in Overseas Touring Company (Road Services) C Limited v African Produce Agency (1949) Limited and Another (4). At the trial in that case counsel for the second defendant, Mr Wilkinson, went ahead with his submission that the plaintiff had not made out a case for his client to meet despite the fact that the learned Trial Judge had warned him that if he continued with the submission he was not D going to be allowed to call evidence. In the end the learned judge refused to allow him to call evidence. Mr Wilkinson's criticism of the learned judge's decision of refusing to allow him to call evidence was rejected by the Court of Appeal. Sir Kenneth O'Connor P said at 193: E
`On appeal, Mr Wilkinson, for the appellant, argued that the learned judge had been wrong in refusing to allow him to call evidence if he continued with his submission of no case at the close of the plaintiff's evidence and his submission failed. I think, however, that the learned Judge was justified in F taking that course: Yuill v Yuill at 18.'
Unfortunately it was not necessary in that case for the Court of Appeal to examine the entire practice relating to a submission of no case. It therefore confined itself to the G submission made before it.
The next English case in which the practice was examined by the Court of Appeal is Storey v Storey (5). Delivering the judgment of the court which consisted of himself, Hodson and Harman LJJ, Ormerod LJ referred to the cases of Alexander v Rayson (6), Parry v Aluminium Corporation Ltd (1), and Lurie v Raglan Building Co Ltd (2) and then H continued at 281:
`The combined effect of these three cases appears to be that the proper procedure if a submission of no case is made by the defendant in a negligence case is to require him to elect whether to stand on I his submission, and if he does so there cannot thereafter be a new trial.'
The learned Lord Justice went on to quote a passage from the judgment of Lord Greene A MR in Yuill v Yuill (3) and then continued at 282:
`In Wilson v Wilson  3 All ER 195 Karminski, J, held that it was the established practice of the Divorce Division, other than in exceptional circumstances, that a party making such a submission B must be put to his election.
There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff's evidence at C its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden has not been discharged. Laurie v Raglan Building Co Ltd was a clear case of the former, Yuill v Yuill of the latter. In Yuill v Yuill, Lord Green MR, said:
D "In the court below, when the case for the appellant was closed, counsel for the respondent made a submission. It was intended to be a submission of no case-not, as I understand, in the sense that the evidence led by the appellant was insufficient in law to support a decision in his favour-but by way of an invitation to the judge to dismiss the petition without calling on the respondent." E
There can, we think, be no doubt that in the former type of submission a defendant is bound by his election, and there can be no new trial. This rule, in our opinion, however, does not of necessity apply to the second type of case where the judge is invited to dismiss the case because of the unsatisfactory or unreliable nature of the evidence.' F
Another English case which I think I must refer to is Vye v Vye (7). It is not necessary for the present purposes to state the facts of that case. It is the illuminating observations in G the judgment of Sir Jocelyn Simon P, which I think render some guidance as to what the solution of the problem I am confronted with in the instant case ought to be. The learned President said at 34:
`Sometimes, at the end of a plaintiff's, or petitioner's, or complainant's case, but not before, the case may be stopped, either on a submission that there is no case to answer, or on the proper motion of H the court itself; Ramsden v Ramsden, which Baker J, has cited.
