MOHAMED NASSORO v ALLY MOHAMED 1991 TLR 133 (HC)

 

MOHAMED NASSORO v ALLY MOHAMED 1991 TLR 133 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

19 September, 1991

Flynote

Civil Practice and Procedure - Summons - Service - Effect of improper service of

summons. F

-Headnote

The appellant had an ex-parte judgment passed against him by Singida Resident

Magistrates' Court allegedly for failing to appear on the hearing date. On appeal the

appellant contended that he was never served with notice. The G High Court found

that the appellant was not properly served with summons as the summons in question

were not the proper documents and were not attached to the plaint. Also, service of

summons was not effected by the proper office of the court.

Held: As there was no proper service, the trial magistrate should have set aside the exparte

judgment as of right. H

Case Information

Appeal allowed. I

No case referred to.

1991 TLR p134

MWALUSANYA J

[zJDz]Judgment

A Mwalusanya, J.: The appellant Mohamed s/o Nassoro had an ex-parte judgment

passed against him for Shs. 10,000/= by the Singida R.M.'s Court. The suit proceeded

ex-parte when allegedly the appellant failed to appear on the hearing date

(25/2/1988), while the respondent Ally s/o Mohamed had appeared.

B At the hearing of the appeal and in his memorandum of appeal the appellant has

contended that he was never served with notice for appearing on 25/2/1988. He said

that the ten cell leader had lied when he ordered on a letter that appellant had

refused to accept serve of summons.

C It is my finding that the appellant was not properly served with the summons,

and that much the respondent has conceded during the hearing of the appeal. First

the "summons" in question are not the proper documents, but it was only a handwritten

piece of paper, written and signed by the magistrate requiring the appellant to

appear in D court on 25/2/1988. It was not even attached with the plaint. Secondly

it was not served on the appellant by a proper officer of the court (the process server).

According to the respondent it was him who had taken the "summons" to the ten cell

leader for service on the appellant. That was highly improper and the appellant was

right E to refuse service in the circumstances.

According to Order 5 rule 16 of the Civil Procedure Code, 1966 it is only the proper

officer of the court who has to effect service of summons. And if the party refuses to

accept service, the process server has to leave a copy of the F summons with him and

return the original to the court together with an affidavit stating that the person upon

when he served the summons refused to sign to acknowledge service.

As the ten cell leader was not a proper officer of the court he had not and could not

have made an affidavit as to G how to effect service. In short there was no proper

service, and respondent that much has conceded.

As there was no proper service, the trial magistrate should have set aside the ex-parte

judgment as of right. In the event the appeal is allowed. The order dismissing the

application for setting aside the ex-parte judgment is set H aside. I also set aside the

ex-parte judgment that was passed by the trial court. The suit should proceed to trial.

Each party to bear its own costs of this appeal.

I Order accordingly.

1991 TLR p135

A