Lugakingira, J.: The appellant sued the four respondents in the Primary Court for E defamation. He was successful and was awarded damages of Shs. 4,000/= as claimed. The respondents appealed to the District Court and the appellate District Magistrate reversed the trial Court's decision on what appear to be allusions to privilege. That F prompted the present appeal. In view of the decision I intend to take, I do not consider it proper or desirable to go into the details of the case. I will only remark that no one would have sat back and stomached the kind of accusations levelled against the appellant. He had every reason to sue. In this judgment I am preoccupied by two matters: the conduct of the case by the trial magistrate and whether the Primary Court G had jurisdiction in the subject matter.
On 3.7.81 the trial magistrate read over the claim to the defendants/respondents and required their answers thereto. That seems to have been in accordance with Rule 44 of the Civil Procedure in Primary Courts Rules, 1964 read with Rules 18(1) and 20. H
The first and fourth defendants denied the claim, but the second and third defendants, perhaps in malice or by visitation of God, remained silent. Something unusual then followed. The trial magistrate thereupon remanded the second and third defendants stating "... Wanawekwa mahabusu mpaka kesho tarehe 4.7.81 labda wataweza I kujibu ili shauri lipangiwe tarehe ya kuendelea" Indeed when the two defendants
were released the following day, they had no more appetite for their previous game, A hence they promptly admitted the claim.
I had heard of such aberrations before and had encouraged myself to believe that they were misinformed slurs, but here was a case in point. This apparent abuse of power was most unfortunate and most reprehensible. It seems, indeed, that there is no B provision in the Rules which meets this kind of situation - a provision as to what a Primary Court would do where the defendant, being present in court, refuses or fails to answer to the claim. The provisions there are are devoted to appearances and consequences of non-appearance. There is nothing equivalent to 0.8, r. 14(1) of the C Civil Procedure Code, 1966 where, if the defendant fails to present a written statement of defence, the court may proceed and pronounce judgment against him. Still, the apparent vacuum in the Primary Court Rules would not justify the high handedness such as was resorted to in the instant case for, even where there are no express provisions to go by, a court of law cannot constitute itself an instrument of judicial violence. Let us D hope we will hear no more of this.
What then is the position? A little more sober reflection should have suggested the answer to the learned trial magistrate. A situation like this may be approached on the principle that a plaintiff's claim will not be defeated merely because the defendant elects E to be dumb, nor will his remedy be postponed until it pleases the defendant to open his mouth. It follows that the court has inherent power to proceed and dispose of the case.
I am of the opinion that where, in the Primary Court, the defendant, being present, unreasonably fails or refuses to answer the claim, the court, unless it considers it F desirable to adjourn the hearing to another date, would be entitled to permit the plaintiff to prove his claim and then pass judgment according to law. A judgment obtained this way would not in my view be ex parte for it is as if the defendant, being present, had not evidence to contest the claim. This situation may be compared to the position under 0.8. G r. 14(1) where, if the defendant fails to present a written statement of defence and, being refused an adjournment, takes no further part in the case, the proceeding does not thereby become ex parte: B.H. Lakhani & Anor v P.H. Lakhani [1978] LRT n. 26.
The second matter presents no difficulty. The jurisdiction of Primary Courts in matters H of a civil nature inter alia arises where the law applicable is customary law. At issue in the instant case was the tort of defamation in the nature of a slander. The parties are members of the Nyaturu community. There is nothing in the evidence or in the opinion of the single assessor which indicates any Nyaturu customary law on the subject. I have I also been unable to find some other source where this
law could be derived. On the contrary, previous decisions of this court in cases A originating from the same or similar community point to the same difficulty: Abdallah v Singu [1972] HCD n. 12 and Nkulu v Mkungile [1972)] HCD n. 70. I am therefore of the view that in the absence of a Nyaturu law on this subject, the Primary Court had B no jurisdiction to entertain the suit. That alone suffices to nullify the proceedings but there was something more. As just pointed out the trial magistrate received the opinion of one assessor although he sat with two assessors throughout. The record shows that it was an oversight, and that the second assessor was absent, for there are to be found these entries:
"MAONI YA WASHAURI" C
Mshauri wa Mwanzo".
But immediately after the words of the first assessor comes the judgment and there is no D reference to the second assessor.
The omission, by whatever cause, was fatal and rendered invalid the proceedings as a whole. In the Primary Court every decision has to be taken after receiving the opinion of every assessor.
For the totality of these reasons, these proceedings must be and are hereby quashed in E their entirety. The appellant is advised, if so minded, to proceed against the respondents in the Resident Magistrate's Court. Incidentally, I seem to recall a similar case involving the same parties before the Resident Magistrate's Court, Singida. Opportunity should then be taken to ascertain the position.
F Appeal allowed.
G
