MZUMBE UNIVERSITY.

FACULTY OF LAW

PROGRAMME: LLB II
SUBJECT NAME: CIVIL PROCRDURE I
CODE: LAW 224
LECTURER: DR. JANUARY NKOBOGO
TYPE OF TASK: GROUP ASSIGMENT
DATE OF SUBMISSION: 4th February 2025.
GROUP MEMBERS GROUP NUMBER 9: STREAM A
NUMBERS NAMES. REGSTRATION
NO.
01 DAUDI KUSAGA MKAMA 1236259/T.23
02 METHOD MESHACK SAMWEL 1236227/T.23
03 BERNADINA PHILIP NGHUMBU 18314029/T.23
04 PATRICIA GEORGE SAMWEL 1236026/T. 23
05 JUNIOR FRANK MATENI 1236023/T.23
06 HERIHERI DANSONI ELMESI 1236221/T.23
07 LILIAN SYLIVESTER SAMBO. 1236031/T.23
08 VICTOR DAMAS ALOYCE 1236189/T.23
QUESTION
a) With the aid of decided cases, briefly discuss the principle that service of summons by
substituted mode should be the last resort.
b) Discuss the procedural issues that arise from the moment the case file is submitted to the
mediator until the conclusion of the mediation process.
 TABLE OF CONTENT

THE SCOPE OF THE QUESTION

1.0 INTRODUCTION
Meaning of the basic terms
Summons
Service of summons
Service of summons by substituted mode
2.0. MAIN DISCUSSION
2.1. The cases showing that the substituted mode of service of summons must be the last
resort.
2.1.1. The case of Kulwa Daudi vs Rebeca Stephen.
2.1.2. The case of Pathec Limited vs Juma Lukinda Majegelo
2.1.3. The case of Mbogo and another vs shah
2.1.4. In the case of Road Force Limited vs Muhammad Adam Khatri
2.1.5. In the case of James Elias Barbaidu vs Merry Hussein.
2.1.6. In the case of Caritas Kigoma vs K. G. Dewsi Ltd.
3.0 PROCEDURAL ISSUES THAT ARISES FOM THE MOMENT THE CASE FILE IS
SUBMITTED TO THE MEDIATOR UNRIL THE CONCLUSION OF THE
MEDIATION PROCESS

a) Issuance of Notice of Mediation Session

b) Mediator’s Introductory Remarks

c) Statement of Understanding

d) Closure and Implementation

REFERENCE
THE SCOPE OF THE QUESTION

The question is divided into two parts; the first part needs us to discuss the principle that the
service of summons by substituted mode of service must be the last resort. And the second part
needs us to discuss the procedural issues that arises from the moment the file is submitted to the
mediator until the conclusion of the mediation process,

INTRODUCTION
Meaning of the basic terms
Summons
This is the court call requiring a person to appear to the court of law as a witness, defendant or
requiring defendant to file written statement of defense. 1 A summons to file a written statement
of defense informs the defendant to file what is called the written statement of his defense in
respect to the plaint that has been filed against him.2

Service of summons

This refers to the process in which the summons is given to the person who his or her presence is
desired before the court of law.3 Service of summons may be effected personally or through
other means such as affixing to the conspicuous part other the house or place where the
defendant resided or worked for gain, also the summons may be served through advertisement
example through newspaper. also the summons may be issued to any person who is needed
before the court it my either be for the purpose of giving evidence or other purpose as desired by
the court

Service of summons by substituted mode

This is the mode of service of summons which is effected where the court is satisfied that there is
reason to believe that the defendant is keeping out of way for the purpose of avoiding service or
that, for any other reason, the summons cannot be served in ordinary way. And the court shall
order the summons to be served by affixing a copy thereof in some conspicuous place in the
court house and also upon some conspicuous part of the house (if any) in which the defendant is

1
S. H. B. Borry, Civil Procedure in Tanzania,
2
B.D Chipeta, Civil procedure in Tanzania; A student manual, (law Africa Publishing Ltd, RE of 2013) p. g 105.
3
Order V Rule 5, The Civil Procedure Code [CAP 33, RE 2019]
known to have lastly resided or carried on business or personally worked for gain or other
manner as the court thinks fit.4

2.0. MAIN DISCUSSION

2.1. The cases showing that the substituted mode of service of summons must be the last
resort.

2.1.1. The case of Kulwa Daudi vs Rebeca Stephen.5

The court ruled that the substituted mode of service cannot be ordered when the respondent is
away only temporary.

