Facts
The plaintiff sought from the High Court the following orders of declaration: (a) that the Constitution of the United Republic of Tanzania had been violated by Zanzibar joining the Organisation of Islamic Conference (the 'OIC'); that President Ali Hassan Mwinyi of the United Republic of Tanzania was guilty of permitting or enabling the said violation to take place; and (c) that President Ali Hassan Mwinyi's continued exercise of presidential powers was unconstitutional and a potential danger to the country and its citizens. At the close of the plaintiff's case, counsel for the defendant submitted that there was no case to answer and invited the court to dismiss the case; he chose to call no evidence:
Held:
(i) In a civil case a defendant can, at the close of the plaintiff's case, submit that there is no case to answer, and a submission of no case to answer in a civil case stands on the same footing as a submission of no case to answer in a criminal case, save that there is a difference in the standard of proof.
(ii) When dismissal of the plaintiff's case on the basis that no case has been made out is prayed for, the court should not ask itself whether the evidence adduced by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff.
(iii) A submission of no case to answer cannot be upheld if there is sufficient evidence on record upon which a court might make a reasonable mistake and enter judgment for the plaintiff.
(iv) The test to be applied at the close of the defendant's case is `what ought a reasonable court to do', while the test to be applied in determining a submission of no case to answer is `what might a reasonable court do.
(v) As the claim that Zanzibar joined the OIC is not admitted by the defendant, the burden is on the plaintiff to establish that fact and he has not succeeded to do that; the exhibits he has tendered in court only show the Government's efforts to find out whether Zanzibar joining the OIC would be constitutional.
(vi) The general belief among members of the public that Zanzibar had joined the OIC is not a basis for holding that the plaintiff had discharged his burden in this case.
(vii) No admissible evidence has been given to show the role which the President played in Zanzibar joining the OIC; the evidence of radio and newspaper reports brought by the plaintiff is hearsay and inadmissible under s 62 of the Evidence Act, 1967.
Case Information
Suit dismissed with costs.
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