The Managing Director TAWFIQ Bus Service V. Angelo Rwakatale, Civil Appeal No. 13/2003 (Court of Appeal of Tanzania - Bukoba Registry)
Decision delivered on: 18/01/2007.
Theme: Proper Service of Summons
JUDGMENT
LUANDA, J.
Having being satisfied that the appellant was duly served with the summons to file a defence, which he did not file within the prescribed time, the Bukoba district court entered an ex parte judgment in favour of the respondent.
Somehow the appellant came to know about this. Through a firm of advocates going by the name of Phillip Law Chambers the appellant filed an application to set aside that judgment. The reason adduced was that he was not served with the aforesaid summons.
The district Court did not buy his story. The application was dismissed with costs.
Aggrieved by that ruling, hence this appeal. In this appeal Mr. Kabunga learned counsel from Phillip Law Chambers represented the appellant; whereas Mr. Rweyemamu learned advocate from a law firm known as Rweyemamu and Rugaimukamu Advocates represented the respondent.
Mr. Kabunga submitted to the effect that the purported service allegedly to have been affected to the appellant through one Mr. Bashiru was not proper. Mr. Bashiru is neither the appellant nor an agent of the appellant. Further, he went on to say even the affidavit of service of the court broker who affected service was not signed by the said Mr. Bashiru. And further, the signing in a dispatch book allegedly done by Mr. Bashiru was not proper in law. Moreover, the said dispatch book was not produced in court. To buttress up his case he cited Order 5, Rule 12 and Rule 16 of the Civil Procedure Code, Cap. 33 and Mohamed Nassoro v. Ali Mohamed [1991] TLR. 133. He prayed the appeal be allowed with costs and the case to commence afresh.
Responding Mr. Rweyemamu said the service of the summons was proper. First, the appellant had an office in Bukoba. Second, Mr. Bashiru was served twice, i.e. he was served with summons to file a defence and date of judgment. It is Mr. Rweyemamu’s submission that the appellant did not attend the first one but attended the second one for judgment through an advocate.
Turning to dispatch book, Mr. Rweyemamu said that is contained in para 5 of the respondent’s counter affidavit. In any case, he went on to say, the appellant did not deny the existence of Mr. Bashiru and that they did not disclose who is he.
Mr. Rweyemamu maintained that in terms of Order 5, rule 12 of the Civil Procedure Code, Cap. 33, the service was properly affected.
In reply Mr. Kabunga said Mr. Bashiru is not known. This is contained in para 2 of the affidavit of Mr. Mohamed. As to dispatch book he said annexing is not enough; it ought to be tendered.
In refusing to set aside the ex parte judgment entered in favour of the respondent, the learned Principal District Magistrate said, I quote:-
“To start with Mr. Mohamed Seleman the Managing Director of the Tawfiq Bus Service in para 2 of his affidavit states that on 2nd September received information by telephone from a person who did not tell him his name that there is a case against him pending for hearing before Bukoba district Court. The date he mentioned above to have received a Telephone is the day this court issued summons to the defendant to come for judgment on 3/9/2003. The summons was returned with an endorsement of Bashiru Booking Officer. This shows me that this Bashiru is the one who telephoned Mohamed Selemani: We all know that TAWFIQ BUS SERVICE has got their office here at Bukoba”.
The learned magistrate concluded thus:-
“I am satisfied that here at Bukoba TAWFIQ BUS SERVICE has an office and argent (sic). The argent (sic) was properly served with summons and failed to communicate with the defendant concerning the case in court. I can therefore say …” [Emphasis added]
Under Order 5, Rule 12 of the Civil Procedure Code, Cap.33 Service of summons issued to the defendant may be affected upon the defendant himself or through his agent. But how service is affected? The answer is found in Rule 16 of Order 5 of the same Code. The Rule reads:-
16.Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the Original Summons. [Underscoring Mine]
The question in this appeal is whether there was service of summons to the defendant. The summons returned does not contain any endorsement made by either the appellant himself or his agent to meet the requirement of the above cited Rule. In its stead it is written thus:-
“Signed in dispatch.”
Is that proper in law? Obviously the answer is no. That does not comply with the law. But the respondent contended that the appellant was served through a dispatch, of course through an agent. And the one affected service were court Brokers. But the respondent is the one who maintained in his counter affidavit that the appellant were duly served with summons. He attached with a photocopy of a page of a dispatch book. And in his verification clause he stated that, that fact – which is the contents of para 5 of his affidavit – is true to his best knowledge. Surely that is not correct. That fact ought to be deponed by the Court Broker and not the respondent. The Court Broker was the one to tell us how he served the appellant and why he used the dispatch book, if really he served the appellant and not the respondent. So what he had deponed is hearsay. That goes contrary to the rule of affidavit as is provided for under Order XIX, rule 3(1) of the Civil Procedure Code, Cap. 33 which reads:-
3(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statement of his belief may be admitted:- Provided that the grounds thereof are stated.
From the foregoing therefore, the respondent did not at all discharge that burden that the summons was duly served upon the appellant through Mr. Bashiru. There was no service.
In sum the appeal has merits. It is allowed with costs. The appellant should be served with a copy of summons along with a plaint. Then, the case to proceed to trial.
Order accordingly.
B.M. Luanda
JUDGE
