CHARLES MHISO v GRACE NJAU AND ANOTHER 1997 TLR 107 (HC) A

 

CHARLES MHISO v GRACE NJAU AND ANOTHER 1997 TLR 107 (HC) A

Court High Court of Tanzania - Dar es Salaam

Judge Msumi J

CIVIL APPEAL 27 OF 1995 B

23 April 1997

Flynote

Civil Practice and Procedure - Chamber summons - Requirements - Lack of stamp

with court seal - Although this a requirement, such defect should not be ground for

dismissal of suit. C

-Headnote

The appellant had issued summons in a resident magistrate's court but the suit was

dismissed for non-appearance of the appellant. The appellant filed a Chamber

application requesting the court to set aside the dismissal order but this was dismissed

as being defective for want of a stamp of the court seal. On appeal, D

Held:

It was true that a chamber summons without a court seal was of no legal effect but it

was not good law that such defect should be ground for dismissal of a suit. E

Case Information

Appeal allowed.

Case referred to:

1. CPC International PLC v Zainab Grain Millers Ltd Civil Case 21 of

1993 (unreported) F

Kisusi and Nchimbi for the respondents

[zJDz]Judgment

Msumi, J G

In the original suit appellant sued the respondents in the Court of Resident Magistrate

Kisutu. On 8 November 1993 the suit was dismissed under Order 9 Rule 8 of the Civil

Procedure Code for non appearance of the appellant. In response to this order,

appellant filed a chamber application requesting the court to set aside the dismissal

order. The said application was dismissed with costs on H the ground that it was

defective as the chamber summons was not stamped with a court seal. Dissatisfied

with this finding appellant decided to lodge the present appeal.

Counsel for each party was required to make his submission in writing and submit it

by respective scheduled dates. Up to the time I

1997 TLR p108

MSUMI J

A of preparation of this ruling, counsel for the appellant had not presented his

submission. So in the preparation of this judgment the court had only the advantage

of the written submissions presented by counsels for the respondents. Without

prejudice to his arguments against the appeal on its merits, Mr Kisusi, counsel for the

first respondent raised two preliminary objections. His first B argument is that the

ruling of the trial court does not amount to a decree against which the appellant

would have an automatic right to appeal. The said ruling embodied an order and s 74

and Order 40 Rule (1) of the Civil Procedure Code C specify the orders which can

be appealed against. According to the learned counsel the order in question is not

among those specified for appeal. I am of a different respectful opinion. The order

dismissing the application to set aside the dismissal order was made under Order 9

Rule 9 which, under Order 40 Rule 1(c) is appellable. It is surprising that the learned

counsel could not see this clear provision. D

The second objection, to which Mr Nchimbi, counsel for the second respondent,

associates himself, is that the chamber summons has not been stamped with a court

seal. It is true that it was necessary that the chamber summons had such E stamp.

But is the appellant responsible for this omission. It was for the court to imprint such

stamp after the appellant had paid the necessary fees. It was unfair for the learned

resident magistrate to punish the appellant for non-compliance of an action of which

the appellant had no power to ensure its compliance. Hence this objection is also

overruled. F

On the merits of the appeal, Mr Kisusi has submitted that the appellant has no valid

ground to complain against the ruling of the trial court. He contends that since the

chamber summons was not stamped with a court seal, the same was a nullity. In

support of this view the learned counsel cited the judgment of this court in G the

case of C P C International PLC v Zainab Grain Millers Ltd (1), In principle it is true

that a chamber summons without a court seal is of no legal effect. However, it is not

good law that such defect should be a ground for dismissal of a suit. Essentially a

chamber summons is an order of the court requiring parties to H appear before the

court on a specified date for the purpose of entertaining prayers sought by the

applicant. Thus any defect on such order should, at most, have the effect of lacking

legal force of commanding the appearance of the parties. Any party who default

appearance by command of such summons cannot be subject to the legal conse- I

1997 TLR p109

MSUMI J

quences provided under the relevant provisions of the law. A

In conclusion, this appeal is allowed with costs. The trial court is directed to re-admit

the application for setting aside the dismissal order. B

1997 TLR p109