Service of summons in Tanzania.

 

SUMMONS - ORDER V CPC

Order V Rule 1 – Once a suit has been filed it is the duty of the court to summon the defendant.

What is a Summons? It is a process (document) of the court addressed to the defendant informing him that a suit has been instituted against him and requiring him to submit to the jurisdiction of the court either by filing a written statement of defence (WSD) within the specified period in the summons or to enter appearance before the court for the purposes of receiving the directions of the court on a date specified in the summons. 

PURPOSE OF SUMMONS 

The procedure conforms with the rules of natural justice that no party should be condemned unheard. It gives the defendant an opportunity to be heard.

TYPES OF SUMMONS

There are two types of summons.

1. Summons to appear

2. Summons to file a Written Statement of Defence (WSD)

NB: Summons to appear are normally issued by the High Court. Summons to file WSD is invariably issued by Subordinate Courts.

Mandatory (Basic) Requirements of a Summons

1. Under Order V Rule 2 a summons must be signed by a Judge or a Magistrate or any other Officer appointed by the Chief Justice for such purposes.

2. It must bear the seal of the court.

What is a seal? It is a metal endorsement on a document. The High Court is the only court in Tanzania with such a seal. However, rubber stamp may be a valid seal as the endorsement seal.

See: SATCHU V. A.G [1960] EA 508 and BAWMAN V NADIOPE [1968] EA 306. There is a rebuttable presumption that the person signing the summons has the authority to do so. One cannot inquire as to the authenticity of the signature at the time of service.

3. A summons must be accompanied by another document. Order V Rule 3 of CPC - to enable the defendant know the nature of the suit relating to the summons. The Plaintiff must produce enough copies for all the defendants.

APPEARANCE

Appearance by the defendant means the defendant’s submission to the court and his intention to defend his case.

EAP & T  V. M/S TERRAZO PAVIORS [1973] LTR 58

“Appearance under the Code means attendance in person or by an advocate in court on the date stated in the summons which is also the date of hearing. Once the defendant is present, either in person or by an advocate when the case is called up that is sufficient appearance.”

Methods of Serving Summons

The general principle is that service of summons should be made upon the defendant himself personally. 

The person who does the delivery of the summons is the Court Process Server or the Court Bailiff (Officer of the court specifically appointed for purposes of serving processes of the court). Refer: Order V Rules 9 to 15 CPC.

Exceptions to the general principle:

1. Where the defendant has an agent authorized to receive summons the summons will be served on the agent.

2. Where the suit relates to any business or work and the defendant does not reside within the jurisdiction of the court then service may be made on the Manager of the business.

3. Where the suit relates to immovable property service of the summons must be made to the agent with authority to deal with that property.

4. Where the defendant cannot be found, nor has an agent or authority to receive summons then the summons may be served on any adult member of the household except the servant.

Proof of Service of Summons

Order V Rule 16 CPC

The person who receives the summons must acknowledge receipt by signing on the original summons which is then returned to the court and he retains the copy. Where the party refuses to receive the summons the Process - Server leaves the copy aside and swears on the affidavit that the bearer has refused to receive the summons and that a copy thereof has been left on him. Witnesses’ addresses may also be mentioned.

Where the defendant or his agent cannot be found and no adult member of the family leave of the court is sought to have a copy of the summons affixed at the place which is known to be the defendant’s last place of aboard. 

Substituted Service (in substitution of personal service) Order V Rule 20 CPC            The rules relating the substituted service are exception to Rule 12 of Order V in that they allow service of the summons by a method which directly does not involve the defendant. A plaintiff desiring to serve the defendant with substituted service must get leave of the court. He must apply by showing grounds and reasons for this. Substituted service is done by publication in the newspapers or by affixing the copy of the summons at the court - house or at a public place where pubic notices are given.

Note:  Substitution of summons does not include copy of the plaint. The copy of the plaint will remain in the registry and the defendant will be free to go there to collect it.

Other Forms of Service of Summons

Service by Post  

Order V Rule 21 CPC

It is secured on application by the plaintiff. The application is made orally on the mention date. Such order is granted only upon the court being satisfied that personal service will entail unreasonable delay. Such a summons must be by registered mail. See Order V Rule 30. The defendant will be required to sign on the original summons as acknowledgement and return the same to the court.     The defendant may write a letter to the court to acknowledge receipt of the summons.

Service outside the jurisdiction of the Court but within Tanzania

Order V Rule 22 CPC

The court which issues a summons to the defendant who resides outside its jurisdiction sends the original summons and a copy to the court having jurisdiction in the area the defendant is known to reside. e.g. The RM in DSM sends summons and a copy to the RM in Mbeya.

Note: This applies only to subordinate courts. A subordinate court cannot send a summons to the High Court.

When a summons is received by that court it is served in the normal way. This court then returns to the court which issued the summons the original summons signed by the defendant with a covering letter stating how the same was served.

Where the defendant resides within the jurisdiction of Zanzibar the court may either send it by post or physically by Officer of the court. Alternatively the court may send it directly to the subordinate court in Zanzibar.

If the defendant is in Prison the summons will be sent through the Officer – In -Charge of the Prison together with the copy of the plaint. 

If the defendant is a member of the Armed Forces then the summons is sent to his Commanding Officer who has the duty to send the copy to the defendant and return the original signed by the defendant.

Where the defendant is an employee in the Civil Service then he may be served through his superior.

Service of Summons to Defendant outside Tanzania

There are two categories of countries.

1. Kenya, Uganda, Malawi and Zambia. These have specific agreement with Tanzania as to service of civil processes. Summons to these countries is served by:

i) Post – registered mail where the address of the defendant is known.

ii) Directly to the court of that country with jurisdiction over the place where the defendant resides. On receipt the court will receive it as if it was its own summons.

iii) By the plaintiff or his agent sending the summons personally with permission of the court.

2. Other Countries than those mentioned above.

These falls into two categories: – 

1. Countries which Tanzania has agreement (conventions) as to service   

     of civil processes. 

 2. Those countries which Tanzania has no agreement.         

Where we have conventions the service is in accordance with the agreement. Regardless of this summons may be served by post or through the court of that country.  In Tanzania the Magistrate prepares the summons, sends it with the plaint to the High Court, for translation where the country is not an English speaking country. The Registrar of the High Court then sends it to the Principal Secretary of the Ministry of Foreign Affairs which will prepare a document to be sent to that foreign country. 

Service through the foreign court will be as effectual as our own Local Courts.