Held an order will be made on an application for

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Held : “(A)n order will be made on an Application for Reference upon Taxa- tion only if the officer dealing with the Bill has proceeded upon some wrong prin- ciple. The certificate of the taxing officer will not be reviewed on a mere question of quantum save in exceptional circumstances.” Citing In the Estate of Ogilvie; Ogilvie v. Massey (1910) p. 243. 178. Esther David Mmari v. Emmanuel Makaidi, Misc. Civ. Cause 8-D-67; 26/5/67; Georges, C.J. Applicant, the father, sued respondent, the mother, for custody of a child. The service of summons was defective in that it failed to state affirmatively that res- pondent should appear and did not specify the date, time or place for appear- ance. Service was rejected by respondent. Later, the magistrate sent a letter to
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respondent advising her of the hearing. However, there was no indication in the record that the letter was posted, correctly addressed or received. Applicant was awarded custody of the child. Respondent the filed this appeal within the required time, but the notice of intention to file the appeal was filed out of time. Held: (1) This case justifies extension of the time for filing notice of inten- tion to appeal. (2) A court can proceed (1967) H.C.D. - 48 – To deal with a matter ex parte only where there is proof that there was service of a proper summons on the absent party. (3) The magistrate’s letter did not cure the defect in the service of summons because there was not indication that it was received. The Court stated, obiter, that it was in any event quite undesirable that a party should be summoned to appear in court by a letter signed by the magi- strate. The Court also stated, obiter; Although there were allegations that res- pondent could not take proper care of the child, there was not allegation and no evidence that the father was in a better position to do so. Thus, the evidence would in any event have been insufficient to support the award. 179. Ebrahim Abdulla Bahurmuz v. The City Council of Dar es Salaam Civ. Case 73-D-66; 27/5/66; -----------, J. Plaintiff brought this action against the city Council of Dar es Salaam, and al- leged erroneous valuation of their property, which defendant had acquired under the Town and Country Planning Ordinance. During the taking of evidence concerning an unre- lated preliminary point, testimony was introduced suggesting that a mistake had been made, and that defendant’s valuation had in fact referred to a neighboring house. Defendant then applied for leave to present a third party notice against the owner or the neighboring house, but did not specify what claim might be
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made against the third party. At the time of the application the pleading were closed. Held: The court has a general discretion in all cases to allow or not to al- low the notice to be served, but it should not allow this procedure if the result will be to embrass or delay a plaintiff. Such applications as a general rule will be re- fused if not made until after the close of the pleadings. Citing Birmingham and District Land Co. Ltd. V. London and North Western Railway Company 56 L. T.
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  • Fall '17
  • Dean Majamba

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