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
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 non-appearance.
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
A