Jama v. Harman’s Provision Stores Civ. App. 1-Dodoma-71; 13/8/71; Mnzavas J.

Jama v. Harman’s Provision Stores Civ. App. 1-Dodoma-71; 13/8/71; Mnzavas J.

The respondent filed a suit against the appellant claiming a total of Shs. 748.58. On 13/2/68 summons for orders were issued against the appellant requiring him to file his written statement of defence within 21 days. The appellant was served with the summons on 14/3/68 and signed him name acknowledging receipt of the summons. On 28/3/68 the respondent’s advocate applied to the court for judgment as the appellant failed to file a written statement of defence within the time specified in the summons. On 29/3/68 the District Court entered ex-parte judgment in favour of the respondent because the appellant had failed to notify the court of his intention to defend the suit and that 21 days had elapsed since the service of the summons. On 13/10/70 the appellant was served with a notice to show because why executions should not issue. He, on receipt of the notice, immediately wrote to the court asking to be allowed to show cause sometime in April 19712 as he was on a trip to Mecca on pilgrimage. He subsequently, in March  1971, filed a chamber application asking the court to set aside the ex-parte decree as he was not aware of the suit against him; alleging that he had at no time been served with summons in connection with the respondent’s claim. His chamber application was dismissed and he appealed against the order.

Held: (1) “There can be no doubt that the chamber application to the effect that the appellant had not been served with summons when the ex-parte judgment was entered against him is incompetent ……….. the appellant did on 14/3/68 sign his name on the original of the summons for orders acknowledging receipt of the summons. He was therefore full aware of the suit against him.” (2) “The appellant was served with the summons for orders on 14/3/68. The learned magistrate.

            on application by the respondent’s counsel, entered ex-parte judgment on 29/3/68 – saying that the appellant (original defendant) had failed to notify the court of his intention to defend the suit; and adding that 21 days had elapsed since the service of the summons to the appellant – original defendant. With great respect I agree with the learned senior resident magistrate that the appellant had not notified the court of his intention to defend the suit at the time the ex-parte judgment was entered against hi; but, with even greater respect I would say that the learned senior resident magistrate’s ex-parte judgment was pre-mature. Or viii R. 1 (2) says – “Where a summons to file a defence has been issued and the defendant wishes to defend the suit he shall, within twenty one days of the date of the service of the summons upon him or such longer period as the court may direct in the summons, present to the court a written statement of his defence.” Rule 14(i) of the same Order says – “Where any party has been required to present a written statement under sub-rule (1) of rule 1 or a reply under rule 11 of this order and fails to present the same within the time fixed by the court, the court may pronounce judgment against him or make such order in relation to the suit or counterclaim, as the case may be, as it thinks fit”. In this case summons for orders was served on the appellant on 14/3/68 requiring him to file his defence within 21 days of receipt of the summons. This would mean that the appellant (original defendant) had up to 4/4/68, at the latest, to file his defence.” (3) Appeal allowed.