RAMADHANI AMIRI v YUSUFU RAJABU 1995 TLR 26 (HC)

RAMADHANI AMIRI v YUSUFU RAJABU 1995 TLR 26 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Maina J

B (PC) CIVIL APPEAL NO.49 OF 1991

September 2, 1994

Flynote

Civil Practice and Procedure - Summons to appear - Summons or Notice to appear

returned unserved - Effect thereof C

Civil Practice and Procedure - Failure of party to appear for hearing - Summons

returned unserved but appellant informed of hearing date orally by process server -

Whether acceptable

-Headnote

D The appellant's first appeal to the District Court was dismissed due to the

appellant's non-appearance. When the District Court called the appeal for hearing,

the respondent informed the court that the process server had orally informed the

appellant of the hearing. The appellant applied to the District Court to set aside the

order of dismissal on the ground that he was not served with a hearing notice. The

District Court dismissed this application, and he appealed to the High Court of

Tanzania. E

Held: (i) If a summons or notice of a hearing date is returned unserved, that is

evidence that the party concerned was not informed of the hearing date;

(ii) It is contrary to the law for the process server or anyone else to

orally notify parties of a hearing date.

Case Infomation

F Appeal allowed with costs

No case referred to:

[zJDz]Judgment

G Maina, J:

This is an appeal by Ramadhani Amiri against the decision of the Kinondoni District

Court which dismissed his application to set aside the dismissal of his appeal to that

court.

H The respondent Yusufu Rajabu had successfully sued the appellant in the primary

court at Manzese for a house. It was alleged that the appellant had pledged his house

for a loan of Shs 50,000/= and when he failed to repay the money, within the period

agreed, the respondent sued for the house, and he was successful. The appellant

appealed to the district court. The hearing was fixed for 14 February 1991. The

appellant was not served with the notice of hearing because he had travelled to Rufiji.

The endorsement on I

1995 TLR p27

MAINA J

the notice speaks for itself. It states that the appellant was bereaved, as his A mother

had died, and he had travelled to Rufiji.

When the appeal was called for hearing on 14 February 1991 the respondent

informed the court that the appellant was notified verbally on 5 February 1991 by a

process server of the hearing date. The hearing of the appeal was adjourned to 15 B

February 1991 when the court process server said that he had verbally informed the

appellant of the hearing date. The district magistrate dismissed the appeal for nonappearance.

The appellant later applied to set aside the dismissal of the appeal. His reasons were

that he was not served with the notice of hearing for he was away in Rufiji, until 16

February 1991 when he returned to Dar es Salaam. The district magistrate disbelieved

him and dismissed the application. C

The procedure adapted by the district magistrate is strange. It is strange because the

notice of hearing of the appeal was returned to the court unserved, and yet he D

accepted oral evidence by the process server to contradict the endorsement on the

notice. If the appellant had returned from Rufiji before the hearing date and the

process server saw him, then a fresh notice would have been issued and served on the

appellant. It has never been procedure for a process server or anyone else E to notify

parties verbally of the hearing date. If the courts were to accept evidence that a party

has been notified verbally of a hearing date, that will create chaos and miscarriage of

justice in the whole judicial process. The procedure laid down in the law must be

followed. If a summons or notice is returned unserved, that is evidence that the party

concerned was not informed of the hearing date. F

Since the notice was returned to the court unserved, that was clear evidence that the

appellant was not aware of the hearing date. The district court erred in law in

accepting oral evidence by the process server that the appellant was aware of the

hearing date. The dismissal of the appeal before the district court cannot be G

allowed to stand. The appellant gave sufficient cause for his no-appearance when the

appeal was called for hearing - that he was not aware of the hearing date.

The order dismissing the appeal before the District Court is set aside. The appeal is

remitted to the District Court for hearing according to law. H

1995 TLR p28