Wednesday, November 28, 2012

ESTHER DAVID MMARI v. EMMANUEL MAKAIDI (1967) HCD 178


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 respondent should appear and did not specify the date, time or place for appearance. Service was rejected by respondent. Later, the magistrate sent a letter to 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 intention to appeal. 

(2) A court can proceed 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 magistrate.
            The Court also stated, obiter; Although there were allegations that respondent 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.

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