Though such action may be taken, it is rarely satisfactory to come to a decision in a matrimonial cause without hearing both sides: see the passage in Ramsden v Ramsden  2 All ER at p 624 I cited in Storey v Storey, and compare also the Practice Note  1 All ER
448. It is, of course, always open to a defendant or respondent to submit that there is no case to A answer. That is a right that cannot be withheld. He can do that at the end of the complainant's case, but not before. If it is done, it should be made perfectly plain what is the type of the submission. I cite again from Storey v Storey:
"There are, however, two sets of circumstances under which a defendant may submit that he has no B case to answer. In the one case there may be a submission that, accepting the plaintiff's evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged." C
It should be made perfectly plain which of those two types of submission is being put forward. That is not to say that they are mutually exclusive. They can, of course be put forward in the alternative; but the court should be perfectly clear on what grounds it is ruling, if it does so rule, that there is no case to answer: see, for example, Disher v Disher  3 All ER 933;  at 31.' D
Although the problem which the High Court of Uganda was confronted with thirty years ago in Simewo Damulira v B Kassainali Nanji (8) is not identical with the one I am confronted with in the case now under consideration, the observations of Edwards CJ E (as he then was) in that case are, I venture to think, fairly instructive. The facts of that case are succinctly stated in the headnote as follows: `After the appellant (plaintiff) had given evidence the magistrate noted on the file: Close of plaintiff's case, I don't wish to F hear the defendant', and then proceeded to deliver judgment, in which he said `The evidence of the plaintiff leaves me far from satisfied that his claim is genuine'. After holding that there was no warrant in Ord 16, Rule 2 of the Civil Procedure Rules (of Uganda) for the course the trial magistrate took and that resort could not be had to the G practice observed by the High Court in England in Civil cases tried by a jury, the learned Chief Justice said at 174--175:
`I wish to make a clear distinction between the facts of the instant case and a trial where, at the end of the plaintiff's case, it transpires that the plaintiff, even if believed, has made out no case in law H entitling him to any remedy. Suppose, for example, a plaintiff sued for Shs 1,000/= damages on the ground that the defendant had merely been rude to him but did not suggest that he had libeled or slandered him or done or said anything which would, in law, entitle him to recover damages as Icompensation or solatium, then in such a case, in spite of the wording of Order 16 rule 2, a Magistrate might
well be entitled to stop the case and dismiss the plaintiff's action. As to this, however, I express no A definite opinion. Such a case must await decision when it arises. I am fortified in reaching the conclusion at which I have arrived by a perusal of the words of Lord Justice Romer (as he then was) in the case of Alexander v Rayson, Vol 52, Times LR, page 131 at page 133: B
"Where an action is being heard by a jury it is, of course, quite usual and often very convenient, at the end of the case of the plaintiff, or of the party having the onus of proof, as the defendant here, for the opposing party to ask for the ruling of the Judge whether there is any case to go to the jury, who are C the only judges of fact. It also seems to be not unusual in the King's Bench Division to ask for a similar ruling in actions tried by a Judge alone. We think however, that this is highly inconvenient. For the Judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion on the evidence until the evidence is completed. Certainly no D one would ever dream of asking a jury at the end of a plaintiff's case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a Judge should be asked such a question in cases where he, and not a jury, is the Judge who has to determine the facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should E be on the other party's counsel and on no one else."
In my view the same principles must apply where a Judge or Magistrate, of his own motion, in a civil case, feels inclined, after having heard only the evidence of the party on whom is the burden of proof, to dismiss the action. That really seems to be conclusive of the matter now before me. A Judge or F Magistrate in Uganda trying a civil case is in the same position as a Judge of the King's Bench Division in England in an action tried by him sitting alone.'
Having given the matter anxious and, I hope, careful consideration, I readily admit the G justice of the principles underlying the practice observed by and before Her Majesty's High Court of Justice in England in cases tried by a judge alone. In my view that practice is not only founded upon common sense, but its basis is also to be found in the laudable concept of fair play.
It does not only aim at justice being done, but it also aims, I venture to think, at justice H being seen to be done. These are noble aims which any system of justice worth a name must be guided by. I am unaware of the existence of any local conditions that would warrant the rejection or modification of that practice in the administration of justice in our I country. On the contrary, I think that the practice makes a powerful and reliable ally of the substantive law,
both statutory and unwritten, which our courts are enjoined to apply in the exercise of A their respective civil jurisdictions. With unfeigned respect to the learned resident magistrate, I think she strayed into a grave error in arriving at a final opinion on the case at a stage of the trial when all that she was required to do was to express her opinion as to whether there was a case for the defendant company to meet. At no time before or B during his submission did Mr Kesaria expressly or impliedly elect not to call any evidence. If logic is to prevail, he should not, therefore, have been taken to have lost his right to call evidence. The denial of that right was a serious error. It vitiates the learned resident magistrate's decision. that being so, I am constrained to allow the appeal. C Unfortunately, I cannot order a retrial before another magistrate as I am informed by Miss Sheikh that the key witness for the respondent university has left the country for good and cannot be obtained without a collosal amount of expense. As the outcome of the case may to a large extent depend on credibility of witnesses, it seems unlikely that the D invocation of the provisions of s 35(1) of the Evidence Act 1967, would adequately protect the interests of the respondent university. My regret for not being able to order a retrial before another magistrate is, however, tempered by the reflection that Mr Kesaria E is quite willing to go back before the learned trial magistrate and present the case for his client before her.
For the reasons I have endeavoured to give, I allow the appeal and set aside the lower court's decision.
The learned trial magistrate is directed to re-open the case, hear the evidence of the F defendant company and finally determine the case in accordance with the applicable law.