Answered by: Andrea Shah
College: Mzumbe University (Mbeya Campus)
Programme: LLB
Year of Study: II
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Question
“During the course of the proceedings in the court various pleadings, summonses, and affidavits, lists and orders have to be served between the parties. Service is done by the court through the court process servers or the court may direct the parties to serve each other.”
Briefly discuss the validity of this assertion in the light of the law and practice relating to the service of documents.
INTRODUCTION
The object of the civil procedure law is to enable the parties as well as the courts to know matters, which are in dispute so as to have guidance in determining cases fairly. This object can only be attained by what is known as service of document. In the context of civil procedure service of document means a process whereby the other party to the litigation is served with document of which the other party has either filed to the court or intends to rely upon during the court proceeding.
In Blacks Law Dictionary,[1] service means, the formal delivery of a writ, summons or other legal process after three attempts, service had not been accomplished also termed as service of the process. The final delivery of some other legal notice, such as pleadings, be sure that a certificate of it is attached to the motion. Process server means a person authorized by the law or by a court to deliver formally process to a defendant or respondent.[2]
Again, in the Concise Law Dictionary,[3] Service of Process means, the delivery of notice of any cause or suit being instituted or of any steps being taken therein to the party affected thereby or having an interest in the subject matter of the suit. Process server means one who serves in the manner prescribed by law a summons, mandate or writ issued by court of law.[4]
RATIONALE FOR SERVICE OF DOCUMENT
The service of document complies with the principle of Natural Justice, that is, Audi alteram partem. This means, no man should be condemned unheard. For instance, when the plaintiff has filed a suit before the court of law, it is a mandatory requirement that the defendant should be informed of the claim raised against him so that he can be afforded a chance to reply to such claim. Hence there is requirement of him to be served with the claims.
No person should be taken by surprise in court proceeding. Whatever is going on or takes place in the court the other party should be made aware of it. This help to avoid prejudice to the party. Thus at each stage of court process if there is any new matter arise, party must be served with such information informing him of what is going on.
It is a fundamental rule of the law of procedure that a party must have a fair and reasonable opportunity to represent his case. And for that purpose, he must have a notice of legal proceedings initiated against him. The service of summons in the defendant is therefore, a condition precedent to a fair trial. If the summons is not served on the defendant or it does not give him sufficient time to represent his case effectively, no decree can be passed against him.
HOW SERVICE OF DOCUMENTS MAY BE EFFECTED
In this work, attempts have been made to show how courts are involved in serving different documents to the parties. It must be noted that, these are only few of the documents which are served by the courts and due to time constraint we could not exhaust each and every court document.
Pleadings:
Order VI, Rule 1, define pleading to mean a plaint or written statement of defence (including a written statement of defence filed by a third party) and such other subsequent pleading as may be prosecuted in accordance with Rule 13 of Order VIII. In pleading the court document involved are plaint, written statement of defence and counter claim.
In any civil litigation, a suit is instituted by presentation of a plaint to the court.[5] The law requires that the plaintiff at the time of filing a suit should furnish the court with sufficient copies of the plaint necessary to enable the court to serve the same to defendant or defendants[6] or other parties to the suit. After proper presentation of a plaint by the plaintiff to the court and a case assigned to a specific judge or magistrate as the case may be, the court will order the issue of summons accompanied with a copy of a plaint to be served to the defendant through process server or the plaintiff or his agent requiring him to file a written statement of defence within 21 days from the date of receiving the summons.[7] These documents may be served together with summons.
Summons:
There are two types of summons. That is, summons to appear and summons to file written statement of defence. Summons to appear informs the defendant that the plaintiff has filed a suit against him and calls upon the defendant to appear and answer the claim on the date, time and place specified on it. On such summons, he will be required to produce all documents and evidence he intends to rely in support of his case.[8]
Summons can be served in the following manners:
By personal service
This is done by delivering and tendering a copy of summons dully signed and sealed to defendant or each of them, if they are more than one, as the case may be.[9] A copy of the summons must be delivered to the defendant together with the copy of the plaint and other document after the defendant or agent has been made to sign in an appropriate place on the summons as evidence that he has been duly served. The process server (amin) will then return the original copy of the summons to the court, and will swear to an affidavit stating how or when he dully effected the service on the defendant or his agent. Such affidavit constitutes sufficient evidence of service.[10]
Service on agent or manager
In case the defendant has empowered an agent to accept service or where defendant is not residing in the local limit of the court, the service shall be sufficient on a manager or agent who at the time of service personally carried on business or worked for such defendant within such limits.[11]
Service on adult member of the family
When the defendant is absent from his residence at the time of service of the summons and there is no possibility of his presence and he has no agent, service may be made on an adult member of his family but a servant is not regarded as a member of his family. [12]
Affixation
After the process server’s efforts of finding defendant has failed and he is satisfied after all due and reasonable diligence that he could not find the defendant, such process server must affix a copy of summons on the outer door or some conspicuous part of the house in which the defendant ordinarily resides or carries on business for gain. Having done so, the process server must within 14 days of affixing such copy return the original to the court stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person by whom the house was identified and whose presence the copy shall be affixed.