In this case, the respondent, a landlady had filed a suit in the Mwanza Resident Magistrate's
Court claiming arrears of rent from the applicant, and vacant possession of the premises. The suit
was filed after the applicant had left, with the respondent's knowledge, on a trip to Kenya. The
court ordered substituted service by affixing summons on the door of the last known premises of
the applicant and subsequently, ex-parte judgment was entered in favour of the landlady without
calling upon her to prove her case. The tenant then applied to the High Court for revision.

The court Ruled that, considering that the plaintiff knew from the beginning that the defendant
was away only temporarily, the trial court exercised its discretion wrongly by ordering
substituted service in the absence of any reason to believe that the defendant was trying to avoid
service.

2.1.2. The case of Pathec Limited vs Juma Lukinda Majegelo6

The court stated that the substituted mode of service cannot be ordered if the primary mode of
service has not been applied to serve the defendant with the summons.

In this case, the respondent successfully sued the appellant for the breach of the agreement of
importation of the motor vehicle. The trial court entered ex parte judgement following the fact
that appellant had not filed the written of defense after the substituted mode of service of
summon which was by publication in the Nipashe News was ordered. This mode was ordered by
the trial court after the summons was served to the stranger who was neither the employee nor
4
Order V Rule 16 of the Civil procedure code [CAP 33 RE 2019]
5
[1985] TRL 116 (HC)
6
Civil application No. 42 of 2022 in the High Court of Tanzania Morogoro district registry (unreported).
the agent of the appellant while there were principal leaders of the company whom by the law
are appropriate to act on behalf of the company. The primary mode of service was not applied to
the applicant, and then the court ordered substituted mode of service. The court ruled that the
substituted mode of service of summons must be used after the satisfactory of the court that the
primary mode of service of summons as provided under Order XXVIII Rule 2, 7 which states that
“Subject to any written law regulation service of process, where the suit is against a
corporation, the summons may be served;

a) On the secretary, or on any director, or other principal officer of the corporation; or

b) by leaving it or sending it by post addressed to the corporation at the registered office,

then at the place where the corporation carries on business.

As been applied to serve the defendant with the summons but unfruitfully.

2.1.3. The case of Mbogo and another vs shah 8

The court ruled that when the ordinary mode of service has proven to be failed then the court is
at liberty to order the substituted mode of service.

In this case The Respondent was knocked down and injured by a vehicle which was owned by
the first Appellant and driven by the second Appellant. The Respondent notified the insurance
company of the vehicle that he intended to hold that company liable to compensate him. Thus he
served it with a notice. The company through correspondence denied liability. The Company’s
advocate, however, refused to accept service of the proceedings filed by the Respondent against
the Appellants and service was effected by advertisement. No appearance was entered and no
defense was filed. The Respondent obtained judgment ex parte against the Appellants which the
insurance Company then applied to set aside. The court held that; the judge applied correctly his
discretion to refuse the application to set aside the judgment.

2.1.4. In the case of Road Force Limited vs Muhammad Adam Khatri9

7
The Civil Procedure Code [CAP 33, RE 2019]
8
(1968) E A 93
9
Civil appeal no. 183 of 2024 in the High Court of the United Republic of Tanzania Dar es salaam district registry at
Dar es salaam.
The court stated that; when the ordinary way of service of summons has been proven before the
court of law to have been failed, then that court can order the substituted mode of service.

