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JUDGMENT
[1] The plaintiff sued the defendant for the price of goods sold and
delivered.
[2] The plaint was signed on 24th September 1969.No appearance seems to have
been entered. No defence was filed, although a summons and a hearing notice
was sent to the defendant. The case came up for hearing on the 19th March
1969 before a Grade II Magistrate although the case had boon filed in a
Grade III Magistrate's Court.
[3] 0.6 r.26 of the Civil Procedure Rules provides for cases in Magistrates'
Courts to be tried without further pleadings, where a plaint has been filed.
The court may however order further pleadings to be filed.
[4] The defendant appeared in person and denied (presumably verbally) the
allegation. The case proceeded without further pleadings being ordered, or
issues framed under O.XIII.
[5] The plaintiff gave evidence in which he produced a document (Ex. A) On
which the defendant had endorsed a note that he would pay the amount
demanded that is, theshs.2l2/-.
[6] During the cross-examination the defendant suggested to the plain¬tiff
that ho had lent him shs. l,000/-. The plaintiff admitted the fact, but
averred that he repaid the amount in three lots on 5/10/66, 8/11/66 and
15/11/66. The plaintiff said, "I have paid you shs 1,000/-."
[7] Presumably the next sentence is a note by the Court itself although it
doesn't say so.
"At this point the defendant is raising the question of counter¬claim
against the plaintiff for shs. 1,000/-. Defendant asks for permission to
file a counterclaim."
"Court
Defendant is allowed 14 days to file counterclaim and is to pay costs 5/-
for adjournment as the counterclaim should have been filed already.
(Signed.)
E. K. Mutyabule "
[8] Stopping at this point, the Magistrate does not seem to have given the
advocate for the plaintiff an opportunity to object to the filing of the
counterclaim, but makes an order willy-nilly.
[9] This is all the more surprising as the magistrate said "the
counter-claim should have been filed already".
[10] Thirdly, it is rather odd that permission was given to file a
counterclaim half-way through a cross-examination and the Magistrate did not
order a reply to be issued, or make any reference thereto. In any event the
plaintiff had admitted receiving the shs 1,000/- but had repaid it.
[11] The denial was not only a general one, but a parti¬cularised one giving
the dates, when the sum counterclaimed had been liquidated by the payment of
throe instalments. I don't see why the defendant was allowed to put in the
defence and counterclaim. Be that as it may a defence and counterclaim was
filed.
[12] The case was re-fixed for hearing.
[13] On 13 /6/70 the case was resumed by Mr. Mutabule who by this time had
been promoted to Grade I. The plaintiff finished his evidence and the
defendant gave evidence in his defence, and in respect of his counterclaim.
[14] The learned Magistrate who dealt generally with the evidence said¬
"This is a straightforward case and having heard the evidence for the
plaintiff and all the particulars produced, I am not satisfied that the
plaintiff has proved his claim on a balance of probabilities as required in
Civil cases."
[15] The learned Magistrate fell into error in this. He was guilty in my
view, of non direction on two scores.
(1) he ignored Ex. A, on the back of which the defendant said he would pay
the sh5.212/-, and
(2) a statement in cross-examination by the defendant: “it is true I wrote
at the back of the exhibit A that I will go to plaintiff and pay his account.”
[16] There was ample evidence on which judgment could have been given to the
plaintiff for shs.212/- and which he ought to have done.
[17] The Magistrate said:-
"Regarding the counterclaim, I misdirected myself in allowing questions to
be asked regarding this counterclaim because where a defence or counterclaim
is raised the defendant must under O.VIII r. 11 of the Civil Procedure Rules
file his reply within 14 days. Where the defendant does not file his reply
within the prescribed time it is erroneous to allow him to ask questions
regarding the Counterclaim to which he filed no reply.”
[18] He goes on to say in his judgment:-
"Although the suit was filed in the Magistrate's Court Grade II ( it appears
it was in fact filed in the grade III Magistrate 's Court if Mr. RAjjierus
Memo. of appeal is correct) but there no specific rules are laid down on a
point, the Civil Procedure Rules governing procedure in Chief magistrate's
Court and Magistrate I are applicable.
[19] In the instant case the defendant filed the defence of a counterclaim
on the 6th February- 1970, but the plaintiff’s advocate failed or omitted to
file a reply to the counterclaim within the prescribed time. In the
circumstances, it was wrong for the court to allow him to make any reply to
the counterclaim when the case came up for hearing and I have decided to
correct myself on this matter in the course of this judgment.
[20] Having regard to the evidence before me I dismiss the plaintiff's claim
with costs and give judgment for the counter-claim for shs 1,000/- with
costs.”
[21] The learned Magistrate seriously misdirected himself and non directed
himself on important aspects of this case.
[22] Firstly, under 0.6 r.26 he could have proceeded without further
pleadings once the plaint had been filed.
[23] Secondly, the plaintiff did in fact answer the defendant's allegation
in his cross-examination before the court allowed the defendant to file his
counterclaim, which in any event is defective as under para. 1 of the
counterclaim the defendant has not stated to whom he lent the shs 1,000/-.
[24] Thirdly, O.V111 r.11 says¬
"Any person named in a defence as a party to a counterclaim made may; unless
some other or further order is made by the court, deliver a reply within 15
days after service upon him of the counterclaim."
[25] The first point I wish to make here is that there is no evidence that
the counterclaim was served on the plaintiff. The only evidence is that it
was filed in court. That being so the defence and counterclaim was
ineffective.
[26] Even if it had been served, the rule does not say must, but may deliver
a reply. There is one last objection to this judgment.
[27] The plaintiff had given detailed replies to the counterclaim in his
cross-examination. The learned Magistrate did not consider that at all; but
merely gave judgment quite erroneously to the defendant, as no reply had
been filed by the plaintiff.
[28] In fact the defendant said in cross-examination, "Plaintiff true
brought me a cheque for 500/- and that is why I did not take his signature
for the money. Plaintiff was not the drawer of the cheque which his son
brought to me.
[29] I do not know the name of the drawer of the cheque".
[30] That deals with half his claim.
[31] There is no evidence, nor anything to suggest that that cheque wasn't
met. Again, when a demand for shs.212/- was made it is unlikely that a
person would say he would call and pay it, if he had a claim for shs.l,
000/- against the very person demanding the money.
[32] Had the learned Magistrate considered the evidence and analysed it he
could not possibly have said so cavalierly, “having regard to this evidence
before me, I dismiss the plaintiff's claim and give judgment for the counter
claim for shs.1,000/-”. On both points he appears to have been wrong.
[33] The Order cannot stand. I allow the appeal, and set aside the order.
[34] Al though Mr. Bhatt asked me to send the case back for retrial the
amount involved is so small, that it would be completely unjustified.
[35] Having set aside the order made by the Magistrate, I substitute
therefor judgment to the plaintiff for shs. 212/- and costs of his claim,
and dismiss the counterclaim.
[36] I give the costs of the action and the appeal to the plaintiff/appellant. |
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