Masanche, J.: The appellant, the manager of the National Bank of Commerce was sued by respondent, Enock Chacha in the District Court of Tarime, at Tarime. In short, it is alleged that the respondent had presented a cheque at the bank of the appellant. The cheque was of Shs 200,000/=. I That cheque was dishonoured by
the bank. The respondent contended that the cheque was dishonoured wrongly. The respondent A therefore sued the bank for this `disgrace.' He asked to be paid damages to the tune of Shs 3,5 million.
The bank did not appear on the date fixed for the hearing of the case. The District Magistrate, Mr B Malamsha ordered that the case should proceed to hearing ex-parte, the following day. The hearing was to commence on 27 January 1993. Indeed on that day, the respondent was called upon to adduce evidence. He did so. The learned Magistrate wrote a short judgment. He actually termed it a C `ruling'. Judgment was entered for the plaintiff wholly as prayed.
On 18 March 1993, the appellant, through the Tanzania Legal Corporation, applied to have the attachment order which was issued against the bank stayed pending an application to set aside the ex-partejudgment entered on 27 January 1993. The application was granted. But the Court ordered D that the bank deposit with the Court some Shs 3 million as security.
The actual application to set aside the ex-parte judgment entered on 27 January 1993 was heard on 24 April 1993. The appellants were not granted the application. They now appeal to this Court.
The respondent, in answer, to this application by the bank, to set aside the ex-parte judgment, E informed the Court that the applicants were themselves to blame. He had obtained judgment and he was bound to apply for its execution. He argued that the appellants were late in applying to set aside the ex-parte judgment.
This appeal against the decision of the District Court, refusing to set aside the judgment it gave F ex-parte, must be allowed. There are several reasons why this appeal should be allowed.
1. Assuming that the respondent was properly allowed to prove his case ex-parte, he did not G prove his case on the balance of probability as required by law. It does not follow that since a party has been allowed to prove his case ex-parte, he can just casually go though his claims, in the hope that the Court will readily grant the prayer. A party who proceeds to prove his case ex-parte must prove his case on the required standard of the law. Where the H proof falls short of the required standard, the court must dismiss the case (see the case of Javantlal G Dave v Business Machines Ltd (1)
2. Corollary to the above, Bahati J, has said this in Felix M Shirima v Mohamed Farahani and Another (2) It is a cardinal principal of law that in civil cases there must be proof on the balance of the probabilities. In this case, it cannot be said I
A that the scanty evidence adduced in this Court proves in any way what is alleged in the plaint. There must be proof of the case on the standard by law which is on the balance of the probabilities even when a case proceeds ex-parte like in this case. . . .
(3) The case before the learned District Magistrate was a Civil Case and it was coming for B hearing albeit ex-parte. The learned District Magistrate was enjoined to draw issues. No issues were drawn as far as I can see in this file.
(4) The learned magistrate should have realised that the central issue in the case was special C damages. Special damages, in law need strict proof. As Devlin J said in the case of Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (3) at page 875:
`There exists an impression that, when pleading special damages, one can plead a certain figure, arrived at in some way, and one can then set up a lower figure in Court and seek to justify it. In my view that is not the proper way to plead special damages . . .'
All these reasons make it necessary for me to allow this appeal. As Mr Gallati has submitted, there is E a triable issue: it is that of special damages. The respondent alleged that because his Shs 200,000/= worth of cheque was not honoured, he has suffered special damages to the tune of Shs 3.5 million. That in itself, should have attracted the learned magistrate to make his discretion in favour of having the whole matter go on full trial.
F Appeal is allowed.
The case is remitted back to the District Court, where it should be heard inter-party. But the hearing inter-party should be before another Magistrate. The order of a deposit of Shs 3 million into Court is also set aside. The bank should have its money back.
G It is so ordered.
A
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