In this case the court having tiredly failed to secure the attendance of the Respondent, the trial
Court ordered service of the summons by publication in the Gazette. The date for the hearing
was fixed, the Respondent was, as usual, recorded absent. It was then adjourned where hearing
proceeded ex parte against the Respondent. Having evaluated the evidenced available, the trial
Court delivered a Judgement in favour of the Appellant, the Respondent successfully appealed to
the District Court where the decision of the trial Court was set aside. The applicant dissatisfied
appealed to the High court, the High court however disallowed the application on the other
ground but it agreed that when the ordinary way of service of summons has been proven before
the court of law to have been failed, then that court can order the substituted mode of service as it
was done by the trial court after satisfying itself that the ordinary way of service of summons had
failed.

2.1.5. In the case of James Elias Barbaidu vs Merry Hussein.10

In this case the substituted mode of service of summons was because when the matter was called
for orders before this court the applicant informed the court that, he tried to serve the respondent
with a summons to appear before the court but was not reachable, the affidavit of the court
process server was to that effect and made prayer to proceed ex parte. The court ordered
substituted service, the summons was advertised in the Mwananchi Newspaper, but also the
respondent did not show appearance and subsequently the matter proceeded ex parte.

2.1.6. In the case of Caritas Kigoma vs K. G. Dewsi Ltd.11

In this case it was held that the substituted mode of service of summons cannot be ordered if the
defendant has not been served by the service by ordinary means which have been proven to have
been failed.

In this case, it is revealed that the trial court ordered the use of substitute mode of service of
summons after the plaintiff had made an applicant to the court to proceed ex parte following the
twice unfruitfully service through ordinary way of service of summons by two court process
10
Civil Appeal No. 14963 0f 2024, in the High Court of the United Republic of Tanzania, Arusha Sub Registry at
Arusha (unreported).
11
Civil Appeal No. 47 of 2004, in the Court of Appeal of Tanzania at Mwanza (unreported).
server. Subsequently the court heard the matter on one side and entered the judgement thereto.
The respondent now the applicant being aggrieved by such decision appealed to the high court,
the High court, the High court dismissed the application, aggrieved again the applicant appealed
to the court of appeal, upon perusal of the record the court of appeal observed that there was no
any evidence that the applicant was served by the summons through ordinary means to justify the
order of the court to the effect that the service could be effected through substituted mode. So the
court of appeal quashed the decision of the high court which upheld the ex parte judgment which
was entered by the trial court. So the court stated that the substituted mode of service cannot be
used against a person if the ordinary way of service has not been unfruitfully used against him.

Therefore, if all the primary means of service of summons are employed to serve the respondent
with the summons, but unfruitfully and the court is satisfied that all the primary means has failed,
then the court will issue the order of service through substituted mode of service. 12 Order V Rule
1613 provides that “service substituted by the order of the court shall be as affected as if it has
been on the defendant personally” When the order to use substituted mode of service is issued,
the respondent is supposed to appear before the court and upon failure, the court will enter the ex
parte hearing and consequently the court will enter ex parte judgement basing on the evidence
adduced by the applicant. Also in the case of Lekam investment co. ltd vs the registered trustees
of al-juma mosque and six others,14 the court held to the effect that where the substituted mode of
service is used to effect the service through the order of the court, and the court is satisfied
through the evidence that the substituted mode of service was used to effect the service then the
person affected by the ex parte judgement entered following his nonappearance, cannot claim
that he was not given the right to be heard.

2. PROCEDURAL ISSUES THAT ARISES FOM THE MOMENT THE CASE FILE IS
SUBMITTED TO THE MEDIATOR UNRIL THE CONCLUSION OF THE
MEDIATION PROCESS.