Substituted service
Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons can not be served on him by the ordinary way, the court will order that, the summons be served by affixing a copy of it in some conspicuous place in the notice board of the court house and also on some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. This is called substituted service, and is as effectual as if it has been made on the defendant personally. In such a case, the court must fix such time for the appearance of the defendant as the case may require.[13] The process server will swear an affidavit that he affixed the summons in the place as directed by the court.
Moreover the court may order service by an advertisement in the newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is lastly known to have actually and voluntarily resided, carried on business or personally worked for gain.
Service by Post
If the court is satisfied that, to require a summons to served on a defendant in the ordinary manner or by substituted service may cause undue delay and that the summons may more conveniently be served by post, the court may order that the summons be served by post[14]. When the court, or the defendant receives the acknowledgment purporting to be signed by the defendant or his agent or his agent refused to take delivery of summons when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant. The same principle applies in a case where the summons was properly addressed, prepared and duly sent by registered post, acknowledgment due; and acknowledgement is lost or not received by the court within 30 days from the date of issue of the summons. When the summons sent by registered post is returned with an endorsement “refused”, the burden is on the defendant to prove that the endorsement is false[15]
If the court is satisfied that the service is effected by post and duly served to the defendant such service will be as effectual as if the summons had been served on the defendant personally.[16] In other jurisdiction like India the service of summons can be effected through an electronic media, such as fax or such other means the court may approve.[17]
Service Where Defendant is confined in Prison
If the defendant is confined in a prison, the original and a copy of the summons shall be delivered or sent to the officer in charge of the prison for service on the defendant.[18]
Service of the defendant Resides in the jurisdiction of another court and where he is outside Tanzania
Where the defendant resides within the jurisdiction of another court or in another state, the summons may be send to the court where he resides[19]. Such court will serve summons on the defendant. Moreover, where the defendant reside in a foreign country, the service of summons may be effected through the political agent there or a court established there with authority to serve summons[20]
Service by Plaintiff or Agent
A plaintiff or his agent may himself serve summons on a defendant. In such an event service may be deemed to have been duly effected if an affidavit is filed by the person who effected the service stating that he personally served the summons on the defendant, that the defendant was personally known to him or by exhibiting the summons or a copy of it endorsed by the defendant with an acknowledgement of service or giving reasons why such acknowledgement could not be obtained.[21]
Written Statement of Defence:
This is the document filed by the defendant or his agent or advocate to the court replying the allegation raised by the plaintiff in his plaint of which he was required to reply within 21 days. If the written statement of defence is not filed within the specified time, the defendant has no right to file it later on without the permission of the court.[22] The plaintiff will get the copy of written statement of defence on the date of mention.
OTHER TYPES OF DOCUMENTS AND ORDERS
Other types of documents and orders, which can be served through the court process servers includes; judgments, interim orders, decree, ruling, drawn order, chamber summons accompanied with an affidavit etc
There are instances where the court may direct the party or parties to serve documents to each other. When this is done, then the other party who is receiving the document has to sign the original document as evidence that he has received the same. Example of this documents are like written submission, reply to the written submission and rejoinder to the written submission. Sometimes the party may serve the other party documents during the hearing. For instance the documents which the party wants to rely as evidence but did not annex it when filing the plaint.
CONCLUSION
It can be said that, there are many documents, which can be applied to the court by the parties in the whole proceedings of the suit, but those which are mentioned above are the most commonly used. With regards to the manner of servicing those documents, it is crucial to note that in many instances the parties themselves can engage in the services of the documents to the other party, this may happen when one cannot afford to furnish some amount to the court so that his service can be effected by the court process server.
REFERENCES
1. Takwani c, manual on civil procedure.
2. Civil procedure code (Rule) 2004
citations
[1] Blacks Law Dictionary, 8th Ed, p 1399
[2] Ibid p.1170
[3] Ramanatha, R., (2004), Concise Law Dictionary, 2nd Ed, p.781
[4] Ibid p.
[5] Order IV Rule 1 of the CPC
[6] Order VI Rule 2(1) (a) (b) of the CPC
[7] Ibid Rule 1 Para (b)
[8] Order V Rule 1 and 4 of the CPC
[9] Order V Rule 12
[10] Order V Rule 16 and Rule 18
[11] Order V Rule 13
[12] Order V Rule 15
[13] Order V Rule 20
[14] Ibid O. V, r 30
[15] C.K. Takwan (1997) Civil Procedure, 4th, p 150 and also Order 21 of CPC
[16] Ibid O. V, r 21 (2)
[17] Acharya, N.K., (2004), Guide to CPC, 1st Ed, p.76
[18] O.V, r.24
[19] O.V, r.22 & 23
[20] O.V, r 29 & 28
[21] O.V, r. 31
[22] O.VIII, r. 14
