Hamisi Hamza vs Hassani Akonay and Another (PC Criminal Appeal No. 6 of 1999) [2000] TZHC 584 (23 June 2000)

.,

... -. IN THE HIGH COUHT OF T/.NZ!J1I/1. AT JillUSHA (PC) CRilviIN/u. APPElu. NO~ 6/99 DISTRICT COURT B},B~'.TI CR. ilPPEJJ:., NO. 129/98 •• ( Original BiJ3li.J?rme~ c:o·u'rt·; Criminal~-No.. 296/98) Hb.SSiLNI iJ<ONJ.Y ALLY YAI.-1J.Y1-.. • • • • • •

• Versus, -- - .. • • • • • • " .. ••• R U L I N G ••• . . . . APPELL/.NT . ••• • •• • •• RESPONDENTS A look at the record will show that for quite sometime the 1st respondent has been attend1hg' wpei-i" an '6rder for him to file a C~tinter"· -,ffide.vit was always 'znacte. · Todate: hei ·has filed none and : .. ;:i!j:_z what is worse tliere is record that" he was 'served' for 19/5/2000 but declined to acknowledge service. As for the 2nd respondent, the ecord· .is also clear that he was at one time served for 15/12/99 bu:-t· _todat he has never appeared nor filed a Cpunter Affidavit. Face_d:;with this ste.te of affairs I decided that in order to bring the'-'.&Jplicat'1oi1 · to an end prudence demanded that I proceed to. de- termine it in the absence of the respondents. In brief, this is an application ·for leave to have the order of dismissal made or, 28/7/99 in PC Criirthl. Appeal No.6/99 set aside.· The. __ app,licat-ion is supported by the applicant I s affidavit. - In the P,ff1davit the applicant is clear that he could not attend the Court on 28/7/99 because he was admitted to hospital. He has attached a ••••oooe/2

2 - .. . ·.·.···: . .. Hospital Dtscharg~: C~.rti:tica.te shi.1.1f~_!J1a~-- h'e-w--.P-dmitted on \ 25/7/99 -t1ct· d:i.scliagd on 30/7/99.. Surely' in the abse1,ce of any evidence or information to the contrary, I _W,ill haye nothing to . • .. '° • • ~ . ctlsbeli;e th; a~;ic;l~ •. Ji.cc?.rdingly, I will give him the benefit of doubt and believe that he could not aten.d the court on 28/7/99 . ' .. beoau-se he WEis···sis½.. i1{cteed-r· it··"\Vill be of itere.st .. to look into . --· :- - ··- .. , ... ", , . . . ------ ........ --··-•"" ·- the appeal with the view to determing whether or not the learned Principal Distric_t)'la_gistrate -si-tting in the first appeal properly invoked the releyant provisions of GN 2/88 in allowing the respondent 1 s appeal thereto. -The application is allowed with the result th-2t. the dismissal order made on 28/7 /99 in this Court I s PC Criminal J.ppeal ·No. 6/99 is set aside nnd the said appeal shall be determined on merit. ~Lt(i • J. H. MSOFJ:t'E · . JUDGE Delivered this 23rd day of June, 2000 in the presence of : the applicant. . .. v;t/t{: .. J. H. MSOF::fE: •···· JUW.E . .. '' \· . . 23/6/2000