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 hand-written 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.
A
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