a) Issuance of Notice of Mediation Session

12
Order V Rule 16 of the Civil procedure code [CAP 33 RE 2019]
13
[CAP 33 RE 2019]
14
Civil Revision No. 27 of 2019 in the High Court of Tanzania, Dar es salaam District Registry at Dar es salaam.
Upon fixing of a date for mediation,15 a Notice of Mediation Session is sent to the parties or their
advocates, informing them the date, time and place of mediation, and before whom the mediation
session is to take place.16 In case of firms or companies, it may also inform them who should
attend, for instance, the people with authority to make a final decision in the case. The Notice of
Mediation Session also informs parties: (i) to bring with them relevant documents (ii) strict
adherence to confidentiality of the mediation proceedings, (iii) failure to attend may cause
sanctions.17

b) Mediator’s Introductory Remarks

On the mediation day, the mediator should undertake the following preliminaries: (i) welcoming
the parties to the mediation session, (ii) introduce him/herself and the parties, (iii) determine if
the parties have authority to make final decision in the case (iv) make a brief, but comprehensive
introductory statement known as the Mediator’s Initial Remarks.18

In the Mediator’s Initial Remarks, the mediator will brief the parties on the following matters:
what the mediation process is all about; (i) what is the role of the mediator and/or parties; (ii)
how the parties should conduct themselves; (iii) the importance of the confidentiality of the
mediation proceedings; (iv) the advantages of mediation as opposed to other modes of dispute
settlement (including litigation); and (v) consequences of success or failure of mediation. 19

c) Statement of Understanding

Upon ascertaining that the parties or their advocates have clearly understood the privileged
confidential nature of the process as well as the consequence of success or failure process, the
mediator will ask the parties to sign what is called a Statement of Understanding which contains
the mentioned.20

d) Mediation Session

There are three Mediation Sessions: (i) first joint session; (ii) separate sessions (or caucuses); and
(iii) final joint session. The three sessions are set out below.
15
Order VIIIC Rule 25(5) of the Civil Procedure Code [CAP 33 R.E. 2019]
16
B.D. Chipeta, Civil procedure in Tanzania: A student’s Manual (LawAfrica Publishing (T) Ltd, R.E. 2013) Pg. 179
17
J.C. Mashamba, Guiding Notes on Mediation (Tanganyika Law society, 2020)
18
Global Justice Solutions, op. cit, pp. 57-61.
19
B.D. Chipeta, Civil procedure in Tanzania: A student’s Manual (LawAfrica Publishing (T) Ltd, R.E. 2013) Pg. 180
20
J.C. Mashamba, Guiding Notes on Mediation (Tanganyika Law society, 2020)
(a) First Joint Session

During the mediation session, the mediator begins by holding a joint session. In the first joint
session, the mediator meets with both or all the parties to the dispute for the first time. So, as
soon as the mediator has finished his Introductory Statement, he will call upon one party, usually
the plaintiff or claimant, to briefly state his case. Thereafter, the mediator will call upon the
defendant or respondent to do the same. At this stage, the mediator gathers information from
both sides; so, he or she will not interfere with the party’s narrative.21

The mediator also uses the First Joint Session to develop his or her strategies to enhance
settlement opportunities; to detect hidden interests and motives of the parties, and identify the
wants and needs of the parties and the real issues in the dispute. Wants means those things which
are desirable to have but are not crucial or necessary to a party; and needs refers to those things
which are necessary and basic to a party and so should be taken care of. After a party has made
his brief presentation, the mediator will summarize what has been said and also clarify what
appears to have been left obscure.22

Three things should be noted during the First Joint Session: first, at this stage parties will still be
angry at each other, labouring under their prejudices of winning the case; second, the mediator
should be patient at this stage (he or she should not think that the mediation is likely to fail); and,
third, if the parties are furious, the mediator should adjourn the joint session and move into
separate sessions.23

(b) Separate Sessions (or Caucuses)

This is a meeting between the mediator and one party in the absence of the other. A mediator
uses separate sessions for many reasons of the case and the parties. She or he may break into
separate sessions in order to calm frayed tempers; or to probe more into the facts of the case and
hidden motives behind a party’s negotiating strategy more closely; or to discover the actual

21
B.D. Chipeta, Civil procedure in Tanzania: A student’s Manual (LawAfrica Publishing (T) Ltd, R.E. 2013) Pg. 180
22
Ibid
23
Ibid
needs of the party; or to enable a shy and withdrawn party to talk more freely in private and
reveal his or her hopes and fears, and so on.24

