19950321 TZHC Dar es Salaam

IN TI-C 'E_IGH COURT OF TANZANIA ;~ T DAR ES SALA_ti1•i CPI. _:J?:t: ~AL NO. 0/1990 THE SDITOR. 1MF).i'JYA~ZI. • • • • • • • • APr' 2LLANT Versus 1. 2. 0 Uii:220 I1i?.ISHO ___ JOHili BLAJ>J~ETI. ) ) ) ,,___ •-•-oooooGtO RESPONDENTS - -- - - -· - -JUDGMENT - KY.ANOO 2J: This is an appeal f.rom an order of the Resident Magistrate's· Ct1urt of Dar es Salaarri .' at Xisutu, refusing an application for extension of time t9 file an appl icati.on ·to set aside an ex-:earte judgment and decree passed in_ Ci· ·.1 Case No. 55 of 1985 of that Court. The appellant is r,-'!Dr·esented by : ::- o r, ,rando, learned_ advocate and the rr~:s::;:,.:.r;.~ · . mts are rep re~· .. , . - ...:,.~ 1Jy hr~ El-Ma.amry, , ' . learned advocate. It w/,S agreed on 14.: qi, ~':c~fore me that ~ounsel file wri tt,:m sl~·r·.:tiss:i.cn~. Whil,• l''.i T/i3.rando has filed his Mr. El-Maamr~, has ~ · iled any, I am of the vi2w tl-1.::t ext~nsion sL0· ' not have been refused; it should have been granted, · .earing which resnl ted .,_. ~nto the ex-parte judgment ·and de_~ree was ,:.onducted without · the aid of assessors. This was contrary ;.,,, the l:)rovismons of ~eetion 57 of the N2wspapers Act,,.1976, which require that ~<;.!emation cases involving new~~aper1;>,_ which this case was, be heard with the aid of asses~t's~. In a recent case,, of Rugaimukamu v/s Murusuri and The Editor of Mfanyakazi News• paper (CA) Civ. APPo l'Joo 39/92. ,;he :-fourt of App2al has ruled that even where a trial is held ex.-garte assessors must parti- ti.Pate in it. ••v• The t:~ial in this Gase there!treg which was held, as stated, without the s.id. of asse~sors is null. and void. It is hereby so declared a:::1J. the ~arl jud~ment and decree ~f the court below in ·this case are qua ed a:r-,..:--1 set e,side. Trial is to commence de n ~ and in the manner 11n:scrib2d by the law. The non-app2arance of the appellant on th2 b"?aring date, which made the court to orcter .e.!_~t,<; -~roof, appears to have been caused by a confusj,0~1 ::.~esul ting :fl,-fJil wi e1drawls of. the ',:;: ' ' suit as against some:: of tb,::- detendan~ .-..•.. /2 2 In the circumstances thu non~ar ;·2arancc would seem to have been not delib2rate 1 I consider it fair.therefore that the · order to_ proceed .!X:.P..EtEl itself bo qunslled too~ · I qua~h and set aside that order and the suit now is to proceed inter partes. Ih other words, the appeal is· allowed. No order · as to costs for it appears that this is a Lc:gal Aid matter on the part of the respondents. DA..R ES ·SALA.4M. -----· : 21. 3 01995 • (' Counsel - absE;?n-c, sc::."v·::-:1, Judgment delivered.