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 Court-which 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
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
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