It is in separate sessions that mediators often make headway: timid parties talk more freely,
secrets are more easily revealed, and definite or tentative offers made. Again, it is in separate
sessions that the Mediator tries to persuade the parties to judiciously brainstorm and share
information which will assist them to, as we say, “expand the pie” so that each party may get as
much as possible of what he would like.25

Furthermore, it is in separate sessions that the mediator translates and transmits offers, clears
wrong impressions and suggests options. The mediator also uses this session to again reassure
the parties that a settlement will be reached if they tackle the process positively. A mediator can,
thus, hold as many separate sessions as he or she wishes, so long as he or she believes he is
making progress towards reaching a resolution of the dispute. For the same reason, there is no
limit to the number of joint sessions which the mediator may hold.26

(c) Final Joint Sessions

Final joint sessions are held at the conclusion of the mediation process, whether the mediation
has succeeded or failed. In case of successful mediation, an agreement must be carefully drafted
and all its aspects carefully tested with each party in a separate session. It should be noted that
the final joint session must be held only when there is a whole agreement or there is no amicable
settlement and there are no chances of reviving the mediation session, at which the mediator will
announce that the mediation has failed and thank the parties for their effort to settle the matter
out of the adversarial judicial process.27

In case mediation succeeds, the mediator will then congratulate the parties for their efforts, give
a copy of the agreement to each of them, shake hands with them and then bid them farewell.

d) Closure and Implementation

24
B.D. Chipeta, Civil procedure in Tanzania: A student’s Manual (LawAfrica Publishing (T) Ltd, R.E. 2013) Pg. 181
25
Ibid
26
Ibid
27
Ibid
Where mediation succeeds, the parties execute a settlement agreement, this has been provided
under Order VIIIC Rule 33(a) of the Civil Procedure Code, 28 to flag the completion of the
mediation session. If the settlement agreement is executed by the parties, it should also spell out
the manner of its implementation in accordance to the parties’ agreement. However, sometimes
an impasse may be reached where the mediator, after consultation with the parties, makes a
declaration to the effect that further mediation is not worthwhile.29

Generally, for the mediation process to be conducted properly, the procedural issues must be
followed. This enables the parties to reach an amicable agreement; this is different when there is
no adherence with those procedural issues, where the amicable agreement may not be reached
easily.

REFERENCE

Statutes

Civil Procedure Code [CAP 33 R.E. 2019]

Case laws

Caritas Kigoma vs K. G. Dewsi Ltd, Civil Appeal No. 47 of 2004, in the Court of Appeal of
Tanzania at Mwanza (unreported).

28
[CAP 33 R.E. 2019]
29
J.C. Mashamba, Guiding Notes on Mediation (Tanganyika Law society, 2020)
James Elias Barbaidu vs Merry Hussein, Civil Appeal No. 14963 0f 2024, in the High Court of
the United Republic of Tanzania, Arusha Sub Registry at Arusha (unreported).

Lekam investment co. ltd vs the registered trustees of al-juma Mosque and six others, Civil
Revision No. 27 of 2019 in the High Court of Tanzania, Dar es salaam District Registry at Dar
es salaam.

Mbogo and another vs shah, (1968) E A 93

Kulwa Daudi vs Rebeca Stephen, [1985] TRL 116 (HC).

Road Force Limited vs Muhammad Adam Khatri, Civil appeal no. 183 of 2024 in the High Court
of the United Republic of Tanzania Dar es salaam district registry at Dar es salaam.

Pathec Limited vs Juma Lukinda Majegelo, Civil application No. 42 of 2022 in the High Court
of Tanzania Morogoro district registry (unreported).

Books

Chipeta, B.D, Civil procedure in Tanzania: A student’s Manual (LawAfrica Publishing (T) Ltd,
R.E. 2013).

Article

Mashamba J.C, Guiding Notes on Mediation (Tanganyika Law society, 2020)

Global Justice Solutions, op. cit, pp. 57-61.