6 January 1972

     
 

Criminal Appeal No. 7 of 1971

 
     

Court of Appeal for East Africa

     
     

V. Rajguru

 

v.

Kishore H. Popat

     
     
 

Judgment

 
     
 

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BEFORE:

PRESIDENT: Mr. Justice D. Jeffreys Jones

   

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Citation:

Rajguru v. Popat, Judgment, File No. 7 of 1971 (CAEA, Jan. 06, 1972)

Represented By:

 

Editor's Note:

Original Civil Case No. 1241 of 196) of the Magistrate's Court of Busoga at Jinja

 
     
 
 
 

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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