[1949] EACA 17

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and Sir John Gray, C. J. (Zanzibar)

## ALLIBHAI PANJU AND SONS (TANGANYIKA), LTD., Appellants (Original Plaintiffs)

$\mathbf{v}$ .

## SUNDERJI NANJI, Respondent (Original Defendant) Civil Appeal No. 40 of 1949

(Appeal from decision of H. M. High Court of Tanganyika—Mahon, Ag. J.)

Contract—Sale of mtama—Sale by sample or custom of trade not pleaded— Magistrate declining to give ruling at close of one party's evidence.

By contract note dated 29th October, 1946, executed through a broker, defendant-respondent agreed to purchase from the plaintiffs-appellants 30 tons of mtama of the 1946 crops from the Belgian Congo for delivery at Dar es Salaam at Sh. 500 per ton. The defendant-respondent refused to accept part of the consignment on the ground that it consisted of red and not white mtama. In the District Court at the close of the evidence of the defendant-respondent (the defendant-respondent having begun) the plaintiffs submitted there was no case to answer and the Magistrate declined to give a ruling, whereupon the plaintiffsappellants called no evidence and the Magistrate dismissed the claim.

Held $(2-11-49)$ .—(1) The mtama tendered by the plaintiffs-appellants was not of the description for which the bargain was struck, which was for the sale of white mtama.

(2) In his pleadings the defendant-respondent had not alleged a sale of sample of white mtama or custom of the trade and the magistrate rightly did not base his finding on that evidence.

(3) Both appellants and respondent thought they were contracting for white mtama.

(4) The Magistrate correctly declined to give a ruling at the close of the defendant's evidence, and the responsibility for not calling rebutting evidence is on the opposing party's counsel.

Cases referred to: Alexander v. Rayson, 52 T. L. R. 131; Smith v. Hughes (1871), L. R. 6 Q. B. 597.

Vellani for the appellants.

Houry for the respondent.

JUDGMENT (delivered by SIR GRAHAM PAUL, C. J.).—The appellants were the plaintiffs in a suit in the District Court of Uzaramo at Dar es Salaam against the respondent. The claim in the suit was for damages in respect of the respondent's failure to take delivery of a certain quantity of mtama which he had bought under contract with the appellants. The learned Magistrate has recorded in his judgment that "the quantum of damages as calculated in the plaint is not contested by the defendant", and we, of course, accept that.

The Magistrate gave judgment for the defendant holding that the mtama tendered by the plaintiffs was not of the description for which the bargain was struck and that the defendant was therefore within his rights in refusing to accept the consignment and in declaring the contract void.

There was some evidence before the Magistrate that (1) this was a sale by sample and the sample was white mtama, and (2) that by the custom of the trade the word "mtama" unqualified meant only white mtama. The defendant<br>in his pleadings, however, had not alleged either sale by sample or the custom of the trade, and the Magistrate, rightly, I think, did not base his judgment on the evidence as to either of these things. In fact it seems to me clear that

having regard to the pleadings the evidence on both these points was inadmissible. The evidence was not objected to, but that does not necessarily make the inadmissible evidence admissible, either for the Magistrate or for this Court.

The ground for the Magistrate's decision was that the price in the contract sufficiently indicated that it was *white* means that the parties intended to cover by the contract. The Magistrate's finding on this point was that the contract price was Sh. 500 per ton, the then prevailing price of *white* mtama, the price<br>of red mtama being at that time Sh. 350 per ton. There is no doubt on the evidence that the defendant-respondent thought he was contracting for white mtama, and the broker's evidence shows that the plaintiff-appellant also in fact thought he was contracting about *white* mtama. With the striking evidence as to the price added I find myself unable to say that the Magistrate was not justified in his conclusion of fact as to what the intentions of the parties were in making this bargain.

There is one point still to be mentioned. At the trial the defendant, on whom the onus of proof lay, began. At the close of the defendant's evidence the plaintiffs' advocate urged that he had no case to answer. The Magistrate quite rightly declined to give any ruling at that stage, whereupon the plaintiffs' advocate stated that he would call no evidence. Arguments of advocates were heard and the Magistrate reserved judgment.

In these circumstances appellants' advocate has submitted as an alternative ground of appeal that the case should be remanded to the Magistrate's Court in order to enable the appellants to call evidence in the case. I do not think that this Court can possibly entertain any such suggestion. Where a litigant, for his own reasons whatever they may be, elects not to call evidence and in the result loses his case, it would be an obvious injustice for an Appeal Court to let him have another try. Very often the case of a plaintiff is strengthened by the cross-examination of the defendant or his witnesses. That is a risk which a defendant takes if he gives or calls evidence. But a defendant cannot have it both ways by trying first to win his case without taking the risk of putting himself or his witnesses in the witness-box and having failed that way have another chance. In my view this Court should very firmly close the door against forensic tactics of that kind.

I would dismiss the appeal with costs.

EDWARDS, C. J. (Uganda).—I agree that this appeal should be dismissed with costs. I would merely refer to the provisions of section 151 and Order 18, rule 2, of the Indian Code of Civil Procedure, 1908. I think that Courts here trying civil cases should be guided by the views expressed by Lord Justice Romer (as he then was) in the case of *Alexander v. Rayson* 52 Times L. R., page 131, at page 133, where his Lordship said: --

"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 had 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 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 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<br>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 be on the other party's counsel and on no one else."

SIR JOHN GRAY, C. J. (Zanzibar).—I have had the advantage of reading the judgment just delivered by the learned President. I respectfully agree with him that the evidence shows that the purchaser said he wanted white mtama and that the vendor knew that he wanted white mtama. That being so, I also agree with the learned President as to the law which is applicable to the case. Evidence of those facts is clearly relevant under the second proviso to section 92 of the Indian Evidence Act. In this connexion I would venture to refer to the wellknown case of Smith v. Hughes (1871) L. R. 6 Q. B. 597, in which the defendant alleged that he orally stipulated for "old oats" previous to writing to the plain-<br>tiff saying that he would take "the oats" at the price asked by the plaintiff. Thereafter the plaintiff tendered new oats, which the defendant refused to accept. On appeal from the County Court Blackburn, J., said (at page $607$ ):—

"The jury were directed that, if they believed the word 'old' was used, they should find for the defendant—and this was right; for if that was the case, it is obvious that neither did the defendant enter into a contract $\mathcal{L}(\mathcal{A})$ on the plaintiff's term, that is, to buy this parcel of oats without any stipulation to their quality; nor could the plaintiff have been led to believe that he intended to do so."

Cockburn, C. J., and Hannen, J., expressed the same opinion in somewhat similar language.

ċ.

It is clear to me that similar reasoning applies to the facts of the present case and that the Magistrate was right in holding on the evidence before him that the contract was one for the sale of white mtama.

I also respectfully agree with my Lords as to the application to send this case back so as to enable the plaintiffs to call evidence. The plaintiffs' advocate elected at the trial to call no witnesses and cannot at this stage of the proceedings be allowed to change his mind.

I therefore agree that this appeal should be dismissed with costs to the respondent.